Nixon v. Hardin County Board of Education et al
ORDER granting in part and denying in part 25 35 Motion for Summary Judgment. Signed by Chief Judge J. Daniel Breen on 12.27.13.(Breen, J.)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
MELANIE NIXON, individually and as
parent and next friend of the minor child,
HARDIN COUNTY BOARD OF EDUCATION,
ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
The Plaintiff, Melanie Nixon, individually and as parent and next friend of the minor child,
A.N., brought this action on May 30, 2012 against the Defendants, the Hardin County, Tennessee
Board of Education; John Thomas, Director of Schools; Stephen Haffly, Principal of Hardin County
Middle School ("HCMS"); and Stacey Stricklin, Assistant Principal of HCMS, alleging, pursuant
to 42 U.S.C. § 1983, violation of rights under the First, Eighth and Fourteenth Amendments.
Plaintiff also asserts various state law claims. On September 30, 2013, the Defendants moved for
summary judgment under Rule 56 of the Federal Rules of Civil Procedure. (D.E. 25.) An amended
motion was filed on November 4, 2013. (D.E. 35.) The dispositive motion, as amended, is before
the Court for disposition.
STANDARD OF REVIEW
Rule 56 provides in pertinent part that "[t]he court shall grant summary judgment if the
movant shows that there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law." Fed. R. Civ. P. 56(a). "To survive summary judgment, the
nonmoving party must come forward with specific facts showing that there is a genuine issue for
trial." Pucci v. Nineteenth Dist. Ct., 628 F.3d 752, 759-60 (6th Cir. 2010) (citing Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986))
(internal quotation marks omitted). "A genuine issue of material fact exists if a reasonable juror
could return a verdict for the nonmoving party." Id. at 759 (citing Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986)). "Credibility determinations, the
weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions,
not those of a judge." Bobo v. United Parcel Serv., Inc., 665 F.3d 741, 748 (6th Cir. 2012) (quoting
Anderson, 477 U.S. at 255, 106 S. Ct. 2505). "Entry of summary judgment is appropriate against
a party who fails to make a showing sufficient to establish the existence of an element essential to
that party's case, and on which that party will bear the burden of proof at trial." In re Morris, 260
F.3d 654, 665 (6th Cir. 2001) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548,
91 L. Ed. 2d 265 (1986)) (internal quotation marks omitted).
LOCAL RULE VIOLATIONS
Prior to addressing the merits of the instant motion, the Court deems it necessary to address
the Plaintiff's noncompliance with the Local Rules of this district concerning motions for summary
judgment. The Local Rules require that "[m]emoranda in opposition to motions for summary
judgment shall not exceed 20 pages without prior Court approval." LR 56.1(b). Plaintiff's response
runs thirty-five pages despite the fact that a search of the docket reveals no request to exceed the
Local Rule's page limitation. The same Local Rule further mandates that
[a]ny party opposing the motion for summary judgment must respond to each fact
set forth by the movant by either:
agreeing that the fact is undisputed;
agreeing that the fact is undisputed for the purpose of ruling on the
motion for summary judgment only; or
demonstrating that the fact is disputed.
Each disputed fact must be supported by specific citation to the record. Such
response shall be filed with any memorandum in response to the motion. The
response must be made on the document provided by the movant or on another
document in which the non-movant has reproduced the facts and citations verbatim
as set forth by the movant. In either case, the non-movant must make a response to
each fact set forth by the movant immediately below each fact set forth by the
Id. (emphasis added). In responding to the motion for summary judgment, the Plaintiff merely set
forth numbered responses to the Defendants' statement of facts, without reproducing those facts prior
to presenting her responses. Thus, Plaintiff has not complied with LR 56.1(b) on two bases.
Counsel is admonished that this Court takes a dim view of Local Rule violations. In light
of this matter's proximity to trial, the Court will not strike the Plaintiff's memorandum from the
record for exceeding the page limit without prior consent of the Court or deem the movants' facts
admitted. This Court has taken both actions in the past and will not hesitate to do so again in the
event Plaintiff's counsel strays from the Local Rules' requirements in the future.
The material facts in this case are as follows. A.N. entered HCMS after the sixth grade.
(D.E. 26-1 (Dep. of A.G. Nixon) at 8.) According to her deposition, she had known K.N. since the
two were in preschool together. (Id.) They were reunited at HCMS. (Id. at 10.) After A.N. began
attending the middle school, she testified that she and K.N. "argued back and forth," that they talked
about one another to friends, and that K.N. made fun of her. (Id. at 10-33.) A.N. recalled that the
two girls liked the same boy and that K.N. tried to break her and the boy up. (Id. at 12-13.)
Following an incident in which K.N. called A.N.'s friend Lauren Smith from Smith's
boyfriend's phone to tell her K.N. was with him, Smith, who was upset by the call, "tweeted"1 that
she was going to "shoot [Nix] in the face," with an image of a girl's face, a gun and hashtags2 "nolie"
and "hopeshereadsthis." (Id. at 34.) A.N. tweeted back stating that she would help Smith and
"Look, just to the poem...It works everything,"3 followed by hashtag "isweear" and various smiley
faces. (Id. at 35.) A.N. explained in her deposition that she didn't mean anything by the tweet and
was joking. (Id. at 39.) When asked if there was anything in the tweet that would indicate she was
joking, A.N. pointed to the "monkey faces" she added to the end, but she admitted that someone
reading it might interpret it as not being a joke. (Id. at 39-40.) In a subsequent tweet to Smith, A.N.
stated "Good Luck. Shoot her in the face," followed by pictures of a face and a gun. (Id. at 41-42.)
As was the case with the preceding tweet, A.N. acknowledged in her deposition that an outsider
reading the tweet would not have known whether she was joking. (Id. at 42.) These tweets occurred
immediately following the phone conversation between Smith and K.N. (Id. at 41.)
