Respondents Brief — Sandra Hernden, Petitioner v. Chippewa Valley School District, et al.

No. 25-712

In the

Supreme Court of the United States

SANDRA HERNDEN,

Petitioner,

v.

CHIPPEWA VALLEY SCHOOL DISTRICT, et al.,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of A ppeals for the Sixth Circuit

BRIEF IN OPPOSITION

Lindsay P. Hazen

Counsel of Record

Giarmarco, Mullins &

Horton, P.C.

101 West Big Beaver Road,

10th Floor

Troy, MI 48084

(248) 457-7047

lhazen@gmhlaw.com

Counsel for Respondents

131848

A

(800) 274-3321 • (800) 359-6859

i

QUESTION(S) PRESENTED

Was the court of appeals correct in holding that Petitioner

did not experience a First Amendment adverse action that

would chill a person of ordinary firmness and—at the very

least—the Respondent was entitled to qualified immunity?

ii

TABLE OF CONTENTS

Page

QUESTION(S) PRESENTED . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . ii

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . . iv

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . 2

REASONS FOR DENYING THE PETITION . . . . . . 6

I.

Petitioner Overstates the Degree, and

Practical Significance, of Any Difference

Among the Circuits’ Approaches . . . . . . . . . . . . . 6

a.

There is no circuit split regarding the

‘person of ordinary firmness’ test . . . . . . . . 7

b.

The cases cited by the petition do not

involve any meaningful division of

lower court or this Court’s authority . . . . . 10

II. This Case Is a Poor Vehicle for Review . . . . . . . 14

a.

This case is a poor vehicle for the

issue presented because the case was

properly dismissed for independent

reasons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

iii

Table of Contents

Page

b.

This case is a poor vehicle because

petitioner presents a purely academic

issue . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

c.

