Norris v. Cape Elizabeth School District ( 2020 )

United States Court of Appeals
For the First Circuit
No. 19-2167
SHAEL NORRIS, on behalf of her minor child A.M.,
Plaintiff, Appellee,
v.
CAPE ELIZABETH SCHOOL DISTRICT; DONNA WOLFROM, Superintendent of
Cape Elizabeth Schools; JEFFREY SHEDD, Principal of Cape
Elizabeth High School; NATHAN CARPENTER, Vice Principal of Cape
Elizabeth High School,
Defendants, Appellants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Lance E. Walker, U.S. District Judge]
Before
Lynch, Selya, and Barron,
Circuit Judges.
Melissa A. Hewey, Bruce W. Smith, Amy K. Olfene, Jeana M.
McCormick, and Drummond Woodsum on brief, for appellants.
Emma E. Bond, Zachary L. Heiden, and the American Civil
Liberties Union of Maine Foundation on brief, for appellee.
Scott H. Harris, Christina M. Denbow, McLane Middleton,
Professional Association, Nicole J. Ligon, H. Jefferson Powell,
and Ian C. Kalish on brief for Ana Goble and First Amendment Clinic
at Duke Law School, amicus curiae.
James B. Haddow, Petruccelli, Martin & Haddow LLP, Jennifer
Nelson, Gabriel Rottman, and The University of Virginia School of
Law First Amendment Clinic on brief for the Maine Press
Association, amicus curiae.
Peter Mancuso, Andrew Schmidt Law PLLC, and Diane L. Rosenfeld
on brief for the Gender Violence Legal Policy Workshop at Harvard
Law School, amicus curiae.
August 6, 2020
LYNCH, Circuit Judge. The defendants in this case are
Maine's Cape Elizabeth School District and officials of Cape
Elizabeth High School. They appeal from the entry of a preliminary
injunction prohibiting them from suspending A.M., a sophomore
student at Cape Elizabeth High School at the time this suit was
filed. They seek to suspend A.M. because on September 16, 2019,
she anonymously posted a sticky note on a mirror in a Cape
Elizabeth High School girls' bathroom that stated "THERE'S A RAPIST
IN OUR SCHOOL AND YOU KNOW WHO IT IS." The defendants investigated
the note after another student brought it to them promptly and
they concluded that it constituted bullying under the school's
policies, which warranted imposing a three-day suspension on A.M.
A.M., through her mother Shael Norris, filed a complaint
requesting that the district court enjoin the defendants from
suspending her on the grounds that (1) the suspension violated her
"right to free expression under the First Amendment to the U.S.
Constitution, as applied to the states by the Fourteenth Amendment
and 42 U.S.C. § 1983"; and (2) the defendants violated Title IX of
the Education Amendments of 1972 by retaliating against her for
making a complaint. A.M. also moved for a preliminary injunction,
which the district court granted based on A.M.'s First Amendment
claim. A.M. ex rel. Norris v. Cape Elizabeth Sch. Dist., 422 F.
Supp. 3d 353, 358 (D. Me. 2019).
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We do not endorse the district court's precise
reasoning, but for the reasons described below, we hold the
district court did not abuse its discretion in granting the
preliminary injunction.
I.
We describe the facts as alleged in the complaint and
supported by the evidence at the preliminary injunction hearing.
At the time this suit was filed, A.M. was a fifteen-year-old
sophomore at Cape Elizabeth High School ("Cape Elizabeth H.S." or
"the school"). The defendants are Cape Elizabeth School District,
Superintendent of Cape Elizabeth Schools Donna Wolfrom, Principal
of Cape Elizabeth H.S. Jeffrey Shedd, and Vice Principal of Cape
Elizabeth H.S. Nathan Carpenter.
A. Facts
On September 16, 2019, A.M. placed a sticky note on a
mirror in a second-floor Cape Elizabeth H.S. girls' bathroom that
read "THERE'S A RAPIST IN OUR SCHOOL AND YOU KNOW WHO IT IS." The
sticky note was unsigned. The note did not identify who committed
the "rape" or the gender of the "rapist." It also did not state
where or when the "rape" occurred. It did not identify who the
"YOU" was or the purported basis of the knowledge of that "YOU."1
1 Although this specific allegation had not been brought
to the school administration, for more than a year prior to posting
the sticky note, A.M. had been attempting "to raise [her] concerns
about the school's [sexual assault] reporting procedures through
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Another student found the note a few minutes later and
arranged for a different student to bring it to the school
administration. That same day, two other female students posted
sticky notes in another bathroom at the school. One of the other
notes stated that the school should "kick out the rapist," and
another stated that the administration "is protecting him."2
Shedd and Carpenter initiated an investigation into all
of the sticky notes' allegations, not just the sticky note authored
official channels." On June 11, 2019, A.M. and two of her peers
attended a Cape Elizabeth public school board meeting during which
they raised concerns about the school's Title IX procedures and
its inadequate handling of sexual violence. At least one of the
students who accompanied A.M. is a survivor of sexual assault, and
the school was aware of this because she had filed a Title IX
complaint a year earlier which had been substantiated and had
resulted in a finding that another student had violated school
policy. At the school board meeting, A.M. specifically complained
that the school district had no policy describing how to report
sexual assault nor did it outline the rights of students regarding
sexual assault reporting in the Student Handbook. She requested
the school board work with her and her fellow students on a
comprehensive policy that would better protect students. She
further asked that the school board provide trainings to staff
about the importance of mandatory reporting and do more to support
students who report sexual assaults. The other students who spoke
also complained about the school's treatment of students who report
sexual assault and its failure to comply with mandatory reporting
under Title IX. The administrators assert that after the meeting,
a school committee "embarked on a comprehensive . . . review of
[the school's] policies and procedures." The committee appointed
a student representative but did not invite any of the students
who had requested to be involved.
2 The record is not clear as to how many sticky notes in
total were posted or what message was stated on each sticky note
posted by these other female students. The parties both agree
that A.M. only authored one sticky note.
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by A.M., as well as into the identities of the authors. They
treated the notes as complaints under Title IX. Over the course
of ten days, they interviewed forty-seven students about the notes,
including A.M., and reviewed security camera footage from inside
the school. The sticky notes caused "alarm" and "fear" among some
students at the school. In her first interview on September 16,
A.M. did not disclose that she was the author of the first note.
Through the investigation, the school authorities say
they came to believe that the sticky notes referenced a particular
male student, "Student 1." The investigation uncovered that there
had been earlier rumors among some members of the student body
that Student 1 had committed sexual assault. The most widespread
rumor centered around a video that had been circulated on social
media allegedly depicting Student 1 about to commit sexual
assault.3 The evidence shows that the video was made and circulated
months before A.M. posted the note and that the rumors were
circulating before A.M.'s note was posted. Some of the students
had only heard about the video and had not seen it themselves.
Some but not all of the students who had seen the video described
it as a joke. The school administrators eventually obtained a
copy of the video and viewed it. It did not depict Student 1 about
3 According to the rumors, the video depicted Student 1
dragging an intoxicated female by her hair into a bathroom where
he later sexually assaulted her.
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to commit sexual assault, or sexual assault at all.4 The defendants
do not assert that A.M. was the source of the rumors, nor do they
assert that A.M. was responsible for the video.5
On September 17, 2019, Student 1 experienced ostracism
from his peers and stayed out of school for the following seven or
eight days. The school does not allege that A.M. was one of the
students who ostracized Student 1. Student 1's mother informed
the school that she believed Student 1's treatment at school had
been caused by the sticky notes and that this treatment constituted
bullying. She also expressed particular concern about learning
who captioned the video that had been circulated among the
students.
4 The video showed Student 1 picking up a female who did
not attend Cape Elizabeth H.S. from a bed. The video had a caption
that stated, "this is Student 1 raping bitches." School
administrators interviewed the female in the video, who told them
that Student 1 picked her up in order to convince her to go outside
to her car to retrieve her vaping device. She told them that she,
Student 1, another female, and two other male Cape Elizabeth H.S.
students had been celebrating a birthday at a hotel room, which is
where the video was filmed. She told the administrators that
Student 1 did not rape her.
