Gonzales et al v. Burley High School et al

Filing 37

MEMORANDUM DECISION AND ORDER. IT IS HEREBY ORDERED: Defendants' Motion for Summary Judgment (Dkt. 25 ) is DENIED. Superintendent Smyer and Assistant Superintendent Miller are accordingly dismissed with respect to Claim One. Plaintiffs' Mo tion for Partial Summary Judgment (Dkt. 26 ) is GRANTED. By no later than August 5, 2019, the parties will need to submit their unavailable trial dates starting in January, 2020. Please also state how many days you believe it will take to try this matter. Signed by Judge David C. Nye. (ckh)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
JORGE GONZALES on behalf of his
minor child A.G.; TODD MERRELL on
behalf of his minor child A.M.;
MANUEL MORALES and VERONICA
MORALES on behalf of their minor
child Z.M.; HENRY MUNOZ and
MISTY MUNOZ on behalf of their
minor child I.M.; ERASMO SALAZAR
and ELLEN SALAZAR on behalf of
their minor children C.S. and S.S.;
ROBERT SANCHEZ and TIFFINY
SANCHEZ on behalf of their minor child
I.S.; SILVIA OCHOA on behalf of her
minor child D.O.; SONIA RAMIREZ on
behalf of her minor child V.R.,

Case No. 4:18-cv-00092-DCN
MEMORANDUM DECISION AND
ORDER

Plaintiffs,
v.
BURLEY HIGH SCHOOL; CASSIA
JOINT SCHOOL DISTRICT 151;
GAYLEN SMYER in his official and
individual capacity; SANDRA MILLER
in her official and individual capacity;
LEVI POWER in his official and
individual capacity; and DOES I-X,
Defendants.
I. INTRODUCTION
This case involves First Amendment retaliation claims for disciplinary actions
taken against plaintiff members of the Burley High School (“BHS”) cheer team
(“Plaintiffs”). Plaintiffs engaged in a peaceful “sit-in” during an early morning cheer

MEMORANDUM DECISION AND ORDER - 1

practice to protest bullying and favoritism by their cheer coach. Plaintiffs were ultimately
suspended from the cheer team for three weeks as a punishment and had to sign a list of
stipulations agreeing to additional punishment to be let back on the squad. Although
Plaintiffs signed the stipulations, they each also reserved their right to engage in the
school district’s grievance process. In response, the BHS administration dismissed
Plaintiffs from the cheerleading team for the rest of the school year.
Plaintiffs thereafter filed the instant suit, alleging two claims of retaliation in
violation of the First Amendment. Plaintiffs’ first claim for relief is for the retaliation
they experienced for initiating the sit-in, while Plaintiffs’ second claim for relief is for the
retaliation they purportedly suffered as a result of reserving their rights to engage in the
school district’s grievance process. Defendants BHS, Cassia Joint School District 151,
Superintendent Gaylen Smyer, Assistant Superintendent Sandra Miller, and Principal
Levi Power (collectively referred to hereinafter as “Defendants”) seek summary dismissal
of both of Plaintiffs’ claims. Plaintiffs filed a motion for partial summary judgment,
seeking summary adjudication of their claim of retaliation for reserving their rights to
grieve the school district’s decision. On June 5, 2019, the Court held oral argument on
both motions. For the reasons stated herein, the Court DENIES Defendants’ Motion for
Summary Judgment and GRANTS Plaintiffs’ Motion for Partial Summary Judgment.
II. BACKGROUND1
The BHS cheer team won the state championships during the 2015-2016 and

1
Unless otherwise referenced, the following facts are taken from Plaintiffs’ Complaint. Dkt. 1. For
purposes of the present motions, the following background facts have not been disputed.

MEMORANDUM DECISION AND ORDER - 2

2016-2017 school years under head coach Heidi Smith. Eight of the nine plaintiff
cheerleaders were on at least one of the state championship teams. In the spring of 2017,
the BHS administration hired a new coach, Laine Mansfield, as the head coach of the
cheer team. Mansfield had previously served for a portion of a year as an assistant junior
high cheer coach.
In April 2017, Mansfield conducted tryouts for the 2017-2018 BHS cheer team.
Mansfield’s temperament and fairness immediately concerned Plaintiffs. For instance,
Victoria Aragon, an incoming senior who had been a member of both state championship
cheer teams, did not make the squad for her senior year. Due to a personal dispute with
Aragon, Mansfield prohibited Plaintiffs from communicating with, associating with, or
otherwise talking about Aragon while at cheerleading practice or in the presence of
Mansfield. Mansfield verbally reprimanded Plaintiffs if she observed them
communicating or associating with Aragon.
Mansfield also demonstrably favored the younger members of the cheer team she
had coached as an assistant coach of the junior high team, including her own daughter.
For Plaintiffs, Mansfield enforced mandatory attendance for practices and events, and
made no exceptions for conflicting school-related activities, family functions, or any
other non-emergency scheduling conflict. If Plaintiffs missed a single practice, they were
excluded from practices and important games and events during the week the practice
was missed. Mansfield also punished one Plaintiff, A.G., by excluding her from
participating in a cheer parade when she missed practice to attend a previously scheduled
school yearbook camp. This punishment was given even though—several months prior—
MEMORANDUM DECISION AND ORDER - 3

Mansfield had excused A.G. from attending practice that day so she could attend the
yearbook camp. However, Mansfield rescheduled the entire team’s practice when her
own daughter or other junior members of the team had a conflict.
Mansfield also routinely bullied Plaintiffs by degrading their cheerleading abilities
and appearance. Mansfield told Plaintiffs they “sucked and that she had no idea how
[they] ever won a state title,” claimed they looked “trashy and gross,” criticized Plaintiffs
during practice by stating they “looked really dumb, ugly or sloppy,” and talked
negatively about certain Plaintiffs to other members of the team, including describing one
Plaintiff as “the most loud, obnoxious person she’d ever met” and complaining how
“lazy” another Plaintiff was. Dkt. 29-3, Ex. 2, at 15, 24, 33, 34.
Finally, Mansfield demonstrated a lack of basic knowledge of, or concern for, the
safety requirements cheer coaches are required to observe. For example, flyers—
cheerleaders who are lifted or thrown into the air—were repeatedly dropped on the floor
during practice. Although such falls can cause paralysis or even death, Mansfield would
tell the flyers to “brush it off, suck it up, and do it right next time” when they were
dropped. Id. at 28. Yet Mansfield would not teach the girls the appropriate way to do the
stunt or ensure they had the basics down before they again attempted dangerous
acrobatics. Id. Mansfield also put inexperienced cheerleaders together in groups, gave the
squad no direction on how to safely stunt, paired stunt groups incorrectly based on their
size, risking serious injury, and tried to make the cheerleaders attempt illegal stunts. Id.
Plaintiffs and their parents voiced numerous complaints to the BHS administration
about Mansfield’s behavior and attended meetings with BHS and Cassia Joint School
MEMORANDUM DECISION AND ORDER - 4

District administrators. In response to such complaints, the BHS administration put
Mansfield on a Performance Improvement Plan, requiring her to, among other things,
“keep her communication positive” with members of the cheer team, refrain from texting
cheerleaders one on one, refrain from discussing sensitive issues about the cheerleaders
with others, and to be “consistent and fair with all girls in the cheer program[.]”2 Dkt. 2610, Ex. 5, at 18:1-25:5. When Mansfield’s behavior did not improve, Plaintiffs organized
a sit-in during their early morning practice on September 29, 2017, to protest Mansfield’s
“bullying, favoritism, and incompetence.” Dkt. 26-1, at 2.
At approximately 8:10 a.m. on the day of the protest, fourteen BHS cheerleaders
(nine of whom are plaintiffs in this suit), entered the BHS gym at the end of one of their
before-school practices. The protesting cheerleaders wore their regular school clothes
(rather than their designated practice uniforms) and sat on the bleachers for
approximately two minutes until they were asked to leave by BHS Athletic Director
Gordon Kerbs. When asked to leave the gym, one of the Plaintiffs argued with Kerbs and
Assistant Principal Andrew Wray, stating the cheerleaders had a right to peacefully
protest. However, all of the girls ultimately left the gym and went to the library with
Kerbs and Wray.
At the end of the day on September 29, 2017, Plaintiffs were informed that they
were suspended from the cheerleading team for the next week. On October 5, 2017, the
BHS Principals’ Office gave each Plaintiff a list of additional punishments to which

2
It is not clear from the record whether Plaintiffs were aware the District had placed Mansfield on a
Performance Improvement Plan.

