R.S. et al v. Minnewaska Area School District No. 2149 et al

Filing 28

MEMORANDUM OF LAW & ORDER. IT IS HEREBY ORDERED: 1) The school defendants' Motion for Dismissal 13 is GRANTED IN PART and DENIED IN PART as follows: Counts I, II, IV, V, VI, and VIII REMAIN, Count III is DISMISSED without prejudice, and Count VII is DISMISSED with prejudice; 2) The school defendants' Motion to File Supplemental Memorandum of Law 22 is GRANTED, the Proposed Supplemental Memorandum is deemed filed, and the motion to dismiss on mootness grounds is DEN IED without prejudice; 3) The caption of the case is amended such that the plaintiffs in this case are identified as "R.S., a minor, by and through her mother, S.S." (Written Opinion). Signed by Chief Judge Michael J. Davis on 9/6/12. (GRR)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

R.S., a minor, by and through her mother,
S.S., individually and on behalf of her daughter,
Plaintiffs,
v.

Memorandum of Law & Order
Civ. No. 12-588 (MJD/LIB)

MINNEWASKA AREA SCHOOL DISTRICT
NO. 2149; GREGORY OHL, Minnewaska School
District Superintendent, in his individual and official
capacities; MARY WALSH, Minnewaska Middle
School Counselor, in her individual and official capacities;
JANE DOE, in her individual and official capacities;
COUNTY OF POPE; PAUL GERDE, Pope County
Board Chair, in his official capacity; TIMOTHY P.
RILEY, Pope County Sheriff, in his individual and
official capacities; GILBERT MITCHELL, Pope County
Deputy Sheriff, in his individual and official capacities,
Defendants.

Wallace G. Hilke and Bryan R. Freeman, Lindquist & Vennum PLLP, and Teresa
Nelson, American Civil Liberties Union of Minnesota, Counsel for Plaintiffs.
Timothy J. O’Connor and Teresa E. Knoedler, Lind, Jensen, Sullivan & Peterson,
PA, Counsel for Defendants Minnewaska Area School District No. 2149, Gregory
Ohl, Mary Walsh, and Jane Doe.

1

I.

Introduction
This matter is before the Court on a motion to dismiss [Docket No. 13] and

a request to file a supplemental brief [Docket No. 22] by Defendants Minnewaska
Area School District No. 2149, Gregory Ohl, Mary Walsh, and Jane Doe (“school
defendants”). The Court heard oral argument on July 13, 2012.
II.

Summary of Case
This case comes before the Court at an early stage, when the Court has

heard only one side of the story—that told in Plaintiffs’ complaint. At this stage,
the Court must consider those facts, recited below, to be true. As this case
proceeds, facts may be developed which change the Court’s conclusions.
Plaintiffs’ complaint alleges a school official punished R.S.—a twelve year
old student at the Minnewaska Area Middle School—for two postings on her
Facebook wall. One posting expressed her dislike of an adult school employee
and another expressed salty curiosity about who had “told on her.” Plaintiffs
argue that the punishment of her out-of-school wall postings violated her First
Amendment right to free speech. Plaintiffs further allege that school officials
forced R.S. to involuntarily surrender her Facebook and email passwords upon
their learning that R.S. and one of her classmates had an out-of-school sex-related

2

conversation. They argue that the officials’ subsequent search of R.S.’s private
Facebook account constituted an unlawful search under the Fourth Amendment.
Plaintiffs also assert a number of other claims under federal and state law based
on the same alleged conduct.
The defendants argue the actions alleged by Plaintiffs did not violate the
Constitution. They further contend that they are entitled to immunity because,
even if a constitutional violation did occur, R.S.’s constitutional rights were not
“clearly established” at the time of the challenged conduct.
The Court here concludes only that, if true, the facts set out in Plaintiffs’
complaint amount to violations of R.S.’s constitutional rights and that those
rights were clearly established at the time of the alleged conduct. The Court also
concludes that certain claims advanced by the Plaintiffs—civil conspiracy to
deprive R.S. of her civil rights and intentional infliction of emotional distress—
have not been sufficiently pled. The Court therefore dismisses those claims. At
this early stage, the Court passes no judgment on whether the defendants
committed the acts alleged by Plaintiffs or whether the defendants will
ultimately be found liable for such acts. The school defendants will be free to
raise their immunity claims and other defenses after discovery in this case.

3

III.

Background
At this stage, the Court considers the following facts—set out in Plaintiffs’

complaint—as true:
A.

Punishment of R.S. for Her Facebook Wall Posts

Plaintiff R.S. is the daughter of Plaintiff S.S. At the time of the facts alleged
in the complaint, R.S. was a twelve year old, sixth grade student at Minnewaska
Area Middle School in the Minneswaska Area School District in Glenwood,
Minnesota (“District”). (Compl. ¶¶ 4, 17.) Sometime in early 2011, R.S. posted a
message to the “wall” of her account on the internet website
“www.facebook.com” (“Facebook”) about a particular adult hall monitor at
school (“Kathy”). (Id. ¶ 19.) She wrote something to the effect of: “[I hate] a
Kathy person at school because [Kathy] was mean to me.” (Id.) R.S.’s posting on
her Facebook wall was intended to be accessible by her Facebook “friends,” but
not by members of the general public. (Id.) Facebook’s website is inaccessible
from school computers, and R.S. posted the message from home, outside of
school hours. (Id. ¶ 20.)
Apparently, one of R.S.’s Facebook “friends”—one of the people
authorized by R.S. to view her wall postings—viewed and recorded the message

4

about Kathy, as that message made its way to school Principal Pat Falk. (Id. ¶
21.) Principal Falk called R.S. to his office and told R.S. that he considered the
message about Kathy to be impermissible bullying. (Id. ¶ 22-23.) Principal Falk
required R.S. to apologize to the hall monitor and gave her a detention, for
behavior described in disciplinary records as having been “rude/discourteous”
and “other.” (Id. at 23.)
R.S. was disciplined once more when she published a second message on
her Facebook wall which stated: “I want to know who the f%$# [sic] told on
me.” (Id. ¶ 25.) School disciplinary records indicate that R.S. was punished for
“insubordination” and “dangerous, harmful, and nuisance substances and
articles.” (Id.) In response to this message, R.S. was given a one-day in school
suspension and was also prohibited from attending a class ski trip. (Id.)
B.