Few courts have addressed analogous

facts, which belies the suggestion that

this court should utilize its limited

resources to resolve an issue that is

uncommon and unlikely to be repeated . . . 20

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

iv

TABLE OF CITED AUTHORITIES

Page

Cases

Anderson v. Creighton,

483 U.S. 635 (1987) . . . . . . . . . . . . . . . . . . . . . . . . 16, 17

Ashcroft v. al-Kidd,

563 U.S. 731 (2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Balt. Sun. v. Erlich,

437 F.3d 410 (4th Cir. 2006) . . . . . . . . . . . . . . . . . . . . . 8

Bantam Books, Inc. v. Sullivan,

372 U.S. 58 (1963) . . . . . . . . . . . . . . . . . . . . . . 12, 13, 18

Bart v. Telford,

677 F.2d 622 (7th Cir. 1982) . . . . . . . . . . . . . . . . . . . . . 8

Bennett v. Hendrix,

423 F.3d 1247 (11th Cir. 2005) . . . . . . . . . . . . . . . . . 7, 8

Binay v. Bettendorf,

601 F.3d 640 (6th Cir. 2010) . . . . . . . . . . . . . . . . . . . . 15

Davidian v. O’Mara,

210 F.3d 371 (6th Cir. 2000) . . . . . . . . . . . . . . . . . . 17-18

District of Columbia v. Wesby,

583 U.S. 48 (2018) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Fetting v. Kijakazi,

62 F.4th 332 (7th Cir. 2023) . . . . . . . . . . . . . . . . . . . . 19

v

Cited Authorities

Page

Gaines v. Wardynski,

871 F.3d 1203 (11th Cir. 2017) . . . . . . . . . . . . . . . . . . 17

Garcia v. City of Trenton,

348 F.3d 726 (8th Cir. 2003) . . . . . . . . . . . . . . . . . . . . . 7

Houston Cmty. Coll. Sys. v. Wilson,

595 U.S. 468 (2022) . . . . . . . . . . . . . . . . . . . . . . 8, 10, 12

Laird v. Tatum,

408 U.S. 1 (1972) . . . . . . . . . . . . . . . . . . . . . . . 10, 11, 14

MacIntosh v. Clous,

69 F.4th 309 (6th Cir. 2023) . . . . . . . . . . . . . . . . . 17, 18

Malley v. Briggs,

475 U.S. 335 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Maloney v. Comm’r of Soc. Sec.,

480 F. App’x 804 (6th Cir. 2012) . . . . . . . . . . . . . . . . . 19

McPherson v. Kelsey,

125 F.3d 989 (6th Cir. 1997) . . . . . . . . . . . . . . . . . . . . 19

Mendocino Env’t Ctr. v. Mendocino Cnty,

192 F.3d 1283 (9th Cir. 1999) . . . . . . . . . . . . . . . . . . . . 7

Mezibov v. Allen,

411 F.3d 712 (6th Cir. 2005) . . . . . . . . . . . . . . . . . . . . . 9

vi

Cited Authorities

Page

Morrison v. Bd. of Educ. of Boyd City,

521 F.3d 602 (6th Cir. 2008) . . . . . . . . . . . . . . . . . . . . 13

Mt. Healthy City Bd. of Ed. v. Doyle,

429 U.S. 274 (1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Nieves v. Bartlett,

587 U.S. 391 (2019) . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Paige v. Conyer,

614 F.3d 273 (6th Cir. 2010) . . . . . . . . . . . . . . . . . . . . . 1

Pearson v. Callahan,

555 U.S. 223 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . 7, 16

Ramsey v. Comm’r of Soc. Sec.,

973 F.3d 537 (6th Cir. 2020) . . . . . . . . . . . . . . . . . . . . 19

Reichle v. Howards,

566 U.S. 658 (2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Rice v. Sioux City Mem’l Park Cemetery,

349 U.S. 70 (1955) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Speech First, Inc. v. Schlissel,

939 F.3d 756 (6th Cir. 2019) . . . . . . . . . . . . . . 13, 14, 18

Stewart v. City of Euclid, Ohio,

970 F.3d 667 (6th Cir. 2020) . . . . . . . . . . . . . . . . . . . . 16

vii

Cited Authorities

Page

Stockdale v. Helper,

979 F.3d 498 (6th Cir. 2020) . . . . . . . . . . . . . . . . . . . . 17

Suarez Corp. Indus. v. McGraw,

202 F.3d 676 (4th Cir. 2000) . . . . . . . . . . . . . . . . . . . 7-8

Sun Co. v. Ehrlich,

437 F.3d 410 (4th Cir. 2006) . . . . . . . . . . . . . . . . . . . . . 7

Thaddeus-X v. Blatter,

175 F.3d 378 (6th Cir. 1999) . . . . . . . . . . . . . . . . . 7, 8, 9

United States v. Fruehauf,

365 U.S. 146 (1961) . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Uzuegbunam v. Preczewski,

592 U.S. 279 (2021) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Wurzelbacher v. Jones-Kelley,

675 F.3d 580 (6th Cir. 2012) . . . . . . . . . . . . . . . . . . . . . 8

Zelnik v. Fashion Inst. of Tech.,

464 F.3d 217 (2d Cir. 2006) . . . . . . . . . . . . . . . . . . . . . . 8

Constitutional Provisions

U.S. Const. amend. I . . . . . . . . . . . . . . . . . . . 1, 5-15, 17, 18

viii

Cited Authorities

Page

Statutes

42 U.S.C. § 1983 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Fed. R. Civ. P. 12(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Mich. Compl. Laws § 722.623 . . . . . . . . . . . . . . . . . . . . . 15

Mich. Compl. Laws § 722.633 . . . . . . . . . . . . . . . . . . . . . 15

Other Authorities

Felix Frankfurter, A Note on Advisory Opinions,

37 Harv. L. Rev. 1002 (1924) . . . . . . . . . . . . . . . . . . . 19

1

INTRODUCTION

Petitioner asks this Court to determine whether a

school board president who used the public online threat

reporting website established by the Department of

Justice in response to threats against schools during

the COVID-19 pandemic engaged in First Amendment

retaliation. Pet. App. 4.

The court of appeals, consistent with the other

circuits, recognized Petitioner was required to allege

adverse action that would deter a person of ordinary

firmness from continuing to engage in the constitutionally

protected conduct. Paige v. Conyer, 614 F.3d 273, 277 (6th

Cir. 2010). In applying the rule to Petitioner, the court

concluded Respondent’s alleged action would not—and did

not—deter a person of ordinary firmness from continuing

to exercise their First Amendment rights. This application

of the law is also consistent with the approach used by

other circuits. It is evident that Petitioner’s quarrel is not

with this well-settled rule of law articulated by the Sixth

Circuit, but in how the court of appeals applied that rule

to the particular facts of this case.

The constitutional claim Petitioner seeks to raise

before this Court does not merit plenary review. The

Sixth Circuit’s ruling is consistent with this Court’s prior

holdings and with the other Circuits that have addressed

the issues. Moreover, Petitioner’s claim is a poor vehicle for

review by this Court as Respondent is entitled to qualified

immunity regardless of Petitioner’s ability to prove an

actionable adverse action. For these reasons, certiorari

should be denied.

2

STATEMENT OF THE CASE

School boards are locally elected groups of citizens

charged with crafting policy and approving budgets

for districts of widely varying sizes and contexts. Most

challenges that boards face are nonpartisan in nature: they

relate to issues of policymaking, budgeting matters, the

supervision of the district superintendent, and improving

student achievement and well-being. Being a member of a

board is a part-time position with few emoluments of office.

