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Knotts v. Oregon Trail School District 46

United States District Court, D. Oregon

October 29, 2017

JOHN KNOTTS, Plaintiff,
OREGON TRAIL SCHOOL DISTRICT 46, WADE LOCKETT, in his individual and official capacity, AARON BAYER, in his individual and official capacity, and KIM BALL, in her individual and official capacity, Defendants.

          Haley Percell OREGON SCHOOL BOARDS ASSOCIATION Attorney for Defendants

          Justin Steffen STEFFEN LEGAL SERVICES, LLC Attorney for Plaintiff

          OPINION & ORDER

          Marco A. Hernandez United States District Judge.

         Magistrate Judge Acosta issued a Findings & Recommendation (#41) on July 26, 2017, in which he recommends the Court deny Plaintiff's motion for summary judgment and grant Defendants' motion for summary judgment. Plaintiff has timely filed objections to the Findings & Recommendation. The matter is now before me pursuant to 28 U.S.C. § 636(b)(1) and Federal Rule of Civil Procedure 72(b).

         When any party objects to any portion of the Magistrate Judge's Findings & Recommendation, the district court must make a de novo determination of that portion of the Magistrate Judge's report. 28 U.S.C. § 636(b)(1); Dawson v. Marshall, 561 F.3d 930, 932 (9th Cir. 2009); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc). I have carefully considered Plaintiff's objections and Defendants' response to the objections. I agree with Plaintiff that the Magistrate Judge erred and thus, I decline to adopt the Findings & Recommendation.

         The background of the dispute is set forth in Judge Acosta's July 26, 2017 Findings & Recommendation (the F&R). Plaintiff, a frequent spectator at Sandy High School athletic events, made statements while attending those events which included language Defendants contend is inappropriate. Plaintiff also expressed other opinions which Defendants found objectionable[1] as set forth in the F&R. In response, Defendants directed Plaintiff to refrain from attending Sandy athletic events on two occasions, initially for two weeks and then for six months.

         Judge Acosta concluded that some of Plaintiff's statements were not constitutionally protected. F&R at 12-8. He further determined that some of Defendants' actions would deter a "'person of ordinary firmness from future First Amendment activities.'" Id. at 22-23 (quoting Mendocino Envtl. Ctr. v. Mendocino Cty., 192 F.3d 1283, 1300 (9th Cir. 1999)). He also found that assuming all of Plaintiff's speech was protected, the evidence did not establish that Defendants' actions were based on the content of Plaintiff's speech or the viewpoints he expressed. Id. at 18-22.

         In his objections to the F&R, Plaintiff argues that Judge Acosta erred by concluding that (1) some of Plaintiff's speech was not constitutionally protected, (2) Defendants' actions were viewpoint neutral, (3) there was no genuine issue of material fact as to whether Plaintiff's language was vulgar or offensive; and (4) Defendants' actions were not intended to chill a person's speech and would not actually do so. Plaintiff argues that because of these errors, Judge Acosta improperly granted Defendants' summary judgment motion and denied Plaintiff's motion. I agree with Plaintiff that Defendants' motion should be denied. However, I reject Plaintiff's contention that the errors require that summary judgment be granted to Plaintiff.

         Plaintiff alleges that Defendants retaliated against him for the exercise of his free speech rights under the First Amendment. First Am. Compl. ¶ 11; ECF 14. He contends that in response to "denigrating" comments he made about Oregon Trail School District staff or policies, and in response to a discussion he had with an opposing football coach, he was excluded from school events, threatened with being arrested, charged with trespassing, and faced the possibility of reporting to the principal each time he attempted to enter school property. Id. Plaintiff's claim is not a generalized First Amendment claim in which he alleges, for example, that Defendants' banning him from the property violated a constitutional right to enter school property. E.g., Lovern v. Edwards, 190 F.3d 648, 655-56 (4th Cir. 1999) (rejecting the claim that school administrators must provide parents with "boundless access" to school property); Van Deelen v. Shawnee Mission Unified Sch. Dist., 316 F.Supp.2d 1052, 1057 (D. Kan. 2004) (indicating that parents do not have a constitutional right to enter a school); see also Kugler v. Bd. of Educ. of City of Chicago, No. 16 C 8305, 2017 WL 3581176, at *7 (N.D. Ill. Aug. 18, 2017) (plaintiff union representative conceded he did not have a "substantive right" to enter school board property "as a constitutional matter"). Plaintiff's more limited claim contends that in response to his expression of certain opinions, Defendants denied him the valuable benefit of watching high school sports activities, a benefit it offers to the public.

