C.R. Ex Rel. Rainville v. Eugene School District 4J

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
C.R., by and through his parents and No. 13-35856
next friends, Mark and Kathryn
Rainville, D.C. No.
Plaintiff-Appellant, CV 12-01042 TC
v.
OPINION
EUGENE SCHOOL DISTRICT 4J, an
Oregon public school district,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Oregon
Thomas M. Coffin, Magistrate Judge, Presiding
Argued and Submitted October 16, 2015
Portland, Oregon
Submission Vacated October 19, 2015
Resubmitted January 19, 2016
Filed September 1, 2016
2 C.R. V. EUGENE SCH. DIST. 4J
Before: A. Wallace Tashima and Carlos T. Bea, Circuit
Judges and Larry A. Burns,* District Judge.
Opinion by Judge Tashima
SUMMARY**
Civil Rights
The panel affirmed the district court’s summary judgment
in favor of the Eugene School District 4J in an action brought
by a middle school student suspended for harassment, who
challenged his suspension under the First Amendment,
arguing that because the harassment occurred off-campus, in
a public park, the school lacked the authority to discipline
him.
The panel held that under the unique facts presented by
this case, the School District had the authority to discipline
plaintiff for his off-campus, sexually harassing speech. The
panel noted that the speech at issue occurred exclusively
between students, in close temporal and physical proximity
to the school, on property that was not obviously demarcated
from the campus itself, and that a school may act to ensure
students are able to leave the school safely without
implicating the rights of students to speak freely in the
*
The Honorable Larry A. Burns, United States District Judge for the
Southern District of California, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
C.R. V. EUGENE SCH. DIST. 4J 3
broader community. The panel further held that the School
District’s decision to suspend plaintiff for two days for sexual
harassment was permissible under Tinker v. Des Moines
Indep. Cmty. Sch. Dist., 393 U.S. 503, 506 (1969)). The
panel concluded that plaintiff’s suspension was permissible
under the First Amendment.
Rejecting plaintiff’s due process claims, the panel held
that taken in the light most favorable to plaintiff, the
uncontroverted facts showed that he was provided the
informal procedures that the Constitution requires for a two-
day, out-of-school suspension. The panel further held that
plaintiff failed to show that he has a substantive due process
interest in maintaining a clean, non-stigmatizing school
disciplinary record.
COUNSEL
Marianne Dugan (argued), Eugene, Oregon, for Plaintiff-
Appellant.
Blake H. Fry (argued), Mersereau Shannon LLP, Portland,
Oregon, for Defendant-Appellee.
Peter D. Hawkes, Lane Powell PC, Portland, Oregon; Kevin
Díaz, ACLU Foundation of Oregon, Inc., Portland, Oregon;
for Amicus Curiae The American Civil Liberties Union of
Oregon.
4 C.R. V. EUGENE SCH. DIST. 4J
OPINION
TASHIMA, Circuit Judge:
C.R., a student in the Defendant Eugene School District
4J (the “School District”), was twelve years old when he was
suspended from Monroe Middle School for sexually
harassing two younger students. The incident that led to his
suspension was the last in an escalating series of encounters
with two younger students at the school. It occurred about
five minutes after school let out, a few hundred feet from
campus. C.R. challenged his suspension in district court
under the First Amendment, arguing that because the
harassment occurred off-campus, in a public park, the school
lacked the authority to discipline him. C.R. also challenged
his suspension on due process grounds. The district court
rejected C.R.’s claims and granted the School District’s
motion for summary judgment.
We have jurisdiction under 28 U.S.C. § 1291, and we
affirm.
I.
C.R. was a seventh-grade student at Monroe Middle
School when the incident at issue occurred. In October 2011,
C.R., along with a few other seventh-grade boys, began
following two sixth-grade students home. The two sixth-
graders, a girl (A.I.) and a boy (J.R.), were both disabled. All
of the children took the same route home: a bike path leading
from the school, across a public park, to a neighboring street.
The park borders the school’s athletic fields, but there is no
visible boundary to indicate where school property ends and
the park begins. On the far side of the park, across from the
C.R. V. EUGENE SCH. DIST. 4J 5
school, is a track belonging to the School District. The
school’s administrators casually refer to the park, track, and
fields collectively as “the back field.”