Search of R.S.’s Private Internet Accounts

R.S. further alleges that on or around March 10, 2011, school officials
received information from the guardian of a male student who complained that
the boy was communicating with R.S. about sexual topics via the internet. (Id. ¶
27.) A school official called S.S. and told S.S. that the boy had admitted that he
initiated the online conversation about sex. (Id. 28.) On the same day, a school

5

counselor—Defendant Mary Walsh—called R.S. out of class to ask her about the
alleged conversations. R.S. told Counselor Walsh that she had been talking
about “naughty things” with her classmate via the internet, off school grounds,
and outside school hours. (Id. ¶ 29.)
Counselor Walsh allowed R.S. to return to class, but R.S. was called out of
class a second time on the same day. (Id. ¶ 30.) In the second instance, R.S. was
taken to a room in the administrative office, which apparently was the office of
Defendant Deputy Sheriff Gilbert Mitchell, who was assigned to the school. In
the room were Counselor Walsh, Deputy Mitchell, and an employee unknown to
R.S. named in the complaint as Jane Doe. (Id.) Deputy Mitchell wore his police
uniform and a taser. (Id.) The three officials asked R.S. about her conversations
with her male classmate, and she again stated that she had been talking with him
about naughty things. (Id.)
R.S. alleges that the school officials then demanded that she provide them
with her email and Facebook usernames and passwords. (Id. ¶ 32.) When R.S.
hesitated and stated that she did not remember her passwords, the officials
called her a liar and threatened her with detention if she did not give them her
passwords. (Id. ¶ 33.) Feeling threatened and without a choice, R.S. eventually

6

relented and gave the school officials the information that they had requested.
(Id.) The school officials logged into R.S.’s Facebook account, viewing her public
postings along with her private messages. (Id. ¶ 35.) While R.S. is certain the
officials searched her Facebook account, she is not sure if they also searched her
private email account because she could not see the computer screen. (Id.) The
officials spent approximately fifteen minutes searching through R.S.’s
communications, both public and private, apparently in an effort to find R.S.’s
“naughty” discussion with her classmate. (Id. ¶ 38.)
The officials did not limit their search to R.S.’s public messages. They
expressed surprise that R.S. had used profanity in some of her Facebook
communications. (Id. ¶ 39.) They also allegedly viewed and commented on the
fact that R.S. had taken “one or more online Facebook ‘fun and funny’ sex
quizzes and had posted the result of some of those quizzes.” (Id.) All three of
the officials—Counselor Walsh, Deputy Mitchell, and the unknown official—
examined R.S.’s private correspondence. (Id. ¶ 40.) At no point did they ask R.S.
for permission to search through her private correspondence. R.S. alleges that
she was “intimidated, frightened, humiliated, and sobbing while she was
detained.” (Id. ¶ 42.)

7

R.S. was not formally disciplined. After the search, Counselor Walsh
called S.S. and left her a voicemail, relaying to her the events of the day,
including the search of R.S.’s Facebook account. (Id. ¶ 45.) When she returned
home from school, R.S. cried and felt “depressed, angry, scared, and
embarrassed.” (Id. ¶ 46.) She feared that school officials would again access her
Facebook account or punish her. (Id.) She did not attend school for two days
following the incident and alleges that she fell behind in her school work. (Id. ¶
47.) Upon her return to school, R.S. felt “less safe” and had “lost her sense of
security.” (Id. ¶ 48.) R.S. alleges that officials at the school have required other
students to similarly disclose their private information to allow school officials to
search through their private communications under circumstances analogous to
those experienced by R.S. (Id. ¶ 49.)
Plaintiffs’ complaint sets out eight counts: Violation of First Amendment
(Count I); Violation of Fourth Amendment (Count II); Conspiracy to Deprive
Rights and Failure to Prevent Violation of Rights (Count III); Violation of Right to
Free Speech under Minnesota Constitution (Count IV); Violation of Right to Be
Free from Unreasonable Searches and Seizures under Minnesota Constitution
(Count V); Invasion of Privacy under Minnesota Common Law (Count VI);

8

Intentional Infliction of Emotional Distress under Minnesota Common Law
(Count VII); and Declaratory Judgment (Count VIII).
The school defendants have moved for dismissal of claims against the
District, arguing that Plaintiffs have not sufficiently pled facts to show that any
of the challenged behavior was done in accordance with the District’s established
custom or policy. They further argue that the claims against individual school
officials in their official capacity should be dismissed because they are
duplicative with the claims against the District. They next argue that the claims
against school officials in their individual capacities must be dismissed because
they are entitled to qualified immunity. They also argue that claims against
District Superintendent Gregory Ohl should be dismissed because Plaintiffs have
not sufficiently pled that he failed to properly supervise or train District
employees. The school defendants further argue that Plaintiffs have not
sufficiently pled their civil conspiracy claim. The school defendants also ask for
dismissal of all claims brought by S.S. in her individual capacity because she has
no direct claims against the school defendants. They finally argue that Plaintiffs’
state law claims should be dismissed and that the declaratory judgment count
should be dismissed as duplicative.

9

The school defendants have recently moved to supplement the record and
for dismissal of claims for injunctive relief based on their discovery that R.S. no
longer attends school in the District.
IV.

Discussion
A.

Standard

Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a party may
move the Court to dismiss a claim if, on the pleadings, a party has failed to state
a claim upon which relief may be granted. In reviewing a motion to dismiss, the
Court takes all facts alleged in the complaint to be true. Zutz v. Nelson, 601 F.3d
842, 848 (8th Cir. 2010).
To survive a motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to state a claim to relief that is
plausible on its face. Thus, although a complaint need not include
detailed factual allegations, a plaintiff’s obligation to provide the
grounds of his entitlement to relief requires more than labels and
conclusions, and a formulaic recitation of the elements of a cause of
action will not do.
Id. (citations omitted).
In deciding a motion to dismiss, the Court considers “the complaint,
matters of public record, orders, materials embraced by the complaint, and
exhibits attached to the complaint.” PureChoice, Inc. v. Macke, Civil No. 07-

10

1290, 2007 WL 2023568, at *5 (D. Minn. July 10, 2007) (citing Porous Media Corp.
v. Pall Corp., 186 F.3d 1077, 1079 (8th Cir. 1999)).
B.

