M. HANNAH LAUCK, District Judge.
This matter comes before the Court on a Motion to Dismiss for "failure to state a claim upon which relief can be granted" filed pursuant to Federal Rule of Civil Procedure 12(b)(6) by Defendants Jeffrey W. McGee, Director of Maggie L. Walker Governor's School, and Philip B. Tharp, Assistant Director of Maggie L. Walker Governor's School (the "Defendants"). (ECF No. 4.) Plaintiff M.B., a minor,
"A motion to dismiss under Rule 12(b)(6) tests the sufficiency of a complaint; importantly, it does not resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses." Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992) (citing 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1356 (1990)). In considering a motion to dismiss for failure to state a claim, a plaintiff's well-pleaded allegations are taken as true and the complaint is viewed in the light most favorable to the plaintiff. Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993); see also Martin, 980 F.2d at 952. This principle applies only to factual allegations, however, and "a court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth." Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).
The Federal Rules of Civil Procedure "require[ ] only `a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to `give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (omission in original) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Plaintiffs cannot satisfy this standard with complaints containing only "labels and conclusions" or a "formulaic recitation of the elements of a cause of action." Id. (citations omitted). Instead, a plaintiff must assert facts that rise above speculation and conceivability to those that "show" a claim that is "plausible on its face." Iqbal, 556 U.S. at 678-79 (citing Twombly, 550 U.S. at 570; Fed. R. Civ. P. 8(a)(2)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. at 678 (citing Twombly, 550 U.S. at 556).
"If, on a motion under Rule 12(b)(6) . . ., matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56," and "[a]ll parties must be given a reasonable opportunity to present all the material that is pertinent to the motion." Fed. R. Civ. P. 12(d); see Laughlin v. Metro. Wash. Airports Auth., 149 F.3d 253, 260-61 (4th Cir. 1998); Gay v. Wall, 761 F.2d 175, 177 (4th Cir. 1985). However, "a court may consider official public records, documents central to plaintiffs claim, and documents sufficiently referred to in the complaint [without converting a Rule 12(b)(6) motion into one for summary judgment] so long as the authenticity of these documents is not disputed." Witthohn v. Fed. Ins. Co., 164 F. App'x 395, 396-97 (4th Cir. 2006) (citing Alt. Energy, Inc. v. St. Paul Fire & Marine Ins. Co., 267 F.3d 30, 33 (1st Cir. 2001); Phillips v. LCI Int'l, Inc., 190 F.3d 609, 618 (4th Cir. 1999); Gasner v. Cty. of Dinwiddle, 162 F.R.D. 280, 282 (E.D. Va. 1995)). "[I]n the event of conflict between the bare allegations of the complaint and any attached exhibit . . ., the exhibit prevails." Fayetteville Inv'rs v. Commercial Builders, Inc., 936 F.2d 1462, 1465 (4th Cir. 1991). Also, "[w]hen matters outside the pleadings are presented in a response to a 12(b)(6) motion, a district court has discretion to exclude the additional material." Lawson v. Miles, No. 1:11cv949, 2012 WL 3242349, at *4 (E.D. Va. Aug. 6, 2012) (emphasis added) (citations omitted).
M.B. attached to his Complaint "Exhibit 1," the February 22, 2016 email he sent to the Harvard University Admission's Office (the "Harvard Admission's Office). (ECF No. 1-1.) The Defendants attached to their Motion to Dismiss "Exhibit A," a full copy of the Maggie L. Walker Governor's School ("MWGS") Handbook. (ECF No. 5-1.) M.B. attached to his Response to the Motion to Dismiss five exhibits: (1) a March 11, 2016 letter from McGee to M.B.'s parents giving notice of M.B.'s disciplinary infraction; (ECF No. 8-1), (2) screenshots of the Common Application questions relating to an applicant's disciplinary history; (ECF No. 8-2), (3) a March 15, 2016 letter from M.B.'s attorney to McGee regarding M.B.'s appeal of the disciplinary action; (ECF No. 8-3), (4) a March 24, 2016 letter from McGee to M.B.'s attorney in response to the March 15, 2016 letter; (ECF No. 8-4),and, (5) an April 22, 2016 letter from McGee to M.B.'s parents stating McGee's decision to uphold the disciplinary sanction imposed on M.B, (ECF No. 8-5).
The Court will consider only three of the proffered exhibits: (1) the February 22, 2016 email from M.B. to the Harvard Admission's office; (2) the MWGS Handbook; and, (3) the March 11, 2016 letter from McGee to M.B.'s parents. M.B. sufficiently refers to those three exhibits in his Complaint, they are central to M.B.'s claims, and neither party disputes their authenticity. See Witthohn, 164 F. App'x at 396-97 (citations omitted). The Court, however, will not consider the four remaining exhibits: (1) the screenshots of the Common Application questions; (2) the March 15, 2016 letter from M.B.'s attorney to McGee; (3) the March 24, 2016 letter from McGee to M.B.'s attorney; and, (4) the April 22, 2016 letter from McGee to M.B.'s parents. Although he seeks to append them now, M.B. did not refer to those four documents in his Complaint, and they are not central to his claim.
M.B. alleges three counts in the Complaint, each against both Defendants in their official capacities.
M.B. seeks: (1) an injunction prohibiting the Defendants from reporting that M.B. committed bullying and requiring the Defendants to expunge any reference to this incident from his record; (2) nominal damages; and, (3) costs and attorneys' fees.
