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C.R. v. Eugene School District 4J

United States Court of Appeals, Ninth Circuit

September 1, 2016

C.R., by and through his parents and next friends, Mark and Kathryn Rainville, Plaintiff-Appellant,
Eugene School District 4J, an Oregon public school district, Defendant-Appellee.

          Argued and Submitted October 16, 2015 Portland, Oregon

          Submission Vacated October 19, 2015 Resubmitted January 19, 2016

         Appeal from the United States District Court for No. CV 12-01042 TC the District of Oregon Thomas M. Coffin, Magistrate Judge, Presiding

          Marianne Dugan (argued), Eugene, Oregon, for Plaintiff-Appellant.

          Blake H. Fry (argued), Mersereau Shannon LLP, Portland, Oregon, for Defendant-Appellee.

          Peter D. Hawkes, Lane Powell PC, Portland, Oregon; Kevin Díaz, ACLU Foundation of Oregon, Inc., Portland, Oregon; for Amicus Curiae The American Civil Liberties Union of Oregon.

          Before: A. Wallace Tashima and Carlos T. Bea, Circuit Judges and Larry A. Burns, [*] District Judge.


         Civil Rights

         The panel affirmed the district court's summary judgment in favor of the Eugene School District 4J in an action brought by a middle school student suspended for harassment, who challenged his suspension under the First Amendment, arguing that because the harassment occurred off-campus, in a public park, the school lacked the authority to discipline him.

         The panel held that under the unique facts presented by this case, the School District had the authority to discipline plaintiff for his off-campus, sexually harassing speech. The panel noted that the speech at issue occurred exclusively between students, in close temporal and physical proximity to the school, on property that was not obviously demarcated from the campus itself, and that a school may act to ensure students are able to leave the school safely without implicating the rights of students to speak freely in the broader community. The panel further held that the School District's decision to suspend plaintiff for two days for sexual harassment was permissible under Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506 (1969)). The panel concluded that plaintiff's suspension was permissible under the First Amendment.

         Rejecting plaintiff's due process claims, the panel held that taken in the light most favorable to plaintiff, the uncontroverted facts showed that he was provided the informal procedures that the Constitution requires for a two-day, out-of-school suspension. The panel further held that plaintiff failed to show that he has a substantive due process interest in maintaining a clean, non-stigmatizing school disciplinary record.


          TASHIMA, Circuit Judge.

         C.R., a student in the Defendant Eugene School District 4J (the "School District"), was twelve years old when he was suspended from Monroe Middle School for sexually harassing two younger students. The incident that led to his suspension was the last in an escalating series of encounters with two younger students at the school. It occurred about five minutes after school let out, a few hundred feet from campus. C.R. challenged his suspension in district court under the First Amendment, arguing that because the harassment occurred off-campus, in a public park, the school lacked the authority to discipline him. C.R. also challenged his suspension on due process grounds. The district court rejected C.R.'s claims and granted the School District's motion for summary judgment.

         We have jurisdiction under 28 U.S.C. § 1291, and we affirm.


         C.R. was a seventh-grade student at Monroe Middle School when the incident at issue occurred. In October 2011, C.R., along with a few other seventh-grade boys, began following two sixth-grade students home. The two sixth-graders, a girl (A.I.) and a boy (J.R.), were both disabled. All of the children took the same route home: a bike path leading from the school, across a public park, to a neighboring street. The park borders the school's athletic fields, but there is no visible boundary to indicate where school property ends and the park begins. On the far side of the park, across from the school, is a track belonging to the School District. The school's administrators casually refer to the park, track, and fields collectively as "the back field."

         Over the course of several days, the older boys engaged in teasing behavior, which quickly escalated. The boys began by giving the younger students vulgar fake names, like "Ass-Julio, " and insisting the sixth-graders repeat them. Soon, the boys' jokes became sexual in nature. On the day in question, the group of older boys circled the younger students. The boys asked the younger students if they watched pornography. The boys asked if A.I. and J.R. were dating, and one boy suggested that J.R. take A.I. to the local B.J.'s Restaurant. This set off a series of comments - puns - on the similarity between the restaurant's name and an abbreviation for the slang term "blowjob, " referring to oral sex. One boy told the younger students that there was a "really good" sandwich at B.J.'s that "takes two to eat." He suggested J.R. and A.I. try it together.

         Tracy Parks, an instructional aide in the School District, was biking home from school with her daughters when she rode past the group of students. Parks was a friend of C.R.'s mother and had known C.R. since he was in kindergarten. Concerned by the group's posture, Parks approached. She noticed that A.I. looked "a little scared." Parks asked both A.I. and J.R. if they felt comfortable, and although J.R. said "yes, " A.I. said "no." Parks told the boys to leave and walked the two younger students home. Along the way, A.I. recounted what had happened, telling Parks that the boys "were talking about [B.J.'s] restaurant, but she thought it was [actually] something else." A.I. repeated to Parks that she was uncomfortable with what had happened.

         On Monday, Parks called the school to report what she had seen. Parks spoke with Katherine Kiraly, the school's vice principal. Although she did not know the other boys, Parks told Kiraly that she knew C.R. and could identify him as a participant. Kiraly conferred with then-principal Peter Tromba about Parks' report. She then began an informal investigation.

         Kiraly met first with A.I. and J.R. A.I. recounted the series of encounters with the older boys, including their use of vulgar fake names, increasingly sexual comments, and the B.J.'s puns. She told Kiraly that the final encounter made her feel unsafe. Kiraly also interviewed J.R., who did not report feeling uncomfortable during the encounter. Tromba recalled later overhearing the students discussing the incident at lunch with their friends, who were upset to hear how A.I and J.R. had been treated.

         Kiraly next interviewed the boys she suspected had been involved in the incident, including C.R. C.R. denied any involvement and insisted that nothing inappropriate had happened. The administrators asked C.R. not to tell the other boys about the interview. C.R. ignored their request and discussed his interview at lunch that same day.

         The other boys involved in the incident confirmed A.I.'s story. They admitted making inappropriate comments, including the B.J.'s puns. The boys were clear that they intended their comments about B.J.'s to refer to oral sex. The boys also confirmed that C.R. had participated in the incident, and at least one indicated that C.R. was the ringleader. Called in for a second interview, C.R. admitted that he had made a comment about B.J.'s and that his behavior was inappropriate. Based on these interviews, administrators determined that the incident fell within the School District's definition of sexual harassment and that C.R. had participated in that harassment.

         Tromba and Kiraly disciplined all of the boys involved in the incident, including C.R. In an email, the administrators informed C.R.'s parents of the basis of that decision: Not only had C.R. participated in the incident, he also lied to administrators in his first interview and disobeyed their request to refrain from discussing the interview with his friends. Under the School District's "door-to-door" policy, the administrators determined that they had the power to discipline C.R. for his off-campus speech.[1] Accordingly, the school imposed a two-day, out-of-school suspension.

         One year later, C.R.'s parents sued the School District on his behalf, alleging violations of C.R.'s First Amendment and due process rights.[2] The parties filed cross-motions for summary judgment. The district court granted summary judgment to the School ...

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