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.
and Submitted October 16, 2015 Portland, Oregon
Submission Vacated October 19, 2015 Resubmitted January 19,
from the United States District Court for No. CV 12-01042 TC
the District of Oregon Thomas M. Coffin, Magistrate Judge,
Marianne Dugan (argued), Eugene, Oregon, for
H. Fry (argued), Mersereau Shannon LLP, Portland, Oregon, for
D. Hawkes, Lane Powell PC, Portland, Oregon; Kevin
Díaz, ACLU Foundation of Oregon, Inc., Portland,
Oregon; for Amicus Curiae The American Civil Liberties Union
Before: A. Wallace Tashima and Carlos T. Bea, Circuit Judges
and Larry A. Burns, [*] District Judge.
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.
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.
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
TASHIMA, Circuit Judge.
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.
jurisdiction under 28 U.S.C. § 1291, and we affirm.
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."
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.
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.
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
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.
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.
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.
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. Accordingly, the school imposed a two-day,
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. The parties filed cross-motions for
summary judgment. The district court granted summary judgment
to the School ...