Monell Claims against the District

The school defendants first argue that all claims against the District itself
must be dismissed because Plaintiffs have not pled facts sufficient to show that
challenged actions were taken in accordance with District policy or custom.
1. Monell Standard
“[A] municipality cannot be held liable solely because it employs a
tortfeasor—or, in other words, a municipality cannot be held liable under [42
U.S.C.] § 1983 on a respondeat superior theory.” Monell v. Dep’t of Soc. Servs. of
City of N.Y., 436 U.S. 658, 691 (1978). Such an entity may be liable under § 1983,
however,
if the governmental body itself “subjects” a person to a deprivation
of rights or “causes” a person “to be subjected” to such deprivation.
But, under § 1983, local governments are responsible only for their
own illegal acts.
Connick v. Thompson, 131 S. Ct. 1350, 1359 (2011) (citations omitted).
Plaintiffs who seek to impose liability on local governments under §
1983 must prove that action pursuant to official municipal policy
caused their injury. Official municipal policy includes the decisions
of a government’s lawmakers, the acts of its policymaking officials,

11

and practices so persistent and widespread as to practically have the
force of law.
Id. (citations omitted).
[A] municipality may be held liable for the unconstitutional acts of
its officials or employees when those acts implement or execute an
unconstitutional municipal policy or custom. For a municipality to
be liable, a plaintiff must prove that a municipal policy or custom
was the moving force [behind] the constitutional violation.
Mettler v. Whitledge, 165 F.3d 1197, 1204 (8th Cir. 1999) (citations omitted).
“[A] ‘policy’ is an official policy, a deliberate choice of a guiding principle
or procedure made by the municipal official who has final authority regarding
such matters.” Id. (citation omitted). Proof of a custom requires:
(1) The existence of a continuing, widespread, persistent pattern of
unconstitutional misconduct by the governmental entity’s
employees;
(2) Deliberate indifference to or tacit authorization of such conduct
by the governmental entity’s policymaking officials after notice to
the officials of that misconduct; and
(3) Th[e] plaintiff[’s] injur[y] by acts pursuant to the governmental
entity's custom, i.e., [proof] that the custom was the moving force
behind the constitutional violation.
Id. (citation omitted).

12

2. Unconstitutional Policy or Custom
The school defendants argue that Plaintiffs have not satisfied the Monell
standard because they have not alleged that any written or established District
policy was consulted before R.S. was punished for her Facebook postings or
before school officials read her private Facebook communications. Plaintiffs do
not dispute the lack of a written policy regarding the District’s regulation of
online communications. Rather, they argue that their complaint alleges facts
sufficient to establish a policy and custom of punishing students for out-ofschool speech and also for school officials searching students’ private online
communications.
a. Policy
Plaintiffs argue that Principal Falk’s decisions to punish R.S. for her out-ofschool online communications twice is evidence of his policy making.
“Although rare, a public official’s single incident of unconstitutional activity can
establish the requisite policy if the decision is ‘taken by the highest officials
responsible for setting policy in that area of the government’s business.’”
Rynders v. Williams, 650 F.3d 1188, 1195 (8th Cir. 2011) (citations omitted). “In
this scenario, municipal liability attaches only where the decisionmaker

13

possesses final authority to establish municipal policy with respect to the action
ordered.” Id.
The school defendants argue that none of the individuals named in the
complaint have “final authority” to set District policy. In their view, only the
publicly elected School Board has that authority. In this view, not even the
District Superintendent could be said to ever set policy. The Supreme Court has
distinguished between “final policymaking authority” and “final decisionmaking
authority.” See Davison v. City of Minneapolis, 490 F.3d 648, 660 (8th Cir. 2007).
“The fact that a particular official—even a policymaking official—has discretion
in the exercise of particular functions does not, without more, give rise to
municipal liability based on an exercise of that discretion.” Pembaur v. City of
Cincinnati, 475 U.S. 469, 481-82 (1986). The question here is whether Principal
Falk’s decisions to give R.S. a detention, an in-school suspension, and to prevent
her from attending a school ski-trip constituted “policymaking” or merely
“decisionmaking” pursuant to a policy set by higher authorities.
According to publicly available documents submitted by the parties in this
case, “[t]he school principal is given the responsibility and authority to formulate
building rules and regulations necessary to enforce [the Minnewaska Area

14

School District’s student discipline] policy, subject to final school board
approval.” See “Student Discipline,” Minnewaska School Board Policies § 506,
available at http://www.minnewaska.k12.mn.us/District/SBPM/506.mht. It
would thus appear at this early stage that Principal Falk lacked final policymaking authority. The Court need not finally resolve this issue because the
Court concludes that Plaintiffs have alleged facts sufficient to show at least
customs, if not policies, of the challenged behavior by the school defendants.
b. Custom
Plaintiffs have sufficiently alleged a custom of punishing and searching
private out-of-school online communications by the school defendants. In a
short span of time, R.S. was twice punished for her out-of-school statements and
subjected to a search of her private online communications by school officials.
The complaint further alleges that “on the basis of communications with other
students and families, officials at Minnewaska Area Middle School have
compelled other students to disclose their private information and have accessed
students’ on-line accounts on multiple occasions, under circumstances similar to
those alleged [in the complaint].” (Compl. ¶ 49.)

15

The facts alleged in the complaint are more than bare legal conclusions. At
the motion to dismiss stage, the Court must take the allegations in the complaint
to be true. While the school defendants correctly point out that “[l]iability for an
unconstitutional custom or usage . . . cannot arise from a single act,” McGautha
v. Jackson Cnty., Mo., Collections Dep’t, 36 F.3d 53, 57 (8th Cir. 1994), Plaintiffs
have alleged more than a single act here. The allegation that multiple students
have been punished for off-school online activities and have experienced similar
searches of their private communications supports a finding that the school
officials implicated here were motivated by, and conducting themselves in
accordance with, a “continuing, widespread, persistent pattern of
unconstitutional misconduct.” Mettler, 165 F.3d at 1204.
For these reasons, the Court concludes that Plaintiffs’ complaint satisfies
the standard set out in Monell. The Court will therefore deny the school
defendants’ motion to dismiss on that basis.
C.

Qualified Immunity
1. Standard

Under the qualified immunity doctrine, government officials
performing discretionary functions generally are shielded from
liability for civil damages insofar as their conduct does not violate
clearly established statutory or constitutional rights of which a
16

reasonable person would have known. Officials are not liable for
incorrect decisions made in gray areas of the law.
Burke v. Sullivan, 677 F.3d 367, 370-71 (8th Cir. 2012) (citations omitted).
To defeat a defense of qualified immunity, a plaintiff must show: (1)
the facts, viewed in the light most favorable to the plaintiff,
demonstrate the deprivation of a constitutional or statutory right;
and (2) the right was clearly established at the time of the
deprivation.
Id. (citations omitted). “For the purposes of step two, ‘clearly established’ means
the contours of the right must be sufficiently clear that a reasonable official
would understand that what he is doing violates that right.” Jones v. McNeese,
675 F.3d 1158, 1161 (8th Cir. 2012) (citation omitted). Although the clearly
established test does “not require a case directly on point, . . . existing precedent
must have placed the statutory or constitutional question beyond debate.”
Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2083 (2011) (citations omitted).
2. Alleged First Amendment Violation
a. Constitutional Violation
For more than forty years, the United States courts have recognized that
students do not check their First Amendment rights at the schoolhouse door:
In our system, state-operated schools may not be enclaves of
totalitarianism. School officials do not possess absolute authority
over their students. Students in school as well as out of school are
‘persons’ under our Constitution. They are possessed of
17