5 During the investigation, school administrators also
interviewed a female Cape Elizabeth H.S. student who had a
protection order in place against Student 1 stemming from an off-
campus incident that occurred in the spring of 2019. The female
student told them that she did not wish for any further action to
be taken. We note that victims of any sexual assault crime under
Maine statutory law may file a complaint for a protective order
against the perpetrator, after which they must prove the allegation
by a preponderance of the evidence at a hearing. Me. Rev. Stat.
Ann. tit. 19-A, §§ 4005(1), 4006(1).
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Also on September 17, 2019, school administrators
interviewed A.M. for the second time. After being confronted with
video evidence of her entering the bathroom around the time the
first note was posted, A.M. admitted writing and posting the first
note. The statements made by A.M. and the defendants during this
interview are disputed. The defendants assert that during this
interview, A.M. stated that her purpose for posting the note was
to "instill[] fear in the school community and to alert the school
community because she felt the [s]chool was not taking allegations
of sexual assault seriously." They further state that A.M.
specifically identified Student 1 as her note's target, described
"incidents of alleged rape that [she] believed (without personal
knowledge) that he was involved in," and "complained [he] was
'idolized' by the High School faculty."
A.M. denies making these statements and denies that
Student 1 was her note's intended target. She states that the
administrators repeatedly asked her to disclose the names of any
perpetrators and victims of sexual assaults of which she was aware.
She responded by describing two different incidents. The first
one involved the video of Student 1, which she claims she only
learned of after posting the note. The second incident involved
a different student who had been accused of committing sexual
assault. That student had been involved in a Title IX
investigation conducted in the spring of 2019 which had
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substantiated the allegation of sexual assault. A.M. asserts the
administrators told her that they were aware of the incidents that
she had described and that they did not constitute "rape."
A.M. states that she "explained repeatedly" to the
administrators that she "posted the note to address the problem of
sexual assault in [the] school and because of concerns with the
school's handling of sexual assault claims." A.M. further states
that she did not intend to direct the term "rapist" in the note at
any specific person; rather, she believes there are multiple people
who have committed sexual assault at Cape Elizabeth H.S. She
denies even knowing about the video of Student 1 until after she
had posted the sticky note. A.M. asserts that the "YOU" in her
sticky note is a reference to the school administration, which she
believes has been inattentive to the needs of sexual assault
survivors at Cape Elizabeth H.S.
On September 20, 2019, Shedd sent an email to Cape
Elizabeth H.S. students and parents. The email contained a letter
from him describing the sticky notes and stating that the notes
"claimed adults in the school knew and implied that we would be
indifferent." The letter stated that the students who found the
notes "were concerned." It also stated that "[i]n the course of
our investigation . . . we uncovered much misinformation some of
which has been hurtful to a number of students and other people in
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our community," including rumors being spread between students "by
Snapchats, texts and Instagrams."
On September 24, 2019, school administrators again met
with A.M. A.M. asserts that Shedd told her that he understood the
"YOU" in her note to refer to the Cape Elizabeth H.S.
administration. Shedd asked A.M. to provide the names of the
students who wrote the other notes, but she refused to provide the
names of any other students she suspected of writing notes. On
September 26, one of the two other female students who posted notes
admitted to doing so. That same day, administrators spoke to a
student who disclosed that she was a victim of sexual assault and
who also reported knowing about three other assaults involving
Cape Elizabeth H.S. students, and they had spoken to another
student who had heard that five different students had been
sexually assaulted by two different Cape Elizabeth H.S. seniors.
On or before September 26, the defendants also identified a third
female student who had posted notes.
On September 26, 2019, Shedd and Carpenter completed
their investigation and concluded that all three students who
posted notes would be suspended and that A.M.'s note constituted
bullying of Student 1. Shedd and Carpenter decided on the lengths
of the suspensions on September 30, 2019. They decided that A.M.
would be suspended for three days, and the two other students would
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be suspended for two days and one day. This discipline was not
communicated to A.M. until October 4.
On October 4, 2019, the Portland Press Herald published
a story about the sticky notes, which included a statement made on
the record by A.M. that was critical of the school's response to
sexual assault. Shedd and Wolfrom also made comments on the record
in the article.6 That same day, Shedd and Carpenter met with A.M.
to inform her that after investigating the sticky notes, they had
concluded that her conduct "did in fact constitute an act of
bullying within [the school's] policy." They also gave her a
letter, which specified that her conduct
was part of a "pattern of . . . expression
. . . directed at a student . . . that
[created] an intimidating . . . educational
environment . . . or [interfered] with the
student's . . . ability to participate in or
benefit from the services, activities, or
privileges provided by the school."
The Maine statute that creates a right against bullying in public
schools itself defines "bullying" as involving conduct "directed
at a student or students," and the Cape Elizabeth H.S.'s anti-
6 The article also reported that the Cape Elizabeth School
District had "conducted eight investigations into possible
violations of Title IX last school year, seven of which concerned
sexual harassment or assault." The investigations led to the
conclusion that violations "more likely than not" occurred in four
cases. In the verified complaint filed on behalf of A.M., she
alleges that during the previous academic year, Cape Elizabeth
H.S. had received at least ten Title IX complaints, five of which
had been substantiated.
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bullying policy uses that same definition of bullying. Me. Rev.
Stat. Ann. tit. 20-A, § 6554(2)(B). The letter also stated that
A.M. would be suspended for three days and it warned that "any
future actions of this sort . . . may result in further and more
severe consequences up to and including suspension and possible
expulsion." The letter provided no other reasons for her
suspension.
On October 9, 2019, Shedd sent another letter to Cape
Elizabeth H.S. students and parents. He summarized the
investigation into the sticky notes, complained about the
attention the incident had brought to the school, and stated that
"[t]he students who posted the sticky notes made a bad choice even
though their intentions were good" and they "were well motivated."
He also confirmed in the letter that the school was aware of
previous student complaints of sexual assault, including one that
had resulted in legal proceedings the previous academic year, and
that the administration had uncovered rumors about another Cape
Elizabeth H.S. student as a result of its investigation into the
sticky notes.
Also on October 9, 2019, A.M. appealed her suspension to
Superintendent Wolfrom. A.M. made three arguments to Wolfrom:
that the suspension violated her First Amendment rights because
she was engaged in "core political speech," that her conduct did
not meet the definition of bullying under the school's policy, and
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that her punishment was harsher than those of students who
committed equal or greater offenses. A.M. emphasized that her
note did not target a specific individual but rather the "rape
culture" at Cape Elizabeth H.S.
Wolfrom denied the appeal in a letter dated October 11,
2019. As to A.M.'s First Amendment argument, Wolfrom rejected
A.M.'s claim that she was engaged in "core political speech"
because "not only [did] the language of the notes [A.M.] posted
indicate that [her] speech was directed at a specific individual,
but when [A.M.] [was] interviewed as part of the investigation,
[she] stated directly that [she] intended to target one student."
Further, Wolfrom rejected A.M.'s argument that her
conduct did not meet the definition of bullying under the school's
policy and concluded that the three-day suspension was reasonable.
Wolfrom's letter provided no other bases for affirming the
suspension. She told A.M. that her suspension would commence on
October 15, 2019.
B. Procedural History
On October 13, 2019, A.M., by and through her mother
Norris, filed a verified complaint in federal court alleging the
two counts described earlier. A.M. also moved for a temporary
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restraining order and a preliminary injunction to prevent the
defendants from implementing the three-day suspension.7
On October 24, 2019, after briefing and oral argument,
the district court granted A.M.'s motion for a preliminary
injunction on her First Amendment claim. Cape Elizabeth Sch.
Dist., 422 F. Supp. 3d at 358. It did not reach her Title IX
claim. Id. at 358 n.2. The district court decision addressed the
four elements to be considered when assessing a motion for a
preliminary injunction: likelihood of success on the merits,
likelihood of irreparable harm absent interim relief, balance of
the equities, and service of the public interest. Id. at 358.