         To establish a First Amendment retaliation claim, a non-prisoner, non-government employee, private citizen plaintiff must show that (1) he or she engaged in constitutionally protected speech; (2) the defendants' actions "would chill a person of ordinary firmness from continuing to engage in the protected activity"; and (3) the protected activity was a substantial or motivating factor in the defendants' conduct. E.g., Pinard v. Clatskanie Sch. Dist. 6J, 467 F.3d 755, 770 (9th Cir. 2006); see also Pearson v. Cent. Curry Sch. Dist. No. 1, No. 6:15-CV-1353-AA, 2015 WL 5665457, at *3 (D. Or. Sept. 22, 2015) (citing Pinard standard in case where parents of student brought a First Amendment retaliation claim against school district). Judge Acosta recited the appropriate standards. F&R at 12.[2]

         I. Constitutionally Protected Speech

         Judge Acosta began his discussion by analyzing the first element of whether Plaintiff's speech was constitutionally protected. Relying on a "forum analysis" and a determination that schools are not public fora, Judge Acosta wrote that "Defendants' actions in response to Knotts's conduct need be only reasonable in light of the purpose served by the school and viewpoint neutral to be permissible." Id. at 13. Judge Acosta was correct that Plaintiff did not establish Sandy High School as a public forum and thus, it is either a limited public forum or a nonpublic forum. But, he erred in applying a forum analysis to a retaliation claim.

         The cases Judge Acosta cited address generalized First Amendment claims, not retaliation claims. Grayned v. City of Rockford considered a claim that city ordinances restricting protests near a high school violated the First Amendment. 408 U.S. 104 (1970). One ordinance regulated picketing activity and the other regulated noise. Id. at 107. After being convicted of violating both ordinances during a demonstration at the high school, the defendant/appellant challenged the ordinances' constitutionality. Id. at 106. Relying on Police Department of Chicago v. Mosley, 408 U.S. 92 (1970), a decision the Court issued the same day, the Grayned Court found that the picketing ordinance violated the Equal Protection Clause. Id. at 107. The Court rejected the defendant's argument that the noise regulation ordinance was vague and overbroad and thus, it rejected his claim that the ordinance was in violation of the First Amendment. Id. This was not a First Amendment retaliation claim. Instead, it was a facial challenge to city policies.

         Similarly, in Flint v. Dennison, 488 F.3d 816 (9th Cir. 2007), the next case cited by Judge Acosta, the Ninth Circuit considered a facial attack to a school policy that restricted student campaign expenditures. Other cases cited in the F&R raise similar attacks on government policies. See Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260 (1988) (addressing the ability of schools and educators to exercise editorial control over the style and content of student speech in school-sponsored expressive activities consistent with the First Amendment; no retaliation claim involved); Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788 (1985) (challenge to executive order governing the participation of agencies in federal Combined Federal Campaign which specifically excluded legal defense and political advocacy organizations; no retaliation claim presented); PeTA, People for the Ethical Treatment of Animals v. Rasmussen, 298 F.3d 1198 (10th Cir. 2002) (challenge to constitutionality of a statute; no First Amendment retaliation claim made); DiLoreto v. Downey Unifed Sch. Dist. Bd. of Educ., 196 F.3d 958 (9th Cir. 1999) (challenge to school district practices regulating advertisements on baseball field; no retaliation claim); State v. Carr, 215 Or.App. 306, 314, 170 P.3d 563, 568 (2007) (challenge to state criminal trespass statute after arrest on school property; court noted that "[d]efendant does not argue that the principal's restriction on his speech was unreasonable. Rather, he argues that the principal had no lawful authority to restrict his speech at all"; no retaliation claim brought).

         A recent Fourth Circuit case expressly stated that "the public forum framework is not the appropriate frame of analysis in the Free Speech retaliation context." Buxton v. Kurtinitis, 862 F.3d 423, 428 (4th Cir. 2017) (noting that the plaintiff had "not pointed to a single case in which a court applied-as he requests here-forum analysis to a Free Speech retaliation claim"). The Buxton court explained that "public forum cases deal with the government restricting access to a forum-i.e., preventing the speech from happening altogether . . . [whereas] retaliation claims arise after the speech has already happened, presumably after the speaker has gained access to the forum in question." Id. (citation omitted). "Excluding a speaker from participating and retaliating against the speaker for his speech are two different actions, to which we apply different analytical frameworks." Id.

         A forum analysis would be appropriate if, for example, Plaintiff challenged the District's policy of disallowing "'[a]busive language or actions toward any players, officials, coaches, or other fans' at athletic events.'" See F&R at 2 (quoting from pre-game announcement for Northwest Athletic Conference games read routinely at Sandy athletic events). Because that is not the nature of his claim, the forum analysis is not applicable here. Plaintiff's claim is that separate from the contours of the policy, Defendants retaliated against him because of the particular statements he made and the opinions he expressed. That is a different type of claim.