MEMORANDUM DECISION AND ORDER - 5

Plaintiffs and their parents were required to agree in order for Plaintiffs to be allowed
back on the cheerleading team. The October 5, 2017, letter provided:
In order to rejoin the cheer squad at [BHS] each of the following must take
place:
-You will serve a suspension from competing in events/games
until October 23, 2017, you will be allowed and expected to
attend all practices starting Monday, October 9[,] 2017. You
will be expected to attend and sit in warm up gear with the
coaches during any games/events for the remainder of the
suspension starting Monday, October 9[,] 2017.
-You will vocally address the entire cheer squad and coaches
Monday morning, October 9[,] 2017 with a sincere apology.
-You will agree to participate in a 4-hour service project to be
completed on a Saturday before October 23, 2017. The date
will be given to you by the coaches.
-By October 23, 2017 you will write a one-page paper
explaining what you have learned about yourself through this
experience and will come up with one team building
activity/idea and present that in your paper to the coaches.
-You will be expected to follow the rules in the cheer
handbook, failure to follow the rules will result in dismissal
from the squad.
-You will have and maintain a positive attitude and work ethic
with all aspects of the cheer squad moving forward.
-Any negative texts/social media posts about any member of
the cheer squad, cheer coaching staff or [BHS] will result in
dismissal from the team.
-Any parent boosters [sic] activity must be cleared through the
coaches.
-This letter must be signed by the cheerleader and a
parent/guardian and hand delivered [to BHS administration] by

MEMORANDUM DECISION AND ORDER - 6

3:30 PM on Friday October 6, 2017. Failure to do so will result
in dismissal from the cheer squad.
Dkt. 25-8, Ex. S.
Each of the Plaintiffs and their parents returned signed stipulation agreements to
the BHS administration by October 6, 2017. However, Plaintiffs also attached a onesentence letter stating, “I/We are signing this but we want to reserve our right to be
afforded our rights in the districts [sic] grievance process[.]” Id.
On October 7, 2017, Cassia School District Superintendent Gaylen Smyer
(“Superintendent Smyer”) and Assistant Superintendent Sandra Miller (“Assistant
Superintendent Miller”) sent each Plaintiff a letter dismissing them from the cheer team
for the 2017-2018 school year. The dismissal letter stated, in part:
It is clear to district level administration that while the stipulation agreements
were returned the presence of the additional page or addendum suggests a
continued conflict on the part of the cheer team, the individual student and
parents with the coach and school administration. Such an expression is
interpreted to be a desire to utilize the grievance process as opposed to the
solution propounded by the administration. It is the belief of the school
superintendent and the assistant superintendent [that] the school and the
cheer team would be best served by revoking the membership of [each
Plaintiff] on the [BHS] cheer team effective Monday, October 9, 2017 at 8:00
a.m.
Dkt. 25-8, Ex. T. Cheerleaders who participated in the sit-in and signed the stipulation
letter, but who did not reserve their right to engage in the school district’s grievance
process, were allowed back on the cheer team.
Plaintiffs thereafter filed the instant suit alleging two counts of retaliation in
violation of the First Amendment under 42 U.S.C. § 1983. Plaintiffs’ first claim for relief
alleges that the Defendants unlawfully retaliated against Plaintiffs by imposing a threeMEMORANDUM DECISION AND ORDER - 7

week suspension and additional punishments in response to Plaintiffs engaging in their
constitutionally protected right to peacefully protest (hereinafter “Claim One”). Plaintiffs’
second claim for relief alleges Defendants unlawfully retaliated against Plaintiffs by
dismissing them from the cheerleading team for reserving their rights to engage in the
school district’s grievance process (hereinafter “Claim Two”).
On January 11, 2019, Defendants and Plaintiffs filed cross-motions for summary
judgment. Defendants seek summary judgment with respect to both of Plaintiffs’ First
Amendment retaliation claims. Plaintiffs contend a genuine issue of disputed material
fact precludes summary judgment on Claim One, but suggest the undisputed facts
establish they are entitled to summary judgment on Claim Two.
III. LEGAL STANDARD
Motions for summary judgment are governed by Rule 56 of the Federal Rules of
Civil Procedure. Rule 56 provides that judgment shall be granted if the movant shows
there is no genuine dispute as to any material fact and that the movant is entitled to
judgment as a matter of law. Fed.R.Civ.P. 56(a). According to Rule 56, an issue must be
both “material” and “genuine” to preclude entry of summary judgment. Id. An issue is
“material” if it affects the outcome of the litigation. Hahn v. Sargent, 523 F.2d 461, 464
(1st Cir. 1975). That is, a material fact is one that is relevant to an element of a claim or
defense which might affect the outcome of the suit. The materiality of a fact is thus
determined by the substantive law governing the claim or defense. T.W. Elec. Serv., Inc.
v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987) (citing Anderson v.

MEMORANDUM DECISION AND ORDER - 8

Liberty Lobby, Inc., 477 U.S. 242 (1986)). Disputes over irrelevant or unnecessary facts
will not preclude a grant of summary judgment. Id.
On the other hand, an issue is “genuine” when there is “sufficient evidence
supporting the claimed factual dispute . . . to require a jury or judge to resolve the parties’
differing versions of the truth at trial.” Hahn, 523 F.2d at 464 (quoting First Nat’l Bank
of Arizona v. Cities Serv. Co., 391 U.S. 253, 289 (1968)). Because factual disputes are to
be decided at trial, in ruling on summary judgment motions, the Court does not resolve
conflicting evidence with respect to disputed material facts, nor does it make credibility
determinations. T.W. Elec. Serv., Inc., 809 F.2d at 630. Moreover, all inferences must be
drawn in the light most favorable to the nonmoving party. Id. at 631.
Finally, where, as here, the parties both move for summary judgment, the Court
will consider each motion on its own merits. Fair Housing Council of Riverside Cty. v.
Riverside Two, 249 F.3d 1132, 1136 (9th Cir. 2001). In ruling on cross-motions, the
Court will consider the entirety of each party’s evidentiary submission, regardless of
which motion (or opposition) the evidence accompanied. Id. at 1136–37.
IV. ANALYSIS
A. Student Speech
It is well-settled that students in public schools do not “shed their constitutional
rights to freedom of speech or expression at the schoolhouse gate.” Tinker v. Des Moines
Indep. Comty. Sch. Dist., 393 U.S. 503, 506 (1969). While the First Amendment rights of
students “are not automatically coextensive with the rights of adults in other settings,”
and educators are granted “substantial deference as to what speech is appropriate,” such
MEMORANDUM DECISION AND ORDER - 9

deference “does not mean abdication.” LaVine v. Blaine Sch. Dist., 257 F.3d 981, 988
(9th Cir. 2001) (internal quotation marks and citation omitted). As such, “there are
situations where school officials overstep their bounds and violate the Constitution.” Id.
In Chandler v. McMinnville Sch. Dist, 978 F.2d 524, 529 (9th Cir. 1992), the
Ninth Circuit reviewed the Supreme Court’s student speech cases and identified three
categories of speech that school officials may constitutionally regulate, each of which is
governed by different Supreme Court precedent: (1) vulgar, lewd, obscene and plainly
offensive speech is governed by Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675
(1986); (2) school-sponsored speech is governed by Hazelwood Sch. Dist. v. Kuhlmeier,
484 U.S. 260, 266 (1988); and (3) speech that falls into neither of these categories is
governed by Tinker. 3 The parties agree Plaintiffs’ speech falls into the third category and
is governed by the standards set forth in Tinker.
The Supreme Court in Tinker held that a school district violated the First
Amendment rights of students when it suspended them for wearing black armbands in
protest of the Vietnam War. 393 U.S. at 513. The Court determined school officials could
not restrain students’ speech without showing “facts which might reasonably have led
school authorities to forecast substantial disruption of or material interference with school
activities.” Id. at 514. Because the Tinker plaintiffs’ speech “was a silent, passive
expression of opinion, unaccompanied by any disorder or disturbance” that “neither
interrupted school activities nor sought to intrude in the school affairs or the lives of

3
In Morse v. Frederick, 551 U.S. 393, 403 (2007), the Supreme Court held that a school may also restrict
“student speech at a school event, when that speech is reasonably viewed as promoting illegal drug use.”