In another tweet conversation with Carli Hunt, a friend of both K.N. and A.N., A.N. stated
"Twitter is an online social media site whereby its users 'tweet' their thoughts." Roasio
v. Clark Cnty. Sch. Dist., No. 2:13-CV-362 JCM (PAL), 2013 WL 3679375, at *5 (D. Nev. July
3, 2013). "A 'tweet' is a message by a user of Twitter. A user of Twitter has 'followers,' which
are other users of the Twitter social media site, [who] may read an individual's thoughts or
"Users of Twitter commonly place hashtags, signified by a number sign (#), in front of
words to signify the topic, genre or style of the tweet; users can then search for or sort tweets by
hashtag." In re Grand Jury Subpoena No. 11116275, 846 F. Supp. 2d 1, 3-4 n.5 (D.D.C. 2012).
The "poem" apparently refers to a poem Smith wrote about K.N. talking to or trying to
steal Smith's boyfriend. (D.E. 26-1 at 39.)
"I hate her. That was my whole point. Carli, goodness, I'm funny. I'll kill her." (Id. at 46.) A.N.
testified that she could not recall to whom she was referring but admitted it was "probably" K.N.
(Id. at 46-47.) Again, A.N. denied that she was serious about wanting to kill K.N. but conceded that
an outsider would not know from the tweet that she did not intend to harm K.N. (Id. at 47-48.) The
parties appear to agree that these tweets were made in mid-October 2011. (D.E. 35-2 ¶ 4, 28-3 ¶ 4.)
K.N.'s mother, a teacher, took the tweets seriously, stating in her deposition that
I took it very serious, based on the history and all that had occurred, and been said,
and transpired. I was not sure. Could I say yes, that I believe that they were going
to kill her, I cannot say that. Did I feel that they might harm her, yes.
(D.E. 26-9 (Dep. of Wendi Star Nix) at 344.) She called Stricklin at home to advise him of her
concerns about sending her daughter to school the next day. (Id. at 29-30.) He told her he would
tell Haffly the next morning. (Id. at 30-31.)
On October 21, 2011, Stacy Lynn Moore, an employee of the Hardin County Sheriff's
Department and a school resource officer, was directed by Haffly that an incident had occurred
involving threats and that if Moore, who usually got to the campus at 7:00 a.m., saw A.N. and Smith
prior to Haffly's arrival, he was to escort them to the school office. (D.E. 26-6 at 7, 11, 21-23.)
Haffly read the tweets and passed the matter over to Stricklin to conduct interviews of the girls.
(D.E. 26-7 (Dep. of Steven Haffly) at 40.) Haffly testified that he gave Stricklin a copy of the tweets
and instructed him that, if he determined the girls "did it," Haffly would recommend a forty-five-day
suspension as punishment. (Id. at 32.) He explained that, during the forty-five-day period, Smith
and A.N. would be reassigned to an alternative school. (Id. at 36.)
Page numbers citing to the record herein refer to the page at which the cited material
appears on the Court's docket rather than to any page numbering on the document itself.
In addition to being assistant principal of HCMS, Stricklin had also served as an athletic
director and a teacher. (D.E. 26-12 (Dep. of Stacy Stricklin) at 15-16.) During the course of his
tenure in the Hardin County schools, Stricklin had received continuing education on various
subjects, including one seminar on discipline. (Id. at 25-28.) When he met with A.N. in the office,
she recalled that he yelled at her angrily, face red, and asked if she thought K.N. deserved the
treatment she and Smith had made her endure. (D.E. 26-1 at 56-58.) She tearfully told him they
were "just joking," that they "didn't mean anything by it" and that they "weren't going to hurt her."
(Id. at 58.) A.N. testified that Stricklin asked if she had a weapon in her bag. (Id.) When she
replied that she did not, he appeared to believe her. (Id.) According to A.N., the interview lasted
approximately thirty minutes. (Id. at 59.)
After it was over, A.N.'s mother, Ms. Nixon, was called and instructed to come to the school.
(Id. at 60.) At that point, both were advised by Haffly that A.N. would serve forty-five days in
alternative school. (Id. at 60-61.) In his deposition, Haffly explained that students such as A.N.
could appeal his decision to the Hardin County Discipline Hearing Authority and then to the Board
of Education. (D.E. 26-7 at 36.) On October 27, 2011, Nixon requested and was granted a
disciplinary hearing for her daughter. (D.E. 26-3 (Dep. of Melanie Rhodes5) at 56-57.) Following
the hearing, the disciplinary authority reduced the number of days A.N. was to attend the alternative
school to ten and required her to participate in counseling. (D.E. 26-5 at 1-2.)
The alternative school, described by Haffly in his deposition as an "alternative placement,"
(D.E. 26-7 at 24), is located approximately two miles from the site of the middle school. (D.E. 26-2
Melanie Nixon is also identified herein as Melanie Rhodes.
(Dep. of Chuck Patton6) at 27.) Students assigned to the alternative school continue to perform work
from the classes in which they were enrolled prior to the assignment and use the same textbooks.
(D.E. 35-2 ¶ 26, D.E. 28-3 ¶ 26.) A.N. alleged that, on her first day at the alternative school, a male
student asked her to sit on his lap. (D.E. 26-1 at 63-64.) She reported the incident to her mother.
(Id. at 64.) While she did not tell anyone at the school about it, she thought her mother might have
done so. (Id.) On her second day, when the students were told to play basketball, A.N. recalled that
"boys kept on coming up behind [her and Smith] and messing with [them] and trying to get the ball
and stuff." (Id. at 56.) "[T]he boys kept on," she stated in her deposition, "and [she] was feeling
really uncomfortable, and . . . went and told [Patton] about it in the office they were in." (Id.) She
remembered that Patton directed the boys to "quit" and "back off." (Id.) A.N. did not return to the
alternative school. (Id. at 68.) Afterward, she related that she "stayed home for a while" and then
began attending school in Corinth, Tennessee. (Id. at 69.)
ASSERTIONS OF THE PARTIES AND ANALYSIS
Agreement of Parties that Certain Claims Should be Dismissed.
