North Carolina Lawyers Weekly
BY JASON BOLEMAN
A former Virginia high school student’s First Amendment claim against a county’s school board has been reinstated after the 4th U.S. Circuit Court of Appeals found the former student’s complaint “plausibly alleges a First Amendment claim.”
The case stems from a conversation amongst classmates on Feb. 15, 2018, one day after the mass shooting at Marjory Stoneman Douglas High School in Parkland, Florida.
Jonathan Starbuck engaged in a conversation with his classmates about the shooting that he alleged was factual and contained no threats from any student in the conversation. According to the 4th Circuit’s opinion, Starbuck “made remarks questioning the intent of the shooter, stating that the shooter would be capable of more harm had he wanted to, noting [the shooter’s] possession of explosives and considering the time the shooter was left alone within the building unchallenged by local law enforcement.”
A teacher reported the conversation to the local police and to school administration, resulting in Starbuck’s removal from class for the rest of the day. During this time, Starbuck alleged that school officials interrogated him and that the school police officer found no threat was made and no criminal offense occurred.
That evening, Starbuck’s parent was informed that he faced a two-day out-of-school suspension, citing “unspecified ‘threats.’” The initial in-school suspension was given due to concerns for Starbuck’s “own safety.”
Starbuck appealed his suspension, and the Williamsburg-James City County School Board found the suspension proper in May 2018. He later brought a 42 U.S.C. § 1983 action against the school board, alleging the suspension violated his First, Fifth and 14th Amendment rights, citing free speech and due process concerns.
Chief Judge Mark S. Davis of the U.S. District Court for the Eastern District of Virginia granted the school board’s motion to dismiss, finding that the U.S. Supreme Court’s decision in Monell v. Department of Social Services barred the suit.
In Monell, the Supreme Court found that local government bodies can be sued directly under § 1983 “where … the action that is alleged to be unconstitutional implements or executes a … decision officially adopted and promulgated by that body’s officers.”
Judge Diana Gribbon Motz, writing for a unanimous panel in a March 15 opinion, found that because the school board acted as the final policymaking authority in approving Starbuck’s suspension, Monell didn’t bar Starbuck’s suit.
“When a final policymaker has the authority to review the decision of a subordinate, its approval of that allegedly unconstitutional decision can … give rise to liability under Section 1983,” Motz wrote.
“The School Board’s approval of a suspension allegedly imposed to punish assertedly protected speech is a decision of a body with final policymaking authority. Monell teaches that such a decision gives rise to the School Board’s potential liability under 42 U.S.C. § 1983.”
After finding the school board open to liability, the 4th Circuit evaluated Starbuck’s First Amendment claim, citing how precedent has long held that students “do not ‘shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.’”
Motz wrote that Starbuck’s speech didn’t fall under any category that exempts it from First Amendment protections, and he “only engaged in a factual conversation with his peers about a current event that is uniquely salient to the lives of American teenagers, a school shooting.”
“Schools cannot silence such student speech on the basis that it communicates controversial or upsetting ideas,” Motz wrote.
The school board cited precedent where courts have found “that language reasonably perceived as threatening school violence is not constitutionally protected.” But Motz wrote that, when viewed in the light most favorable to him, Starbuck’s remarks “were non-threatening statements about the tragedy that any student could have uttered in response to the news.”
“The First Amendment does not permit schools to prohibit students from engaging in the factual, nonthreatening speech alleged here,” she wrote.
The 4th Circuit agreed with the district court’s ruling that Starbuck’s Fifth and 14th Amendment claims didn’t survive the school board’s motion to dismiss.
Regarding the Fifth Amendment claim, Motz said the Due Process Clause applies to federal actors, not municipalities, and that the Double Jeopardy Clause applies to criminal cases, not school discipline proceedings. The Self-Incrimination Clause also didn’t apply in this case, as Starbuck didn’t allege that school officials compelled him to furnish testimony that could incriminate him in later proceedings.
The court disagreed with Starbuck’s argument that the school board’s shift in the description of the reason for his suspension violated his 14th Amendment right to due process.
“To be sure, accusing a student of one act and then suspending him because he committed another could well violate the Due Process Clause if the student never had any opportunity to respond to the ultimate reason for the suspension. But that is not what happened here,” Motz said.
Throughout the proceedings, the school board didn’t attempt to change the factual basis for Starbuck’s suspension, but merely changed the wording to describe the basis, and Starbuck presented no precedent holding that in these circumstances merely changing the description of the reason for suspension constitutes a due process violation.
“The only constitutional infirmity alleged in Starbuck’s complaint is the punishment of protected speech itself,” Motz wrote.
The 14-page decision is Starbuck v. Williamsburg James City County School Board (Lawyers Weekly No. 001-057-22).
