T.A. vs. McSwain Union Elementary School District, et al.

Filing 78

MEMORANDUM, OPINION and ORDER signed by Judge Oliver W. Wanger on 7/15/2010 re 46 , 47 Motion for Summary Judgment. (Lundstrom, T)

T.A. vs. McSwain Union Elementary School District, et al.

Doc. 78

1 2 3 4 UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF CALIFORNIA 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 v. McSWAIN UNION ELEMENTARY SCHOOL, et al., Defendants. I. INTRODUCTION. T.A., Plaintiff, 1:08-cv-01986-OWW-DLB MEMORANDUM DECISION REGARDING DEFENDANTS' MOTION FOR SUMMARY JUDGEMENT (Docs. 47, 49)

Plaintiff T.A. ("Plaintiff") is proceeding with an action pursuant to 28 U.S.C. § 1983 against Defendants McSwain Union Elementary School, Terrie Rohrer, C.W. Smith, and Martha Henandez ("Defendants"). May 14, 2010. motion for Defendants filed a motion for summary judgment on Plaintiff filed opposition to the on June 7, 2010. (Doc. 65). (Doc. 55).

(Docs. 47, 49). judgement

summary

Defendants filed a reply on June 14, 2010.

II. FACTUAL BACKGROUND. In April of 2008, Plaintiff was enrolled as a sixth-grade student at McSwain Union Elementary School ("the School"). (Plaintiff's Statement of Undisputed Fact 1 )("Plaintiff's SUF"). The School is kindergarten through eighth-grade public school.

Dockets.Justia.com

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(Plaintiff's SUF 2). that provides:

The School enforces a Dress Code Policy

Personal articles, clothing, or manner of dress shall make no suggestion of tobacco, drug, or alcohol use, sexual promiscuity, profanity, vulgarity, or other inappropriate subject matter. (Plaintiff's SUF 7). The School has adopted a "Dress and

Grooming" Policy that provides: The governing board believes that appropriate dress and grooming contribute to a productive learning environment. The board expects students to give proper attention to personal cleanliness and to wear clothes that are suitable for the school activities in which they participate. Students' clothing must not present a health or safety hazard or a distraction which would interfere with the educational process. (Plaintiff's SUF 8). The School has also adopted a "Freedom of Speech/Expression" Policy that provides: free inquiry and exchange of ideas are essential parts of the democratic education. The board respects students' rights to express ideas and opinions, take stands on issues, and support causes, even when such speech is controversial or unpopular. (Plaintiff's SUF UF 10). The Freedom of Speech/Expression Policy

20 further provides: 21 22 23 24 25 26 27 28 Students are prohibited from making any expressions or distributing or posting any materials that are obscene, libelous, or slanderous. Students also are prohibited from making any expressions that's so incites (sic) students as to create a clear and present danger of the commission of unlawful acts on school premises, the violation of school rules, or substantial disruption of the school's orderly operation. (Education Code 48907). (Plaintiff's SUF 13). /// /// 2

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1

On April 29, 2008, during STAR1 testing week, Plaintiff wore a shirt to school that expressed her opposition to abortion. (Defendant's SUF 10). The shirt featured the word "ABORTION" in

white with black-bordered block letters on the front side. (Plaintiff's SUF 4). Below the word "ABORTION" are three squares The first two squares

approximately three inches in height.

contain color picture images of what appear to be human fetuses in two stages of prenatal development. (Plaintiff's SUF 4). third square ­ containing no image ­ is filled in with black. Below the three squares appears the caption "growing, growing ... gone." (Plaintiff's SUF 4). words: American Life League's Sixth Annual NATIONAL PRO-LIFE T-SHIRT-DAY April 29, 2008 www.ALL.org. (Plaintiff's SUF 6). church. Plaintiff obtained the shirt from her Plaintiff's mother signed a document The back of the shirt features the The

(T.A. Dec. at 28).

giving Plaintiff permission to wear the shirt to school when Plaintiff signed up for the shirt at her church. 28-30). Upon arriving at school on April 29, Plaintiff proceeded to the cafeteria for breakfast. (T.A. Dec. at 38). As Plaintiff (T.A. Dec. at

was eating her breakfast, a school official, Linda Newman, approached Plaintiff and told her she needed to report to the office. (T.A. Dec. at 49). On her way to the office, Plaintiff

California's Standardized Testing and Reporting Program.