fundamental rights which the State must respect, just as they
themselves must respect their obligations to the State. In our
system, students may not be regarded as closed-circuit recipients of
only that which the State chooses to communicate. They may not be
confined to the expression of those sentiments that are officially
approved. In the absence of a specific showing of constitutionally
valid reasons to regulate their speech, students are entitled to
freedom of expression of their views.
Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 511 (1969). In Tinker,
the Supreme Court concluded that a school district could not punish students for
wearing black arm bands—symbolizing their objections to the Vietnam War—at
school, because the “the record [did] not demonstrate any facts which might
reasonably have led school authorities to forecast substantial disruption of or
material interference with school activities, and no disturbances or disorders on
the school premises in fact occurred.” Id. at 514. Under Tinker and its progeny,
student speech may be regulated only in limited circumstances. As the Supreme
Court explained in 2007, “student expression may not be suppressed unless
school officials reasonably conclude that it will materially and substantially
disrupt the work and discipline of the school.” Morse v. Frederick, 551 U.S. 393,
403 (2007) (citation omitted). Out-of-school speech by a student is subject to even
less stringent school regulation than in-school speech. See id. at 405 (explaining,

18

for example, that a lewd speech may be appropriately regulated if delivered
within school, but not if delivered outside of school).
The movement of student speech to the internet poses some new
challenges, but that transition has not abrogated the clearly established general
principles which have governed schools for decades. A recent case decided by
the Eight Circuit, D.J.M. v. Hannibal Public School District # 60, 647 F.3d 754 (8th
Cir. 2011), is instructive: There the court examined a case in which a student
engaged in an online instant message conversation with a classmate outside of
school. The student had indicated, among other things, that he was inclined to
shoot particular students and groups of students at his school. Id. at 758. The
contents of the conversation reached school officials, who then disciplined the
student for his threatening speech. Id. at 759. The Court concluded that the
student’s First Amendment rights had not been violated, basing its conclusion on
two established constitutional doctrines.
First, the Court applied the principle that true threats of physical violence
are generally not protected under the First Amendment from government
proscription. Id. at 761; see Doe v. Pulaski Cnty. Special Sch. Dist., 306 F.3d 616,
622 (8th Cir. 2002) (en banc) (citing Watts v. United States, 394 U.S. 705, 707

19

(1969) (per curiam)). A “true threat” is a “statement that a reasonable recipient
would have interpreted as a serious expression of an intent to harm or cause
injury to another.” Doe, 306 F.3d at 624. “The speaker must in addition have
intended to communicate his statement to another.” D.J.M., 647 F.3d at 762. In
D.J.M. the court concluded that the plaintiff’s statements, which indicated that he
had access to weapons, an intent “to bring a gun to school to shoot everyone he
hates and then himself,” and a “desire to kill at least five classmates” were
sufficiently serious to be considered true threats, ineligible for First Amendment
protection. Id. at 762-63.
Second, the court concluded that the student’s threats implicated Tinker’s
substantial and material disruption doctrine, explaining that, while “[s]chool
officials cannot constitutionally reach out to discover, monitor, or punish any
type of out of school speech,” the calculus may change where serious and violent
threats which substantially disrupt the school environment are concerned.
D.J.M., 647 F.3d at 765-66; accord Wisniewski v. Bd. of Educ. of Weedsport Cent.
Sch. Dist., 494 F.3d 34, 36 (2d Cir. 2007) (applying Tinker standard where
regulated violent speech “pose[d] a reasonably foreseeable risk that [it] would
come to the attention of school authorities” and also caused a material and

20

substantial disruption to the “work and discipline of the school”). In D.J.M., the
court noted that the plaintiff’s online speech had, in fact, caused a substantial
disruption at the school, prompting phone calls from multiple students and
parents who felt threatened by “a rumored ‘hit list.’” D.J.M., 647 F.3d at 766.
The law on out-of-school statements by students can thus be summarized
as follows: Such statements are protected under the First Amendment and not
punishable by school authorities unless they are true threats or are reasonably
calculated to reach the school environment and are so egregious as to pose a
serious safety risk or other substantial disruption in that environment. R.S.’s
Facebook wall postings were not true threats or threats of any kind. While her
statements may have been reasonably calculated to reach a school audience, that
possible fact is not sufficient to justify her punishment. The school defendants
must also show that the statements posed a substantial disruptive effect.
The content of R.S.’s wall postings are a far cry from the statements made
by the students in cases in which courts have approved of school intervention.
The Court notes that the Supreme Court reasoned in Tinker that black arm bands
worn in opposition to the Vietnam War were not likely to cause the requisite
substantial disruption to justify punishment. 393 U.S. at 514. Based on the facts

21

alleged in Plaintiffs’ complaint, a reasonable reader could not consider her
statements likely to cause a substantial disruption to the school environment.
R.S. stated that she “hated” a particular adult school employee because that
employee was mean to her, and she then expressed salty curiosity about who
had “told on her.” Such statements were not likely to cause a substantial
disruption to the school environment.
b. Right Clearly Established
The school defendants argue that they are entitled to qualified immunity
because the protected status of out-of-school online speech was not sufficiently
clear at the time of the alleged violation. They point to the Eighth Circuit’s
decision in D.J.M. as evidence that the law in this area is unclear. See D.J.M., 647
F.3d at 767 (noting that “the [Supreme] Court has not yet had occasion to deal
with a school case involving student threats or one requiring it to decide what
degree of foreseeability or disruption to the school environment must be shown
to limit speech by students”).
As the above discussion shows, however, the general rule that schools may
not regulate merely inappropriate out-of-school speech (as opposed to truly
threatening or substantially disruptive speech) has been well-established for

22

decades. See Morse, 551 U.S. at 405; Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S.
675, 688 (1986) (Blackmun, J., concurring). The Eighth Circuit’s opinion in D.J.M.
did not change this general rule. In fact, D.J.M. affirmed the principle that school
officials may not simply “reach out to discover, monitor, or punish any type of
out of school speech.” 647 F.3d at 765. The opinion in D.J.M. merely explained
the contours of a narrow exception to the general rule—an exception which
applies to true threats or egregious statements likely to make their way to school
and cause a substantial disruption to the school environment.
Courts have applied such an exception sparingly, applying it only to the
most violent and threatening forms of speech and consistently declining to
expand it to extremely offensive but nonviolent out-of-school speech. The Third
Circuit sitting en banc recently concluded, for example, that a school district
impermissibly punished a student for setting up an out-of-school “parody
profile” of his school’s principal on the website MySpace—a social networking
website similar to Facebook. Layshock ex rel. Layshock v. Hermitage Sch.
Dist., 650 F.3d 205, 207-08 (3d Cir. 2011) (en banc). The profile created by the
student featured a picture of the principal (taken from a school website) and
stated that the principal was “too drunk to remember” his birthday and was also