MEMORANDUM DECISION AND ORDER - 10

others,” the Supreme Court held that the First Amendment prohibited school officials
from denying plaintiffs’ expression. Id. at 508, 514. In so holding, the Tinker Court
explained that “where there is no finding and no showing that engaging in the forbidden
conduct would materially and substantially interfere with the requirements of appropriate
discipline in the operation of the school, the prohibition cannot be sustained.” Id. at 509
(internal quotation marks and citation omitted).
“Tinker’s test for determining whether the First Amendment protects ‘third
category’ student speech examines only the effect of the speech on school activities and
the rights of others.” Pinard v. Clatskanie Sch. Dist. 6J, 467 F.3d 755, 766 (9th Cir.
2006) (emphasis in original) (citing LaVine, 257 F.3d at 989-92; Chandler, 978 F.2d at
529-30; and Karp v. Becken, 477 F.2d 171, 176 (9th Cir. 1973)). Thus, there is no public
concern requirement in the context of student speech.4 Instead, the First Amendment
protects “all student speech that is neither school-sponsored, a true threat nor vulgar,
lewd, obscene or plainly offensive unless school officials show ‘facts which might

4
In the context of First Amendment claims raised by government employees, a court evaluating restraints
on a public employee’s speech must balance “the interests of the [employee], as a citizen, in commenting
upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency
of the public services it performs through its employees.” Pickering v. Bd. of Educ., 391 U.S. 563, 568
(1968). To merit the Pickering balancing test, a public employee’s speech must touch on a matter of
“public concern.” Connick v. Myers, 461 U.S. 138, 143 (1983). A public employer may be prohibited
under the First Amendment from suppressing employee speech which involves a matter of public
concern, but may constitutionally suppress employee speech addressing “matters only of personal
interest.” Id. at 147. Both the Supreme Court and the Ninth Circuit have held the public concern
requirement is inapplicable in student speech cases. Hazelwood, 484 U.S. at 266 (public school students
“cannot be punished merely for expressing their personal views on the school premises . . . unless school
authorities have reason to believe that such expression will ‘substantially interfere with the work of the
school or impinge upon the rights of other students.’”) (quoting Tinker, 393 U.S. at 509); Pinard, 467
F.3d at 767 (“In short, we do not read Tinker, its progeny or our own cases applying its standard as
importing Connick’s public concern test into the public education context[.]”).

MEMORANDUM DECISION AND ORDER - 11

reasonably have led [them] to forecast substantial disruption of or material interference
with school activities.’” Pinard, 467 F.3d at 767 (brackets in original) (quoting Chandler,
978 F.2d at 529).
As mentioned, Plaintiffs bring two claims for First Amendment retaliation under
42 U.S.C. § 1983. To establish First Amendment retaliation claims under 42 U.S.C. §
1983, Plaintiffs must show: (1) they were engaged in a constitutionally protected activity;
(2) the Defendants’ actions would chill a person of ordinary firmness from continuing to
engage in the protected activity; and (3) the protected activity was a substantial or
motiving factor in the Defendants’ conduct. Pinard, 467 F.3d at 770. If Plaintiffs
establish the elements of a retaliation claim, “the government can escape liability by
showing that it would have taken the same action even in the absence of the protected
conduct.” Keyser v. Sacramento City Unified Sch. Dist., 265 F.3d 741, 750 (9th Cir.
2001).
1. The Sit-In
A school can regulate student speech if such speech “materially and substantially
disrupt[s] the work and discipline of the school.” Tinker, 393 U.S. at 513. “This standard
does not require that the school authorities wait until an actual disruption occurs; where
school authorities ‘can reasonably portend disruption’ in light of the facts presented to
them in the particular situation, regulation of student expression is permissible.” J.C. ex
rel. R.C. v. Beverly Hills Unified Sch. Dist., 711 F. Supp. 2d 1094, 1110 (9th Cir. 2010)
(quoting Tinker, 393 U.S. at 514). Although actual disruption is not required, school
officials must have more than an “undifferentiated fear or apprehension of disturbance”
MEMORANDUM DECISION AND ORDER - 12

to overcome a student’s right to freedom of speech. Tinker, 393 U.S. at 508. Thus, a
decision to discipline speech must be supported “by the existence of specific facts that
could reasonably lead school officials to forecast disruption.” J.C. ex rel. R.C., 711 F.
Supp. 2d at 1111 (emphasis in original). Further, school officials must show that the
regulation of student speech was caused by something more than “a mere desire to avoid
the discomfort and unpleasantness that always accompany an unpopular viewpoint.”
Tinker, 393 U.S. at 509. As the Tinker Court explained: “Any word spoken in a class, in
the lunchroom, or on the campus, that deviates from the views of another person may
start an argument or cause a disturbance. But our Constitution says we must take this
risk.” 393 U.S. at 509 (citing Terminiello v. Chicago, 337 U.S. 1 (1949)).
Defendants argue the sit-in cannot be considered constitutionally protected speech
because the undisputed facts establish the sit-in substantially disrupted the cheerleading
practice that was being conducted at the time of the protest.5 In support of their claim that
the sit-in caused actual disruption, Defendants note Plaintiffs refused to participate in
practice and did not wear their appropriate practice uniform. Dkt. 25-1, at 5. However,
disruption must “materially and substantially interfere with the requirements of
appropriate discipline in the operation of the school,” for a prohibition on speech to be
sustained. Tinker, 393 U.S. at 509 (quoting Burnside v. Byars, 363 F.2d 744, 749 (5th
Cir. 1966)). There is no evidence Plaintiffs’ failure to participate in practice or to wear

5
 Although the sit-in occurred during an early morning practice before school had started, Defendants note
before and after school practices were considered part of Plaintiffs’ cheerleading class, and that Plaintiffs
received credit and a grade for their cheerleading class. Dkt. 25-1, at 4.  

