Parents Defending Education v. Olentangy Local School District Board of Education et al

Filing 35

OPINION AND ORDER denying 16 Motion to Dismiss for Lack of Jurisdiction. Signed by Chief Judge Algenon L. Marbley on 8/28/2024. (cw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
PARENTS DEFENDING EDUCATION,
Plaintiff,
v.
OLENTANGY LOCAL SCHOOL
DISTRICT BOARD OF EDUCATION,
et al.,
Defendants.

:
:
: Case No. 2:23-cv-1595
:
: Chief Judge Algenon L. Marbley
:
: Magistrate Judge Kimberly A. Jolson
:
:
:
:

OPINION AND ORDER
This matter is before this Court on Defendants’ Motion to Dismiss for Lack of Subject
Matter Jurisdiction and Standing. (ECF No. 16). For the reasons that follow, Defendants’ Motion
is DENIED.
I.

BACKGROUND

This Court has summarized the relevant facts of this case before (see ECF No. 28) and will
do so only briefly here. The Olentangy Local School District (“OLSD” or “the District”) is one
of the largest school districts in Ohio, operating over twenty schools in Delaware and Franklin
Counties.

Parents Defending Education (“PDE”), an organization that represents several

anonymous students and parents, brings this lawsuit against the OLSD Board of Education and
several OLSD officials to challenge three policies that prohibit discriminatory or harassing
language. Because the students and parents believe that the policies require students to affirm the
idea that gender is fluid through the use of preferred pronouns and infringe on the parents ability
to govern their children’s upbringing outside of school, PDE askes this Court to declare OLSD’s

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policies unconstitutional in violation of the First and Fourteenth Amendments and enjoin their
enforcement.
Policy 5517 prohibits students from engaging in discriminatory harassment or bullying
based on the personal characteristics of other students, such as their “race, color, national origin,
sex (including sexual orientation and gender identity), disability, age (except as authorized by law),
religion, ancestry, or genetic information.” (ECF No. 7-1). The policy defines harassment as
conduct that puts another student in reasonable fear of harm, substantially disrupts the orderly
operation of the school, or substantially interferes with a student’s educational performance. (Id.
at 2-3). Bullying, meanwhile, is defined as “any unwanted and repeated written, verbal, or physical
behavior, including any threatening, insulting, or dehumanizing gesture . . . that is severe or
pervasive enough to create an intimidating, hostile, of offensive educational or work environment;
cause discomfort or humiliation; or unreasonably interfere with the individual’s school or work
performance or participation.” (Id. at 2).
Another policy, Policy 5136, prohibits the use of personal devices to send messages that
threaten, humiliate, harass, embarrass, or intimidate other students, or that can be construed as
harassment or disparagement of others based on certain protected characteristics, including
transgender identity. (Id. at 2).
Finally, the student Code of Conduct prohibits speech that involves “discriminatory
language,” including jokes or slurs based on protected characteristics. (Id. at 9). The Code also
prohibits harassment, which is defined as conduct sufficiently “severe, persistent, or pervasive that
it creates an intimidating, threatening or abusive educational environment for the other student(s).”
(Id. at 16-17). These provisions are “in effect while students are under the authority of school
personnel or involved in any school activity,” and cover “[m]isconduct by a student that occurs off

