HILLMAN, District Judge.
Beginning in November 2006, and continuing at least through November 2009, in order for a student to participate in extracurricular activities, such as a school-sponsored sports team, the Haddonfield Board of Education ("HBOE") required the student's parent to provide unqualified consent to a school policy that precludes the child from any involvement with drugs and alcohol, on or off school grounds. The constitutionality of this policy, known as the 24/7 Policy, has been challenged in other proceedings before this Court and in the state court system.
At the start of this case, which was filed in March 2010, the Court considered the application of the parent, plaintiff, John Doe, individually and on behalf of his then fifteen-year old daughter, Jane Doe, for
Since that time, the parties engaged in the discovery process. Defendants have now moved for summary judgment in their favor on plaintiff's First Amendment and negligence claims. They argue that no genuine disputed facts exist to send to a jury to consider whether plaintiff's rights were violated, and that plaintiff's claims fail for substantively the same reasons as they did at the preliminary injunction stage of the case. Plaintiff has opposed defendants' motion, contending that material disputed facts abound, and that a jury must resolve his First Amendment claim.
For the reasons expressed below, defendants' motion will be granted, and plaintiff's motion will be denied as moot.
Plaintiff has brought a federal constitutional claim pursuant to 42 U.S.C. § 1983, as well a negligence claim under New Jersey law. This Court has jurisdiction over plaintiff's federal claim under 28 U.S.C. § 1331, and may exercise supplemental jurisdiction over plaintiff's state law claim under 28 U.S.C. § 1367.
The following background facts were set forth in the Court's April 26, 2010, 713 F.Supp.2d 404 (D.N.J.2010), Opinion resolving plaintiff's motion for temporary restraints. Any facts supplemented by the discovery process will be discussed in the analysis of plaintiff's First Amendment claim.
In November 2006, the HBOE adopted a policy addressing the use of drugs and alcohol by middle and high school students outside of school and unrelated to any school-sponsored activities. The Policy, referred to as the "24/7 Policy," prohibits students from consuming, possessing, or distributing drugs or alcohol, or attending any gatherings or activities where the presence of drugs or alcohol is reasonably likely to occur. For those students who violate it, the Policy mandates punishments, depending on the number of offenses, which may include suspension from extra-curricular activities or the imposition of counseling or community service.
To effectuate the Policy, parents and students are required to sign a "Student Activities Permission Form" ("permission form" or "form").
When a parent signs the form, he or she affirms: "I have received and read all the information regarding student participation in the interscholastic/co-curricular activities. I have also reviewed the HSD Alcohol & Drug Regulations." Correspondingly, a section of the Policy stipulates:
(Emphasis added).
In December 2009, Jane Doe and her family filed a verified complaint in the Superior Court of New Jersey, challenging the validity of the Policy and seeking preliminary and permanent injunctions against it, among other relief.
While the litigation ensued, on January 29, 2010, John Doe submitted a permission form allowing Jane Doe to play lacrosse. On the form, however, John Doe had scratched out the portion of the form informing Jane Doe that she would be subject to the Policy if she violates conduct regulations prohibiting drug or alcohol use. John Doe was told by one of the defendants that the form, as modified, would not be accepted.
On February 5, 2010, the Superior Court dismissed the Does' complaint and application for temporary restraints, and directed them to pursue their claims before the New Jersey Commissioner of Education. Within a week or so, the Does filed their case before the Commissioner and sought injunctive relief.
Moreover, in response to the school's refusal to accept the altered permission form, John Doe signed and submitted another form on February 24, 2010. This time, he attached to the form a cover letter in which he explained, in part: "You said that [Jane Doe] cannot play lacrosse unless the Student Activities Permission Form is filled out without alterations. I have enclosed a new form filled out without alterations. I believe the 24/7 Policy is illegal and unenforceable but have filled out the form under duress."
Upon defendants' receipt of the form and the letter, a series of communications transpired between counsel for both parties. On February 25, 2010, defendants' counsel e-mailed John Doe's counsel, expressing concern over the use of the term "duress" and the possibility that its inclusion could render the permission form unenforceable.
On March 12, 2010, John Doe filed a complaint in this Court, alleging that by refusing to accept his previously submitted permission form, including the cover letter indicating that he signed the form "under duress," defendants violated his First Amendment right to free speech. John Doe also alleges that defendants' conduct breaches their duty of care owed and, thus, constitutes negligence.
Days after John Doe instituted his suit in this Court, an administrative law judge rejected the Does' arguments against the Policy and denied their request for emergency relief.
Summary judgment is appropriate where the Court is satisfied that the materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations, admissions, or interrogatory answers, demonstrate that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 330, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Fed.R.Civ.P. 56(a).