MEMORANDUM DECISION AND ORDER - 13

their uniforms materially interfered with discipline in the operation of the school, or,
given the short duration of the sit-in, with the appropriate discipline of the cheerleading
class.
Athletic Director Kerbs also stated he and Wray “had quite a conversation with
A.M. to finally get [Plaintiffs] to leave” the gym. Dkt. 25-5, Ex. F, at 19:9-10. That A.M.
may have argued with Kerbs and Wray when ordered to leave the gym also does not
establish substantial disruption for purposes of summary judgment. As the Supreme
Court emphasized in Tinker, “vigilant protection of constitutional freedom is nowhere
more vital than in the community of American schools. The classroom is peculiarly the
‘marketplace of ideas.’ The Nation’s future depends upon leaders trained through wide
exposure to that robust exchange of ideas which discovers truth ‘out of a multitude of
tongues,’ (rather) than through any kind of authoritative selection.” 393 U.S. 513
(citations omitted). Clearly, students may disagree with their teachers or administrators
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. Contrary to Defendants’ contention, A.M.’s argument with Kerbs and Wray does not
establish the sit-in substantially disrupted the educational process for purposes of
summary judgment.
Finally, Defendants contend they are entitled to summary judgment on Claim One
because two of the Plaintiffs, Z.M. and I.M., testified in their depositions that “it would
have been difficult to hold a practice without their participation, and that the rest of the
cheerleaders could not effectively practice without them.” Dkt. 25-1, at 6. However, Z.M.
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clarified the non-protesting cheerleaders “could have practiced. We left before the bell
even rang to go to class.” Dkt. 25-5, Ex. J, at 17:2-3. When questioned whether the nonprotesting cheerleaders had “some difficulty really doing the practice when half the team
[wasn’t] participating,” another Plaintiff, C.S., stated, “[t]hey had to change formations,
but that happens all the time with cheer.” Dkt. 25-6, Ex. M, 11:3-6. C.S. also testified the
non-protesting cheerleaders could practice without Plaintiffs’ participation because “they
did other routines throughout the year without us.” Id. at 7-11. In light of such testimony,
even if the fact practice may have been ineffective for a few minutes could establish
substantial disruption under Tinker, it is disputed whether practice was actually
ineffective. Thus, the testimony Defendants cite is not sufficient to establish the sit-in
caused a substantial disruption as a matter of law.
In addition to actual disruption, Defendants suggest BHS administration
“reasonably concluded that the sit-in would disrupt the educational process.” Dkt. 25-1,
at 6. The only specific fact Defendants allege to support their claim the sit-in could
reasonably lead to substantial disruption is the deposition testimony of Assistant Principal
Wray, who stated that the protest was potentially “very unsafe” because the nonprotesting cheerleaders were distracted by the sit-in, and the coaches were distracted by
attempting to supervise both the non-protesting cheerleaders and those engaging in the
sit-in. Dkt. 25-4, Ex. D, at 16:15-17:16, 23:17-24:10. But Wray’s testimony is not clear
as to why the non-participating cheerleaders’ distraction was necessarily unsafe. For
instance, Wray testified “[p]art of the cheer class is meant for training and learning cheer
routines, some of which require stunting or tumbling which has the girls doing flips or
MEMORANDUM DECISION AND ORDER - 15

other routines. If someone is not paying attention or if someone is not fully engaged in
what is going on, an injury could result.” Id. at 23:24-24:5. However, Wray did not testify
that the non-protesting cheerleaders were actually tumbling or “doing flips,” at the time
of the sit-in, and were thus unsafe as a result of their distraction. Nor do Defendants offer
any other evidence, such as testimony from Mansfield, the non-protesting cheerleaders,
or any other BHS administrator, to suggest the non-protesting cheerleaders’ distraction
was in any way unsafe.
Defendants note school officials have a duty to prevent disturbances, including
providing an educational environment free from distractions. Dkt. 25-1, at 4 (citing
Lowery v. Euverard, 497 F.3d 584, 596 (6th Cir. 2007)). However, Defendants appear to
presume that because the sit-in occurred during cheerleading class, the protest
substantially disrupted the educational process. Id. at 6 (stating “[s]ince the Plaintiffs’
practices are all considered part of their cheerleading class, they disrupted the educational
process.”) The law does not so hold. As the Supreme Court stated in Tinker, regardless of
whether a student is in the classroom, the cafeteria, the playing field, or simply on
campus during authorized hours, she “may express [her] opinions, even on controversial
subjects. . . if [s]he 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.” 393 U.S. at 513 (internal quotation marks and citation omitted);
see also Hazelwood, 484 U.S. at 266 (public school students “cannot be punished merely
for expressing their personal views on the school premises[.]”)

MEMORANDUM DECISION AND ORDER - 16

Interpreting the facts in the light most favorable to Plaintiffs, the record shows that
the Plaintiffs missed one cheer class, and that cheer practice was temporarily interrupted
by the sit-in. Temporary interruption of class time does not, standing alone, establish
material and substantial disruption. See, e.g., J.C. ex rel. R.C., 711 F. Supp. 2d at 1117
(disruption was “entirely too de minimis as a matter of law” where although five students
were pulled out of classes for a morning, school officials had to investigate a video
created by one student and distributed to several other students, and the school had to
address concerns of an upset student and parent, there was no evidence that the video
“had any ripple effects on class activities or the work of the school.”); J.S. ex rel. Snyder
v. Blue Mountain Sch. Dist., 650 F.3d 915, 929 (3d Cir. 2011) (the inconvenience
associated with the student expression at issue, including the principal’s meetings related
to it, “general rumblings,” students talking in class for a few minutes, and some school
officials rearranging their schedules to assist the principal did not rise to a substantial
disruption); Flaherty v. Keystone Oaks Sch. Dist., 247 F. Supp. 2d 698, 704 (W.D. Pa.
2003) (“While [the school principal] believes that he can discipline a student for bringing
‘disrespect, negative publicity, [and] negative attention to our school and to our
volleyball team,’ this is simply not sufficient to rise to the level of ‘substantial disruption’
under Tinker.”).
Defendants also contend another factor relevant to the substantial disruption
inquiry is “whether school administrators are pulled away from their ordinary tasks to
respond to or mitigate the effects of a student’s speech.” Id. (citing J.C. ex rel. R.C., 711
F.Supp.2d at 1113-14). Defendants imply the educational process was disrupted because
MEMORANDUM DECISION AND ORDER - 17

Kerbs and Wray had to leave their offices to go to the gym to deal with Plaintiffs.
However, Defendants have not shown that the actions Kerbs and Wray took to end the
sit-in were outside the realm of ordinary school activities. Instead, the record suggests
Kerbs and Wray took steps to investigate the nature of the sit-in and to remove Plaintiffs
from the gym. As the Ninth Circuit held in J.C. ex rel. R.C., “[t]hat is what school
administrators do. As long as students have attended school, some get sent to the
principal’s office for discipline, some seek counseling from the school counselors, and
upset parents on occasion voice concerns to the school[.]” 711 F. Supp. 2d at 1118-1119.
That Wray and Kerbs briefly left their offices to respond to the sit-in and discipline
Plaintiffs does not establish substantial disruption for purposes of summary judgment.
Finally, Plaintiffs dispute Defendants’ contention that the sit-in was actually or
potentially disruptive. Dkt. 29, at 4-5 (citing Dkt. 29-3, Ex. 2, at 3-14). Each Plaintiff
described the sit-in as peaceful and brief. For instance, Plaintiff A.G. stated:
The morning of the sit-in, the girls who participated in the sit-in and I sat on
the gym bleachers as the other cheerleaders practiced on the gym floor. We
sat on the bleachers and quietly whispered to one another wondering what
was going to happen. The athletic director, Gordy Kerbs, and the BHS
administrators came into the gym and told us we could not be there. [A.M.]
stated that we were protesting and that the student handbook gave us that
right. [Mr. Kerbs] told us we can be punished for insubordination and we
were led to the library where we were told to call our parents.
Dkt. 29-3, Ex. 2, at 3-4.
When describing the sit-in, Plaintiff A.M. noted, we “sat down on the floor
bleachers and didn’t say anything or laugh. We maintained a very serious demeanor.” Id.
at 4. Plaintiff Z.M. summarized the sit-in as follows:

MEMORANDUM DECISION AND ORDER - 18

We walked in quietly and sat down on the west bottom part of the bleachers.
. . . [Mansfield] did not talk to any cheerleader participating in the sit in at
all. . . . Kerbs, the athletic advisor, was the first one to come in and talked to
us. He was mad at us girls for doing this. . . . Wray, one of the vice principals,
came in the gym and talked to us. I really can’t remember what he said. . .
but the one thing I can remember is him telling us that we can’t sit there so
he told us that we had to follow him. . . . He took us to the computer lab in
the library and then I believe Wray told us girls something along the lines of,
“[you are] going to get suspended and kicked off the team.”
Id. at 5-6.
Plaintiff D.O. explained, “[a]s we walked into the gym nothing was said—no rude
comments or anything. We all took a seat, and nothing was said until the two Vice
Principals came in, and also the Athletic Director. They asked us what we were doing and
we calmly answered. In my point of view it was not disrespectful in any way. We just
quietly sat there.” Id. at 8. Plaintiff S.S. stated: “We walked in, didn’t say a word, and sat
down on the bleachers.” Id. at 11.
With respect to A.M., the student who purportedly argued with Kerbs, Plaintiff
I.M. stated, “one of our girls [A.M.] pulled out the Student Handbook and started to read
from it. Our school Administrators/Teachers refused to listen and ordered us down to the
Media Center located in a small room in the back of the library.” Id. at 7. Plaintiff V.R.
noted A.M. read BHS administrators “some of our rights that she had printed out from
the student handbook, and they continued to ignore us and tell us we had to leave with
them. We then got up and followed them through the school to the computer lab in the
back of the library. We asked a few questions regarding why we had to leave, and they
wouldn’t answer us.” Id. at 9.

