WAYNE EDUCATION ASSOCIATION v. WAYNE BOARD OF EDUCATION et al

Filing 26

OPINION. Signed by Judge Katharine S. Hayden on 6/30/15. (DD, )

Not for Publication
United States District Court
for the District of New Jersey

WAYNE EDUCATION ASSOCIATION,
Plaintiff,
v.

Civil No: 14-492 (KSH)

WAYNE BOARD OF EDUCATION and DR.
RAYMOND A. GONZALEZ, Superintendent of
Schools,

Opinion

Defendants.

Katharine S. Hayden, U.S.D.J.
The Wayne Education Association (the “Association”) commenced this action challenging
the constitutionality of two policies enacted by the Wayne Board of Education (the “Board”). The
Association claims that the policies attempted to regulate “outside activities” of teaching staff and
therefore violated the speech and association rights of Association members under the United
States and New Jersey Constitutions. Before the Court is the Board’s motion to dismiss the
complaint in which defendant argues that, because the policies have since been revised in a manner
satisfactory to the Association, the instant matter is now moot. 1 For the following reasons, the
Court agrees.
I.

Background
The Association commenced this action in January 2014, seeking a declaration that that

two Board policies were unconstitutional—Policy 3230(4), which prohibited teaching staff
members from “campaign[ing] on school grounds during their work day,” and Policy 3230(1),

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On April 8, 2014, before this motion was filed, the Association stipulated to dismissal of
Dr. Raymond A. Gonzalez. [D.E. 12.]
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which “advised” the teaching staff “to refrain from conduct, associations, and offensive speech
that, if given publicity, would tend to have an adverse or harmful effect upon pupils or the school
community.” (Complaint, ¶¶ 10-11.) The Association claims that this language “pertain[s] to
matters of speech and association, [is] unconstitutionally vague and/or overbroad, and infringe[s]
upon the Association members’ First Amendment rights.” (Complaint, ¶1.)
On March 27, 2014, approximately ten weeks after the complaint was filed, the Board
revised both challenged policies in response to this litigation. According to the defendant, the
Board then shared the revised policies with counsel for the Association and asked “(i) whether the
revised policies were acceptable to the Association; and (ii) if so, whether the Association, having
obtained the relief demanded in the Complaint, intended to discontinue [the] litigation.” (Harrison
Aff., ¶3.) The Board submits that the Association “responded positively to the former question
and negatively to the latter.” (Harrison Aff., ¶4.) The Board now argues that “[a]ll causes of
action articulated in the Complaint are moot” because the policy revisions “cure any constitutional
infirmities alleged” (Answer, Second Separate Defense) and moves to dismiss the complaint on
that basis.
II.

Discussion
An action becomes moot when “the issues presented are no longer ‘live’ or the parties lack

a legally cognizable interest in the outcome.” County of Los Angeles v. Davis, 440 U.S. 625, 631
(1979). The question underlying this analysis is not “whether the precise relief sought at the time
... [the case] was filed is still available”—rather, “[t]he question is whether there can be any
effective relief.” Earth Island Inst. v. United States Forest Serv., 442 F.3d 1147, 1157 (9th Cir.
2006). Consequently, mootness may, in some cases, arise from the fact that the defendant acted

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voluntarily to dispose of the plaintiff’s original claim for relief. See DeJohn v. Temple Univ., 537
F.3d 301, 309 (3d Cir. 2008).
It remains well-settled, however, that a defendant’s voluntary cessation of a challenged
practice does not deprive a federal court of its power to determine the legality of the practice if
there remains a possibility that the plaintiffs will be disadvantaged in “the same fundamental way.”
Northeastern Fla. Chapter of Assoc. Gen. Contractors of Am. V. City of Jacksonville, 508 U.S.
656, 662 (1993). To achieve dismissal on mootness grounds in such a scenario, the defendant
must demonstrate that “there is no reasonable expectation that the wrong will be repeated.” Id. at
662; see also Friends of the Earth, Inc. v. Laidlaw Envt’l Services., 528 U.S. 167, 189 (2000) (“A
case might become moot if subsequent events made it absolutely clear that the allegedly wrongful
behavior could not reasonably be expected to recur.”). The Third Circuit instructs that at least two
factors are significant to this analysis: (1) the length of time before, and the circumstances under
which, the defendant changed the challenged policy; and (2) whether the defendant “continue[d]
to defend not only the constitutionality of its prior [policy], but also the need for the former policy.”
DeJohn, 537 F.3d at 309.
Here, the Board took action to revise the challenged policies within roughly 10 weeks of
this litigation, and submits that modifications were made “in order to cure their alleged
constitutional infirmities while maintaining the permissible goal of the policies to prohibit conduct
deleterious to the efficient operation of the schools.” (Defendant’s Br. at 3). Counsel for the Board
thereafter conferred with counsel for the Association to ensure that the revisions satisfied
plaintiff’s concerns. The Association “responded favorably” to this request, and later admitted
that it had “no objection to any provision” of either revised policy. (Harrison Aff., Ex. D,
Plaintiff’s Response to Defendant’s Requests for Admissions). The Association nonetheless
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maintains that, notwithstanding their approval of the new policies, the action is not moot because
it is not “absolutely clear” that the wrongful behavior might recur. Specifically, and in support of
this contention, the Association points to the Board’s failure to “acknowledge[] the illegality of its
former policies”; the allegedly “simple and expedient” nature of the revision process; and the fact
that “Board membership may change” in the future.
These concerns, however, are based largely on speculation, and—true to the maxim that
actions speak louder than words—are insufficient to rebut this Court’s reasonable expectation that
the alleged constitutional violation will not recur. The Board acted swiftly to revise the allegedly
unconstitutional policies—the new policies were proposed and approved before discovery was
exchanged in this action, and even before an initial status conference was held. See New Jersey
Cable Telecommunications Ass’n v. Fox¸ 2009 WL 749579, at *8 (D.N.J. Mar. 18, 2009) (Linares,
J.) (finding it significant for mootness purposes that “[t]his case is less than a year old and no
discovery has taken place; in fact, an initial status conference has yet to take place.”). Furthermore,
the Board is not now “defending the validity of the prior version of the policy” and has renounced
“any intention to revert to the replaced policy.” The Association does not dispute the truth of the
Board’s position; it argues only that such statements are alone insufficient to render this action
moot. Coming from a government actor, however, the Board’s conduct and representation go a
long way toward establishing that the controversy here is extinguished. See Sossamon v. Lone
Star State of Tex., 560 F.3d 316, 325 (5th Cir. 2009) (“Without evidence to the contrary, we assume
that formally announced changes to official governmental policy are not mere litigation
posturing.”). Finally, the Board characterizes the revised policies as “maintaining the permissible
goal of … prohibit[ing] conduct deleterious to the efficient operation of the schools,” which
indicates that it has no need to return to the prior version. See DeJohn, 537 F.3d at 310 (rejecting
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mootness argument where the defendant “defended and continues to defend not only the
constitutionality of its prior [policy], but also the need for the former policy”) (emphasis in
original).
Taken together, the Board’s conduct makes clear that “there is no reasonable expectation”
that the challenged policy will be revived after this lawsuit is dismissed. The Association’s claims
and requests for injunctive and declaratory relief therefore are moot.
III.

Conclusion
The Board’s motion to dismiss [D.E. 20] is granted and the complaint is dismissed. An

appropriate order will be entered.

/s/ Katharine S. Hayden
Katharine S. Hayden, U.S.D.J.

Date: June 30, 2015

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