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A.M. v. Cape Elizabeth School District

United States District Court, D. Maine

October 24, 2019

A.M., a minor, by and through her mother, SHAEL NORRIS, Plaintiff,
v.
CAPE ELIZABETH SCHOOL DISTRICT; DONNA WOLFROM, Superintendent of Cape Elizabeth Schools; JEFFREY SHEDD, Principal of Cape Elizabeth High School; and NATHAN CARPENTER, Vice Principal of Cape Elizabeth High School, Defendants.

          ORDER ON PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION [1]

          LANCE E. WALKER UNITED STATES DISTRICT JUDGE.

         In this action, as a preliminary matter, I am asked to temporarily stay school administrators from suspending a 15-year-old student because she posted a note in a Cape Elizabeth High School bathroom that read: “THERE'S A RAPIST IN OUR SCHOOL, AND YOU KNOW WHO IT IS.” The school administrators, Defendants in this action, argue I should deny the request for temporary relief because the student's expression is undeserving of protection under the First Amendment. The student, Plaintiff in the action, argues just the opposite, that her expression rests comfortably within a category of speech presumptively deserving of protection. Both parties believe they represent the kind of “immediate overwhelming interest” that will brook no opposition, but not the kind of “immediate overwhelming interest that appeals to the feelings and distorts the judgment.” N. Sec. Co. v. United States, 193 U.S. 197, 401 (1904) (Holmes, J.).[2] I, on the other hand, consider the issue a very close one.

         For purposes of the motion for preliminary relief, I am persuaded that the Plaintiff has shown a fair likelihood of success on the merits because the record suggests (but does not conclusively establish) that the expressive activity the Defendants would punish was neither frivolous nor fabricated, took place within the limited confines of the girls' bathroom, related to a matter of concern to the young women who might enter the bathroom and receive the message, and was not disruptive of school discipline. For these reasons, and because the other injunctive relief factors also militate in favor of preliminary injunctive relief, Plaintiff's motion is GRANTED.

         LEGAL STANDARD

         Injunctive relief is “an extraordinary and drastic remedy that is never awarded as of right.” Voice of the Arab World, Inc. v. MDTV Med. News Now, Inc., 645 F.3d 26, 32 (1st Cir. 2011) (citations and quotation marks omitted). “To grant a preliminary injunction, a district court must find the following four elements satisfied: (1) a likelihood of success on the merits, (2) a likelihood of irreparable harm absent interim relief, (3) a balance of equities in the plaintiff's favor, and (4) service of the public interest.” Arborjet, Inc. v. Rainbow Treecare Sci. Advancements, Inc., 794 F.3d 168, 171 (1st Cir. 2015). As the party seeking injunctive relief, Plaintiff bears the burden of establishing that the factors weigh in her favor. Nat'l Org. for Marriage v. Daluz, 654 F.3d 115, 117, 119-20 (1st Cir. 2011).

         “Likelihood of success is the main bearing wall of the four-factor framework.” Ross-Simons of Warwick, Inc. v. Baccarat, Inc., 102 F.3d 12, 16 (1st Cir. 1996). On this issue “the district court is required only to make an estimation of likelihood of success and ‘need not predict the eventual outcome on the merits with absolute assurance.'” Corp. Techs., Inc. v. Harnett, 731 F.3d 6, 10 (1st Cir. 2013) (quoting Ross-Simons, 102 F.3d at 16). The moving party's burden to show it is “likely to succeed” varies depending on the relevance of the remaining preliminary injunction factors. If the party seeking injunctive relief fails to make a persuasive showing of likelihood of success, then generally the court acts within its discretion if it denies relief without addressing the remaining factors. New Comm. Wireless Servs., Inc. v. SprintCom, Inc., 287 F.3d 1, 9 (1st Cir. 2002). But the strength of the other three factors can lessen the movant's burden of showing “likelihood of success;” as other circuits to consider the issue have pointed out, “[h]ow strong a claim on the merits is enough depends on the balance of the harms: the more net harm an injunction can prevent, the weaker the plaintiff's claim on the merits can be while still supporting some preliminary relief.” Hoosier Energy Rural Elec. Coop., Inc. v. John Hancock Life Ins. Co., 582 F.3d 721, 725 (7th Cir. 2009) (Easterbrook, C.J.).[3] That is to say, the more harmful it would be to upend the status quo pendente lite, and the more the public interest favors granting preliminary relief, the lighter movant's burden on showing likelihood of success. Ultimately, “trial courts have wide discretion in making judgments regarding the appropriateness of such relief.” Francisco Sánchez v. Esso Standard Oil Co., 572 F.3d 1, 14 (1st Cir. 2009).