Over the course of several days, the older boys engaged
in teasing behavior, which quickly escalated. The boys began
by giving the younger students vulgar fake names, like “Ass-
Julio,” and insisting the sixth-graders repeat them. Soon, the
boys’ jokes became sexual in nature. On the day in question,
the group of older boys circled the younger students. The
boys asked the younger students if they watched
pornography. The boys asked if A.I. and J.R. were dating,
and one boy suggested that J.R. take A.I. to the local B.J.’s
Restaurant. This set off a series of comments – puns – on the
similarity between the restaurant’s name and an abbreviation
for the slang term “blowjob,” referring to oral sex. One boy
told the younger students that there was a “really good”
sandwich at B.J.’s that “takes two to eat.” He suggested J.R.
and A.I. try it together.
Tracy Parks, an instructional aide in the School District,
was biking home from school with her daughters when she
rode past the group of students. Parks was a friend of C.R.’s
mother and had known C.R. since he was in kindergarten.
Concerned by the group’s posture, Parks approached. She
noticed that A.I. looked “a little scared.” Parks asked both
A.I. and J.R. if they felt comfortable, and although J.R. said
“yes,” A.I. said “no.” Parks told the boys to leave and walked
the two younger students home. Along the way, A.I.
recounted what had happened, telling Parks that the boys
“were talking about [B.J.’s] restaurant, but she thought it was
[actually] something else.” A.I. repeated to Parks that she
was uncomfortable with what had happened.
6 C.R. V. EUGENE SCH. DIST. 4J
On Monday, Parks called the school to report what she
had seen. Parks spoke with Katherine Kiraly, the school’s
vice principal. Although she did not know the other boys,
Parks told Kiraly that she knew C.R. and could identify him
as a participant. Kiraly conferred with then-principal Peter
Tromba about Parks’ report. She then began an informal
investigation.
Kiraly met first with A.I. and J.R. A.I. recounted the
series of encounters with the older boys, including their use
of vulgar fake names, increasingly sexual comments, and the
B.J.’s puns. She told Kiraly that the final encounter made her
feel unsafe. Kiraly also interviewed J.R., who did not report
feeling uncomfortable during the encounter. Tromba recalled
later overhearing the students discussing the incident at lunch
with their friends, who were upset to hear how A.I and J.R.
had been treated.
Kiraly next interviewed the boys she suspected had been
involved in the incident, including C.R. C.R. denied any
involvement and insisted that nothing inappropriate had
happened. The administrators asked C.R. not to tell the other
boys about the interview. C.R. ignored their request and
discussed his interview at lunch that same day.
The other boys involved in the incident confirmed A.I.’s
story. They admitted making inappropriate comments,
including the B.J.’s puns. The boys were clear that they
intended their comments about B.J.’s to refer to oral sex. The
boys also confirmed that C.R. had participated in the incident,
and at least one indicated that C.R. was the ringleader. Called
in for a second interview, C.R. admitted that he had made a
comment about B.J.’s and that his behavior was
inappropriate. Based on these interviews, administrators
C.R. V. EUGENE SCH. DIST. 4J 7
determined that the incident fell within the School District’s
definition of sexual harassment and that C.R. had participated
in that harassment.
Tromba and Kiraly disciplined all of the boys involved in
the incident, including C.R. In an email, the administrators
informed C.R.’s parents of the basis of that decision: Not
only had C.R. participated in the incident, he also lied to
administrators in his first interview and disobeyed their
request to refrain from discussing the interview with his
friends. Under the School District’s “door-to-door” policy,
the administrators determined that they had the power to
discipline C.R. for his off-campus speech.1 Accordingly, the
school imposed a two-day, out-of-school suspension.
One year later, C.R.’s parents sued the School District on
his behalf, alleging violations of C.R.’s First Amendment and
due process rights.2 The parties filed cross-motions for
summary judgment. The district court granted summary
judgment to the School District and denied C.R.’s cross-
motion for summary judgment. C.R. timely appealed.
