dariano v. mhusd opn - 2011

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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

SAN JOSE DIVISION

Dianna Dariano, et al.,

Plaintiffs, v.

Morgan Hill Unified Sch. Dist., et al.,

Defendants. /

NO. C 10-02745 JW

ORDER GRANTING IN PART ANDDENYING IN PART DEFENDANTS’MOTION TO DISMISS

I. INTRODUCTION

Unlike the general right of United States citizens to hold speeches, rally and picket on the

sidewalks of our public streets and in the amphitheaters of our public parks, our Constitution grants

public school children only limited First Amendment rights when they enter the schoolhouse gates.

Tinker v. Des Moines Indep. Sch. Dist., 393 U.S. 503 (1969). However, these rights are never fully

extinguished. Id. Rather, as our public schools provide the equally fundamental democratic

function of bestowing educational access to the next generation of citizens without to regard

economic, social, ethnic, or racial background, the Constitution has seen fit to balance this first

purpose of public schools against the individual autonomous right of First Amendment expression.

Without the ability to protect and foster a safe environment in our public schools, educational equity

and the democratic pillar it provides could crumble. On the other hand, the framers of our

Constitution found fit to highlight the primacy of free speech by placing it first within the

framework of our Bill of Rights. Without free discourse, especially the right to express political

views and to engage with our government institutions, our democracy is equally jeopardized. It is

Case5:10-cv-02745-JW Document36 Filed02/17/11 Page1 of 16

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1 Dianna Dariano individually and on behalf of their minor child M.D., John Darianoindividually and on behalf of their minor child M.D., Julie Ann Fagerstrom individually and onbehalf of their minor child D.M., Kurt Fagerstrom individually and on behalf of their minor childD.M., Kendall Jones individually and on behalf of their minor child D.G., and Joy Jones individuallyand on behalf of their minor child D.G. (collectively, “Plaintiffs”).

2 Individual Defendants are Nick Boden in his official and individual capacity as Principalof Live Oak High School, and Miguel Rodriguez in his official and individual capacity as AssistantPrincipal of Live Oak High School.

3 (hereafter, “Motion,” Docket Item No. 12.)4 (hereafter, “Complaint,” Docket Item No. 1.)

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this fragile balance that the First Amendment doctrine addressing student’s rights to free speech and

free expression in public schools has recognized and warily navigated over the last forty years. The

case before the Court requires the Court to traverse this important legal territory. What is before the

Court today is a Motion to Dismiss for lack of standing that, if granted, would foreclose further

inquiry into these vital considerations. Thus, it is with utmost care that the Court approaches this

analysis.

Plaintiffs1 bring this action against Morgan Hill Unified School District and certain

individuals,2 (collectively, “Defendants”), alleging violations of their First and Fourteenth

Amendment rights pursuant to 42 U.S.C. § 1983, and violations of their right to Freedom of

Expression under the California Constitution, Art. I, § 2. Plaintiffs allege that Defendants violated

their federal and state constitutional rights to freedom of expression, due process and equal

protection by disallowing them from wearing American flag shirts in a public high school on Cinco

de Mayo Day.

Presently before the Court is Defendants’ Motion to Dismiss for Lack of Subject Matter

Jurisdiction.3 The Court conducted a hearing on February 7, 2011. Based on the papers submitted

to date and oral argument, the Court GRANTS in part and DENIES in part Defendants’ Motion to

Dismiss.

II. BACKGROUND

In a Complaint filed on June 23, 2010,4 Plaintiffs allege as follows:


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Plaintiffs John and Dianna Dariano are the parents and legal guardians of Plaintiff

M.D., a minor, who is and was a sophomore student at Live Oak High School which is

located within the Morgan Hill Unified School District. (Complaint ¶ 8.) Plaintiffs Kurt and

Julie Ann Fagerstrom are the parents and legal guardians of Plaintiff D.M., a minor, who is

and was a freshman student at Live Oak High School. (Id. ¶ 9.) Plaintiffs Kendall and Joy

Jones are the parents and legal guardians of Plaintiff D.G., a minor, who is and was a

sophomore student at Live Oak High School. (Id. ¶ 10.) Defendant Morgan Hill School

District (“District”) is a public entity established and organized under California law in

Morgan Hill, California. (Id. ¶¶ 8, 11.) Defendant Nick Boden (“Principal Boden”) was the

Principal of Live Oak High School and a policymaker for the District. (Id. ¶ 12.) Defendant

Miguel Rodriguez (“Assistant Principal Rodriguez”) was an Assistant Principal of Live Oak

High School and a policymaker for the District. (Id. ¶ 13.)

