By Cara H. Wright, Esq. Adjunct Professor at Trinity
PARTIES
The Plaintiff in this case is Raymond Foote, Sr., (“Plaintiff”) grandfather of student T.F., who attended a public school in Defendant, Whitehall Central School District (“School District”). Defendant Patrick Dee (“Defendant Dee”) is the current Superintendent for the School District. Defendant, Ethan Burgess (“Defendant Burgess”) is the current Principal of the school where the incident occurred. Defendant Keith Redmond (“Defendant Redmond”) is the School District’s Athletic Director and head coach of the boys’ varsity basketball team as well as coach of T.F. at the time of the incident.
FACTS
On January 24, 2022, Defendant Redmond, was coaching the boys’ varsity basketball team at a school in the School District. Defendant Redmond’s son, Matthew Redmond (“Matthew”), approximately age 20 was operating the shot clock. After the basketball game, Plaintiff’s son, Raymond Foote Jr. greeted and hugged his son, T.F. (Plaintiff’s grandson). Once T.F. went to the locker room, Raymond Foote Jr., began directing profane and threatening statements at Matthew, Defendant Redmond’s son. As Raymond Foote, Jr. was being pulled away from Matthew, Plaintiff proceeded down to the floor and walked over to Matthew. Video evidence shows that Plaintiff and Matthew exchanged words in raised voices and that he directed profane statements at Matthew. Plaintiff insinuated that he would be waiting outside for Defendant Redmond. Once Plaintiff exited the gymnasium, he stood in the doorway and continued to make comments to Matthew and others. Plaintiff was asked to leave the area and at times refused to do so.
Matthew subsequently reported the conduct of Plaintiff and his son, Raymond Foote, Jr. to his father, Defendant Redmond. Defendant Redmond later told Defendant Dee that, upon hearing what had happened to Matthew, he was concerned for their safety. Later that night, Defendant Redmond called the local county Sheriff’s Department and reported the incident. An investigation occurred which included Defendant Redmond obtaining statements from witnesses in his capacity as the School District’s Athletic Director. All of the witness statements indicated that Plaintiff was seen yelling at Matthew using profanity, stating negative comments about Defendant Redmond’s coaching style, and that Plaintiff was asked to leave and at times refused. It is important to note, that there is a longstanding history between Plaintiff and Defendant Redmond in regard to his coaching of both T.F and Raymond Foote, Jr.
After reviewing the video and witness statements, Defendant Burgess sent a letter to Plaintiff on January 25, 2022 informing him that his privileges for the upcoming game were revoked and that the ban may be extended into the future pending further review. Plaintiff was also notified that Superintendent Defendant Dee would be furthering the investigation due to receipt of multiple complaints of unbecoming behavior at the game. Once Plaintiff received the letter, he called to ask why he was being “punished.” Defendant Burgess explained that Plaintiff engaged in disruptive, profane, and threatening behavior after the basketball game in the presence of students, parents, and community members.
On January 26, 2022, Defendant Dee sent a certified letter to Plaintiff and Raymond Foote, Jr., that officially banned them from school activities for the 2021-22 season due to the incident that violated the School District Policy and also Section II of the NYSPHSAA Guidelines for appropriate behavior. Plaintiff was aware of the School District policies in place on January 24, 2022, concerning the conduct of attendees at school events. After Plaintiff received the letters, Plaintiff called and left voicemails and messages for both Defendant Dee and Defendant Burgess in anticipation of meeting. Plaintiff expressed an interest in speaking with Defendant Dee about T.F.’s playing time on the basketball team, and Plaintiff’s belief that Defendant Redmond should not be employed by Defendant School District. Defendant Dee did not return Plaintiff’s calls because he was prohibited from speaking with Plaintiff about T.F. since Plaintiff is not T.F.’s parent or legal guardian.
Plaintiff did not attend any school events for the rest of the 2021-2022 year. T.F. was a member of the School District basketball team for the 2022-2023 school year. Plaintiff attended T.F.’s basketball games during the 2022-2023 school year without any incidents being reported. T.F. graduated at the end of the 2022-2023 school year. There are no current restrictions on Plaintiff’s ability to attend or participate in School District events.
ANALYSIS
Plaintiff raised two claims under the First Amendment and the Defendants filed a Motion for Summary Judgment against those claims.
Right of Assembly
In general, “the First Amendment prohibits the government from ‘abridging the freedom of speech, or of the press,’ and guarantees the right of the people to peaceably assemble.’” However, in reference to this specific case “‘government officials may stop or disperse public demonstrations or protests where clear and present danger of riot, disorder, interference with traffic upon the public streets, or other immediate threat to public safety, peace, or order, appears.’” Johnson, 859 F.3d at 171 (Papineau v. Parmley, 465 F.3d 46, 56-57 [2d Cir. 2006]). The Court noted the gymnasium where the incident between Plaintiff and Defendants occurred is considered a public forum. As a result, any conduct at events by spectators is regulated by not only the Constitution, but also various District policies, as well as NYSPHSAA Guidelines. The Court argued it is clear that Plaintiff’s conduct at the basketball game on January 24, 2022, “violated not only district policy, but also Section II NYSPHSAA Guidelines for appropriate behavior.” The Guidelines specifically allow for a spectator to be prohibited from attending events based on a person’s behavior.
