Corales v. Bennett ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LOUISE CORALES; JAMIE SOLTERO; 
THE ESTATE OF ANTHONY J.
SOLTERO; JANE ROE, I, a minor, by
her guardian ad litem MARY ROE,
I; JANE A MINOR, BY HER
No. 07-55892
GUARDIAN AD LITEM JOHN ROE 1;
GUILLERMO PRIETO,
Plaintiffs-Appellants,
 D.C. No.
CV-06-00849-SGL
v. OPINION
GENE BENNETT; THE ONTARIO-
MONTCLAIR SCHOOL DISTRICT;
KATHLEEN KINLEY,
Defendants-Appellees.

Appeal from the United States District Court
for the Central District of California
Stephen G. Larson, District Judge, Presiding
Argued and Submitted
October 22, 2008—Pasadena, California
Filed June 1, 2009
Before: Harry Pregerson and Cynthia Holcomb Hall,
Circuit Judges, and David Alan Ezra,* District Judge.
Opinion by Judge Hall
*The Honorable David Alan Ezra, United States District Judge for the
District of Hawaii, sitting by designation.
6455
CORALES v. BENNETT 6459
COUNSEL
R. Samuel Paz, Law Offices of R. Samuel Paz, Culver City,
California, and Sonia M. Mercado, Sonia Mercado & Asso-
ciates, Culver City, California, for the appellants.
Jacqueline DeWarr Berryessa, Law Offices of Margaret A.
Chidester & Associates, Irvine, California, for the appellees.
OPINION
HALL, Circuit Judge:
On March 28, 2006, Anthony Soltero, Annette Prieto, and
two other students walked out of De Anza Middle School
with the intent to participate in protests in their neighborhood
against then-pending immigration reform measures. Two days
later, they were disciplined for their one-day absence from
school by Vice Principal Gene Bennett (Bennett), who took
away one of their year-end activities and lectured them
harshly regarding the possible legal consequences of truancy,
including police involvement, a $250 fine, and a juvenile hall
sentence. Tragically, Anthony committed suicide after school
6460 CORALES v. BENNETT
that day. Anthony’s parents and one of the other students
brought this action against Bennett, Principal Kathleen Kinley
(Kinley), and the Ontario-Montclair School District, alleging
violations of the students’ and parents’ civil rights under 42
U.S.C. § 1983; violations of California’s Unruh Act; inten-
tional infliction of emotional distress, and negligently causing
Anthony’s suicide. The district court granted summary judg-
ment to Defendants. Because Bennett did not violate the stu-
dents’ constitutional rights, there is no evidence that Bennett
intended to harm the students, and because Anthony’s death
was not proximately caused by Bennett’s actions, we affirm.
I. Background
On Tuesday, March 28, 2006, Anthony Soltero, an eighth-
grade, fourteen-year-old student at De Anza Middle School
(De Anza), Annette Prieto, and “one or two” other middle
school students walked out of school around 8:30 or 9:00 in
the morning.1 They did not have prior permission from the
school or their parents. They left school to participate in pro-
tests against the impending passage of federal immigration
legislation that would have made it a crime to assist or help
undocumented immigrants. In addition to Annette’s deposi-
tion, Plaintiffs submitted Annette’s handwritten account of the
events of the week, which was written a few weeks after the
incident at the direction of De Anza’s principal. Annette testi-
fied in her deposition that the students’ plan was to walk to
nearby Ontario High School and to participate with other stu-
dents in a protest. She testified that “mostly the whole
schools, like, everybody in the schools were walking out and
getting cited for it. Everybody was missing a lot of school
because of that.”2 When they got to Ontario High School
however, no one was there. They noticed the school was on
1
Because we review the district court’s order granting summary judg-
ment to Defendants, we relate the facts in the light most favorable to
Plaintiffs, the nonmoving party. Beck v. City of Upland, 527 F.3d 853, 857
n.1 (9th Cir. 2008). Defendants dispute many of these facts in opposing
depositions.
2
School district administrators were aware of the potential for walkouts
by students and had sent a warning email the previous week to administra-
tion personnel within the district. Both Bennett and Kinley received the
email.
CORALES v. BENNETT 6461
lockdown. Eventually a few students from Ontario High
School arrived and they walked for 60 to 90 minutes to
Ontario Middle School, but nobody was there. At that point,
it was about 11:00 am and De Anza Middle School had been
let out for the day because of scheduled teacher conferences.
The students decided to go home. While only four students
left De Anza to participate in walkouts, two other Ontario
middle schools had walkouts involving 50 to 150 students,
and Montclair police issued citations to 125 students who had
walked out of one of the middle schools.
Bennett testified that on the morning of Tuesday, March
28, 2006, a teacher told him “a girl had come up and asked
another girl to leave campus with her as they were entering
the classroom . . . .” Bennett was able to identify the girl and
discover the identities of Anthony, Annette, and two other
students. He required the four students to meet with him at his
office Thursday morning when classes began.
Annette met with the other students before they entered
Bennett’s office. They discussed the consequences they were
likely to face in the meeting, including that they “were going
to have to pay a fine” and “lose one of [their] year-end activi-
ties.” Annette testified that Anthony told her he was “scared
of what was going to happen and nervous about just the con-
sequences.” Annette, too, stated she was so sick with nervous-
ness about the consequences of missing school that she had
stayed home from school on Wednesday as well.
The De Anza Parent Handbook explains that the conse-
quences for a first-occurrence unexcused absence can range
from after-school intervention (presumably detention) to Sat-
urday Academy. Students participating in any protest that
involves nonattendance at school are specifically identified as
truant in the Ontario-Montclair School District regulations.
AR 5131.4 (Prohibited Activities). In early March, a supple-
mental policy letter was mailed to the homes of all eighth-
grade students explaining that if any disciplinary issues arose,
6462 CORALES v. BENNETT
the student could lose one or more of their promotional activi-
ties, including a dance, a trip to Disneyland, or the promotion
ceremony itself. Annette had been suspended several times
previously during the school year for unrelated infractions.
Anthony had been placed on probation stemming from an
incident the previous spring in which he carried a knife to
school. Bennett, in response to notification from a concerned
parent, had discovered the knife and reported Anthony to the
police. Anthony’s mother, in her declaration, indicated
Anthony could have been sent to jail for three years if he vio-
lated the terms of his probation.