23

a “big steroid freak,” a “big whore,” and a “big fag.” Id. In spite of these
malicious and inflammatory statements—statements far more offensive than
those at issue here—the court concluded that the school district was “not
empowered to punish [the student’s] out of school expressive conduct” because
that conduct was not disruptive to the school environment. Id. at 219.
The result was the same in the case of an eighth grader who created a
MySpace profile which featured the picture of another school principal, referred
to him as “your oh so wonderful, hairy, expressionless, sex addict, fagass [sic],
put on this world with a small dick PRINCIPAL,” and contained myriad other
examples of “profanity and shameful personal attacks aimed at the principal and
his family.” J.S. ex rel. Snyder v. Blue Mountain Sch. Dist., 650 F.3d 915, 92021 (3d Cir. 2011) (en banc). In assessing the disruptive effect of this contumelious
out-of-school rant, the Third Circuit reasoned:
If Tinker’s black armbands—an ostentatious reminder of the highly
emotional and controversial subject of the Vietnam war—could not
“reasonably have led school authorities to forecast substantial
disruption of or material interference with school activities,”
[Tinker, 393 U.S. at 514], neither [could the student’s MySpace]
profile, despite the unfortunate humiliation it caused for [the
principal].

24

Such cases demonstrate that the existence of the narrow exceptions recognized in
D.J.M. does not render unclear the established general rule against school
regulation of merely inappropriate or offensive out-of-school speech.
The standard for showing a clearly established right is certainly stringent,
but that standard has been met here thus far. Several high-profile Supreme
Court cases have distinguished between regulation of in-school speech and outof-school speech. Recent cases approving of school regulation of particularly
violent and threatening out-of-school speech have little applicability here and do
not cast doubt on the general rule which, assuming the veracity of the facts
alleged in the complaint, controls here. The facts alleged in Plaintiffs’ complaint
place R.S.’s speech in the heartland of protected nonviolent and nondisruptive
out-of-school speech. The Court concludes that a reasonable official would
understand that punishing such speech would transgress R.S.’s right to free
speech. As R.S.’s right to speak as alleged without school interference was
clearly established, the Court will deny the school defendants’ motion for
qualified immunity at this early stage.

25

3. Alleged Fourth Amendment Violation
a. Constitutional Violation
Students enjoy a Fourth Amendment right to be free from unreasonable
searches and seizures by school officials. See New Jersey v. T.L.O., 469 U.S. 325,
336-37 (1985) (“In carrying out searches . . . school officials act as representatives
of the State, not merely as surrogates for the parents, and they cannot claim the
parents’ immunity from the strictures of the Fourth Amendment.”). In
determining whether a search is reasonable, the Court must “consider first the
‘scope of the legitimate expectation of privacy at issue,’ then the ‘character of the
intrusion that is complained of,’ and finally the ‘nature and immediacy of the
governmental concern at issue’ and the efficacy of the means employed for
dealing with it.” Doe ex rel. Doe v. Little Rock Sch. Dist., 380 F.3d 349, 352 (8th
Cir. 2004) (quoting Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 654-66 (1995)).
i. Reasonable Expectation of Privacy
Defendants question whether R.S. had a reasonable expectation of privacy
with respect to the private information posted to her Facebook account and
private communications that she made with other students via Facebook. Here it
is important to note that Facebook provides different means of communication.

26

Postings to a user’s “wall” are generally accessible by the user’s Facebook
“friends,” a potentially large group of acquaintances. Other sorts of messages
operate in the same manner as email—that is, they are sent from one user to one
or more other specified users. They are not open to perusal by one’s “friends” or
by the general public.
Courts have long recognized that a person’s reasonable expectation of
privacy “turns in large part” on their “ability to exclude others from the place
searched.” Minnesota v. Carter, 525 U.S. 83, 107 (1998) (Ginsburg, J., dissenting);
see, e.g., Rakas v. Illinois, 439 U.S. 128, 149 (1978). “Letters and other sealed
packages are in the general class of effects in which the public at large has a
legitimate expectation of privacy; warrantless searches of such effects are
presumptively unreasonable.” United States v. Jacobsen, 466 U.S. 109, 114 (1984);
see United States v. Forrester, 512 F.3d 500, 511 (9th Cir. 2008) (tracing this
principle through history). Moreover, it has been an established principle, at
least since the Supreme Court’s decision in Katz v. United States, that the Fourth
Amendment protects individuals from intrusions upon their private electronic
conversations. 389 U.S. 347, 361-62 (1967) (Harlan, J., concurring).

27

“Given the fundamental similarities between email and traditional forms
of communication, it would defy common sense to afford emails lesser Fourth
Amendment protection.” United States v. Warshak, 631 F.3d 266, 285-86 (6th Cir.
2010). Numerous courts have similarly concluded that individuals maintain a
reasonable expectation of privacy with respect to their private email accounts
and that such accounts are entitled to the same Fourth Amendment protections
as conventional letters. See, e.g., United States v. Zavala, 541 F.3d 562, 577 (5th
Cir. 2008) (concluding that defendant had a reasonable expectation of privacy
with respect to “private information, including emails” stored on his cellular
phone); Forrester, 512 F.3d at 511 (“The privacy interests in these two forms of
communication [email and traditional mail] are identical.”). One court recently
concluded that private Facebook messages are, like email, “inherently private”
because such messages “are not readily accessible to the general public.” Crispin
v. Christian Audigier, Inc., 717 F. Supp. 2d 965, 991 (C.D. Cal. 2010). The Court
agrees that one cannot distinguish a password-protected private Facebook
message from other forms of private electronic correspondence.
Based on Plaintiffs’ complaint, at least some of the information and
messages accessed by the school officials were in R.S.’s exclusive possession,

28

protected by her Facebook password. R.S. controlled those items until she
involuntarily relinquished her password. As with a private letter, the content of
R.S.’s electronic correspondence was available only to her and her
correspondent. The Court concludes, based on established Fourth Amendment
precedent, that R.S. had a reasonable expectation of privacy to her private
Facebook information and messages.
ii. Nature of the Search
The facts in the complaint allege that the school officials conducted an
exhaustive search of R.S.’s Facebook account, and possibly her personal email
account. There is no indication at this stage that they tailored their search in any
way. It would have been difficult for them to tailor their search in pursuit of a
legitimate government interest because, as discussed below, such an interest
appears to have been lacking.
iii. Government Interest in the Search
The school defendants assert that since the reasonable search analysis
requires a complicated and fact-intensive balancing of interests, the Court cannot
conclude that their alleged behavior violated R.S.’s clearly established rights.
Plaintiffs respond that the search was clearly unreasonable because one of the