MEMORANDUM DECISION AND ORDER - 19

As the Ninth Circuit has stated, the “substantial disruption inquiry is highly factintensive. Perhaps for that reason, existing case law has not provided clear guidelines as
to when a substantial disruption is reasonably foreseeable.” J.C. ex. rel. R.C., 711 F.
Supp. 2d at 1111. “There is, for example, no magic number of students or classrooms that
must be affected by the speech.” Id. However, Tinker establishes that a material and
substantial disruption is one that affects “the work of the school” or “school activities” in
general. Tinker, 393 U.S. at 509. In Tinker, the evidence showed armbands students wore
to protest the Vietnam War caused other students to make comments, to poke fun at the
students wearing the armbands, and caused one student to feel “self-conscious.” 393 U.S.
at 518. One math teacher also testified his classroom was temporarily “wrecked” by
disputes with a student wearing an armband. Id. at 517 (Black, J. dissenting).
Nonetheless, the majority concluded the students wearing armbands “neither interrupted
school activities nor sought to intrude in the school affairs or the lives of others.” Id. at
514.
Thus, while Defendants have presented some facts to suggest the sit-in actually or
foreseeably disrupted the educational process, the record on summary judgment does not
present a disruption of sufficient magnitude to satisfy Tinker. Nor, as described above, is
Defendants’ characterization of the purported disruption undisputed.6 Because
Defendants have not established the sit-in caused a substantial disruption to school

6
Moreover, as Plaintiffs note, the facts also suggest Wray and Kerbs’ response to the sit-in exacerbated,
rather than contained, any disruption to the cheerleading class. Dkt. 29, at 5. The record on summary
judgment suggests that, absent Wray and Kerbs’ actions, the cheer practice could have continued without
disruption despite the sit-in.

MEMORANDUM DECISION AND ORDER - 20

activity as a matter of law, and have not offered sufficient facts to allow the Court to
determine whether their fear that substantial disruption was likely to occur was
reasonable, summary judgment with respect to Claim One is inappropriate.7 Tinker, 393
U.S. at 514 (the school bears the burden of demonstrating sufficient facts to support its
forecast of substantial disruption.)
2. Plaintiffs’ reservation of rights
Defendants concede that the Plaintiffs’ reservation of rights to use the school
district’s grievance process was protected under the First Amendment. Dkt. 25-1, at 6. As
such, Defendants do not suggest Plaintiffs’ reservation of rights actually or potentially
disrupted school activities. Defendants instead contend Plaintiffs cannot meet the second
and third elements of a First Amendment retaliation claim with respect to Claim Two.
a. Chilling effect of Defendants’ actions
The second element of a First Amendment retaliation claim requires Plaintiffs to
establish the Defendants’ actions in dismissing them from the cheerleading team would
chill a person of ordinary firmness from continuing to engage in constitutionally
protected activity. Pinard, 467 F.3d at 770. Defendants argue Plaintiffs cannot satisfy this
element because they engaged in the school district’s grievance process both prior to and
after being dismissed from the cheerleading team. Defendants maintain Plaintiffs’ First
Amendment retaliation claim fails “because at no point were the Plaintiffs chilled from
engaging in the District’s grievance process.” Dkt. 25-1, at 7.

7
In their Motion for Summary Judgment, Defendants do not challenge the second two elements of
Plaintiffs’ First Amendment retaliation claim with respect to the sit-in.

MEMORANDUM DECISION AND ORDER - 21

Defendants misinterpret the law—a plaintiff is not required to have actually been
chilled by a defendant’s actions in order to state a retaliation claim. Instead, the “test is
generic and objective. Whether [plaintiff] was, or would have been, chilled is not the
test.” O’Brien v. Welty, 818 F.3d 920, 933 (9th Cir. 2016). “Because it would be unjust to
allow a defendant to escape liability for a First Amendment violation merely because an
unusually determined plaintiff persists in his protected activity. . . the proper inquiry asks
‘whether an official’s acts would chill or silence a person of ordinary firmness from
future First Amendment activities.’” Mendocino Env’l Ctr v. Mendocino Cnty., 192 F.3d
1283, 1300 (9th Cir. 1999) (quoting Crawford-El v. Britton, 93 F.3d 813, 826 (D.C. Cir.
1996)).
Significantly, the Ninth Circuit has previously held that suspension from extracurricular activities would chill a person of ordinary firmness from continuing to engage
in protected activity. Pinard, 467 F.3d at 771. As in this case, plaintiffs in Pinard were
suspended from a sports team for protesting an abusive coach. The Pinard Court held:
The petition and complaints against [the coach] were constitutionally
protected, and the defendants’ suspension of the plaintiffs would lead
ordinary student athletes in the plaintiffs’ position to refrain from
complaining about an abusive coach in order to remain on the team. Thus, if
the plaintiffs can show that their protected speech was a ‘substantial or
motivating factor’ in the defendants’ decision to suspend them from the team
permanently, and the defendants fail to show that they ‘would have taken the
same action even in the absence’ of that speech, then the defendants violated
the plaintiffs’ First Amendment rights.
Id.
Defendants do not offer any evidence or argument other than their contention that
Plaintiffs were “never refrained from engaging in and continuing to engage in the
MEMORANDUM DECISION AND ORDER - 22

District’s grievance process,” to dispute the second element of Plaintiffs’ First
Amendment retaliation claim. Dkt. 28, at 5. Defendants cannot escape liability for
retaliation simply because Plaintiffs persisted in the constitutionally protected activity of
grieving their punishment. Mendocino, 192 F.3d at 1300. Nor do Defendants offer any
relevant facts to distinguish this case from the situation faced by the student athletes in
Pinard. The Court accordingly finds Defendants’ dismissal of Plaintiffs from the
cheerleading team would lead ordinary student athletes in Plaintiffs’ position to refrain
from engaging in the grievance process in order to stay on the cheer team.
b. Substantial or motivating factor for Plaintiffs’ dismissal
Defendants argue Plaintiffs cannot establish the third element of a First
Amendment retaliation claim because Plaintiffs’ reservation of rights to use the district’s
grievance process was not a substantial or motivating factor in Defendants’ decision to
dismiss Plaintiffs from the cheerleading team. Dkt. 25-1, at 7 (citing Pinard, 467 F.3d at
770). In support of this contention, Defendants note Superintendent Smyer, Assistant
Superintendent Miller and BHS Principal Levi Power (“Principal Power”) each testified
in their depositions that Plaintiffs were not removed from the cheerleading team because
they reserved their right to take advantage of the district’s grievance process.
For instance, when asked, “[d]id you revoke the membership of the twelve
cheerleaders that were kicked off the team, because they had expressed that they wanted
to file a grievance?” Superintendent Smyer responded:
No. That wasn’t the issue at all. They brought back the stipulations – they
had qualified their stipulations, and we were looking for an unqualified