Though accounts of the meeting between Bennett and the
students differ substantially, Annette testified in her deposi-
tion that:
Me, [two other students] and Anthony walked in,
and he pointed at the three of us and said, “You guys
are all dumb, dumb, and dumber.” He said, “You
guys are going to have to pay $250 fine;” that he is
going to get the cops involved, and we’re going to
have to go to Juvenile Hall for, like, certain amount
of years; and that we’re stupid for doing it, and why
did we think that we weren’t going to get caught.
Bennett also told the students that they were going to lose
a year-end activity, ultimately the Disneyland trip for each
student. The reason for the students’ absence was not dis-
cussed. After the meeting, the students returned to class for
the day.
After school that day, Anthony told Annette that he was
scared that his mother would be mad at him and he was wor-
ried about juvenile hall and having to pay a $250 fine. Antho-
ny’s mother was running errands that day, but called home to
check in after school and to get a telephone number from
Anthony. During the telephone call, Anthony told his mother
that Bennett had caught him walking out, and that he was in
CORALES v. BENNETT 6463
trouble and going to lose one of his eighth-grade activities as
a result. Anthony’s mother testified that he didn’t say any-
thing to make her worry about his safety and that she was able
to get the telephone number from Anthony.3 When she
returned home about an hour later, she found Anthony on the
floor of his room, suffering from a gunshot wound in an
apparent suicide attempt. Anthony was pronounced dead later
that evening.
Anthony left a suicide note which states in pertinent part:
“I just want to tell you that I love you [guys] and I’ll miss
you, [and] tell this to all my family. I killed myself because
[I] have to[o] many problems. . . . . Tell my teachers [they’re]
the best and tell Mr. [Bennett] he is a motherf#@(-)ker.” He
also apologized to his father for “making [him] mad.”
None of the students were fined or sent to juvenile hall, and
the police were never involved with the students’ truancies.
On August 8, 2006, Louise Corales and Jaime Soltero
(Anthony Soltero’s parents), the Estate of Anthony J. Soltero,
Jane Roe 1, Mary Roe 1, Jane Roe 2 (Annette Prieto), John
Roe 1 (all minors represented by their guardians ad litem),
and Guillermo Prieto (collectively “Plaintiffs”) filed suit in
the federal district court for the Central District of California
against Bennett; the Ontario-Montclair School District; and
Kinley, the principal of De Anza Middle School at the time
of the protests (collectively “Defendants”).4
The complaint stated six causes of action alleging the fol-
lowing: (1) violations of civil rights under 42 U.S.C. § 19833
In her declaration, Anthony’s mother did indicate that Anthony’s voice
“sounded real frightened,” but specifically denied in her deposition testi-
mony that he had said anything to make her worry about his safety.
4
Kathleen Kinley had planned to retire as De Anza’s principal the day
after Anthony’s suicide. She did step down that day, and Leticia Zaragoza
assumed the duties of principal.
6464 CORALES v. BENNETT
and § 1985(3)5 against Bennett and Kinley in their individual
capacities; (2) an unconstitutional policy, custom or practice
causing constitutional violations against the school district6;
(3) failure to train and supervise, causing constitutional viola-
tions, against Kinley; (4) civil rights violations under Califor-
nia’s Unruh Act, Cal. Civ. Code §§ 51.7, 52.1; (5) intentional
infliction of emotional distress, and (6) general negligence
resulting in Anthony’s death. Plaintiffs sought general, com-
pensatory and punitive damages as well as injunctive and
declaratory relief.
Defendants filed a Summary Judgment Motion on March 8,
2007. The district court granted the motion in full. As to the
First Amendment claim, the district court found that there was
a triable issue of fact as to whether the students’ actions con-
stituted expressive conduct. It then applied the Supreme
Court’s test for expressive conduct in schools, set forth in Tin-
ker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 514
(1969): school officials must justify their disciplinary decision
by showing “facts which might reasonably have led school
authorities to forecast substantial disruption of or material
interference with school activities.” The district court relied
on this court’s decision in LaVine v. Blaine School Dist., 257
F.3d 981, 992 (9th Cir. 2001), for the proposition that school
officials may take action to protect the safety of individual
students even if such action interferes with the student’s abil-
ity to express him or herself. The district court concluded that
school officials are entitled and obligated to take appropriate
action to ensure the safety of their students, including warning
them (however sternly) regarding the students’ legal obliga-
tion to stay in school during school hours. Having thus found
that the school validly disciplined the students, the students’
actions, in this context, did not constitute protected First
Amendment activity.
5
Plaintiffs do not raise the § 1985 claim on appeal and it is waived. See
Miller v. Fairchild Indus., Inc., 797 F.2d 727, 738 (9th Cir. 1986).
6
Plaintiffs withdrew this claim and do not argue it on appeal.
CORALES v. BENNETT 6465
The district court found no other Constitutional violation,
and, therefore, no supervisory liability or liability under Cali-
fornia’s Unruh Act, which both require an underlying viola-
tion of Plaintiffs’ constitutional rights. Finally, the district
court held that Bennett’s actions in lecturing the students fell
far short of the type of extreme and outrageous conduct
required to support a claim for intentional infliction of emo-
tional distress, and that Anthony’s act of committing suicide
was both an extraordinary and unforeseeable consequence of
the lecture.
II. Standard of Review
We review a grant of summary judgment de novo. Olsen v.
Idaho State Bd. of Medicine, 363 F.3d 916, 922 (9th Cir.
2004) (citing United States v. City of Tacoma, 332 F.3d 574,
578 (9th Cir. 2003). “We must determine, viewing the evi-
dence in the light most favorable to . . . the non-moving party,
whether there are any genuine issues of material fact and
whether the district court correctly applied the substantive
law.” Id. “We may affirm on any grounds supported by the
record.” Id. (citing Simo v. Union of Needletrades, 322 F.3d
602, 610 (9th Cir. 2003)). “The underlying substantive law
governing the claims determines whether or not [the disputed
fact] is material.” Addisu v. Fred Meyer, Inc., 198 F.3d 1130,
1134 (9th Cir. 2000). “There must be enough doubt for a ‘rea-
sonable trier of fact’ to find for the plaintiffs in order to defeat
the summary judgment motion.” Id. (quoting Wallis v. J.R.