An issue is "genuine" if it is supported by evidence such that a reasonable jury could return a verdict in the nonmoving party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A fact is "material" if, under the governing substantive law, a dispute about the fact might affect the outcome of the suit. Id. In considering a motion for summary judgment, a district court may not make credibility determinations or engage in any weighing of the evidence; instead, the non-moving party's evidence "is to be believed and all justifiable inferences are to be drawn in his favor." Marino v. Industrial Crating Co., 358 F.3d 241, 247 (3d Cir.2004) (quoting Anderson, 477 U.S. at 255, 106 S.Ct. 2505).
Initially, the moving party has the burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548,
Plaintiff argues that defendants' refusal to accept the signed, unaltered permission form accompanied by his letter stating that he signed the form "under duress" constitutes a violation of plaintiff's First Amendment rights to express his opinion and to protest and object to a governmental policy. Plaintiff also contends that defendants' insistence that he sign the form, and their suggestion that he replace the words "under duress" with a "full reservation of rights," are impermissible examples of compelled speech. Additionally, plaintiff argues that defendants' refusal to accept the permission form and his daughter's exclusion from the lacrosse team were improper forms of retaliation for his filing of the lawsuits against defendants and for his expression of his opinion regarding the legality of the 24/7 Policy.
Defendants counter that their refusal to accept plaintiff's signed permission form accompanied by his letter stating that he signed it "under duress" had nothing to do with any disapproval they may harbor toward his criticism of the Policy. Rather, defendants contend that they did not accept his permission form, and, consequently, would not allow Jane Doe to play lacrosse, because plaintiff's inscription of the legal term of art, "under duress," would, in essence, invalidate and nullify the consent he was supposedly granting by signing the form. Apart from any legal consequence that plaintiff's adoption of "under duress" may have on his consent, defendants argue that they did not attempt curtail or manipulate his speech. Defendants contend that their focus on plaintiff's cover letter and the expression "under duress" was the result of advice from their legal counsel. Moreover, defendants argue that plaintiff has produced no evidence to show that they did not act in good faith. Because they did not attempt to interfere with plaintiff's protected speech, and their conduct was done in good faith, defendants argue that no material facts exist to dispute that they did not violate his First Amendment rights.
Plaintiff asserts his constitutional claim pursuant to 42 U.S.C. § 1983.
In order to prove a First Amendment retaliation claim, a plaintiff must demonstrate two things: (1) that the activity in question is protected by the First Amendment, and (2) that the protected activity was a substantial factor in the alleged retaliatory action. Hill v. Borough of Kutztown, 455 F.3d 225, 241 (3d Cir. 2006) (citation omitted). The first factor is a question of law; the second factor is a question of fact. Id. (citing Curinga v. City of Clairton, 357 F.3d 305, 310 (3d Cir.2004)).
When the Court considered plaintiff's First Amendment claim in the preliminary injunction context, the Court found:
(April 26, 2010 Opinion, at 412-13.)
In his opposition to defendants' motion for summary judgment, plaintiff argues that despite the Court's decision on its motion for preliminary restraints, the evidenced gathered through discovery requires that a jury must now decide whether his daughter's exclusion from the lacrosse team was a result of his expression of his First Amendment-protected view on the 24/7 Policy, rather than defendants' proffered reason that they believed, through advice of legal counsel, that plaintiff's use of "under duress" in the cover letter attached to the otherwise unadulterated, signed consent form effectively negated his signed consent.
To support his position that a jury must consider this question, plaintiff points to the deposition of Dr. Fegley, the Haddonfield School District Superintendent, who plaintiff claims testified that he, the school board, the principal, and staff made the decisions on how to operate the school district, and not legal counsel to the school district. Plaintiff also claims that Dr. Fegley testified that he did not understand that the use of the term "under duress" was objectionable, and that he did not believe that the letter accompanying the permission form was in violation of any rule or regulation. Based on this testimony, plaintiff contends that a reasonable jury could conclude that the school district acted in retaliation of plaintiff's expression of his constitutionally protected speech, rather than based on the legal implications of the use of the term "under duress" pursuant to the advice of counsel.
Plaintiff's argument is unavailing, and the use of Dr. Fegley's parsed-out testimony is misleading. Although Dr. Fegley testified that he did not have any independent knowledge of the legal effects of the use of the term "duress" on the permission form, and he also testified that he and the school board and school staff, and not the district's legal counsel, were the ultimate decision-makers in determining whether Jane Doe could participate in lacrosse, Dr. Fegley also testified that his decisions were all counseled by the school district's attorney.
