TIMOTHY L. BROOKS, UNITED STATES DISTRICT JUDGE.
Currently before the Court are a Motion for a Preliminary Injunction (Doc. 4) and Brief in Support (Doc. 6) filed by Jessica McKinney, as next friend and legal guardian of K.P., a minor, and a Response (Doc. 12) and Brief (Doc. 13) in Opposition submitted by Defendant Huntsville School District ("the District"). The Court heard oral argument on the Motion on July 19, 2018. Because of the impending start of the 2018 school year, the Court scheduled a telephone conference for August 2, 2018, at which time it denied Plaintiff's Motion from the bench. This Opinion and Order memorializes that ruling.
On Saturday, February 24, 2018,
Though the exact time is not clear at this point, the next morning, K.P. opened his Instagram account and saw that a number of individuals had commented on his post.
At approximately 6 a.m. on Sunday morning, K.P. allegedly removed the photo he uploaded. In its place, he posted a similar photograph of himself in the trench coat but sans rifle. This time, however, he included the following caption:
(Mot. for Preliminary Injunction, Doc. 6, p. 2 (emphasis added)).
It is undisputed that these photos and comments reached the campus community.
Upon seeing the post, Principal Enix and school officials immediately perceived a threat to the school. The additional comments by the other posters, other Huntsville students, and K.P.'s follow-up post only increased these concerns. For instance, individuals seeing the "when I drop my pencil, start shooting" comment allegedly worried that the comment implicated two students (the pencil dropper and the shooter). (Doc. 12, p. 11).
The Huntsville School District and the police also took the matter very seriously. Police officers went out searching for K.P. at his father's house and ultimately were able to speak to him on Sunday evening after he had returned to Jessica McKinney's house. Before they made contact with K.P., an undercover officer accessed
Nevertheless, despite the police department's determination, students, staff, and community members remained incredibly concerned about the safety of the school and its members. For instance, teachers and District officials reading K.P.'s follow-up post wondered whether his comment about choosing a more "high profile crowd" meant that he was speaking about administrators and teachers rather than students. (Doc. 6-2, p. 8). These concerns prompted at least one teacher to refuse to perform her outside morning duty. (Doc. 12, p. 6). As a result, Principal Enix allowed all teachers to perform their morning duties from inside the school building. In addition, parents and other community members continuously called Principal Enix throughout the weekend and students themselves expressed fear about returning to campus. See, e.g., Doc. 12, Exhs. A-E (affidavits of students, teachers, and administrators describing the immediate reaction to these posts).
To allay fears, Principal Enix held an early-morning emergency staff meeting at Huntsville High School before school started on Monday, February 26, 2018.
The following day, K.P. received a formal letter advising him that he had been suspended for a period of ten days and that he had been recommended for a 365-day expulsion.
(Docs. 6-8, 6-9).
Although the expulsion had the effect of disrupting K.P.'s classes, the District offered—and enrolled him in—an alternative, online education program, known as A +, that would allow him to take as many classes as he could manage so that he would still be on track to graduate with his class. Moreover, any classes successfully completed during this program will be added to his transcript as normal and will not bear any indication that they were earned through the A+ program during his expulsion. K.P. testified that he did not complete any courses, in part because he had difficulty getting enrolled in the program and had other online connectivity issues. He ultimately went to work in construction and has not attempted to enroll at any other school district.
Plaintiff now seeks a preliminary injunction that would enjoin continued enforcement of the expulsion and require the District to remove any reference of either the initial suspension or the expulsion from K.P.'s transcript. (Doc. 4, p. 2).
It is well established that "a preliminary injunction is an extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion." Mazurek v. Armstrong, 520 U.S. 968, 972, 117 S.Ct. 1865, 138 L.Ed.2d 162 (1997) (citing 11A C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure § 2948, pp. 129-130 (2d ed. 1995)) (emphasis in original).