Simplot Co., 26 F.3d 885, 889 (9th Cir. 1994)).
III. Discussion
A. First Amendment Retaliation Claim
Although the students’ walkout was ostensibly to protest
immigration reform legislation, there is no evidence that the
students gave speeches, that they discussed matters of immi-
gration reform, or that they carried placards or signs that con-
6466 CORALES v. BENNETT
veyed their messages during the walk-out. Rather, the
evidence reveals that the students left their school to engage
in a protest march, met up with like-minded individuals from
a local high school, and walked together to a third school. In
the absence of any identifiable speech, these activities, if they
are to be protected by the First Amendment, must fall within
the definition of expressive conduct.
[1] The First Amendment protects conduct that is not
speech but is nevertheless expressive in nature. See, e.g., Tin-
ker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503(1969) (wearing of black armband to protest Vietnam War);
United States v. O’Brien, 391 U.S. 367 (1968) (flag-burning).
However, First Amendment protection does not apply to all
cases in which someone intends to convey a message by his
or her conduct; rather, First Amendment protection applies
only when “it is intended to convey a ‘particularized message’
and the likelihood is great that the message would be so
understood.” Nunez v. Davis, 169 F.3d 1222, 1226 (9th Cir.
1999) (citing Texas v. Johnson, 491 U.S. 397, 404 (1989)).
[2] Here, the record is clear that the students intended to
show their opposition to the proposed immigration reform by
participating in a walkout. The record is less clear as to
whether the walkout was likely to be perceived as such.
Though Bennett admitted he knew of the walkouts taking
place in the area, the reason for the students’ absence was not
discussed in the meeting. Likewise, while 100 to 150 students
walked out of neighboring middle schools, only four students
from De Anza appeared to have missed school that day. Still,
because of warnings from school administrators about poten-
tial walkouts to protest the immigration reform, it is likely
that an actual walkout of the four students would be perceived
as a protest. Thus, we agree with the district court that a rea-
sonable jury, when presented with this evidence, could con-
clude that the students were engaging in expressive conduct.
We next consider whether the conduct was protected, and
if the school violated the students’ First Amendment rights by
CORALES v. BENNETT 6467
disciplining them for their participation in the walkout. Plain-
tiffs concede that the school had a right to discipline the stu-
dents for the actual act of leaving campus without permission.
Plaintiffs argue that the students were not disciplined for vio-
lating that rule, but rather for their expressive choice to partic-
ipate in the immigration protests. As such, Plaintiffs assert a
First Amendment retaliation claim.
“To establish a First Amendment retaliation claim in the
student speech context, a plaintiff must show that (1) he was
engaged in a constitutionally protected activity, (2) the defen-
dant’s actions would chill a person of ordinary firmness from
continuing to engage in the protected activity and (3) the pro-
tected activity was a substantial or motivating factor in the
defendant’s conduct.” Pinard v. Clatskanie Sch. Dist. 6J, 467
F.3d 755, 770 (9th Cir. 2006).
As a threshold matter, we must first determine the scope of
the discipline the students received before we can consider
whether that discipline constituted retaliation for their activ-
ity. Plaintiffs assert that the discipline imposed was comprised
of both the loss of a year-end activity and Bennett’s threats
of police involvement, a $250 fine, and juvenile hall. Plain-
tiffs argue this total discipline imposed exceeded the Parent
Handbook’s stated maximum consequence of a Saturday
Academy for a first-time truancy. Plaintiffs contest the district
court’s characterization of Bennett’s words as merely a harsh
lecture about the possible consequences of truancy, and assert
that they instead constituted a “true threat” of corporal pun-
ishment by Bennett, and were reasonably interpreted by the
students as such. The assumption that Bennett’s words consti-
tuted not only a true threat, but “punishment,” is incorrect.
[3] Plaintiffs’ invocation of the “true threat” strand of First
Amendment case law is misplaced. The true threat analysis is
employed to determine when speech that is “an expression of
an intention to inflict evil, injury, or damage on another” does
not receive First Amendment protection. Fogel v. Collins, 531
6468 CORALES v. BENNETT
F.3d 824, 830 (9th Cir. 2008) (quoting Planned Parenthood
of the Columbia/Willamette, Inc. v. Am. Coal. of Life Activ-
ists, 290 F.3d 1058, 1075 (9th Cir. 2002) (en banc)). “ ‘True
threats’ encompass those statements where the speaker means
to communicate a serious expression of an intent to commit
an act of unlawful violence to a particular individual or group
of individuals.” Virginia v. Black, 538 U.S. 343, 359 (2003).
Whether an objective or subjective standard is applied to
determine “an intent to inflict bodily harm” exists, the speech
is examined in the “light of its entire factual context, includ-
ing the surrounding events and reaction of the listeners.”
Fogel, 531 F.3d at 831 (quoting United States v. Orozco-
Santillan, 903 F.2d 1262, 1265 (9th Cir. 1990)).
[4] At issue here, however, is not whether Bennett’s speech
should be afforded First Amendment protection. Cf. Doe v.
Pulaski County Special Sch. Dist., 306 F.3d 616, 622 (8th Cir.
2002). Bennett did not express any intent to commit any act
of unlawful violence or to inflict bodily harm upon the stu-
dents. Neither Plaintiffs nor the Government have filed any
criminal or civil action for assault, where Bennett’s actual or
apparent ability to carry out the threat would be at issue. See,
e.g., United States v. Chapman, 528 F.3d 1215, 1219 (9th Cir.
2008).