         That's not to say that the significance of the school location is immaterial. Although the language of the First Amendment may appear to offer absolute protection, it has long been recognized that "[t]here are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which has never been thought to raise any Constitutional problem." Chaplinsky v. New Hampshire, 315 U.S. 568, 571-72 (1942) (listing such categories as lewd, obscene, profane, libelous, and "insulting or 'fighting' words-those which by their very utterance inflict injury or tend to incite an immediate breach of the peace."); see also United States v. Alvarez, 567 U.S. 709, 717-18 (2012) (listing the "historic and traditional categories [of expression] long familiar to the bar for which content-based restrictions on speech have been permitted" as: (1) advocacy intended, and likely, to incite imminent lawless action, (2) obscenity, (3) defamation, (4) "so-called 'fighting words, '" (5) child pornography, (6) fraud, (7) true threats, and (8) speech presenting some grave and imminent threat the government has the power to prevent)); In re Anonymous Online Speakers, 661 F.3d 1168, 1173 (9th Cir. 2011) (citing Chaplinsky for the proposition that "some speech, such as fighting words and obscenity, is not protected by the First Amendment at all.").

         One category omitted from the list recited in Alvarez, but included in Chaplinsky, is profanity. Cases indicate that whether profane speech is constitutionally protected may in fact depend on its context and thus, it is not categorically protected or categorically unprotected. See Bonnell v. Lorenzo, 241 F.3d 800, 821 (6th Cir. 2001) ("it has long been held that despite the sanctity of the First Amendment, speech that is vulgar or profane is not entitled to absolute constitutional protection") (citing FCC v. Pacifica Foundation, 438 U.S. 726, 747 (1978)). For example, profanity as political expression when communicated in a courthouse is protected speech. Cohen v. California, 403 U.S. 15 (1971) (state could not, consistent with the First Amendment, punish the defendant for wearing a jacket which bore the words "Fuck the Draft" in a courthouse). And, profanity-laced criticism of police officers is also protected speech. E.g., United States v. Poocha, 259 F.3d 1077 (9th Cir. 2001) (defendant's utterance of "fuck you" or "that's fucked" to National Park Service ranger was constitutionally protected).

         In contrast, profane and vulgar speech is not protected in the school setting. Bethel Sch. Dist. v. Fraser, 478 U.S. 675 (1986). Judge Acosta recognized that under Bethel, schools, in order to protect minors from exposure to "vulgar and offensive spoken language, " may restrict the use of lewd, vulgar, and profane language. F&R at 14 (discussing Bethel, 478 U.S. at 684 (citing Pacifica Foundation, 438 U.S. at 748-51 (government's prohibition of radio broadcast of monologue which depicted sexual and excretory activities in a patently offensive manner at a time when children were undoubtedly in the audience was constitutionally permissible))); see also B.H. ex rel. Hawk v. Easxton Area Sch. Dist., 725 F.3d 293, 319 (3d Cir. 2013) ("Under [Bethel School District v.] Fraser, a school may categorically restrict plainly lewd, vulgar, or profane speech . . . regardless of whether it can plausibly be interpreted as commenting on social or political issues").

         The Ninth Circuit has held that "school officials may suppress speech that is vulgar, lewd, obscene, or plainly offensive without a showing that such speech occurred during a school-sponsored event." Chandler v. McMinnville Sch. Dist., 978 F.2d 524, 529 (9th Cir. 1992) (holding that discipline of students for wearing buttons referring to "scabs" in support of striking teachers, was inconsistent with students' First Amendment rights). Additionally, speech which would "substantially disrupt, or materially interfere with, school activities" is also not entitled to constitutional protection. Id. (citing Tinker v. Des Moines Indep. Comm. Sch. Dist., 393 U.S. 503, 514 (1969) (wearing armband to school in protest of the Vietnam War was protected speech when it did not cause substantial disruption or interference with school activities)).

         Although most of these cases deal with student speech, the conclusions reached are rooted in concerns regarding the challenged expression's impact on minors and the disruption to or interference with school activity. E.g., Tinker, 393 U.S. at 513-14 (discussing ability of school to regulate student expression on school property in the absence of material and substantial disruption to the work and discipline of the school); Pacifica, 438 U.S. at 750-51 (noting that timing of the broadcast was when children would be present, emphasizing that "broadcasting is uniquely accessible to children, " and referring to the "government's interest in the well-being of its youth"); Bethel, 478 U.S. 683-84 (Court stressed the vulnerability of a "less mature audience, " including some "only 14 years old, " to offensive speech) (citing Ginsberg v. New York, 390 U.S. 629 (Court upheld a state statute banning the sale of sexually oriented material to minors, even though the material in question was entitled to First Amendment protection with respect to adults)). These concerns are equally implicated by parent or third-party speech at school activities. Thus, they appropriately govern the question of whether Plaintiff's statements were constitutionally protected. See Lovern, 190 F.3d at 655 ("School officials . . . have the authority and responsibility for assuring that parents and third parties conduct themselves appropriately while on school property.").

         Here, three of Plaintiff's "statements" were made at high school athletic events, which are school activities and which Judge Acosta rightly observed "are commonly attended by the families of the participants, including younger siblings, as well as by other high school students and the high school students participating in the event." F&R at 16. I examine each of the ...

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