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encountered Martha Hernandez. (T.A. Dec. at 49).

According to

Plaintiff, Ms. Hernandez grabbed Plaintiff's arm and led her to the office. (T.A. Dec. at 59). Terrie Rohrer, the School's

principal, and C.W. Smith, the School's assistant principal, were inside the office when Plaintiff arrived. (T.A. Dec. at 59).

Mr. Smith determined that the shirt violated the Dress Code Policy, specifically Item 7 of the Parent-Student Handbook, because the pictures depicted on the shirt constituted "inappropriate subject matter." Mr. Smith determined that the

pictures were "too graphic for the younger students that we have at our school site." (Plaintiff's SUF 22). Mr. Smith also feared

that the pictures would distract students during the time in which they should have been taking the STAR test. (Plaintiff's SUF 23). Mr. Smith gave Plaintiff three options with respect to

her shirt: (1) maintain possession of the shirt, but wear it inside out; (2) have Plaintiff's mother come pick the shirt up and provide a replacement; or (3) turn the shirt over to the school for the remainder of the school day, and receive a temporary replacement shirt. (T.A. Dec. at 66). Plaintiff opted

to receive the temporary replacement and was given a replacement shirt that depicted children jump-roping and contained the words "American Cancer Society" and "Jump for Heart." (Plaintiff's SUF 27). Plaintiff retrieved her shirt at the end of the day. (T.A.

Dec., Ex. 7). III. Summary LEGAL STANDARD. is appropriate when "the

judgment/adjudication

pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material 4

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fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). The movant "always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings,

depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v.

Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986) (internal quotation marks omitted). Where the movant will have the burden of proof on an issue at trial, it must "affirmatively demonstrate that no reasonable trier of fact could find other than for the moving party." Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). With respect to an issue as to which the non-moving party will have the burden of proof, the movant "can prevail merely by pointing out that there is an absence of evidence to support the nonmoving party's case." Soremekun, 509 F.3d at 984. When a motion for summary judgment is properly made and supported, the non-movant cannot defeat the motion by resting upon the allegations or denials of its own pleading, rather the

"non-moving party must set forth, by affidavit or as otherwise provided in Rule 56, 'specific facts showing that there is a genuine issue for trial.'" Soremekun, 509 F.3d at 984. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986)). "A non-movant's bald assertions or a mere scintilla of evidence in his favor are both insufficient to withstand summary judgment." FTC v. Stefanchik, 559 F.3d 924, 929 (9th Cir. 2009). "[A] non-movant must show a genuine issue of 5

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material fact by presenting affirmative evidence from which a jury could find in his favor." Id. (emphasis in original). "[S]ummary judgment will not lie if [a] dispute about a material fact is 'genuine,' that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477

U.S. at 248. In determining whether a genuine dispute exists, a district court does not make credibility determinations; rather, the "evidence of the non-movant is to be believed, and all

justifiable inferences are to be drawn in his favor." Id. at 255. IV. DISCUSSION. A. First Amendment Claim 1. Free Speech in the School Setting Students enjoy considerable First Amendment protection within the school setting. See, e.g., Tinker v. Des Moines Indep. Cmty.

Sch. Dist., 393 U.S. 503, 506 (1969). However, "the constitutional rights of students in public school are not automatically

coextensive with the rights of adults in other settings," and students' First Amendment rights must be applied in light of the special characteristics of the school environment. U.S. at 506. In Tinker, the seminal Supreme Court case on students' First Amendment rights, school officials suspended students for wearing black arm bands in protest of the Vietnam War. Id. at 508, 513-14. Tinker, 393

The Tinker Court held that the Constitution does not tolerate viewpoint-based restrictions on student speech unless there are facts which permit school officials to reasonably forecast a substantial disruption or material interference with school

activities. 393 U.S. at 514.