[5] Plaintiffs instead attempt to connect Bennett’s words to
violence by characterizing them as a form of corporal punish-
ment. This argument fails because the definition of corporal
punishment under California law requires the “willful inflic-
tion of, or willfully caus[ing] the infliction of physical pain on
a pupil.” Cal. Educ. Code § 49001(a). Bennett did not inflict,
nor attempt to inflict, any physical pain on any of the stu-
dents. We decline to expand the scope of actionable threat-
ened “harm” to encompass the legal consequences of one’s
actions. Bennett’s perceived threats were not empty words to
intimidate the students, but based on sections of the California
Education Code, Welfare and Institutions Code, Penal Code,
and Ontario municipal code. Together, these provisions
CORALES v. BENNETT 6469
require compulsory education, prohibit truancy, permit habit-
ually truant students to become wards of the juvenile court,
make it a criminal violation for an adult to cause or facilitate
the truancy of a minor, fine parents or guardians for the tru-
ancy of their children, permit arrest of truant students, and
impose daytime loitering restrictions on minors. See Cal.
Educ. Code §§ 48260, 48263, 48264, 48293; Cal. Welf. &
Inst. Code § 601; Cal. Penal Code § 272(a)(1); Ontario
Municipal Code §§ 5-7.04, 5-7.05.
[6] Because Bennett’s statements cannot be interpreted as
intended to cause any unlawful injury to the students, they do
not constitute a true threat of corporal punishment. We thus
agree with the district court’s characterization of Bennett’s
statements as a stern lecture. Moreover, Plaintiffs cite no case
law to support the proposition that threats of potential future
consequences can alone constitute punishment.7 Even if Ben-
nett had the authority to impose a juvenile hall sentence as a
form of retaliatory discipline, threatening an action is not the
same as imposing discipline.
[7] In Gaut v. Sunn, 810 F.2d 923 (9th Cir. 1987), this court
analyzed a prisoner’s § 1983 claims arising out of beatings by
prison guards and threats of bodily harm if he attempted to
report the beating. We concluded that it “trivializes the eighth
amendment to believe that a threat constitutes a constitutional
wrong.” Id. at 925. We stated that we found “no case that
7
Indeed, Plaintiffs’ own expert discussed the importance of a school
administrator’s use of discipline as a learning device to discuss the poten-
tial consequences of a path a student may be starting down. Bennett was
speaking to a student who had previously been arrested and was placed on
probation (Anthony) and another with multiple suspensions (Annette). In
this situation, Bennett would arguably be remiss in his duties if he did not
adequately warn the students of what consequences may result from con-
tinued truancies and what could have resulted from their actual truancy.
Cf. Terry v. Ohio, 392 U.S. 1, 23 (1968) (noting it would have been poor
police work if officer did not investigate suspicious, though legal, behav-
ior).
6470 CORALES v. BENNETT
squarely holds a threat to do an act prohibited by the Constitu-
tion is equivalent to doing the act itself.” Id.; see also Robin-
son v. Solano County, 278 F.3d 1007, 1017 (9th Cir. 2002)
(holding that “when the seizure itself is otherwise proper the
mere threat of force cannot be an excessive use of force
within the meaning of the Fourth Amendment”). Under Ninth
Circuit law, Plaintiffs do not have a retaliation claim based on
threats of discipline for First Amendment activity if that threat
is itself based upon lawful consequences and is not actually
administered.8
Here, the only consequence actually suffered by the stu-
dents was the loss of one year-end extracurricular activity.
Plaintiffs contend that even the loss of a year-end activity was
a form of retaliation because the discipline did not comport
with the consequences outlined in the Parent Handbook. The
eighth-grade students were adequately warned, however, that
they would not earn the privilege of attending the year-end
activities unless they met all academic and behavioral require-
ments. Annette testified that the students realized they would
likely lose their year-end activities as a result of their truancy
even before they met with Bennett.
[8] Thus, any retaliation claim must be evaluated solely on
Bennett’s decision to discipline the students at all, when their
act of leaving school was intended as expressive conduct. We
now turn to the question of whether disciplining this act at all
violated the students’ First Amendment rights.
8
Plaintiffs also characterize the fear the students felt as evidence that
they were punished by Bennett’s lecture. The facts of the case do not sup-
port this assertion. Annette testified in her deposition that the students dis-
cussed the possibility that they would be fined for skipping school, as
demonstrators earlier in the week had been, before meeting with Bennett.
She also testified that she and Anthony were scared and nervous about the
discipline before the meeting, so much so that the day after the walkout
she and one of the other girls stayed home “sick” with nervousness. Any
incremental fear created by Bennett’s informing the students of the possi-
ble consequence of their actions is insufficient to elevate Bennett’s lecture
to a threat.
CORALES v. BENNETT 6471
1. Constitutionally Protected Activity
[9] The first prong of the retaliation claim is the determina-
tion of whether the students were disciplined for engaging in
constitutionally protected activity. Because this case involves
school discipline for arguably expressive conduct, both parties
and the district court have analyzed the facts under Tinker.
The Tinker framework, however, is intended to apply to deci-
sions by a school to punish a student’s speech or expressive
conduct as such, because of its potentially disruptive impact
on appropriate discipline in the operation of the school. See
Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503,
509 (1969). Thus Tinker contemplates a case-by-case decision
by a school whether student speech either on campus or at an
off-campus school-sponsored event is disruptive and punish-
able under the general authority of the school to minimize dis-
ruptions.
[10] Here, the students’ expressive conduct, in seeking to
participate in immigration protests, occurred entirely off-
campus and was not school-sponsored. The students were
punished not for any disruptive aspect of their expressive con-
duct, as expressive conduct, but for the disruption caused by
the act of leaving campus without permission. Unlike in Tin-
ker cases, the school was not exercising discretion when
determining whether to discipline the student for their infrac-
tion of the general rule forbidding truancy. The disciplinary
rules clearly specified both minimum and maximum sanctions
for leaving campus without permission and missing school.
In fact, district regulations specifically designated students
participating in protests that involved nonattendance at school
as truant, regardless of any parental approval of their act.
Ontario-Montclair Admin. Reg. 5131.4. The case is, there-
fore, better understood as questioning whether Plaintiffs can
be disciplined under the general content-neutral rule that stu-
dents are not allowed to leave campus without permission,
when their purpose for leaving is to engage in expressive con-
duct. See Jacobs v. Clark County Sch. Dist., 526 F.3d 419,
6472 CORALES v. BENNETT
430-431 (9th Cir. 2008) (holding Tinker framework does not
apply to content-neutral rules governing conduct).
