Tort/Negligence – Parent fails to show school board engaged in viewpoint bias

Where a parent claimed the school board violated his First Amendment rights by restricting his speech at meetings, the board took the action because he had personally attacked individual board members. To the extent the speech of other parents was not curtailed, it was because their comments were about school-related topics, and not individuals.

Background

Brian C. Davison sued the Loudoun County School Board, or LCSB, various members of the LCSB and current and former employees of the Loudoun County Public School System, or LCPS, in both their official and individual capacities, for injunctive relief and monetary damages arising out of their alleged violation of Davison’s First and 14th Amendment rights.

The district court granted defendants’ motion to dismiss the claims against the LCSB based on res judicata. The district court then denied all of Davison’s remaining claims, except for one claim for injunctive relief against defendant Morse concerning Davison’s access to Morse’s social media pages. The parties voluntarily dismissed that claim after Morse unblocked Davison on social media.

Res judicata

In the state court proceedings, Davison admitted there was no “justiciable controversy” remaining for the court to decide once the no-trespass letter expired and he was allowed back on LCPS grounds. He had “no reason to believe LCSB [would] issue another ban in bad faith.”

Davison contended in his motion for reconsideration that the state court granted a motion for nonsuit. To the contrary, the state court told Davison that it did not have the authority to enter a nonsuit and that the only option was “outright dismissal or withdrawing your appeal.” Davison then agreed to a dismissal with prejudice. Because Davison brings the same claims against the same party—LCSB—res judicata bars these claims.

First Amendment discrimination

The LCSB has a policy that regulates the public’s participation at school board meetings. That policy relevantly limits the content of public comments to matters related to the public schools and does not allow comments “that are harassing or amount to a personal attack against any identifiable individual,” including school board members.

Davison asserts the policy was not used in a viewpoint-neutral way towards his speech. In his brief on appeal, Davison identifies five instances “in which his on-topic, critical comments of LCSB member actions were materially interrupted by Rose or Hornberger,” which he asserts constitutes viewpoint discrimination. Davison also provides comparison videos of other members of the public providing public comments where they are not interrupted. While it is true that some of the speakers were very animated and several used explicit words, none of the speakers made comments about individual board members. All of their comments were about school-related topics pertaining to “diverse culture books,” and the explicit words were from book quotations.

Davison also has alternative means of communication to express his ideas about the LCSB members. Accordingly, Rose’s and Hornberger’s decision to restrict Davison’s speech at LCSB meetings did not violate his right of free speech.

First Amendment retaliation

Davison asserts that the defendants engaged in First Amendment retaliation by issuing the no-trespass letters, engaging in other speech-chilling activities in response to his comments about school board members and contacting CPS about the welfare of his children. Davison has not sufficiently provided evidence to prove that the no-trespass ban was issued because of his protected speech, as opposed to his threats and antagonistic behavior. And while Davison asserts that the LCSB censorship of his speech at school board meetings was retaliation, defendants did not unlawfully curtail Davison’s speech in the school board meetings, as discussed above.

Finally, it is undisputed that, at the time of the CPS report, Stephens was a mandatory reporter of child abuse under Virginia law. Davison fails to overcome the presumption that Stephens possesses immunity as a mandatory reporter.

Qualified immunity

This court’s decision in Lovern v. Edwards, 190 F.3d 648 (4th Cir. 1999), establishes the constitutionality of no-trespass bans against parents attempting to enter school grounds. A reasonable official could conclude that the no-trespass ban in this case was constitutional. Thus, defendants have qualified immunity on the damages claims against them in their individual capacities for Counts Four and Five.

Injunctive relief

Davison asks this court to invalidate provisions of a LCPS policy that impose a blanket ban on any individual given a no-trespass letter from visiting any LCPS property. Injunctive relief is simply not “needed” where no-trespass bans are constitutional—an injunction here would not prevent any future constitutional violations.

Davison also alleges that defendants “violated [his] 14th Amendment Rights to procedural due process when they deprived him of constitutionally protected fundamental liberty interests without providing notice or a meaningful opportunity to be heard before the deprivation.” The post-deprivation remedies provided in this case satisfy due process.

Affirmed.

Davison v. Rose (Lawyers Weekly No. 001-203-21, 28 pp.) (Henry Franklin Floyd, J.) Case No. 20-1683. Dec. 3, 2021. From E.D. Va. (Anthony John Trenga, S.J.) Michael Allen Bragg for Appellant. Julia Bougie Judkins for Appellees.