The Defendants have moved to dismiss all counts of the Complaint. The Defendants assert that Count I, the Void for Vagueness claim, and Count II, the Arbitrary and Capricious claim, must be dismissed because M.B. fails to allege a constitutionally protected interest on which a claim for a Due Process violation may be based. The Defendants further argue that Count I, the Void for Vagueness claim, should be dismissed because M.B. had adequate notice that MWGS prohibited his conduct; and Count II, the Arbitrary and Capricious claim, should be dismissed because the Defendants had a rational basis for their decision to punish M.B. for bullying. Finally, the Defendants aver that Count III, the Free Speech claim, should be dismissed because "it was reasonably foreseeable that [M.B.'s] email would reach the school and his email threatened to—and did—cause a material and substantial disruption to the operation of MWGS and collided with the rights of others." (Mem. Supp. 10-11.) M.B. has responded to the Motion to Dismiss, (ECF No. 8), and the Defendants have replied, (ECF No. 9).
M.B.'s Complaint conveys a relatively straightforward series of events. M.B., then a junior at MWGS, "a prestigious public high school" located in Richmond, Virginia, (Compl. ¶ 13), learned in the Spring of 2016, that R.P., another student at MWGS, had been admitted to and received a financial scholarship from Harvard University. M.B. "was aware that R.P. had been caught and disciplined for cheating" by MWGS, and believed that MWGS administration had either deleted this incident from R.P.'s school records or failed to disclose it during the application process. (Id. ¶ 20.) Believing that MWGS's honor code required him to report this information, M.B. sent an email to the Harvard Admission's Office from his home computer on February 22, 2016, at 10:28 a.m.
To Harvard admissions officers . . .
(Ex. 2-3.) M.B. never shared the email with any other student, nor did he express his concerns about R.P. over any form of social media. R.P. did not learn of the email until after M.B. "was called before the administration to determine whether he should be punished for sending it." (Compl. ¶ 36.)
After receiving M.B.'s email, the Harvard Admission's Office contacted the MWGS guidance counselor responsible for R.P.'s application. McGee and Tharp received a forwarded copy of the email from Harvard, and on February 23, 2016, they called M.B. and his parents to McGee's office to talk about the email. On March 11, 2016, McGee sent M.B.'s parents a letter, saying that he had found M.B. in violation of MWGS's prohibition on bullying.
McGee and Tharp told M.B. that his behavior constituted bullying "because the definition of `bullying' in the Student Handbook includes a number of `examples' of bullying, one of which is `falsifying statements about other persons.'" (Compl. ¶ 37 (quoting Maggie L. Walker Governor's School Handbook and Code of Conduct ("Student Handbook") 56 (2015-2016).) According to McGee, M.B.'s email to Harvard was false because M.B. stated that R.P. had been punished for cheating numerous times, but R.P. had only been "caught and convicted of cheating once" at MWGS. (Id. ¶ 38.)
M.B. states that "there was no aggression on [his] part," and that he did not send the email intending to "`harm, intimidate[,] or humiliate' R.P.[, but merely] to carry out M.B.'s reporting obligations under the Honor Code." (Compl. ¶¶ 33-34 (quoting Student Handbook 56).) M.B. claims that "he reported the facts, as he understood them, quietly and discreetly, fully identifying himself and giving the university the means to quickly confirm the information he was reporting." (Id ¶ 4.) In part because of his innocent intentions, M.B. asserts that his action in sending the email did not constitute bullying as defined by MWGS's Student Handbook.
M.B. alleges that the Defendants' actions will cause him reputational injury and will "distinctly alter his legal status by formally marking him as a `bully,' thereby jeopardizing his ability to obtain admission to the college of his choice" because "college admissions personnel or members of the public will [likely] see the damaging information." (Id. ¶ 45.)
Three sections of MWGS's Student Handbook pertain to this Complaint: (1) the Honor Code; (2) the prohibition against bullying; and, (3) the definition of bullying.
Other than the section governing all aspects of student conduct (the "Standards for Student Conduct" section), the Honor Code is the longest section of the Student Handbook, spanning nine pages. The Honor Code consists of nine articles and thirteen amendments, containing detailed provisions for what constitutes an Honor Code violation, how MWGS adjudicates alleged violations, and the consequences of a conviction for violating the Honor Code.
The Honor Code "provides that students do not lie, cheat, or commit plagiarism, nor tolerate those who do." (Student Handbook 17.) To foster freedom, trust, and responsibility, the Honor Code "delegates to the individual students responsibility for integrity in their academic behavior." (Id. at 18.) Students have responsibility to, inter alia, "[r]eport any violations of the Honor Code. If a student witnesses or realizes that a violation of the Honor Code has occurred, the student must report the offense to the instructor involved." (Id) Cheating, plagiarism, lying, and forgery all constitute violations of the Honor Code.
"Section D: Threats to Persons" of the Student Handbook contains the prohibition on bullying. That prohibition states in full:
Id. at 40.
"Section P: Definitions & Policy Clarifications" of the Student Handbook defines bullying. That definition states in full:
Id. at 56.