As to likelihood of success on the merits, the parties
agreed that A.M. had suffered an adverse action by the defendants
and that the allegedly protected conduct was a substantial or
motivating factor in the adverse action. Id. at 360-61. The
district court focused on the question of whether A.M.'s conduct
was constitutionally protected. Id. at 361. It reviewed the
Supreme Court's First Amendment precedents, focusing on Tinker v.
Des Moines Independent School District, 393 U.S. 503 (1969), which
it said held that "school officials may not restrict student speech
without a reasonable forecast that the speech would either
(1) substantially interfere with the requirements of appropriate
7 The defendants agreed not to enforce the suspension
until the district court's ruling on that motion.
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school discipline or (2) invade the rights of others." Cape
Elizabeth Sch. Dist., 422 F. Supp. 3d at 361.
The district court then described three Supreme Court
student speech cases decided after Tinker, which it characterized
as setting out "narrower" rules that allow the government to
restrict student speech without relying on one of the Tinker
justifications. Id. at 362-63. These cases are Bethel School
District No. 403 v. Fraser, 478 U.S. 675, 685 (1986), which held
that school officials may restrict lewd speech in schools;
Hazelwood School District v. Kuhlmeier, 484 U.S. 260, 273 (1988),
which held that school officials may restrict school-sponsored
speech if those restrictions are "reasonably related to legitimate
pedagogical concerns;" and Morse v. Frederick, 551 U.S. 393, 409-
10 (2007), which held that school officials may restrict speech
that can be reasonably interpreted as promoting illegal drug use.
The district court concluded that none of the holdings in these
three cases undercut A.M.'s First Amendment claim. Cape Elizabeth
Sch. Dist., 422 F. Supp. 3d at 362.
The district court then turned to whether A.M. had met
her burden of establishing a likelihood of success on her assertion
that her speech was constitutionally protected. Id. at 362-63.
Before assessing whether her speech was constitutionally
protected, the district court acknowledged that "it is important
that [school] administrators receive sufficient leeway to conduct
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their duties without unnecessary interference" but that it is
nevertheless "necessary from time to time that a court countermand
the action of a local school authority." Id. at 362; see also id.
at 362 n.5 ("[T]he education of the Nation's youth is primarily
the responsibility of parents, teachers, and state and local school
officials, and not of federal judges." (quoting Kuhlmeier, 484
U.S. at 273)). The district court noted at the hearing that the
justification for the suspension given by the defendants in the
litigation went beyond the bullying rationale articulated to A.M.
and the school community for the suspension. The district court
did not otherwise discuss or consider any sort of deference to the
bullying determination made by the school administrators or the
other reasons proffered in the defense of the litigation.
The district court first rejected the defendants'
litigation argument that A.M.'s statement was defamatory as to
Student 1 and was not protected under the First Amendment at all.
Id. at 363. The district court stated that the "record is not
clear" as to whether A.M.'s note was "concerning" Student 1 and
made with "fault amounting at least to negligence." Id. The
district court highlighted the significant factual disputes in the
record regarding the good faith intentions of A.M.'s note and
whether she had admitted to targeting Student 1. Id. It stated
that "the evidence suggesting [A.M.'s] speech might have defamed
Student 1 is not enough to undermine a finding that she is
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otherwise likely to succeed on the merits of her First Amendment
claim." Id. at 363-64 (emphasis in original).
Instead, the district court reasoned that the record
more clearly supported the conclusion that A.M.'s sticky note was
political speech. Id. at 364. The district court stated that it
would consider an "objectively reasonable interpretation of the
speech, not the speaker's motive." Id. (citing Morse, 551 U.S. at
402). This inquiry, the district court stated, "may be informed
by context, including the identity of the speaker." Id. The
district court took note of A.M.'s statement of her reasons, which
was to comment on "the crisis of sexual assault in public schools
and the importance of appropriate school procedures to address
it." Id. The district court concluded that A.M.'s note "expresses
political advocacy on a question of significant public
consequence" -- how public schools handle sexual assault. Id.
Given the heightened First Amendment protections for speech on
issues of public concern, the district court concluded that A.M.
had established a likelihood of success in showing that her speech
was constitutionally protected. Id. (citing First Nat'l Bank of
Bos. v. Bellotti, 435 U.S. 765, 776 (1978)).
The district court applied Tinker to determine if the
defendants had undermined A.M.'s likelihood of success by showing
that the suspension was justified. Id. at 364-65. It highlighted
the significant factual disputes that remained in the record. Id.
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at 365. As to the defendants' litigation arguments related to
substantial disruption of school activities, the district court
concluded that the defendants had failed to undermine A.M.'s
showing of likelihood of success on the merits. Id. at 365-66.
The district court stated that the defendants' litigation argument
that A.M.'s note was "inherently" disturbing because a reader
"might believe an active rapist was presently walking the halls of
the school building" was not reasonable. Id. at 365 (internal
quotation marks omitted). The district court also rejected the
defendants' contention that A.M.'s note in fact caused substantial
disruption, concluding that the "worr[y] and concern[]" of the
student who found A.M.'s sticky note in addition to the time spent
by administrators investigating the sticky notes and interviewing
forty-seven students caused less disruption than that deemed
insufficient in Tinker. Id. at 365-66. It noted that the cases
the defendants relied on all involved "actual threats of harm or
violence," whereas "there [was] no evidence that A.M.'s note
incited violent behavior . . . or even wrecked any part of the
academic schedule." Id. (internal quotation marks omitted).
The district court also concluded that the defendants
had failed to undermine A.M.'s showing of likelihood of success on
the merits by arguing that her speech invaded the rights of others.
Id. at 366-67. Because Maine law prohibits bullying in public
schools, demonstrated bullying would constitute an invasion of the
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rights of the bullied student. See Me. Rev. Stat. Ann. tit. 20-
A, § 6554(1), (3). The district court emphasized that "because
there are significant factual disputes regarding A.M.'s alleged
bullying and the attenuated causal relationship between her sticky
note and the harm suffered by Student 1, . . . Defendants have
failed to undermine Plaintiff's showing of likelihood of success
on her First Amendment claim." Cape Elizabeth Sch. Dist., 422 F.
Supp. 3d at 366. As to the defendants' argument that A.M. had
admitted she intended the note to target Student 1, the court noted
that A.M. denied making such a statement and this was a disputed
fact to be resolved in further proceedings.8 See id. at 366-67.
The district court emphasized that the note did not specifically
name anyone and concluded that "[w]ithout a clear factual
connection between A.M.'s note and Student 1, [the court] cannot
find that her sticky note 'invaded' Student 1's rights under
Tinker." Id. at 367.
The district court also highlighted another "troublesome
point of Defendants' argument; though Defendants hastily point out
8 The defendants claim that A.M. "admi[tted] that she
intended to instill fear in the school by posting the note," while
A.M. contends that "it was Principal Shedd who alleged that [she]
was trying to instill fear . . . [and] [she] did not say that was
[her] intent." Id. (first alteration in original) (internal
quotation marks omitted). A.M. also asserts that she "ha[s] audio
recordings of her meetings with administrators that refute
Defendants' contention that she directed her note at Student 1."
Id. A.M. did not introduce any such recordings into evidence
during the preliminary injunction hearing.
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that A.M. was adjudicated to have 'bullied' Student 1 under Cape
Elizabeth High School's bullying policy, they do not closely link
her protected speech to the actual harm he suffered." Id. The
court rejected the defendants' reliance on Kowalski v. Berkeley
County Schools, 652 F.3d 565, 572-74 (4th Cir. 2011), which
involved a student who specifically named the other student who
was the target of the verbal attacks and used photographs of the
targeted student to reinforce those attacks. It reasoned that,
unlike in Kowalski, the note here "stayed up for a matter of
minutes, did not specifically name an individual, did not use
photos, and arguably targeted the administration . . . rather than
the 'rapist.'" Cape Elizabeth Sch. Dist., 422 F. Supp. 3d at 367.
The district court concluded that "[b]ecause the record does not
speak with any clarity that A.M.'s note, in fact, caused
reputational and educational harm to Student 1, . . . Defendants
have failed to undermine Plaintiff's showing of likelihood of
success on her First Amendment claim by pointing to this [invasion
of rights] justification." Id.