The test for whether an exemption should be granted from
a content-neutral rule of conduct to engage in expressive con-
duct was presented in Clark v. Community for Creative Non-
Violence (CCNV), 468 U.S. 288, 294 (1984):
Symbolic expression of this kind may be forbidden
or regulated if the conduct itself may constitutionally
be regulated, if the regulation is narrowly drawn to
further a substantial government interest, and if the
interest is unrelated to the suppression of free
speech.
(citing United States v. O’Brien, 391 U.S. 367, 377 (1968).9
In Clark v. CCNV, the Supreme Court held that protestors
were not entitled to an exemption to the National Park’s gen-
eral regulation limiting camping to designated areas simply
because they were engaging in expressive conduct to protest
homelessness. After determining that the rule was content-
neutral, the Court went on to find that the interest in limiting
wear and tear on parks was substantial and unrelated to the
suppression of expression. Id. at 299. The Court further held
that in determining whether the regulation was narrowly
9
In Pinard, the court declined to apply the O’Brien test because the
court found the Tinker analysis appropriate for analyzing restrictions on
student speech and because the parties had not argued the application
below and the factual record was not developed enough for the Ninth Cir-
cuit to determine if O’Brien should apply. Pinard, 467 F.3d at 759, n.1.
This case does not present the same concerns. The rule here is not discre-
tionary in its application, applies to conduct, rather than speech, and does
not require any further factual development to determine its applicability.
Furthermore, Defendants argued under O’Brien in their motions before the
district court, and have continued to analyze the school’s actions under an
intermediate scrutiny framework on appeal. In reviewing a summary judg-
ment motion, we may affirm on any ground supported by the record.
Olsen v. Idaho State Bd. of Medicine, 363 F.3d 916, 922 (9th Cir. 2004).
CORALES v. BENNETT 6473
drawn, the regulation should not be judged merely by the
plaintiffs at hand, but also by all those similarly situated who
would also be entitled to an exemption under the rule. Id. at
296-297.
[11] Similarly, the school’s anti-truancy policy is a content-
neutral rule that furthers an important interest unrelated to the
suppression of expression. Indeed, Plaintiffs have repeatedly
conceded that the school has a valid interest in forbidding stu-
dents from leaving school without permission. The rule fur-
thers several substantial government interests, including
enforcing compulsory education, keeping minors safe from
the influences of the street, maximizing school funding based
on attendance (Cal. Educ. Code § 46010), and limiting poten-
tial liability for negligent failure to supervise a truant student
properly. See Hoyem v. Manhattan Beach City Sch. Dist., 22
Cal.3d 508, 523 (1978); cf. Morse v. Frederick, 127 S. Ct.
2618, 2622 (2007) (noting that “the rights of students must be
applied in light of the special characteristics of the school
environment”). None of these justifications is related to the
suppression of speech. The Supreme Court specifically upheld
the compelling government interests in compulsory education
and keeping minors safe from the dangers of the streets in
Prince v. Massachusetts, 321 U.S. 158, 166 (1944). See also
Jacobs, 526 F.3d at 436 (finding increasing student achieve-
ment and enhancing safety important government interests);
LaVine v. Blaine Sch. Dist., 257 F.3d 981, 992 (9th Cir. 2001)
(finding school’s interest in safety of its students compelling).
[12] The rules which discipline truancies and leaving cam-
pus without permission support these goals and are narrowly
tailored to the government’s interests. The narrowly tailored
test was expressed in Turner v. Broad. Sys. Inc. v. FCC, 512
U.S. 622, 662 (1994): “the means chosen [must] not ‘burden
substantially more speech than is necessary to further the gov-
ernment’s legitimate interests.’ ” (quoting Ward v. Rock
Against Racism, 491 U.S. 781, 799 (1989)). The means cho-
sen, however, “need not be the least speech-restrictive means
6474 CORALES v. BENNETT
of advancing the Government’s interests . . . so long as [the
interest] would be achieved less effectively absent the regula-
tion.” Id. at 662.
[13] In Jacobs, this court upheld a school uniform policy
under the Clark/O’Brien analysis, finding that the policy left
open ample alternative channels for student communication.
Jacobs, 526 F.3d at 437. The policy in Jacobs only restricted
students’ speech during school hours and left the students free
to “continue to express themselves through other and tradi-
tional methods of communication throughout the school day.”
Id. “For example, students are still permitted (if not encour-
aged) to have verbal conversations with other students, pub-
lish articles in school newspapers, and join student clubs.” Id.Here too, the anti-truancy policy only limits students’ expres-
sive conduct during school hours. The students are free to par-
ticipate in weekend or after-school events. De Anza was on
a shortened schedule the week of the walk-outs, leaving
greater-than-normal after-school time available to participate
in immigration reform efforts. The students are free to engage
in speech relating to immigrant rights on-campus, as the
record suggests they did here, both amongst each other and in
the classroom.
[14] In light of this analysis, the school’s policy of disci-
plining truancies and leaving campus without permission eas-
ily satisfies the intermediate scrutiny applied to content-
neutral rules of conduct. See also Cox v. State of La., 379 U.S.
559, 563 (1965) (upholding reasonable time, place and man-
ner restrictions on right to picket in front of a courthouse). As
such, the incidental effect the rule has on the students’ expres-
sive conduct is permissible, and the students’ First Amend-
ment rights have not been infringed by punishing the act of
leaving campus. Indeed, granting Plaintiffs an exemption to
the otherwise generally applicable rule would cast suspicion
on the Constitutionality of the rule itself, because it would no
longer be content-neutral in application. See Carey v. Brown,
447 U.S. 455 (1980) (striking down regulation that exempted
CORALES v. BENNETT 6475
labor picketing from general residential picketing ban as vio-
lating Equal Protection); Clark, 468 U.S. at 299 (noting pro-
priety of evaluating all those similarly situated who would
also seek an exemption to the generally-applicable rule); see
also Jacobs, 526 F.3d at 433. To hold otherwise would be to
allow 12 to 14 year old students to leave school without the
permission of their parents or school authorities to engage in
any claimed First Amendment activity, no matter the danger.