On May 5, 2010, Plaintiffs M.D., D.M. and D.G. (collectively, “Student Plaintiffs”)

and two other students, who are not plaintiffs in this action, wore shirts depicting images of

the American flag to Live Oak High School. (Complaint ¶ 14.) Student Plaintiffs wore their

American flag shirts to school to express a message conveying a pro-U.S.A. viewpoint and

had done so on prior occasions without incident. (Id. ¶ 15.) Also on May 5, 2010, many

students were expressing a pro-Mexico viewpoint through shirts and bodypaint, displaying

Mexican flags, and singing and dancing. (Id. ¶ 21.)

On the morning of May 5, 2010, Plaintiffs D.M. and D.G. arrived to school at

approximately 7:04 a.m. and Plaintiff M.D. arrived at approximately 9:15 a.m. (Complaint ¶

16.) At no time, even during a “brunch break” in the high school courtyard, did Student

Plaintiffs’ American flag shirts cause a disruption on the school campus. (Id. ¶¶ 17, 18, 22.)

Shortly after 10:05 a.m., while Student Plaintiffs were on “brunch break,” they were

confronted by Assistant Principal Rodriguez. (Id. ¶ 20.) Assistant Principal Rodriguez

informed Student Plaintiffs that they were not permitted to wear their American flag shirts

and gave Student Plaintiffs the option of either removing the shirts or turning them inside


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out. (Id.) Not wanting to disrespect their country and the American flag, Student Plaintiffs

refused to comply with either option. (Id.) After Plaintiff D.M. asked why the American

flag shirts were not permitted, Assistant Principal Rodriguez ordered Student Plaintiffs to his

office. (Id.)

Student Plaintiffs complied with Assistant Principal Rodriguez’s request and

proceeded to his office. (Complaint ¶ 23.) En route to the office, Plaintiff M.D. contacted

his mother, Plaintiff Dianna Dariano, by cellular phone and updated her on Assistant

Principal Rodriguez’s request. (Id.) Plaintiff Dianna Dariano departed for the school

immediately and began to notify the parents of the other two Student Plaintiffs. (Id. ¶ 24.)

Upon arrival at Live Oaks High School, Plaintiff Dianna Dariano proceeded to

Assistant Principal Rodriguez’s office. (Complaint ¶ 25.) Before entering to join her son,

Plaintiff Dianna Dariano overheard Assistant Principal Rodriguez lecturing Student Plaintiffs

inside the office about the holiday Cinco de Mayo. (Id. ¶¶ 25, 26.) All students, aside from

Plaintiff M.D., left the office once Plaintiff Dianna Dariano entered. (Id. ¶ 25.) While

inside, Assistant Principal Rodriguez notified Plaintiff Dianna Dariano that the American

flag shirts would not be permitted at the school that day and began to lecture her about Cinco

de Mayo. (Id. ¶ 26.) During this time, parents of other Student Plaintiffs arrived at the office

and requested an immediate meeting with Principal Boden. (Id. ¶ 27.)

Just a few moments later, the parents met with both Assistant Principal Rodriguez

and Principal Boden in a nearby conference room. (Complaint ¶ 28.) During the meeting,

Assistant Principal Rodriguez and Principal Boden lectured the parents about Cinco de Mayo

and reiterated that Student Plaintiffs were required to remove their American flag shirts or

turn them inside out. (Id.) Principal Boden expressed angrily that Student Plaintiffs would

be allowed to wear their American flag shirts any day but on Cinco de Mayo. (Id.)

About an hour and a half later, Plaintiff M.D. and two other non-plaintiff students

not wearing shirts with a purely pro-U.S.A. message were allowed to return to class based on

one parent’s demand that they not be banned. (Complaint ¶ 29.) Shortly after Plaintiff M.D.