The district court turned to the other preliminary
injunction elements and held that each weighed in favor of A.M.
It concluded that A.M. had shown irreparable harm, noting that the
Supreme Court has stated that "[t]he loss of First Amendment
freedoms, for even minimal periods of time, unquestionably
constitutes irreparable injury." Id. (alteration in original)
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(quoting Elrod v. Burns, 427 U.S. 347, 373 (1976)). As to the
balance of the equities, it stated that the only harm to the school
was a delay in punishing A.M., while A.M. "would miss three days
of school and, most significantly, her ability to speak on the
topic of sexual assault or serve as a victim advocate would be
chilled." Id. at 368. The district court concluded that the
balance of the equities weighed in A.M.'s favor because she would
"suffer significant First Amendment harm if Defendants' punishment
chill[ed] her from engaging in otherwise constitutionally-
protected speech." Id. It determined that the public interest
weighed in her favor because her statement constituted non-
frivolous expression about the operation of her public school.
Id. at 368-69.
The defendants timely appealed.
II.
"We review the district court's decision to grant a
preliminary injunction for abuse of discretion." Doe v. Trs. of
Bos. Coll., 942 F.3d 527, 532 (1st Cir. 2019). We review the
district court's findings of fact for clear error and conclusions
of law de novo. Id.
When assessing a request for a preliminary injunction,
a district court must consider "(1) the movant's likelihood of
success on the merits; (2) the likelihood of the movant suffering
irreparable harm; (3) the balance of equities; and (4) whether
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granting the injunction is in the public interest." Shurtleff v.
City of Bos., 928 F.3d 166, 171 (1st Cir. 2019). Likelihood of
success on the merits "is the most important of the four
preliminary injunction factors." Doe, 942 F.3d at 533; see also
Arborjet, Inc. v. Rainbow Treecare Sci. Advancements, Inc., 794
F.3d 168, 173 (1st Cir. 2015) ("In this circuit, proving likelihood
of success on the merits is the 'sine qua non' of a preliminary
injunction." (quoting New Comm Wireless Servs., Inc. v. SprintCom,
Inc., 287 F.3d 1, 9 (1st Cir. 2002))).
"[A] party who appeals from the issuance . . . of a
preliminary injunction . . . bear[s] the considerable burden of
demonstrating that the trial court mishandled the fourpart
framework." Maine Educ. Ass'n Benefits Tr. v. Cioppa, 695 F.3d
145, 152 (1st Cir. 2012) (quoting Philip Morris, Inc. v.
Harshbarger, 159 F.3d 670, 674 (1st Cir. 1998)).
The defendants have not challenged the district court's
conclusions as to irreparable harm, balance of the equities, or
the public interest, so we accept them. They have also not argued
that the district court's factual findings constituted clear
error.9 Therefore, we focus our analysis on the district court's
9 Rather, the defendants advance three main legal
challenges on appeal: (1) the district court "erroneously
concluded that the sticky note A.M. posted in the bathroom at the
High School was core political speech entitled to the highest level
of protection under the First Amendment"; (2) it "erroneously
failed to analyze this case under the framework developed by the
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conclusion that A.M. has shown a likelihood of success on the
merits of her First Amendment claim.
A. A.M. Has Established a Likelihood of Success in Demonstrating
that Her Sticky Note was Constitutionally Protected Speech
The defendants first contend that the district court
abused its discretion by "erroneously conclud[ing] that [A.M.'s]
sticky note constituted core political speech." They argue that
as "non-political" speech, A.M.'s sticky note should have been
analyzed under Fraser, Kuhlmeier, and Morse, rather than Tinker.
In the defendants' view, Tinker is reserved only for political
student speech, while Fraser, Kuhlmeier, and Morse set out an
approach for all "non-political" student speech that is more
deferential toward school administrators than Tinker. A.M.
disagrees and characterizes Fraser, Kuhlmeier, and Morse as only
"narrow exceptions" to Tinker. She argues that the district court
properly concluded that these exceptions did not apply, that she
had shown that her speech was political, and that Tinker applied.
The Supreme Court has not expressly adopted either of the parties'
characterization of the student speech cases.10
Supreme Court in the student speech cases decided since Tinker";
and (3) it "erroneously concluded that the undisputed facts of
this case did not meet the Tinker standard."
10 We note that several circuits have characterized Fraser,
Kuhlmeier, and Morse as "exceptions" to the Tinker general rule.
See Yeasin v. Durham, 719 Fed. App'x 844, 851 (10th Cir. 2018)
(unpublished); Hardwick ex rel. Hardwick v. Heyward, 711 F.3d 426,
435 (4th Cir. 2013); Cox v. Warwick Valley Cent. Sch. Dist., 654
- 23 -
We do not read the First Amendment protections in Tinker
as being restricted to only core political speech. No Supreme
Court case has held that Tinker's protections are limited to only
core political speech. And we do not read the majority opinion or
Justice Alito's concurrence in Morse as articulating a limit on
Tinker's framework. See Morse, 551 U.S. at 397, 407-09; id. at
422 (Alito, J., concurring) ("I join the opinion of the Court on
the understanding that . . . it provides no support for any
restriction of speech that can plausibly be interpreted as
commenting on any political or social issue . . . ."). While the
majority opinion and Justice Alito's concurrence both discuss the
political nature of the speech at issue in Tinker, that discussion
was simply to distinguish the speech at issue in Morse from speech
that is "at the heart of the First Amendment." Id. at 403; see
also id. at 423 (Alito, J., concurring). Those opinions do not go
further to state that only speech that can be reasonably
interpreted as political is protected in schools.
Instead, both make a point to emphasize that speech
advocating illicit drug use in schools poses unique and severe
dangers and implicates school officials' special role in
F.3d 267, 272-73 (2d Cir. 2011); J.S. ex rel. Snyder v. Blue
Mountain Sch. Dist., 650 F.3d 915, 927 (3d Cir. 2011); Morgan v.
Swanson, 659 F.3d 359, 387 (5th Cir. 2011) (en banc). We need not
delve into what is meant by that exception language.
- 24 -
"protect[ing] those entrusted to their care from the dangers of
drug abuse." Id. at 408; see also id. at 424-25 (Alito, J.,
concurring) ("Speech advocating illegal drug use poses a threat to
student safety that is just as serious, if not always as
immediately obvious. As we have recognized in the past and as the
opinion of the Court today details, illegal drug use presents a
grave and in many ways unique threat to the physical safety of
students. I therefore conclude that the public schools may ban
speech advocating illegal drug use."). Had the speech in Morse
reasonably been interpreted as political or commenting on a matter
of public concern, the school would likely have had to justify the
speech restriction under the heightened burden of Tinker because
of the core First Amendment protection for such speech, but that
does not mean that all non-political speech is unprotected under
Tinker.
Furthermore, this circuit has cited Tinker in discussing
First Amendment protection for social events held on a public
university campus. See Gay Students Org. of Univ. of N.H. v.
Bonner, 509 F.2d 652, 660, 662-63 (1st Cir. 1974) (citing Tinker
for the proposition that a public university could prohibit actions
which "materially and substantially disrupt the work and the
discipline of the school," but concluding that the university had
not shown any such improper conduct at the plaintiff's social
- 25 -
events in order to prohibit those social activities on campus
(quoting Tinker, 393 U.S. at 513)).
Other circuits have held that Tinker's protections are
not limited to core political speech. See J.S. ex rel. Snyder,
650 F.3d at 926 ("Although Tinker dealt with political speech, the
opinion has never been confined to such speech."); Pinard v.
