Jamshidnejad v. Central Curry School District

EDMONDS, P. J.,

concurring in part, dissenting in part.

I agree with the majority’s disposition of all of plaintiffs claims with the exception of its reversal of summary judgment on plaintiffs claim under 42 USC section 1983 that the school district violated his freedom of expression under the First Amendment to the United States Constitution when it sent him home from school for his involvement in the preparation and circulation of petitions asserting that one of his middle school teachers was the “devil.” I would hold that, based on the evidence before it, the school district acted constitutionally because plaintiffs expression adversely affected or could have disrupted the educational mission of his school.

This case comes to us on appeal from the grant of summary judgment by the trial court under ORCP 47 C. That rule provides that a court is authorized to enter summary judgment on behalf of a party if “there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Factual disputes that are not material to a judgment as a matter of law do not preclude summary judgment under the rule. Here, while there are reasonable competing inferences as to whether plaintiff was, in fact, suspended from school because of his involvement with the petitions, there is, based on his own admissions, no genuine issue of material fact regarding the entitlement of the school district to lawftdly discipline him, including suspending him from school.

To preclude summary judgment, the governing law required plaintiff to make out a legally cognizable section 1983 claim that the school district violated his protected right of free speech under the First Amendment. Plaintiff makes the following allegations in that regard:

“5

“On or about March 19, 2001, plaintiff was questioned by police and Mr. Tom Denning, Principal of Riley Creek School, regarding bis knowledge of a petition in which a teacher was identified as ‘the Devil.’

“6

“At the end of this interview, Plaintiff was summarily suspended from attending school for the remainder of the week, a period of 4 days. No written notice was provided to Plaintiff’s parents and no opportunity for a hearing on the matter was provided.

“7

“Plaintiff was accused, during the interview, of signing the petition and having assisted in writing a portion of said petition. There were no advocations of violence or disobedience in the petition. The petition had been written approximately 5 months prior to its discovery by school administration.

“8

“Plaintiff was sanctioned for his participation in writing/ signing the petition.”

Defendants moved for summary judgment regarding plaintiffs allegations, relying, in part, on evidence that plaintiff admitted that he participated with another student (J) in drafting the petitions, admitted to authoring a document containing a number of names for the devil intended to be included with the circulation of the other petitions, admitted that he was with J when classmates were approached to sign the petitions, and admitted to personally signing the petitions. Plaintiff responded to defendants’ evidence with his own affidavit, in which he averred, in part:

“I wrote a number of synonyms or names for the devil. * * * I did not publish, post or otherwise circulate this piece of paper anywhere except with [J]. This document was included with a number of petitions drafted at least in part by [J].”

Later in his affidavit, plaintiff averred, “I did not write any petition. I ‘signed’ the petitions.”

In other words, plaintiff effectively conceded at the time of summary judgment that he was — at least to some extent — a co-actor with J, but he claimed, nonetheless, that his actions constituted protected expression. Consequently, whatever issues of fact there are about the extent of plaintiffs involvement, it is uncontradicted that his actions went beyond expressing his personal opinion. It is also uncontradicted that the district had evidence at the time of the alleged suspension that some students and the teacher named in the petitions were affected by the petitions.¹ The police interviewed a number of students and reported to the district that there were four students interviewed who said that they were coerced by J into signing the petitions. There is also no question of fact regarding the content of the petitions that were circulated. Copies of the petitions were made part of the record, and their contents speak for themselves. Besides plaintiffs list of synonyms for the devil, the petitions, in substance, name a specific teacher, single her out, proclaim that “we will agree that she is the devil,” list “all the people who hate her,” and provide that those who do not sign the petitions “are subjected to be beaten till you turn blue and black.”

Based on those uncontradicted facts in the summary judgment record demonstrating plaintiffs participation with J, the only remaining question is a legal one: whether the contents of the petitions, including the part authored personally by plaintiff, are protected expression in a school setting under the First Amendment. We decided a similar issue in Pangle v. Bend-LaPine School District, 169 Or App 376, 10 P3d 275 (2000), rev den, 332 Or 558 (2001), in which a school district disciplined a student for writing articles in a publication that he circulated to fellow students on his high school campus. In resolving that issue, we turned to United States Supreme Court precedent and derived from those cases the following bright-line principles. First, students do not lose their constitutional right to freedom of speech merely because they express themselves in a school environment. However, the First Amendment rights of students to express themselves in a school environment are not automatically coextensive with the rights of adults in other settings. Rather, such rights exist in light of the special characteristics of the school environment. Tinker v. Des Moines Independent Community School Dist., 393 US 503, 506, 89 S Ct 733, 21 L Ed 2d 731 (1969). Thus, it follows that students cannot be “punished merely for expressing their personal views on the school premises * * * unless school authorities have reason to believe that such expression will ‘substantially interfere with the work of the school or impinge upon the rights of other students.’ ” Hazelwood School District v. Kuhlmeier, 484 US 260, 266, 108 S Ct 562, 98 L Ed 2d 592 (1988) (quoting Tinker, 393 US at 509). On the other hand, “[a] school need not tolerate student speech that is inconsistent with its basic educational mission, even though the government could not censor similar speech outside the school.” Id. (internal quotation marks and citation omitted).