At the outset, the Court notes that the parties are in agreement that certain claims should be
dismissed, including all allegations against Defendant Thomas and the official capacity claims as
to Defendants Haffly and Stricklin.
§ 1983 Claims Generally
Title 42 U.S.C. § 1983 provides in pertinent part that
Charles Lane Patton is director of the Hardin County Alternative School/Learning
Center. (D.E. 26-2 at 11.)
[e]very person who, under color of any statute, ordinance, regulation, custom, or
usage, of any State or Territory or the District of Columbia, subjects, or causes to be
subjected, any citizen of the United States or other person within the jurisdiction
thereof to the deprivation of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured in an action at law, suit in
equity, or other proper proceeding for redress . . .
The statute "creates no substantive rights, but merely provides remedies for deprivations of rights
established elsewhere." Flagg v. City of Detroit, 715 F.3d 165, 173 (6th Cir. 2013) (internal
quotation marks omitted), reh'g & reh'g en banc denied (June 18, 2013). In order to succeed on a
§ 1983 claim, a plaintiff must show that the defendant "acted under color of state law" and that its
"conduct deprived the plaintiff of rights secured under federal law." Handy-Clay v. City of
Memphis, 695 F.3d 531, 539 (6th Cir. 2012). The parties' assertions focus on the second element
of the § 1983 claim.
Alleged Constitutional Violations
"As a general matter, the First Amendment means that government has no power to restrict
expression because of its message, its ideas, its subject matter, or its content." United States v.
Alvarez, ___ U.S. ___, 132 S. Ct. 2537, 2543, 183 L. Ed. 2d 574 (2012) (quoting Ashcroft v. Am.
Civil Liberties Union, 535 U.S. 564, 573, 122 S. Ct. 1700, 152 L. Ed. 2d 771 (2002)). Plaintiff has
alleged in this case that the tweets posted by A.N. on her Twitter account constituted protected
speech under the First Amendment and, therefore, school officials had no authority to punish her.
The Defendants first argue in their dispositive motion that Tennessee law expressly
authorizes school officials to suspend students for threats of violence against other students, citing
Tennessee Code Annotated § 49-6-34017 and that Plaintiff's First Amendment claim is in essence
The Tennessee statute authorizes a principal or assistant principal of a public school to
"suspend a pupil from attendance at the school . . . for good and sufficient reasons." Tenn. Code
a constitutional challenge to the statute. Such a challenge, they assert, should be brought before the
state attorney general, who has the duty to defend the constitutionality of legislation enacted by the
general assembly, see Tenn. Code Ann. § 8-6-109, and, thus, requests this Court to decline
jurisdiction.8 Defendants do not contend that this Court lacks jurisdiction over this claim and have
offered no caselaw supporting their request that the Court decline jurisdiction. As the Court is
unconvinced at this stage that the relief sought by the movants is appropriate, it will continue its
analysis of the First Amendment claim.
"First Amendment rights, applied in light of the special characteristics of the school
environment, are available to teachers and students." Tinker v. Des Moines Indep. Cmty. Sch. Dist.,
393 U.S. 503, 506, 89 S. Ct. 733, 736, 21 L. Ed. 2d 731 (1969). It was well-established that teachers
and students do not "shed their constitutional rights to freedom of speech or expression at the
schoolhouse gate." Id., 89 S. Ct. at 736. However, "school officials retain some authority consistent
with fundamental constitutional safeguards to prescribe and control conduct in the schools." Defoe
ex rel. Defoe v. Spiva, 625 F.3d 324, 331 (6th Cir. 2010) (citing Tinker, 393 U.S. at 507, 89 S. Ct.
733) (internal quotation marks omitted), cert. denied, ___ U.S. ___, 132 S. Ct. 399, 181 L. Ed. 2d
255 (2011). "The constitutional rights of students in public school are not automatically coextensive
with the rights of adults in other settings, and the Constitution does not compel school officials to
surrender control of the American public school system to public school students." Id. (citing Bethel
Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 682, 686, 106 S. Ct. 3159, 92 L. Ed. 2d 549 (1986))
Ann. § 49-6-3401(a). "Good and sufficient reasons for suspension include . . . [v]iolence or
threatened violence against the person of any personnel attending or assigned to any public
school." Tenn. Code Ann. § 49-6-3401(a)(3).
A review of the complaint reveals nothing that could be construed, in the Court’s view,
as a challenge to the constitutionality of any state statute, including that cited to by the
(internal quotation marks omitted).
In Tinker, the plaintiffs were part of a group that decided to wear black armbands to school
to publicize their objections to the Vietnam war. Tinker, 393 U.S. at 504, 89 S. Ct. at 735. School
officials became aware of the plan and adopted a policy that any student wearing an armband on
campus must either remove it or face suspension. Id., 89 S. Ct. at 735. The United States Supreme
Court concluded, however, that the "wearing of armbands in the circumstances of this case was
entirely divorced from actually or potentially disruptive conduct by those participating in it" and was
"closely akin to 'pure speech' which . . . is entitled to comprehensive protection under the First
Amendment." Id. at 505-06, 89 S. Ct. at 736. The Court noted that
[t]he school officials banned and sought to punish petitioners for a silent, passive
expression of opinion, unaccompanied by any disorder or disturbance on the part of
petitioners. There is here no evidence whatever of petitioners' interference, actual
or nascent, with the schools' work or of collision with the rights of other students to
be secure and to be let alone.