Clatskanie Sch. Dist. 6J, 467 F.3d 755, 766 (9th Cir. 2006) ("In
striking the balance 'between the First Amendment rights of
students and preservation of the educational process,' neither
Tinker nor its progeny limited students' rights solely to the
exercise of political speech or speech that touches on a matter of
public concern." (quoting LaVine v. Blaine Sch. Dist., 257 F.3d
981, 988 (9th Cir. 2006))); see also Kowalski, 652 F.3d at 571-73
(applying the Tinker framework to non-political speech). Instead,
Tinker provides the framework for justifying the restriction of
student speech that is otherwise protected. See, e.g., K.A. ex
rel. Ayers v. Pocono Mountain Sch. Dist., 710 F.3d 99, 112 (3d
Cir. 2013).11
Whether or not this anonymous note containing an
accusation of criminal activity was core political speech, we hold
11 Because we conclude that Tinker is not limited to
political speech, we need not decide if A.M.'s sticky note,
understood in the context of her prior activities related to sexual
assault activism including her statements to the Cape Elizabeth
H.S. school board, was objectively viewed as political. We do not
endorse the district court's reasoning on this point.
- 26 -
that it is entitled to some First Amendment protection.12 See
McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 342 (1995)
(holding that anonymous speech is constitutionally protected);
Pinard, 467 F.3d at 768 (holding that high school student athletes'
petition requesting the resignation of their basketball coach was
protected speech under Tinker); Seamons v. Snow, 84 F.3d 1226,
1237-38 (10th Cir. 1996) (holding that a high school student
athlete's report of physical assault in the locker room as part of
a hazing ritual was protected speech under Tinker).
A.M.'s sticky note communicated its message in written
words and so it plainly constitutes "pure speech," which "is
entitled to comprehensive protection under the First Amendment."
Tinker, 393 U.S. at 505-06. The defendants do not challenge the
district court's conclusion that A.M.'s note could not be
restricted as lewd under Fraser, school sponsored under Kuhlmeier,
or advocating illegal drug use under Morse. Nor could the
defendants succeed on such an argument. A.M.'s sticky note
contained no speech that could be viewed as "offensively lewd" or
"indecent," Fraser, 478 U.S. at 685, nor did it reference any drug
use. Morse, 551 U.S. at 403. Finally, a sticky note posted by a
12 We focus our analysis on A.M.'s sticky note, rather
than her statements to the Portland Press Herald, because the
school's position is that it punished A.M. for the note and A.M.
focuses her arguments on the note as well.
- 27 -
student in a student bathroom is not reasonably viewed as school
sponsored. Kuhlmeier, 484 U.S. at 273.
Moreover, the defendants do not argue that A.M.'s speech
falls within any of the recognized categorical exceptions to First
Amendment protection.13 See, e.g., United States v. Alvarez, 567
U.S. 709, 717-22 (2012) (some types of false statements, including
defamation and fraud); New York v. Ferber, 458 U.S. 747, 764-65
(1982) (child pornography); Cent. Hudson Gas & Elec. Corp. v. Pub.
Serv. Comm'n of N.Y., 447 U.S. 557, 562, 566-67 (1980) (commercial
speech that is false, misleading, or proposes illegal
transactions); Miller v. California, 413 U.S. 15, 23 (1973)
(obscenity); Brandenburg v. Ohio, 395 U.S. 444, 447-48 (1969) (per
curiam) (incitement of imminent lawless action); Watts v. United
States, 394 U.S. 705, 708 (1969) (per curiam) (true threats);
Chaplinsky v. New Hampshire, 315 U.S. 568, 571-72 (1942) (fighting
words).
Because A.M. has established a likelihood of success on
the merits in demonstrating that her sticky note was protected
13 The defendants did argue in the district court that
A.M.'s sticky note was defamatory and could be restricted on that
basis. The district court rejected that claim in finding that
A.M. had demonstrated a likelihood of success that her speech was
protected, and the defendants do not challenge that aspect of the
district court's ruling on appeal. See Cape Elizabeth Sch. Dist.,
422 F. Supp. 3d at 363-64. We need not address that issue. See
Portugués-Santana v. Rekomdiv Int'l Inc., 725 F.3d 17, 23 n.4 (1st
Cir. 2013).
- 28 -
speech, we apply Tinker to determine if the school has demonstrated
that it was justified in restricting her speech.
B. The Defendants Have Failed to Demonstrate that They Can Meet
Their Burden Under Tinker to Justify the Restriction of A.M.'s
Speech
We acknowledge that the posting of an anonymous note by
a student accusing another person in the school of a crime or
crimes and suggesting knowledge of such criminal activity by
others, including school administrators, is a serious event and
legitimately of concern to school administrators. Tinker states
that school officials' restriction of student speech is justified
when: (1) actual "disturbances or disorders on the school premises
in fact occur[]"; (2) "the record . . . demonstrate[s] . . . facts
which might reasonably have led school authorities to forecast
substantial disruption of or material interference with school
activities"; or (3) the speech invades the rights of others. 393
U.S. at 513-14. We conduct the Tinker inquiry objectively. See,
e.g., Bell v. Itawamba Cty. Sch. Bd., 799 F.3d 379, 398 (5th Cir.
2015) (explaining that in applying Tinker, courts analyze "the
objective reasonableness . . . of a forecasted substantial
disruption" based on the facts in the record); Cuff ex rel. B.C.
v. Valley Cent. Sch. Dist., 677 F.3d 109, 113 (2d Cir. 2012) ("The
test [under Tinker] is an objective one, focusing on the
reasonableness of the school administration's response, not on the
intent of the student.").
- 29 -
"But . . . undifferentiated fear or apprehension of
disturbance is not enough to overcome the right to freedom of
expression." Tinker, 393 U.S. at 508. Generally, the circuits
have concluded that Tinker places the burden on the school to
justify student speech restrictions. See B.H. ex rel. Hawk v.
Easton Area Sch. Dist., 725 F.3d 293, 321 (3d Cir. 2013) (en banc);
see also Bell, 799 F.3d at 398; Hardwick ex rel. Hardwick, 711
F.3d at 439; Trachtman v. Anker, 563 F.2d 512, 516-17 (2d Cir.
1977). We agree with this conclusion. Thus, the defendants must
demonstrate a likelihood that the restrictions on A.M.'s speech
were justified.
1. The Defendants Must Rely Solely on Bullying as the
Justification for the Speech Restrictions Because
It Was the Only Justification Originally Provided
to A.M.
As an initial matter, we will address what reasons the
defendants may rely on to justify the restrictions on A.M.'s
speech. The only justification the school administration
articulated to A.M. for her suspension in its October 4th letter
was that her sticky note "did in fact constitute an act of bullying
within [the school's] policy." We again recount the school's
actual description of A.M.'s conduct:
[It] was part of a "pattern of . . . expression
. . . directed at a student . . . that
[created] an intimidating . . . educational
environment . . . or [interfered] with the
student's . . . ability to participate in or
- 30 -
benefit from the services, activities, or
privileges provided by the school."
In Superintendent Wolfrom's October 11th letter to A.M., Wolfrom
rejected A.M.'s administrative appeal of her suspension, affirming
the school's determination that A.M. had violated its policy
against bullying. That letter mentioned no other reasons for
affirming the suspension.
The defendants may not rely on post hoc rationalizations
for the speech restrictions, but rather must rely only on the
reasons originally provided to A.M. for her suspension.14 In Tinker
and its progeny, the Supreme Court considered only those
justifications offered to the students when they were disciplined
in assessing the permissibility of the speech restrictions, not
reasons that were articulated only after litigation commenced.
See Tinker, 393 U.S. 509-10, 509 n.3 (focusing on the school's
14 The defendants assert that A.M.'s sticky note actually
disrupted the school's activities because of the resulting Title
IX investigation, and that a reasonable school administrator could
plausibly have forecasted substantial disruption to the school's
activities because of the incendiary language used in the note.
However, neither of these reasons was provided to A.M. in the
letter from the school administration justifying her suspension,
nor were these reasons mentioned in the letter from Wolfrom
affirming that punishment. It was not until after litigation
commenced that the school administration raised these distinct
justifications for the first time.
The defendants also raised for the first time in the
district court the litigation argument that A.M.'s sticky note was
defamatory and could be restricted on that basis. As already
discussed, we need not address that litigation argument which was
not raised on appeal. See supra note 13.