Respondent Frank Bednard (“Bednard”) formerly

served as a Chippewa Valley Schools (the “District”)

Board of Education (the “Board”) Member. Bednard,

a retired law enforcement officer, served on the Board

for 22 years. (R. 25-4, PageID # 389). Bednard served

on the Board during the COVID pandemic—a period of

time when the public was quite critical of public servants,

especially school board members. The Board had to make

difficult decisions, adhere to mandates from state and

federal powers that it was legally obligated to follow, and

withstand public scrutiny. Indeed, during the COVID

pandemic, “[l]ocal school officials across the United States

[we]re being inundated with threats of violence and other

hostile messages from anonymous harassers nationwide,

fueled by anger over culture-war issues. Reuters found 220

examples of such intimidation in a sampling of districts.”1

Petitioner, Sandra Hernden, was a police officer at

Harper Woods Police Department, and she had children in

attendance at the District through school of choice. (R. 251. https://www.reuters.com/investigates/special-report/usaeducation-threats/

3

2, PageID # 325). Since this lawsuit, Petitioner accepted a

new job working at the Warren Police Department, where

she has a higher salary and works with her husband.

(Id. at PageID # 327). Petitioner no longer has children

attending the District, nor does she live within the

District’s boundary. (Id. at PageID # 242-43).

Against this backdrop, Petitioner admittedly had

“heated” interactions with the Board regarding masking

and its efforts to keep students safe. (R. 1, PageID

# 4). Bednard testified that, at a Board meeting on

September 13, 2021, Petitioner participated in public

comment. (R. 25-4, PageID # 389). He immediately

observed that Petitioner’s demeanor was much more

serious than when normally addressing the Board.

(Id.). She seemed “very angry and very agitated.” (Id.).

Petitioner’s public comment to the Board began with a

history of the publication of Adolf Hitler’s Mein Kampf

and a description of how Nazi Germany labeled Jewish

individuals with “yellow badges.” (Id.). As these comments

went on for some time and appeared to be irrelevant to

District matters, Bednard attempted to direct Petitioner

to explain how this commentary related to the District.

(Id.). Petitioner continued, telling a story about a family

member. (Id.). When Bednard again attempted to direct

Petitioner to address District matters, she yelled several

times that she was getting to her point. (Id. at PageID

# 390). Petitioner proceeded to tell the Board that, by

having students wear masks, the Board was just like the

Nazi’s identifying Jewish individuals with yellow badges. 2

2. Plaintiff also admitted to accusing the District of engaging

in “Gestapo tactics” and turning the Board into a “dictatorship.”

(R. 25-2, PageID # 354).

4

(Id.). As of September 13, 2021, the District did not have a

mask mandate in place. (Id.). As a retired Macomb Sheriff

Command Officer, Bednard testified that he has more

than 30 years of experience and training in reading an

individual’s behavior. (Id.). During this public comment

period, the “[Petitioner’s] aggressive behavior shocked

and scared [him].” (Id.) (emphasis added).

On October 4, 2021, the then United States Attorney

General issued a memorandum encouraging school boards

to report behavior that could constitute harassment or

threats. (R. 1-4, PageID # 28). That night, Bednard

viewed an ABC News report on the memorandum which

reported that anyone could refer abusive, intimidating,

or threatening behaviors at Board meetings to the

Department of Justice (“DOJ”). (R. 25-4, PageID # 390;

R. 25-2, PageID # 361). That same day, Petitioner sent

an email to the District with the subject line, “Special

attention to Frank [Bednard]” with a link to a Sixth Circuit

decision “concerning public commentary at school board

meetings.” (R. 1-3, PageID # 24). Petitioner’s email read:

Once again, law on parents side. Maybe a lil

more due care and caution at the next meeting

Frank. You know, when you let your hatred you

have for me take hold and you interrupt me.

1st 2 were free…

(Id.). The above email to Bednard indicates Petitioner

warned him to exercise “due care and caution” and then

threatened that the “1st 2 [interruptions?] were free. . . .”

(Id.). Petitioner confirmed this was a threat that she would

pursue legal action. (R. 25-2, PageID # 368).

5

In light of Petitioner’s “escalating aggressive

behavior at Board meetings,” Bednard found this email

threatening and transmitted a copy of it to the DOJ on

October 5, 2021, with a message describing Petitioner’s

conduct and threatening behavior. (R. 1-3, PageID #

26). Petitioner did not suffer any monetary or emotional

damage because of this email. (R. 25-2, PageID # 363,

365). Petitioner was not even aware that Bednard sent a

communication to the DOJ until a friend informed her;

her friend discovered this through an independent FOIA

request. (Id. at PageID # 349). Petitioner admitted that

the DOJ has not taken any action or contacted her in any

manner. (Id. at PageID # 350). Petitioner admitted “[s]

he had no way to know whether this prospective criminal

investigation could, or even would, become actualized into

a current investigation.” (R. 16, 25).

Petitioner continued to appear at District Board

Meetings and address the Board in an acerbic and uncivil

manner. For example, she attended Board Meetings in

October 2021 and April 2022, where she spoke during

public comment. (R. 25-2, PageID # 347; R. 25-5, PageID

# 394). Plaintiff has not alleged, and there are no facts to

suggest, that her speech was actually chilled as a result

of the above email. She continued to appear at Board

meetings and continued to send emails to Board Members.

