Shen et al v. Albany Unified School District et al

Filing 31

ORDER GRANTING IN PART #1 MOTION FOR TEMPORARY RESTRAINING ORDER. Summary Judgment Motion Hearing set for 7/13/2017 at 10:00 AM in Courtroom 11, 19th Floor, San Francisco. Signed by Judge James Donato on 5/26/2017. (jdlc2S, COURT STAFF) (Filed on 5/26/2017)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 PHILIP SHEN, et al., Plaintiffs, 8 9 10 United States District Court Northern District of California 11 Case No. 17-cv-02478-JD v. ALBANY UNIFIED SCHOOL DISTRICT, et al., ORDER GRANTING IN PART MOTION FOR TEMPORARY RESTRAINING ORDER Re: Dkt. No. 1 Defendants. 12 13 Plaintiffs are four Albany High School students who were suspended in relation to a 14 number of racially charged images posted to Instagram by another student who is not a party here. 15 Plaintiffs do not dispute that the images had “prejudiced and potentially bigoted overtones,” and 16 that they commented on, “followed” and/or “liked” some of those images. Dkt. No. 2 ¶¶ 29, 46- 17 77. But they maintain that the Instagram account was a “private, personal account” of the non- 18 party poster that “had no connection with any official school activity or any official school 19 account on any other social media platform.” Id. Plaintiffs filed a complaint against the Albany 20 Unified School District, Albany High School and four individuals that challenges the school 21 disciplinary proceedings as improper under the First, Fourth and Fourteenth Amendments to the 22 United States Constitution and a California state education law. Dkt. No. 2. Before the Court is 23 plaintiffs’ motion for a temporary restraining order to preserve the status quo while the Court 24 considers the merits of the claims. Dkt. No. 1. The Court grants the motion in part. 25 26 DISCUSSION As an initial matter, the Court treats this as a request for a temporary restraining order with 27 notice to the other side. Plaintiffs’ motion for a temporary restraining order was filed on May 1, 28 2017. Dkt. No. 1. Although that filing did not include the requisite attorney certification about 1 efforts made to give notice, see Fed. R. Civ. Pro. 65(b)(1)(B), defense counsel subsequently filed 2 notices of appearance on the ECF docket on May 8, 2017. Dkt. Nos. 12, 13, 14. Defense counsel 3 also participated in a telephone conference on May 23, 2017, in which the Court discussed the 4 TRO application with all parties and stated it was likely to grant a temporary restraining order if 5 defendants would not voluntarily agree to a standstill pending further proceedings. Dkt. No. 22. 6 Defendants have not opposed plaintiffs’ motion, and the Court finds that they have received 7 adequate written and oral notice that a temporary restraining order might be ordered.1 A request for a temporary restraining order is decided under the same factors as a 8 9 preliminary injunction motion. Stuhlbarg Int’l Sales Co., Inc. v. John D. Brush and Co., Inc., 240 F.3d 832, 841 n.7 (9th Cir. 2001). The plaintiff must establish that he is likely to succeed on the 11 United States District Court Northern District of California 10 merits, is likely to suffer irreparable harm in the absence of preliminary relief, the balance of 12 equities tips in his favor and an injunction is in the public interest. Winter v. Natural Res. Def. 13 Council, Inc., 555 U.S. 7, 20 (2008). A stronger showing of one element may offset a weaker 14 showing of another. Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 15 2011). Our circuit also uses the “serious questions” approach under which an injunction may be 16 ordered when plaintiff demonstrates serious questions going to the merits and the balance of 17 hardships tips sharply in plaintiff’s favor, in addition to meeting the other elements of the Winter 18 test. Id. at 1131-32. “[A]t an irreducible minimum,” the party seeking an injunction “must 19 demonstrate a fair chance of success on the merits, or questions serious enough to require 20 litigation.” Pimentel v. Dreyfus, 670 F.3d 1096, 1105-06 (9th Cir. 2012). The First Amendment is central to plaintiffs’ case, and there is no doubt that they have 21 22 raised “serious questions” under it. As our circuit has recognized, “[c]ourts have long dealt with 23 the tension between students’ First Amendment rights and ‘the special characteristics of the school 24 environment,’” and that challenge has been made all the more difficult in our modern times 25 because, “outside of the official school environment, students are instant messaging, texting, 26 emailing, Twittering, Tumblring, and otherwise communicating electronically.” Wynar v. 27 28 1 Consequently, the 14-day limitation in Federal Rule of Civil Procedure 65(b)(2) does not apply. 