[15] Because the rule satisfies intermediate scrutiny under
Clark v. CCNV, the school was entitled to enforce the rule
against truancy even when the students sought to leave for
expressive purposes. In this context, the Plaintiffs’ act of leav-
ing campus was not a constitutionally-protected activity, and
therefore, Plaintiffs do not satisfy the first prong of a First
Amendment retaliation claim. Cf. Pinard, 467 F.3d at 759
(holding that students’ refusal to board a school bus was not
protected by the First Amendment, even if expressive con-
duct, because the discipline was upheld under Tinker).
2. Deterrence Effect and Retaliatory Motive
[16] Even assuming Plaintiffs had shown they engaged in
a constitutionally protected activity, their claim would fail
nonetheless because they failed to show that Bennett’s actions
had a retaliatory motive. “In the First Amendment context, a
plaintiff creates a genuine issue of material fact on the ques-
tion of retaliatory motive when he or she produces, in addi-
tion to evidence that the defendant knew of the protected
speech, at least (1) evidence of proximity in time between the
protected speech and the allegedly retaliatory decision, (2)
evidence that the defendant expressed opposition to the
speech or (3) evidence that the defendant’s proffered reason
for the adverse action was false or pretextual.” Pinard, 467
F.3d at 771 (emphasis added).
[17] Plaintiffs have not produced evidence of any of the
three factors. Plaintiffs’ reliance on Sloman v. Tadlock, 21
6476 CORALES v. BENNETT
F.3d 1462 (9th Cir. 1994), is misplaced. There, plaintiffs were
able to demonstrate that the disciplining officer both dis-
agreed with their message and that his claimed reasons for cit-
ing and warning plaintiffs were groundless. Id. at 1469-1470.
In contrast, Plaintiffs here have only produced evidence that
Bennett may have known that the students skipped school to
participate in the protest, but not that he was opposed to that
protest. Bennett imposed discipline two days after the expres-
sive conduct occurred and not in the heat of the moment.
Compare Morse, 127 S. Ct. at 2622 (principal immediately
reacted to student display of banner at Olympic torch relay,
demanding that the banner be taken down and issuing 10-day
suspension the same day). Furthermore, Plaintiffs’ evidence
showing that Bennett generally treated students harshly
undermines any argument that his reason for disciplining the
students was pretextual. Plaintiffs have shown no difference
in Bennett’s treatment of them than any other student he disci-
plined. “Such conclusory allegations, standing alone, are
insufficient to prevent summary judgment.” Sloman, 21 F.3d
at 1474. Accordingly, we conclude that the Plaintiffs have
failed to raise a triable issue of fact as to their First Amend-
ment claim.
B. Substantive Due Process
[18] Substantive due process “forbids the government from
depriving a person of life, liberty, or property in such a way
that ‘shocks the conscience’ or ‘interferes with the rights
implicit in the concept of ordered liberty.’ ” Nunez v. City of
Los Angeles, 147 F.3d 867, 871 (9th Cir. 1998) (quoting
United States v. Salerno, 481 U.S. 739, 746 (1987) (internal
citations omitted)). Plaintiffs argue that Bennett violated the
students’ substantive due process rights by issuing a “true
threat” harsh enough to constitute the crime of child abuse
under Cal. Penal Code §§ 273a(a) or 273a(b),10 which a rea-
10
California Penal Code §§ 273a(a) and 273a(b) read:
CORALES v. BENNETT 6477
sonable jury could find “conscience shocking.” But as noted
above, Bennett’s lecture to the students regarding the legal
consequences of their actions does not constitute a “true
threat” or corporal punishment. Moreover, Plaintiffs have
submitted no evidence showing Bennett willfully inflicted any
unjustifiable pain or mental suffering upon the students. Con-
struing the facts most favorably to Plaintiffs, even if Bennett
called the students “dumb, dumb, and dumber,” told them
they would have to pay a $250 fine, that he was going to
involve the police, and that they would go to juvenile hall,
Plaintiffs have not shown conduct egregious enough to shock
the conscience. See County of Sacramento v. Lewis, 523 U.S.
833, 846-847 (1998); see also, e.g., Brittain v. Hansen, 451
F.3d 982 (9th Cir. 2006) (police officer’s condescending, hos-
tile tone and threats of arrest directed at non-custodial mother
during dispute not conscience-shocking). We affirm the dis-
trict court’s grant of summary judgment to Defendants on
Plaintiffs’ substantive due process claim.11
(a) Any person who, under circumstances or conditions likely to produce
great bodily harm or death, willfully causes or permits any child to suffer,
or inflicts thereon unjustifiable physical pain or mental suffering, or hav-
ing the care or custody of any child, willfully causes or permits the person
or health of that child to be injured, or willfully causes or permits that
child to be placed in a situation where his or her person or health is endan-
gered, shall be punished by imprisonment in a county jail not exceeding
one year, or in the state prison for two, four, or six years.
(b) Any person who, under circumstances or conditions other than those
likely to produce great bodily harm or death, willfully causes or permits
any child to suffer, or inflicts thereon unjustifiable physical pain or mental
suffering, or having the care or custody of any child, willfully causes or
permits the person or health of that child to be injured, or willfully causes
or permits that child to be placed in a situation where his or her person or
health may be endangered, is guilty of a misdemeanor.
11
Plaintiffs agree that our denial of their First Amendment claim neces-
sarily forecloses their substantive due process claim on the grounds of the
alleged free speech violation. See Hufford v. McEnaney, 249 F.3d 1142,
1151 (9th Cir. 2001) (“If, in a § 1983 suit, the plaintiff’s claim can be ana-
6478 CORALES v. BENNETT
C. Equal Protection Claim
[19] Plaintiffs also assert an equal protection claim, alleg-
ing the students were punished disproportionately based on
their Mexican-American ethnicity. There is no evidence in the
record, however, that suggests the students were disciplined
on this basis or that their ethnicity motivated Bennett’s deci-
sions. See Fed.R.Civ.P. 56(e) (“an opposing party may not
rely merely on allegations or denials in its own pleading”).
Plaintiffs argue that this deficiency is due solely to the district
court’s improper grant of summary judgment to Defendants
before they were provided notice and an opportunity to pre-
sent triable issues of fact. This assertion is untenable.
