The United States Court of Appeals for the Second Circuit has denied the appeal of two high school administrators, who claimed a lower court erred when it denied their motion for a summary judgment against a parent, who alleged that they violated his First Amendment rights when he was prevented from attending a high school sporting event. The Northern District of New York had previously granted a motion for summary judgment by the school district, which was also a defendant in the case.
Key to the ruling against the administrators was that the lower court had not reviewed enough evidence to determine whether the father, Truman Frierson, represented “a threat” by attending the games.
By way of background, Frierson had a daughter who played on the varsity basketball team at Troy High School. On Jan. 3, 2017, the plaintiff’s daughter was removed from a game against Albany High School. A few days later, Frierson entered the school at the main entrance and met with the varsity members of the team in the cafeteria to discuss grievances with the school’s basketball program.
During the 13-minute meeting with the team, Frierson allegedly discussed walking out of a game because of the perceived abuses to his daughter and other members of the team. One of these perceived abuses was a decision made by individual defendant Paul Reinisch, the athletic director, to not stage a ceremony for the signing of a national letter of intent for his daughter. Ultimately, the plaintiff claimed he was restricted or barred by Reinisch and Superintendent John Carmello from attending school-related events. Neither man sought to have their decision supported by a vote from the school board.
The plaintiff sued, alleging the defendants violated his Constitutional rights under the First Amendment by preventing his access to school property for games and for retaliating by restricting the plaintiff’s right to associate freely without fear of reprisal by government officials.
The first determination for the court was whether the contest represented a limited public forum. In such instances, the state limits “the expressive activity to certain kinds of speakers, or to the discussion of certain subjects.” Peck v. Baldwinsville Central School District, 426 F. 3rd 617, 625, (2d Cir. 2005). Sporting contests meet this requirement.
The plaintiff claimed that because “there was no real threat of disruption or harm” that the motive for banning the plaintiff was retaliation for speaking out against the varsity coach. The court seemed to concur, noting that “a reasonable jury could find that the defendant’s ban of the plaintiff … was neither viewpoint-neutral or reasonable.” It added that “a reasonable juror could find the school’s objective in restricting the plaintiff’s attendance at sporting events was to punish the plaintiff for expressing his concerns.” It continued: “From the proximity between the plaintiff’s alleged activity and the defendant’s ban, a jury could conclude that the defendant intended to silence the plaintiff’s viewpoint.” Thus, it denied the individual defendants’ motion for summary judgment, which centered on the belief that they were protected by immunity statutes.
The men appealed.
The appeals court wrote that when “a defendant official invokes qualified immunity as a defense in order to support a motion for summary judgment, a court must consider two questions: (1) whether the evidence, viewed in the light most favorable to the plaintiff, makes out a violation of a statutory or constitutional right, and (2) whether that right was clearly established at the time of the alleged violation.” Tracy v. Freshwater, 623 F.3d 90, 96 (2d Cir. 2010).
“With respect to the second prong of the qualified immunity test, ‘the Supreme Court has repeatedly (and recently) reminded us that clearly established law must be particularized to the facts of the case and must not be defined at a high level of generality.’ Naumovski v. Norris, 934 F.3d 200, 211 (2d Cir. 2019). As a result, ‘officials only forfeit their immunity when existing precedent has placed the statutory or constitutional question beyond debate and that precedent has been recognized under similar circumstances.’ Id.
“We conclude that, at this point in the proceedings, the defendants are not entitled to qualified immunity.”
Elaborating, it wrote that it “is well-established that the government may not retaliate against individuals for exercising their rights under the First Amendment. See, e.g., Dorsett v. Cty. of Nassau, 732 F.3d 157, 160 (2d Cir. 2013); Blue v. Koren, 72 F.3d 1075, 1082 (2d Cir. 1995). That is especially true when the government singles out a speaker for disfavored treatment based on the views he or she has expressed. ‘It is a fundamental principle of the First Amendment that the government may not punish or suppress speech based on disapproval of the ideas or perspectives the speech conveys. Such discrimination based on viewpoint is an egregious [*8] form of content discrimination, which is presumptively unconstitutional.’ Ragbir v. Homan, 923 F.3d 53, 70 (2d Cir. 2019).