After Petitioner’s constant and aggressive conduct

towards the District Board and its individual members,

she filed suit against Bednard alleging engaged in First

Amendment retaliation. 3 (R. 1, PageID # 9). The District

3. Petitioner’s other claims were dismissed by the district

court and court of appeals and are not at issues here. Pet. App. 6

(“no claim against Pyden is made in this Petition”).

6

filed a Motion to Dismiss pursuant to Federal Rule of Civil

Procedure 12(c) arguing that Petitioner had not alleged

that the District itself did anything. (R. 17, PageID #

121). The Court granted this Motion in part and denied

it in part. Pet. App. 41a-59a. Petitioner and Bednard filed

opposing Motions for Summary Judgment. (R. 24, PageID

# 220; R. 25, PageID # 279). In lieu of oral argument, the

Court decided the motions on the parties’ briefing. Pet.

App. 27a-40a. The Court granted Respondent’s Motion

in full and denied Petitioner’s Motion in full, finding that,

as a matter of law, Petitioner did not suffer an adverse

action that would deter a person of ordinary firmness from

engaging in protected speech. (Id.). Petitioner appealed

the decision to the Sixth Circuit Court of Appeals. On

appeal, all three judges on the panel held that Respondent

was entitled to qualified immunity, and the majority went

further, holding that Petitioner’s First Amendment Rights

were not violated where her speech as not actually chilled

and she only alleged a speculative fear of investigation

that never occurred. Pet. App. 19a.

REASONS FOR DENYING THE PETITION

I.

Petitioner Overstates the Degree, and Practical

Significance, of Any Difference Among the Circuits’

Approaches.

Petitioner contends this issue is ripe for review by

this Court due to a Circuit split and division amongst the

lower courts. However, Petitioner’s argument lacks merit

as there is no Circuit split nor division amongst the lower

courts with regard to application of the standard for a

First Amendment retaliation claim. In fact, every Circuit

has adopted the “ordinary firmness” test and utilize

the same factors when analyzing a First Amendment

7

retaliation claim. As detailed more fully below, the Petition

should be denied.

a.

There is no circuit split regarding the ‘person

of ordinary firmness’ test.

The Sixth Circuit, and “every other Circuit has

adopted the ‘ordinary firmness’ test” for First Amendment

retaliation claims alleged by private citizens. Bennett v.

Hendrix, 423 F.3d 1247, 1251 (11th Cir. 2005) (collecting

cases across the Circuits and observing that “every

other Circuit has adopted” the standard), abrogated in

part on other grounds by Pearson v. Callahan, 555 U.S.

223 (2009); see e.g. Thaddeus-X v. Blatter, 175 F.3d 378,

394, 398 (6th Cir. 1999) (en banc) (“The benefits of such

a standard are that it is an objective inquiry, capable of

being tailored to the different circumstances in which

retaliation claims arise, and capable of screening the

most trivial of actions from constitutional cognizance”);

Mendocino Env’t Ctr. v. Mendocino Cnty, 192 F.3d 1283,

1300 (9th Cir. 1999); Garcia v. City of Trenton, 348 F.3d

726, 728 (8th Cir. 2003) (“The ordinary-firmness test is

well established in the case law, and is designed to weed

out trivial matters from those deserving the time of the

courts as real and substantial violations of the First

Amendment”); Sun Co. v. Ehrlich, 437 F.3d 410, 416 (4th

Cir. 2006). This presents an objective question. Bennett,

423 F.3d at 1251.

This consensus standard requires a “fact intensive

inquiry” that focuses on factors such as “the status of

the speaker, the status of the retaliator, the relationship

between the speaker and the retaliator, and the nature

of the retaliatory acts.” Suarez Corp. Indus. v. McGraw,

8

202 F.3d 676, 686 (4th Cir. 2000); see also Thaddeus-X,

175 F.3d at 398 (application of standard “is not static

across contexts”). Given the fact intensive nature of this

standard, a look into the plaintiff’s response to the alleged

retaliation is relevant to determining whether there

was an objectively adverse action taken. See Balt. Sun.

v. Erlich, 437 F.3d 410, 419 (4th Cir. 2006) (while courts

“must measure the adverse impact against an objectively

reasonable plaintiff[,] . . . ’the plaintiff’s actual response

to the retaliatory conduct provides some evidence of

the tendency of that conduct to chill First Amendment

activity’”); Houston Cmty. Coll. Sys. v. Wilson, 595 U.S.

468, 479 (2022) (plaintiffs “behavior and concessions seem

telling”). When the alleged retaliatory act is a government

communication, the inquiry “must [also] account for” the

fact that the challenged act “is itself a form of speech.”

Houston, 595 U.S. at 478.

Building off this universal standard, a number of

courts of appeals have developed case law to identify

specific adverse actions that can be regarded as adverse

as a matter of law or can be regarded as so de minimis

that they do not meet the threshold on their face. See

Thaddeus-X, 175 F.3d at 397 (quoting Bart v. Telford,

677 F.2d 622, 625 (7th Cir. 1982)); Wurzelbacher v. JonesKelley, 675 F.3d 580, 584 (6th Cir. 2012) (de minimis or

inconsequential actions are “properly dismissed as a

matter of law”); Bennett, 423 F.3d at 1253 (“for private

citizen plaintiffs, the objective test allows for a ‘weeding

out’ function when the injuries complained of are trivial

or amount to no more than de minimis inconvenience

in the exercise of First Amendment rights”); Zelnik v.