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returned to class, Plaintiff Dianna Dariano learned that expression of a pro-Mexico viewpoint

was being permitted at the school and, concerned that her son was being unfairly singled out

for his pro-America viewpoint, removed Plaintiff M.D. from class. (Id. ¶ 31.) Plaintiffs

D.M. and D.G. were not allowed to return to class and were threatened with suspension

should they not remove their American flag shirts or turn them inside out. (Id. ¶ 30.)

Plaintiffs D.M. and D.G. refused to comply based on patriotic reasons, so they were directed

to leave the school. (Id.)

Principal Boden and Assistant Principal Rodriguez’s censorship of Student Plaintiffs’

American flag shirts was conducted pursuant to a District policy, which states: “Clothing . . .

or actions which . . . disrupt school activities will not be tolerated. Such actions or the

wearing and/or possession of these items may be cause for suspension.” (Complaint ¶¶ 33,

37.) As it was the case that the American flag shirts did not cause any disruption, the District

policy provides school officials too much discretion to engage in prior restraint of messages

and viewpoints, and provides no objective standards or guidelines to limit enforcement of the

policy. (Id. ¶¶ 34, 35, 36.)

On the basis of the allegations outlined above, Plaintiffs allege four causes of action: (1)

Violation of Freedom of Speech Under the First Amendment, 42 U.S.C. § 1983; (2) Violation of

Due Process Under the Fourteenth Amendment, 42 U.S.C. § 1983; (3) Violation of Equal Protection

Under the Fourteenth Amendment, 42 U.S.C. § 1983; and (4) Violation of Freedom of Speech Under

the California Constitution, Art. I, § 2.

Presently before the Court is Defendants’ Motion to Dismiss.

III. STANDARDS

Rule 12(b)(1) of the Federal Rules of Civil Procedure provides for a motion to dismiss for

lack of subject-matter jurisdiction. A Rule 12(b)(1) motion may be either facial, where the inquiry

is confined to the allegations in the complaint, or factual, where the court is permitted to look

beyond the complaint to extrinsic evidence. Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir. 2004).

On a facial challenge, all material allegations in the complaint are assumed true, and the question for


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the court is whether the lack of federal jurisdiction appears from the face of the pleading itself. See

Wolfe, 392 F.3d at 362; Thornhill Publishing Co. v. General Telephone Electronics, 594 F.2d 730,

733 (9th Cir. 1979). When a defendant makes a factual challenge “by presenting affidavits or other

evidence properly brought before the court, the party opposing the motion must furnish affidavits or

other evidence necessary to satisfy its burden of establishing subject-matter jurisdiction.” Safe Air

For Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). The court need not presume the

truthfulness of the plaintiff’s allegations under a factual attack. White v. Lee, 227 F.3d 1214, 1242

(9th Cir. 2000); Augustine v. United States, 704 F.2d 1074, 1077 (9th Cir. 1983). However, in the

absence of a full-fledged evidentiary hearing, disputes in the facts pertinent to subject-matter are

viewed in the light most favorable to the opposing party. Dreier v. United States, 106 F.3d 844, 847

(9th Cir. 1996). The disputed facts related to subject-matter jurisdiction should be treated in the

same way as one would adjudicate a motion for summary judgment. Id.

IV. DISCUSSION

Defendants move to dismiss for lack of subject matter jurisdiction on the grounds that: (1)

there is no live “case or controversy” on which to base claims for injunctive and declaratory relief;

(2) claims for nominal damages against the District and Assistant Principal Rodriguez and Principal

Boden in their official capacities are barred by the Eleventh Amendment; (3) Plaintiff M.D. did not

suffer any “injury in fact” on which to base claims for a First Amendment violation; and (4) Plaintiff

Parents cannot bring a constitutional challenge on their own behalf, as they are not students at Live

Oak High School. (Motion at 1, 7-13.) The Court addresses each ground in turn.