Id. at 508, 89 S. Ct. at 737. The Court explained that a "mere desire to avoid the discomfort and
unpleasantness that always accompany an unpopular viewpoint" was not sufficient to warrant a
prohibition of speech. Id. at 509, 89 S. Ct. at 738. Rather, a student may express her opinions if she
does so "without materially and substantially interfering with the requirements of appropriate
discipline in the operation of the school and without colliding with the rights of others." Id. at 513,
89 S. Ct. at 740 (internal quotation marks omitted).
In subsequent cases, the Court made clear that school officials need not always justify
regulation of student speech utilizing the Tinker framework. Defoe, 625 F.3d at 331. In Fraser, a
student delivered a speech before a school assembly nominating a fellow student for a student
government office. Fraser, 478 U.S. at 677, 106 S. Ct. at 3161. During the speech, the student
"referred to his candidate in terms of an elaborate, graphic, and explicit sexual metaphor." Id. at
677-78, 106 S. Ct. at 3161. Before the Supreme Court was the question of whether his suspension
for violating a school rule prohibiting the "use of obscene, profane language or gestures"
impermissibly infringed on his First Amendment rights. Id. at 678, 106 S. Ct. at 3162. The Court
upheld the school's action, articulating that, as "it is a highly appropriate function of public school
education to prohibit the use of vulgar and offensive terms in public discourse," "[t]he schools, as
instruments of the state, may determine that the essential lessons of civil, mature conduct cannot be
conveyed in a school that tolerates lewd, indecent, or offensive speech and conduct[.]" Id. at 683,
106 S. Ct. at 3164. The Court distinguished the political message of the armbands in Tinker from
the sexual content of Fraser's speech and the "obvious concern [of school authorities] to protect
children -- especially in a captive audience -- from exposure to sexually explicit, indecent, or lewd
speech." Id. at 684, 106 S. Ct. at 3165; see also Defoe, 625 F.3d at 331-32. As the Supreme Court
later explained, "[h]ad Fraser delivered the same speech in a public forum outside the school
context, it would have been protected[; i]n school, however, Fraser's First Amendment rights were
circumscribed in light of the special characteristics of the school environment." Morse v. Frederick,
551 U.S. 393, 405, 127 S. Ct. 2618, 2626-27, 168 L. Ed. 2d 290 (2007) (internal citations &
quotation marks omitted).
In Hazelwood School District v. Kuhlmeier, 484 U.S. 260, 108 S. Ct. 562, 98 L. Ed. 2d 592
(1988), staff members of a school newspaper sued school officials for violation of their First
Amendment rights following deletion of articles from an issue of the paper dealing with student
pregnancy and the impact of divorce. Hazelwood, 484 U.S. at 260, 108 S. Ct. at 564. Thus,
Hazelwood, unlike Tinker, dealt with "educators' authority over school-sponsored publications,
theatrical productions, and other expressive activities that students, parents, and members of the
public might reasonably perceive to bear the imprimatur of the school." Id. at 270-71, 108 S. Ct.
at 569-70. The Supreme Court concluded that "educators do not offend the First Amendment by
exercising editorial control over the style and content of student speech in school-sponsored
expressive activities so long as their actions are reasonably related to legitimate pedagogical
concerns." Id. at 273, 108 S. Ct. at 571.
As the Sixth Circuit instructed in Barr v. Lafon, 538 F.3d 554 (6th Cir. 2008), cert. denied,
558 U.S. 817, 130 S. Ct. 63, 175 L. Ed. 2d 24 (2009),
[t]he above trilogy of cases yields three principles: (1) under Fraser, a school may
categorically prohibit vulgar, lewd, indecent, or plainly offensive student speech; (2)
under Hazelwood, a school has limited authority to censor school-sponsored student
speech in a manner consistent with pedagogical concerns; and (3) the Tinker
standard applies to all other student speech and allows regulation only when the
school reasonably believes that the speech will substantially and materially interfere
with schoolwork or discipline.
Barr, 538 F.3d at 563-64 (internal citations omitted); see also Defoe, 625 F.3d at 332 (citing Barr).
Generally speaking, the
closer expression comes to school-sponsored speech, the less likely the First
Amendment protects it . . . [a]nd the less the speech has to do with the curriculum
and school-sponsored activities, the less likely any suppression will further a
legitimate pedagogical concern, which is why the First Amendment permits
suppression under those circumstances only if the speech causes substantial
disruption of or material interference with school activities.
Ward v. Polite, 667 F.3d 727, 734 (6th Cir. 2012), reh'g & reh'g en banc denied (Apr. 19, 2012)
(internal citation & quotation marks omitted).
In 2007, the United States Supreme Court issued its opinion in Morse, which involved the
suspension of a student for unfurling a banner stating "BONG HiTS 4 JESUS" at a schoolsanctioned and sponsored event. Morse, 551 U.S. at 393, 127 S. Ct. at 2619-20. The Court,
recognizing that "schools may regulate some speech even though the government could not censor
similar speech outside the school," opined there was no violation of the First Amendment, noting
[s]chool principals have a difficult job, and a vitally important one. When Frederick
suddenly and unexpectedly unfurled his banner, Morse had to decide to act -- or not
act -- on the spot. It was reasonable for her to conclude that the banner promoted
illegal drug use -- in violation of established school policy -- and that failing to act
would send a powerful message to the students in her charge, including Frederick,
about how serious the school was about the dangers of illegal drug use. The First
Amendment does not require schools to tolerate at school events student expression
that contributes to those dangers.
Id. at 405-06, 409-10, 127 S. Ct. at 2627, 2629. This circuit has interpreted Morse narrowly, as
"determining no more than that a public school may prohibit student expression at school or at
school-sponsored events during school hours that can be reasonably viewed as promoting drug use."
Defoe, 625 F.3d at 332-33 (internal quotation marks omitted).9
Neither the United States Supreme Court nor the Sixth Circuit Court of Appeals has
considered the First Amendment issue raised in this case -- whether schools may regulate offcampus online speech by students -- in light of Tinker and its progeny. See Yoder v. Univ. of
Louisville, 526 F. App'x 537, 545 (6th Cir. 2013) (noting that neither the Supreme Court nor the
Sixth Circuit have ruled on the subject), cert. denied, 2013 WL 5505423, 82 U.S.L.W. 3244 (U.S.
Dec. 9, 2013). In arguing their positions, the parties here rely on decisions from other circuits.
