Scicchitano et al v. Mt. Carmel Area School District et al
Filing
77
MEMORANDUM and ORDER denying 64 plaintiffs' Motion for New Trial Signed by Honorable James M. Munley on 9/27/11 (sm, )
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
DON FILIPPO SCICCHITANO
and CATERINA ANNA
SCICCHITANO,
Plaintiffs
v.
:
No. 4:09cv638
:
:
(Judge Munley)
:
:
:
MT. CARMEL AREA SCHOOL
:
DISTRICT, MARY JONES,
:
RICHARD BEIERSCHMITT,
:
CHERYL LATORRE, MARY ANN :
KRAKOWSKI, BART
:
McCOLLUM and ELAINE
:
BARTOL,
:
Defendants
:
::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::
MEMORANDUM
Before the court for disposition is the plaintiffs’ motion for post-trial
relief pursuant to Rules 50, 59 and 60 of the Federal Rules of Civil
Procedure. (Doc. 64). The motion has been briefed and is ripe for
disposition.
BACKGROUND
The plaintiffs filed their complaint in this case on April 7, 2009
claiming a violation of their First Amendment rights, their rights to privacy,
and their Equal Protection rights under the Fourteenth Amendment for their
suspension and expulsion from school. (Compl. (Doc. 1)). No motion to
dismiss or motion for summary judgment was filed.
Beginning on February 8, 2011, the court conducted a three-day trial,
the Honorable Yvette Kane, Chief Judge for the United States District
Court for the Middle District of Pennsylvania, presiding. Initially, the
plaintiffs raised four legal claims under 42 U.S.C. § 1983: (1) a First
Amendment retaliation claim; (2) a Fourteenth Amendment Equal
Protection claim; (3) a Fourteenth Amendment Substantive Due Process
claim; and (4) a claim for Monell liability against Defendant Mount Carmel
Area School District. (Trial Briefs (Docs. 48, 49); N.T., 2/8/11, p. 16, 33-34
(Doc. 67)). The plaintiffs abandoned their Substantive Due Process claim
during trial. (N.T., 2/9/11, p. 339 (Doc. 68)). The underlying factual
question at trial was whether the defendants disciplined the plaintiffs for the
plaintiffs’ violation of a dress code or whether the discipline was in
retaliation for the plaintiffs’ protest of the code.
Plaintiffs Don Filippo Scicchitano (“Filipp”) and Caterina Anna
Scicchitano (“Catie”) were students within Defendant Mount Carmel Area
School District (“the District”). Defendant Richard Beierschmitt was the
District’s superintendent. (Defs.’ Trial Brief (Doc. 49)). Defendant Cheryl
Latorre was the District’s assistant superintendent. (Id.) Defendant Mary
John was the District’s high school principal. (Id.) Defendant Mary Ann
Krakowski was the District’s elementary school principal. (Id.) Defendant
Bart McCollum was Filipp’s sixth grade teacher. (Id.) Defendant Elaine
Bartol was a teacher’s aide in the District. (Id.)1
Catie and Filipp were in fifth and sixth grade, respectively, in 2000
when the District instituted a new dress code. (N.T., 2/8/11 p. 61, 75, 11719 (Doc. 67)). The dress code mandated particular clothing styles and
colors. (N.T., 2/8/11 p. 61, 117-19). The code read, in part: “Boys: Khaki,
dark Navy slacks, no cargo or baggy style; khaki, dark Navy shorts at an
approved length, no cargo or baggy style; red, white, Navy blue, long- or
short-sleeved golf shirt, with or without approved logo; shoes, sneakers,
and coordinated socks.” (N.T., 2/8/11, p.119). Girls could also wear skirts
of an approved length. (N.T., 2/8/11, p. 117). The only logo approved was
the school logo– a tornado. (N.T., 2/9/11, p.172). All students in the
Defendant Mary Scicchitano, plaintiffs’ aunt, worked for the Central
Susquehanna Intermediate Unit and was assigned to work at the District.
(Defs.’ Trial Brief (Doc. 49)). She was dismissed by stipulation on January
24, 2011. (Doc. 44).
1
2
District were required to comply with the dress code and violations were
punished progressively; students were given the option to change clothes
and then faced detention, suspension, and finally expulsion for continued
violations. (N.T., 2/8/11 p. 62, 207-08; N.T., 2/9/11 p. 230, 268-70 (Doc.