A. No Live “Case or Controversy”

Defendants contend that there is no live case or controversy on which Plaintiffs may base

their claims for prospective relief as: (1) Assistant Principal Rodriguez and Principal Boden did not

act pursuant to District policy and are no longer employed by the District; and (2) assuming

arguendo that the case is not moot, Plaintiffs do not have a reasonable expectation that they will be

subjected to similar violations in the future such that they are entitled to the “capable of repetition,

yet evading review” exception to the mootness doctrine. (Motion at 10.) Plaintiffs respond that


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5 (Plaintiffs’ Opposition to Defendants’ Motion to Dismiss, hereafter, “Opp’n,” Docket ItemNo. 26.)

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their claims for prospective relief are not moot, as it was District policy, not merely the acts of

individual Defendants that violated their constitutional rights, and Defendants’ purported voluntary

cessation of enforcement of that policy is insufficient to moot the case.5

At issue is whether Assistant Principal Rodriguez and Principal Boden’s discontinuance of

their employment relationship with the District, coupled with the Superintendent of the District’s

public statement following the incident stating that there is not and has never been a District policy

forbidding patriotic clothing, moots the case. (Motion at 10.)

Article III of the United States Constitution limits the reach of federal judicial power solely

to hear and decide actual cases and controversies. LGS Architects, Inc. v. Concordia Homes of

Nevada, 434 F.3d 1150, 1153 (9th Cir. 2006). As consequence, should a plaintiff pray for

prospective relief “‘[w]here the activities sought to be enjoined already have occurred, and the

[court] cannot undo what has already been done, the action is moot, and must be dismissed’ for lack

of jurisdiction.” Id. (quoting Bernhardt v. County of Los Angeles, 279 F.3d 862, 871 (9th Cir.

2002)). When a defendant moves to dismiss an action for mootness on the ground that the defendant

has voluntarily ceased the offending activities, the defendant bears the “heavy burden of

persua[ding] the court that the challenged conduct cannot reasonably be expected to start up again . .

. .” Adarand Constructors, Inc. v. Slater, 528 U.S. 216, 222 (2000) (internal citations and quotations

omitted). Indeed, a court should find that “[v]oluntary cessation of challenged conduct moots a case

. . . only if it is absolutely clear that the allegedly wrongful behavior could not reasonably be

expected to recur.” Id. (internal citations and quotations omitted). The Ninth Circuit has found that

mootness based on a defendant’s claim of voluntary termination of the wrongful activity is

“exceedingly rare.” LGS Architects, 434 F.3d at 1153.

Here, Plaintiffs allege, in pertinent part:

Defendants’ censorship of Student Plaintiffs’ pro-U.S.A. message was pursuant to


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6 (Motion, Ex. A, Declaration of Nick Boden in Support of Defendants’ Motion to Dismiss ¶2, hereafter, “Boden Decl.,” Docket Item No. 12.)

7 (See Motion, Ex. B, Declaration of Dr. Wesley Smith in Support of Defendants’ Motion toDismiss, hereafter, “Smith Decl.,” Docket Item No. 12.)

8 (Smith Decl., Ex. A.)9 (Smith Decl., Ex. B.)

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School District policy, which states, “Clothing . . . or actions which . . . disrupt schoolactivities will not be tolerated. Such action or the wearing and/or possession of these itemsmay be the cause for suspension.”

The challenged School District policy provides school officials, such as Defendants Boden and Rodriguez, with no objective standards or guidelines to enforce its provisions,thereby granting government officials unbridled discretion to silence messages andviewpoints, such as the message and viewpoint expressed by Student Plaintiffs, that thegovernment officials dislike.

The challenged School District policy permits school officials, such as Defendants Boden and Rodriguez, to engage in a prior restraint of student speech by prohibiting studentsfrom wearing message-bearing clothing without any objective evidence that the speechcaused or will cause substantial or material disruption to the school environment.

The challenged School District Policy was the moving force behind the unconstitutional acts committed by Defendants Boden and Rodriguez as set forth in thisComplaint.

