Kuhr et al v. Millard Public School District et al

Filing 113

MEMORANDUM AND ORDER - The Plaintiffs' Motions in Limine (Filing Nos. 90 and 103 ) are denied, without prejudice to the Plaintiffs raising their objections at trial. The Defendants' Motion in Limine (Filing 101 ) is granted in part, as follows: a. The Plaintiffs are precluded, in limine, from introducing testimony or other evidence regarding memorials related to the death of Vicki Kaspar; and b. The Defendants Motion is otherwise denied, without prejudice to the Defendants raising their objections at trial. Ordered by Chief Judge Laurie Smith Camp. (GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
CASSIE KUHR and NICK KUHR, by
and through their Mother and Next
Friend, JEANNE KUHR, and DAN
KUHR,
Plaintiffs,
vs.
MILLARD PUBLIC SCHOOL
DISTRICT, and DR. KEITH LUTZ, in
his capacity as Superintendent of
Millard Public Schools,
Defendants.

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CASE NO. 8:09CV363

MEMORANDUM
AND ORDER

This matter is before the Court on the Plaintiffs’ Motion in Limine (Filing No. 90) and
Supplemental Motion in Limine (Filing No. 103), and the Defendants’ Amended Motion in
Limine (Filing No. 101).
The Plaintiffs Cassie Kuhr and Nick Kuhr, by and through their Mother and Next
Friend, Jeanne Kuhr, and Dan Kuhr (collectively “the Kuhrs”), argue that Defendants
Millard Public School District (“MPSD”) and Dr. Keith Lutz (“Lutz”) should be precluded in
limine from introducing evidence in five categories. First, the Kuhrs suggest that MPSD’s
dress code and rules on memorials are irrelevant, and that any probative value such rules
may have is outweighed by the prejudice and confusion that would be caused by their
admission. Second, the Kuhrs argue that any justification the Defendants might offer for
their censorship of student speech is irrelevant. Third, the Kuhrs seek to exclude certain
evidence and witnesses that they contend were not timely disclosed by the Defendants.
Fourth, the Kuhrs seek to exclude evidence that the Defendants may attempt to offer that

was not disclosed with reasonable specificity in response to the Kuhrs’ discovery requests.
Fifth, the Kuhrs assert that newspaper articles should be excluded as hearsay.
The Defendants seek to preclude the Kuhrs from presenting evidence in four
categories.

First, the Defendants seek to exclude evidence of the purpose and

circumstances underlying the “R.I.P.” t-shirts at issue in this case, as well as evidence
regarding “R.I.P.” memorials that followed the death of the school’s vice-principal. Second,
the Defendants challenge the anticipated testimony of Kuhrs’ experts related to street
gangs and their culture, asserting that such testimony has no relevance to the issue of
what information the Defendants had when making their decision that led to the censorship
at issue. Third, The Defendants seek to exclude evidence indicating that Julius Robinson
was not a street-gang member or otherwise involved in gang-related activities. Fourth, the
Defendants object to certain news reports that were broadcast after the censorship at issue
in this case.
I. Plaintiffs’ Motions
A. Millard Public School District Rules
The Kuhrs argue that the school’s dress code and rules about memorials are not
relevant to the question of whether the school violated students’ First Amendment rights,
and that any probative value of the code and rules is outweighed by the prejudice and
confusion they would cause. The Kuhrs cite to Blair v. Anderson, No. 8:07CV295, 2011
WL 839398 (D. Neb. Mar. 4, 2011), for the proposition that “[v]iolations of internal policies
are irrelevant to whether a constitutional violation [has] occurred.” Id., at *3 (emphasis
added) (citing Thompson v. City of Chicago, 472 F.3d 444, 454 (7th Cir. 2006); Tanberg

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v. Sholtis, 401 F.3d 1151, 1163-64 (10th Cir. 2005); Bonds v. Dautovic, 725 F. Supp. 2d
841, 847 (S.D. Iowa 2010)).
While the Defendants cannot trump First Amendment rights by the creation of rules,
the rules may be relevant to show the Defendants anticipated that a substantial disruption
would be created by certain forms of student expression. Tinker v. Des Moines Indep.
Cmty. Sch. Dist., 393 U.S. 503, 509 (1969). The rules and related testimony about why
the rules were put in place may contribute to the fact-finders’ understanding of what the
Defendants knew about the dangers of this kind of expression that they sought to curb.
The Court will deny the Plaintiffs’ Motion to exclude this evidence. The Kuhrs may
renew their objection at the time of trial and, if necessary, the Court will consider giving a
limiting instruction to the jury to mitigate any confusion caused by the introduction of the
rules.
B. Defendants’ Justification for Censorship
The Kuhrs object broadly to evidence or testimony related to the Defendants’
justification for the censorship, arguing that the justification is irrelevant. The standard set
out in Tinker, however, suggests that schools should have the opportunity “to justify
prohibition of a particular expression of opinion” by “showing that engaging in the forbidden
conduct would materially and substantially interfere with the requirements of appropriate
discipline in the operation of the school.” Tinker, 393 U.S. at 509 (internal quotations
omitted). The Defendants will have an opportunity to present evidence of “facts that might
reasonably have led [them] to forecast substantial disruption.” Id. at 514. Whether the
Defendants’ anticipation of disruption was reasonable based on the information at hand