         BACKGROUND

         On September 16, 2019, A.M., a student at Cape Elizabeth High School, entered a girls' bathroom and placed a sticky note on a mirror reading, “THERE'S A RAPIST IN OUR SCHOOL AND YOU KNOW WHO IT IS.” Within minutes, another student discovered the note and brought it to the attention of school administrators. However, later that day other female students engaged in copycat expression in another school bathroom.

         Principal Jeffrey Shedd and Vice Principal Nate Carpenter instituted an investigation to determine authorship of the notes and who the notes might be referring to. In the course of their investigation they reviewed camera footage and determined that A.M. was the author of the initial note. The investigation was quite extensive. In all, Shedd, Carpenter and other members of the administration interviewed more than 40 students. Some of what they uncovered would be upsetting to certain students and their families and will not be recounted here. On September 20, 2019, Defendant Shedd sent an email to the school community at large, to which he attached a letter “about an incident in school this week.”

         Needless to say, the wide-ranging investigation and letter stirred up the hornet's nest of gossip and rumor. Eventually, a certain male student (identified by the parties as “Student 1”) experienced what could be described as ostracism by his peers. Upset by his experience, Student 1 remained out of school for several days. Student 1's family informed the School that they considered the entire incident to be a matter of bullying and the school administrators ultimately decided that they agreed with that characterization.

         On October 4, 2019, A.M. spoke with the press about her expressive activity and her concern with the School's handling of sexual assault allegations. Also on October 4, 2019, Defendants Shedd and Carpenter wrote a letter to A.M.'s family stating that A.M. “admitted and accepted responsibility for her actions.” In the letter he advised that it was his conclusion that A.M. bullied Student 1. On that basis he imposed a three-day suspension and a warning “that any future actions of this sort . . . may result in further and more severe consequences up to and including suspension and possible expulsion.” While A.M. received a three-day suspension, the other girls received shorter suspensions. The other girls either had not spoken with or were not featured by the press, although Defendants deny that this was a factor.

         On October 9, 2019, Defendant Shedd wrote another missive to the community in which he summed up the investigation. In it he described the students who authored the sticky notes as having good but misguided intentions. He complained of the national attention the School had received, and he cast shame on members of the media who may have given any “credence” to the assertions contained in the sticky notes. He observed that the students responsible would be given “second chances” and would be able, in their senior years, to request expungement of their suspensions provided they maintain good records in the meantime.

         On October 11, 2019, Defendant Donna Wolfrom, Ed.D., Superintendent of Schools, sustained the suspension and warning and emphatically rejected A.M.'s contention that her expressive activity was protected by the First Amendment. Dr. Wolfrom informed A.M. that her suspension would commence October 15, 2019.

         On October 13, 2019, A.M., by and through her mother, filed the instant civil action and requested a temporary restraining order or preliminary injunction. Defendants agreed to withhold enforcement of the suspension pending a hearing on the motion.

         On October 21, 2019, I conducted a hearing on the motion. The parties have advanced their respective positions based entirely on argument, declarations and exhibits. The hearing was not testimonial.

         DISCUSSION

         Plaintiff, A.M., has met her burden of showing that (1) she is reasonably likely to succeed on the merits of her First Amendment claim, (2) she will suffer irreparable harm absent interim relief, (3) the balance of equities tilts in her favor, and (4) it would serve the public interest to maintain the status quo until I can rule on the merits. Arborjet, 794 F.3d at 171. For those reasons, as discussed more thoroughly below, I will grant Plaintiff's motion and preliminarily enjoin Defendants from enforcing the punishment described in their letter dated October 4, 2019. See ECF No. 1-2.

         A. Likelihood of Success

         At the crux of A.M.'s case is her federal civil rights claim under 42 U.S.C. § 1983, alleging that Defendants violated her First Amendment rights by punishing her for engaging in protected speech while at school. To carry the burden of showing she is “likely to succeed” on this claim, she must show she will be able to prove “(1) she engaged in constitutionally protected conduct, (2) she was subjected to an adverse action by the defendant, and (3) the protected conduct was a substantial or motivating factor in the adverse action.” D.B. ex rel. Elizabeth B. v. Esposito, 675 F.3d 26, 43 (1st Cir. 2012). The parties do not dispute the second two factors of this test, so Plaintiff's burden is only to show she engaged in constitutionally protected speech that Defendants did not reasonably regulate under established precedent.

         1. Supreme ...


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