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school district property but is connected to activities or incidents that have occurred on school
district property” or is “directed at a district official or employee.” (Id. at 8).
In February 2023, a parent emailed OLSD officials, asking the following:
If my devoutly Christian child who believes in two biological genders male/female
and that those genders are decided at conception by God, would they be forced to
use the pronouns that a transgender child identifies with or be subject to reprimand
from the district if they refuse to do so?
(ECF No. 7-2 at 13). OLSD’s counsel replied, explaining that “[a] student purposefully referring
to another student by using gendered language they know is contrary to the other student’s identity
would be an example of discrimination under Board Policy.” (Id.). When the parent then asked
if their child would be disciplined for expressing the “religious beliefs that marriage is between a
man and a woman OR that homosexuality is a sin,” the District explained that students would not
be disciplined for their religious beliefs. (Id.). The District also clarified that a student would be
permitted to seek accommodations to “avoid using pronouns where doing so would be contrary to
[their] religious beliefs.” (Id.).
A few months later, PDE, a nationwide membership organization whose members include
students enrolled in the School District and parents of enrolled students, filed this lawsuit. PDE
simultaneously requested a preliminary injunction on the basis of declarations from four
pseudonymous parents of OLSD students who believe that individuals cannot transition from one
gender to another, because biological sex is immutable. (See, e.g., Decl. of Parent A ¶¶ 4, 8, ECF
No. 7-3). Those students, according to their parents, “wish[] to use pronouns that are consistent
with a classmate’s biological sex, rather than the classmate’s ‘preferred pronouns’” in light of their
views, but that the students self-censor themselves because of the policy. (See e.g., id. at ¶¶ 11,
13-14).

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This Court adjudicated Plaintiff’s Motion for Preliminary Injunction, and concluded that
while “there is a substantial likelihood that PDE can establish Article III standing,” Plaintiff did
not demonstrate a substantial likelihood of success on the merits. (ECF No. 28 at 16, 39). After
weighing the preliminary injunction factors, this Court denied Plaintiff’s Motion. (Id. at 41). PDE
appealed the decision, but the Sixth Circuit affirmed this Court’s conclusion, agreeing that Plaintiff
had not demonstrated a likelihood of success on the merits of its claims. Parents Defending Educ.
v. Olentangy Loc. Sch. Dist. Bd. of Educ., 109 F.4th 453, 466 (6th Cir. 2024).
Now that the preliminary injunction issue has been resolved, this Court turns to
Defendants’ Motion to Dismiss the Complaint for Lack of Subject Matter Jurisdiction and
Standing. (ECF No. 16). Defendants challenge Plaintiff’s standing to bring both the students’
First Amendment claims and the parents’ Fourteenth Amendment claim for interference with
parental rights. (See id.). The Motion is ripe for review.
II.

STANDARD OF REVIEW

This Court’s jurisdiction is limited to the adjudication of “cases” and “controversies.” U.S.
Const. art. III, § 2. One characteristic of “cases” and “controversies” is that the plaintiff has
standing to bring them as lawsuits. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992). “In
essence the question of standing is whether the litigant is entitled to have the court decide the
merits of the dispute or of particular issues.” Warth v. Seldin, 422 U.S. 490, 498 (1975).
Standing is appropriately challenged under Rule 12(b)(1), In re Dublin Sec., Inc., 197 B.R.
66, 69 (S.D. Ohio 1996), aff’d, 133 F.3d 377 (6th Cir. 1997), which provides that the defendant
may file a motion to dismiss based on a “lack of jurisdiction over the subject matter.” Fed. R. Civ.
P. 12(b)(1). The Sixth Circuit recognizes two kinds of motions to dismiss for lack of standing
pursuant to Rule 12(b)(1): a facial attack and a factual attack. United States v. Ritchie, 15 F.3d