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or simply an “undifferentiated fear or apprehension of disturbance,” i.e. speculative, is an
issue for the trier of fact. Id. at 508.
C. Evidence Produced at Summary Judgment
The Kuhrs argue that some evidence and witnesses produced in support of the
Defendants’ motion for summary judgment were not timely disclosed under the
supplemental disclosure requirements of Fed. R. Civ. P. 26(e) and should be excluded at
trial pursuant to Fed. R. Civ. P. 37(c).
Rule 37(c)(1) limits the use of “information or witness[es] . . . at trial, unless the
failure [to disclose] was substantially justified or is harmless.” Rule 37(c) also gives the
court discretion to apply an appropriate alternative sanction. The Eighth Circuit has noted
“that the district court’s discretion narrows as the severity of the sanction or remedy it elects
increases,” and the Circuit has provided guidance for appropriate sanctions. Wegener v.
Johnson, 527 F.3d 687, 693 (8th Cir. 2008) (citing Heartland Bank v. Heartland Home Fin.,
Inc., 335 F.3d 810, 817 (8th Cir. 2003); Laclede Gas Co. v. G.W. Warnecke Corp., 604
F.2d 561, 565-66 (8th Cir. 1979)). A court should consider “the reason for noncompliance,
the surprise and prejudice to the opposing party, the extent to which allowing the
information or testimony would disrupt the order and efficiency of the trial, and the
importance of the information or testimony.” Id. (citing Sellers v. Mineta, 350 F.3d 706, 71172 (8th Cir. 2003); Marti v. City of Maplewood, 57 F.3d 680, 683 (8th Cir. 1995)).
Here, the evidence at issue was disclosed in summary judgment filings, and the
Defendants argue that any failure to make the disclosures in a timely manner was
harmless. The Kuhrs contend that the failure was not harmless because the evidence was

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produced after the discovery deadline. The Kuhrs do not claim any specific prejudice,
however, nor do they specify what discovery they would have pursued had they received
the disclosures earlier. Because the Plaintiffs received notice of the evidence well in
advance of trial, and given that it does not appear to alter the fundamental facts as
understood by the parties, the Defendants’ failure to disclose in a timely manner appears
to be harmless. The issue will be addressed at the Court’s pretrial meeting with counsel,
and the Kuhrs may request an opportunity to question the affiants, or to depose them at
the Defendants’ expense, before their testimony is received at trial.
D. Evidence not Disclosed in Response to Plaintiffs’ Discovery Requests
The Kuhrs seek to exclude other evidence on the basis that it was not disclosed by
the Defendants in response to interrogatories, requests for production, and requests for
admission. The Kuhrs note that the Defendants responded to such discovery requests with
vague, non-responsive statements. Such incomplete responses by the Defendants could
have prompted the Kuhrs to file motions to compel before the end of the discovery
deadline, but they made no such motions. The Kuhrs may raise their objections at the time
of trial, and the Court will consider, among other things, any prejudice the Kuhrs may have
suffered as a consequence of the Defendants’ alleged failure to provide complete and
forthright responses to discovery requests.
E. Exclusion of Newspaper Articles as Hearsay
The Kuhrs seek to exclude certain newspaper articles as hearsay. While the articles
constitute out-of-court statements, the Defendants’ purpose in offering such articles is not

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yet clear. Accordingly, the Plaintiffs’ Motion in Limine will be denied, without prejudice to
reassertion at trial.1
II. Defendant’s Motion
A. Alternate Meanings of “R.I.P.” T-Shirt
The Defendants seek to exclude evidence of the purpose and circumstances
underlying the creation and wearing of the “R.I.P.” t-shirts at issue in this case, as well as
any evidence regarding “R.I.P.” memorials that followed the death of the school’s viceprincipal. The Defendants argue that alternate understandings of the t-shirt are irrelevant
to the reasonableness of the Defendants’ forecast of substantial disruption. While the
Defendants concede the relevance of evidence showing they were aware of information
suggesting the shirts were not a threat at or prior to the censorship, they object to any
evidence that suggests an alternate meaning to the t-shirts that is unconnected with the
Defendants’ knowledge at those times.
The issue for trial is whether the Defendants’ forecast was reasonable based on
the information at hand, not whether the shirts were actually gang related or actually posed
any danger. However, the Kuhrs do not suggest any purpose for the admission of this
evidence except to call into question the “credibility” of the Defendants’ forecast by showing
the meaning that the Kuhrs and others intended when creating or wearing the shirts, and
they do not claim that Defendants were aware of the intent. If the Kuhrs are able to show

