School Entitled To Enforce Truancy Rule Even If Students Seek To Leave Campus To Engage In Protest Activities That Are Protected Under The First Amendment

June 7, 2009 | Bulletin No. 917396.1

KMTG attorney Christian M. Keiner submitted an Amicus Curiae brief for the CSBA Education Legal Alliance on behalf of the prevailing school district and administrators in Corales v. Bennett, a case arising from events surrounding the discipline of students who walked out of their middle school to participate in protests against immigration reform legislation.

In Corales v. Bennett, (--- F.3d ---, C.A.9 (Cal.), June 1, 2009), the United States Court of Appeals for the Ninth Circuit considered whether the parents and classmates of a student who committed suicide after a vice principal disciplined him and other students for walking off campus to participate in a protest, could state a claim that the school district and its officials violated the students’ constitutional rights. The Court of Appeals held that the parents and classmates failed to show the school district and its officials violated the students’ constitutional rights when it applied the truancy rules and disciplined the students for leaving campus.

Facts

On March 28, 2006, Anthony Soltero ("Soltero"), who was an eighth-grade student at De Anza Middle School ("School"), Annette Prieto ("Prieto"), and other students decided to walk out of school to participate in protests against immigration legislation. The students did not have permission from their parents or School to leave campus. The students walked to a nearby high school to participate in a protest but when they arrived they saw that no one was protesting because the high school was on lockdown. The students proceeded to another school, but there was no protest occurring there, so the students went home.

Later that week, School's vice principal, Gene Bennett ("Bennett"), called the students to his office. Prieto later testified the students discussed the possible punishments before meeting with Bennett and Soltero was scared and nervous about the possible discipline. School's handbook provides that a student's first unexcused absence can result in punishment ranging from after-school intervention to Saturday Academy. School district rules, however, specifically provide that students who are absent because of their participation in a protest are truant. All School's eighth-grade students had also been notified earlier in the school year that if any disciplinary issues arose, they could lose one or more activities surrounding their promotion festivities. Prieto had already been suspended several times during the school year and Soltero was on probation because he had carried a knife to school.

Prieto claims that when they went to see Bennett, he told them that they were "dumb, dumb, and dumber," and that they would have to pay a $250 fine, the cops would become involved in the matter and they would be sent to juvenile hall, and they would lose the right to go on the year-end Disneyland trip. Soltero told Prieto that he was scared of his mother's reaction and worried about the fine and being sent to juvenile hall. After school that day, Soltero committed suicide. Ultimately, none of the students were required to pay a fine, the police were never involved in the truancies, and the students were not sent to juvenile hall.

Soltero's parents and the guardians of the other students involved (collectively, "Parents") brought a lawsuit against the Ontario-Montclair School District ("District"), School's principal, and Bennett alleging, among other things, that School and its personnel retaliated against the students for exercising their First Amendment rights. The trial court granted summary judgment in favor of District, the principal, and Bennett.

Decision

The Court of Appeals affirmed the grant of summary judgment in favor of District and School’s personnel. The court concluded that students could not state a claim for retaliation under the First Amendment because the school was entitled to enforce its rule against truancy even when the students walked off campus with the purpose of engaging in expressive activity. The court concluded “the students intended to show their opposition to the proposed immigration reform by participating in a walkout” and that a reasonable jury could conclude the students were in fact engaging in expressive conduct. The crucial question before the court was whether School violated the students’ First Amendment rights when it disciplined them for participating in the walkout.

In order to establish a First Amendment retaliation claim, the students and Parents are required to show (1) they were engaged in a protected activity when they walked out of school; (2) School took actions that “would chill a person of ordinary firmness from continuing to engage in the protected activity;” and (3) the students’ participation in the walkout was a substantial and motivating factor in School’s conduct.

Parents asserted that Bennett’s threats of a fine, police involvement, and juvenile hall amounted to punishment and constituted a “true threat.” Parents attempted “to connect Bennett’s words to violence by characterizing them as a form of corporal punishment.” Bennett’s words did not amount to corporal punishment because he “did not inflict, nor attempt to inflict, any physical pain on any of the students.” Also, Bennett’s words were not empty words to intimidate students but were based on laws that require compulsory education, prohibit truancy, allow for arrest of truant students, and permit students to become wards of juvenile courts if they are habitually truant. Bennett’s statements were a stern lecture and not corporal punishment. Even if Bennett actually had the authority to send the students to juvenile hall, his threat of sending the students there was not the same as imposing discipline. Students’ can not state “a retaliation claim based on threats of discipline for First Amendment activity if that threat is itself based upon lawful consequences and is not actually administered.”

The only discipline actually suffered by students was loss of a year-end activity, which the students knew could result from their activity before they even met with Bennett. Any retaliation claim, therefore, “must be evaluated solely on Bennett’s decision to discipline the students when their act of leaving school was intended as expressive conduct.” The first question in this analysis is whether the students were disciplined for engaging in a constitutionally protected activity. Here, the students were not disciplined for the disruptive nature of their expressive conduct but instead for the disruption caused by leaving School’s campus without permission. District rules clearly state that absence from school to participate in a protest, even with permission from a parent, amounts to truancy.

School could discipline students under a content-neutral rule that prohibits students from leaving campus without permission to engage in expressive conduct. The anti-truancy policy is content-neutral and furthers important interests that are not related to the suppression of student expression. Schools have valid interests in forbidding students from leaving campus without permission, including safety, educational, and financial interests that are unrelated to suppression of speech.

Students’ rights were not infringed by School’s punishing them for leaving campus without permission. “To hold otherwise would be to allow 12 to 14 year old students to leave school without the permission of their parents or school authorities to engage in any claimed First Amendment activity, no matter the danger.” School was entitled to enforce its rules against truancy even when students sought to leave the campus for expressive purposes.

The court also concluded Parents failed to show that Bennett had a retaliatory motive when he disciplined students or that his comments rose to the level of child abuse. Also, District is immune from liability from Parents’ claims under 42 U.S.C. § 1983 by virtue of the Eleventh Amendment to the United States Constitution. The court declined to determine if this immunity reaches to principal or Bennett because Parents did not show that either violated the students’ constitutional rights.

What This Means To You

This decision by the 9th Circuit addresses when a school district, and administrators, may or may not be held liable for school reactions to off-campus alleged First Amendment protected activity by students. By ruling in favor of these school authorities, the court set legal boundaries helpful to all public schools.

Questions

If you have any questions concerning the content of this Legal Alert, please contact the following from our office, or the attorney with whom you normally consult.

Christian Keiner or Diana Halpenny | 916.321.4500