United States District Court, D. Maine
A.M., a minor, by and through her mother, SHAEL NORRIS, Plaintiff,
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
E. WALKER UNITED STATES DISTRICT JUDGE.
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,
I, on the other hand, consider the issue a very close one.
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.
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).
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.). 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).
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
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
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
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.
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
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.
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
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.
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.
Likelihood of Success
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.