“Moreover, in the specific context of retaliation by a school official restricting access to athletic events, we have said that where, as here, a public school invites parents and other spectators to attend sporting events held in its gymnasium, the gymnasium operates as ‘a limited public forum’ and the school may restrict access to a limited public forum only when (1) ‘its restrictions are reasonable and viewpoint-neutral,’ or (2) ‘there is a clear and present danger of disruptions such as disorder, riot, obstruction of the event, or immediate threat to public safety.’ Perry, 859 F.3d at 175.
“In Perry, we considered whether qualified immunity protected a high school principal who banned a student’s father in early 2013 from attending future sporting events held at the school. Like Frierson, the father in Perry was banned after complaining to school administrators that his daughter, a member of the varsity basketball team, wanted to quit the team because the coach was treating her unfairly. See id. at 161, 163. When the father learned that school officials were pressuring his daughter to remain on the team, he met with the principal, and the two exchanged heated words. See id. at 162-63. The following day, the principal informed the father that he was banned from attending all future school sporting events, purportedly because the father’s “verbal altercations, physical intimidation and direct threats to staff ha[d] created an unsafe environment for staff, students and other parents.” Id. at 163. Shortly thereafter, the father sued, alleging that the ban violated his rights under the First Amendment. Id. at 160.
“On an interlocutory appeal from the district court’s denial of summary judgment, we ruled that the district court was correct in denying qualified immunity to the principal as a matter of law.”
That court relied on the father’s version of the events, noting that “a rational juror could find that the father ‘presented no threat of disruption or of harm to anyone’; that the principal’s ‘motive in banning’ the father from future sporting events was to punish him for expressing negative views about school administrators; and that the ban was therefore ‘neither viewpoint-neutral nor reasonable.’ Id. at 175-76. Moreover, we observed, ‘the right not to be excluded, based on viewpoint differences or because of possible annoyance, from sports events to which the public was invited was clearly established’ when the principal banned the father—i.e., in February 2013. Id. at 162, 176.
“Our decision in Perry disposes of the defendants’ interlocutory appeal here. As in Perry, a rational factfinder could conclude that Frierson did not present a threat of disorder or harm to anyone, especially since Troy High School’s January 10 basketball game had taken place without any disruption or incident. Viewing the evidence in the light most favorable to Frierson, as we must at this juncture, a jury could further conclude that the defendants’ motivation for imposing the ban was retaliatory: it was to punish Frierson for speaking out against Coach Bearup. Although Defendants assert on appeal that they banned Frierson because they wanted to ‘protect’ the student players from ‘being upset . . . or engaged by’ Frierson, Defs.’ Brief 21, a jury could reasonably view that justification as a pretextual, post hoc rationalization of viewpoint discrimination, or unlawful retaliation. Indeed, in his letter informing Frierson of the ban, Director Reinisch did not justify his action on student-safety grounds; instead, he pointed to Frierson’s unauthorized entry onto school grounds and his ‘attempt[s] to organize a protest against [the] coaching staff’ as the basis for excluding Frierson from future sporting events. App’x 169. Accordingly, a rational juror could conclude that the defendants violated Frierson’s First Amendment rights by retaliating against him and by imposing a ban that was neither viewpoint neutral nor reasonable.
“The contours of those rights in the context of a school sporting event, moreover, were clearly established in January 2017, when the defendants imposed the ban on Frierson. In our 2017 decision in Perry, we observed that—viewing the evidence in the light most favorable to the father—the principal violated clearly established law when in early 2013 he banned the father from attending school sporting events to punish him for expressing negative views about school administrators. Perry, 859 F.3d at 163, 176. Given the close similarity between the facts in Perry and those at issue here, we conclude that, under Frierson’s version of the events, the defendants’ conduct violated law that was clearly established since as early as 2013.”
Frierson v. Reinisch.; U.S. Court of Appeals for the Second Circuit; No. 19-1740; 3/26/20
Counsel: (for plaintiff) Michael H. Sussman, Sussman & Associates, Goshen, NY. (for defendants) Gregg T. Johnson, Johnson & Laws, LLC, Clifton Park, NY.