The Defendants cite to opinions from the Second, Fourth, Eighth and Ninth Circuits, which
the Court will review seriatim. In Doninger v. Niehoff, 527 F.3d 41 (2d Cir. 2008), the Second
Circuit was presented with the question of whether school officials violated a student's First
Amendment rights by prohibiting her from running for senior class secretary in light of a weblog
In doing so, the Defoe court pointed to Supreme Court Justice Samuel Alito's
concurrence in Morse, in which he stated that he joined the majority opinion "on the
understanding that . . . it goes no further than to hold that a public school may restrict speech that
a reasonable observer would interpret as advocating illegal drug use . . .," and that it "does not
hold that the special characteristics of the public schools necessarily justify speech restrictions
beyond those recognized in Tinker, Fraser, and Hazelwood." Defoe, 625 F.3d at 333 n.5 (citing
Morse, 551 U.S. at 422-23, 127 S. Ct. 2618 (Alito, J., concurring)) (internal alterations &
quotation marks omitted).
or "blog"10 entry posted from her home computer during non-school hours criticizing the school's
decision regarding a planned campus event. Doninger, 527 F.3d at 43. In the blog, the plaintiff
encouraged fellow students to protest the decision. Id. at 50. She testified that students were "all
riled up" and that a sit-in was threatened. Id. at 51. The appellate court, citing Tinker, noted that
"student expression may legitimately be regulated when school officials reasonably conclude that
it will materially and substantially disrupt the work and discipline of the school." Id. at 52 (internal
quotation marks omitted). The court found that, on the record before it, Doninger's expression was
reasonably regulated, despite the fact that she made the posting from an off-campus location. Id.
In Kowalski v. Berkeley County Schools, 652 F.3d 565 (4th Cir. 2011), cert. denied, ___
U.S. ___, 132 S. Ct. 1095, 181 L. Ed. 2d 1009 (2012), the plaintiff was suspended for creating and
posting to a discussion group MySpace.com webpage11 largely dedicated to ridiculing another
student. Kowalski, 652 F.3d at 567. The page was titled "S.A.S.H.," which Kowalski claimed was
an acronym for "Students Against Sluts Herpes," although a classmate, Ray Parsons, stated that it
stood for "Students Against Shay's Herpes," referring to fellow student Shay N., who was the
primary subject of the page. Id. at 567. After creating the page, Kowalski invited approximately
100 people to join the group. Id. Some two dozen students at her high school responded and
ultimately joined. Id. Parsons responded to the invitation while on a school computer and was the
first to join the group. Id. at 568. He uploaded photographs of Shay N. and posted comments
A blog is "a [website] that contains an online personal journal with reflections,
comments, and often hyperlinks provided by the writer[.]" Silver v. Brown, 382 F. App'x 723,
725 n.1 (10th Cir. 2010).
MySpace "is a social networking website that allows its members to set up online
'profiles' and communicate via email, instant messages, and blogs." Wynar v. Douglas Cnty.
Sch. Dist., 728 F.3d 1062, 1065 (9th Cir. 2013).
indicating that she had herpes and referring to her as a "whore." Id. Other students commented on
the pictures and added their own statements about the targeted student. Id.
The next day, after becoming aware of the website, Shay N.'s parents, along with their
daughter, went to the school and filed a harassment complaint with school officials. Id. The girl
left the school with her parents after the meeting, uncomfortable with the thought of sitting in class
alongside other students who had made disparaging remarks about her. Id. Kowalski was
She sued, claiming that, because her case involved off-campus, non-school related speech,
school officials were powerless to discipline her. Id. at 570-71. The Fourth Circuit found that
Tinker supported the conclusion that "public schools have a compelling interest in regulating speech
that interferes with or disrupts the work and discipline of the school, including discipline for student
harassment and bullying." Id. at 572 (internal quotation marks omitted). Kowalski's speech caused
such an interference and disruption, the court held, even though she created the website and posted
comments from home, because she knew its content would be published beyond her residence and
could reasonably be expected to reach the school and impact the school environment. Id. at 573.
She also knew the postings and comments would and did take place among students at the school
for whom she created the site and whom she invited to join the group. Id. Kowalski was aware that
the fallout from her conduct and the speech would be felt at the school and could have anticipated
that Shay N. and her parents would have considered the attack to have been made in the school
context and acted accordingly. Id. The court further noted that, had the school not intervened, the
potential for additional and more serious harassment of Shay N. was real. Id. at 574. Thus, "[g]iven
the targeted, defamatory nature of Kowalski's speech, aimed at a fellow classmate, it created 'actual
or nascent' substantial disorder and disruption in the school."12 Id.
The plaintiffs in S.J.W. ex rel. Wilson v. Lee's Summit R-7 School District, 696 F.3d 771
(8th Cir. 2012), reh'g & reh'g en banc denied (Nov. 21, 2012) were twin brothers suspended from
school after creating a website and blog the purpose of which was to discuss, satirize and "vent"
about events at their high school. Lee's Summit, 696 F.3d at 773. One of the boys used a school
computer to upload files needed to create the site. Id. at 774. Immediately thereafter, the siblings
posted offensive and racist comments, as well as sexually explicit and degrading statements about
certain female classmates, who they identified by name. Id. at 773. The racist posts described fights
at the school and mocked black students. Id. Although the plaintiffs initially told only a few school
friends about the website, soon everyone knew. Id. at 774. Numerous school computers were used
to access or attempt to access the site. Id.
Citing Doninger and Kowalski, the Eighth Circuit applied Tinker in finding that the
plaintiffs' posts were directed at the school and, therefore, could reasonably be expected to reach the
school or impact its environment. Id. at 777-78. The off-campus nature of the speech was less
important, in the court's view, than the fact that it targeted the educational institution itself. Id. at
The Ninth Circuit decided Wynar v. Douglas County School District, 728 F.3d 1062 (9th Cir.
2013) in August 2013. In that case, a high school student began sending a string of increasingly
violent and threatening instant messages from home via MySpace to his friends bragging about
weapons he possessed and threatening to shoot persons at the school on a specific date. Wynar, 728
F.3d at 1064-65. His friends became alarmed and confided their concerns to a trusted coach. Id.