Although Tinker continues to provide 6

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the appropriate framework for evaluating the constitutionality of most viewpoint-based censorship of student speech, the Supreme Court's subsequent student speech jurisprudence has consistently "set the [Tinker] standard aside on an ad hoc basis." Morse v.

Frederick, 551 U.S. 393, 417 (2007) (Thomas, J., concurring in part). The Supreme Court carved out an exception to Tinker for student speech that is "offensively lewd and indecent" in Bethel Sch. Dist. v. Fraser, 478 U.S. 675, 685 (1986). In Fraser, school

officials suspended a student for three days and removed him from the list of candidates for graduation speaker after the student gave a speech laced with sexual innuendo at a school assembly. Id.

at 678. Although the Court briefly discussed the impact the speech had on other students in setting forth the factual background of the case,2 the Court did not find that the student's speech met the "substantial disruption or material interference" standard set forth in Tinker. Instead, the Fraser Court distinguished Tinker on the basis that Tinker concerned viewpoint-based restriction of a particular political idea, whereas the school's restriction in Fraser was merely content-based. Id. at 685-86 ("[u]nlike the

sanctions imposed on the students wearing armbands in Tinker, the penalties imposed in this case were unrelated to any political viewpoint"). The Fraser Court concluded that "it was perfectly

2

"During Fraser's delivery of the speech, a school counselor observed the r e a c t i o n of students to the speech. Some students hooted and yelled; some by g e s t u r e s graphically simulated the sexual activities pointedly alluded to in r e s p o n d e n t ' s speech. Other students appeared to be bewildered and embarrassed by t h e speech. One teacher reported that on the day following the speech, she found i t necessary to forgo a portion of the scheduled class lesson in order to discuss t h e speech with the class." Fraser, 478 U.S. at 678.

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appropriate for the school to disassociate itself to make the point to the pupils that vulgar speech and lewd conduct is wholly inconsistent education." The with Id. Court expanded on a school's authority to the `fundamental values' of public school

Supreme

"disassociate" itself from particular speech in Hazelwood Sch. Dist. v. Kuhimeier, 484 U.S. 260, 271 (1988). Hazelwood involved

a journalism teacher's decision to remove articles regarding teen pregnancy and divorce from a school-published newspaper. The

Hazelwood Court declined to apply Tinker, adopting a reasonableness standard for school sponsored activities: "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 273.3

The Supreme Court further eroded Tinker in Morse v. Frederick, 551 U.S. 393, 403 (2007) by holding that a school may restrict student speech that is "reasonably viewed as promoting illegal drug use" without reference to whether school officials could reasonably forecast a substantial disruption or material interference with school activities. School official's in Morse suspended a student

for ten days in response to a sign he unfurled during a school

The Hazelwood Court rejected the notion that a school board policy which stated i n part that "[s]chool sponsored student publications will not restrict free e x p r e s s i o n or diverse viewpoints within the rules of responsible journalism" t r a n s f o r m e d the school newspaper into a public forum, noting that the policy f u r t h e r provided that school publications were to be "'developed within the a d o p t e d curriculum and its educational implications.'" Id. at 269. Similarly, M c S w a i n Union's freedom of expression policy prohibits students "from making any e x p r e s s i o n s [that] create a clear and present danger...[of] substantial d i s r u p t i o n of the school's orderly operation." (Plaintiff's SUF 13).

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function that read "BONG HiTS 4 JESUS."

After finding that the

message conveyed in the student's sign could be reasonably viewed as promoting illegal marijuana use, the Morse the school's viewpoint-based restriction. Court countenanced

Morse establishes that

with respect to some topics, schools may engage in viewpoint-based suppression of student speech without meeting Tinker's

requirements. 551 U.S. 409 (expressing agreement with dissent's conclusion that the Constitution tolerates "targeted viewpoint discrimination" in the "unique" school setting). Pursuant to current Supreme Court precedent, school officials may not impose view-point based restrictions on student speech unless (1) the expression leads school officials to reasonably forecast a substantial disruption or material interference with school activities, Tinker, 393 U.S. at 514; (2) the student's expression might reasonably be perceived by the public as bearing the imprimatur of the school, Hazelwood, 484 U.S. at 271; or (3)

the student's expression can be reasonably viewed as promoting illegal drug use, Morse, 551 U.S.at 403. Schools may impose

viewpoint-neutral, content-based restrictions on student expression that is "vulgar", lewd", "obscene", or "plainly offensive."