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The Plaintiffs also seek to exclude, in general, the testimony of non-parties from
other proceedings on grounds that it is hearsay, irrelevant, and unduly prejudicial. The
Plaintiffs, however, do not identify any specific testimony they seek to exclude. The
Plaintiffs’ Motion in limine as it relates seeking the exclusion of the testimony of non-parties
will be denied without prejudice to reassertion at trial.
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that the Defendants were aware of the alternate understandings of the t-shirts, then
evidence of the alternate understandings will be relevant.
With respect to the Vicki Kaspar memorials, they are irrelevant to any issue before
the finder-of-fact. Kaspar was an Assistant Vice Principal killed in 2011–more than two
years after the Defendants made the decisions that led to this action. There is no
suggestion that her death was in any way gang-related, or that the memorials gave rise to
any of the same concerns that led to the censorship at issue here. Accordingly, the
Defendants’ Motion in Limine with respect to the Vicki Kaspar memorials will be granted.
B. Expert Witness Testimony
While Defendants did miss their deadline under the progression order2 for filing
motions in limine to challenge the Kuhrs’ experts under Rule 702, their objection to the
Kuhrs’ experts’ testimony is based on relevance. The Defendants contend that expert
testimony regarding practices of national or local gangs is irrelevant unless there is
evidence that the Defendants3 had knowledge of such practices at the time of their

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Filing No. 48, paragraph 5.a. provides:
a. Motions in limine challenging the admissibility of expert testimony at trial
under Fed. R. Evid. 702, see Kumho Tire Co., Ltd. v. Carmichael, 526 U.S.
137 (1999), and Daubert v. Merrell-Dow Pharmaceuticals, 509 U.S. 579
(1993), shall be filed by September 15, 2011, and accompanied by a request
for a hearing if necessary. Failure to timely move for a hearing may
constitute waiver of the request for a hearing.
Defendants’ motion in limine was not filed until December 7, 2011, and amended
December 30, 2011.
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In the case of MPSD, of course, the Defendant’s knowledge would be that of its
administrators and decision-makers.
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“forecast.” All parties’ expert testimony is relevant only so far as it may establish the
reasonableness of the Defendants’ assumptions underlying their “forecast.”

If the

testimony is sufficiently tied to what the Defendants’ knew at and before the time of the
censorship at issue, it is relevant. The Defendants’ Motion in Limine with respect to the
Plaintiffs’ experts will be denied, but the Defendants may raise their relevance objections
at the time of trial.
C. Julius Robinson’s Lack of Gang Affiliation
The Defendants seek to exclude as irrelevant any evidence of Julius Robinson’s
lack of gang affiliation. The Defendants, however, concede the relevance of evidence
showing that they had knowledge of whether Julius was affiliated with a street gang. The
Kuhrs assert that they should be allowed to present evidence that Julius was not a gang
member for the purpose of refuting the Defendants’ contention that their forecast was
reasonable. Again the issue for trial is whether the Defendants’ forecast was reasonable
based on the information at hand, not whether Julius was actually affiliated with a gang.
If the evidence is sufficiently tied to what the Defendants knew at or before the time of the
censorship at issue, it is relevant. The Defendants’ Motion in Limine with respect to
evidence of Julius Robinson’s lack of gang affiliation will be denied, but the Defendants
may raise their relevance objections at the time of trial.
D. News Reports
The Defendants have objected to two television reports that were broadcast after
the Defendants the censorship at issue. The Defendants contend that the reports are
irrelevant because they have no bearing on what the Defendants’ knew prior to the

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censorship. The Kuhrs state that they plan to use the reports for rebuttal purposes only.
Thus, ruling on this evidence in limine would be premature, and the Defendants’ Motion
in Limine with respect to evidence of the two television reports will be denied. The
Defendants may raise their objections to this evidence at the time of trial.
Accordingly,
IT IS ORDERED:
1.

The Plaintiffs’ Motions in Limine (Filing Nos. 90 and 103) are denied, without
prejudice to the Plaintiffs raising their objections at trial; and

2.

The Defendants’ Motion in Limine (Filing 101) is granted in part, as follows:
a.
The Plaintiffs are precluded, in limine, from introducing
testimony or other evidence regarding memorials related to the death
of Vicki Kaspar; and
b.
The Defendants’ Motion is otherwise denied, without prejudice
to the Defendants raising their objections at trial.

DATED this 12th day of March, 2012.
BY THE COURT:

s/Laurie Smith Camp
Chief United States District Judge

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