The Fourth Circuit observed that, if the speech had occurred in school, Fraser may have
also applied. Kowalski, 652 F.3d at 573.
at 1066. The principal was alerted and the student was suspended. Id. The Ninth Circuit, while
questioning whether it applied to all off-campus speech, analyzed the facts before it under Tinker
and concluded that the threat of a school shooting certainly qualified as speech that might reasonably
lead officials to forecast substantial disruption of or material interference with school activities or
collision with the rights of other students to be secure. Id. at 1071.
In contrast, the Plaintiff draws the Court's attention to a case from the Third Circuit -Layshock v. Hermitage School District, 593 F.3d 249 (3d Cir. 2010) -- in support of her opposition
to summary judgment. The Court notes that the opinion cited by the Plaintiff was vacated upon the
Third Circuit’s grant of rehearing en banc. After rehearing, the court issued its en banc opinion at
650 F.3d 205 (3d Cir. 2011).
In Layshock, the plaintiff used his grandmother's home computer to access a social
networking website where he created a fake, and unflattering, internet MySpace profile of his high
school principal. Layshock, 650 F.3d at 207-08. In doing so, he copied a photograph of the
principal from the school's website. Id. Layshock afforded access to the profile to other students
and it was not long before everyone at the school, including the principal, knew about it. Id. at 208.
Over the following days, students, including Layshock, accessed the profile using school computers.
Id. at 209. The plaintiff was suspended and sent to an alternative school. Id. at 210. The student
brought a § 1983 action against the school district arguing violation of the First Amendment. Id.
In seeking to justify its actions, the school district invoked Tinker and/or Fraser. Layshock
v. Hermitage Sch. Dist., 496 F. Supp. 2d 587, 599 (W.D. Pa. 2007). The trial court determined that
Fraser had no application because the plaintiff's activities occurred off campus. Id. at 599-600.
With respect to Tinker, the lower court concluded that the defendant could not establish "a sufficient
nexus between [Layshock's] speech and a substantial disruption of the school environment,"
observing that no classes were cancelled, no widespread disruption occurred, and there was no
violence or student disciplinary action. Id. at 600. While students commented on the profile, the
court noted that "in Tinker the Supreme Court held that the far more boisterous and hostile
environment sparked by the children wearing anti-Vietnam war armbands did not give school
officials a reasonable fear of disturbance sufficient to overcome their right to freedom of
expression." Id. (internal citation omitted). The Third Circuit affirmed. Layshock, 650 F.3d at 219.
The Plaintiff also cites to Beussink ex rel. Beussink v. Woodland R-IV School District, 30
F. Supp. 2d 1175 (E.D. Mo. 1998), in which the plaintiff created and posted an internet homepage
from his home computer that criticized his high school and its administration in crude and vulgar
terms. Beussink, 30 F. Supp. 2d at 1177. A friend of Beussink accessed the page during a class a
few days later and showed it to a teacher, Ms. Ferrell, who became upset and immediately informed
the principal. Id. at 1178. The principal also found the post upsetting, and decided to discipline the
plaintiff immediately upon viewing it. Id. Groups of Beussink's classmates saw the page, but some
viewed it with Ferrell's permission. Id. at 1179. The plaintiff was suspended for ten days. Id. The
court concluded that his First Amendment claim had merit, in light of evidence that the principal's
actions were based not on a fear of disruption or interference with school discipline, but because he
disliked and was upset by the content of Beussink's speech, which was not an acceptable justification
for limiting student expression under Tinker. Id. at 1180.
The Defendants argue that the cases cited in their brief support summary judgment here.
Specifically, they point out that, like Doninger, A.N. made negative comments about another student
on the internet; that, like Kowalski and the plaintiffs in Lee's Summit, she used a social media
platform to make negative and offensive comments about a classmate; and that, like Wynar, she sent
out messages over the internet threatening to shoot persons with whom she attended school. Even
so, however, material circumstances present in those cases do not exist here. In Doninger, Kowalski
and Wynar, the facts reflected, and the courts found, that the students' actions could or did
substantially disrupt activities of their schools. In Lee's Summit, the school itself was the target of
the students' speech and, thus, the court concluded that it was to be reasonably expected that the
speech would reach the school or impact its environment.
Here, the speech had no connection to HCMS whatever other than the fact that both the
speaker and the target of the speech studied there. The speech was not made at school, directed at
the school, or involved the use of school time or equipment. No disruption of school activities or
impact on the school environment has been shown. Thus, it is the finding of the Court that the
Defendants have fallen short of establishing that summary judgment should be granted in their
The movants also submit that this case is analogous to Morse in that the speech contained
in the tweets, which officials concluded promoted an illegal act (murder), had to be acted on
immediately, particularly in light of the incidents at Columbine, Newtown and Virginia Tech. While
this argument is perhaps somewhat more persuasive than the preceding one, at least on a visceral
level, the Court notes that Defendants have cited to no caselaw, other than Morse, in favor of their
assertion. In light of that failure, coupled with this Circuit's narrow reading of Morse, the Court is
unwilling to grant summary judgment on such grounds.14
For the reasons articulated herein, the motion for summary judgment on the First
Based on the Court's conclusion that summary judgment is not warranted based on the
Defendants' cited caselaw, it need not, and does not, specifically adopt Layshock.
The Court observes that the Morse Court placed much emphasis on the fact that the
speech at issue occurred at school or at a school-sponsored event. As mentioned previously
herein, there was no connection between the speech and the school beyond the common
attendance of the persons immediately involved.
Amendment claim is DENIED.
Plaintiff alleges that the Defendants' failure to conduct an investigation, interview the
pertinent parties, provide a hearing before levying punishment and subjecting A.N. to outrageous
sexual assault and harassment at the alternative school violated the Fourteenth Amendment Due
Process Clause. She also avers that Defendants' actions offended her Fourteenth Amendment right
to direct her child's education.