Although the factors to be considered when deciding whether this burden has been met are similar nationwide, district courts in the Eighth Circuit should consider: (1) the movant's likelihood of success on the merits; (2) the threat of irreparable harm to the movant in the absence of injunctive relief; (3) the balance between this harm and the injury that granting the injunction will inflict on the other party; and (4) whether the injunction is in the public interest. Dataphase Sys., Inc. v. C L Sys., Inc., 640 F.2d 109, 114 (8th Cir. 1981). While no single factor is determinative, id., the Eighth Circuit has made clear that in weighing whether to grant a preliminary injunction, the "likelihood of success on the merits is most significant." Minn. Ass'n of Nurse Anesthetists v. Unity Hosp., 59 F.3d 80, 83 (8th Cir. 1995) (quoting S & M Constructors, Inc. v. Foley Co., 959 F.2d 97, 98 (8th Cir. 1992)). Despite the importance of the likelihood of success on the merits, the inquiry should focus on "whether the balance of the equities so favors the movant that justice requires the court to intervene to preserve the status quo until the merits are determined." Dataphase, 640 F.2d at 113.
As noted above, the likelihood of success on the merits is often considered the most important factor on a motion for a preliminary injunction. Given the importance of this factor to the overall decision, the Eighth Circuit has advised against "wooden application" of the probability test. Dataphase, 640 F.2d at 113. Indeed, the movant need only show a "fair chance of prevailing on the merits." Planned Parenthood Minn., N.D., S.D. v. Rounds, 530 F.3d 724, 732-33 (8th Cir. 2008). The Court considers the movant's likelihood of success on each claim in turn.
The law is clearly established that neither teachers nor students shed their constitutional rights to freedom of speech or expression at the schoolhouse gate. S.J.W. ex. rel. Wilson v. Lee's Summit R-7 Sch. Dist., 696 F.3d 771, 776 (8th Cir. 2012) (quoting Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969)). Nevertheless, "the constitutional rights of students in public school are not automatically coextensive with the rights of adults in other settings," Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 682, 106 S.Ct. 3159, 92 L.Ed.2d 549 (1986), because the rights of students "must be `applied in light of the special characteristics of the school environment.'" Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 266, 108 S.Ct. 562, 98 L.Ed.2d 592 (1988) (quoting Tinker, 393 U.S. at 506, 89 S.Ct. 733). Therefore, under Tinker, "conduct by the student, in class or out of it, which for any reason—whether it stems from time, place, or type of behavior—materially disrupts classwork or involves substantial disorder or invasion of the rights of others is ... not immunized by the constitutional guarantee of freedom of speech." Tinker, 393 U.S. at 513, 89 S.Ct. 733; see also Lee's Summit, 696 F.3d at 778 ("Under Tinker, speech which actually caused a substantial disruption to the educational environment is not protected by the First Amendment.").
Of course, school districts do not have to wait until a substantial disruption occurs before springing to action. See, e.g., Wynar v. Douglas Cnty. Sch. Dist., 728 F.3d 1062, 1070 (9th Cir. 2013); Ponce v. Socorro Indep. Sch. Dist., 508 F.3d 765, 772 (5th Cir. 2007) ("School administrators must be permitted to react quickly and decisively to address a threat of physical violence against their students, without worrying that they will have to face years of litigation second-guessing their judgment as to whether the threat posed a real risk of substantial disturbance."). As such, courts around the country employ a reasonable foreseeability test. In the Eighth Circuit, that test has been described as such: "Tinker applies to off-campus student speech where it is reasonably foreseeable that the speech will reach the school community and cause a substantial disruption to the educational setting." Lee's Summit, 696 F.3d at 777. Therefore, in the context of off-campus speech, the Eighth Circuit has made clear that school districts may punish speech which either caused a substantial disruption or where it was reasonably foreseeable that such speech would reach the school community and cause a substantial disruption.