29

interests to be balanced—a legitimate school interest motivating the search—is
completely absent.
The Supreme Court has made clear that the school interest balanced
against a student’s reasonable expectation of privacy is the “substantial interest
of teachers and administrators in maintaining discipline in the classroom and on
school grounds.” T.L.O., 469 U.S. at 339 (emphasis added); see also id. at 337
(“On one side of the balance are arrayed the individual’s legitimate expectations
of privacy and personal security; on the other, the government’s need for
effective methods to deal with breaches of public order.”). Here, Plaintiffs
contend, the school could not have been interested in conduct in the classroom or
on school grounds because R.S.’s activity occurred exclusively off of school
grounds.
Moreover, Plaintiffs argue that the school officials had no “reasonable
grounds for suspecting that the search [would] turn up evidence that the student
has violated or is violating either the law or the rules of the school.” Id. at 342.
Based on the facts alleged in the complaint, the school officials had reason to
believe that R.S. may have had a sex-related discussion with a classmate. Both
R.S. and her classmate had already admitted as much to the school officials prior

30

to the search. Plaintiffs contend that such an out-of-school discussion, even a
“naughty” one, broke no law or school policies.
At this stage, based on the facts alleged in Plaintiffs’ complaint, the Court
cannot disagree. It is difficult for the Court to discern what, if any, legitimate
interest the school officials had for perusing R.S.’s private communications. The
officials’ search of R.S.’s private correspondence does not appear to have been
motivated by an interest in “maintaining discipline in the classroom and on
school grounds” or in “deal[ing] with breaches of public order.” Id. at 337, 339.
Moreover, the school officials had no reason to believe that the search would
return evidence of illegal behavior or violations of school policy. Id. at 342. At
this stage, there is no discernible school interest against which to balance R.S.’s
reasonable expectation of privacy. For these reasons, the Court concludes that
R.S. has alleged facts sufficient to show that she had a reasonable expectation of
privacy at least with respect to her private Facebook messages and that the
school officials had no legitimate interest in searching them against her will.
b. Right Clearly Established
A student’s right to be free from an unreasonable search—that is, a search
without a justifying and legitimate government interest—of private

31

correspondence in school is clearly established. See T.L.O., 469 U.S. at 339
(noting that students do not “waive[] all rights to privacy” to “highly personal
items [such] as photographs, letters, and diaries” simply “by bringing them onto
school grounds”). At this stage, the Court has heard only one side of this story.
While discovery may reveal facts which provide a legitimating school interest, it
would be inappropriate for the Court to now speculate as to such interests.
For the above reasons, and at this early stage in the litigation, the Court
denies qualified immunity to the school defendants with respect to Plaintiffs’
Fourth Amendment claim.
D.

Claims against Individuals in their Official Capacities

The school defendants ask that the claims against them in their official
capacities be dismissed because those claims are duplicative of the claims against
their employer. See Kentucky v. Graham, 473 U.S. 159, 165-66 (1985). Where
claims against individuals in their personal capacity are dismissed, remaining
claims against them in their official capacity may be unnecessary. See, e.g., Soffer
v. Costa Mesa, 798 F.2d 361, 363 (9th Cir. 1986). Here, because the Court
concludes that the school defendants are not entitled to qualified immunity at
this stage, they remain as named defendants in this case, and the Court need not

32

now address whether the official capacity claims ought to be dismissed as
duplicative.
E.

Supervisory Liability of Superintendent Ohl

“A supervisor may be held individually liable under § 1983 if he directly
participates in the constitutional violation or if he fails to train or supervise the
subordinate who caused the violation.” Brockinton v. City of Sherwood, 503
F.3d 667, 673 (8th Cir. 2007). The school defendants argue that Plaintiffs’ claims
against Superintendent Ohl must be dismissed because there is no allegation that
he directly participated in the alleged unconstitutional conduct or that he failed
to properly train or supervise the District employees who were involved in the
challenged conduct.
Plaintiffs respond that their complaint sufficiently raises facts which, when
read as a whole, indicate that Superintendent Ohl failed to train or supervise the
District employees who engaged in the challenged conduct. The complaint
alleges that he was responsible for “ensuring that the District and its officials act
in conformity with the United States Constitution and applicable federal and
state laws.” (Compl. ¶ 7.) Plaintiffs further allege that the District is
“responsible for implementing district-wide policies and procedures, and for

33

training its employees.” (Id. ¶ 6.) They also allege that the policies, customs, and
practices in the District permit or encourage unconstitutional behavior by staff
members. (Id. ¶ 26.)
While it may be difficult for Plaintiffs to prove their allegations regarding
Superintendent Ohl’s role in supporting a custom of unconstitutional practices as
alleged, the Court concludes that Plaintiffs have alleged facts sufficient to find
him liable for such a custom. Discovery will allow both sides an opportunity to
explore Superintendent Ohl’s role in the alleged behavior of his subordinates.
F.

Conspiracy Claims

To establish a conspiracy to violate a plaintiff’s civil rights in breach of 42
U.S.C. § 1985(3), the plaintiff must prove: “(1) the existence of a civil conspiracy;
(2) that the purpose of the conspiracy was to deprive [her] either directly or
indirectly of [her] civil rights; (3) that a conspirator did an act in furtherance of
the object of the conspiracy; and (4) damages, shown by demonstrating either
injury to person or property or the deprivation of a civil right.” Mettler, 165 F.3d
at 1204 (citation omitted). As explained by the Supreme Court in Griffin v.
Breckenridge, “[t]he language [in § 1985(3)] requiring intent to deprive of equal
protection, or equal privileges and immunities, [i.e., the second element

34

identified in Mettler,] means that there must be some racial, or perhaps
otherwise class-based, invidiously discriminatory animus behind the
conspirators’ action.” 403 U.S. 88, 102 (1971). “Speculation and conjecture are
not enough to prove a conspiracy exists.” Mettler, 165 F.3d at 1206.
Moreover, “to prove [a conspiracy to violate civil rights], Plaintiff must
allege specific facts indicating a mutual understanding among the conspirators to
take actions to an unconstitutional end.” Feist v. Simonson, 36 F. Supp. 2d 1136,
1150 (D. Minn. 1999), aff’d 222 F.3d 455 (8th Cir. 2000), overruled on other
grounds, Helseth v. Burch, 258 F.3d 867 (8th Cir. 2001) (en banc). In other words,
“there must be ‘meeting of the minds’ to support allegations of a conspiracy.”
Feist, 36 F. Supp. 2d at 1150.
Without reaching the other requirements for a claim under § 1985, the
Court concludes that Plaintiffs have not sufficiently pled facts which could lead
to a conclusion that the conduct alleged in this case was motivated by “some
racial, or perhaps other class-based, invidiously discriminatory animus.” Griffin,
403 U.S. at 102. Plaintiffs argue that the alleged fact that the school officials
searched R.S.’s private account but not that of a male classmate is sufficient to
show a discriminatory animus on the part of the school officials against girls.