The Defendants’ motion before the district court sought
summary judgment on all claims, on the basis that there was
no genuine issue of material fact and Plaintiffs had failed to
establish all necessary elements of those claims, including
Plaintiffs’ cause of action for violation of civil rights under 42
U.S.C. § 1983. Plaintiffs’ equal protection claim arose under
their § 1983 cause of action. Moreover, Defendants noted in
their motion that “Bennett treated this situation (that of stu-
dents who were found to be truant) the same as any other sim-
ilar situation, without regard to the students’ ethnicity.”
Defendants met their burden for summary judgment. See
Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986) (“burden
on the moving party may be discharged by ‘showing’ — that
is, pointing out to the district court — there is an absence of
evidence to support the non-moving party’s case”). Further-
more, even if the Defendants had not explicitly moved for
lyzed under an explicit textual source of rights in the Constitution, a court
should not resort to the more subjective standard of substantive due pro-
cess.”) (internal citation omitted). Plaintiffs’ family relations substantive
due process claim also fails, as there is no underlying dependent constitu-
tional deprivation. See Smith v. City of Fontana, 818 F.2d 1411, 1419-
1420 (9th Cir. 1987), overruled on other grounds by Hodgers-Durgin v.
de la Vina, 199 F.3d 1037 (9th Cir. 1999).
CORALES v. BENNETT 6479
summary judgment on the equal protection claim, the district
court has the authority to decide an issue on summary judg-
ment sua sponte, if the losing party was on notice to come for-
ward with its evidence. See Celotex, 477 U.S. at 326. The
Defendants moved for summary judgment on all claims,
including those arising out of alleged violations of § 1983,
Plaintiffs attempted to respond to that motion, and Defendants
disclaimed any concession of the equal protection claim in the
Reply Motion, all before argument on the motion before the
district court. Plaintiffs were on notice that the equal protec-
tion claim was at issue and the district court was within its
discretion to grant summary judgment on the claim. We
affirm.
D. Supervisory Liability
“Supervisory liability is imposed against a supervisory offi-
cial in his individual capacity for his own culpable action or
inaction in the training, supervision, or control of his subordi-
nates, for his acquiescence in the constitutional deprivations
of which the complaint is made, or for conduct that showed
a reckless or callous indifference to the rights of others.” Pre-
schooler II v. Clark County Sch. Bd. of Trustees, 479 F.3d
1175, 1183 (9th Cir. 2007) (quoting Menotti v. City of Seattle,
409 F.3d 1113, 1149 (9th Cir. 2005)). In a section 1983 claim,
“a supervisor is liable for the acts of his subordinates ‘if the
supervisor participated in or directed the violations, or knew
of the violations of subordinates and failed to act to prevent
them.” Preschooler II, 479 F.3d at 1182 (quoting Taylor v.
List, 880 F.2d 1040, 1045 (9th Cir. 1989)). “The requisite
causal connection may be established when an official sets in
motion a ‘series of acts by others which the actor knows or
reasonably should know would cause others to inflict’ consti-
tutional harms.” Id. at 1183 (quoting Johnson v. Duffy, 588
F.2d 740, 743 (9th Cir. 1978)).
[20] Plaintiffs argue that, because of Bennett’s previous
disciplinary interactions with students, Principal Kinley had a
6480 CORALES v. BENNETT
duty to investigate, train, and prevent further similar acts by
Bennett. But because Plaintiffs have failed to establish any tri-
able issue of fact as to any of their constitutional claims, a
supervisory claim against Kinley is not sustainable.
E. State-Law Civil Rights Claims
[21] Plaintiffs next allege violations of their rights under
sections 51.7 and 52.1 of California’s civil rights law, the
Unruh Act. We affirm the district court’s grant of summary
judgment on each claim.
California Civil Code section 51.7(a) states in pertinent
part:
All persons within . . . this state have the right to be
free from any violence, or intimidation by threat of
violence, committed against their persons or property
because of political affiliation, or on account of any
characteristic listed or defined in subdivision (b) or
(e) of Section 51, . . . or because another person per-
ceives them to have one or more of those character-
istics.
(emphasis added). Characteristics listed or defined in sections
51(b) or (e) are: sex, race, color, religion, ancestry, national
origin, disability, medical condition, marital status, or sexual
orientation. Cal. Civ. Code § 51(b), (e).
Under the language of the statute, Plaintiffs were required
to present evidence of “violence, or intimidation by threat of
violence,” committed against Plaintiffs on the basis of a pro-
tected ground (here, race or national origin). As previously
discussed in the First Amendment and Equal Protection analy-
sis, the record supports neither requirement and Plaintiffs
claim must fail.
Section 52.1(a) provides a cause of action where “a person
or persons, whether or not acting under color of law, inter-
CORALES v. BENNETT 6481
feres by threats, intimidation, or coercion, or attempts to inter-
fere by threats, intimidation, or coercion, with the exercise or
enjoyment by any individual or individuals” of rights under
federal or state law. Cal. Civ. Code § 52.1. As set forth above,
however, Plaintiffs’ constitutional rights were not violated
and, thus, there is no basis to support Plaintiffs’ cause of
action under § 52.1.
F. State Law Torts
1. Intentional Infliction of Emotional Distress
Plaintiffs next allege that Bennett’s lecture to the students
constituted intentional infliction of emotional distress.
The elements of a prima facie case of intentional
infliction of emotional distress in California are: ‘(1)
extreme and outrageous conduct by the defendant
with the intention of causing, or reckless disregard of
the probability of causing, emotional distress; (2) the
plaintiff’s suffering severe or extreme emotional dis-
tress; and (3) actual and proximate causation of the
emotional distress by the defendant’s outrageous
conduct.’
Tekle v. United States, 511 F.3d 839, 855 (9th Cir. 2007) (as
amended) (quoting Davidson v. City of Westminster, 32 Cal.
3d 197, 209 (1982)) (internal quotation omitted). “Outra-
geous” conduct is that which is “so extreme as to exceed all
bounds of that usually tolerated in a civilized community.”
Tekle, 511 F.3d at 856.