Applying this law here, the Court concludes that Plaintiff does not have a fair chance of succeeding on the merits of the First Amendment free speech claim. It cannot be seriously disputed that K.P.'s posts caused a substantial disruption at Huntsville High School. Parents, teachers, administrators, police, and even the FBI were involved, beginning as early as the
Even if these posts had not caused a substantial disruption, which the Court finds that they did, school officials likely could still have punished K.P. for the conduct because it was reasonably foreseeable that such posts would 1) reach the school community and 2) cause a substantial disruption. K.P. testified himself during the hearing that he knew the posts would likely reach the school community, and that the majority of the individuals who had immediate access to the posts were in fact his friends and students at Huntsville. The posts also indisputably reached the community, as concerned parents were the first individuals to notify Principal Enix of the post, and as these parents were soon joined by concerned teachers and administrators all asking what the District's response would be. Moreover, someone in the community uploaded the post to the Huntsville Facebook page and asked whether school officials planned to respond. Finally, the posts and the responses they generated could reasonably have led school officials to forecast a substantial disruption. Some comments suggested that more individuals than just K.P. were involved, another wrote "see you at school on Monday." Given the totality of the circumstances, it was reasonably foreseeable that such comments would cause a substantial disruption to the campus community.
Despite the strength of the District's position given the state of the law, K.P. argues that he is likely to succeed on the merits of his free speech claim for several reasons. The Court considers each in turn.
First, K.P. argues that it was the other posts commenting upon his original post that caused the disruption and, therefore, permitting the school's punishment of K.P. would in effect be to sanction a heckler's veto. While this argument might hold more water in a non-school context, the Court agrees with the Tenth Circuit's recent sentiment that this argument "ignores the special characteristics of the school environment where the government has a compelling interest in protecting the educational mission of the school and ensuring student safety." Taylor v. Roswell Indep. Sch. Dist., 713 F.3d 25, 38 (10th Cir. 2013) (internal citation omitted). Moreover, the evidence also undercuts the argument that it was solely these third-party students' comments, rather than K.P.'s posts, that contributed to the disruption. It is not seriously disputed that the posts of the other students following K.P.'s initial and follow-up posts likely worsened the situation. But, that doesn't eliminate the District's ability to punish K.P.'s off-campus speech here, as the record shows that the initial concerns of community members followed immediately on the heels of K.P.'s initial post and where Principal Enix testified that K.P.'s follow-up post caused additional disruption as teachers and parents began expressing to her fear for their safety and the safety of their children.
Plaintiff next argues that K.P.'s intent in making the post and his follow-up comments bears heavily on the inquiry and immunizes his conduct. The Court disagrees. The focus of the test is not on the
Finally, Plaintiff argues that the Eighth Circuit's cases upholding school districts' discipline of students for similar off-campus speech are distinguishable because they involved more egregious conduct that was targeted at the school—in the sense that in those cases, threats were made against specific teachers or students. While it is true that many of the cases in this area of the law involve students whose conduct was more egregious, the metric used to assess a district's punishment of off-campus speech is not how egregious the speech was, but rather whether it either caused a substantial disruption to the school environment or whether school officials could reasonably have forecast such a disruption. For the reasons noted above, the answer to both of these questions is yes.
Therefore, while the Court does not doubt that there is a constitutional "line-in-the-sand" marking the boundary between permissible and impermissible regulation of off-campus speech, the Court is not persuaded that this case crosses that line. Given the extant precedents in the Eighth Circuit, the Court finds that Plaintiff is unlikely to succeed on the merits of the First Amendment speech claim.
The overbreadth doctrine "constitutes a departure from traditional rules of standing" as it allows a plaintiff to "challenge a statute on its face because it also threatens others not before the court—those who desire to engage in legally protected expression but who may refrain from doing so rather than risk prosecution or undertake to have the law declared partially invalid." Newsom ex rel. Newsom v. Albemarle Cnty. Sch. Bd., 354 F.3d 249, 257-58 (4th Cir. 2003) (internal citations omitted). Therefore, a law or regulation "should not be invalidated for overbreadth unless it reaches a substantial number of impermissible applications." New York v. Ferber, 458 U.S. 747, 771, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982); City of L.A. v. Taxpayers for Vincent, 466 U.S. 789, 800-01, 104 S.Ct. 2118, 80 L.Ed.2d 772 (1984). Moreover, "[b]ecause of the duties and responsibilities of the public elementary and secondary schools, the overbreadth doctrine warrants a more hesitant application in [the public school] setting than in other contexts." Sypniewski v. Warren Hills Reg'l Bd. of Educ., 307 F.3d 243, 259 (3d Cir. 2002), cert. denied, 538 U.S. 1033, 123 S.Ct. 2077, 155 L.Ed.2d 1062 (2003).