1
The parties dispute whether C.R. waived his arguments under Monell
v. Department of Social Services of the City of New York, 436 U.S. 658(1978), that school administrators acted pursuant to the School District’s
policy, custom, or practice when it suspended C.R., precluding him from
pursuing his claims against the School District. See Lytle v. Carl,
382 F.3d 978, 982 (9th Cir. 2004). Having reviewed the summary
judgment papers, we are satisfied that C.R. sufficiently raised the issue.
Because the cover of the student handbook defining the door-to-door
policy is labeled “Eugene School District 4J,” we further conclude that
C.R. has adequately shown that administrators disciplined him pursuant
to a School District policy.
2
C.R. also brought several state-law causes of action that are not at issue
in this appeal.
8 C.R. V. EUGENE SCH. DIST. 4J
II.
The parties do not dispute the basic facts of the case, as
outlined above. Both parties generally agree that a group of
boys, including C.R., surrounded A.I. and J.R. in a public
park, several hundred feet from the school’s property line,
and made a series of comments to the younger students about
B.J.’s Restaurant. Where, as here, the underlying facts are
not in dispute, “the only question . . . is whether the district
court correctly applied the law.” Universal Health Servs.,
Inc. v. Thompson, 363 F.3d 1013, 1019 (9th Cir. 2004). We
review the district court’s grant of summary judgement de
novo. Szajer v. City of L.A., 632 F.3d 607, 610 (9th Cir.
2011). We may affirm the grant of summary judgment on
any ground supported by the record. Video Software Dealers
Ass’n v. Schwarzenegger, 556 F.3d 950, 956 (9th Cir. 2009).
C.R. attempts to cast the school’s characterization of the
incident as sexual harassment as a factual dispute, requiring
reversal of summary judgment. It is not. Federal courts owe
significant deference to a school’s interpretation of its own
rules and policies. See Bd. of Educ. of Rogers, Ark. v.
McCluskey, 458 U.S. 966, 970 (1982); Wood v. Strickland,
420 U.S. 308, 326 (1975). We uphold a school’s disciplinary
determinations so long as the school’s interpretation of its
rules and policies is reasonable, and there is evidence to
support the charge. See McCluskey, 458 U.S. at 970; Wood,
420 U.S. at 326. The School District’s policy defines sexual
harassment to include “verbal . . . conduct of a sexual nature”
including “sex-oriented verbal kidding, teasing, or jokes.”
Eugene School District 4J, Student Rights & Responsibilities
Handbook (2008). As described above, the school
administration’s investigation uncovered at least some
evidence that C.R. participated in sexually suggestive joking
C.R. V. EUGENE SCH. DIST. 4J 9
directed at A.I. and J.R. The School District’s
characterization of this behavior as sexual harassment in its
Student Handbook is reasonable. Thus, we defer to the
School District’s determination that C.R. participated in
sexual harassment.
III.
We begin by summarizing the framework for analyzing
school regulation of student speech under the First
Amendment. To determine whether a school properly
disciplined a student for off-campus speech requires us to
answer two questions: First, we consider the threshold
question of whether the school could permissibly regulate the
student’s off-campus speech at all. Next, we consider the
question of whether the school’s regulation of the student’s
speech complied with the First Amendment’s requirements.
We conclude that C.R.’s suspension was permissible under
the First Amendment.
A. First Amendment Framework: School Regulation
of Student Speech
“[S]tudents in public schools do not ‘shed their
constitutional rights to freedom of speech or expression at the
schoolhouse gate.’” Chandler v. McMinnville Sch. Dist.,
978 F.2d 524, 527 (9th Cir. 1992) (quoting Tinker v. Des
Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506 (1969)).
At the same time, “[t]he First Amendment rights of public
school students ‘are not automatically coextensive with the
rights of adults in other settings.’” Id. (quoting Bethel Sch.
Dist. No. 403 v. Fraser, 478 U.S. 675, 682 (1986)). The
“basic educational mission” of the school may at times
conflict with the speech rights of its students. Fraser,
10 C.R. V. EUGENE SCH. DIST. 4J
478 U.S. at 685. Thus, our precedent recognizes that
“[s]chools must achieve a balance between protecting the
safety and well-being of their students and respecting those
same students’ constitutional rights.” LaVine v. Blaine Sch.