- 31 -
official statement regarding the students' suspension to determine
the reasons for the speech restrictions on an independent review
of the record); see also Morse, 551 U.S. at 397-98, 401; Kuhlmeier,
484 U.S. at 263-64, 274-75; Fraser, 478 U.S. at 678-79, 683-85.
The Supreme Court has never stated that school
administrators can rely on new rationales for student speech
restrictions formulated only after litigation has begun. The Court
in Tinker emphasized that "students . . . [do not] shed their
constitutional rights to freedom of speech or expression at the
schoolhouse gate," 393 U.S. at 506, and school administrators
generally may not restrict student speech unless it is or is
reasonably forecasted to be substantially disruptive or it invades
the rights of others. Id. at 513-14. If school administrators
are permitted to use shifting rationales for student speech
restrictions that were not articulated at the time their decision
was made, there is a risk that those post hoc rationalizations
would not have been true bases for their decision. Such shifting
rationales may provide convenient litigating positions for the
school administrators in defending their decision, but they are
too easily susceptible to abuse by obfuscating illegitimate
reasons for speech restrictions. Indeed, a school cannot suppress
speech simply because it is unpopular with or critical of the
school administrators. See, e.g., id. at 509-10.
- 32 -
 The Supreme Court has held that state actors may not
rely on shifting rationales to justify speech restrictions in a
different First Amendment context. See City of Lakewood v. Plain
Dealer Publ'g Co., 486 U.S. 750, 758 (1988) (stating that in the
context of standardless licensing programs for newsracks,
"[w]ithout . . . guideposts, post hoc rationalizations by the
licensing official and the use of shifting or illegitimate criteria
are far too easy, making it difficult for courts to determine in
any particular case whether the licensor is permitting favorable,
and suppressing unfavorable, expression" (emphasis in original)
(collecting cases)).
We and other circuits have applied that rule. See Van
Wagner Bos., LLC v. Davey, 770 F.3d 33, 37 (1st Cir. 2014)
(discussing City of Lakewood and the "concerns undergird[ing] the
Court's conceptualization of injury"); OSU Student All. v. Ray,
699 F.3d 1053, 1064 (9th Cir. 2012) (explaining that "[b]ecause
defendants offered the explanations only after the confiscation
[of the student newspaper], in an effort to justify the
University's application of an unannounced and unenforced policy,
the explanations cannot be distinguished from post hoc
rationalizations" (emphasis in original) (citing City of Lakewood,
486 U.S. at 760)); Pittsburgh League of Young Voters Educ. Fund v.
Port Auth. of Allegheny Cty., 653 F.3d 290, 296 (3d Cir. 2011)
("Because the Port Authority did not mention this basis [for
- 33 -
rejecting the plaintiff's commercial speech under the Port
Authority's advertising policy] until after the lawsuit had been
filed, the District Court permissibly found that it was not a real
basis for rejecting the ad but was, instead, a post hoc
rationalization."); Bourgeois v. Peters, 387 F.3d 1303, 1322-23
(11th Cir. 2004) ("[T]he City merely invites us to engage in post
hoc rationalizations of its policy, which is precisely one of the
dangers that attaches to the sort of uncabined, impulsive
policymaking practice at issue in this case." (emphasis in
original) (citing City of Lakewood, 486 U.S. at 758)); Summum v.
City of Ogden, 297 F.3d 995, 1005-06 (10th Cir. 2002) (recognizing
"the caselaw's particular concern for post hoc rationalizations in
the Free Speech Clause context").15
In addition, such after-the-fact attempts to justify
government actions on newly found justifications are disfavored in
other areas of the law. For example, due process requires that,
at a minimum, a student be given notice of the charges against her
and an opportunity to be heard as to those charges in connection
with a suspension of ten days or fewer to prevent arbitrary
exclusion from school. Goss v. Lopez, 419 U.S. 565, 579, 581
15See also Safelite Grp., Inc. v. Jepsen, 764 F.3d 258,
265 (2d Cir. 2014) ("As an initial matter, in light of the record
evidence that the legislation at issue was designed to benefit
Safelite's competitors, we are skeptical that the government's
asserted consumer protection interests are genuine and not merely
post-hoc rationalizations." (citation omitted)).
- 34 -
(1975); Zell v. Ricci, 957 F.3d 1, 11 (1st Cir. 2020); Donovan v.
Ritchie, 68 F.3d 14, 17 (1st Cir. 1995) (finding adequate notice
where the principal sent a letter to the student elaborating on
and specifying the bases for suspension and referring to the
relevant school policy). Indeed, "[n]otice and an opportunity to
be heard have traditionally and consistently been held to be the
essential requisites of procedural due process." Gorman v. Univ.
of R.I., 837 F.2d 7, 12 (1st Cir. 1988) (collecting cases); see
also Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 546
(1985); Kercado-Melendez v. Aponte-Roque, 829 F.2d 255, 263 (1st
Cir. 1987).16
In the administrative law context, "[i]t is a
'foundational principle . . . ' that judicial review of agency
action is limited to 'the grounds that the agency invoked when it
took the action'" and a reviewing court may not uphold agency
action "on the basis of impermissible 'post hoc rationalization.'"
16 While the plaintiff did not allege a due process
violation in her verified complaint, nor raise such a claim on
appeal, the district court at the preliminary injunction hearing
inquired as to whether considering the school's new justifications
for the speech restrictions would violate A.M.'s right to due
process. Plaintiff's counsel responded in the affirmative and
argued that the district court should therefore not consider the
school's new justifications for the speech restrictions.
Defendants' counsel never addressed the district court's due
process question, and the district court ultimately did not discuss
the due process issue in its order granting the preliminary
injunction. It is clear, however, that both parties were aware of
the issue of later articulated rationales.
- 35 -
Dep't of Homeland Sec. v. Regents of the Univ. of Cal., 140 S. Ct.
1891, 1907-08 (2020) (emphasis in original) (first quoting
Michigan v. EPA, 576 U.S. 743, 758 (2015); and then quoting
Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 420
(1971)); see also Dep't of Commerce v. New York, 139 S. Ct. 2551,
2575-76 (2019) (explaining that the requirement of reasoned
explanation for agency action means that there cannot be a
disconnect between the agency's decision and its explanation for
that decision). As the Supreme Court has explained, the rule
against considering post hoc rationalizations is not merely a
formality, but rather it serves important administrative law
values of promoting "agency accountability," ensuring that the
reasons given for agency action are not merely "convenient
litigating position[s]," and facilitating judicial review of
agency action. Dep't of Homeland Sec., 140 S. Ct. at 1909
(alteration in original) (first quoting Bowen v. Am. Hosp. Ass'n,
476 U.S. 610, 643 (1986); and then quoting Christopher v.
SmithKline Beecham Corp., 567 U.S. 142, 155 (2012)).17
17Those values are relevant here. Requiring the school
administration to stick to the reasons it initially provided for
the speech restrictions promotes accountability for school
officials by ensuring that students and their parents "can respond
fully and in a timely manner to [the state's] exercise of
authority." Id. A.M. was not able to respond at the time of her
suspension to the school's new contentions that her speech
substantially disrupted or was reasonably likely to disrupt school
activities. And as discussed above, considering only those reasons
given at the time of the school's decision prevents the use of
- 36 -
At least on the record here, we hold that the defendants
may rely only on the justification originally provided to A.M. for
their decision. Therefore, if the restriction on speech here is
to be justified at all, the defendants must justify it on the basis
that A.M.'s speech constituted bullying in violation of the
school's policy.
2. The Facts in the Record Support the District
Court's Determination that the Defendants Failed to
Demonstrate a Causal Connection Between the Note
and the Alleged Harm
On the preliminary injunction record, the district court
concluded as a matter of fact that the school had not shown that
the sticky note caused or led to the bullying of Student 1. See
Cape Elizabeth Sch. Dist., 422 F. Supp. 3d at 366-67. We see no
clear error in that factual conclusion. While we disagree with
one aspect of the district court's legal analysis, that
disagreement does not lead to the conclusion that there was an
abuse of discretion in granting the preliminary injunction. See
I.P. Lund Trading ApS v. Kohler Co., 163 F.3d 27, 41, 44-45 (1st
Cir. 1998) (affirming the district court's denial of a preliminary
injunction, even though it applied an incorrect legal analysis,
"shifting or illegitimate criteria" that did not form the true
bases for the school's decision but which now present convenient
litigating positions. City of Lakewood, 486 U.S. at 758; see also
Dep't of Homeland Sec., 140 S. Ct. at 1909.