The Court finds that Plaintiff does not have a fair chance of succeeding on the merits of the overbreadth challenge. By their very terms, the District's two policies,
The "void-for-vagueness doctrine is embodied in the due process clauses of the fifth and fourteenth amendments." D.C. and M.S. v. City of St. Louis, Mo., 795 F.2d 652, 653 (8th Cir. 1986). As the Eighth Circuit has succinctly summarized:
Stephenson v. Davenport Comm. Sch. Dist., 110 F.3d 1303, 1308 (8th Cir. 1997).
Nevertheless, "[t]he degree of constitutional vagueness depends partially on the nature of the enactment." Video Software Dealers Ass'n v. Webster, 968 F.2d 684, 689 (8th Cir. 1992) (citation omitted). Thus, "given the school's need to be able to impose disciplinary sanctions for a wide range of unanticipated conduct disruptive of the educational process, the school disciplinary rules need not be as detailed as a criminal code which imposes criminal sanctions." Fraser, 478 U.S. at 686, 106 S.Ct. 3159.
Although this appears to be a much closer question given the testimony at the hearing, the Court nevertheless concludes that Plaintiff does not have a fair chance of showing that these regulations are void-for-vagueness. As noted above, the school regulations in this case gave notice that discipline could be imposed for activities occurring off-campus which would have a negative impact on school discipline, the educational environment, or the welfare of students or staff. The Court finds this regulation to be sufficiently clearer than other, similar regulations upheld against vagueness challenges. See, e.g., Collins v. Prince William Cnty. Sch. Bd., 142 Fed. App'x 144, 146-47 (4th Cir. 2005) (upholding against a vagueness challenge
"The basis of injunctive relief in the federal courts has always been irreparable harm and inadequacy of legal remedies." Bandag, Inc. v. Jack's Tire & Oil, Inc., 190 F.3d 924, 926 (8th Cir. 1999) (quoting Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 506-07, 79 S.Ct. 948, 3 L.Ed.2d 988 (1959)). To show irreparable harm, "a party must show that the harm is certain and great and of such imminence that there is a clear and present need for equitable relief." Lee's Summit, 696 F.3d at 778 (citations omitted). "Irreparable harm occurs when a party has no adequate remedy at law, typically because its injuries cannot be fully compensated through an award of damages." Gen. Motors Corp. v. Harry Brown's, LLC, 563 F.3d 312, 319 (8th Cir. 2009). Failure "to demonstrate irreparable harm, standing alone, may be a sufficient basis to deny preliminary injunctive relief." Caballo Coal Co. v. Ind. Mich. Power Co., 305 F.3d 796, 800 (8th Cir. 2002) (quoting Dataphase, 640 F.2d at 114 n.9) (quotation marks omitted).
Plaintiff contends that that the "irreparability of [K.P.'s] harm is self-evident, and exacerbated by loss of [the] opportunity to earn an athletic scholarship." (Doc. 6, p.8). Although Plaintiff is not more specific, it appears that Plaintiff makes three arguments as to the irreparable harm that would occur in the absence of injunctive relief: 1) K.P.'s education suffering because he can't attend class, 2) K.P.'s exclusion from extra-curricular athletic events, and 3) K.P.'s potential loss of an athletic scholarship. None of these constitute irreparable harm.
First, while it is well established that education is not one of the fundamental rights protected by the United States Constitution, San Antonio Sch. Dist. v. Rodriguez, 411 U.S. 1, 38, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973), the Supreme Court has indicated that state policies guaranteeing an education to all pupils within a state create a property interest to that education which is then protected under the Due Process Clause of the Fourteenth Amendment. Goss v. Lopez, 419 U.S. 565, 574, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975). Therefore, a state is prohibited from depriving a student of that interest without adhering to the procedures required by that clause. Id. Nevertheless, whatever the extent of the property interest, the law is clear that such an interest is not absolute, and a student has no property interest in the choice of a particular school or curriculum. Swindle v. Livingston Par. Sch. Bd., 655 F.3d 386, 394 (5th Cir. 2011) ("A student who is removed from her regular public school, but is given access to an alternative education program, has not been denied her entitlement to public education."); Lindsey v. Matayoshi, 950 F.Supp.2d 1159, 1169 (D. Haw. 2013) (noting that "a student has no right to direct, control, or determine" her curriculum as part of the entitlement to a public education, or to "receive a public education on special terms or conditions designated by herself or her parents").