2 Douglas County School Dist., 728 F.3d 1062, 1064 (9th Cir. 2013). Here, the students were 2 communicating via Instagram. The application of the Supreme Court’s school speech 3 jurisprudence to the type of off-campus speech at issue in this case raises open and complex 4 questions that our circuit has expressly held are not amendable to “a one-size fits all approach.” 5 Id. at 1067-69. The questions here include, among others: the degree to which First Amendment 6 protections apply to the students’ off-campus speech on Instagram; which analytical framework 7 applies (see Wynar, 728 F.3d at 1067, listing Supreme Court’s “four lead student speech cases” 8 and the respective areas of student speech each governs) and what outcome is dictated by the 9 relevant analysis; and how, if at all, the analysis is affected by the fact that plaintiffs did not 10 directly post the images but only commented on them. These questions are clearly “serious 11 United States District Court Northern District of California 1 enough to require litigation,” Pimentel, 670 F.3d at 1105-06, and are sufficient to meet that TRO 12 element without consideration of plaintiffs’ other claims. 13 For irreparable harm, plaintiffs have focused on plaintiff Kevin Chen, who faces an 14 expulsion hearing on June 1, 2017. See Dkt. No. 1-1 at 11, Dkt. No. 25. The Court finds that a 15 public school disciplinary hearing that would chill or violate First Amendment rights undoubtedly 16 qualifies as irreparable harm. The Court is also advised that Chen is a rising senior about to start 17 the college admissions process, and being wrongly expelled would likely cause irreparable harm to 18 his admission prospects. These factors amply satisfy the harm showing for a TRO. 19 Plaintiffs have not, however, established irreparable harm for the mandatory measures they 20 seek -- i.e., to “remove any and all record of disciplinary action related to this incident” and to 21 “allow plaintiffs to make up any work missed as a result of their suspensions.” Dkt. No. 1 at 2. 22 “The sole purpose of a temporary restraining order is to preserve the status quo pending hearing on 23 the moving party’s application for a preliminary injunction,” Alison O. v. Anthem Blue Cross Life 24 and Health Ins. Co., No. C 13-4787 PJH, 2013 WL 5979515, at *6 (N.D. Cal. Nov. 8, 2013), and 25 “status quo” means the last uncontested status that preceded the pending controversy., 26 Inc. v. Walt Disney Co., 202 F.3d 1199, 1210 (9th Cir. 2000). Plaintiffs’ requests that are not 27 limited to enjoining further disciplinary action go too far beyond maintaining the status quo. The 28 requests appear to be based on their fear that this lawsuit will “take years to resolve,” Dkt. No. 1-1 3 1 at 12, but as the Court has already discussed with the parties, that will not happen here. The Court 2 consequently finds that plaintiffs have established irreparable harm only for Chen’s upcoming 3 expulsion hearing and any other new disciplinary proceedings or actions defendants may take 4 against plaintiffs before the Court resolves this case on the merits. 5 On the balance of the equities, this case directly implicates these four high school students’ 6 First Amendment rights, and the outcome of the case could have a strong impact on their ability to 7 apply for and be admitted to the colleges of their choice. Defendants have not presented evidence 8 suggesting any countervailing considerations. The balance tips sharply in plaintiffs’ favor. In 9 addition, a TRO is in the public interest. CONCLUSION 10 United States District Court Northern District of California 11 The motion for a temporary restraining order, Dkt. No. 1, is granted in part. Defendant 12 Albany Unified School District is enjoined from proceeding with the expulsion hearing for 13 plaintiff Kevin Chen that is currently scheduled for June 1, 2017. All defendants are also enjoined 14 from holding any disciplinary proceedings or taking any other disciplinary action against plaintiffs 15 based on the conduct that is at issue in this case pending further order of the Court. Given the 16 nature of the case and the relief ordered, a bond need not be posted under Federal Rule of Civil 17 Procedure 65(c). See Jorgensen v. Cassiday, 320 F.3d 906, 919-20 (9th Cir. 2003); Barahona- 18 Gomez v. Reno, 167 F.3d 1228, 1237 (9th Cir. 1999). 19 As discussed with the parties during the May 23, 2017, telephone conference, the Court 20 will proceed directly to an early, partial summary judgment proceeding as contemplated by 21 Federal Rule of Civil Procedure 65(a)(2). Consistent with the parties’ stipulation, Dkt. No. 27, the 22 Court sets a summary judgment hearing for July 13, 2017, at 10:00 a.m., and the parties are 23 directed to follow the briefing schedule that was proposed for that hearing date. The pending 24 motion for preliminary injunction, Dkt. No. 10, will be terminated as moot. 25 26 IT IS SO ORDERED. Dated: May 26, 2017 27 JAMES DONATO United States District Judge 28 4

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