MEMORANDUM DECISION AND ORDER - 23

acceptance of the stipulation. The grievance letter was just indicative of –
that they were still not accepting of the expectations that were set forth.
Dkt. 25-3, Ex. A, at 16:4-14. Assistant Superintendent Miller similarly stated: “It is my
testimony that I believe [Plaintiffs] were dismissed from the cheer team not because they
asked to be able to grieve but because they chose not to complete the stipulations that
were set forth here without some continued conflict. They—there was still conflict, in my
mind; and it was not going to be resolved.” Dkt. 25-3, Ex. B, at 31:11-17. Principal
Power also confirmed he determined Plaintiffs needed to be dismissed from the
cheerleading team “[b]ecause they clearly weren’t in agreeance [sic] with the stipulations
that we – that were set out.” Dkt. 25-3, Ex. C, at 28:19-24.
With such testimony, Defendants attempt to establish the motivating factor for
Plaintiffs’ dismissal was Plaintiffs’ disagreement with the stipulations, and not Plaintiffs’
constitutionally protected reservation of rights. There are two problems with this
argument. First, Plaintiffs and their parents signed the stipulation letter and returned it to
BHS administration within the time period specified for doing so. The stipulation letter
specifically stated that in order to rejoin the cheer team, Plaintiffs would need to
complete each of the punishments outlined therein, as well as to follow the cheer
handbook, maintain a positive attitude and work ethic, and avoid any negative texts or
social media posts about any member of the cheer squad, cheer coaching staff or BHS.
Dkt. 25-8, Ex. S. Plaintiffs demonstrated they would comply with these conditions—
regardless of whether or not they agreed with them—by signing and returning the

MEMORANDUM DECISION AND ORDER - 24

stipulation letter.8
Second, and more importantly, Defendants’ subjective interpretation of Plaintiffs’
motivation for reserving their constitutional rights to grieve the district’s decision is not
distinguishable from the reservation of rights itself. Defendants attempt to argue that the
substantial or motivating factor for dismissing Plaintiffs was not that Plaintiffs reserved
their rights to grieve the district’s decision, but that the reservation of rights indicated
Plaintiffs did not agree with their punishment and would continue to cause disunity
within the team. The only support for this conclusion, however, is the fact that Plaintiffs
reserved their rights to grieve the district’s decision. Thus, although Defendants admit
they could not constitutionally dismiss Plaintiffs from the team for reserving their
grievance rights, they suggest they could constitutionally dismiss Plaintiffs for the
symbolic message Plaintiffs’ reservation of rights purportedly expressed. Tinker
expressly prohibits school officials from punishing students for such “silent, passive
expression of opinion[.]” 393 U.S. at 508. Further, Defendants’ argument that Plaintiffs’
“desire to grieve was not the root cause of the Plaintiffs’ dismissal from the team,” and
that Plaintiffs were “dismissed because of their actions” is hollow when Defendants do
not identify any actions Plaintiffs took apart from the constitutionally protected conduct

8
Defendants note one “Plaintiff [A.G.] even testified in her deposition that she would not have completed
one of the stipulations even if allowed back on the team, and that even though she had signed the
stipulations, she wouldn’t have followed through with apologizing to the team and coaches.” Dkt. 28, at 9
(citing Dkt. 25-5, Ex. G, at 21:16-22:20). That one plaintiff may not have complied with the stipulations
once she was back on the team is irrelevant where Defendants never allowed her to rejoin the team in the
first place. A.G.’s testimony of what she would or would not have done if she had hypothetically been let
back on the team does not provide a constitutional basis for Defendants’ decision to dismiss her—or the
eight other Plaintiffs—from the cheerleading team.

MEMORANDUM DECISION AND ORDER - 25

of reserving their rights to engage in the grievance process. Dkt. 25-1, at 8.
Moreover, Superintendent Smyer’s dismissal letter to Plaintiffs specifically states
Plaintiffs’ reservation of rights “is interpreted to be a desire to utilize the grievance
process as opposed to the solution propounded by the administration.” Dkt. 25-8, Ex. T,
at 2. Plaintiffs did not express such intentions, but Defendants could not lawfully punish
Plaintiffs for such intentions even if they had. Fundamental to the First Amendment is the
idea that “the prohibition of expression of one particular opinion, at least without
evidence that it is necessary to avoid material and substantial interference with
schoolwork or discipline, is not constitutionally permissible.” Tinker, 393 U.S. at 511.
Defendants do not argue Plaintiffs’ purported disagreement with the stipulations would
cause material and substantial interference with schoolwork or discipline. Thus,
Defendants could not constitutionally dismiss Plaintiffs from the cheerleading team
simply because Plaintiffs expressed they were dissatisfied with Defendants’ decision. As
the Supreme Court has stated, the “enduring lesson” of First Amendment law is “that the
government may not prohibit expression simply because it disagrees with its message[.]”
Texas v. Johnson, 491 U.S. 397, 416 (1989).
Defendants also cite a number of alternative reasons Plaintiffs were purportedly
dismissed from the cheer team, including “violations of the Plaintiffs’ Cheer Handbook,
Cheer Constitution and Athletic Code, which actions included the Plaintiffs disrupting
and missing practice on the day of the sit-in, not giving 100% during a practice, creating
disunity amongst the cheerleading team and their insubordination towards their coach and
the high school administrators.” Dkt. 28, at 8. However, Defendants allowed two
MEMORANDUM DECISION AND ORDER - 26

cheerleaders who had participated in the sit-in, and who had thus engaged in each of the
aforementioned cheer code violations Plaintiffs committed—but who did not reserve their
rights to grieve the school’s decision—back on the cheerleading team. The only
distinction between the cheerleaders who were allowed back on the team and Plaintiffs
was that, unlike the two protesting cheerleaders who were allowed to rejoin the squad,
Plaintiffs reserved their rights to utilize the school district’s grievance process.9
Consequently, Defendants cannot establish that cheer code violations, as opposed to
Plaintiffs’ constitutionally protected reservation of rights, were the substantial or
motivating factor for their decision to dismiss Plaintiffs from the cheer team.
c. Whether Defendants would have dismissed Plaintiffs in the absence of
their reservation of rights
Where, as here, Plaintiffs have established the three elements of a First
Amendment retaliation claim, “the government can escape liability by showing that it
would have taken the same action even in the absence of the protected conduct.” Keyser
v. Sacramento City Unified Sch. Dist., 265 F.3d 741, 750 (9th Cir. 2001) (quoting Bd. of
Cty. Comm’rs v. Umbehr, 518 U.S. 668, 675 (1996)). To make this showing, Defendants

9
Defendants suggest the two girls who did not reserve their rights were allowed back on the team
“because they showed an apologetic attitude, and indicated that they genuinely wanted to be back on the
team and reconnect with the remaining members.” Dkt. 28, at 9-10. Although it is not clear from the
record how the two cheerleaders showed they were apologetic and wanted to reconnect with the team,
Superintendent Smyer made clear in his deposition that he believed they did so because they did not
reserve their rights to engage in the grievance process. When questioned, “just so I understand it, the
cheerleaders that did not submit the [reservation letter] were allowed back on the team?” Superintendent
Smyer responded: “Yeah. My interpretation was, when they signed this and brought it back without any
attachment, that they were accepting the expectations set forth and were going to comply with it.” Dkt.
25-3, Ex. A, at 52:23-53:5. Superintendent Smyer also unequivocally stated if Plaintiffs “had returned
[the October 5, 2017 stipulations] without qualification and complied with the expectations set forth, they
were back on. It is my understanding that, I think, two of them did just that.” Id. at 52:7-10.