68)).
At the beginning of the 2000 school year, the plaintiffs decided to
exercise their constitutional right to protest the dress code because they
felt the dress code limited their ability to express their individuality. (N.T.,
2/8/11 p. 64-66, 76). The plaintiffs also objected to the dress code
because it prohibited some liturgical colors of religious importance to them.
(N.T., 2/8/11 p. 105). The plaintiffs were granted a partial religious waiver
of the code which allowed the plaintiffs to incorporate liturgical colors into
their dress without punishment, so long as the clothing otherwise complied
with the code. (N.T. 2/8/11, p. 124-25). The parties came to an agreement
that permitted plaintiffs to wear logos protesting the dress code, so long as
the clothing otherwise complied with the code. (N.T., 2/8/11, p. 135, 16465, 172-73; N.T., 2/9/11, p. 262, 303, 306, 316).
Trial testimony showed a substantial disagreement between the
parties as to what behavior constituted valid protest and what constituted
mere nonconformity with the dress code. On many occasions, Filipp wore
clothing with logos which the District interpreted as not protesting the dress
code. (N.T., 2/8/11, p. 92 (shirt with word “logo”), p. 96 (shirt with picture of
“Slinky dog,” shirt with picture of “Squirtle” Pokemon character), 102, 14043 (comedian Jeff Foxworthy T-shirt listing “top ten reasons you know
you’re a redneck”); N.T., 2/9/11, p. 237 (“Slinky dog” picture), 240 (leaning
tower of Pisa), 243 (Secret Service emblem), 252-53 (State Department
“Diplomat,” “Nike”), 254-56 (Jeff Foxworthy T-shirt, Sylvester the cat, sheep
with beer)). Often, the offending logo was on a nonconforming style of
3
clothing, such as a T-shirt. (N.T., 2/9/11, p. 243 (Secret Service emblem
on nonconforming denim shirt), 254 (Jeff Foxworthy message on
nonconforming white T-shirt)). Filipp also wore outfits with logos which the
District admitted were clearly in protest of the dress code, but the outfits
did not otherwise comply with the dress code based on the clothing style or
color. (N.T., 2/8/11, p. 89-93, 95, 106, 172-173, 185, 197, 214; N.T.,
2/9/11, p. 235-36 (protest logo on nonconforming striped shirt), 238-239
(protest logo on nonconforming cream colored shirt), 243-246 (protest
logos on nonconforming white T-shirts), 254).2
Subjectively, Filipp believed that any clothing deviating from the
dress code necessarily constituted protest of the dress code. (N.T.,
2/8/11, p. 89-90 (blue shirt with nonconforming stripes “was in protest of
the policy, so thus it was not in compliance,” “it would be a protest, as we
were not allowed to have stripes”). Filipp explained how each
nonconforming logo or form of dress constituted a protest of the dress
code and why he chose the logos and styles. (N.T., 2/8/11, p. 77 (Filipp
and Catie planned each logo and article of clothing), 78, 141 (explaining
message intended by “Squirtle” Pokemon logo), 140 (explaining message
intended by “Slinky dog”), 141-43 (explaining message intended by Jeff
Foxworthy T-shirts), 92 (explaining message intended by Italy shirt), 93
(explaining message intended by “logo” logo)).3
Logos which the District admitted were clearly in protest of the
dress code will be referred to as “protest logos.” Logos which the District
interpreted as not protesting the dress code will be referred to as “disputed
logos.”
2
For instance, Carmine Scicchitano, testified that Filipp had chosen
the Jeff Foxworthy T-shirts as a form of protest based on the United States
Court of Appeals for the Third Circuit’s decision in Sypniewski v. Warren
3
4
Filipp was not disciplined when he wore protest logos on compliant
clothing. (N.T., 2/8/11, p. 172, 197; N.T., 2/9/11 p. 249-50, 262, 298).
However, on occasions where Filipp wore (1) logos the District did not
consider to be protest logos, that is, disputed logos, (2) protest logos on
nonconforming clothing styles or colors, or (3) liturgical colors on
nonconforming clothing styles Filipp was progressively disciplined; he was
sent to the student support room fifteen times for in-school suspension and
ultimately expelled from school in two consecutive school years. (N.T.,
2/8/11, p. 77, 190; N.T., 2/9/11, p. 233-34, 247-48).