Fashion Inst. of Tech., 464 F.3d 217, 227 (2d Cir. 2006)

(finding no deprivation of First Amendment rights where

9

university professor was denied “emeritus” status because

the “benefits of such status . . . carry little or no value

and their deprivation therefore may be classified as de

minimis”); Mezibov v. Allen, 411 F.3d 712, 721-23 (6th

Cir. 2005) (finding no First Amendment deprivation where

allegedly defamatory statements by prosecutor would

not deter a “defense attorney of ordinary firmness” from

continuing to defend his client). The process is a familiar

one in which the law starts with a general standard, and

then gradually crystalizes more particular rules that

fulfill the same purpose as the standard, but with a greater

degree of certainty.

The court below correctly applied this standard

despite Petitioner’s position. Contrary to Petitioner’s

contention, the decision below did not convert the objective

“person of ordinary firmness” standard to a subjective

one. Rather, it simply applied the standard in a way that

meaningfully distinguishes between claims that would

trivialize the First Amendment and claims involving

adverse action of Constitutional dimensions. Petitioner also

contends the court of appeals departed from the objective

test by considering how the plaintiff actually reacted

and apparently “require[d] some sort of compensatory

or economic harm” which would directly conflict this

Court’s holding in Uzuegbunam v. Preczewski, 592 U.S.

279 (2021). Pet. App. 21. First, the Sixth Circuit did not

depart from the standard as it is widely accepted that our

circuit courts should consider factors such as the plaintiff’s

status when making an adverse action determination.

See Thaddeus-X, 175 F.3d at 398 (application of standard

“is not static across contexts”). Second, the court never

held—or even inferred—that some type of nominal

damages were required. Finally, Uzuegbunam addressed

10

nominal damages allowing standing for redressability on

a claim of a completed violation of legal right—not what

constitutes an adverse action for the purposes of the First

Amendment.

b.

The cases cited by the petition do not involve

any meaningful division of lower court or this

Court’s authority.

Contrary to Petitioner’s argument, the cases relied

upon do not support her assertion that there is division

amongst the Circuits or that this Court’s authority is

not followed. First, this Court has recognized the lower

courts’ objective ordinary firmness test when analyzing

First Amendment retaliation cases. See Houston, 595 U.S.

at 477; Nieves v. Bartlett, 587 U.S. 391, 397 (2019).4 Like

the lower courts, this Court has applied this objective test

to the specific facts before it and considered how certain

factors—i.e. if the petitioner is a government employee, if

there is a claim of retaliatory prosecution, etc.—may affect

the application of the test. See Nieves, 587 U.S. at 397; Mt.

Healthy City Bd. of Ed. v. Doyle, 429 U.S. 274, 283–284

(1977) (adverse action against government employee

cannot be taken if it is in response to the employee’s

“exercise of constitutionally protected First Amendment

freedoms”). Indeed, this Court has long recognized factors

that can determine whether or not a private citizen’s First

Amendment rights have been chilled. Laird v. Tatum,

408 U.S. 1, 11 (1972) (collecting cases where this Court

4. Confusingly, Petitioner asserts retaliation claims related

to prosecutions and arrests have special rules that do not relate to

this matter. Pet. App. 16. At no point has any party in this matter

claimed Petitioner’s retaliation claim is subject to the test outlined

by this Court in Nieves.

11

has found “constitutional violations may arise from the

deterrent, or ‘chilling,’ effect of governmental regulations

that fall short of a direct prohibition against the exercise

of First Amendment rights”). 5

In none of the cases decided by this Court did

the chilling effect arise “merely from the individual’s

knowledge that a governmental agency was engaged in

certain activities or from the individual’s concomitant

fear that, armed with the fruits of those activities, the

agency might in the future take some other and additional

action detrimental to that individual.” Id. at 11. Rather,

“the challenged exercise of governmental power was

regulatory, proscriptive, or compulsory in nature, and the

complainant was either presently or prospectively subject

to the regulations, proscriptions, or compulsions that he

was challenging.” Id.

Thus, the lower court’s determination that Petitioner

experienced no harm, no real fear, or any chilling of her

speech in response to Bednard’s message and, thus,

no First Amendment retaliation is consistent with this

Court’s precedent and application of the standard. Rather

than attempt to point out a true split in the circuits,

Petitioner argues this Court has admitted that there is

5. Petitioner takes issue with the lower court’s analysis of the

adverse action alleged because the majority opinion did not cite

“decisions from this Court or other circuits.” Pet. App. 19. First,

it has no bearing on the reviewability of this matter that the Sixth

Circuit did not cite precedent directly from this Court. Second,

the lower court cited Laird in its opinion when analyzing the chill

of Petitioner’s speech and recognizing allegations of a speculative

or subjective harm do not establish a First Amendment retaliation

claim. Id. at 16a.