Dist., 257 F.3d 981, 987 (9th Cir. 2001) (citing Karp v.
Becken, 477 F.2d 171, 174 (9th Cir. 1973)).
The Supreme Court has outlined four types of student
speech that schools may restrict, each governed by its own
lead case: “(1) vulgar, lewd, obscene, and plainly offensive
speech is governed by Fraser; (2) school-sponsored speech
is governed by Hazelwood [School District v. Kuhlmeier,
484 U.S. 260 (1988)];” (3) “speech promoting illegal drug
use” is governed by Morse v. Frederick, 551 U.S. 393 (2007);
and (4) “speech that falls into [none] of these categories’ is
governed by Tinker.” Wynar v. Douglas Cty. Sch. Dist.,
728 F.3d 1062, 1067 (9th Cir. 2013) (internal citations and
quotation marks omitted). Each of these leading cases,
however, concerns only a school’s ability to regulate
students’ on-campus speech. Whether and how these
precedents apply to off-campus speech are questions the
Supreme Court has yet to answer. See Morse, 551 U.S. at
401.
We have twice considered whether schools may regulate
students’ off-campus speech. Both times, we concluded that
the school’s regulation was permissible. Wynar, 728 F.3d at
1072; LaVine, 257 F.3d at 989.
In LaVine, a high school student wrote a poem from the
perspective of a school shooter. Id. at 983–84. Two or three
months after he wrote the poem, the student rediscovered it
in his living room and brought it to school for his teacher’s
feedback. Id. at 984. The teacher was disturbed by the poem
C.R. V. EUGENE SCH. DIST. 4J 11
and shared it with the school’s administration, who decided
to “emergency expel” the student out of caution. Id. at
984–86. The student sued the school, alleging a First
Amendment violation. Id. at 986. We held that the school
did not violate the student’s free speech rights when it
expelled him based on the poem’s violent content. Id. at 992.
Although we did not explicitly address the poem’s off-
campus origin, we later interpreted LaVine to stand for the
proposition that while “the location of the speech can make
a difference . . . not . . . all off-campus speech is beyond the
reach of school officials.” Wynar, 728 F.3d at 1068.
In Wynar, a student was expelled for a series of messages
threatening to commit a school shooting, sent to friends via
the social website MySpace. Id. at 1065–66. The messages
were written and sent from the student’s home computer after
school hours. Id. Nevertheless, we concluded that the school
did not violate the student’s First Amendment rights when it
suspended him. Id. at 1070. We held that, “when faced with
an identifiable threat of school violence, schools may take
disciplinary action in response to off-campus speech . . . .”
Id. at 1069.
Wynar identified two tests used by our sister circuits to
determine when a school may regulate off-campus speech. In
Kowalski v. Berkeley County Schools, 652 F.3d 565 (4th Cir.
2011), the Fourth Circuit applied a “nexus” test, asking
whether a student’s off-campus speech was tied closely
enough to the school to permit its regulation. Id. at 573. In
S.J.W. v. Lee’s Summit R–7 School District, 696 F.3d 771(8th Cir. 2012), the Eighth Circuit applied a test asking
whether it was “reasonably foreseeable” that off-campus
speech would reach the school. Id. at 777. “[R]eluctant to try
and craft a one-size fits all approach,” Wynar declined to
12 C.R. V. EUGENE SCH. DIST. 4J
choose between these tests, holding that both were satisfied
in the case of a threatened school shooting. Wynar, 728 F.3d
at 1069.3
More recently, the Fifth Circuit en banc also held that
schools may sometimes discipline students for off-campus
speech. See Bell v. Itawamba Cty. Sch. Bd., 799 F.3d 379(5th Cir. 2015) (en banc). In Bell, a student was disciplined
for uploading a rap video containing vulgar and arguably
threatening lyrics to the websites Facebook and YouTube. Id.
at 383. The student recorded and uploaded the video at
home. Id. Even so, the court concluded that the school
permissibly regulated the student’s speech. Id. at 400. In
reaching its decision, the court declined “to adopt or reject
approaches advocated by other circuits,” instead holding that
a school may regulate students’ off-campus speech “when a
student intentionally directs at the school community speech
reasonably understood by school officials to threaten, harass,
and intimidate a teacher . . . .” Id. at 396. Whatever the legal
test ultimately applied, courts consistently engage in a
circumstance-specific inquiry to determine whether a school
permissibly can discipline a student for off-campus speech.