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592, 598 (6th Cir. 1994). A facial attack merely questions the sufficiency of the pleading. See id.
In deciding a facial motion to dismiss, much like in a motion to dismiss for failure to state a claim,
“the court must take the material allegations in the petition as true and construed in the light most
favorable to the nonmoving party.” Id. A factual attack, on the other hand, is an attack on the
factual existence of standing. See id. In deciding a factual motion to dismiss, “the court is free to
weigh the evidence and satisfy itself as to the existence of its power to hear the case.” Id. In either
case, “the plaintiff has the burden of proving jurisdiction in order to survive the motion.” Rogers
v. Stratton Indus., 798 F.2d 913, 915 (6th Cir. 1986).
Defendants assert that they are mounting a factual attack to Plaintiff’s standing, such that
no presumption of truthfulness applies to Plaintiff’s allegations. (ECF No. 16 at 7). They ground
this argument in the following quote: “A motion to dismiss in a declaratory judgment action,” such
as this one, “is considered a factual attack on subject matter jurisdiction.” Beach Sales & Eng’g,
LLC v. Telebrands, Corp., 2015 WL 1930337, at *1 (N.D. Ohio Apr. 28, 2015). But Beach Sales
and the case that it quotes, Google, Inc. v. EMSAT Advanced Geo-Location Tech., LLC, 2010 WL
55685, at *2 (N.D. Ohio Jan. 4, 2010), provide no analysis for the conclusion that a Rule 12(b)(1)
motion in a case including claims for declaratory judgment must always be a factual challenge.
Indeed, EMSAT justifies this conclusion simply by citing to a case in which the Defendant
submitted a declaration with its motion to dismiss, thereby “present[ing] a ‘factual’ rather than a
‘facial’ motion for dismissal under Rule 12(b)(1).” 3D Sys., Inc. v. Envisiontec, Inc., 575 F. Supp.
2d 799, 804-05 (E.D. Mich. 2008).
This Court sees no reason to extrapolate this seemingly case-specific conclusion to the
circumstance at hand, where Defendants submit no affidavits or declarations to challenge standing
but, instead, raise two issues of law: (1) whether PDE’s members’ use of pseudonyms undermines

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PDE’s associational standing; and (2) whether the challenged policies objectively chill speech.
These are issues of law that turn on the face of the complaint. “A factual attack . . . requires a
factual dispute.” Const. Party of Pennsylvania v. Aichele, 757 F.3d 347, 358 (3d Cir. 2014). But
no such factual disputes are present. Accordingly, this Court construes Defendants’ Motion as a
facial challenge to Plaintiff’s standing, thereby “tak[ing] the material allegations in the petition as
true and constru[ing them] in the light most favorable to the nonmoving party.” Ritchie, 15 F.3d
at 598.
III.

LAW & ANALYSIS

When an organization, such as PDE, brings suit, it may establish standing as an entity or
on behalf of its members. See Ne. Ohio Coal. For the Homeless v. Husted, 837 F.3d 612, 624 (6th
Cir. 2016). PDE pursues the latter route, known as associational or organizational standing.
Associational standing exists when: (1) “members would otherwise have standing to sue in their
own right”; (2) “the interests at stake are germane to the organization’s purpose”; and (3) “neither
the claim asserted nor the relief requested requires the participation of individual members in the
lawsuit.” Friends of the Earth, Inc. v. Laidlaw Env’t Servs., Inc., 528 U.S. 167, 181 (2000).
Defendants contest only the first prong: whether Students A-D and Parents A-D would have
standing to sue in their own right. To show that its members would have standing, PDE must show
that they have suffered “(1) an injury in fact that is (2) fairly traceable to the defendant’s conduct
and (3) likely to be redressed by a favorable judicial decision.” Memphis A. Philip Randolph Inst.
v. Hargett, 2 F.4th 548, 555 (6th Cir. 2021).
A. Pseudonyms
Before reaching the traditional standing factors, however, Defendants argue that Plaintiff
PDE does not have standing because the members it represents are identified through pseudonyms.

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In Defendants’ view, cases in which courts have used the words “name” or “naming” to describe
what organizations must do with respect to their members in order to show standing require
organizational plaintiffs to reveal the legal names of their members. For example, in Summers v.
Earth Island Inst., the Supreme Court summarized an earlier case, FW/PBS, Inc. v. Dallas, 493
U.S. 215, 235 (1990), in which the Court “noted that the affidavit provided by the city to establish
standing would be insufficient because it did not name the individuals who were harmed . . .” 555
U.S. 488, 498 (2009) (emphasis added). The Sixth Circuit later quoted this language, explaining
that “[t]o establish organizational standing, ‘plaintiff-organizations [must] make specific
allegations establishing that at least one identified member had suffered or would suffer harm’”
and that “[s]uch specificity requires that the plaintiff-organization ‘name the individuals who were
harmed.’” Tennessee Republican Party v. Sec. & Exch. Comm’n, 863 F.3d 507, 520 (6th Cir.
2017) (emphasis added).
But, as Plaintiff argues, it is clear from the context of those cases, and the language of the
cases on which they rely, that those courts were explaining that individual members must be
“identified,” not legally named. For example, in Summers, the Court raised the issue of “naming”
while rejecting a theory of standing based on the associations’ “self-descriptions of their
membership” and “statistical probabilities,” as opposed to “individual affidavits,” because the
former approach only indicated a likelihood that an individual had been harmed, not a certainty.
555 U.S. at 498-99.