When asked, "So [the school district's attorney] doesn't make decisions for the district. He gives advice, correct?," Dr. Fegley answered, "That is correct. Generally it is poor practice not to follow your solicitor's advice." Dr. Fegley continued, "I will say I made the decision ... by directing Mr. Banos that it had to be a properly signed form as directed by — as received from the solicitor, the solicitor's advice."
(Def. Ex. 5, Dep. of Dr. Fegley, at 56-57.)
In two, unequivocal statements, Dr. Fegley testified that his decision to disallow Jane Doe from playing lacrosse was based solely on the advice of the school district's legal counsel. Although it is typically for a jury to assess the credibility of a defendant's testimony, and in deciding a motion for summary judgment, the Court must make all credibility decisions in the non-movant's favor, plaintiff has not provided any evidence to contradict Dr. Fegley's testimony or cast his testimony in a light more favorable to plaintiff.
Moreover, plaintiff has not provided any evidence to refute defendants' position that they were acting in good faith on the advice of counsel.
Thus, even accepting as a matter of law that plaintiff's expression of his views on the 24/7 Policy constitutes speech protected by the First Amendment, plaintiff has not provided any disputed material facts to (1) cast doubt on the school district's legitimate reason for disallowing his daughter to play lacrosse, or (2) refute defendants' evidence that they acted in good faith.
As the Court articulated in its prior Opinion, restated above, the First Amendment fostered plaintiff's right to express his views on the propriety of the 24/7 Policy, and plaintiff did so in several ways. Plaintiff, however, has not been able to show that the school district defendants retaliated against him because of his expression of his beliefs. Consequently, summary judgment must be entered in defendants' favor.
For the foregoing reasons, defendants' motion for summary judgment will be granted, and plaintiff's motion to strike defendants' affirmative defenses will be denied as moot. An Order consistent with this Opinion will be entered.
42 U.S.C. § 1983.
Plaintiff's argument is disingenuous for several reasons. First, the "good faith" defense is listed as defendants' Ninth Separate Defense. (Defendants' Answer at 5.) Second, the analogous qualified immunity defense is listed as their Thirteenth Separate Defense. (Id.) Third, when bringing a claim pursuant to 42 U.S.C. § 1983 against a public entity and public officials, it should be anticipated that the qualified immunity defense will be advanced by the defendants, particularly because a court is required to consider it as soon as possible in the case, and because a decision denying qualified immunity is immediately appealable. See Thomas v. Independence Twp., 463 F.3d 285, 291 (3d Cir.2006) (citations and quotations omitted) (explaining that (1) because qualified immunity bestows immunity from suit, the Supreme Court repeatedly has stressed the importance of resolving immunity questions at the earliest possible stage in litigation; (2) the Supreme Court has admonished that until this threshold immunity question is resolved, discovery should not be allowed; and (3) unless the plaintiff's allegations state a claim of violation of clearly established law, a defendant pleading qualified immunity is entitled to dismissal before the commencement of discovery).
Fourth, even though the burden of pleading and establishing qualified immunity rests on the defendants, the defense of qualified immunity is not necessarily waived by a defendant who fails to raise it until the summary judgment stage. Eddy v. Virgin Islands Water and Power Auth., 256 F.3d 204, 210 (3d Cir. 2001). Fifth, plaintiff was put on notice as to all of defendants' affirmative defenses as they were pleaded in their Answer, and plaintiff could have filed motions with the magistrate judge relating to those defenses. See Fed. R.Civ.P. 26(b)(1) ("Parties may obtain discovery regarding any non-privileged matter that is relevant to any party's claim or defense — including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter. For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action."). And, finally, the burden of proving all affirmative defenses rest with the defendants, and any failure to provide evidence to support such defenses would be fatal to the viability of those defenses, which would only serve to harm defendants. In other words, should defendants have sought to use an affirmative defense that was not properly supported, only then could the plaintiff seek to bar defendants' use of that defense. See Tonka Corp. v. Rose Art Industries, Inc., 836 F.Supp. 200, 218 (D.N.J. 1993) (citation omitted) ("An affirmative defense can be stricken only if the defense asserted could not possibly prevent recovery under any pleaded or inferable set of facts.").
The only affirmative defense used by defendants at this stage in the case is the good faith/qualified immunity defense, of which plaintiff had notice since April 6, 2010, and which has been supported by evidence properly gathered and shared through the discovery process. Regardless, however, of defendants' ability to establish their good faith defense, it is ultimately unnecessary because the Court has found that plaintiff cannot prove his First Amendment retaliation claim, which is a prerequisite to the qualified immunity analysis. Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 815, 172 L.Ed.2d 565 (2009) (explaining that either question of the qualified immunity analysis can be considered first).