35

The Court concludes that this threadbare allegation is insufficient. The Plaintiffs
allege that other students’ accounts had been similarly accessed. If there were an
allegation that the school targeted girls’ accounts but not boys’ accounts, then the
claim might be stronger. The mere fact that school officials searched R.S.’s
account and declined to search a boy’s account cannot support a finding of
invidious discriminatory animus.
For this reason, the Court will grant the school defendants’ motion to
dismiss as to Plaintiffs’ § 1985 claim. And, since Plaintiffs’ claim under 42 U.S.C.
§ 1986 requires a valid § 1985 claim, the Court will dismiss the § 1986 claim as
well. See Jensen v. Henderson, 315 F.3d 854, 863 (8th Cir. 2002).
G.

State Constitutional Claims

The school defendants argue that there is no private right of action under
Minnesota law for deprivations of rights contained in the Minnesota
Constitution. In support, they correctly note that “Minnesota has not enacted a
statute equivalent to § 1983.” Thomsen v. Ross, 368 F. Supp. 2d 961, 975 (D.
Minn. 2005). They further cite Guite v. Wright, 976 F. Supp. 866, 871 (D. Minn.
1997), a case in which the Plaintiff conceded that there was “no private cause of
action for violations of the Minnesota Constitution.” They also cite an

36

unpublished decision by the Minnesota Court of Appeals stating that
“Minnesota does not allow private actions based on alleged violations of the
Minnesota Constitution.” Davis v. Hennepin Cnty., 2012 WL 896409, at *2
(Minn. Ct. App. Mar. 19, 2012) (unpublished) (citing Guite).
In response, Plaintiffs note that this Court has explained that “Minnesota
courts have recognized direct causes of action for violating certain sections of the
Minnesota Constitution” and that the Minnesota Constitution provides a
“’certain remedy in the laws’ for injuries and wrongs.” Thomsen, 368 F. Supp. 2d
at 975 (quoting Minn. Const. Art. I, § 8 (2004)) (emphasis added).
In Knudtson v. City of Coates, 519 N.W. 2d 166, 169 (Minn. 1994), the
Minnesota Supreme Court treated as justiciable a claim by a plaintiff that a state
regulation violated his expressive rights under Art. 1, § 3 of Minnesota
Constitution—the same provision cited here with respect to Plaintiffs’ free
speech claim. Knudtson—a published opinion of the Minnesota Supreme
Court—therefore provides a basis for preserving R.S.’s claim of a violation of her
free speech rights under the Minnesota Constitution.
As for R.S.’s claim regarding an unreasonable search under Art. I, § 10 of
the Minnesota Constitution—the language of which is identical to the Fourth

37

Amendment—there does not appear to be any authority on the question, apart
from this Court’s assuming, but not deciding, that such a claim could proceed in
Thomsen, 368 F. Supp. 2d at 975.
While the parties have spilled much ink on this issue, its practical effect is
minimal. R.S.’s freedom of speech and freedom from unreasonable search are
substantially the same and coextensive under the United States and Minnesota
Constitutions. See State v. Wicklund, 589 N.W. 2d 793, 801 (Minn. 1999);
Thomsen, 368 F. Supp. 2d at 976. Thus, any relief available under the Minnesota
Constitution is likely to be coextensive with the relief available under § 1983. See
id. at 975 (“[A]ny remedy potentially available to plaintiff for an alleged violation
of his rights under the Minnesota Constitution is co-extensive with that available
to him under Section 1983 for a violation of the Fourth Amendment.”). The
school defendants assert that allowing the state constitutional claims to remain
will create unnecessary work. Given that the substantive claims and potential
relief are the same, however, the Court declines to dismiss Plaintiffs’ state
constitutional claims at this stage.

38

H.

State Tort Claims
1. Intentional Infliction of Emotional Distress

To succeed on a claim of intentional infliction of emotional distress
(“IIED”) under Minnesota law, a plaintiff must establish four elements:
(1) the conduct must be extreme and outrageous; (2) the conduct
must be intentional or reckless; (3) it must cause emotional distress;
and (4) the distress must be severe.
Hubbard v. United Press Int’l, Inc., 330 N.W. 2d 428, 438-39 (Minn. 1983). The
Minnesota Supreme Court has explained that such claims are “sharply limited to
cases involving particularly egregious facts.” Id. at 439. Conduct is “extreme
and outrageous” only when it is “so atrocious that it passes the boundaries of
decency and is utterly intolerable to the civilized community.” Id. (citations
omitted). Similarly, the emotional distress caused by this atrocious conduct
must be “so severe that no reasonable [person] could be expected to endure it.”
Id. at 440. These standards are difficult to meet.
As troubling as R.S.’s allegations may be, the Court concludes that they do
not meet the requirements for an IIED claim. The Court concludes that a
reasonable fact-finder could not find that the alleged behavior of the school
defendants was utterly intolerable to the civilized community. “[S]chool

39

authorities” may be held liable for emotional distress arising from “abuse[s] of
their position,” but not for mere “indignities . . . that are not extreme or
outrageous.” Restatement (Second) of Torts § 46 cmt. e. The behavior alleged
here was arguably a callous, intrusive, and insensitive abuse of power, but a
reasonable fact-finder could not find it so “utterly intolerable” or “particularly
egregious” as to support an IIED claim. For this reason, the Court will dismiss
Count VII of Plaintiffs’ complaint.
2. Invasion of Privacy
To assert a claim for invasion of privacy under Minnesota law, a plaintiff
must prove that the defendant committed “(a) an intrusion; (b) that is highly
offensive; and (c) into some matter in which a person has a legitimate expectation
of privacy.” Swarthout v. Mut. Serv. Life Ins. Co., 632 N.W. 2d 741, 744 (Minn.
Ct. App. 2001). The intrusion must be “of a kind that would be highly offensive
to the ordinary reasonable [person], as the result of conduct to which the
reasonable [person] would strongly object.” Id. at 745 (citation omitted).
Application of this “reasonable person standard” is typically a question of fact,
but it can become a question of law “if reasonable persons can draw only one
conclusion from the evidence.” Id. (citation omitted).