Like Filipp, Catie wore logos that the District did not consider to be
protest logos. (N.T., 2/8/11 63 (snowflakes), 70 (flowers), N.T., 2/9/11 p.
297 (Disney characters, flowers)). Catie also wore protest logos on
nonconforming clothing. (N.T., 2/8/11, p. 62-65 (First and Fourteenth
Amendment language on nonconforming pink turtleneck)). Catie was
disciplined for dress code violations; she was sent to the student support
room ten times for in-school suspension and she ultimately withdrew from
Hills Reg. Bd. of Ed., 307 F.3d 243. Although then-eleven-year-old Filipp is
commended for having based his actions on decided cases, it bears noting
that this case does not in fact support his case. In Sypniewski, three
brothers sought a preliminary injunction against the school’s antiharassment policy and its dress code. The court ruled that the Jeff
Foxworthy redneck shirts at issue could not be prohibited under the
school’s anti-harassment policy without violating the First Amendment.
Interestingly, the only brother to have been disciplined for wearing the
Foxworthy shirt was suspended under the dress code– the code prohibited
clothing referring to alcohol and the shirt referred to the “Bud Bowl.”
Because this brother had graduated, he no longer had standing to seek
injunctive relief. Accordingly the Third Circuit had no occasion to decide
whether the school was within its rights to suspend the student for
nonconformity with the dress code.
5
school voluntarily. (N.T., 2/8/11, p. 66-67, 190).
On February 9, 2011, the plaintiffs rested their case and moved for a
directed verdict. (N.T., 2/9/11, p. 273). In support of their motion, the
plaintiffs argued that all of plaintiffs’ conduct was protest speech. (N.T.,
2/9/11, p. 273). Counsel for plaintiffs argued that nonconforming clothing
must be considered protest speech along with protest logos and liturgical
colors:
[T]he fact that they wore clothing that was out
of compliance with the dress code as part of their
protests certainly should be considered part of the
protest in the context of what these kids were doing.
One day they come with a protest logo, the
next day they come with a shirt out of compliance
and a protest logo, and then the next day they
come with just a shirt out of compliance. It's clear
what they were doing. It was clear that they were
being punished for what they were doing. They
were aware of the consequences of their actions,
and they were moving forward with their actions
because it was protests.
I think the reasonable inference, Your Honor,
is that all of their conduct was protests, and
because it did not disrupt the educational process, I
think it's protected, all of it is protected under the
First Amendment.
(N.T., 2/9/11, p. 277-78).
The defendants also moved for judgment as a matter of law at the close of
the plaintiffs’ case. (N.T., 2/9/11, p. 278). The court ruled that Defendants
Cheryl Latore, Mary Ann Krakowski, Bart McCollum, and Elaine Bartol
were entitled to qualified immunity after “finding that there was not a clearly
established constitutional right at the time of the actions in question.”
(N.T., 2/9/11, p. 338). The plaintiffs objected to this ruling on qualified
immunity. (N.T., 2/9/11, p. 339).
On February 9, 2011, the court also decided that “the jury will be
instructed, at plaintiffs’ request, that there is a First Amendment protected
speech right for the wearing of logos protesting the school uniform, and the
wearing of liturgical colors, and that the Court will decide, as a matter of
6
law, should the jury find a retaliation based on non-conforming clothing as
a form of protest, whether or not that activity is entitled to any First
Amendment protection.” (N.T., 2/9/11, p. 339). Plaintiffs and Defendants
had no objections to this proposed instruction or the verdict sheet. (N.T.,
2/9/11, p. 339). Testimony concluded on February 9, 2011.
On February 10, 2011, at sidebar before instructing the jury, the court
ruled as a matter of law that plaintiffs’ wearing of nonconforming clothing
was not a protected activity. (N.T., 2/10/11, p. 358, 363). The court then
instructed the jury as follows:
The second element of plaintiffs’ [Section
1983 claim] is that defendants deprived them of
their federal constitutional rights. In this case, there
are two constitutional rights involved: the First
Amendment right to free speech and the Fourteenth
Amendment right to equal protection. I will discuss
these separately.
First, the First Amendment claim. The First
Amendment to the United States Constitution gives
persons a right to free speech, association, and the
right to petition the government for redress of their
grievances. Here, Plaintiffs Don Filippo and
Caterina Anna Scicchitano claim that they engaged
in constitutionally protected speech by wearing
certain clothing to school that was in violation of the
school district’s dress code which Plaintiffs claim
was a substantial or motivating factor in defendants’
actions in disciplining them.