(Complaint ¶¶ 33-37.) Defendants challenge these allegations with a declaration from Defendant

Boden stating that he “did not act pursuant to a policy of the Morgan Hill Unified School District in

deciding what action to take with respect to [Plaintiffs] in the instant suit.”6 Rather, Defendant

Boden contends that “[he] made a judgment call based on the larger context of the situation . . . and

from a duty and obligation . . . inherent to [his] position as Principal . . . [to ensure] a safe campus

for the approximately 1300 students in [his] care and custody . . . .” (Id.) In addition, Defendants

present a declaration from Superintendent Smith and a number of exhibits in support of the

contention that in the days following the events at issue Superintendent Smith made a number of

public statements on behalf of the District: (1) disavowing Defendants Boden and Rodriguez’s

actions in relation to Plaintiffs; and (2) clarifying that the District did not have a policy against

students wearing patriotic clothing to school.7 In particular, Superintendent Smith issued a short

press release on May 6, 2010 at 11 a.m.;8 left a voicemail for parents on the evening of May 6,

2010;9 and held a formal press release on May 7, 2010 at 11:45 a.m. stating that:


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10 (See Opp’n, Ex. A, Declaration of Plaintiff Dianna Dariano, hereafter, “Dariano Decl.”)

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It’s important to understand that this was never about whether students were allowedto wear patriotic clothing on our campuses. They can. It was about ensuring that our highschool campus was orderly and safe. School leaders have to make judgment calls on when totake preventative measures to preempt a possible incident or conflict. In this situation, itappears that a decision was made too quickly. Today, the principal of Live Oak has issuedan apology to the students, parents, staff and community for the decision that was made.

(Smith Decl., Ex. C.)

In response, Plaintiffs present a declaration from Plaintiff Dianna Dariano10 that Principal

Boden stated during his meeting with Plaintiffs that:

There is a school rule against wearing disruptive clothing, and if we . . . think yourshirt is going to cause a problem, then we can tell you to take it off.

(Dariano Decl. ¶ 8.) Further, Plaintiffs contend that Defendants’ own evidence supports the

contention that Principal Boden, as the school principal acting pursuant to his duties, is a

decisionmaker for the District and was enforcing District policy. (Boden Decl. ¶ 2; Opp’n at 7-8.)

In light of the conflicting evidence presented, the Court finds that whether Principal Boden

and Assistant Principal Rodriguez acted pursuant to the District policy is a fact in high dispute.

Thus, in interpreting that fact in the light most favorable to Plaintiffs, the Court finds Principal

Boden and Assistant Principal Rodriguez’s cessation of employment insufficient to moot the case.

Further, while Defendants present evidence that Superintendent Smith, acting on behalf of the

District, disavowed the particular May 5, 2010 incident, he did not disavow the specific policy

challenged by Plaintiffs in this case. (Smith Decl., Ex. C.) In fact, in his public statements,

Superintendent Smith affirmed the necessity of enforcement of the policy to ensure safe and orderly

campuses and merely eschewed the speed at which the decision was made in this case. (Id.)

Moreover, Defendants present no evidence that: (1) the policy at issue has been amended; (2) other

policies have been issued to prevent reoccurrence; or (3) the District has voluntarily ended

enforcement. Defendants do not dispute that Student Plaintiffs are still enrolled in the District and,


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11 Further, the continued enrollment of Student Plaintiffs distinguishes Plaintiffs’ claims forinjunctive and declaratory relief from those asserted in Cole and Bauchman, where the plaintiffs hadgraduated. Cole v. Oroville Union High Sch. Dist., 228 F.3d 1092, 1098 (9th Cir. 2000); Bauchmanfor Bauchman v. West High Sch., 132 F.3d 542, 548 (10th Cir. 1997). Thus, Defendants’ relianceon this caselaw for the proposition that there is no live case or controversy in the present action ismisplaced.

12 No. 09-56238, 2010 WL 5128266 (9th Cir. December 16, 2010).13 Sossamon v. Lone Star State of Texas, 560 F.3d 316, 325 (10th Cir. 2009).14 (Reply in Support of Defendants’ Motion to Dismiss for Lack of Subject Matter

Jurisdiction at 4-5, hereafter, “Reply,” Docket Item No. 28.)15 Sossamon, 560 F.3d at 325 (“[G]overnment actors in their sovereign capacity and in the

exercise of their official duties are accorded a presumption of good faith because they are publicservants, not self-interested private parties.”).

16 (Notice of Recent Decision and Supplemental Memorandum of Points and Authorities inSupport of Defendants’ Motion to Dismiss for Lack of Subject Matter Jurisdiction at 3, Docket ItemNo. 22.)

