Opinion
Civil Action No. 5:03-CV-165-C
November 10, 2003
ORDER
On this day the Court considered Defendant Jack Clemmons, Ed.D.'s Motion for Summary Judgment filed on August 6, 2003. Plaintiffs filed their Response on September 29, 2003. Defendant Clemmons filed a Reply on October 1, 2003. After considering all the evidence and arguments, the Court is of the opinion Defendant's Motion should be GRANTED.
I. BACKGROUND
On July 8, 2003, Plaintiffs filed their complaint in this Court. The Plaintiffs in this case are (1) Yvonne Caudillo, by next friend, Brenda Caudillo; (2) Mirah Epstein Curzer, by next friend, Howard Curzer; and (3) Lubbock High School Gay Straight Alliance, an unincorporated association. Defendants filed their Original Answers on July 30, 2003. The Defendants are (1) Lubbock Independent School District ("LISD"); (2) Wayne Havens, in his official capacity as Acting Superintendent of LISD ("Defendant Havens"); (3) Dr. Jack Clemmons, individually ("Defendant Clemmons"); and (4) Fred Hardin, in his official capacity as Assistant Superintendent for Secondary Schools of Lubbock ("Defendant Hardin"). On August 4, 2003, Defendant Clemmons filed his Motion for Summary Judgment and Brief in Support. Plaintiffs filed a Response on September 29, 2003. After obtaining leave from this Court, Defendant Clemmons filed a Reply on October 1, 2003.Although the parties have not been able to agree upon all facts, in their Joint Status Report filed August 14, 2003, the parties agreed upon and stipulated to the following facts:
LISD, by and through its Board of Trustees, adopted a limited open forum by virtue of its Board Policy FNAB (LEGAL). By doing so, the Equal Access Act, 20 U.S.C. § 4071 (a) et seq., applies. LISD has adopted an abstinence policy applying to all matters concerning sexual activity. On or about September 9, 2002, Joseph Schottland ("Schottland"), an LISD faculty member at Lubbock High School ("LHS"), wrote a letter to Defendant Hardin, the then Assistant Superintendent for Secondary Education, seeking permission for the Gay and Proud Youth Group ("GAP Youth") to post notices at LHS about their off-campus meetings. GAP Youth is now known as Lubbock Gay Straight Alliance ("LGSA").
On or about September 12, 2002, GAP Youth members Ricky Waite ("Waite") and Rene Caudillo ("Caudillo"), both LHS seniors who have since graduated, wrote to Roy Grimes, Board Trustee, for permission to advertise their group via the posting of fliers in the halls of LHS as well as making announcements over the school's PA system. On or about September 20, 2002, Waite and Caudillo, along with some of their relatives, made a presentation to Hardin requesting to post their fliers in the school's hallways and to make announcements over the school's PA system. On or about November 6, 2002, Waite and Caudillo made a formal written request to Defendants and the members of the School Board asking to be placed on the November 14, 2002 Board agenda so that they could request permission to post fliers. The letter included a list of goals, description of meeting, services to the community, and further included a paragraph as follows:
A FEW WORDS:
We are not in any way, "recruiting." Anyone who attends our functions does so of their own free will. We will use diplomatic tactics to provide guidance to youth. We will not be the ones making the decision about their sexuality and we will be working with other organizations, councilors [sic], etc. to provide the best help possible.
In addition, the stated goals in the letter included:
(1) Provide guidance to youth who come to us to the best of our ability and when we cannot provide help[,] relay them to those who can.
(2) Educate those willing about non-heterosexuals.
(3) Improve the relationship between heterosexuals and homosexuals.
(4) Help the community.
(5) Increase rights given to non-heterosexuals.
(6) Educate willing youth about safe sex, AIDS, hatred, etc.
(7) Enhance the relationship between youth and their families.