- 37 -
because there was adequate evidence in the record to support its
determination as to likelihood of success).
We use the rule well recognized in this Circuit that
"[a] trial court's findings of fact, made in connection with one
legal theory, may often be treated as fungible in connection with
another." Wine & Spirits Retailers, Inc. v. Rhode Island, 481
F.3d 1, 7 (1st Cir. 2007). We have employed this reasoning to
uphold a factual determination made by a district court even though
that determination was made in connection with a misapprehension
of law. See Societe Des Produits Nestle, S.A. v. Casa Helvetia,
Inc., 982 F.2d 633, 642 (1st Cir. 1992) ("Although this
determination is tainted by a misunderstanding of the applicable
legal principles, the court's subsidiary findings are,
nonetheless, reasonably explicit and subject to reuse."); see also
C.G. ex rel. A.S. v. Five Town Cmty. Sch. Dist., 513 F.3d 279, 288
(1st Cir. 2008) (explaining that "where the evidence supports a
district court's findings of fact, we may realign those findings
under a different legal matrix and decide the case on that basis").
We agree with the school that bullying is the type of
conduct that implicates the governmental interest in protecting
against the invasion of the rights of others, as described in
Tinker. See Kowalski, 652 F.3d at 572; see also C.R. v. Eugene
Sch. Dist. 4J, 835 F.3d 1142, 1152-53 (9th Cir. 2016). Thus,
schools may restrict such speech even if it does not necessarily
- 38 -
cause substantial disruption to the school community more broadly.
However, for a school to rely on that basis for restricting student
speech, there must be a reasonable basis for the administration to
have determined both that the student speech targeted a specific
student and that it invaded that student's rights.18
The district court recognized the general principles
that school administrators should be given discretion in how they
operate their schools and that federal courts are not in the
business of educating students. See Cape Elizabeth Sch. Dist.,
422 F. Supp. 3d at 362, 362 n.5. Despite this, however, the
district court did not discuss or consider what deference, if any,
was owed to the defendants' stated justification for the speech
restrictions.
18 We need not delineate the precise boundaries of what
speech constitutes "bullying" such that it falls within the
"invasion of the rights of others" framework of Tinker. Neither
party engaged the question of whether, under this aspect of Tinker,
a school can punish a student for publicly posting an accusation
that targets another student, no matter how fleeting or vague the
statement.
It is clear, however, that speech that is merely
offensive to the listener is not enough. See Tinker, 393 U.S. at
508-09; Wynar v. Douglas Cty. Sch. Dist., 728 F.3d 1062, 1072 (9th
Cir. 2013); Saxe v. State Coll. Area Sch. Dist., 240 F.3d 200, 217
(3d Cir. 2001). And school administrators must be permitted to
exercise discretion in determining when certain speech crosses the
line from merely offensive to more severe or pervasive bullying or
harassment. See Cox, 654 F.3d at 274; Zamecnik v. Indian Prairie
Sch. Dist. No. 204, 636 F.3d 874, 877-78 (7th Cir. 2011); see also
DeJohn v. Temple Univ., 537 F.3d 301, 319-20 (3d Cir. 2008); Saxe,
240 F.3d at 217.
- 39 -
The Supreme Court has repeatedly emphasized the
necessary discretion school officials must exercise and the
attendant deference owed to many of their decisions. See Christian
Legal Soc'y Chapter of the Univ. of Cal., Hastings Coll. of the
Law v. Martinez, 561 U.S. 661, 686 (2010) ("Cognizant that judges
lack the on-the-ground expertise and experience of school
administrators, however, we have cautioned courts in various
contexts to resist 'substitut[ing] their own notions of sound
educational policy for those of the school authorities which they
review.'" (alteration in original) (quoting Bd. of Educ. of
Hendrick Hudson Cent. Sch. Dist., Westchester Cty. v. Rowley, 458
U.S. 176, 206 (1982))); Morse, 551 U.S. at 403; Kuhlmeier, 484
U.S. at 273; Fraser, 478 U.S. at 683; Bd. of Educ., Island Trees
Union Free Sch. Dist. No. 26 v. Pico, 457 U.S. 853, 863-64 (1982);
Wood v. Strickland, 420 U.S. 308, 326 (1975) ("The system of public
education that has evolved in this Nation relies necessarily upon
the discretion and judgment of school administrators and school
board members and § 1983 was not intended to be a vehicle for
federal-court correction of errors in the exercise of that
discretion which do not rise to the level of violations of specific
constitutional guarantees." (collecting cases)), overruled in part
on other grounds by Harlow v. Fitzgerald, 457 U.S. 800 (1982).
Courts generally defer to school administrators'
decisions regarding student speech so long as their judgment is
- 40 -
reasonable. See Bell, 799 F.3d at 397 ("[I]n deference to the
judgment of the school boards, we refer ad hoc resolution of . . .
issues [such as this one] to the neutral corner of
'reasonableness.'" (alterations in original) (quoting Shanley v.
Ne. Indep. Sch. Dist., Bexar Cty., Tex., 462 F.2d 960, 971 (5th
Cir. 1972))); B.H. ex rel. Hawk, 725 F.3d at 317 (adopting an
approach of deferring to school administrators' reasonable
judgment in interpreting speech that is ambiguously lewd, vulgar,
profane, or offensive); Hardwick ex rel. Hardwick, 711 F.3d at 440
("As long as school officials reasonably forecast a substantial
disruption, they may act to prevent that disruption without
violating a student's constitutional rights, and we will not second
guess their reasonable decisions." (citing Tinker, 393 U.S. at
513-14)); J.S. ex rel. Snyder, 650 F.3d at 928-31 (declining to
defer to the school's conclusion as to potential for substantial
disruption where the facts did not support a reasonable forecast
of substantial disruption); Pinard, 467 F.3d at 767-68 ("[O]ur
deference to school officials in regulating student speech does
not diminish our duty to ensure that they do not infringe students'
First Amendment rights under Tinker."); Planned Parenthood of S.
Nev., Inc. v. Clark Cty. Sch. Dist., 941 F.2d 817, 829 (9th Cir.
1991); Trachtman, 563 F.2d at 519; see also Christian Legal Soc'y,
561 U.S. at 686, 687 n.16 (noting that while "determinations of
what constitutes sound educational policy . . . fall within the
- 41 -
discretion of school administrators and educators," the ultimate
"question whether a [school] has exceeded constitutional
constraints" rests with the courts and courts "owe no deference to
[schools] when [they] consider that question" (citing Rowley, 458
U.S. at 206 and Pell v. Procunier, 417 U.S. 817, 827 (1974))).
We first address the subsidiary issue of the appropriate
timeframe by which to assess the administration's interpretation
of the note as bullying Student 1. The defendants contend that
the administration's interpretation of the speech must be assessed
at the time the note was first posted, based only on the content
of the note itself and what was known by school officials at that
time. The plaintiff submits, however, that A.M.'s speech must be
assessed at the time her punishment was ultimately imposed, in the
context of what was then known to administrators after the ten-
day investigation.
It appears that courts applying Tinker generally
consider all relevant facts known to the school administrators at
the time they disciplined the student or decided to restrict the
speech. See, e.g., Tinker, 393 U.S. at 508-10, 514; J.S. ex rel.
Snyder, 650 F.3d at 928-31; Doninger v. Niehoff, 527 F.3d 41, 50-
51 (2d Cir. 2008); Lowery v. Euverard, 497 F.3d 584, 596 (6th Cir.
2007); LaVine, 257 F.3d at 989-90 ("When the school officials made
their decision . . . , they were aware of a substantial number of
facts that in isolation would probably not have warranted their
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response, but in combination gave them a reasonable basis for their
actions."). Given that we have already determined that the
defendants here cannot rely on the actual or forecasted substantial
disruption justifications, we analyze A.M.'s speech at the time
that the suspension decision was made. That is because the school
determined that her sticky note constituted bullying only after
their ten-day investigation revealed further information about the
note and rumors circulating throughout the school community.