M.B. labels Count I a "Void for Vagueness" claim,
In order to state a viable claim under 42 U.S.C. § 1983, a plaintiff must allege that a person acting under color of state law deprived him or her of a constitutional right or of a right conferred by a law of the United States. See Dowe v. Total Action Against Poverty in Roanoke Valley, 145 F.3d 653, 658 (4th Cir. 1998) (citing 42 U.S.C. § 1983). M.B. brings Count I, the Void for Vagueness claim, under the Due Process Clause of the Fourteenth Amendment. The Due Process Clause requires some degree of specificity in drafting legislation and administrative regulations. See, e.g., Baggett v. Bullitt, 377 U.S. 360, 372 (1964) (striking down a loyalty oath requirement for teachers on vagueness grounds because "[t]he range of activities which are or might be deemed inconsistent with the required promise is very wide indeed"). "A fundamental principle in our legal system is that laws which regulate persons or entities must give fair notice of conduct that is forbidden or required." F.C.C. v. Fox Television Stations, Inc., 132 S.Ct. 2307,2317 (2012) (citing Connally v. Gen. Constr. Co., 269 U.S. 385, 391 (1926)). A conviction or punishment runs afoul of the Due Process Clause if the statute or regulation under which it is obtained "fails to provide a person of ordinary intelligence fair notice of what is prohibited, or is so standardless that it authorizes or encourages seriously discriminatory enforcement." United States v. Williams, 553 U.S. 285, 304 (2008); see also Fox, 132 S.Ct. 2307, 2317 (2012).
Fox, 132 S. Ct. at 2317 (citing Groyned v. City of Rockford, 408 U.S. 104, 108-09 (1972)). "Where inherently vague statutory language permits . . . selective law enforcement, there is a denial of due process." Smith v. Goguen, 415 U.S. 566, 576 (1974).
In the First Amendment context, the vagueness doctrine applies with special exactitude because of the chilling effect vague laws may have on protected expression. See, e.g., Goguen, 415 U.S. at 573 ("Where a statute's literal scope, unaided by a narrowing state court interpretation, is capable of reaching expression sheltered by the First Amendment, the doctrine demands a greater degree of specificity than in other contexts."); see also Baggett, 377 U.S. at 372 ("Those with a conscientious regard for what [is prohibited] avoid the risk of loss of employment, and perhaps profession, only by restricting their conduct to that which is unquestionably safe. Free speech may not be so inhibited.").
Vagueness standards apply less rigidly in the school context, however, given that "maintaining security and order in the schools requires a certain degree of flexibility in school disciplinary procedures, and . . . the value of preserving the informality of the student-teacher relationship." New Jersey v. T.L.O., 469 U.S. 325, 340 (1985). School rules and regulations must be sufficiently clear and specific that a reasonable person would understand what is prohibited or expected. See, e.g., Keyishian v. Bd. of Regents of Univ. of State of N.Y., 385 U.S. 589 (1967) (holding administrative statutes governing state university system unconstitutional on vagueness grounds). But ultimately, "[g]iven 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." Bethel Sch Dist. No. 403 v. Fraser, 478 U.S. 675, 686 (1986).
Because the vagueness doctrine amounts to a due process challenge based on lack of notice, a court may not reach the merits of a plaintiffs void for vagueness claim unless the plaintiff first shows that state action deprived him or her of "a constitutionally protected liberty or property interest." Stone v. Univ. of Md. Med. Sys. Corp., 855 F.2d 167, 172 (4th Cir. 1988) (citing Bd. of Regents v. Roth, 408 U.S. 564 (1972)). M.B. alleges no deprivation of a protected property interest.
M.B. cannot establish deprivation of a liberty interest because he identifies no alteration in legal status or deprivation of a property interest, and thus cannot satisfy the "stigma-plus" standard of Paul v. Davis, 424 U.S. 693 (1976). The Constitution is not "a font of tort law," and "no constitutional doctrine convert[s] every defamation by a public official into a deprivation of liberty within the meaning of the Due Process Clause. . . ." Id. at 701-02. Although a liberty interest exists "[w]here a person's good name, reputation, honor, or integrity is at stake because of what the government is doing to him [or her]," Wisconsin v. Constantineau, 400 U.S. 433,437 (1971), courts have clarified that "an injury to reputation alone does not deprive an individual of a constitutionally protected liberty interest," Tigrett, 290 F.3d at 628 (citing Siegert v. Gilley, 500 U.S. 226,233 (1991)); accord Shirvinski v. U.S. Coast Guard, 673 F.3d 308, 314-15 (4th Cir. 2012). Actions do not implicate the Due Process Clause without the "alteration of [a] legal status[
In the school context, without some impact on a student's enrollment, the management of a student's behavioral issues cannot implicate a protected liberty interest. See Smith v. Davis, 507 F. App'x 359,362 (5th Cir. 2013) ("[A] student who is not denied access to public education does not have a property or liberty interest implicated."); Nigro v. Va. Commonwealth Univ. Med. Coll. of Va, No. 5:09cv64, 2010 WL 2262539, at *7 (W.D. Va. June 4, 2010) ("Where, as here, there is no property interest nor stigma or impairment of reputation, such that [plaintiff] could pursue her academic or career objectives elsewhere, no infringement of a constitutionally protected liberty interest exists."), aff'd sub nom. Nigro v. Va. Commonwealth Univ./Med. Coll. of Va., 492 F. App'x 347 (4th Cir. 2012). But when coupled with the deprivation of a specific property right, disciplinary charges against students that could "seriously damage the students' standing with their fellow pupils and their teachers as well as interfere with later opportunities for higher education and employment" implicate the Due Process Clause. Goss, 419 U.S. at 575; see also Doe v. Alger, 175 F.Supp.3d 646, 658-60 (E.D. Va. 2016) (discussing situations in which a liberty interest can be implicated and noting that "if there is stigma, then the court must also determine whether there is also . . . a legal right or status that was altered or extinguished.").