Once the court has determined that a student’s off-campus
speech was susceptible to regulation by the school, we apply
Tinker to evaluate the constitutionality of the school’s
imposition of discipline. See Wynar, 728 F.3d at 1070–71;
3
Wynar noted that, in Wisniewski v. Board of Education of the
Weedsport Central School District, 494 F.3d 34 (2nd Cir. 2007), the
Second Circuit also considered the question of discipline for off-campus
student speech. That court declined to decide whether to apply the Eight
Circuit’s “reasonably foreseeable” test or its own variation of that test.
See Wynar, 728 F.3d at 1068 (discussing Wisniewski, 494 F.3d at 39).
C.R. V. EUGENE SCH. DIST. 4J 13
LaVine, 257 F.3d at 992. “Under Tinker, schools may restrict
speech that ‘might reasonably lead school authorities to
forecast substantial disruption of or material interference with
school activities’ or that collides ‘with the rights of other
students to be secure and to be let alone.’” Wynar, 728 F.3d
at 1070 (quoting Tinker, 393 U.S. at 508, 514). Thus, for its
actions to survive First Amendment scrutiny, the School
District must show both that it had the authority to reach
C.R.’s off-campus speech and that the imposition of
discipline complied with Tinker.
B. The School District Had the Authority to
Discipline C.R. for His Off-Campus, Sexually
Harassing Speech
We have not yet considered whether a school may
discipline a student for off-campus sexual harassment. Nor
are there any directly analogous decisions from any other
circuit. Rather, the vast majority of the law in this area
concerns school officials’ authority to discipline students for
internet speech. In this case, nothing was put into writing,
and the students’ speech was never shared online; the
offending comments were made in person, just as school was
letting out, a few hundred feet from the school’s property
line.
We follow Wynar in applying both the nexus and
reasonable foreseeability tests to C.R.’s speech. We conclude
that under either test, the School District had the authority to
discipline C.R. for his off-campus speech.
14 C.R. V. EUGENE SCH. DIST. 4J
1. Nexus
Although the harassment at issue in this case took place
off school property, it was closely tied to the school. First, all
of the individuals involved were students, a fact that typically
counsels in favor of finding that a student’s speech was
susceptible to school discipline. See Wynar, 728 F.3d at 1069
(finding school showed nexus in part because all individuals
involved were students); Kowalski, 652 F.3d at 573 (same).
Next, the incident took place on a path that begins at the
schoolhouse door. The path then runs from the school’s
fields across a public park that shares a boundary with school
property, before eventually meeting a neighboring street. A.I.
and J.R. had not yet reached the street when the older boys
caught up to them. As a result, the students were only a few
hundred feet from the school door when the harassment
began. Moreover, while the park is technically city property,
it is referred to by school administrators as part of “the back
field.” There is no visual marker (i.e., a fence or other
boundary) to indicate where school property ends and the city
park begins; it is therefore unclear whether the students even
recognized that they had left school property.
Furthermore, all of the students had been let out of school
just minutes before the incident. The school’s schedule thus
brought the students together on the bike path. Had all of the
students not been released from school at the same time and
walked home along the same path, the older students would
not have had the same opportunity to sexually harass the
younger students. The record does not reflect whether there
were alternative routes home available to the younger
students, but it is clear that it was school itself that brought
the children together on the path. Moreover, it is a reasonable
exercise of the School District’s in loco parentis authority to
C.R. V. EUGENE SCH. DIST. 4J 15
be concerned with its students’ well being as they begin their
homeward journey at the end of the school day. See Fraser,
478 U.S. at 684; Veronica Sch. Dist. 47J v. Acton, 515 U.S.
646, 654–56 (1995) (collecting cases).
2. Reasonable Foreseeability
Because the harassment happened in such close proximity
to the school, administrators could reasonably expect the
harassment’s effects to spill over into the school environment.