The district court gave no deference to the school's
determination that A.M. intentionally targeted Student 1 through
her note. Rather, the court emphasized the conflicting evidence
with respect to that issue but did not explain why the evidence
tipped in her favor in the context of the preliminary injunction
standard. See Cape Elizabeth Sch. Dist., 422 F. Supp. 3d at 366-
67. If the evidence establishes that it is equally likely that
A.M.'s note targeted Student 1 or did not, we could not say that
the school was objectively unreasonable in determining that the
note targeted Student 1.
That does not mean, however, that we must reverse the
district court's decision. As the district court stated, the
defendants' evidence did not establish a link between A.M.'s
protected speech and the harm Student 1 suffered. Id. at 367.
The district court concluded that this failure meant the defendants
had not provided a justification sufficient to undermine her
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likelihood of success. Id. Even if a school administrator
arguably could have reasonably concluded that the unnamed "rapist"
in the note referred to Student 1, there is a different question
as to whether the note caused the bullying harm as the school
system alleged. The district court's conclusion that the
defendants failed to show the note caused the harm Student 1
suffered was not, on this record, clear error.
The problems with defendants' proof as to the causal
link between the note and the bullying exist at several levels, of
which we identify a few. Any bullying of Student 1 is regrettable.
That does not mean A.M.'s note resulted in the bullying.
Information about Student 1 already known in the Cape
Elizabeth H.S. community significantly weakens the theory that a
causal connection existed between A.M.'s note and the bullying of
Student 1. During its investigation, the school administration
uncovered rumors that had already been in circulation within the
school community prior to the posting of the sticky note. Some of
those allegations of sexual misconduct centered on Student 1.
Importantly, a video had been circulating within the student body
for months before A.M. posted her note which explicitly bore the
caption "this is Student 1 raping bitches." School officials, and
no doubt students, were also aware of a student complaint from the
previous academic year regarding an incident off of school grounds
which had resulted in legal proceedings and a court protection
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order against Student 1. The defendants do not assert that A.M.
directly participated in the bullying of Student 1 at school, or
that she was responsible for the video or any of the rumors being
circulated about Student 1. Indeed, they make no attempt to
disentangle the harm caused by the video and rumors circulated by
other students.19 This makes it difficult to show it was the note
and not some other factors which caused any bullying.
At the time of the posting of the note and at the
conclusion of the investigation, both the other students at Cape
Elizabeth H.S., and importantly, the administration, knew of
several other complaints of sexual assault by different student
perpetrators. The administration knew that several female student
complainants continued to pursue the issue. Before punishing her,
the school administrators determined that A.M. was the author of
the initial note. The school was well aware of A.M.'s prior
advocacy against sexual assault. A.M. posted the note only three
months after she and other students raised their dissatisfaction
with the school's handling of sexual assault to the school board.
19 The defendants' reliance on Kowalski v. Berkeley County
Schools is misplaced. In Kowalski, the plaintiff-student created
a webpage that served "as a platform for [the plaintiff] and her
friends to direct verbal attacks towards [a] classmate." 652 F.3d
at 572-73. The classmate was explicitly targeted by name and
through photographs posted on the website. Id. The Fourth Circuit
concluded that the school could suspend her for this speech under
Tinker. Id. at 574. A.M.'s note, in contrast, did not identify
anyone specifically.
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One of the students who had accompanied A.M. to the school board
meeting was a known sexual assault survivor who had a Title IX
complaint substantiated the previous academic year. Overall, Cape
Elizabeth H.S. had received at least eight Title IX complaints
during the previous academic year, at least four of which had been
substantiated. The investigation into the notes reinforced that
students other than Student 1 were thought to be perpetrators.
A.M. alleges that during the course of the investigation, she told
the administrators about a different student who had been accused
of sexual assault the previous spring and who had been involved in
a Title IX investigation. Other allegations of sexual assault
involving various students and not naming Student 1 were also
raised during the school's investigation.
The school's recent history with sexual assault
complaints, together with A.M.'s status as a sexual assault
advocate and confidant for victims, reinforces the school's own
interpretation in its September 20th email that the note was, at
least in part, directed at the school administration. This
understanding of the note undercuts the defendants' claim that the
note caused the bullying of Student 1. And the school is not
permitted to punish a student merely because her speech causes
argument on a controversial topic. See, e.g., Tinker, 393 U.S. at
508.
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The text of the note and the circumstances of its
discovery also undermine the notion that it caused the bullying of
Student 1. The sticky note was not widely distributed to or viewed
by members of the school community nor did it specifically name or
otherwise describe a particular individual. Rather, it was only
up in a girls' bathroom for a few minutes and was seen only by the
one student who found it and one other student who actually brought
the note to the administration. The note also contains a number
of ambiguities which further undercut a close causal link between
it and the bullying of Student 1. It is not clear from A.M.'s
note whether the "rapist" is a student or teacher or school
employee, nor does it identify the gender of the "rapist." A.M.'s
note did not identify where or when the "rape" occurred, including
whether it occurred at the school or even if it occurred recently.
We also note that there are different understandings of what the
term "rape" means. The term can be used broadly to encompass not
only the traditional definition of rape, but also other lesser
degrees of sexual assault or other sexual activity. Maine's law
on sexual assault illustrates these different understandings.20
20 In 1989, the Maine legislature revised its criminal
statutes to eliminate the term "rape" and replaced it with a
catalog of various sexual assault crimes. See Me. Rev. Stat. Ann.
tit. 17-A, § 252 (repealed 1989); id. § 253; id. § 254; id. § 255-
A; id. § 260. Among these sexual assault crimes is "sexual abuse
of a minor," which is committed when the perpetrator is at least
twenty-one and engages in a sexual act with a student who is
sixteen or seventeen and is "enrolled in a . . . public . . .
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Ambiguity as to who the "YOU" in A.M.'s sticky note
refers also weakens the causal link between it and Student 1's
bullying. The "YOU" could be understood as referring to other
students using the girls' bathroom. But it also could be read as
referring to the school administration. On this latter view, the
sticky note is a statement speaking out against the Cape Elizabeth
H.S. administration's perceived inadequate handling of sexual
assault claims. This view is not unsupported by the record: the
administration itself accepted this interpretation of A.M.'s note
in its September 20th email to Cape Elizabeth H.S. students and
parents.
Based on the record at this preliminary stage, we agree
with the district court's determination that the defendants have
not shown an apparent causal connection between A.M.'s sticky note
and the bullying of Student 1.21 The district court thus did not
secondary . . . school . . . [where] the actor is a teacher,
employee or other official in the school district." Id.
§ 254(1)(C). This crime is also committed when the victim is
fourteen or fifteen years old and the perpetrator is at least five
years older. Id. § 254(1)(A). Cape Elizabeth H.S. covers grades
nine through twelve and so there are some students who are
fourteen, fifteen, sixteen, or seventeen years old. The ages of
the students implicate this statutory provision and demonstrate
the ambiguity in whether the "rapist" was a student or school
employee.
21 The defendants do not argue that, even if the note itself
did not cause any harm to Student 1, it nevertheless invaded his
rights. Rather, the defendants' arguments as to the invasion of
the rights of another focus on the harm suffered by Student 1 as
a result of his ostracization by students other than A.M.
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abuse its discretion in determining that the defendants had not
shown it was A.M.'s note which caused any invasion of Student 1's
rights sufficient to justify the punishment imposed on A.M. for
her protected speech.22
III.
Posting the sticky note was far from the best way for
A.M. to express her concerns about student-on-student sexual
assault and Cape Elizabeth H.S.'s handling of sexual assault
claims. The issue before us, however, is whether the district
court abused its discretion in issuing the preliminary injunction.
We hold that it did not.
Affirmed. Costs are awarded to A.M.
22 The parties did not engage the question of whether a
preexisting school policy forbidding the public posting of notes
containing accusations against another student would affect the
analysis under Tinker. Because the parties did not raise the
issue, we need not address it.
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