12

no settled test on adverse actions in the First Amendment

retaliation context citing to Houston. Pet. App. 15 (citing

595 U.S. at 477). But Houston indeed recognizes the

variety of factors this Court considers when a plaintiff

alleges a chilling effect on their First Amendment rights.

See Houston, 595 U.S. at 477 (the adverse action analysis

is not static and considers different factors to determine

if a plaintiff has met their burden). In Houston, those

factors included an individual’s status as a government

official (“we expect elected representatives to shoulder a

degree of criticism about their public service from their

constituents and their peers—and to continue exercising

their free speech rights when the criticism comes”) and

whether the adverse action at issue is itself a form of

speech. Id. at 478.

Second, Petitioner relies on cases addressing facial

challenges and standing rather than as applied and

retaliation First Amendment challenges. Pet. App. 22-27.

Bantam Books concerned a state commission tasked with

“investigat[ing] and recommend[ing] the prosecution”

of publishers whose materials it deemed objectionable.

Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 59-60 (1963).

The commission sent threatening notices to distributors

of these publications citing the commission’s authority,

explicitly warning that the “Chiefs of Police have been

given the names” of the publications, and declaring

that compliance would “eliminate the necessity of our

recommending prosecution to the Attorney General’s

department.” Id. at 62- 63, n. 5. The notices were

“invariably followed up by police visitations.” Id. at 68.

This Court held that the commission’s tactics constituted

“a scheme of state censorship effectuated by extralegal

sanctions.” Id. at 72.

13

Petitioner’s alleged retaliatory action by Bednard did

not involve anything remotely like the explicit threats

of criminal prosecution in Bantam Books. Moreover,

Bantam Books did not even involve a retaliation claim

or examine the actions of an outside state actor who

reported an author of a publication to the commission.

Bantam Books would be a more appropriate comparator

if Petitioner was challenging the actions of the Attorney

General in 2021 or the task force assigned to investigate

threatening claims made against Boards of Education.

But that is undisputedly not the case here. Pet. App. 22,

n. 15 (“[Petitioner] is not challenging the policy in general

or the fear that such a reporting program might one day

apply to her”).

Petitioner’s reliance on Speech First, Inc. v. Schlissel

is also unavailing. 939 F.3d 756 (6th Cir. 2019). Schlissel

dealt only with the question of whether a plaintiff has

suffered a sufficient injury to have standing to make a

facial challenge to a policy, which again, Petitioner is

not challenging; it contains no holding at all about—and

does not even purport to address—what constitutes an

adverse action that could violate the First Amendment

on the merits, and it specifically disclaimed applicability

to as-applied claims. See id. at 766; cf. Morrison v. Bd.

of Educ. of Boyd City, 521 F.3d 602, 608 (6th Cir. 2008).

Still, the Sixth Circuit was clear in Schlissel that the mere

allegation of a subjective ‘chill’ or speculative fear is not

“an adequate substitute for a claim of specific present

objective harm or a threat of specific future harm.”

Schlissel, 939 F.3d at 764.

Regardless, as pointed out by the Sixth Circuit in its

opinion, Schlissel still requires a specific objective harm

14

to show an adverse action, not just a threat of harm.

Id.; Pet. App. 16a. This means “something more than

‘the individual’s knowledge that a governmental agency

was engaged in certain activities or . . . the individual’s

concomitant fear that . . . the agency might in the future

take some other and additional action detrimental to that

individual.’” Schlissel, 939 F.3d at 764 (quoting Laird, 408

U.S. at 11). It is insufficient to allege “the mere existence,

without more, of a governmental investigative and datagathering activity.” Id. (quoting Morrison, 521 F.3d at

608). As such, Petitioner has failed to establish an issue

requiring this Court’s review thereby warranting denial

of her Petition.

II. This Case Is a Poor Vehicle for Review.

Aside from failing to establish that the issue presented

warrants review by this Court since there is no division

amongst the Circuits, she also fails to present a case where

review of the issue would impact the outcome. As detailed

more fully below, the facts of this case do not warrant

review and therefore, the Petition should be denied.

a.

This case is a poor vehicle for the issue

presented because the case was properly

dismissed for independent reasons.

Addressing the First Amendment issue will not affect

the outcome of this case because Bednard is still entitled

to qualified immunity even if his conduct did violate the

First Amendment.

As demonstrated by the instant petition, there is no

case law holding that a public school official violates the

15

First Amendment by simply reporting to law enforcement

that particular speech and behavior appears threatening.