In briefing, M.B. turns to language used by the Supreme Court of the United States in due process decisions from the 1970s to contend that damage to his "integrity, reputation, honor[,] and good name," coupled with harm to his "educational and vocational future," sufficiently allege the deprivation of a protected liberty interest. (PL's Resp. 10.) In Wisconsin v. Constantineau,
However, the Supreme Court has continued to address the liberty interest doctrine since these cases. Indeed, the Supreme Court began refining its analysis as early as 1976 in Paul v. Davis, in which it "explained and clarified . . . earlier rulings, seemingly narrowing the circumstances in which the government's damage to a person's name gives rise to a protected liberty interest." Alger, 175 F. Supp. 3d at 659 (citing Paul, 424 U.S. 693). In Paul v. Davis, the Supreme Court considered a due process challenge by the respondent, Edgar Paul, whose name and photograph were included on a flyer of "active shoplifters," which was distributed to local merchants. Paul, 424 U.S. at 695. Although Paul had previously been charged with shoplifting, that charge was dismissed "[s]hortly after circulation of the flyer." Id. at 696. Paul asserted that the false designation "would seriously impair his future employment opportunities." Id. at 697.
The Court rejected Paul's due process challenge, stating that "no constitutional doctrine converts] every defamation by a public official into a deprivation of liberty within the meaning of the Due Process Clause." Id. at 702. Paul's due process claim failed because he could not "assert denial of any right vouchsafed to him by the State and thereby protected under the Fourteenth Amendment." Id. at 712. Because of that, the "defamatory publications, however seriously they may have harmed [Paul's] reputation, did not deprive him of any `liberty' or `property' interest protected by the Due Process Clause." Id.
The Paul Court clarified that its previous line of due process cases "does not establish the proposition that reputation alone, apart from some more tangible interests such as employment, is either `liberty' or `property' by itself sufficient to invoke the" Due Process Clause. Id. at 701. In Constantineau, Roth, and Goss,
Id. at 711.
M.B.'s allegations here bear similarity to those articulated in Paul. M.B. alleges a reputational injury coupled with prejudice to "his ability to be accepted" at colleges to which he applies, (Compl. ¶ 42), or to "obtain admission to the college of his choice," (Compl. ¶ 45). As discussed below, M.B., like Paul, fails to allege facts that establish the deprivation of a constitutionally protected liberty interest.
Even assuming that Defendants damaged M.B.'s reputation by "formally marking him as a `bully,'" (Compl. ¶ 45), M.B. alleges the alteration of no legal status or deprivation of a specific property right that can bring his Void for Vagueness, or lack of notice, claim within the ambit of the Due Process Clause.
In support of his Void for Vagueness claim, M.B. alleges that his disciplinary record "will be released to any college to which [he] may apply,"
To articulate a cognizable liberty interest protected by the Due Process Clause, M.B. must allege both a stigmatic statement and a distinct alteration or eradication of some legal status. M.B. argues that binding precedent establishes "`that there exists a variety of interests which are difficult of definition but are nevertheless comprehended within the meaning of either "liberty" or "property" as meant in the Due Process Clause.'" (PL's Resp. 11 (quoting Paul, 424 U.S. at 710).) The very next sentence of Paul, however, identifies those interests as ones that "attain this constitutional status by virtue of the fact that they have been initially recognized and protected by state law" because the Supreme Court has "repeatedly ruled that the procedural guarantees of the Fourteenth Amendment apply whenever the State seeks to remove or significantly alter that protected status." Paul, 424 U.S. at 710. Paul also identifies "other interests, . . . protected not by virtue of their recognition by state law of a particular State but because they are guaranteed in one of the provisions of the Bill of Rights which has been `incorporated' into the Fourteenth Amendment." Id. n.5. "[J]eopardiz[ing] M.B.'s post-high school future and his ability to obtain admission to the college of his choice," (PL's Resp. 10), simply does not rise to the level of a deprivation of either type of interest.
First, M.B.'s ability to obtain admission to the college of his choice is not a right that has been "initially recognized and protected by state law" and has thus "attain[ed] . . . constitutional status." Paul, 424 U.S. at 710. Although the Supreme Court and the United States Court of Appeals for the Fourth Circuit have not decided the issue, persuasive and thoughtful decisions in federal courts in Virginia and this District have concluded since 2005—uniformly—that a student has no property interest in higher education because "there is no statutory right to be a public [or private] college or university student." Alger, 175 F. Supp. at 660 (Dillon, J.);
Further, absent some underlying state-created interest, courts consistently decline to find a property interest in continued enrollment in college or graduate school programs when a student involuntarily separates from an academic institution. See Abbas v. Woleben, No. 3:13cv147, 2013 WL 5295672, at *6 (E.D. Va. Sept. 19, 2013) (Gibney, J.) ("Recent decisions in this Court have held conclusively that a student does not have a property interest in continuing enrollment in an educational program.");
M.B. appears to rely on a 2016 case from this District that adds a novel voice, as did the Alger case from the Western District the same year, regarding what might establish a constitutionally protected interest for due process purposes. M.B. cites Doe v. Rector and Visitors of George Mason University ("GMU") for the proposition that "an individual's interest in his future educational and employment prospects is a liberty interest." (PL's Resp. 12 (citing GMU, 149 F.Supp.3d 602, 613-14 (E.D. Va. 2016) (Ellis, J.)). The Court will assess M.B.'s argument below.