Here, the evidence reveals that the District made available and even enrolled K.P. in an online education program, A +, which would have allowed him to take as many classes as he could manage and thereby stay on track to graduate with his class.
Additionally, the Court finds that K.P.'s exclusion from extracurricular events and the related claim that he would lose an athletic scholarship because of this exclusion also cannot constitute irreparable harm. K.P. argues that he is a gifted track runner and the ban from participating in extra-curricular activities such as track during the expulsion period would deprive him of an opportunity to earn a full-ride scholarship to college, which would likely mean, according to him, that he could not afford to attend college. See, e.g., Decl. of K.P., Doc. 6-3 at ¶ 7; Decl. of Jessica McKinney, Doc. 6-7 at ¶ 7.
To the extent Plaintiff's argument rests on the contention that the District has deprived K.P. of a vested property interest by banning him from participating in extra-curricular activities such as track, the Court finds this argument unsupported by any cited authority and routinely rejected by courts across the country. See, e.g., Denis J. O'Connell High Sch. v. Va. High Sch., 581 F.2d 81, 84 (4th Cir. 1978); Seamons v. Snow, 84 F.3d 1226, 1235 (10th Cir. 1996); Brindisi v. Regano, 20 Fed. App'x 508, 510 (6th Cir. 2001). These cases uniformly hold that there is no property interest in participating in extra-curricular activities. Moreover, even within this Circuit, courts reject the notion that loss of a potential scholarship may constitute irreparable harm. See, e.g., Lee's Summit, 696 F.3d at 779 (rejecting as speculative students' argument that expulsion would jeopardize their music careers because of an inability to participate in the school's band); Doe, 310 F.Supp.3d 969 at 984-85 (finding that testimony that student would be unable to afford to attend college without scholarship shows that most of the potential harm is compensable through a money damages award).
Plaintiff has failed to show irreparable harm. This finding, standing alone, is reason enough to deny injunctive relief.
As the District rightly acknowledges, it is responsible for securing the
The Court agrees. And while the Court must ensure that protected speech is not restricted by a school district's actions, it concludes that enjoining the District's punishment of K.P., requiring his immediate re-admittance, and requiring the District to remove any evidence of either the suspension or expulsion from K.P.'s record would unduly frustrate the District's right—and duty—to ensure a safe academic environment conducive to the education of young Arkansans. D.J.M. ex rel. D.M. v. Hannibal Pub. Sch. Dist. No. 60, 647 F.3d 754, 766 (8th Cir. 2011) ("One of the primary missions of schools is to encourage student creativity and to develop student ability to express ideas, but neither can flourish if violence threatens the school environment."). Thus, the Court finds that the balance of harms in this case favors the denial of Plaintiff's motion for injunctive relief.
At first blush, the public interest factor appears to be evenly balanced between the parties. For, while "[i]t is always in the public interest to protect constitutional rights," Phelps-Roper v. Nixon, 545 F.3d 685, 690 (8th Cir. 2008), there is also no question that "protecting the safety of school [students and] staff is undoubtedly a significant government interest." Lovern v. Edwards, 190 F.3d 648, 655-56 (4th Cir. 1999).
However, because Plaintiff has not made a sufficient showing that K.P.'s conduct was protected by the First Amendment, the public interest in this case tilts toward the District. Thus, this factor also favors the denial of Plaintiff's motion for a preliminary injunction.
On balance, the Court certainly sympathizes with Plaintiff's argument that the District's reaction here could be considered swift and unnecessarily harsh. But, as the Eighth Circuit accurately summarized in a similar case:
Doe v. Pulaski Cnty. Special Sch. Dist., 306 F.3d 616, 627 (8th Cir. 2002).
For the foregoing reasons, the Court finds that the Dataphase factors do not favor the entry of a preliminary injunction.
