A federal judge from the Northern District of New York has granted a school district and co-defendants’ motion to dismiss a lawsuit in a case in which the parent of a high school basketball player sued after he was banned from attending his daughter’s basketball games.
In so ruling, the court noted that by banning the plaintiff from the games, only, the defendants were not violating the plaintiff’s rights under the Constitution.
The plaintiff in the case was Truman Frierson, who claimed his daughter — a star high school basketball player—was treated unfairly by her coach, Paul Bearup. Specifically, he alleged that Bearup screamed at FD (his daughter), attempted to disrupt her college recruiting process, and denied her adequate playing time.
The plaintiff communicated his concerns to the school’s principal, the superintendent of the school district, and a number of other school employees, but the plaintiff was not satisfied with their response. Eventually, co-defendant Paul Reinish, the director of physical education for Troy High School, informed him that he would be prohibited from attending future basketball games.
On Jan. 13, 2017, the same day he was informed of the ban, the plaintiff sued the school district, Bearup, Reinish, and other co-defendants, claiming his rights under the First Amendment and the Fourteenth Amendment were violated when he was banned from attending FD’s games.
The defendants moved to dismiss, leading to the instant opinion. The court relied heavily on the Second Circuit’s recent decision in Johnson v. Perry, 859 F.3d 156, 171 (2d Cir. 2017).
In determining whether a state actor violated a plaintiff’s First Amendment right to free speech, the court turned to the U.S. Supreme Court’s three-step, forum-based test set forth in Cornelius v. NAACP Legal Def. & Educ. Fund, 473 U.S. 788, 797, 105 S. Ct. 3439, 87 L. Ed. 2d 567 (1985). A court must determine “(1) whether plaintiff’s speech is protected by the First Amendment; (2) the nature of the forum: public, designated or limited public, or nonpublic; and (3) whether the defendant’s justifications for limiting the plaintiff’s speech satisfy the requisite standard.” Piscottano v. Town of Somers, 396 F. Supp. 2d 187, 200 (D. Conn. 2005) (citing Cornelius 473 U.S. at 797).
After determining that the plaintiff has a limited right of access to school property and that it was a limited public forum (See Perry, 859 F.3d at 175), the court focused on the question of justification.
“In Johnson v. Perry, the Second Circuit faced a set of facts very similar to the facts alleged in this case,” wrote the court. “Johnson, whose daughter (“J”) was on the girls’ high school basketball team, was engaged in a dispute with Perry, the school’s principal, over “J’s” role on the basketball team. Johnson accused Perry of bullying “J” into staying on the varsity basketball team. After a meeting between Johnson and Perry erupted into a heated argument, Perry banned Johnson from all school events on and off campus, with the exception of “J’s” commencement ceremony. As a result, Johnson was not able to pick “J” up from school, attend the final presentation of an academic project, or come to the school’s ‘senior night’ celebration. When Johnson attempted to attend school events—either on or off campus—he was removed by security. Johnson filed a complaint in the District of Connecticut alleging, among other causes of action, that Perry’s actions violated Johnson’s First Amendment right of assembly and his due process rights under the Fourteenth Amendment.”
Perry moved for summary judgment on Johnson’s First Amendment claims, and the district court denied the motion.
“On appeal, the Second Circuit concluded that although a school is generally a nonpublic forum, a school gymnasium that is open to the public ‘stands on a different footing’ and becomes a limited public forum. (See Perry, 859 F.3d at 175.1). Therefore, ‘unless there is a clear and present danger of disruptions such as disorder, riot, obstruction of the event, or immediate threat to public safety, the school may regulate access to its gymnasium when it is being used as a limited public forum only if the restrictions are reasonable and viewpoint neutral.’ Id. The Second Circuit went on to affirm the district court’s finding that a rational juror could ‘find that Perry’s ban of Johnson from [school] basketball games was neither viewpoint-neutral nor reasonable.’ Id.
“At this stage in the litigation, the court cannot distinguish the facts alleged in the amended complaint from the Second Circuit’s holding in Perry. As in Perry, the plaintiff alleges that his daughter was bullied by a school official, and that he was banned from attending his daughter’s basketball games because he complained about the bullying. Drawing all reasonable inferences in the plaintiff’s favor, he has plausibly alleged that the ban was not reasonable and viewpoint neutral. Although the plaintiff’s First Amendment claim may not ultimately survive a motion for summary judgment, the court cannot grant the defendants’ motion to dismiss based on the allegations in the amended complaint.”
Turning to the plaintiff’s assertion of a due process claim, the court again found Perry court’s reasoning “instructive.”
In that case, “the district court found that Johnson’s ban from all school events except commencement violated ‘the fundamental right of a parent to make decisions concerning the care, custody, and control of his child.’ Perry, 140 F. Supp. 3d at 228 (citing Troxel v. Granville, 530 U.S. 57, 66, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000)). Therefore, the ban deprived Johnson of a ‘recognized liberty interest.’ Id.; see also Troxel, 530 U.S. at 66 (“In a long line of cases, we have held that, in addition to the specific freedoms protected by the Bill of Rights, the ‘liberty’ specially protected by the Due Process Clause includes the righ[t] . . . to direct the education and upbringing of one’s children”) (quoting Washington v. Glucksberg, 521 U.S. 702, 720, 117 S. Ct. 2258, 117 S. Ct. 2302, 138 L. Ed. 2d 772 (1997)).
“In this case, however, the ban against the plaintiff was limited to his attendance of basketball games and did not implicate his fundamental liberty interest in the care, custody, and management of his child. Accordingly, the plaintiff’s due process claim is dismissed.”
Truman Frierson v. Troy City School District Board of Education et al.; N.D.N.Y.; 1:17-cv-0044 (MAD/CFH), 2018 U.S. Dist. LEXIS 42537; 3/15/18
Attorneys of Record: (for plaintiff) Pro se, Troy, NY. (for defendants) Gregg T. Johnson, ESQ., April J. Laws, ESQ., of counsel, Lemire, Johnson & Higgins, LLC, Malta, New York.