Fraser, 478 U.S. at 685. 2. School Dress Codes A student's expression of political belief through clothing is akin to pure speech, Tinker, 393 U.S. at 508, and viewpoint-based restrictions on student clothing must comply with the Tinker standard unless the exceptions set forth in Morse or Fraser apply, see Jacobs v. Clark County Sch. Dist., 526 F.3d 419, 429 (9th Cir. 2008) (discussing range of standards applicable to school dress 9

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codes).4

In the Ninth Circuit, dress code policies that are both

viewpoint-neutral and content-neutral are subject to intermediate scrutiny: school dress code policies that advance important

government interests unrelated to the suppression of free speech, and do so in ways that effect as minimal a restriction on students' free expression as possible, are permissible. Id. at 435. No published Ninth Circuit precedent establishes the

appropriate standard of review for dress code policies that are content-based, yet viewpoint-neutral. Several circuit courts of

appeal have applied Tinker to content-based dress code policies. See Barr v. Lafon, 538 F.3d 554, 572 (6th Cir. 2008) (holding that a school's ban on clothing bearing the confederate flag was a content-based, viewpoint-neutral regulation and applying Tinker); see also Scott v. Sch. Bd., 324 F.3d 1246, 1249 (11th Cir. 2003) (applying Tinker to confederate flag ban); A M v. Cash, 585 F.3d

214, 227 (5th Cir. 2009)(Garwood, C.J., concurring) (noting absence of any evidence of viewpoint discrimination and concurring with majority opinion's application of Tinker to confederate flag ban); B.W.A. v. Farmington R-7 Sch. Dist., 554 F.3d 734, 741 (8th Cir. 2009) (holding that confederate flag ban was viewpoint-neutral and permissible under Tinker). Although there is considerable

persuasive authority to support Tinker's application to contentbased school dress code policies, at least four circuit courts of appeal, including the Ninth Circuit, have suggested that Tinker
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In Harper v. Poway Unified Sch. Dist., 445 F.3d 1166, 1178 (9th Cir. 2007) v a c a t e d as moot at 549 U.S. 1262 (2007), the Ninth Circuit fashioned an exception t o Tinker for clothing that, in the Court's view, was tantamount to a "verbal a s s a u l t " on a class of minority students. As a vacated opinion, Harper lacks b i n d i n g precedential effect. E.g. Los Angeles County v. Davis, 440 U.S. 625, 634 n . 6 (1979).

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does not provide the exclusive standard for evaluating certain content-based restrictions on student speech. See Jacobs, 526 F.3d at 431 n.27 (noting that Morse places Tinker's applicability to certain content-based restrictions in doubt); Scott, 324 F.3d at 1248-49 (applying Fraser as an alternative basis for upholding content-based ban); Newsom v. Albemarle County Sch. Bd., 354 F.3d 249, 257 (4th Cir. 2003) (schools may "prohibit the display of violent, threatening, lewd, vulgar, indecent, or plainly offensive images and messages related to weapons under Tinker and Fraser"); see also Harper, 445 F.3d at 1177 n.14 vacated as moot (suggesting that Fraser provides alternative standard of review for "plainly offensive" speech); Muller by Muller v. Jefferson Lighthouse Sch., 98 F.3d 1530, 1542 (7th Cir. 1996) (distinguishing Supreme Court student speech jurisprudence as applied to elementary schools and applying a reasonableness standard). Because whether Tinker

applies to content-based restrictions on student speech is an open question under both Supreme Court precedent and Ninth Circuit law, painstaking analysis of the facts is required at this stage of the litigation. Jacobs, 526 F.3d at 430 (noting that Tinker "extends

only to viewpoint-based restrictions"). 3. Defendants' Motion for Summary Judgment At least two factual disputes preclude summary judgement on Plaintiff's First Amendment claim. imposed on Plaintiff was First, whether the restriction is subject to an

viewpoint-based

underlying factual dispute.