When the same principles are applied to this case, it becomes clear that plaintiffs expression, made in a school environment, was not protected expression under the First Amendment. The test is one of the objective reasonableness of the school district’s disciplinary action. Framed properly, the question is whether the school district had reason to believe, based on the information in its possession at the time that it took its action, that plaintiffs expression in conjunction with that of his coactor disrupted or potentially could have disrupted the middle school’s educational mission for its students. With that focus in mind, the most obvious characteristic of plaintifPs expression was that it went beyond the expression of plaintifPs personal opinion about his teacher on school grounds. Rather, the district could reasonably believe that plaintifPs expression was aimed at encouraging other students to express hatred for an authority figure in the school and to declare her to be the “devil.” The petitions informed other students that they could suffer the consequence of being “beaten till you turn blue and black” in the event of their failure to sign the petitions.² Whether the petitions were intended to be a joke, as plaintiff later claimed, or were intended to promote verbal abuse and disrespect for their teacher, the potential disruptive effect of plaintifPs expression on the school’s educational mission is the same.³ Based on the information that it had at the time, the school district had reason to be believe that plaintifPs expression could substantially interfere with the work of the school and impinge upon the rights of other students to be free from disruptive influences on their own academic pursuits.⁴ It follows that the trial court correctly granted summary judgment on plaintiff s section 1983 claim, as well as on his other claims.

Apparently, the majority and I arrive at different legal conclusions because we apply different standards of review to the contents of the summary judgment record. The majority sifts through the summary judgment record with lawyer-like deftness and seizes on issues of fact, that in its view, create jury questions and therefore preclude summary judgment. Those issues of fact cause it to conclude that the record is unclear about “the speech that defendant reacted to.” 198 Or App at 521. It explains, “Put another way, a finder of fact could conclude that, at the time defendant suspended plaintiff, defendant knew only that plaintiff had provided the petition’s author with an unused and undisclosed list of synonyms for the word ‘devil.’ ” 198 Or App at 522.

As a matter of law, there are at least two layers of standards of review that must be applied in this case. The first layer concerns a substantive rule of law and focuses on the information available to the district at the time it made its alleged decision to suspend plaintiff. The question is not what a factfinder could find at trial was plaintiffs actual involvement, but whether there was information reported to the school district at the time that could lead it to reasonably believe that plaintiff was involved with J in the reported misconduct. Plaintiff does not contest that the district received a police report before it allegedly suspended plaintiff that memorialized an investigation about whether students had been coerced into signing petitions calling for the removal of the school principal and a teacher. According to the report, during a meeting with “the involved students,” “it was learned [J] and plaintiff were the two that created the documents” and that “[b]oth boys stated that they meant no harm in the petitions.” Plaintiff was also interviewed and made the following statements to the police investigator:

“[J] wrote all the documents.

“I helped [J] with them.

“[J] wrote them though, I did not.

“I wrote the Devil names.”

The police report also related a conversation that occurred with plaintiff when his father was present. According to the report, “[plaintiff] stated he was present when [J] wrote the petitions, but did not participate in the writing of them. [Plaintiff] stated that J was behind all of this.”

In addition to the information in the police report, the trial court had before it the evidence from the affidavits of the parties, which purported to frame contested and uncontested issues of fact. Plaintiffs affidavit filed in the summary judgment proceeding did not controvert the statements in the district’s affidavit that he participated with J in drafting the petitions, that the fist of the names for the devil was intended to be included in the circulation of the petitions to other students, that he signed the petitions himself, and that he was with J when they solicited classmates to sign the petitions. Rather, he said that he “did not publish, post or otherwise circulate this piece of paper [the list of names for the devil] anywhere except with [J].” (Emphasis added.) He also admitted in his affidavit that the list he wrote “was included with a number of petitions drafted at least in part by [J],” and he reiterated his position that he did not write the petitions.

ORCP 47 C is the governing procedural rule of law in this case, and thus provides another layer of review. It operates by precluding summary judgment when there exist genuine issues of material fact, providing, in part, that “[n]o genuine issue as to a material fact exists if, based upon the record before the court viewed in a manner most favorable to the adverse party, no objectively reasonable juror could return a verdict for the adverse party on the matter that is the subject of the motion for summary judgment.” Thus, under the rule, plaintiffs concessions as to the extent of his participation with J are viewed in the manner most favorable to him. But even so, his concessions amount to admitted participation with J in the preparation and circulation of petitions, including the list that he personally prepared. No reasonable factfinder could find otherwise on this record. In that light, the legal question whether the district had reason to believe at the time that it disciplined plaintiff that his expression had interfered with, or could have substantially interfered with, the educational mission of the school or had impinged or could have impinged on the rights of other students is easily answered. In sum, the factual disputes plucked from the record by the majority do not create a genuine issue of material fact because of plaintiffs concessions regarding his participation with J.

I dissent.

1 After the principal found the petitions in J’s possession, he showed them to the teacher named in the petitions. After reading them, she left school crying.

2 Plaintiff was asked dining his deposition whether he was trying to redress a grievance with his teacher by participating in the preparation and circulation of the petitions. He answered, “ I don’t believe so.” He was also asked if he was trying to effect some change in school policy by his actions by signing the petitions. He responded, “I don’t believe so.”

3 It is not necessary that expression be defamatory, threatening, obscene, or provocative for it to interfere with the educational mission of a school environment. For instance, the inoffensive “passing of notes” among students in a middle school classroom during class is the kind of expression that could reasonably be potentially disruptive to an environment meant to be conducive to learning and therefore constitutionally subject to discipline under the applicable law.

4 At a minimum, plaintifPs expression aided in the disruption of the school’s educational mission for J.