This is unsurprising because the public policy is to not

discourage reporting of concerns out of fear of being

sued. See, e.g., Mich. Compl. Laws §§ 722.623 and .633

(requiring school officials to make reports or face criminal

liability). This is exactly what the Attorney General in

2021 encouraged in his October 4, 2021, memorandum

encouraging school boards to report behavior that could

constitute harassment or threats. (R. 1-4, PageID # 28).6

In fact, even Petitioner, who is a law enforcement officer,

admitted that people should report to the police if they

believe a crime may have occurred. (R. 25-2, PageID #

361-63).7

Qualified immunity is an absolute defense to § 1983

claims. Binay v. Bettendorf, 601 F.3d 640, 647 (6th Cir.

2010). The doctrine is designed to protect “all but the

plainly incompetent who knowingly violate the law.”

Malley v. Briggs, 475 U.S. 335, 341 (1986). Once a qualified

immunity defense is raised, “the burden is on the plaintiff

to demonstrate that the officials are not entitled to

qualified immunity.” Binay, 601 F.3d at 647. To overcome

a qualified-immunity defense, plaintiffs must show: (1)

that government officials violated a constitutional right

6. Available at https://www.justice.gov/archives/opa/pr/

justice-department-addresses-violent-threats-against-schoolofficials-and-teachers.

7. This is an area where hindsight is exceedingly unkind. For

example, undersigned represented Oxford Community Schools in

multiple lawsuits arising from the mass shooting at Oxford High

School. In those cases, the plaintiffs’ theories were that school

officials should be liable for failing to report what they believed

was a threat to school safety.

16

and (2) that the unconstitutionality of their conduct was

clearly established when they acted. District of Columbia

v. Wesby, 583 U.S. 48, 63 (2018).

Even if a question could be raised as to whether

Bednard’s actions violated Petitioner’s constitutional

rights, that is not enough to impose liability. School

Board Members are entitled to qualified immunity if

their conduct does not violate a “clearly established”

constitutional right. Pearson v. Callahan, 555 U.S. at 231.

A “clearly established” right is one that is “sufficiently

clear that every reasonable official would have understood

that what he is doing violates that right.” Reichle v.

Howards, 566 U.S. 658, 664 (2011).

The “clearly established” analysis starts with

examining existing precedent from the United States

Supreme Court and Sixth Circuit for guiding authority on

similar issues. Stewart v. City of Euclid, Ohio, 970 F.3d

667, 674-75 (6th Cir. 2020). The facts of the prior cases

must be sufficiently similar to clearly establish the law.

This Court has “repeatedly told courts” “not to define

clearly established law at a high level of generality.”

Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011). For example,

“the right to due process of law is quite clearly established

by the Due Process Clause,” but that does not mean that

“any action that violates that Clause (no matter how unclear

it may be that the particular action is a violation) violates a

clearly established right.” Anderson v. Creighton, 483 U.S.

635, 639 (1987); see Reichle, 566 U.S. at 665 (“the right in

question is not the general right to be free from retaliation

for one’s speech, but the more specific right to be free

from a retaliatory arrest that is otherwise supported by

17

probable cause”). This Court’s cases therefore “establish

that the right the official is alleged to have violated must

have been ‘clearly established’ in a more particularized,

and hence more relevant, sense.” Anderson, 483 U.S. at

640. Anything less “would destroy the balance that [the

Court’s] cases strike between the interests in vindication

of citizens’ constitutional rights and in public officials’

effective performance of their duties.” Id. at 639 (quotation

marks and citation omitted).

Our circuits routinely grant qualified immunity in First

Amendment cases on the ground that “First Amendment

law is particularly context-driven.” MacIntosh v. Clous, 69

F.4th 309, 321 (6th Cir. 2023) (quotation marks and citation

omitted); see Gaines v. Wardynski, 871 F.3d 1203, 1210

(11th Cir. 2017) (“It is particularly difficult to overcome

the qualified immunity defense in the First Amendment

context”). The Sixth Circuit in Stockdale v. Helper, for

example, examined a public official’s letter calling for the

dismissal of two police officers; the letter was the “sole

reason” the officers were ultimately fired. 979 F.3d 498,

501-502 (6th Cir. 2020). The officers sued, alleging that

the letter constituted unconstitutional retaliation for their

prior lawsuit, but the Sixth Circuit dismissed on qualifiedimmunity grounds. Id. at 506. The court acknowledged

that “a public official violates the First Amendment by

retaliating against an individual for exercising free speech

rights,” but found that this general legal rule did not put

the specific factual issue “beyond debate.” Id. at 506-507

(quotation marks and citations omitted). The court granted

qualified immunity because no precedent found retaliation

in a relevantly similar situation: where the defendant

merely sets a “decision in motion” but does not herself

“take the adverse action.” Id. at 507; see also Davidian

18

v. O’Mara, 210 F.3d 371, at *4 (6th Cir. 2000) (Table)

(qualified immunity warranted where precedent did not

give notice that defendants’ conduct was “severe enough

to chill a person of ordinary firmness from continuing to

publish unfavorable articles”).

Petitioner offers that if her Petition is granted, she

would argue qualified immunity would not apply pursuant

to Bantam Books and Schlissel—but as previously

discussed, neither of these cases clearly establish that

Respondent is not entitled to qualified immunity. Pet. App.