The Court’s concern was not pseudonyms—indeed, there were no

pseudonymously identified members in Summers—but the identification of any specific members
whatsoever. Id.; see also FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 235 (1990), holding
modified by City of Littleton, Colo. v. Z.J. Gifts D-4, L.L.C., 541 U.S. 774 (2004) (noting that a
submission “fails to identify the individuals whose licenses were revoked”) (emphasis added).

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In other words, “requiring an organizational plaintiff to tie its injury to specific, identifiable
members is not equivalent to requiring that plaintiff to name those members at the pleading stage.”
Humane Soc’y of the United States v. United States Dep’t of Agric., 2021 WL 1593243, at *5 (C.D.
Cal. Mar. 26, 2021); see also Advocs. for Highway & Auto Safety v. Fed. Motor Carrier Safety
Admin., 41 F.4th 586, 594 (D.C. Cir. 2022) (explaining that even though “we do not know the
names of the individuals in the survey, . . . anonymity is no barrier to standing on this record.”).
This conclusion stands to reason because “[n]aming those members adds no essential information
bearing on the injury component of standing,” so long as “the requirements of ‘injury in fact’ and
causation have been met.” Hotel & Rest. Emps. Union, Local 25 v. Smith, 846 F.2d 1499, 1506
(D.C. Cir. 1988) (Mikva, J., separate opinion). Having concluded that pseudonymity presents no
obstacle here, this Court turns now to the traditional standing requirements.
B. Standing Requirements
As mentioned above, standing doctrine requires plaintiffs to show that they have suffered
“(1) an injury in fact that is (2) fairly traceable to the defendant’s conduct and (3) likely to be
redressed by a favorable judicial decision.” Hargett, 2 F.4th at 555. Plaintiff brings claims on
behalf of both parents and students.
1.

Students’ Standing: First Amendment Claims

At the outset, it is worth noting that PDE generally identifies two categories of speech the
students it represents wish to engage in: (1) the use of pronouns differing from those preferred by
transgender students; and (2) speech questioning the prevalence of gender dysphoria and
discussing issues of gender identity. But in its response to Defendants’ Motion to Dismiss, PDE
focuses entirely on its standing to challenge the policies on the grounds that they prohibit students
from using pronouns other than those preferred by transgender classmates. As a result, this Court

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limits its analysis to that theory of the case. Specifically, Plaintiff alleges that requiring students
to use other students’ preferred pronouns constitutes compelled speech in violation of the First
Amendment and seeks declaratory relief invalidating the relevant regulations and enjoining
Defendants from requiring students to use pronouns that may differ from those that accord with
other students’ sex at birth. (ECF No. 1 ¶¶ 150-59). It also alleges that the policies amount to
unconstitutional content- and viewpoint-based discrimination and are overbroad. (Id. ¶¶ 160-79).
None of the students represented by PDE has been disciplined by the school for using nonpreferred pronouns, so this case arises in a pre-enforcement posture. See e.g., 303 Creative LLC
v. Elenis, 600 U.S. 570, 597 (2023) (deciding a pre-enforcement free speech challenge). Article III
does not require a plaintiff—or its members—to have endured “an actual arrest, prosecution, or
other enforcement action.” Susan B. Anthony List v. Driehaus, 573 U.S. 149, 158 (2014). Instead,
to show injury-in-fact in the First Amendment pre-enforcement context, such that an injunction is
justified, plaintiffs must show that: “(1) they intend to engage in expression that the Free Speech
Clause arguably protects, (2) their expression is arguably proscribed by the challenged [rules], and
(3) they face a credible threat of enforcement from those [r]ules.” Fischer v. Thomas, 52 F.4th
303, 307 (6th Cir. 2022).