What speech or expression is protected under
the First Amendment is a question of law for this
Court to answer. I am instructing you that the
following activities by plaintiffs constituted protected
speech or expression under the First Amendment:
Wearing logos protesting the school uniform policy
and wearing liturgical colors.
(N.T., 2/10/11, p. 397-98).
The plaintiffs had no objections to the jury instructions. (N.T., 2/10/11, p.
372-73, 408 (Doc. 69)). The plaintiffs also had no objections to the verdict
sheets. (N.T., 2/10/11, p. 373).
On February 10, 2011 the jury returned a verdict in favor of the
defendants against both plaintiffs. (Don Filippo Scicchitano Verdict Sheet
7
(Doc. 60), Caterina Anna Scicchitano Verdict Sheet (Doc. 62)). The verdict
sheets for both plaintiffs asked the jury:
Do you find that [Plaintiff] was disciplined by the
Mount Carmel Area School District for protesting
the dress code by:
Wearing clothing with logos?
YES
NO
Wearing liturgical colors?
YES
NO
Wearing nonconforming clothing? YES
NO
(Special Interrog. #1, Don Filippo Scicchitano Verdict Sheet (Doc. 60);
Special Interrog. #1, Caterina Anna Scicchitano Verdict Sheet (Doc. 62)).
The jury found that both plaintiffs were not disciplined for wearing clothing
with logos or for wearing liturgical colors. (Id.) The jury found that both
plaintiffs were disciplined for wearing nonconforming clothing. (Id.)
The verdict sheets for both plaintiffs then asked the jury:
Did [Plaintiff] prove, by a preponderance of the
evidence, that his protected speech was a
substantial or motivating factor in the alleged
retaliatory action by Defendants?
YES
NO
(Special Interrog. #2 Don Filippo Scicchitano Verdict Sheet (Doc. 60);
Special Interrog. #2, Caterina Anna Scicchitano Verdict Sheet (Doc. 62)).
The jury found that the plaintiffs had not satisfied their burden of proof on
this element. (Id.)
The verdict sheets for both plaintiffs also asked the jury:
Did [Plaintiff] prove, by a preponderance of the
evidence, that Defendants intentionally treated him
differently from other students who were similarly
situated?
YES
NO
(Special Interrog. #3 Don Filippo Scicchitano Verdict Sheet (Doc. 60);
Special Interrog. #3, Caterina Anna Scicchitano Verdict Sheet (Doc. 62)).
The jury found that the plaintiffs had not satisfied their burden of proof on
this element. (Id.) Accordingly, judgment was entered in favor of the
defendants and against the plaintiffs. (J. (Doc. 63).
8
On March 9, 2011, the plaintiffs filed their post-trial motion. (Doc.
64). On March 29, 2011 this case was re-assigned to the undersigned
judge, bringing the case to its present posture. (Doc. 66).
JURISDICTION
The court has federal question jurisdiction over this civil rights action
brought under 42 U.S.C. § 1983. See 28 U.S.C. § 1331 (“The district
courts shall have original jurisdiction of all civil actions arising under the
Constitution, laws, or treaties of the United States.”); 28 U.S.C. §§
1343(a)(3), (4) (granting district courts jurisdiction over civil actions brought
to redress deprivations of constitutional or statutory rights by way of
damages or equitable relief).
LEGAL STANDARD
The plaintiffs move for judgment as a matter of law pursuant to
Federal Rule of Civil Procedure 50(b). Rule 50 provides that after a party
has been heard on an issue at a jury trial the court may order judgment as
a matter of law if it finds that a reasonable jury would not have a legally
sufficient evidentiary basis to find for the party on that issue. FED. R. CIV.
P. 50(a). Rule 50(b) involves renewing the motion after trial:
If the court does not grant a motion for judgment as
a matter of law made under Rule 50(a), the court is
considered to have submitted the action to the jury
subject to the court's later deciding the legal
questions raised by the motion. No later than 28
days after the entry of judgment . . . the movant
may file a renewed motion for judgment as a matter
of law and may include an alternative or joint
request for a new trial under Rule 59. In ruling on
the renewed motion, the court may:
(1) allow judgment on the verdict, if the jury
returned a verdict;
(2) order a new trial; or
(3) direct the entry of judgment as a matter of
law.