Plaintiff alleges that Defendants

censored Plaintiff's expression due to the fact that her shirt advanced a pro-life message, and there is evidence on the record to support Plaintiff's contention. (FAC at 5; MSJ at 6, 10-12; T.A. 11

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Dec.

at

71).

Defendants

have

presented

evidence

that

the

restriction imposed on Plaintiff was not based on the viewpoint expressed by Plaintiff's shirt, but rather on the graphic pictures contained on it. (Smith Dec. at 75). Whether or not the

restriction imposed on Plaintiff was viewpoint-based is a material issue because it implicates the standard of review. 526 F.3d at 431 n.27 (noting that Morse See Jacobs, Tinker's

places

applicability to certain content-based restrictions in doubt); Fraser, 478 U.S. at 685-86 (rejecting Tinker standard in context of school's restriction on "plainly offensive" speech); see also Morse, 551 U.S. at 404-405 (noting that "mode of analysis set forth in Tinker is not absolute" and holding that certain content-based restrictions need not satisfy Tinker standard). Whether or not Defendants had a basis to reasonably forecast a substantial disruption of or a material interference with school activities is also subject to a factual dispute. Although

Defendants have presented evidence that based on their experience and judgment, they believed the shirt would have created a

substantial disruption of or a material interference with school activities, evidence shows that the one student who definitely saw Plaintiff's shirt thought it was "cute" and did not appear to be disturbed by it, (T.A. Dec. at 43). (Smith Dec. At 73-74). This

evidence raises the issue of whether Plaintiff's shirt was so disturbing as to call into question the reasonableness of

Defendants' forecast.

To the extent Plaintiff can establish that

Defendants' purported forecast of disruption was a pretext for viewpoint discrimination, Plaintiff may be entitled to relief. Accordingly, Defendants' motion for summary judgment on Plaintiff's 12

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First Amendment claim is DENIED. B. Fourth Amendment Claim The Fourth Amendment protects students from unreasonable See, e.g.,

searches and seizures in the school environment.

Preschooler II v. Clark County Sch. Bd. of Trs., 479 F.3d 1175, 1178 (9th Cir. 2007); Safford Unified Sch. Dist. #1 v. Redding, 129 S. Ct. 2633, 2647 (2009). School officials violate a student's Fourth Amendment rights by subjecting the student to a seizure that is objectively unreasonable under all the circumstances. Doe v. Haw.

Dep't of Educ., 334 F.3d 906, 909 (9th Cir. 2003). A seizure in the constitutional sense occurs when there is a restraint on liberty to a degree that a reasonable person would not feel free to leave. Id. The reasonableness of a seizure in the school context depends on the educational objectives incident to the seizure. Id.

Plaintiff's complaint alleges a Fourth Amendment violation as follows: Defendants unconstitutionally detained and seized Plaintiff's person and property, without a warrant, without probable cause or reasonable suspicion that a crime had been, was being, or would be committed, and without consent, and thus deprived Plaintiff of her right to be free from unreasonable government seizures, to be free from warrantless seizures, and to be free from seizures without probable cause, which are guaranteed to her under the Fourth Amendment to the United States Constitution as applied to the states and their political subdivisions under the Fourteenth Amendment and 42 U.S.C. § 1983. (Complaint at 10).5 ///

5

Neither the warrant requirement nor the probable cause requirement are a p p l i c a b l e in the school setting. N.J. v. T. L. O., 469 U.S. 325, 340-42 (1985).