And “[o]btaining standing for declaratory relief has the same

requirements as obtaining standing for injunctive relief.” Kanuszewski v. Michigan Dep’t of
Health & Hum. Servs., 927 F.3d 396, 406 (6th Cir. 2019).
With respect to the first factor, as this Court identified in its Preliminary Injunction Opinion
& Order, “declarations provided by PDE show” that “the children of Parents A-D wish to engage
in speech that the Free Speech Clause arguably protects.” (ECF No. 28 at 12 (citing Decl. of Parent
A ¶ 10, ECF No. 7-3). And in affirming this Court’s denial of PDE’s request for a preliminary
injunction, the Sixth Circuit confirmed that “[t]he intentional use of preferred or non-preferred

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pronouns . . . represents speech protected by the First Amendment.” Parents Defending Educ.,
109 F.4th at 466; see also Meriwether v. Hartop, 992 F.3d 492, 508 (6th Cir. 2021) (reaching the
same conclusion in the university context).
With respect to the second factor, Defendants have confirmed that purposeful references
to students’ non-preferred pronouns would violate District policy. (ECF No. 13-1 (“A student
purposefully referring to another student by using gendered language they know is contrary to the
other student’s identity would be an example of discrimination under Board Policy.”). Naturally,
such expression is at least arguably proscribed by the challenged rules.
The Parties devote the bulk of their briefing to the third factor: whether there is a credible
threat of enforcement. Many of Defendants’ arguments conflate the students’ desire to use nonpreferred pronouns and their desire to speak freely about their abstract beliefs without fear of
discipline, the latter of which Defendants disavow any interest in prohibiting. But once the
analysis is appropriately focused on the use of non-preferred pronouns, it becomes clear that there
is a credible threat of enforcement.
“To identify a credible threat of enforcement, the first and most important factor is whether
the challenged action chills speech.” Fischer, 52 F.4th at 307. Although “mere allegations of a
‘subjective chill’ on protected speech are insufficient to establish an injury-in-fact for preenforcement standing purposes,” when a subjective chill, like the one Plaintiff alleges here, is
coupled with “some combination” of certain reoccurring factors, courts generally conclude that a
plaintiff has established a credible threat of enforcement. McKay v. Federspiel, 823 F.3d 862,
868-69 (6th Cir. 2016). The reoccurring, but non-exhaustive, factors are as follows:
(1) Does the relevant prosecuting entity have a prior history of enforcing the
challenged provision against the plaintiffs or others? (2) Has that entity sent
warning letters to the plaintiffs regarding their conduct? (3) Does the challenged
regulatory regime make enforcement easier or more likely? and (4) Did the
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prosecuting entity refuse to disavow enforcement of the challenged provision
against the plaintiffs?
Fischer, 52 F.4th at 307.
Taking these considerations in turn, the record here contains no indication that the District
has enforced these challenged provisions against Plaintiff or others. And because this is a preenforcement challenge, it is unsurprising that Defendants have not sent warning letters to the
students regarding their conduct. The third and fourth factors, however, are satisfied. Plaintiff
alleges that anyone can report perceived bias through the District’s “Stay Safe Speak Up Helpline,”
(ECF No. 1 ¶ 60), which resembles bias-reporting systems that have been found to increase the
likelihood of enforcement. See Fischer, 52 F.4th at 308. More important is the District’s refusal
to disavow enforcement, explaining to parents that “[a] student purposefully referring to another
student by using gendered language they know is contrary to the other student’s identity would be
an example of discrimination under Board Policy.” (ECF No. 13-1 at 2).
It is these objective indicia of the likelihood of enforcement that distinguish this case from
Morrison v. Bd. of Educ. of Boyd Cnty., 521 F.3d 602, 610 (6th Cir. 2008), on which Defendants
rely. There, a student brought an as-applied pre-enforcement challenge for nominal damages,
arguing that his school board’s policies in the 2004-05 school year chilled his speech. Id. at 608.
But unlike the case sub judice, Morrison could not “point to anything beyond his own ‘subjective
apprehension and a personal (self-imposed) unwillingness to communicate.’” Id. at 610. Here,
the students have every reason to believe that the policies will be enforced against them, should
they choose to speak as they wish: when a parent asked whether their child would be punished for
referring to children by non-preferred pronouns, the District responded by explaining that such
behavior would amount to discrimination under the District’s policies.