FED. R. CIV. P. 50(b).
The Third Circuit Court of Appeals has set forth the standard of
9
review we must follow in a motion for judgment as a matter of law as
follows: “The legal foundation for the factfinder's verdict is reviewed de
novo while factual findings are reviewed to determine whether the evidence
and justifiable inferences most favorable to the prevailing party afford any
rational basis for the verdict.” Intermilo, Inc. v. I.P. Enterprises, Inc., 19
F.3d 890, 892 (3d Cir. 1994) (internal quotations marks omitted). “A judge
may overturn a jury verdict only when, as a matter of law, the record is
critically deficient of that minimum quantity of evidence from which a jury
might reasonably afford relief.” Raiczyk v. Ocean County Veterinary Hosp.,
377 F.3d 266, 268 (3d Cir. 2004) (quotations and citations omitted).4
DISCUSSION
The plaintiffs raise three basic arguments. First, they “renew their
motion under Rule 50 for a directed verdict on the grounds that the
evidence clearly shows that on several occasions, the plaintiffs were
disciplined exclusively for wearing logos already held to be protected
speech as a matter of law by the Third Circuit.” (Post-Trial Mot. ¶ 2 (Doc.
64)). Second, they argue that “the Court erred as a matter of law in
granting qualified immunity to certain of the defendants and not permitting
the case to proceed to the jury as against them.” (Id. ¶ 3). Finally, the
plaintiffs argue that “the evidence was otherwise clearly sufficient to
support a verdict in favor of plaintiffs under appropriate verdict questions.”
(Id. ¶4). We will address each argument in turn.
Besides their renewed motion for judgment as a matter of law under
Rule 50(b) of the Federal Rules of Civil Procedure, the plaintiffs also move
for a new trial under Rule 59 and for relief from judgment under Rule 60.
The merits of the plaintiffs’ arguments will be addressed with respect to
their motion under Rule 50(b), and that analysis will underlie our ruling with
respect to their motions under Rules 59 and 60.
4
10
1. Whether Court Erred in Ruling that Merely Nonconforming Clothing
Was Not First Amendment Speech
“The Supreme Court has explicitly held that an individual has a viable
claim against the government when he is able to prove that the
government took action against him in retaliation for his exercise of First
Amendment rights.” Anderson v. Davila, 125 F.3d 148, 160 (3d Cir. 1997)
(citing Mt. Healthy City Sch. Dist. Bd. of Ed. v. Doyle, 429 U.S. 274, 283
(1977)). A First Amendment retaliation claim under 42 U.S.C. § 1983
requires that plaintiffs “show (1) that they engaged in a protected activity,
(2) that defendants' retaliatory action was sufficient to deter a person of
ordinary firmness from exercising his or her rights, and (3) that there was a
causal connection between the protected activity and the retaliatory
action.” Lauren W. ex rel. Jean W. v. DeFlaminis, 480 F.3d 259, 267 (3d
Cir. 2007) (citing Thomas v. Independence Twp., 463 F.3d 285, 296 (3d
Cir. 2006); Estate of Smith v. Marasco, 318 F.3d 497, 512 (3d Cir. 2003)).
The First Amendment protects not only free speech, but also
communicative conduct. “In deciding whether particular conduct
possesses sufficient communicative elements to bring the First
Amendment into play, we have asked whether ‘[a]n intent to convey a
particularized message was present, and [whether] the likelihood was
great that the message would be understood by those who viewed it.’”
Texas v. Johnson, 491 U.S. 397, 404 (U.S. 1989) (quoting Spence v.
Washington, 418 U.S. 405 at 410-11 (1974)). However, “a narrow,
succinctly articulable message is not a condition of constitutional
protection.” Hurley v. Irish-American Gay, Lesbian & Bisexual Group of
Boston, 515 U.S. 557, 569 (1995).
Although “federal courts generally exercise restraint when
considering issues within the purview of public school officials. . . [t]he
11
authority of public school officials is not boundless[.] The First Amendment
unquestionably protects the free speech rights of students in public
school.” J.S. ex rel. Snyder v. Blue Mountain Sch. Dist., – F.3d –, No. 084138, 2011 WL 2305973 at *7 (3d Cir. June 13, 2011) (citing Board of
Educ., Island Trees Union Free Sch. Dist. v. Pico, 457 U.S. 853, 864
(1982); Morse v. Frederick, 551 U.S. 393, 396 (2007)).