40

Defendants argue that R.S. had no reasonable expectation of privacy with
respect to her private Facebook messages. They note that she was below the age
required by Facebook’s terms of service. It is unclear to the Court why a
violation of a website’s terms of use vitiates an expectation of privacy. 1 As
discussed above, Facebook’s private messaging service operates in all practical
ways as an email service, and individuals have an expectation of privacy when
using email, just as they do when sending traditional letters. The school
defendants also contend that R.S. had no reasonable expectation of privacy
because her account had been viewed by her mother and by “at least one other
mother at her school.” Those facts do not appear in the complaint, but even if
they did, it is not clear how they would influence the expectation of privacy
analysis. It makes little sense to say that an individual who shows an email to
another individual thereby gives up all expectation of privacy as to his or her

If it is true that R.S. violated the Facebook terms of service, she was not
alone. According to a recent study, there are approximately 7.5 million Facebook
users in the United States who are under the age of 13, and there are over 5
million who are under the age of 10. See, e.g, Shan Li, “Consumer Reports:
Facebook has 7.5 million underage users,” Los Angeles Times, May 10, 2011,
available at http://latimesblogs.latimes.com/technology/2011/05/facebook-has-75million-underage-users-survey-says.html. Any argument that these young
children should be afforded fewer privacy protections from involuntary
intrusions by non-parents holds no water.
1

41

entire password-protected email account or with respect to members of the
general public. For these reasons, the Court will not dismiss Plaintiffs’ invasion
of privacy claim.
I.

Claims by S.S.

The school defendants request that the Court dismiss all direct claims
brought by plaintiff S.S. in her individual capacity. The dispute on this point
seems centered around the caption of the case which states that S.S. is a party
“individually and on behalf of her daughter [R.S.]” and a statement in Plaintiffs’
complaint which states that S.S. “brings this action individually and on behalf of
her minor daughter, R.S.” The parties appear to agree that S.S. has no
independent claims for individual damages or other relief.
Guardians may sue on behalf of their children. Fed. R. Civ. P. 17(c)(1)(A).
While the Court agrees that dismissal of any direct claims by S.S. would be
appropriate, none have been asserted. To clarify this matter, the Court will
amend the caption of the case, so that it is clear that S.S. is a party to the suit on
behalf of her daughter only.

42

J.

Declaratory Judgment Claim

The school defendants argue that Plaintiffs’ declaratory judgment claim
should be dismissed because it is duplicative of other claims. Under the
Declaratory Judgment Act, 28 U.S.C. § 2201(a), “[i]n a case of actual controversy
within its jurisdiction, . . . any court of the United States, upon the filing of an
appropriate pleading, may declare the rights and other legal relations of any
interested party seeking such declaration.”
The school defendants note that some courts have reasoned that,
“[a]lthough the availability of alternative remedies is not a bar to declaratory
relief . . . the district court may in its discretion refuse declaratory relief if the
alternative remedy is more appropriate.” Smith v. Metro. Prop. and Liab. Ins.
Co., 629 F.2d 757, 759 (2d Cir. 1980). They also note that this Court has dismissed
a declaratory judgment as inappropriate where the case had reached a stage
where the parties could and had sought coercive remedies, including damages
and injunctive relief. See Kirckof v. Brown, Civ. No. 01-476 (JRT/SRN), 2002 WL
31718394, at *6 (D. Minn. Nov. 27, 2002). The Court did so upon ruling on the
parties’ cross motions for summary, however, not at the motion to dismiss stage.

43

It would be premature to dismiss an otherwise viable claim at the motion
to dismiss stage simply because it appears to be duplicative. Given that other
claims may be dismissed upon summary judgment, the Court declines to dismiss
the declaratory judgment claim at this time.
K.

Motion to File Supplemental Brief

Shortly before oral argument in this matter, the school defendants filed a
motion to file a supplemental memorandum of law in support of their motion to
dismiss. The school defendants submit that they recently discovered that R.S.
has moved out of the District. They therefore argue that her claims for injunctive
relief against the District are now moot. See McFarlin v. Newport Special Sch.
Dist., 980 F.2d 1208, 1211 (8th Cir. 1992) (declining to apply the “capable of
repetition, yet evading review” doctrine in such circumstances).
Plaintiffs respond by noting that the Eighth Circuit has indicated that
claims for injunctive relief may remain where a plaintiff may return to the school
district in question. Schanou v. Lancaster Cnty. Sch. Dist. No. 160, 62 F.3d 1040,
1043 (8th Cir. 1995) (finding no standing where plaintiff had “no prospect of ever
returning to the school district as a student”). Other courts have found standing
for injunctive relief claims where plaintiffs have shown that they left the district

44

because of the challenged policy or where they intended to return to the
defendant district. See, e.g., Frechel-Rodriguez v. Puerto Rico Dep’t of Educ., 478
F. Supp. 2d 191, 198 (D.P.R. 2007).
The Court concludes that the school district’s motion would be more
appropriate as a motion for partial summary judgment, brought after both sides
have had time to explore this issue through discovery. The Court will therefore
grant the school defendant’s request to file their “supplemental brief” but will
deny the motion to dismiss Plaintiffs’ injunctive relief claim.
V.

Conclusion
As the Court has already explained, this case is still in its infancy. The

Court’s rulings here are based on an assumption that the facts alleged by
Plaintiffs in their complaint are true. The Court’s denial of the school
defendants’ qualified immunity claims should not be taken as an assessment of
their ultimate liability for the actions alleged by Plaintiffs. Discovery may reveal
facts which change the Court’s analysis of the school defendants’ qualified
immunity claims or of the ultimate merits of Plaintiffs’ claims. These issues will
be evaluated again at summary judgment, upon the record developed in
discovery.

45

Accordingly, based upon the files, records, and proceedings herein, IT IS
HEREBY ORDERED:
1) The school defendants’ Motion for Dismissal [Docket No. 13] is
GRANTED IN PART and DENIED IN PART as follows: Counts I, II,
IV, V, VI, and VIII REMAIN, Count III is DISMISSED without
prejudice, and Count VII is DISMISSED with prejudice;
2) The school defendants’ Motion to File Supplemental Memorandum of
Law [Docket No. 22] is GRANTED, the Proposed Supplemental
Memorandum is deemed filed, and the motion to dismiss on mootness
grounds is DENIED without prejudice;
3) The caption of the case is amended such that the plaintiffs in this case
are identified as “R.S., a minor, by and through her mother, S.S.”

Dated: September 6, 2012

s/ Michael J. Davis
Michael J. Davis
Chief Judge
United States District Court

46