Simply seeing their harassers in the hallway could well be
disruptive for affected students. Similarly, a student who is
routinely subject to harassment while walking home from
school may be distracted during school hours by the prospect
of the impending harassment. A student’s ability to focus
during the day could be impaired by intrusive worries about
whether she or he would once again face uncomfortable and
sexually intimidating comments immediately after school lets
out.
Administrators could also reasonably expect students to
discuss the harassment in school. Indeed, A.I. was upset
enough about the incident to discuss it with her friends in the
lunch room. And administrators likely could not disregard
the possibility that the older students would continue to
harass their targets if they encountered one another in the
hallways or the school yard. Because the harassment in this
case was so closely connected to campus – on the students’
walk home, a few hundred feet from the school, immediately
after school let out – administrators could reasonably expect
that the effects of the speech would extend to the students’ in-
school experience. Cf. Kowalski, 652 F.3d at 573 (“[Plaintiff]
also knew . . . that the fallout from her conduct and the speech
16 C.R. V. EUGENE SCH. DIST. 4J
within the [MySpace page] would be felt in the school
itself.”).
Under either the nexus test or the reasonable
foreseeability test, the School District could take reasonable
disciplinary action against C.R.’s off-campus speech.
C.R. contends that finding for the School District on this
point would dangerously expand its reach, permitting schools
to regulate student speech in public places, like a shopping
mall, bookstore, or movie theater, where children might stop
on the way home from school. But we do not hold that either
test extends the school’s authority so far – that is a question
for another day.4
Our decision is necessarily restricted to the unique facts
presented by this case: The speech at issue occurred
exclusively between students, in close temporal and physical
proximity to the school, on property that is not obviously
demarcated from the campus itself. A school may act to
ensure students are able to leave the school safely without
implicating the rights of students to speak freely in the
broader community. In short, the School District’s actions
were reasonable under Wynar. For all of the foregoing
4
It suffices for now to observe that, typically, malls, bookstores, and
movie theaters are located more than a few hundred feet from the
schoolhouse door. And unlike the field next to the school, such venues are
unlikely to be confused with school property. Presumably, students also
would have more options to avoid any such place of suspected harassment
or could ask an older sibling or parent to accompany them there. Unlike
in this case, the school’s schedule would not directly lead to the students’
encounter. Both Wynar tests rely on the speech’s close connection with
the school to permit administrative discipline. That connection is missing
in the scenarios C.R. conjures.
C.R. V. EUGENE SCH. DIST. 4J 17
reasons, we conclude that the School District had the
authority to discipline C.R. for his off-campus, sexually
harassing speech.
C. C.R.’s Suspension Was Permissible Under Tinker
Tinker permits schools to restrict student speech in two
broad sets of circumstances: if the speech “might reasonably
lead school authorities to forecast substantial disruption of or
material interference with school activities,” or, alternatively,
if the speech “collides ‘with the rights of other students to be
secure and to be let alone.’” Wynar, 728 F.3d at 1070
(quoting Tinker, 393 U.S. at 508, 514). The School District’s
decision to discipline C.R. falls squarely within Tinker’s
second set of circumstances.
“The precise scope of Tinker’s interference with the rights
of others language is unclear.” Wynar, 728 F.3d at 1072
(quoting Saxe v. State Coll. Area Sch. Dist., 240 F.3d 200,
217 (3rd Cir. 2001)). We have held, however, that speech
that “is merely offensive to some listener” is not sufficient,
and does not fall within Tinker’s scope. Id. Sexually
harassing speech is more than that. In Wynar, we held that
MySpace messages threatening a school shooting “represent
the quintessential harm to the rights of other students to be
secure.” Id. Almost by definition, the speaker’s explicit,
physical threat prevented the targeted students from feeling
safe in school.
Sexual harassment also implicates the rights of students
to be secure. Such harassment is harmful because it positions
the target as a sexual object rather than a person, threatening
the individual’s sense of physical, as well as emotional and
psychological, security. Often, the threat of an unwanted
18 C.R. V. EUGENE SCH. DIST. 4J
physical intrusion is implicit even within the context of
purely verbal sexual harassment. Schools therefore must
have the authority to discipline students for engaging in
sexually inappropriate and harassing speech. Cf. Fraser,
478 U.S. at 685 (“We hold that [the] School District acted
entirely within its permissible authority in imposing sanctions
upon [a student] in response to his offensively lewd and
indecent speech.”).