The [Supreme Court in Tinker v. Des Moines Indep.
Comm. Sch. Dist., 393 U.S. 503 (1969)] held that
‘to justify prohibition of a particular expression of
opinion,’ school officials must demonstrate that ‘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 (emphasis added)
(quotation marks omitted). This burden cannot be
met if school officials are driven by ‘a mere desire to
avoid the discomfort and unpleasantness that
always accompany an unpopular viewpoint.’ Id.
Moreover, ‘Tinker requires a specific and significant
fear of disruption, not just some remote
apprehension of disturbance.’ Saxe v. State Coll.
Area Sch. Dist., 240 F.3d 200, 211 (3d Cir. 2001).
J.S., 2011 WL 2305973 at *7.
The contours of free speech rights in the school context are further
explained by the United States Court of Appeals for the Third Circuit in
Saxe:
Under [Bethel Sch. Dist. v. Fraser, 478 U.S. 675
(U.S. 1986)], a school may categorically prohibit
lewd, vulgar or profane language. Under
[Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260,
286 (U.S. 1988)], a school may regulate
school-sponsored speech (that is, speech that a
reasonable observer would view as the school's
own speech) on the basis of any legitimate
pedagogical concern. Speech falling outside of
these categories is subject to Tinker’s general rule:
it may be regulated only if it would substantially
disrupt school operations or interfere with the right
of others.
Saxe, 240 F.3d at 214.
The plaintiffs argue that the court erred by ruling that the District
could not, as a matter of law, have violated plaintiffs’ First Amendment
12
rights for disciplining plaintiffs for noncompliance with the dress code given
the totality of plaintiffs’ protest. Plaintiffs argue that such nonconforming
clothing was, in fact, expressive conduct in protest of the dress code, and
that the special interrogatory– asking the jury to specify what conduct led
to discipline– was artificial. The plaintiffs argue that, rather than parsing
each type of activity, the court should have only asked whether the
plaintiffs’ speech caused a disruption justifying discipline. Finally, plaintiffs
argue that there was no evidence of disruption or obscenity.
The defendants respond that the special interrogatory was not error.
The defendants argue that the plaintiffs did not establish that they were
disciplined for protesting the dress code. Rather, the plaintiffs were largely
disciplined merely for wearing clothes that were not in compliance with the
dress code and which gave no outward message of protest. Further,
defendants argue that the plaintiffs would have received the same
discipline absent the alleged protected activity– the plaintiffs received
progressive discipline for nonconforming clothing like other code violators.
The defendants liken this case to Blau v. Fort Thomas Public School
District, where the United States Court of Appeals for the Sixth Circuit
addressed whether or not a student’s refusal to comply with a school dress
code constituted protected speech in and of itself. 401 F.3d 381 (6th Cir.
2005). There, a twelve-year-old student and her father challenged a dress
code on the basis that the student preferred clothes in which she felt good
and which allowed her to express her individuality. Id. at 386. The student
there did not violate the dress code or receive discipline. The Sixth Circuit
ruled that the school district did not violate the student’s First Amendment
rights because the plaintiffs could not show that the First Amendment
protected the student’s “generalized and vague desire to express her
middle-school individuality.” Id. at 389. The court ruled that the plaintiffs
13
had not established “that the desired conduct (e.g., the desired clothing)
can fairly be described as imbued with elements of communication, which
conveys a particularized message that will be understood by those who
view [it.]” Id. at 390 (internal quotations ommitted) (citing Johson, 491 U.S.
at 406; Spence, 418 U.S. at 411). The court noted that the Supreme
Court, in Tinker, “expressly contrasted the right to wear a black arm band,
a ‘direct, primary First Amendment right[] akin to ‘pure speech,’’ with the
permissible ‘regulation of the length of skirts or the type of clothing, to hair
style, or deportment.’” Blau, 401 F.3d at 389 (quoting Tinker, 393 U.S. at
507-08).
We begin our analysis by noting that there was a legally sufficient
factual basis for the jury to find that the plaintiffs were never disciplined for
wearing logos on otherwise compliant clothing or for wearing liturgical
colors on otherwise compliant clothing, as described in the background
section, above. There was also a legally sufficient factual basis for the jury
to find that the plaintiffs were disciplined for wearing nonconforming
clothing. Specifically, the trial testimony established that the plaintiffs
received discipline for three distinct clothing scenarios: (1) nonconforming
clothing styles or colors with no logos and no liturgical colors; (2)
nonconforming clothing styles or colors with disputed logos; and (3)
nonconforming clothing styles or colors with protest logos.