MEMORANDUM DECISION AND ORDER - 27

again argue they did not punish Plaintiffs for reserving their grievance rights, but instead
dismissed Plaintiffs from the cheerleading team for “disrupting and missing practice the
day of the sit-in, not giving 100% during a practice, creating disunity amongst the
cheerleading team, and their insubordination towards their coach and the high school
administrators.” Dkt. 28, at 11.
In Pinard, the Ninth Circuit held that to avoid liability for retaliation, defendants
must show more than that they “could have” punished the plaintiffs in the absence of the
protected speech, instead, “the burden is on the defendants to show through evidence that
they would have punished the plaintiffs under those circumstances.” 467 F.3d at 770
(emphasis in original) (quoting Settlegoode v. Portland Pub. Schs., 371 F.3d 503, 512
(9th Cir. 2004)). Defendants cannot make this showing as a matter of law. Although
Defendants could have dismissed Plaintiffs for the aforementioned cheer code violations,
the undisputed evidence establishes Defendants did not dismiss the two cheerleaders who
had also committed each of these violations. Instead, Defendants allowed the two
cheerleaders who had broken the cheer code and participated in the sit-in, but who did not
reserve their rights to grieve the school district’s decision, back on the cheerleading team.
As such, Defendants cannot satisfy their burden of establishing they would have taken the
same action of dismissing Plaintiffs even in the absence of Plaintiffs’ protected
reservation of rights. Id.
d. Personal participation
Defendants argue Plaintiffs fail to adequately allege personal participation by
individual defendants Superintendent Smyer, Assistant Superintendent Miller, and
MEMORANDUM DECISION AND ORDER - 28

Principal Power (collectively referred to hereinafter as “Individual Defendants”) in the
decision to punish Plaintiffs for the sit-in and to ultimately dismiss Plaintiffs from the
team. Defendants suggest dismissal against the Individual Defendants is appropriate
because in section 1983 actions, “each government official, his or her title
notwithstanding, is only liable for his or her own misconduct.” Dkt. 25-1, at 11 (quoting
Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011)). Defendants contend absent proof
that “Superintendent Smyer, Assistant Superintendent Miller and Principal Power each
retaliated against the Plaintiffs for exercising their First Amendment rights, the Individual
Defendants cannot be liable.” Id.
Plaintiffs’ Complaint named all three Individual Defendants in both Claim One
and Claim Two. During oral argument, Plaintiffs’ counsel conceded Superintendent
Smyer and Assistant Superintendent Miller were not involved in the decision to punish
Plaintiffs for the sit-in, and clarified that Plaintiffs are no longer pursuing Smyer and
Miller with respect to Claim One. Superintendent Smyer and Assistant Superintendent
Miller are accordingly dismissed from this action with respect to Claim One, and
Principal Power is the only remaining Individual Defendant Plaintiffs allege retaliated
against them for engaging in the sit-in.
Summary judgment in favor of Principal Power on Claim One is inappropriate.
Although, as Defendants note, Principal Power was not at school the day of the sit-in, the
Complaint alleges Principal Power gave each plaintiff the written notice of their oneweek suspension, and, on October 5, 2017, his office gave each plaintiff a list of
additional punishments to which Plaintiffs and their parents were required to agree to be
MEMORANDUM DECISION AND ORDER - 29

let back on the cheerleading team. Dkt. 1, at ¶¶ 50-51. Principal Power testified in his
deposition that he drafted the October 5, 2017, suspension letter with the list of stipulated
requirements for Plaintiffs to re-join the cheerleading team. Dkt. 29-4, Ex. 4, at 40:2-14;
47:1-7. Principal Power confirmed that he agreed with each of the stipulations included in
the October 5, 2017, letter. Id. at 40:23-42:18. As Plaintiffs note, Principal Power “not
only conveyed the notice to add the punishment set forth in the October 5th Stipulations,
he individually participated in imposing those punishments on Plaintiffs.” Dkt. 29, at 1314 (citing Dkt. 29-4, Ex. 4, at 39:15-46:9). Such facts illustrate Principal Power’s
personal participation in Defendants’ purported First Amendment retaliation against
Plaintiffs for the sit-in. Thus, the Court denies summary judgment in favor of Principal
Power on Claim One.
With respect to Claim Two, Plaintiffs have established the Individual Defendants
personally participated in dismissing Plaintiffs from the cheerleading team in violation of
Plaintiffs’ First Amendment rights. Plaintiffs alleged in their Complaint that
Superintendent Smyer, Assistant Superintendent Miller and Principal Power “in their
individual capacity and as the final decision-making authority on behalf of BHS and the
School District” made the decision to dismiss Plaintiffs from the cheer team after
receiving Plaintiffs’ reservation of rights. Dkt. 1, ¶ 71. The undisputed facts support this
allegation.
Superintendent Smyer testified that he wrote the letter dismissing Plaintiffs from
the team, clarified that he decided Plaintiffs should be dismissed from the cheer team
after receiving their reservation of rights, and stated the school district’s policy gave him
MEMORANDUM DECISION AND ORDER - 30

the authority to make this decision. Dkt. 26-7, Ex. 3, at 11:3-13; 51:11-21; 54:9-22.
Superintendent Smyer also noted he made the decision to dismiss Plaintiffs after meeting
with Assistant Superintendent Miller and Principal Power, as well as with other members
of the administration and school board. Id. at 13:22-14:16. Although the school district’s
counsel assisted Superintendent Smyer with some of the language in the dismissal letter,
Smyer confirmed he was responsible for writing the letter. Id. at 15:1-5.
Assistant Superintendent Miller testified that she participated in the October 6,
2017, meeting when the decision to dismiss Plaintiffs was made, that her signature was
on the October 7, 2017, letter dismissing Plaintiffs, and that she was one of the decisionmakers in deciding to kick the girls off of the cheerleading team. Dkt. 26-12, Ex. 7, at
17:1-15; 18:10-15. Principal Power testified he recommended the girls who had
submitted the reservation letter “needed to be dismissed from the squad.” Dkt. 26-10, Ex.
5, at 28:11-20. He noted he had “a lot of discussions” with Superintendent Smyer
regarding the decision to kick the girls off the team. Id. at 26:5-12. Principal Power also
confirmed he supported Superintendent Smyer’s decision to terminate Plaintiffs’ team
membership because “essentially they didn’t agree to the stipulations laid out on October
5th.” Id. at 84:7-14.
Plaintiffs have alleged and proved Superintendent Smyer, Assistant
Superintendent Miller, and Principal Power together made the decision to dismiss
Plaintiffs from the cheer team for expressing their desire to continue to engage in the
district’s grievance process. Because such expression was protected under the First
Amendment and was the substantial and motivating factor for Plaintiffs’ dismissal, and
MEMORANDUM DECISION AND ORDER - 31

because dismissal from the cheer team would chill a person of ordinary firmness from
engaging in protected activity, Plaintiffs have established that the Individual Defendants,
through their own individual actions, violated the Constitution. Ashcroft v. Iqbal, 556
U.S. 662, 676 (2009).
e. Qualified Immunity
Finally, Defendants seek summary dismissal of Plaintiffs’ claims against the
Individual Defendants on the basis of qualified immunity. Qualified immunity shields
public officials sued in their individual capacity from monetary damages, unless their
conduct violates clearly established law of which a reasonable person would have known.
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); Anderson v. Creighton, 483 U.S. 635,
638 (1987) (officials should be shielded from damages “as long as their actions could
reasonably have been thought consistent with the rights they are alleged to have
violated.”)
Determining whether officials are protected by qualified immunity involves two
inquiries: (1) whether the official’s conduct violated a constitutional right; and (2) if so,
whether the right was clearly established at the time of the constitutional violation.
O’Brien, 818 F.3d at 936. Given the disputed facts regarding whether the sit-in was
protected under the First Amendment, the Court cannot make a qualified immunity
determination with respect to Claim One on summary judgment. However, for the
reasons discussed above, Plaintiffs have shown Defendants retaliated against them in
violation of their First Amendment rights and thus meet the first prong of the qualified
immunity analysis with respect to Claim Two.
MEMORANDUM DECISION AND ORDER - 32