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as consequence, still potentially subject to the challenged policy.11 Thus, the Court finds that

Defendants have failed to meet their high bar of asserting mootness based on voluntary cessation.

Defendants’ reliance on Lopez v. Candele12 is misplaced. First, Defendants’ reliance on

Lopez for the proposition that the Ninth Circuit has adopted the Fifth Circuit’s13 presumption of

good faith for voluntary cessation of allegedly unconstitutional activity on the part of government

actors misinterprets the doctrine.14 In Lopez, the Ninth Circuit held that a statement made by the

“administration official with the responsibility for overseeing college policies” that no action would

be taken against the plaintiff under the challenged policy was “entitled to significant weight.” Id. at

*12. The court did not apply greater weight to the official’s statement because the official was a

public officer of a government entity, as the Fifth Circuit clearly held in Sossamon.15 Rather, the

court found that the official’s statement should be entitled to greater weight as the official was the

senior decision maker charged with interpreting and applying the challenged policy, without

reference to the official’s status as a public servant. Lopez, 2010 WL 5128266, at *12.

Second, Defendants’ reliance on Lopez for the proposition that Plaintiffs lack standing in the

present case unduly extends the holding in Lopez.16 In Lopez, the court held that there was no case


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17 Id. (quoting United Public Workers of America (C.I.O.) v. Mitchell, 330 U.S. 75, 88(1947)).

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or controversy on which to base a pre-enforcement challenge of the school’s sexual harassment

policy on the ground that the plaintiff had “failed to make a clear showing that his intended speech

on religious topics gave rise to a specific and credible threat of adverse action . . . under the

college’s sexual harassment policy.” Lopez, 2010 WL 5128266, at *1. In so doing, the court

considered three factors: (1) “whether pre-enforcement plaintiffs have failed to show a reasonable

likelihood that the government will enforce the challenged law against them”; (2) “whether plaintiffs

have failed to establish, with some degree of concrete detail, that they intend to violate the

challenged law”; and (3) “whether the challenged law is inapplicable to plaintiffs, either by its terms

or as interpreted by the government.” Id. at *6. Upon consideration, the court found that the

plaintiff had failed to make a showing of a threat of adverse action in that the verbal abuse of a

teacher, in response to the plaintiff’s speech, including the word “offended” without any further

reference to a school policy was too attenuated. Id. at *9. Second, the teacher’s later comment that

the student had agreed to abide by the terms of the Student Code of Conduct was at most a “general

threat” rather than a “direct threat of punishment.”17 Third, the school never took steps to enforce

the policy and explicitly stated that the policy would not be enforced against the plaintiff. Id. at *9.

Lastly, the court found the plain language of the statute inapplicable to the plaintiff’s case and an

absence of any interpretation by the school that the policy applied to the plaintiff’s conduct. Id. at

*12. Here, unlike in Lopez, Plaintiffs have clearly alleged that they were threatened with

enforcement for undertaking action that falls within the plain language of the challenged policy.

(Complaint ¶¶ 20, 25, 28, 30.) Further, Student Plaintiffs were not merely reminded generally of

their need to adhere to school policies, but were allegedly taken to the office by school

administrators and threatened with the requirement of altering their conduct or leaving the school.

(Id.) Thus, the Court finds Lopez inapplicable to the facts of this case.


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18 As the Court has found that the case is not moot, the Court need not reach whether the“capable of repetition, yet evading review” exception to mootness applies.

19 See Belanger v. Madera Unified Sch. Dist., 963 F.2d 248, 251-54 (9th Cir. 1992) (holdingthat the unique centralized funding system in California renders its school districts state agencies forpurposes of the Eleventh Amendment); see also Cole v. Oroville Union High Sch. Dist., 228 F.3d1092, 1100 n.4 (9th Cir. 2000).

20 209 U.S. 123 (1908).

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Accordingly, the Court DENIES Defendants’ Motion to Dismiss on the grounds that

Plaintiffs’ claims for declaratory and injunctive relief are moot.18

B. Eleventh Amendment Bar to Damages Claim

Defendants contend that the Eleventh Amendment bars any claims against the District,

Principal Boden and Assistant Principal Rodriguez in their official capacities under Belanger and its

progeny.19 (Motion at 10-11.) Plaintiffs respond that their claims for damages do not implicate the

Eleventh Amendment bar, as they solely seek monetary damages against Principal Boden and

Assistant Principal Rodriguez in their individual capacities. (Opp’n at 14-15.)