These premises leave the court with a purely legal question. To wit,
whether it was error for the court to rule as a matter of law that the District
could discipline plaintiffs for nonconforming clothing– regardless of whether
that nonconforming clothing incorporated protest logos or liturgical colors–
because such clothing was not protected activity under the First
Amendment. The plaintiffs have presented no case that can reasonably be
read to hold that wearing nonconforming clothing is protected activity. The
14
plaintiffs argue that Saxe supports their position. Saxe says that a school
can automatically prohibit profane or obscene speech and regulate
“school-sponsored speech,” but otherwise can only regulate speech if it is
disruptive, under Tinker. Those propositions are not at issue, however,
because they presuppose speech, and the court cannot do so here.
Instead we must ask whether “[a]n intent to convey a particularized
message was present, and [whether] the likelihood was great that the
message would be understood by those who viewed it.” Johnson, 491
U.S. at 404.
At trial the court determined that the plaintiffs’ nonconforming clothing
was insufficiently communicative to those viewing it, despite the plaintiffs’
intent. Plaintiffs argue, however, that plaintiffs’ nonconformity with the
dress code in this case was necessarily in protest of the code and
necessarily expressive conduct amounting to a protected activity. The
logical conclusion of that argument is that the dress code itself is
unconstitutional. Essentially, under plaintiffs’ theory, no student need ever
comply with a dress code so long as the student adds protest logos on
enough occasions that it is clear to others that he or she is protesting the
dress code. That argument is inconsistent, however, with plaintiffs’
counsel’s admission at trial that schools are entitled to adopt and enforce
dress codes. (N.T., 2/9/11, p. 275 (“I think that schools can, as clearly
state law provides, that a school can have a dress code. Clearly they can
enforce a dress code.”)). The court resolved the plaintiffs’ logical
inconsistency simply enough– by ruling that mere nonconformity with a
dress code is not expressive conduct. The court does not now consider
that ruling to be error.
Having made that determination, it was also not error for the court to
“parse” out the plaintiffs’ various forms of conduct in the verdict sheets.
15
The court properly asked the jury to find facts; specifically, what conduct
led to discipline. The plaintiffs would prefer that the jury have been asked
simply whether the plaintiffs were disciplined for engaging in a totality of
conduct consisting of the following: wearing nonconforming clothing,
wearing protest logos and wearing liturgical colors. Such an interrogatory
would beg the question and conflate the role of the court and jury. What
conduct constitutes speech is a question of law. Essentially, the plaintiffs
would entitle the jury to make a finding that nonconforming clothing is
expressive conduct so long as it is accompanied– either in that outfit or on
other days– with admitted protest logos. That determination is plainly not
one for the jury, under First Amendment law, and had already been made
by the court– in the negative. Therefore it was not error for the court to ask
the jury to identify what conduct led to discipline. Accordingly, the plaintiffs
motion will be denied on this issue.
2. Wether Court Erred in Granting Qualified Immunity
The court granted qualified immunity to Defendants Cheryl Latore,
Mary Ann Krakowski, Bart McCollum, and Elaine Bartol. Qualified
immunity protects public officials “‘from undue interference with their duties
and from potentially disabling threats of liability.’” Wright v. City of
Philadelphia, 409 F.3d 595, 599 (3d Cir. 2005) (quoting Elder v. Holloway,
510 U.S. 510, 514 (1994)). The doctrine does not apply when state
officials “violate ‘clearly established statutory or constitutional rights of
which a reasonable person would have known.’” Id. at 599-600 (quoting
Harlow v. Fitzgerald, 457 U.S. 800, 806 (1982)). Therefore, the court must
examine: (1) whether the officials violated a constitutional right, and (2)
whether that right was clearly established at the time. Id.; Saucier v. Katz,
533 U.S. 194, 201-02 (2001).
Plaintiffs argue, in a continuation of their First Amendment argument,
16
that the court erred in granting qualified immunity. The plaintiffs argue that
the court’s ruling on what activity constituted speech underlaid its grant of
qualified immunity. Plaintiffs argue that the law, as stated in Saxe, is clear
and not in flux. The defendants respond that the defendants had a good
faith belief that the dress code, and their enforcement of it, was
constitutional. The defendants note that the dress code was implemented
upon advice of counsel. Finally, they argue that even if the plaintiffs’
constitutional rights were violated, such rights were not clearly established
at that time.