The facts of this case illustrate the point. Both of the
targeted students were unable to return home after school
without being subjected to questions about sex acts and
whether they were dating – inappropriate and unsettling
questions for students just out of elementary school.
Unsurprisingly, A.I. reported feeling scared and
uncomfortable after the encounter. The school could
therefore reasonably expect that those feelings would cause
A.I. to feel less secure in school, affecting her ability to
perform as a student and engage appropriately with her peers.
Moreover, the harassment had already begun to escalate from
the repetition of curse words to sexual comments directed at
the victims. The school could reasonably expect the
harassment to escalate further if allowed to continue
unchecked. Without intervening administrative action, the
younger students would be deprived of their right to be secure
at school.
The targeted students’ age is also relevant to the analysis.
The Supreme Court has recognized that overtly sexual speech
“could well be seriously damaging to its less mature
audience” when that audience was younger than 14 years old
“and on the threshold of awareness of human sexuality.” Id.
at 683; see also Davis ex rel. LaShonda D. v. Monroe Cty. Bd.
of Educ., 526 U.S. 629, 649 (1999) (noting that, when it
C.R. V. EUGENE SCH. DIST. 4J 19
comes to student sexual harassment, grade schools may
exercise a greater degree of control over student speech than
colleges). Because C.R.’s speech interfered with the younger
students’ rights to be secure and let alone, we conclude that
his suspension was permissible under Tinker.5
In sum, we conclude: First, the district court correctly
held that the School District could discipline C.R. for his off-
campus speech. Second, the School District’s decision to
suspend C.R. for two days for sexual harassment was
permissible under Tinker. Sexually harassing speech, by
definition, interferes with the victims’ ability to feel safe and
secure at school. The district court did not err in granting
summary judgment to the School District on C.R.’s First
Amendment claims.
IV.
C.R.’s due process claims also fail.
A. Procedural Due Process
The Constitution requires only informal procedures when
schools suspend students for ten days or fewer. “[T]he
5
The School District’s disciplinary action may also have been
permissible under the Tinker test’s “substantial disruption” language. See
Kowalski, 652 F.3d at 574 (holding that “schools have a compelling
interest in regulating speech that interferes with or disrupts the work and
discipline of the school, including . . . student harassment and bullying,”
and that interest justifies punishing off-campus sexual harassment under
Tinker in order to provide “a safe school environment conducive to
learning” (internal quotation marks omitted)). Because we conclude that
the School District’s disciplinary action falls within the Tinker test’s
“rights of others” language, however, we do not reach this issue.
20 C.R. V. EUGENE SCH. DIST. 4J
student [must] be given oral or written notice of the charges
against him and, if he denies them, an explanation of the
evidence the authorities have and an opportunity to present
his side of the story.” Goss v. Lopez, 419 U.S. 565, 581
(1975). The school need not outline specific charges and
their potential consequences or notify parents of the charges
prior to the student’s suspension. Wynar, 728 F.3d at
1072–73. “In the great majority of cases the disciplinarian
may informally discuss the alleged misconduct with the
student minutes after it has occurred.” Goss, 419 U.S. at 582.
We require “only that, in being given an opportunity to
explain his version of the facts at this discussion, the student
first be told what he is accused of doing and what the basis of
the accusation is.” Id.It is undisputed that, in his interviews, C.R. received
informal notice of the charges against him and an opportunity
to tell his side of the story. C.R. testified that Kiraly and
Troma expressed concern about the way A.I. and J.R. had
been treated and suspicion that the younger students had been
harassed, before asking C.R. for “the whole story.” Taken in
the light most favorable to C.R., the uncontroverted facts
show that he was provided those informal procedures that the
Constitution requires for a two-day, out-of-school suspension.
C.R. contends that the school did not provide him with
sufficient notice of the specific nature of the allegations, or of
how his conduct violated the school rules. It is not
constitutionally required that the school inform a student of
the specific rules or policies he allegedly violated. Wynar,
728 F.3d at 1073. Accordingly, the school also need not take
the extra step of informing the student exactly how his
conduct violated the specific rules at issue – no bill of
particulars is required. C.R. further contends that the school
C.R. V. EUGENE SCH. DIST. 4J 21
did not provide him an adequate opportunity to gather
relevant evidence to rebut the school’s charges. This, too, is
not constitutionally required. Goss, 419 U.S. at 582.