The analysis of a student's procedural due process rights in a school suspension case begins
with Goss v. Lopez, 419 U.S. 565, 95 S. Ct. 729, 42 L. Ed. 2d 725 (1975), in which the United States
Supreme Court found that students faced with suspensions lasting longer than ten days possess a
property interest in an education and a liberty interest in their reputations that entitle them to
protection against arbitrary suspension under the Due Process Clause. Goss, 419 U.S. at 576, 95 S.
Ct. at 737; see Heyne v. Metro. Nashville Publ. Schs., 655 F.3d 556, 564 (6th Cir. 2011) ("The
starting point for analyzing alleged violations of students' procedural due process rights in school
suspension cases is Goss v. Lopez[.]"). For suspensions lasting no more than ten days, the
Constitution requires that "the student be given oral or written notice of the charges against [her]
and, if [she] denies them, an explanation of the evidence the authorities have and an opportunity to
present [her] side of the story." Goss, 419 U.S. at 581, 95 S. Ct. at 740. Due process "requires at
least these rudimentary precautions against unfair or mistaken findings of misconduct and arbitrary
exclusion from school." Id., 95 S. Ct. at 740.
The Clause "does not require that hearings in connection with suspensions of ten days or
fewer follow trial-type procedures." Heyne, 655 F.3d at 565 (citing Goss, 419 U.S. at 583, 95 S. Ct.
729). Nor does it "give students the right to be represented by counsel, to confront and cross-
examine witnesses against them, or to call their own witnesses." Id. (citing Goss, 419 U.S. at 583,
95 S. Ct. 729). Rather, it requires only minimal procedures. Id. As the Goss Court explained:
There need be no delay between the time 'notice' is given and the time of the hearing.
In the great majority of cases the disciplinarian may informally discuss the alleged
misconduct with the student minutes after it has occurred. We hold only that, in
being given an opportunity to explain [her] version of the facts at this discussion, the
student first be told what [she] is accused of doing and what the basis of the
Goss, 419 U.S. at 582, 95 S. Ct. at 740.15 As a general rule, notice and hearing should precede
removal of the student from the school. Id., 95 S. Ct. at 740. An "informal give-and-take between
student and disciplinarian" is sufficient to satisfy due process. Id. at 584, 95 S. Ct. at 741; Heyne,
655 F.3d at 565. The Sixth Circuit requires no more process than that identified in Goss. Heyne,
655 F.3d at 565. This circuit has suggested that assignment to an alternative school may not
implicate the Due Process Clause at all, "absent some showing that the education received at the
alternative school is significantly different from or inferior to that received at [the student's] regular
public school." Buchanan v. City of Bolivar, 99 F.3d 1352, 1359 (6th Cir. 1996).
Even assuming the Clause applies here, summary judgment on A.N.'s claim is appropriate.
She testified in her deposition that Stricklin told her she was in trouble because of the tweets about
K.N. (D.E. 26-1 at 56.) She did not deny authoring the tweets. The following testimony was
adduced in her deposition:
Okay. And at any point during your meeting with Mr. Stricklin, did you
make any comments?
I don't remember saying much at all. Like I said, I was crying. I couldn't say
anything. He didn't ask me any questions for me to answer.
The Sixth Circuit has noted that "[w]hile Goss specifically limited itself to the short
suspension, not exceeding ten days, it nevertheless establishes the minimum requirements for
long-term expulsions as well." Newsome v. Batavia Local Sch. Dist., 842 F.2d 920, 927 (6th
Cir. 1988) (internal citation & quotation marks omitted).
I did tell him -- he asked me if she deserved this, and I said no. I told him we
were just joking, we didn't mean anything by it, we weren't going to hurt her.
And he asked me if I had a weapon in my bag, and I said no.
(D.E. 26-1 at 58.) Thus, by A.N.'s own admission, Stricklin asked her to defend her behavior and
gave her an opportunity to respond, which she did. She was entitled to no more process than that.
See Buchanan, 99 F.3d at 1359 ("[O]nce school administrators tell a student what they heard or saw,
ask why they heard or saw it, and allow a brief response, a student has received all the process that
the Fourteenth Amendment demands.").
Melanie Nixon alleges a separate Fourteenth Amendment claim on her own behalf. The Due
Process Clause "includes a substantive component that provides heightened protection against
government interference with certain fundamental rights and liberty interests." Troxel v. Granville,
530 U.S. 57, 65, 120 S. Ct. 2054, 2060, 147 L. Ed. 2d 49 (2000) (internal quotation marks omitted).
"[T]he interest of parents in the care, custody, and control of their children . . . is perhaps the oldest
of the fundamental liberty interests recognized by [the courts]." Id., 120 S. Ct. at 2060.
This right is not, however, an unqualified one. Blau v. Fort Thomas Publ. Sch. Dist., 401
F.3d 381, 395 (6th Cir. 2005). As the Sixth Circuit articulated in Blau,
[t]he critical point is this: While parents may have a fundamental right to decide
whether to send their child to a public school, they do not have a fundamental right
generally to direct how a public school teaches their child. Whether it is the school
curriculum, the hours of the school day, school discipline, the timing and content of
examinations, the individuals hired to teach at the school, the extracurricular
activities offered at the school or . . . a dress code, these issues of public education
are generally committed to the control of state and local authorities.
Id. at 395-96 (some emphasis supplied) (internal quotation marks omitted). Government actions
infringing on fundamental rights receive strict scrutiny. Id. at 393. In the absence of a fundamental
right, a plaintiff must show that the challenged school action was not "rationally related to a
legitimate state interest." Id. Mrs. Nixon has made no effort whatever to make such a showing. Her
Fourteenth Amendment claim, therefore, is DISMISSED.
The Plaintiff alleges that Defendants violated the Eighth Amendment by failing to conduct
an investigation or interviews with respect to the tweeting incident, to listen to A.N.'s side of the
story, or to properly claim responsibility for making the decision to send her to alternative school.