On November 6, 2002, Havens, then Deputy Superintendent, corresponded with Waite, Caudillo, and the GAP Youth founders acknowledging their request to address the Board of Trustees. They were placed on the November 14, 2002 agenda. On November 14, 2002, Waite addressed the Board of Trustees. The Board of Trustees took no action; however, GAP Youth was not allowed to post their fliers. On November 20, 2002, Schottland wrote Mark Griffin, President of the LISD Board of Trustees, expressing his concern with this decision. Schottland suggested that LISD allow the students to post notices in the school hallways, but that the students not have use of the school's PA system. On or about December 19, 2002, Waite made a request to Doyle Vogler ("Vogler"), Principal of LHS, to allow GAP Youth to meet on campus. Vogler denied the request. On or about December 19, 2002, Waite also made a written request to Defendant Hardin requesting that GAP Youth be allowed to meet on campus. Thereafter, Defendant Hardin phoned Waite and responded that the request was denied.
LGSA, formally GAP Youth, is a non-curriculum related group. At this time, the status of posting the fliers, making announcements, and meeting on the LHS campus remains the same for LGSA. LISD receives federal financial assistance. LISD maintains a policy that "the District shall not prohibit student expression solely because other students, teachers, administrators, or parents may disagree with its content."
At some point after Hardin phoned Waite and told him the request was denied, the group changed its name from Gay and Proud Youth to Lubbock Gay-Straight Alliance. No evidence was provided as to the exact date the name was changed, although the Court infers from the deposition testimony of Caudillo that the likely time frame was in the spring of 2003.
This lawsuit was brought for alleged violations of the Equal Access Act, 20 U.S.C. § 4071 et seq., and of the First Amendment pursuant to the Civil Rights Act of 1871, 42 U.S.C. § 1983 and 1988. Suit was also brought for declaratory relief pursuant to 28 U.S.C. § 2201-02.
II STANDARD
Summary judgment is appropriate only if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," when viewed in the light most favorable to the non-moving party, "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986) (internal quotations omitted). A dispute about a material fact is "genuine" if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Id. at 248. In making its determination, the court must draw all justifiable inferences in favor of the non-moving party. Id. at 255.
Once the moving party has initially shown "that there is an absence of evidence to support the nonmoving party's case," Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986), the non-movant must come forward, after adequate time for discovery, with significant probative evidence showing a triable issue of fact. FED. R. Civ. P. 56(e); State Farm Life Ins. Co. v. Gutterman, 896 F.2d 116, 118 (5th Cir. 1990). Conclusory allegations and denials, speculation, improbable inferences, unsubstantiated assertions, and legalistic argumentation are not adequate substitutes for specific facts showing that there is a genuine issue for trial. Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428 (5th Cir. 1996) (en banc); SEC v. Recile, 10 F.3d 1093, 1097 (5th Cir. 1993). To defeat a properly supported motion for summary judgment, the non-movant must present more than a mere scintilla of evidence. See Anderson, 477 U.S. at 251. Rather, the non-movant must present sufficient evidence upon which a jury could reasonably find in the non-movant's favor. Id.
Finally, in reviewing the summary judgment evidence, "Rule 56 does not impose upon this Court a duty to sift through the record in search of evidence to support a party's opposition to summary judgment." Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998). Rather, the Court need rely only on those portions of the submitted documents to which the nonmoving party directs the Court's attention. Id. See also Forsyth v. Barr, 19 F.3d 1527, 1536-37 (5th Cir. 1994) (finding that two volumes of summary judgment evidence was insufficient to preclude summary judgment when plaintiffs failed to identify specific portions which supported their claims). Moreover, Local Rule 56.5(c) expressly requires that a party filing an appendix "must include in its brief citations to each page of the appendix that supports each assertion that the party makes concerning the summary judgment evidence." This Court will only consider the admissible summary judgment evidence discussed and specifically identified in the parties' motions and responses.