While Ex Parte Young20and its progeny have long barred suits for damages against state

agencies and agents in their official capacities, “the Eleventh Amendment does not erect a barrier

against suits to impose ‘individual and personal liability’ on state officials under § 1983.” Hafer v.

Melo, 502 U.S. 21, 31-32 (1991) (citations omitted).


Wherefore, Plaintiffs ask this Court: . . . (D) to award Plaintiffs nominal damagesagainst Defendants in their individual capacities for violating their constitutional rightspursuant to 42 U.S.C. § 1983 and other applicable law . . . .

(Complaint ¶ 52.)

Contrary to Defendants’ contentions, Plaintiffs have prayed for nominal damages exclusively

against Defendants in their individual capacities, and not against the District and individual

Defendants in their official capacities. Thus, the Court finds that the Eleventh Amendment would

not serve to bar Plaintiffs’ claims for nominal damages.


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Accordingly, the Court DENIES Defendants’ Motion to Dismiss Plaintiffs’ claims for

nominal damages as to Plaintiffs Boden and Rodriguez in their individual capacities.

C. Plaintiff M.D. and Injury in Fact

Defendants contend that Plaintiff M.D. lacks standing to bring claims for violation of his

constitutional rights, as Plaintiff M.D. suffered no actual injury from Defendants’ conduct in that he

was allowed to return to class wearing his American flag shirt. (Motion at 11-13.) Plaintiffs

respond that Plaintiff M.D. was injured in his detention and harassment by Defendants, as well as by

nature of his being presently enrolled at the school and, therefore, still subject to the challenged

District policy. (Opp’n at 15-17.)

The case or controversy limitation delineated by Article III of the United States Constitution

requires that a plaintiff have “standing” in order to invoke the power of the federal courts. Allen v.

Wright, 468 U.S. 737, 750 (1984). A “core component” of standing, “derived directly from the

Constitution,” is one in which a plaintiff must “allege personal injury fairly traceable to the

defendant’s allegedly unlawful conduct and likely to be redressed by the requested relief.” Id. at

751. In regards to the First Amendment, a plaintiff can allege actual injury of free speech rights in

either of two ways. New Hampshire Right to Life Political Action Committee v. Gardner, 99 F.3d 8,

13-14 (1st Cir. 1996). In the first instance, free speech rights may be violated by actual or

threatened enforcement of an unconstitutional policy. Elrod v. Burns, 427 U.S. 347, 373-74 (1976)

(“The loss of First Amendment freedoms, for even minimal periods of time, unquestionably

constitutes irreparable injury.”) (citing New York Times Co. v. United States, 403 U.S. 713 (1971)).

In the second instance, one particular to the free speech context, a plaintiff may allege actual injury

due to the chilling effects, including self-censorship, that result from the mere possibility of

enforcement of an unconstitutional statute. Meese v. Keene, 481 U.S. 465, 473 (1987). However, to

mount a pre-enforcement challenge to a particular statute, a plaintiff’s fear of prosecution must be

objectively reasonable. Laird v. Tatum, 408 U.S. 1, 13-14 (1972).


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Shortly after “brunch break” began, Defendant Rodriguez confronted StudentPlaintiffs at their table. (Complaint ¶ 20.) Defendant Rodriguez told the boys [includingPlaintiff M.D.] that they would not be able to wear their pro-U.S.A. shirts and gave them theoption of either removing the shirts or turning them inside out. . . . (Id.) When asked byPlaintiff D.M. why the shirts were not permitted, Defendant Rodriguez responded byordering the boys to go to his office. (Id.) Student Plaintiffs complied with DefendantRodriguez’s order to go to his office . . . . (Id. ¶ 23.)