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1. Property Claim Although the complaint references seizure of Plaintiff's person and property, Plaintiff's response to Defendant's motion for summary judgment appears to abandon the property claim. (See Plaintiff's

Opposition at 24-26). To the extent Plaintiff has not abandoned her seizure of property claim, Defendant's are entitled to summary judgment because the temporary seizure of Plaintiff's shirt was reasonable under all the circumstances. An owner's consent to seizure of her property is an important, if not dispositive, factor in establishing the reasonableness of the seizure. See Wash. v. Chrisman, 455 U.S. 1, 9-10 (1982) (seizure

premised on consent did not violate Fourth Amendment);6 United States v. King, 604 F.3d 125 (3rd Cir. 2010)(same). After

determining that Plaintiff's shirt violated the School's dress code, even if erroneous, Defendant Smith gave Plaintiff three reasonable options with respect to her shirt: (1) maintain possession of the shirt, but wear it inside out; (2) have Plaintiff's mother come pick the shirt up and provide a replacement; or (3) turn the shirt over to the school for the remainder of the school day, and receive a temporary replacement shirt. (T.A. Dec. at 66). Of the three

options provided to Plaintiff, only one involved temporary seizure of the shirt by school officials, and Plaintiff agreed to that option. (Id.).
6

The fact that Plaintiff chose to temporarily

Although Chrisman concerned seizure of contraband, in contrast to the shirt at i s s u e here, it is clear that the reasonableness of the seizure in Chrisman did n o t turn on the fact that the items seized were contraband. See Gentile v. U n i t e d States, 419 U.S. 979, 980 n. 1 (1974) (Douglas, J., Dissenting) (noting t h a t plain view doctrine did not justify seizure of property beyond the scope of c o n s e n t ) ; Coolidge v. N.H., 403 U.S. 443, 468 (1971) (plain view doctrine, s t a n d i n g alone, never justifies warrantless seizure) abrogated as stated in U n i t e d States v. Williams, 592 F.3d 511, 523 n.3 (4th Cir. 2010).

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surrender her shirt rather than wear the shirt inside out is a factor that strongly supports the reasonableness of Defendants' seizure of Plaintiff's shirt. seizure of Plaintiff's shirt The short duration of Defendants' also weighs in favor of the

reasonableness of the seizure. "[T]he brevity of the invasion of the individual's Fourth Amendment interests is an important factor in determining whether the seizure is so minimally intrusive as to be justifiable." (1983). E.g. United States v. Place, 462 U.S. 696, 709

Here, Defendants' seizure lasted no longer than minimally

necessary, until the end of the school day, to achieve a legitimate pedagogical goal, avoidance of disruption or interference with school activities. The record establishes that under the circumstances, the

temporary seizure by school authorities of Plaintiff's shirt, the option Plaintiff chose, was reasonable, even if mistaken.

Defendants' motion for summary judgement on Plaintiff's seizure of property claim is GRANTED. 2. Personal Restraint a. Defendant Hernandez Use of excessive force during a school official's seizure of a student violates the Fourth Amendment. F.3d at 1178. E.g. Preschooler II, 479

Plaintiff has presented evidence that Defendant

Hernandez grabbed Plaintiff's arm with unnecessary force, causing her pain. (T.A. Dec. at 116). Defendants point to no evidence in

this record which establishes that it was necessary or reasonable for Defendant Hernandez to use any force at all on Plaintiff, let alone sufficient force to cause Plaintiff pain. factual dispute concerning the 15 reasonableness This presents a of Defendant

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Hernandez's seizure of Plaintiff, and Defendants' motion for summary judgement with respect to Defendant Hernandez is DENIED. Defendant Hernandez is not entitled to qualified immunity on this claim, as "the right of a student to be free from excessive force at the hands of teachers employed by the state was clearly established as early as 1990." Preschooler II, 479 F.3d at 1178.