Bennett’s statements in warning the students of the real
consequences of their continued violation of laws he did not
write was not extreme and outrageous conduct. The Plaintiffs’
own expert report states that “[p]art of an educator’s responsi-
bility is to use the decisions made by students as a powerful
learning opportunity to ensure that decisions made later in life
6482 CORALES v. BENNETT
are more thoughtful.” Here, Bennett was faced with the task
of disciplining Anthony, an almost fifteen year-old student
who had already been placed on probation for possessing a
knife at school and who faced a three year sentence in juve-
nile hall for a probation violation. His stern warning, while
perhaps unduly harsh, was not extreme and outrageous.12
Under these circumstances, a decision by this court that
exposes an administrator to liability for sternly warning stu-
dents of the consequences of their continued actions would
severely handicap his or her ability to set children back on the
correct path. This is especially true during the critical middle
school years.
[22] Plaintiffs cite examples of ostensibly similar behavior
that was found to be extreme and outrageous. But these cases
are inapplicable, as each relied on the defendant’s intent to
harm the threatened party. See, e.g., Alcorn v. Anbro Engi-
neering, Inc., 2 Cal.3d 493, 498 (1970) (supervisor shouting
insulting racial epithets and terminating employment to
humiliate plaintiff); Golden v. Dungan, 20 Cal.App.3d 295,
305 (Ct. App. 1971) (process server knowingly and mali-
ciously banging on door at midnight); Agarwal v. Johnson, 25
Cal.3d 932, 947 (1979) (use of racial epithet used with inten-
tion to humiliate and recommendation of termination of
employee on unsupported grounds), overruled on other
grounds by White v. Ultramar, Inc., 21 Cal.4th 563, 574 n.4
(1999). In contrast, Plaintiffs have established no evidence to
suggest that Bennett was motivated by ill will or a desire to
harm the students. Plaintiffs have also not shown that the
“scared” feelings the students felt were measurably different
than those they claimed they had before meeting with Ben-
nett. See supra note 8. Accordingly, we affirm the district
court’s grant of summary judgment to Defendants as to the
claim for intentional infliction of emotional distress.
12
Plaintiffs’ reliance on the statements of district educators and adminis-
trators, who opined that if the students’ version of events were true then
Bennett’s statements were “inappropriate,” does not alter this conclusion.
CORALES v. BENNETT 6483
2. Negligence
Plaintiffs’ final cause of action is for negligence. Plaintiffs
argue that Defendants’ conduct negligently caused Anthony’s
suicide. Under California law, “[t]he elements of negligence
are: (1) defendant’s obligation to conform to a certain stan-
dard of conduct for the protection of others against unreason-
able risks (duty); (2) failure to conform to that standard
(breach of the duty); (3) a reasonably close connection
between the defendant’s conduct and resulting injuries (proxi-
mate cause); and (4) actual loss (damages).” McGarry v. Sax,
158 Cal.App.4th 983, 994 (Ct. App. 2008) (internal quota-
tions omitted). Defendants argue that Anthony’s suicide was
an intervening cause that broke the chain of causation, negat-
ing the element of proximate cause. Generally, an act is an
intervening cause where it is unforeseeable or extraordinary.
See Maupin v. Widling, 192 Cal.App.3d 568, 571 (Ct. App.
1987). Plaintiffs cannot show that Bennett’s harsh lecture
proximately caused Anthony’s death.
Plaintiffs rely on Tate v. Canonica, 180 Cal.App.2d 898(Ct. App. 1960). In that case, the California Court of Appeal
allowed a widow and her children to overcome a demurrer
where her deceased husband allegedly committed suicide
after the defendants harassed, embarrassed, and humiliated
him in the presence of others. Id. at 900. The Tate case pri-
marily addressed situations in which the defendant intended
to cause serious mental distress to the decedent, which is
inapplicable here. The Tate case also addresses negligent acts
that are the proximate cause of suicide, however, setting up a
distinction between situations in which the decedent can con-
trol the impulse to commit suicide, and when he cannot con-
trol that impulse: “where the negligent wrong only causes a
mental condition in which the injured person is able to realize
the nature of the act of suicide and has the power to control
it if he so desires, the act then becomes an independent inter-
vening force and the wrongdoer cannot be held liable for the
death.” Id. at 915.
6484 CORALES v. BENNETT
[23] Although Plaintiffs’ expert report opines on the cause
of Anthony’s suicide, attributing it, through the process of
elimination, to Bennett’s actions, the report does not give an
opinion regarding whether Anthony had an uncontrollable
impulse to commit suicide. Anthony attended classes after his
meeting with Bennett, spoke with Annette and his mother,
and wrote a detailed suicide note before committing suicide.
Thus, the record seems to show he had the opportunity to
appreciate the nature of his actions. Plaintiffs have failed to
establish proximate causation between Bennett’s statements
and Anthony’s suicide. Plaintiffs confuse this issue by argu-
ing that the causation finding supported by their experts show
that Anthony’s death was foreseeable. This argument ignores
the purpose of proximate causation, which seeks to avoid
hindsight bias by limiting causation to those results which
were foreseeable at the time of the action. Because Anthony’s
action in committing suicide was unforeseeable and extraordi-
nary, plaintiffs have failed to raise a triable issue of fact as to
the element of proximate cause. We affirm the district court’s
grant of summary judgment to Defendants as to the negli-
gence claim.
G. Eleventh Amendment and Qualified Immunity
[24] The district court correctly determined that school dis-
tricts in California are immune from § 1983 claims by virtue
of Eleventh Amendment immunity. Belanger v. Madera Uni-
fied Sch. Dist., 963 F.2d 248, 254 (9th Cir. 1992). Plaintiffs
do not contest this assertion. The district court also correctly
found that the same is true of the state civil rights claims
brought in federal court. Stanley v. Trustees of California
State Univ., 433 F.3d 1129, 1134 (9th Cir. 2006) (explaining
that the Unruh Act does not consent to federal court actions).
Eleventh Amendment immunity therefore provides an inde-
pendent legal basis upon which to grant summary judgment
in favor of the school district as to Plaintiffs’ federal and state
civil rights claims.
CORALES v. BENNETT 6485
We need not reach the issue of whether qualified immunity
extends to Bennett and Kinley, as Plaintiffs have raised no tri-
able issue of fact as to whether either Bennett or Kinley vio-
lated the students’ constitutional rights. See Saucier v. Katz,
533 U.S. 194, 201 (2001).
AFFIRMED.