When [Plaintiff M.D.’s Mother] arrived . . . she went to Defendant Rodriguez’s office. (Complaint ¶ 25.) Upon arriving the door was closed, but she could hear what wasbeing discussed and knew that her son was in the room. (Id.) In particular, she could hearDefendant Rodriguez lecturing the boys about “Cinco de Mayo.” (Id.) Because PlaintiffM.D. and two of the other boys were wearing “Tap Out” t-shirts and not ones conveying apurely pro-U.S.A. message . . . Defendant Boden, over the objection of DefendantRodriguez, lifted Defendant Rodriguez’s ban on these shirts . . . . (Id. ¶ 29.) At this point,the boys had been in the office for approximately an hour and a half. (Id.)

Shortly after her son was allowed to return to class with his “Tap Out” shirt and after learning that Defendants were permitting students to express a pro-Mexico viewpointthrough message-bearing t-shirts, body paint, the display of Mexican flags, music, and dance,[Plaintiff M.D.’s Mother] removed [Plaintiff M.D.]. (Complaint ¶ 31.) [Plaintiff M.D.’sMother] believed that [Plaintiff M.D.] was unfairly singled out by Defendants for adversetreatment on account of his pro-U.S.A. viewpoint and did not want him to remain in schoolthat day. (Id.)

While the Complaint does not allege that Plaintiff M.D. was threatened with suspension

for refusal to remove his shirt, the Court finds that Plaintiff M.D. has alleged facts sufficient to

support an injury fairly traceable to Defendants’ allegedly unlawful conduct. Plaintiff M.D. was

allegedly threatened with enforcement of the challenged policy and detained. In particular, the

Complaint alleges that Plaintiff M.D. was told by Defendants to remove his shirt or go to the office,

was detained in the Live Oaks’s office for an extended period and was only hesitantly allowed to

return to class. Further, Plaintiff M.D. remains enrolled in the District and is thus potentially subject

to future enforcement of the challenged District policy.

Accordingly, the Court DENIES Defendants’ Motion to Dismiss Plaintiff M.D.’s claims for

lack of standing.

D. Parent Claims

Defendants contend that Plaintiff Parents fail to assert any viable claims for violation of their

individual constitutional rights, as they are not students at Live Oak High School. (Motion at 1.)

Plaintiffs respond that parents of minor school children have the right to bring suit on behalf of their


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minor children for violation of the minor’s constitutional rights and that Plaintiff Parents bring these

claims on behalf of their minor children, not on an individual basis. (Opp’n at 1.)

Fed. R. Civ. P. 17(c) provides in pertinent part that “[t]he following representatives may sue

or defend on behalf of a minor or an incompetent person: (A) a general guardian . . . .”

Here, Plaintiffs allege in the Complaint that each parent is suing “on [their] own behalf and

on behalf of [their minor child], as [their] next friend.” (Complaint ¶¶ 8, 9, 10.) However, Plaintiffs

do not allege facts sufficient to state a claim for violation of their individual First Amendment rights

and do not dispute that Plaintiff Parents bring their claims solely on behalf of their minor children.

(Opp’n at 1.) Thus, the Court finds that insofar as Plaintiff Parents assert claims individually against

Defendants for violations of Plaintiff Parents’ First Amendment rights, Plaintiffs fail to state a claim

on which relief might be granted.

Accordingly, the Court GRANTS Defendants’ Motion to Dismiss Plaintiff Parents’

individual claims against Defendants for violation of their own First Amendment rights.

V. CONCLUSION

The Court GRANTS in part and DENIES in part Defendants’ Motion to Dismiss Plaintiffs’

Complaint for lack of subject matter jurisdiction.

The Court sets March 14, 2011 at 10 a.m. for a Case Management Conference. On or

before March 4, 2011, the parties shall file a Joint Statement including, inter alia, a good faith plan

for discovery and a proposed schedule for how this case should proceed in light of this Order.

Dated: February 17, 2011 JAMES WAREUnited States Chief District Judge


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THIS IS TO CERTIFY THAT COPIES OF THIS ORDER HAVE BEEN DELIVERED TO:

Alyson Cabrera [email protected] S. Posard [email protected] J. Muise [email protected] Joseph Becker [email protected]

Dated: February 17, 2011 Richard W. Wieking, Clerk

By: /s/ JW Chambers Elizabeth GarciaCourtroom Deputy


dariano v. mhusd opn - 2011

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