First, however, it bears noting that both Alger and GMU are inapposite to M.B.'s case factually.
In GMU, the district court found that a public university violated a college student's due process rights when it expelled him without a proper hearing or review. 149 F. Supp. 3d at 613-14. Although the GMU decision focuses on the dramatic injury a charge of sexual misconduct would have on a student's reputation, the court explicitly noted that "plaintiff's expulsion constitutes an alteration of his legal status as a student." Id at 613. The GMU court concluded that Doe's expulsion from GMU, coupled with the damage to his reputation for having been dismissed for sexual misconduct, established the foundational elements of a protected liberty interest because the "`reputational injury [was] accompanied by a state action that "distinctly alter[ed] or extinguished]" a legal status.'" Id (quoting Shirvinksi, 673 F.3d at 315). In so finding, the GMU court faced "appellate" procedural abnormalities so apparent that the court found procedural due process violations without hesitation.
This Court does not necessarily disagree with the sentiment expressed in GMU that "[i]n the context of academic discipline, the possibility that a disciplinary violation will `interfere with later opportunities for higher education and employment' is so clear as to almost be a truism." Id at 614 n.9 (quoting Goss, 419 U.S. at 575). However, the upshot of M.B.'s demarcation as a "bully" in a secondary school record differs materially from the consequences before the court in GMU. The GMU court observed that the student's "transcript bears a notation that he was the subject of a non-academic expulsion," which "any reasonable person will conclude. . . implies `the existence of serious character defects.'" Id. at 614 (quoting Sciolino v. City of Newport News, 480 F.3d 642, 646 n.2 (4th Cir. 2007)). This Court cannot rule, based on existing law or these facts, that a finding of "bullying," the punishment of which involved a writing assignment and no suspension, conveys the administrative finding of a serious character defect that has led courts such as GMU or Alger to suggest that constitutional claims might be at issue. See also Sciolino, 480 F.3d at 646 n.2
Moreover, granting plaintiff summary judgment on his claim for a deprivation of his liberty interests, the GMU court noted that "if plaintiff seeks education or employment with institutions or organizations that require disclosure of [plaintiffs disciplinary] records, plaintiffs only options are to forgo opportunities with those institutions or organizations or to authorize the dissemination of records that would likely foreclose plaintiffs ability to pursue such opportunities because of the allegedly defamatory nature of the records." GMU, 149 F. Supp. 3d at 614 n.9 (emphases added). M.B. does not allege that his opportunity to attend college will be foreclosed as a result of Defendants' actions, merely that his "ability to obtain admission to the college of his choice" will be jeopardized. (Compl. ¶ 45.)
For all these reasons, even taking all of M.B.'s allegations as true, M.B. cannot state a claim for a deprivation of his liberty interests.
In addition to not being protected by state law, M.B.'s ability to obtain admission to the college of his choice also is not a right that has been "guaranteed in one of the provisions of the Bill of Rights which has been `incorporated' into the Fourteenth Amendment." Paul, 424 U.S. at 710 n.5. "Public education is not a `right' granted to individuals by the Constitution." Plyler v. Doe, 457 U.S. 202, 221 (1982) (citing San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 35, (1973)). Although "education is perhaps the most important function of state and local governments," Brown v. Bd. of Ed. ofTopeka, 347 U.S. 483,493 (1954), and "[t]he American people have always regarded education and the acquisition of knowledge as matters of supreme importance," Meyer v. Nebraska, 262 U.S. 390,400 (1923), an individual has no constitutionally-granted right to education. See Rodriguez, 411 U.S. at 35 ("Education, of course, is not among the rights afforded explicit protection under our Federal Constitution. Nor do we find any basis for saying it is implicitly so protected.").
Taking all of his well-pleaded allegations as true, M.B. has failed to plead facts sufficient to satisfy the "stigma-plus" standard of Paul v. Davis.
Te Court will grant Defendants' Motion to Dismiss Count II, M.B.'s Arbitrary and Capricious claim, because M.B. fails to allege the deprivation of a constitutionally protected interest, and even if he had, the factual allegations in his Complaint repudiate his assertion that Defendants' actions were arbitrary and capricious. "In the area of academics, substantive due process protection shields individuals only from actions that are arbitrary and capricious." Davis v. George Mason Univ., 395 F.Supp.2d 331, 336 (E.D. Va. 2005) (citing Bd. of Curators of Univ. of Mo. v. Horowitz, 435 U.S. 78, 91-92 (1978)). "[T]he Court `may not override [an academic decision] . . . unless it is such a substantial departure from accepted academic norms as to demonstrate that the person or committee responsible did not actually exercise professional judgment." Lewin, 910 F. Supp. at 1167 (second alteration in original) (citing Ewing, 474 U.S. at 225). To state a substantive due process claim, a plaintiff must first show that he or she had "a constitutionally protected liberty or property interest." Stone, 855 F.2d at 172 (citing Roth, 408 U.S. 564).