While the Plaintiff argued that he “did not raise his voice above the person he was speaking with” and was not close to Matthew; the video evidence and witness statements contradict his statement. Additionally, it is irrelevant on whether Matthew raised his voice in response to Plaintiff. Video evidence showed instead that Plaintiff and Matthew were only a few feet apart during the first half of the encounter. Video evidence also indicated Plaintiff waited outside the gymnasium when asked to wait in a different place. Finally, Plaintiff’s own deposition testimony confirmed that he used profanity while speaking with Matthew and made unflattering comments. Based on the foregoing, the Court stated that Plaintiff’s conduct reasonably could be considered negative, derogatory, or inappropriate for a high school basketball game where students and parents were present. The Court agreed that Defendants’ choice to exclude Plaintiff from school events for the remainder of the school year was reasonable.
Also, the Court noted the Plaintiff’s ban was upheld because it was viewpoint-neutral. “[A] rule is neutral as to viewpoint if it is ‘based only upon the manner in which the speakers transmit their messages . . ., and not upon the messages they carry.’” Tyler v. City of Kingston, 593 F. Supp. 3d 27, 32 (N.D.N.Y. 2022) (Hurd, J.) (quoting Turner Broadcasting Sys., Inc. v. F.C.C., 512 U.S. 622, 645, 114 S. Ct. 2445, 129 L. Ed. 2d 497 [1994]). Plaintiff argued the ban was intended to punish him for saying unflattering and derogatory comments about Defendant Redmond. This is incorrect, as Defendant Redmon was not involved in Defendant Dee and Burgess’ decision to ban Plaintiff based on his conduct. The Court indicated Plaintiff did not provide any evidence to raise a genuine dispute of fact regarding whether any animus or personal dislike by Defendant Redmond might have contributed to his ban. The Court specified that Plaintiff’s behavior clearly violated district policy and NYSPHSAA Guidelines. The Court ruled Plaintiff’s claim for a violation of his First Amendment right of assembly cannot succeed and granted Summary Judgment to the Defendants.
Retaliation for Speech
“To establish a prima facie First Amendment retaliation claim, a plaintiff must show (1) ‘that the speech or conduct at issue was protected’ from the particular retaliatory act alleged; (2) that the retaliatory act qualified as an ‘adverse action [taken] against the plaintiff’; and (3) ‘that there was a causal connection between the protected speech and the adverse action.’” Heim v. Daniel, 81 F.4th 212, 221 (2d Cir. 2023) (quoting Shara v. Maine-Endwell Cent. Sch. Dist., 46 F.4th 77, 82 [2d Cir. 2022]). The relevant issue appears to be whether there was a causal connection between the comments and Plaintiff’s ban from school events for the remainder of the school year. The Plaintiff argued that the ban was imposed because of the content of his comments about Defendant Redmond. However, Defendants had a reasonable basis for their decision to exclude Plaintiff from school events as such conduct reasonably could be interpreted as violating NYSPHSAA spectator conduct guidelines. The Court stated there is no evidence other than Plaintiff’s speculative assertions of improper motive to contradict Defendants evidence denying that they were in any way motivated in their actions by Plaintiff’s statements about Defendant Redmond’s coaching abilities. The Court ruled that Plaintiff’s claim could not succeed and granted Summary Judgment to Defendants.
Deprivation of Liberty
The Fourteenth Amendment prohibits a state from “depriv[ing] any person of life, liberty, or property, without due process.” U.S. Const. Amend. XIV, § 1. The Court noted that “to state a claim for violation of procedural due process under § 1983, a plaintiff must plausibly allege ‘(1) that he [or she] possessed a protected liberty or property interest; and (2) that he [or she] was deprived of that interest without due process.’” Potrzeba, 2023 U.S. Dist. LEXIS 227159, 2023 WL 8827178, at *9 (quoting Rehman v. State Univ. of New York at Stony Brook, 596 F. Supp. 2d 643, 656 [E.D.N.Y. 2009]). The specific issue in this case is whether Plaintiff, as a grandparent (not legal guardian) possesses a recognized liberty interest related to attending athletic events for his grandchild. The general law is that non-custodial grandparents do not possess a constitutional right to visitation with a grandchild. Drawbridge v. Schenectady Cnty. Dep’t of Soc. Servs., 21-CV-0117, 2023 U.S. Dist. LEXIS 132789, 2023 WL 4888599, at *2 (N.D.N.Y. Aug. 1, 2023) (Scullin, J.) (collecting cases).
Plaintiff argued the Court should recognize a general Constitutional liberty interest in a grandparent’s relationship with their grandchild. Here, T.F. lived with Plaintiff at the time of the incident, although Plaintiff was not the legal guardian. However, the Court noted only one case, in a different jurisdiction nearly 50 years ago, supports the Plaintiff’s argument. The Court reiterated that liberty interests of grandparents do not include visitation with grandchildren, and therefore, would absolutely not extend to a Constitutional right to attend a grandchild’s school event if the grandparent is not the legal guardian.
Finally, even if Plaintiff showed a relevant liberty interest in attending T.F.’s school events, the Court does not need to decide whether due process was constitutionally sufficient because Defendants are entitled to qualified immunity.
Based on the foregoing, the Court granted Defendants’ Motion for Summary Judgment. The ban of Plaintiff Raymond Foote, Sr., due to his conduct after the interscholastic game in the School District gymnasium did not violate Plaintiff Raymond Foote, Sr. ‘s constitutional rights.
Foote v. Bd. of Educ. of Whitehall Cent. Sch. Dist.; Northern District of New York; 1:22-CV-0815 (GTS/CFH); 7/11/24