The second prong of the qualified immunity analysis requires the Court to
determine whether the right, defined according to the actual facts of the case, was clearly
established at the time of the constitutional violation. Skoog v. Cty. of Clackamas, 469
F.3d 1221, 1235 (9th Cir. 2006). “A right is ‘clearly established’ for purposes of qualified
immunity when its contours are sufficiently clear that reasonable officials would know
their actions violated that right.” J.C. ex rel. RC, 711 F.Supp.2d at 1124 (quoting
Layshock v. Hermitage Sch. Dist., 496 F. Supp. 2d 587, 603 (W.D. Pa. 2007)). To
determine whether a law is clearly established, the court “survey[s] the legal landscape”
and examines those cases that are “most like” the present case. Id. (quoting Trevino v.
Gates, 99 F.3d 911, 916-17 (9th Cir. 1996)). In the Ninth Circuit, “specific binding
precedent is not required to show that a right is clearly established for purposes of the
qualified immunity analysis.” Id. at 1125 (internal citations omitted). “In the absence of
binding precedent, district courts should look to ‘all available decisional law including
the decisions of state courts, other circuits, and district courts to determine whether the
right was clearly established.’” Id. (quoting Maraziti v. First Interstate Bank of Calif.,
953 F.2d 520, 525 (9th Cir. 1992)).
Defendants suggest “there is no controlling authority indicating that when a
student disrupts a cheerleading practice/class, and then shows a continued threat of
disruption, that her First Amendment right will be violated when she is dismissed from
the cheerleading team.” Dkt. 25-1, at 18. In framing the inquiry, Defendants misstate the
facts since Defendants have not claimed or established Plaintiffs showed a continued
threat of disruption by reserving their rights to engage in the grievance process. Instead,
MEMORANDUM DECISION AND ORDER - 33

Defendants admit Plaintiffs’ reservation of rights was constitutionally protected
activity.10 Dkt. 25-1, at 6. Nor is such an extreme level of specificity required in order to
defeat a qualified immunity defense. Where the specific factual scenario of a given case
has not been previously litigated and decided, “the court may nonetheless find clearly
established law if ‘a general constitutional rule already identified in the decisional law
[applies] with obvious clarity to the specific conduct in question.’” J.C. ex rel. RC, 711 F.
Supp. 2d at 1125 (brackets in original) (quoting United States v. Lanier, 520 U.S. 259,
271 (1997)).
At oral argument, Defendants relied heavily on Lowery v. Euverard, 497 F.3d 584,
587 (6th Cir. 2007) to argue the Individual Defendants’ actions were objectively
reasonable because they dismissed Plaintiffs based on a perceived threat to team unity
and morale. However, in Lowery, the Sixth Circuit held the speech at issue was not
constitutionally protected. Plaintiff football players in Lowery signed a petition stating
they hated their football coach and didn’t want to play for him. 497 F.3d at 586. The
Court held it was reasonable for defendant school officials to forecast the petition would
substantially disrupt the team. Id. at 593. Because the petition was not protected by
Tinker, the Lowery Court held defendants did not violate plaintiffs’ First Amendment

10
As Defendants highlight with respect to the sit-in, if the reservation of rights reasonably led Defendants
to foresee substantial disruption of school activities, the reservation would not be constitutionally
protected under Tinker. 393 U.S. at 513. Defendants do not argue Plaintiffs’ reservation of rights actually
or potentially disrupted the educational process. Defendants do suggest Plaintiffs’ reservation of rights
indicated “further conflict that could reasonably be concluded to lead to continued disruption of team
unity.” Dkt. 25-1, at 16. The Court has rejected this contention, as, absent any other conduct by Plaintiffs,
the message Plaintiffs’ reservation of rights purportedly expressed cannot provide a legitimate basis for
dismissing Plaintiffs from the cheerleading team independent from the constitutionally protected
reservation of rights. See supra, section IV.b. 

MEMORANDUM DECISION AND ORDER - 34

rights by removing them from the football team. Id. at 596. In light of such holding, the
Lowery Court did not need to address the second prong of the qualified immunity
analysis.
Although the cases are factually similar, the qualified immunity inquiry is
distinguishable because the Court and the parties agree Plaintiffs’ reservation of rights
was constitutionally protected. Because, as discussed above, Plaintiffs’ dismissal was
substantially motivated by such constitutionally protected expression, Defendants
retaliated against Plaintiffs in violation of the First Amendment rights. With the first
prong of the qualified immunity analysis met, the Court must consider whether a
reasonable school official in the Individual Defendants’ shoes would have known that
taking disciplinary action against Plaintiffs in retaliation for reserving their grievance
rights violated the First Amendment.
“Retaliation for engaging in protected speech has long been prohibited by the First
Amendment.” O’Brien, 818 F.3d at 936 (finding a reasonable official in school
administrators’ shoes would have known that taking disciplinary action against a student,
when such action was substantially motivated by student’s expression of his views,
violated his First Amendment rights). This principle has also been clearly applied in the
school sports setting. Pinard, 467 F.3d at 770; see also Seamons v. Snow, 206 F.3d 1021,
1030-31 (10th Cir. 2000) (football coach was not entitled to qualified immunity because
“coaches may not penalize players for engaging in peaceful speech activity which does
not create substantial disorder, materially disrupt class work, or invade the rights of
others”); Boyd v. Board of Directors of McGhee Sch. Dist., 612 F. Supp. 86, 93 (E.D.
MEMORANDUM DECISION AND ORDER - 35

Ark. 1985) (high school football coach held liable to black football players for depriving
them of the First Amendment rights by suspending them from football team for
remainder of season after players walked out of pep rally and boycotted scheduled game
in protest of racial inequality); Williams v. Eaton, 443 F.2d 422 (10th Cir. 1971) (finding
plaintiff football players stated claim for First Amendment retaliation against football
coach who dismissed them from the football team for wearing armbands in peaceful and
symbolic protest of racial discrimination).
Where, as here, Defendants do not establish, or even suggest, that Plaintiffs’
reservation of rights created substantial disorder, materially disrupted class work, or
invaded the rights of others, a reasonable school official in the Individual Defendants’
shoes would have known that taking disciplinary action against Plaintiffs for reserving
their rights violated the First Amendment.11 As such, the Individual Defendants are not
entitled to qualified immunity on Claim Two.

11
In their Motion for Summary Judgment, Defendants contend Plaintiffs must prove the Individual
Defendants were aware their actions violated the law, and argue the Individual Defendants did not dismiss
Plaintiffs from the cheerleading team with the intention of violating Plaintiffs’ First Amendment rights.
Dkt. 25-1, at 15-18. The Individual Defendants’ subjective intentions in dismissing Plaintiffs from the
team are irrelevant. Anderson v. Creighton, 483 U.S. 635, 641 (1987). While the qualified immunity
analysis used to have both an objective and subjective component, Wood v. Strickland, 420 U.S. 308, 322
(1975), the Supreme Court abolished the subjective prong in Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982). In Harlow, the Court observed the subjective element of the qualified immunity standard created
disputed questions of fact concerning the defendant’s good faith that could not be resolved on summary
judgment. Id. at 816. In addition to undermining the general policies supporting the creation of the
qualified immunity defense, inquiry into a public official’s subjective motives could require “broadranging discovery” that was “peculiarly disruptive of effective government.” Id. at 817. Thus, after
Harlow, “no other ‘circumstances’ are relevant to the issue of qualified immunity” except the objective
reasonableness of the defendant’s conduct as measured by reference to clearly established law. Davis v.
Scherer, 468 U.S. 183, 190 (1984) (quoting Harlow, 457 U.S. at 818).

MEMORANDUM DECISION AND ORDER - 36

VI. ORDER
For the foregoing reasons, IT IS HEREBY ORDERED:
1. Defendants’ Motion for Summary Judgment (Dkt. 25) is DENIED;
2. Pursuant to Plaintiffs’ counsel’s stipulation during oral argument, Plaintiffs no
longer seek relief against Superintendent Smyer and Assistant Superintendent
Miller for Claim One. Superintendent Smyer and Assistant Superintendent
Miller are accordingly dismissed with respect to Claim One;
3. Plaintiffs’ Motion for Partial Summary Judgment (Dkt. 26) is GRANTED.
Although Plaintiffs are entitled to judgment finding Defendants liable for
Claim Two, the issue of Plaintiffs’ damages with respect to Claim Two has
been neither argued nor decided and is reserved for trial;
4. By no later than August 5, 2019, the parties will need to submit their
unavailable trial dates starting in January, 2020. Please also state how many
days you believe it will take to try this matter. The Court will then enter a
separate Trial Order that sets forth the trial date and various other pretrial
deadlines.

DATED: July 26, 2019

_________________________
David C. Nye
Chief U.S. District Court Judge

MEMORANDUM DECISION AND ORDER - 37