A reasonable teacher would not unjustifiably use force against a student who was complying with the teacher's request. force used was de minimis raises an issue of fact. b. Remaining Defendants Defendants contend they are entitled to summary judgement on Plaintiff's Fourth Amendment claim because the record establishes that Defendants' seizure of Plaintiff's person was reasonable under all the circumstances. Plaintiff contends that Defendants are not Whether the

entitled to summary judgment because "here, there was no legitimate basis for suppressing Plaintiff's speech, and school officials would have no right, even for minimal periods of time, to detain

[Plaintiff] or deprive her of the rightful possession of her clothing." (Opposition at 26). Plaintiff's expansive construction

of students' Fourth Amendment rights is contrary to settled law. A search of a student by a school official is justified at its inception when there are reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school. T. L. O., 469 U.S. 325, 343-44 (1985). New Jersey v.

It is axiomatic that if a

search is justified upon reasonable suspicion, then temporary seizure incident to such a search must also be justified at the inception. See id. Even assuming that Defendants could not 16

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lawfully suppress Plaintiff's speech by requiring her to change her shirt, they were entitled to conduct an initial evaluation of the shirt in order to determine whether it provided a reasonable basis for concluding that it would cause a substantial disturbance or material interference with school activities. See id. Accordingly, whether Plaintiff's seizure was reasonable depends on the extent to which it exceeded the bounds of what was necessary in order to investigate Plaintiff's suspected dress code violation. The record reveals that Plaintiff was taken See id. to

directly

Defendant Smith's office, and that once inside, Defendant Smith determined that her shirt violated the dress code. 63-64). According to Plaintiff, (Opposition Defendant at 25), (T.A. Dec. at made an

Smith at

"instantaneous

decision,"

which

point

Plaintiff was released to the bathroom to change her shirt, (T.A. Dec. at 64). After changing, Plaintiff was excused and returned to

class. (T.A. Dec. at 64). Under all the circumstances, Plaintiff's seizure was reasonable, as it entailed nothing more than a brief detention necessary to investigate Plaintiff's suspected dress code violation, including examination of the shirt. Other than the

evidence of excessive force pertaining to Defendant Hernandez, the record is devoid of any evidence indicating that Plaintiff's seizure was unreasonable. Defendants' motion for summary judgement on

Plaintiff's Fourth Amendment claim as to seizure of her person is GRANTED. C. Equal Protection Claim "The Equal Protection Clause of the commands that no State shall Fourteenth Amendment

'deny to any person within its

jurisdiction the equal protection of the laws,' which is essentially 17

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a direction that all persons similarly situated should be treated alike." E.g. Lee v. City of Los Angeles, 250 F.3d 668, 686 (9th When an equal protection claim is premised on unique

Cir. 2001).

treatment rather than on a classification, the Supreme Court has described it as a "class of one" claim. N. Pacifica LLC v. City of In order to claim a

Pacifica, 526 F.3d 478, 486 (9th Cir. 2008).

violation of equal protection in a class of one case, the plaintiff must establish that the state actor intentionally, and without rational basis, treated the plaintiff differently from others similarly situated. Id.

Defendants contend they are entitled to summary judgment on Plaintiff's equal protection claim because Plaintiff fails to identify other similarly situated students. Plaintiff cites Police

Department v. Mosley, 408 U.S. 92, 95-96 (1972) for the proposition that, like the First Amendment, the Equal Protection Clause

prohibits government from granting the use of a forum for the expression of some political views, but not others. (Opposition at 27). In essence, Plaintiff's claim is that other students are

allowed to express their political views, whereas Plaintiff was not and was discriminated against on the basis of her view-point. Whether Defendants censored Plaintiff's shirt because of its message or the images contained on the shirt presents a disputed question of fact. Evidence of how other student's views were treated may or

may not be relevant under the test set forth in Mosely. Defendants' motion for summary judgment on Plaintiff's equal protection claim is DENIED. D. Due Process Claim The degree of vagueness that the Constitution tolerates -- as 18

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well as the relative importance of fair notice and fair enforcement -- depends in part on the nature of the enactment. Hoffman Estates

v. Flipside, Hoffman Estates, 455 U.S. 489, 998 (1982). The Supreme Court has expressed greater tolerance for enactments with civil rather than criminal penalties because the consequences of

imprecision are qualitatively less severe. Id. at 998.

A more

stringent vagueness test applies where a vague restriction threatens to interfere with speech. Id. at 998-999.