As discussed above, taking all of M.B.'s factual assertions as true, he fails to allege a deprivation of any constitutionally protected property or liberty interest. Even if M.B. had suffered a deprivation of a constitutionally protected interest, the Court cannot find that Defendants' disciplinary decisions amount to such a substantial departure from academic norms as to demonstrate that Defendants exercised no professional judgment. See Lewin, 910 F. Supp. at 1167. As alleged, Defendants initiated disciplinary action against M.B. by speaking privately with M.B. and his parents. Seventeen days later, McGee informed M.B. and M.B.'s parents via letter that MWGS had found M.B. in violation of the prohibition of bullying, citing the MWGS policy that M.B. had violated and explaining which of M.B.'s actions constituted the violation. Forty-two days after that, M.B. was granted an appeal hearing during which M.B. presented his perspective and defended his actions. M.B.'s Complaint thus alleges facts indicating that Defendants' disciplinary decision resulted from deliberation and the exercise of professional judgment. See id. ("Nothing among Plaintiffs allegations suggests that the review of Plaintiff s. . . record by the Committee and the two officials was anything but careful and deliberate."). The Court cannot find that Defendants' decision to discipline M.B. for bullying constituted "arbitrary and capricious" action in violation of the Due Process Clause. See Davis, 395 F. Supp. 2d at 336. The Court will grant Defendants' Motion to Dismiss Count II, the Arbitrary and Capricious claim.
The Court must deny Defendants' Motion to Dismiss Count III, the First Amendment claim. At the motion to dismiss stage, the Court is bound by M.B.'s allegations, which include no facts that demonstrate a substantial disruption of the work and discipline of the school, or any reason for Defendants to forecast such a disruption. Taking M.B.'s well-pleaded factual allegations as true, the Court cannot find, at this stage, that Defendants were entitled to regulate his off-campus speech.
The Constitution provides that Congress and, through the Fourteenth Amendment, the states may not "abridg[e] the freedom of speech." U.S. Const, amend. I; see also Hardwickex rel Hardwickv. Heyward, 711 F.3d 426, 434 (4th Cir. 2013). Although "the constitutional rights of students in public schools are not automatically coextensive with the rights of adults in other settings," Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 682 (1986), students do not "shed their constitutional rights to freedom of speech . . . at the schoolhouse gate," Tinker v. Des Moines Indep. Sch. Dist., 393 U.S. 503, 506 (1969).
The Supreme Court established the basic framework governing student speech in Tinker. 393 U.S. 503. In Tinker, a group of students wore black armbands to school to protest the Vietnam War, and were suspended until they returned without armbands. Id. at 504. Finding that wearing the armbands constituted symbolic speech, the Supreme Court held that schools may regulate student speech, "in class or out of it[] which. . . materially disrupts classwork or involves substantial disorder or invasion of the rights of others." Id. at 513. However, a student may "express his [or her] opinions, even on controversial subjects . . ., if he [or she] does so without `materially and substantially interfering with the requirements of appropriate discipline in the operation of the school' and without colliding] with the rights of others." Id. (quoting Burnside v. Byars, 363 F.2d 744, 749 (5th Cir. 1966)) (last alteration in original). And although school officials may even impose prior restraints on student speech if the officials "reasonably . . . forecast substantial disruption of or material interference with school activities," id. at 514; see also Hardwick, 711 F.3d at 434, school officials may not regulate student speech based only on "undifferentiated fear or apprehension of disturbance," Tinker, 393 U.S. at 508. Finding that the students' behavior in Tinker "neither interrupted school activities nor sought to intrude in the school affairs or the lives of others," and merely caused "discussion outside of the classrooms, but no interference with work and no disorder," the Supreme Court held that the school officials had unconstitutionally regulated the students' symbolic speech. Id. at 514.
Since deciding Tinker, the Supreme Court has identified three exceptions
Whether the speech occurs on or off the school campus must be weighed. Although the Supreme Court has not specifically addressed school officials' regulation of off-campus student speech, the Fourth Circuit has held that, in keeping with their "role as the trustees of the student body's well-being," school officials may regulate student speech that originates off-campus when a sufficiently strong nexus exists between the student speech and the school's pedagogical interests. Kowalski v. Berkeley Cty. Schs., 652 F.3d 565, 573 (4th Cir. 2011) (holding that school officials did not violate a student's First Amendment rights when they suspended her for creating, posting to, and inviting approximately one hundred classmates to join, a social networking webpage that ridiculed a fellow classmate). Thus, school officials may discipline students for speech, regardless of where the speech originates, when the speech is "materially and substantially disruptive in that it `interfere[s] . . . with the school's work [and] collide[s] with the rights of other students to be secure and to be let alone.'" Id. at 573-74 (second and third alterations in original) (quoting Tinker, 393 U.S. at 508, 513); accord Hardwick, 711 F.3d at 436 (upholding school decision to prohibit the Confederate flag at school because past racially charged incidents made a substantial disruption reasonably foreseeable). In order to comply with Tinker, however, a school official may regulate off-campus student speech only when it is reasonably foreseeable that the speech would "make its way to the school in a meaningful way" and "interfere[] with the work and discipline of the school." Kowalski, 652 F.3d at 574; accord Doninger v. Niehoff, 527 F.3d 41, 51 (2d Cir. 2008) (upholding school decision to punish student for off-campus speech when the student, in her blog, encouraged others to contact the administration to "piss [them] off more").
M.B.'s Count III, the First Amendment claim, survives the Motion to Dismiss because his Complaint includes only scant facts regarding how his email and its aftermath affected the MWGS community. To grant Defendants' Motion to Dismiss, the Court would have to find that M.B.'s actions substantially disrupted the work and discipline of MWGS or collided with the rights of the other students, or that the Defendants could reasonably forecast a substantial disruption. Given the facts as M.B. has alleged them, the Court cannot so find.
