A senior district judge has granted a defendant school district’s motion to dismiss a parent’s complaint, pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6), after finding that restrictions placed upon the plaintiff regarding his presence at athletic events does not constitute “an impermissible retaliation for his exercise of free speech rights.”
There were several events that led up to plaintiff Thomas Cunningham’s allegation that his First Amendment rights were violated by Lenape Regional High School District Board of Education and Dr. Daniel Hicks, the Superintendent of the District.
Specifically, the plaintiff argued that since approximately the Fall of 2003, he “has expressed as a parent and private citizen his opinions regarding the qualifications and methods of coaching” of the Shawnee High School varsity wrestling coach. The plaintiff’s son is a student at the high school, which is located within the school district, and has participated in the wrestling program. The plaintiff also wrote a petition in an attempt to have the coach removed and “to curb certain of his coaching practices which endangered the athletes in his program.” He maintained that all of the opinions he expressed were “of public concern.” Several staff members, however, contended that the plaintiff’s opinions were expressed because he wanted the wrestling head coaching job for himself.
On or about December 28, 2005, he received a letter from an attorney representing the defendants, which stated that he was no longer permitted to enter school property, “including for wrestling matches, basketball games, and graduation ceremonies.” The letter warned that if the plaintiff did enter the property, he would be prosecuted for criminal trespass. This was problematic, in part, because the plaintiff served as coach of a youth wrestling program, which used the district’s facilities for its activities.
In a January 18, 2006, school board meeting, the superintendent advised the plaintiff that “he had been banished from Board property due to a persistent pattern of abuse, harassment and threats towards staff members.” After the meeting, the plaintiff was advised that he would be permitted limited access to district property to coach the youth program and to attend his son’s wrestling matches.
The plaintiff sued. “While the plaintiff concedes that the defendants do have the right to bar persons from their property whose conduct they reasonably perceived as dangerous or disruptive to the educational process, he avers that his banishment was done not for legitimate reasons but for retaliation for exercising his constitutional right to free speech.”
The court, however, was not persuaded, noting that it could “find no evidence in the record suggesting any impermissible conduct by the Defendants sufficient to overcome a Rule 12(b)(1) motion. The right to free speech is not limitless. Carey v. Brown, 447 U.S. 455, 470, 100 S. Ct. 2286, 65 L. Ed. 2d 263 (1980). The Supreme Court has held, for example, that even peaceful communication may be restricted through reasonable measures where it interferes with ‘vital governmental facilities.’ Id. The Constitution does not leave the government powerless to protect against disruptive conduct, even speech, in public places such as schools ‘that require peace and quiet to carry out their functions.’ Id. at 470-71 (citing Gregory v. Chicago, 394 U.S. 111, 118, 89 S. Ct. 946, 22 L. Ed. 2d 134 (1969) (Black, J., concurring)).”
The court continued that the plaintiff’s “argument appears to be that the mere fact that there are restrictions on him evidences an impermissible retaliation for his exercise of free speech rights. However, this argument fails for two reasons. First, there is nothing in the record suggesting that Plaintiff was denied in the past or will be denied in the future the right to exercise his First Amendment rights of speech or petition.
“Second, Plaintiff has failed to provide any evidence suggesting a causal connection between protected speech and retaliation by the Defendants. While the Plaintiff asserts that this is a question of fact for the jury on a Rule 12(b)(1) motion to dismiss, Plaintiff must rely on something more than his pleadings to show that a federal court has subject matter jurisdiction. Int’l Ass’n of Machinists, 673 F.2d at 711. Where a plaintiff presents a 1983 claim, he must produce evidence showing there has been some violation of a constitutional right. See Nicini, 212 F.3d at 805.
“There is no such evidence here. The closest the Plaintiff’s case comes to any federal constitutional violation is a bald assertion that his speech caused him to be barred from Defendants’ property. However, given the voluminous eye witness depositions and written communication about and from the Plaintiff, the Court cannot see how Defendants’ actions were anything more than discretionary safety measures taken well within constitutional limits.
“The Court cautions that this assessment is not a review of the merits of the case, but rather an inquiry into a minimum evidentiary threshold that the Plaintiff must withstand to prove federal jurisdiction. See Kehr Packages, 926 F.2d at 1409.
“Lastly, the Court takes notice of the important public policy matters that cases like this implicate. Certainly the right of a parent to be involved in the process of a child’s education is not something the Court should restrain lightly. See Jeffrey v. Board of Trustees of Bells ISD, 261 F. Supp. 2d 719, 726 (E.D. Tex. 2003) (holding parents possess “a fundamental liberty interest in the right to direct the education and upbringing of their children”) (citing Meyer v. Nebraska, 262 U.S. 390, 43 S. Ct. 625, 67 L. Ed. 1042 (1923); Pierce v. Society of Sisters, 268 U.S. 510, 45 S. Ct. 571, 69 L. Ed. 1070 (1925); Wisconsin v. Yoder, 406 U.S. 205, 92 S. Ct. 1526, 32 L. Ed. 2d 15 (1972)). However, the reality of our times, and indeed common sense, suggests that the public – parents included – cannot have unfettered access to the halls of learning. We are not too far removed from the tragedies of Columbine or the Amish school shooting to forget that the safety of our children and school officials is paramount.
“While Plaintiff would have the Court believe he too was only acting in the best interests of his children, unfortunately for him, the record is rich with witnesses and written evidence of what can only be described as truly outrageous behavior. In reviewing all of this evidence for subject matter jurisdiction, the Court can only determine that this case is, at best, the last efforts of a spurned job applicant, and at worst, yet another attempt to bully the Defendants into compliance with Plaintiff’s wishes. The law is clear: a school need not wait to act until perceived threats become actual harm. See Lovern, 190 F.3d at 655. Defendants’ belief here that Plaintiff posed a danger is objectively reasonable given the evidence before the Court. He cannot hide behind the protections of the First Amendment to harass and bully the faculty and staff of Lenape Regional High School District. Plaintiff’s case is truly “a monument to what ought not be in federal court.” Lovern, 190 F.3d at 654. Therefore, Plaintiff’s claim is dismissed pursuant to Rule 12(b)(1).”
Thomas Cunningham v. Lenape Regional High District Board of Education and Dr. Daniel Hicks, Superintendent; D.N.J.; Civil Action No. 06-cv-428, 2007 U.S. Dist. LEXIS 45805; 6/25/07
Attorneys of Record: (for plaintiff) F. Michael Daily, Jr., Esquire, Westmont, NJ. (for defendants) Michael P. Madden, Esquire Madden, Madden & Del Duca, Haddonfield, NJ; Arthur F. Risden, Esquire Archer & Greiner, Haddonfield, NJ