25, n. 16. Neither of these cases are remotely comparable.

See supra Section Ib. Petitioner still does not point to any

law that would have provided Bednard with “fair warning”

that his email to the DOJ would be unconstitutional. Clous,

69 F.4th at 319 (citation modified). “[E]specially in light of

the Attorney General’s recent memorandum urging school

board members, such as Bednard, to report instances of

harassment.” Pet. App. 19a (emphasis added).

In the present matter, the district court judge did

not even find it necessary to address qualified immunity

because Petitioner’s constitutional rights were not

violated. Pet. App. 27a-40a. On appeal, all three judges on

the panel held that Respondent was entitled to qualified

immunity, and the majority went further holding that

Petitioner’s First Amendment Rights were not violated.

Pet. App. 1a-23a.

b.

This case is a poor vehicle because petitioner

presents a purely academic issue.

In the Sixth Circuit, Petitioner did not even raise the

issue of qualified immunity. In fact, the word “immunity”

19

does not even appear in Petitioner’s Brief. Failure

to raise and properly present an issue amounts to a

waiver. See McPherson v. Kelsey, 125 F.3d 989, 995–96

(6th Cir. 1997) (“[I]ssues adverted to in a perfunctory

manner, unaccompanied by some effort at developed

argumentation, are deemed waived. It is not sufficient for a

party to mention a possible argument in the most skeletal

way, leaving the court to . . . put flesh on its bones”); see

also Ramsey v. Comm’r of Soc. Sec., 973 F.3d 537, 545 (6th

Cir. 2020); Maloney v. Comm’r of Soc. Sec., 480 F. App’x

804, 810 (6th Cir. 2012) (“It is axiomatic that ‘a court should

not consider an argument that has not been raised in the

[lower tribunal]’”) (citation omitted); Fetting v. Kijakazi,

62 F.4th 332, 338 (7th Cir. 2023).

Here, as Plaintiff did not even raise the issue of

qualified immunity in the Sixth Circuit, that issue has

been abandoned, which means that the relief sought could

not change the outcome of the case. Stated differently,

Petitioner is asking for an advisory opinion. 8

8. The “case or controversy” requirement prohibits all

advisory opinions, not just some advisory opinions and not

just advisory opinions that hold little interest to the parties

or the public. If advisory opinions “are ghosts that slay,” Felix

Frankfurter, A Note on Advisory Opinions, 37 Harv. L. Rev. 1002,

1007 (1924), it is hard to grasp why the risks associated with them

would be ameliorated, as opposed to accentuated, when the public

has a keen interest in the resolution of the issue. Matters of great

public interest are precisely the kinds of issues that demand the

federal courts to be most vigilant in this area—vigilant that the

powers they exercise are powers the Constitution gives them and

vigilant that they exercise those powers in disputes with the “clear

concreteness provided when a question emerges precisely framed

and necessary for decision from a clash of adversary argument.”

United States v. Fruehauf, 365 U.S. 146, 157 (1961).

20

c.

Few courts have addressed analogous facts,

which belies the suggestion that this court

should utilize its limited resources to resolve

an issue that is uncommon and unlikely to be

repeated.

There is scant case law presenting facts that

are analogous in any meaningful manner, i.e.—(1) a

community member presenting at a school district in a

threatening manner, (2) that the perceived threatening

behavior was reported to the DOJ for investigation at

the DOJ’s request, and (3) that the community member

was admittedly unaware of the report, was not actually

investigated, and admitted that it did not chill her speech

whatsoever.

Petitioner seemingly acknowledges that this fact

pattern is not something that has been frequently litigated.

In an attempt to overcome that problem, Petitioner

suggests that—“[i]n light of our current toxic and

vindictive politics”—that this issue will become pervasive.

History has not borne that out. Even a casual observer

of American politics and society would acknowledge that

national politics have been highly polarized and toxic for

more than a decade. Still, case law with similar facts is

non-existent.

This begets the conclusion that the situation at issue in

this case is unlikely to be repeated and does not warrant

review. See Rice v. Sioux City Mem’l Park Cemetery,

349 U.S. 70, 79 (1955) (“it is very important that we be

consistent in not granting the writ of certiorari except

in cases involving principles the settlement of which is of

importance to the public, as distinguished from that of the

21

parties”) (citation modified). It is clear that this is a case

where Petitioner takes issue with how the standard applies

to the facts of her case, not with the standard itself nor

how it will be applied in future cases. Surely there is no

dispute that this task force created in 2021, in response

to masking debates during the COVID pandemic, under

an entirely different administration and Attorney General

who is no longer in office, is not pursuing these reports

to the DOJ. Indeed, this task force appears to have been

disbanded long ago.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted,

Lindsay P. Hazen

Counsel of Record

Giarmarco, Mullins &

Horton, P.C.

101 West Big Beaver Road,

10th Floor

Troy, MI 48084

(248) 457-7047

lhazen@gmhlaw.com

Counsel for Respondents