In cases where the defense of qualified immunity is raised, the moving party is not required to put forth evidence to meet its summary judgment burden for a claim of immunity. Beck v. Tex. State Bd. of Dental Exam'rs, 204 F.3d 629, 633 (5th Cir. 2000). "It is sufficient that the movant in good faith pleads that it is entitled to absolute or qualified immunity." Id. The burden is on the plaintiff to overcome a defendant's defense of qualified immunity. Burns-Toole v. Byrne, 11 F.3d 1270, 1274 (5th Cir. 1994). Plaintiff must plead facts with sufficient particularity so that the facts, if proved, would warrant the relief sought. Id. Heightened pleadings in qualified immunity cases requires that the plaintiffs rest their complaint on more than mere conclusions alone and plead their case with precision and factual specificity. Reyes v. Sazan, 168 F.3d 158, 161 (5th Cir. 1999).
III. DISCUSSION
Defendant Clemmons proposed certain issues of law in the parties' Joint Status Report. The same were presented in his Motion for Summary Judgment. Those proposed issues of law include:
(1) Whether Defendant is entitled to qualified immunity on the basis that Defendant's denial of access to Plaintiffs was not in violation of a clearly established constitutional right.
(2) Whether Defendant is entitled to qualified immunity on the basis that Defendant's conduct was objectively reasonable.
Plaintiffs also proposed certain issues of law in the Joint Status Report and in their Response to Defendant Clemmons' Motion for Summary Judgment. The first two are highly relevant to Defendant Clemmons and his Motion for Summary Judgment. Those proposed issues of law include:
(1) Whether Defendants violated the Equal Access Act.
(2) Whether Defendants violated the First Amendment to the United States Constitution.
(3) Whether the asserted policies of a local governmental entity can serve as an affirmative defense to an action based exclusively on federal law.Qualified Immunity
Officials sued in their individual capacity may assert a defense of qualified immunity. See Petta v. Rivera, 143 F.3d 895, 898 (5th Cir. 1998). The doctrine of qualified immunity serves to shield a government official as "an immunity from suit rather than a mere defense to liability[.]" Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 2156 (2001) (quoting Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)). Because qualified immunity is an immunity from suit, the affirmative defense should be resolved at the earliest possible stage of litigation, Saucier, 121 S.Ct. at 2156, and should protect "all but the plainly incompetent or those who knowingly violate the law." Malley v. Briggs, 475 U.S. 335, 344-345 (1986).
In analyzing whether an individual defendant is entitled to qualified immunity, the Court must ask a threshold question: "Taken in the light most favorable to the party asserting the injury, do the facts alleged show the [defendant]'s conduct violated a constitutional right?" Saucier, 121 S.Ct. at 2156. The Fifth Circuit does "not require that an official demonstrate that he did not violate clearly established federal rights; [precedence] places that burden upon plaintiffs." Thompson v. Upshur, 245 F.3d 447, 456 (5th Cir. 2001). "[I]f a [constitutional] violation could be made out on a favorable view of the parties' submissions, the next, sequential step is to ask whether the right was clearly established." Id. (alterations added). In other words, the Court should examine whether it would be clear to a reasonable defendant that his conduct is unlawful in the situation he confronted. Wilson v. Layne, 526 U.S. 603, 615 (1999).
To the extent that the plaintiff is able to show that a violation of a clearly established constitutional right occurred, the Court must then make an additional inquiry and determine whether the defendant official's alleged conduct was objectively reasonable in light of the constitutional right allegedly violated. See Glenn v. City of Tyler, 242 F.3d 307, 312 (5th Cir. 2001). However, if the plaintiff is unable to show a constitutional violation or that such a right was clearly established at the time, the inquiry ceases and there is no need to address the next step of the analysis of objective reasonableness. Nunez v. Simms, 341 F.3d 385, 392 (5th Cir. 2003). "The defendant's acts are held to be objectively reasonable unless all reasonable officials in the defendant's circumstances would have then known" that the defendant's conduct violated the plaintiffs asserted constitutional rights or a federal statute. Thompson, 245 F.3d at 457 (emphasis in original). The "defendant's circumstances" include facts known to the defendant at the time, Id., and the particulars of the challenged conduct. Pierce v. Smith, 117 F.3d 866, 872 (5th Cir. 1997). However, a particular defendant's subjective state of mind has no bearing on whether he is entitled to qualified immunity. Id. at 871 n. 5. If defendants "of reasonable competence could disagree on th[e] issue, immunity should be recognized." Malley v. Briggs, 475 U.S. 335, 341 (1986). This second step of objective reasonableness applies the law that was clearly established at time of the alleged violation. Thompson, 245 F.3d at 457. Determination of objective reasonableness is a question of law for the courts to decide. See Kipps v. Caillier, 197 F.3d 765, 768 (5th Cir. 1999).