And the policies

themselves explain that they will be “vigorously enforced.” (ECF No. 7-1 at 6). It is, therefore,
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evident that there is a credible threat that Defendants will enforce the relevant policies against
students who purposefully use non-preferred pronouns.
The Parties do not raise causation and redressability, but this Court finds that they, too, are
satisfied.

Plaintiff has shown causation because its members’ anticipated harms are “fairly

traceable” to Defendants—the District and its officials—and, if granted, the injunctive and
declaratory relief Plaintiff seeks is likely to redress any future harms the students may suffer from
the policies and their enforcement. In sum, Plaintiff has shown that is has standing to challenge
the relevant policies on behalf of the identified students on First Amendment grounds.
2.

Parents’ Standing: Fourteenth Amendment Claims

Plaintiff also alleges that Parent-members A-D have been injured through the relevant
policies’ intrusion into their “right to raise their children beyond the schoolhouse gate,” in violation
of the substantive due process secured by the Fourteenth Amendment. (ECF No. 1 ¶ 187).
Specifically, Plaintiff argues that “by prohibiting off-campus speech, including speech not during
a school-sponsored activity, the Policies also violate parents’ ‘fundamental right[s] . . . to make
decisions concerning the care, custody, and control of their children.’” (Id. ¶ 189 (quoting Troxel
v. Granville, 530 U.S. 57, 66 (2000))).
In their Motion to Dismiss, Defendants argue that Plaintiff does not have standing to bring
this claim on behalf of the parents because parents’ right to direct the instruction that children
receive in public schools is limited, and nothing in the policies proscribes parents from discussing
gender identity with their children in their own homes.1 These are arguments perhaps well-suited

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In hopes of honing the focus of litigation as it proceeds, this Court notes that it does not read Plaintiff’s Fourteenth
Amendment claim as alleging that the subject somehow policies govern private, kitchen-table conversations between
a parent and child. Instead, Plaintiff alleges that the policies impermissibly restrict students from discussing these
“topics with other students and the Olentangy community on and off campus, including during off-campus activities
with no connection to any school-related activity.” (ECF No. 1 ¶ 97).

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for challenging whether Plaintiff has stated a claim on the merits. Standing, however, “in no way
depends on the merits of the plaintiff’s contention that particular conduct is illegal.” Warth, 422
U.S. at 500. Instead, this Court “must assume that ‘if proved in a proper case,’ Defendants’ alleged
practices ‘would be adjudged violative of the [Plaintiff’s] constitutional rights.’” Kanuszewski,
927 F.3d at 407 (quoting Warth, 422 U.S. at 502). Accordingly, this Court assumes that Plaintiff
will be able to prove that its allegations amount to a Fourteenth Amendment violation.
Plaintiff’s allegations that the subject policies interfere with parents’ right to control their
children’s upbringing represent an ongoing harm sufficient to confer standing such that Plaintiff
may seek injunctive and declaratory relief on behalf of its members. Indeed, “[t]he Supreme Court
has held that parents have standing when the state interferes with their right to control the
upbringing of their children.” Id. And, taking Plaintiff’s allegations as true, these ongoing harms
are fairly traceable to the policies promulgated and enforced by Defendants, and thereby,
redressable through declaratory and injunctive relief. In sum, Plaintiff has standing to challenge
the policies on behalf of Parents A-D.
IV.

CONCLUSION

For the foregoing reasons, Defendants’ Motion to Dismiss for Lack of Subject Matter
Jurisdiction and Standing (ECF No. 16) is DENIED.
IT IS SO ORDERED.

ALGENON L. MARBLEY
CHIEF UNITED STATES DISTRICT JUDGE
DATE: August 28, 2024

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