The Defendants assert in their Motion to Dismiss that "it was reasonably foreseeable that [M.B.'s] email would reach the school and his email threatened to—and did—cause a material and substantial disruption to the operation of [MWGS] and collided with the rights of others." (Mot. Dismiss 10-11.) Analogizing M.B.'s private email to the Harvard Admission's Office to Kowalski's public webpage, created for the purpose of ridiculing a fellow classmate and shared with approximately one hundred people, the Defendants argue that M.B. could foresee that his speech would reach MWGS and create a substantial disruption. This is so, they say, because M.B. included McGee's and Tharp's email addresses in his email, and because it was "targeted and defamatory and aimed at a fellow classmate." (Id at 12.) The Defendants contend entitlement to sanction M.B. for his speech because "speech that is defamatory of another student or that constitutes harassment or bullying of a student can be particularly disruptive to the school environment." (Id. at 11.)
In support of their contention, Defendants point to language in Kowalski that "the language of Tinker supports the conclusion that public schools have a `compelling interest' in regulating speech that interferes with or disrupts the work and discipline of the school, including discipline for student harassment and bullying." Kowalski, 652 F.3d at 572 (citing DeJohn v. Temple Univ., 537 F.3d 301, 319-20 (3d Cir. 2008)). Defendants contend that M.B.'s speech, "like the speech at issue in Kowalski, . . . was targeted and defamatory and aimed at a fellow classmate." (Mem. Supp. 12.) In Kowalski, the school permissibly regulated the student's offcampus speech, because, like here, Defendants argue, "had the school not intervened, the potential for continuing and more serious harassment of [R.P.] as well as other students was real." Kowalski, 652 F.3d at 574. "Experience suggests that unpunished misbehavior can have a snowballing effect, in some cases resulting in `copycat' efforts by other students or in retaliation for the initial harassment." Id. Thus, Defendants assert that they constitutionally could intervene to prevent the "threatened . . . material[] and substantial[] interference] with the requirements of appropriate discipline" that could have resulted from additional similar emails—from M.B. or other students. (Mem. Supp. 12); see also id. at n.6 ("If [M.B.] had not been disciplined for his false email to Harvard, what was to stop [him] from sending similar, false emails to the grantor of the scholarship and others?").
Given the facts M.B. alleges in his Complaint, the Court cannot find that the Defendants could reasonably foresee a substantial disruption to the school environment. While M.B. likely "could foresee that his speech would reach the school [because] in his email he urged the Harvard admission officers to contact both McGee and Tharp," (Mem. Supp. 12), it was not necessarily reasonably foreseeable to the school officials that his email would "impact the school environment," as described in First Amendment cases. See Kowalski, 652 F.3d at 573. M.B. alleges that he sent the email directly to the Harvard Admission's Office, and did not "share the email with any other student" or "use any form of social media to advertise or announce his concerns." (Compl. ¶ 24.) This means of communication, unlike a blog or website, makes it less reasonably foreseeable that M.B.'s actions would create a substantial disruption within the school environment. Contra Kowalski, 652 F.3d at 573. Finally, aside from stray comments about an undated student outcry regarding the "cheating incident" and the suspension of the Honor Council, M.B.'s Complaint contains no facts indicating that his email affected the school environment at all, much less that the email substantially disrupted that environment.
The Court does not disagree that M.B.'s actions, even as alleged in his Complaint and viewed in the light most favorable to M.B., had great potential to negatively impact R.P. and R.P.'s future. And the Court cannot conclude alongside M.B. "that he was bound . . . by his school's Honor Code" to report to the Harvard Admission's office his "aware[ness] that [R.P] had been caught and disciplined for cheating while at [MWGS]." (Compl. ¶ 20.)
At this stage, when the Court must take the facts alleged in M.B.'s Complaint as true, Defendants can make no showing of substantial disruption, nor can they establish that they could reasonably forecast a substantial disruption because, as alleged, M.B. never shared the email with other students or otherwise broadcast his opinion. (Compl. ¶ 24.) M.B.'s Complaint contains no facts indicating that it was reasonably foreseeable that the email he sent to the Harvard Admission's Office would "make its way to the school in a meaningful way" and "interfere[] with the work and discipline of the school." Kowalski, 652 F.3d at 574. Taking all of M.B.'s well-pleaded allegations as true and viewing them in the light most favorable to M.B., M.B. pleads facts sufficient to state a claim for a violation of his First Amendment rights that is "plausible on its face" sufficient to survive a motion to dismiss. Iqbal, 556 U.S. at 678-79 (citing Twombly, 550 U.S. at 570; Fed. R. Civ. P. 8(a)(2)). Defendants' Motion to Dismiss Count III, the First Amendment claim, will be denied.
For the foregoing reasons, the Court will grant in part and deny in part Defendants' Motion to Dismiss. (ECF No. 4.) The Court will dismiss Count I, the Void for Vagueness claim, and Count II, the Arbitrary and Capricious claim. Count III, the First Amendment claim, remains.
Neither party can dispute or raise new facts as part of Rule 12(b)(6) briefing. In ruling on a motion to dismiss for failure to state a claim, the Court "does not resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses." Martin, 980 F.2d at 952. Rather, the Court takes as true M.B.'s well-pleaded allegations and views those allegations in the light most favorable to M.B. See id. Thus, for purposes of this motion, the Court presumes, as M.B. alleges, that "there is every likelihood (and, indeed, it is [MWGS's] intention) that college admissions personnel . . . will see the damaging information." (Compl. ¶ 45.)