The Supreme Court has recognized that "maintaining security and order in the schools requires a certain degree of flexibility in school disciplinary procedures, and we have respected the value of preserving the informality of the student-teacher relationship." Fraser, 478 U.S. at 686.7 Given the school's need to be able to

impose disciplinary sanctions for a wide range of unanticipated conduct disruptive of the educational process, the school

disciplinary rules need not be as detailed as a criminal code which imposes criminal sanctions. Id.

The dress code at issue is vague, and does threaten to infringe on students' speech rights. Accordingly, the dress code policy must be viewed with skepticism. Flipside, 455 U.S. 489, 998. However,

because First Amendment rights are circumscribed in light of the special characteristics of the school environment, e.g. Morse v. Fredrick, 551 U.S. 393, 404-405 (2007), the threat to speech posed by a school dress code policy is inherently less severe than the threat posed by the types of vague "laws" of general applicability

7

Although Fraser concerned a procedural due process claim, it is instructive in t h a t it provides a framework for evaluating the concepts of due process and v a g u e n e s s in the context of the school environment.

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contemplated by the Court in Flipside, 455 U.S. at 998.

The threat

to speech entailed by school dress codes is undercut further by students' rights to express their opinions orally and in writing. See, e.g., Ward v. Rock Against Racism, 491 U.S. 781, 802 (1989) (noting, in the context of intermediate scrutiny review, that availability of alternative channels of speech reduced threat to speech).8 In light of the minimal penalties imposed for violations of the School's dress code, the circumscribed First Amendment rights of students in the school context, the availability of alternate mediums of communication other than clothing, and the recognized need for flexibility in school disciplinary policies, the School's dress code policy does not violate due process. See A.M. Cash, 585

F.3d at 224-225 (rejecting vagueness challenge to dress code policy that prohibited "inappropriate symbolism" in light of school

officials' need for flexibility and light sanction entailed by dress code violations); Fraser, 478 U.S. at 686 (holding that student's contention that school disciplinary rule proscribing "obscene" language was unconstitutionally vague was "wholly without merit").9

8

Intermediate scrutiny does not generally apply to content-based restrictions o n speech. But see Morse, 551 U.S. 393 (applying reasonableness standard to c o n t e n t based restriction). However, the fact that alternative methods of c o m m u n i c a t i o n limit the ability of school dress codes to silence students' v i e w p o i n t s is significant for the purposes of assessing the reasonableness, in t h e due process context, of a school's dress code. See, e.g, Flipside, 455 U.S. a t 498 (noting that, in due process context, constitutional requirements should n o t be "mechanically applied" and directing courts to consider all the c i r c u m s t a n c e s in assessing whether due process requires more specificity)
9

The word "obscene" as used in the school policy at issue in Fraser was distinct f r o m , and much broader than, "obscenity" in the context of First Amendment jurisprudence. See Fraser, 478 U.S. at 687 (Brennan, J., concurring) ("The C o u r t , referring to these remarks as `obscene,' `vulgar,' `lewd,' and ` o f f e n s i v e l y lewd,' concludes that school officials properly punished respondent f o r uttering the speech. Having read the full text of respondent's remarks, I

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Defendants' motion for summary judgement on Plaintiff's due process claim is GRANTED. ORDER For the reasons stated: 1) Defendants' request for summary judgement on Plaintiff's First Amendment claim is DENIED; 2) Defendants' request for summary judgment on Plaintiff's equal protection claim is DENIED; 3) Defendants' request for summary judgment on Plaintiff's Fourth Amendment claim is DENIED with respect to Defendant Hernandez and GRANTED with respect to all other Defendants; 4) Defendants' request for summary judgment on Plaintiff's Due Process claim is GRANTED; and 5) Defendants shall submit a form of order consistent with this Memorandum Decision within five (5) days following electronic service of this decision. IT IS SO ORDERED. Dated: hkh80h July 15, 2010 /s/ Oliver W. Wanger UNITED STATES DISTRICT JUDGE

f i n d it difficult to believe that it is the same speech the Court describes.").

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