Finally, C.R. contends that the school violated his
procedural due process rights by not following its own
policies regarding suspension. However, school
administrators’ “purported failure to comply with their own
administrative procedure does not, itself, constitute a
violation of constitutional due process.” Wynar, 728 F.3d at
1073. Thus, even assuming that C.R. is correct that the
School District did not follow its own procedures for issuing
a suspension in his case, he still cannot state a claim for
deprivation of procedural due process on this basis. The
district court thus correctly concluded that the School District
afforded C.R. all the process that he was due.
B. Substantive Due Process
C.R. contends that the school violated his substantive due
process rights when it recorded the reason for his suspension
as “harassment - sexual.”6 According to C.R., the stigma
from this label was so strong that he was deprived of his right
to a good reputation.
C.R. fails to show that he has a substantive due process
interest in maintaining a clean, non-stigmatizing school
disciplinary record. “Substantive due process refers to certain
6
After being suspended for sexual harassment, C.R. was later suspended
for stealing office supplies. The discipline record (somewhat
dramatically) refers to the incident as “theft - major.” C.R. included this
designation in his substantive due process claim and the following
discussion applies equally to both record designations.
22 C.R. V. EUGENE SCH. DIST. 4J
actions that the government may not engage in, no matter
how many procedural safeguards it employs.”
Wedges/Ledges of Cal. v. City of Phoenix, Ariz., 24 F.3d 56,
66 (9th Cir. 1994) (quoting Blaylock v. Schwinden, 862 F.2d
1352, 1355 (9th Cir. 1988)). Generally speaking, substantive
due process protects an individual’s fundamental rights to
liberty and bodily autonomy. See, e.g., Lawrence v. Texas,
539 U.S. 558, 564 (2003); Roe v. Wade, 410 U.S. 113, 168
(1973) (Stewart, J., concurring); Loving v. Virginia, 388 U.S.
1, 12 (1967). Here, no fundamental rights are at stake. There
is no reason why a school should not be permitted to record
the reason for a student’s suspension, however unsavory, so
long as it applied the appropriate procedural safeguards while
pursuing its investigation. C.R. fails to raise any viable
substantive due process claim.7
V.
In our digital age, a school’s power to discipline students
for off-campus speech has become an increasingly salient
question for the courts. This case, however, presents us with
7
C.R. also contends that the district court erred in dismissing his motion
to compel further discovery as moot, once it had ruled on the cross-
motions for summary judgment. We will not disturb such a denial of
discovery “except upon the clearest showing that the denial . . . results in
actual and substantial prejudice . . . .” Laub v. U.S. Dep’t of the Interior,
342 F.3d 1080, 1085, 1093 (9th Cir. 2003) (internal quotation marks
omitted). C.R. did not file his motion to compel until two months after the
expiration of the discovery cutoff date and more than a month after he
filed his own motion for summary judgment. The motion was, therefore,
untimely, and the district court had no obligation to consider it. See
Laborde v. Regents of the Univ. of Cal., 686 F.2d 715, 719 (9th Cir. 1982).
Moreover, C.R. made no showing that he suffered any prejudice as a result
of the ruling. We thus conclude that the district court did not abuse its
discretion in dismissing C.R.’s motion as moot.
C.R. V. EUGENE SCH. DIST. 4J 23
an analog problem: Whether the School District overstepped
its authority when it disciplined C.R. for engaging in sexual
harassment a few hundred feet from the school’s physical
boundaries, a few minutes after class let out. Under this set
of facts, we conclude that C.R.’s speech was tied closely
enough to the school to subject him to the school’s
disciplinary authority. As imposed by the school, that
discipline complied with the requirements of Tinker. Finally,
we conclude that the School District afforded C.R. all of the
process the Constitution requires.
The district court’s order granting the School District’s
motion for summary judgment and denying C.R.’s cross-
motion for summary judgment, and its order dismissing the
action are
AFFIRMED.