The Eighth Amendment, which prohibits the imposition of cruel and unusual punishment, is
inapplicable to a school's disciplinary punishment of students. Ingraham v. Wright, 430 U.S. 651,
664, 97 S. Ct. 1401, 1408-09, 51 L. Ed. 2d 711 (1977); Moss v. Shelby Cnty., 401 F. Supp. 2d 850,
854 (W.D. Tenn. 2005). The United States Supreme Court noted in Ingraham that "[a]n examination
of the history of the [Eighth] Amendment and the decisions of [the Supreme] Court construing the
proscription against cruel and unusual punishment confirms that it was designed to protect those
convicted of crimes."16 Ingraham, 430 U.S. at 664, 97 S. Ct. at 1408-09. The Eighth Amendment
claim is, therefore, DISMISSED.
The parties have presented arguments concerning whether summary judgment should be
granted on a federal § 1983 claim by the Plaintiff for the negligent hiring, training, supervision and
retention of Stricklin.17 It is somewhat unclear to the Court whether this claim, presented in count
Tellingly, perhaps, the Plaintiff has offered no caselaw in support of her claim in
responding to the motion for summary judgment.
In her responsive brief, the Plaintiff avers in the same § 1983 municipal liability
argument that liability should be imposed based on a failure to lawfully manage the alternative
school. However, the count in the complaint in which negligent hiring, training, supervision and
retention were alleged made no mention whatever of the alternative school. Indeed, the only part
of the complaint in which allegations concerning management of the alternative school appeared
had to do with purely state law claims. Plaintiff has made no motion to amend her complaint to
VIII of the complaint, was in fact intended to be a federal claim, a state claim, or both. In any case,
because the parties are apparently treating it as a federal claim, the Court will address their
assertions in that regard.
Count VIII's allegations are directed toward Hardin County and Haffly.18 In order to
establish a claim of supervisor liability, a plaintiff must show that the defendant "at least implicitly
authorized, approved, or knowingly acquiesced in the unconstitutional conduct of the offending
officers." Salyers v. City of Portsmouth, ___ F. App'x ___, 2013 WL 4436536, at *5 (6th Cir. 2013)
(quoting McQueen v. Beecher Cmty. Schs., 433 F.3d 460, 470 (6th Cir. 2006)). To hold Hardin
County liable, Plaintiff “must demonstrate that the alleged federal violation occurred because of a
municipal policy or custom." Burgess v. Fischer, 735 F.3d 462, 478 (6th Cir. 2013) (citing Monell
v. Dep't of Soc. Servs., 436 U.S. 658, 694, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978)), reh’g & reh’g
en banc denied (Dec. 19, 2013). "For both, a prerequisite to liability is that a constitutional violation
has occurred." Salyers, 2013 WL 4436536, at *5 (internal alterations & quotation marks omitted).
In this case, the Plaintiff in her responsive brief identifies the constitutional violation
supporting her municipal/supervisor liability claim as that alleged under the Fourteenth Amendment.
Based on the Court's dismissal of the Fourteenth Amendment claim, the negligent hiring, training,
supervision and retention claim, to the extent it is grounded in federal law, must also fail. See id.
(because the defendant committed no constitutional violation, plaintiff's supervisor and municipal
include allegations of wrongful acts relative to the management of the alternative school under
federal law. Accordingly, the Court will not consider Plaintiff’s assertions as to this nonexistent
This allegation was also made against Defendant Thomas.
liability claims based on that violation were without merit).
State Law Claims.
The Defendants also seek dismissal of the Plaintiff's state law claims. The Tennessee
Governmental Tort Liability Act (“GTLA”) governs state law claims against governmental entities
and their employees. See Tenn. Code Ann. § 29-20-101, et seq. GTLA claims would ordinarily
confer supplemental jurisdiction in this Court because they arise out of the same facts and form part
of the same case or controversy. See 28 U.S.C. § 1367(a). However, these allegations must be
brought in “strict compliance” with the terms of the state statute. See Tenn. Code Ann. § 29-20201(c). The GTLA expressly states that Tennessee “circuit courts shall have exclusive original
jurisdiction” over claims brought pursuant to its provisions. Tenn. Code Ann. § 29-20-307.
A district court may, in its discretion, decline supplemental jurisdiction over a state law claim
even if jurisdiction would otherwise be proper under § 1367(a). Section 1367(c)(4) allows a district
court to “decline to exercise supplemental jurisdiction over a claim under subsection (a) if . . . (4)
in exceptional circumstances, there are other compelling reasons for declining jurisdiction.” 28
U.S.C. § 1367(c)(4). The Sixth Circuit has held that “the Tennessee legislature expressed a clear
preference that [GTLA] claims be handled by its own state courts. This unequivocal preference of
the Tennessee legislature is an exceptional circumstance [under § 1367(c)(4) ] for declining
jurisdiction.” Gregory v. Shelby Cnty., Tenn., 220 F.3d 433, 446 (6th Cir.2000). Therefore, this
Court declines to exercise supplemental jurisdiction over Plaintiff’s GTLA claims. See Ables v.
Shelby Cnty., Tenn., No. 2:10-CV-02169-JPM-dkv, 2010 WL 3024959, at *5 (W.D. Tenn. July 29,
2010) (state law claims dismissed in light of Sixth Circuit's finding that Tennessee legislature's
preference that GTLA claims be addressed in state courts was an exceptional circumstance under
§ 1327(c)(4) supporting order declining jurisdiction). The claims are DISMISSED without
For the reasons set forth herein, all claims against Defendant Thomas are DISMISSED, as
are the official capacity claims against Defendants Haffly and Stricklin. Otherwise, the motion for
summary judgment is DENIED as to the Plaintiff’s First Amendment claims and GRANTED on the
IT IS SO ORDERED this 27th day of December 2013.
s/ J. DANIEL BREEN
CHIEF UNITED STATES DISTRICT JUDGE
In light of the Court's dismissal of Plaintiff’s state law claims on exclusivity grounds, it
need not address the parties' assertions with respect to the merits of those claims.