The defendants were entitled to qualified immunity because, at the
relevant time, there was no clearly established constitutional right to wear
nonconforming clothing in protest of a dress code– even if that
nonconforming clothing was accompanied some days with a protest logo.
On this issue the court defers to its analysis, above, that the court did not
err at trial in ruling that nonconforming clothing was not protected activity
under the First Amendment. Accordingly, we determine that Defendants
Cheryl Latore, Mary Ann Krakowski, Bart McCollum, and Elaine Bartol
were entitled to qualified immunity and plaintiffs’ motion will be denied.
3. Whether Plaintiffs Were Entitled to a Directed Verdict
The plaintiffs argue that they were disciplined because they protested
the dress code, not because of nonconformity with the code. Plaintiffs
state “[t]he evidence was clear and unequivocal throughout that the
Plaintiffs were singled out, not because they were out of compliance with
the dress code, but because they were protestors of the code. . . .” (Br.
Supp. (Doc. 75 at 12)). The plaintiffs argue they presented “sufficient
evidence” to establish their Equal Protection and First Amendment claims.
Regarding First Amendment claim, the plaintiffs were not entitled to
directed verdict because there was conflicting testimony over what led to
17
plaintiffs’ discipline. The plaintiffs’ believed, and their counsel argued, that
all of the discipline that the plaintiffs received was because of their protest.
The defendants testified that they applied the dress code to all students
and that on each occasion in which the plaintiffs received discipline, their
clothing was not in conformance with the dress code. The jury ultimately
found that plaintiffs were not disciplined for wearing protest logos and
liturgical colors– the only protected speech the plaintiffs engaged in. That
finding is fully supported by the evidence. Accordingly, the plaintiffs’
motion will be denied with respect to whether plaintiffs were entitled to a
directed verdict on their First Amendment claim.
With respect to plaintiffs’ Equal Protection claim, the defendants
argue that the plaintiffs did not show that the plaintiffs were arbitrarily
treated differently from similarly situated students. Plaintiffs got the same
progressive discipline everyone else got, only no one else progressed to
expulsion.
Regarding the Equal Protection claim we determine that the plaintiffs
were not entitled to a directed verdict. “To bring a successful claim under
42 U.S.C. § 1983 for denial of equal protection, plaintiffs must prove the
existence of purposeful discrimination.” Andrews v. City of Phila., 895 F.2d
1469, 1478 (3d Cir. 1990). Further, the plaintiff must show that he
“‘received different treatment from that received by other individuals
similarly situated.’” Id. (quoting Kuhar v. Greensburg-Salem Sch. Dist., 616
F.2d 676, 677 n.1 (3d Cir. 1980)). The defendants testified that they did
not single plaintiffs out for enforcement and that the dress code was
enforced against all students equally. (N.T., 2/9/11, p. 259, 269). The jury
ultimately credited this testimony and found that the plaintiffs had not
shown that they were treated differently from similarly situated students.
That finding is fully supported by the evidence. Accordingly, the plaintiffs’
18
motion will be denied with respect to whether plaintiffs were entitled to a
directed verdict on their Equal Protection claim.
CONCLUSION
For the reasons stated above, the plaintiffs’ post-trial motion will be
denied. An appropriate order follows.
19
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
DON FILIPPO SCICCHITANO
and CATERINA ANNA
SCICCHITANO,
Plaintiffs
v.
:
No. 4:09cv638
:
:
(JUDGE MUNLEY)
:
:
:
MT. CARMEL AREA SCHOOL
:
DISTRICT, MARY JONES,
:
RICHARD BEIERSCHMITT,
:
CHERYL LATORRE, MARY ANN :
KRAKOWSKI, BART
:
McCOLLUM and ELAINE
:
BARTOL,
:
Defendants
:
::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::
ORDER
AND NOW, to wit, this 27th day of September 2011, upon
consideration of plaintiffs’ motion for post-trial relief pursuant to Rules 50,
59 and 60 of the Federal Rules of Civil Procedure (Doc. 64), it is HEREBY
ORDERED that the motion is DENIED.
BY THE COURT:
S/ James M. Munley
JUDGE JAMES M. MUNLEY
United States District Court
20
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