M.B. attaches the other three letters (March 15, March 24, and April 22, 2016), it seems, to argue the merits of whether his conduct satisfies the definition of bullying used by MWGS. (See PL's Resp. 16, ECF No. 8.) For reasons explained more precisely later, see infra Part III.B., M.B. improperly tackles the merits of the claim before asserting a claim he can pursue. As such, the Court cannot address this aspect of his briefing.
U.S. Const, amend. XIV.
U.S. Const, amend. I.
M.B.'s statement lacks clarity as to what constitutes the "the cheating incident," meaning the Court cannot discern the timeframe surrounding that incident. While he avers that McGee suspended the Honor Council after "the cheating incident" M.B. does not specify whether the "student outcry" occurred after R.P.'s initial discipline for cheating or after the school community became aware of M.B.'s accusation that MWGS administration concealed R.P.'s honor code violations. Other than this vague footnote, M.B. makes no plausible assertions that anyone other than MWGS administrators and R.P. became aware of the events surrounding M.B.'s email to Harvard, or any circumstances preceding it.
Were this Court able to address M.B.'s vagueness challenge to the admittedly choppy provisions of Section D relative to Section P, it would have to do so in the context of the facts alleged: that, at the time of these events, the Handbook contained both Sections D and P. But M.B. fails to establish the deprivation of a protected right that must undergird any Due Process claim, so the Court cannot weigh the merits of his Void for Vagueness claim.
However, a school deprives a student of his or her property interest in public education only when the school effectuates a "total exclusion from the educational process." Id. at 576. Where, as here, a student like M.B. alleges no suspension, expulsion, or exclusion from the state-mandated secondary school process, no deprivation of a protected property interest has occurred.
At the same time, without holding that Doe had actually stated a property interest, the Alger court allowed Doe to try to prove the legitimacy of his claim to a property right for continuing enrollment. Doe alleged that James Madison University ("JMU") had "substantially limited its ability to suspend, expel or dismiss" students by adopting a series of "policies and procedures" which, in effect, resulted in a regular and routine system whereby students at JMU were suspended, expelled, or dismissed only for cause. Id. at 657. The Alger court acknowledged the novelty of such a claim, should it eventually be allowed to proceed. Clearly, the Alger theory of establishing expectations to process cannot take hold in M.B.'s case.
The Alger court hesitated to apply Sciolino and other public employment cases to the liberty interest claim about college suspension before that court. Alger, 175 F. Supp. 3d at 660 n.8. This Court also will not extend the liberty interest doctrine beyond current bounds. This case, involving a secondary school non-suspension, is particularly unsuitable for such a reach.
First, unlike M.B., who lacks a protected interest in going to the college of his choice, government employees often have a protected interest in continued employment. Second, a different, four-part test applies when former public employees challenge whether damaging information can be shared with prospective employers. To establish their liberty interest claim, dismissed public employees must allege that the charges in their files post-termination: (1) place a stigma on their reputation; (2) were made public by the employer; (3) were made in conjunction with termination or demotion; and, (4) were false. Sciolino, 480 F.3d at 646. Applying this four-part test to the facts of M.B.'s case would amount to placing a square block in a round hole. This inevitable exercise in frustration may explain why the Fourth Circuit has cautioned against applying public employment cases to circumstances in which they are not "germane." Shirvinski v. U.S. Coast Guard, 673 F.3d 308, 315 (4th Cir. 2012).
The Court therefore analyzes M.B.'s substantive due process rights with the "caution and restraint" that the Supreme Court has instructed courts to use. Ewing, 474 U.S. at 229 (Powell, J., concurring) (citing Moore v. E. Cleveland, 431 U.S. 494, 502 (1977)).
The second exception applies to speech, such as that in a student newspaper, which may convey that it was school-sanctioned. Distinguishing between speech that a school tolerates and speech that a school affirmatively promotes, the Supreme Court held that school officials may exercise greater control over "expressive activities that students, parents, and members of the public might reasonably perceive to bear the imprimatur of the school [and] may fairly be characterized as part of the school curriculum." Hazelwood Sch Dist. v. Kuhlmeier, 484 U.S. 260,271 (1988). Without running afoul of the Constitution, school officials may "exercise[e] editorial control over the style and content of student speech in school-sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns." Id. at 273. M.B.'s email could not be "reasonably perceive[d] . . . [as] bearpng] the imprimatur of the school," nor could it "fairly be characterized as part of the school curriculum." Contra Kuhlmeier, 484 U.S. 260.
Finally, consistent with their job of "educating students about the dangers of illegal drug use," school officials may "restrict student speech at a school event, when that speech is reasonably viewed as promoting illegal drug use." Morse v. Frederick, 551 U.S. 393, 408, 402. Of course, nothing about M.B.'s email could be "reasonably viewed as promoting illegal drug use." Contra Morse, 551 U.S. 393.
Because M.B.'s email fits none of the three exceptions, the Tinker substantial-disruption test governs. Therefore, in order to punish M.B. for sending the email, the Defendants must have reasonably foreseen that M.B.'s speech would `"materially and substantially interfere with the requirements of appropriate discipline in the operation of the school.'" Tinker, 393 U.S. at 509.
The Court finds nothing in the language of the Honor Code that requires M.B. to report a fellow student's suspected cheating to the admissions office of the university to which that student had been admitted.