The purpose of qualified immunity is to protect governmental officials from civil suit when the official has made a discretionary decision. In order for such officials to operate efficiently and effectively, such protection is of course needed. The immunity is not boundless and thus an official who knowingly violates the law or who is plainly incompetent cannot claim qualified immunity. However, a defendant must be given fair warning that his conduct violates clearly established constitutional or statutory law. In determining whether a right is clearly established, a court is not confined to precedent from this circuit or the Supreme Court, but may under some circumstances also consider "a consensus of cases of persuasive authority." McClendon v. City of Columbia, 305 F.3d 314, 329 (5th Cir. 2002) (en banc). The salient question is whether the state of law at the time of the action gave the defendant fair warning that the alleged treatment of the plaintiffs was unconstitutional. Williams v. Kaufman County, 343 F.3d 689, 698 (5th Cir. 2003). Because officials can be on notice that their conduct violates established law even in novel factual circumstances, previous cases need not be "fundamentally similar." Hope v. Pelzer, 536 U.S. 730, 741 (2002). Earlier cases involving "fundamentally similar" or "materially similar" facts may provide especially strong support for a conclusion that the law is clearly established; but they are not necessary for such a finding. Id. However, the unlawfulness of the official's action must be apparent in light of pre-existing law in order to preclude the official from invoking qualified immunity. Anderson, 483 U.S. at 640.
The mere fact that a large number of courts have recognized the existence of a right in some circumstances is insufficient to clearly establish the unlawfulness of the action. McClendon, 305 F.3d at 330 (emphasis added). "[T]he operation of the clearly established standard depends substantially upon the level of generality at which the relevant legal rule is defined." Id. at 330-31. An alleged constitutional or statutory violation must bear a "relationship to the `objective legal reasonableness' that is the touchstone of the qualified immunity analysis." Id. at 331 (citing Anderson, 483 U.S. at 640) (brackets omitted). Therefore, it should not be surprising that the right the official allegedly violated must have been clearly established in a more particularized and relevant sense than merely a broad generalized violation. Anderson, 483 U.S. at 640. While general statements of the law are not inherently incapable of giving fair warning, general principals of the law are less likely to provide fair warning where, as here, applicability of the right is highly context-sensitive. See McClendon, 305 F.3d at 332 and n. 13. This is not a situation where a general rule already identified in decisional law "applied with obvious clarity to the specific conduct in question." Id. at 332.
The Court finds the appropriate level of generality in this case relates to the issue of whether a school and its officials may deny a gay-straight student group access to the campus. In a more highly specific query relevant to this case, the issue presented here is whether a school superintendent may deny access to the school's bulletin boards, PA system, and group meeting areas if a prospective student group 1) lists as one of its goals that it will discuss subject matter relating to sexual activity and birth control other than abstinence — a subject matter the school's administration and board of trustees have declared inappropriate for the forum; and 2) seeks to advertise itself by posting fliers with the group's website address which has direct links to sites that contain explicit sexual material and discussions. It is well worth noting that the GAP Youth group did not limit its goals to political, social, or tolerance issues. It purposefully chose to include as a stated goal that GAP Youth would "educate willing youth about safe sex." Furthermore, the group purposefully chose to include an address to its website where links to explicit sexual material could be found. Plaintiffs' requests to meet on campus did not comport with all of the District's regulations, specifically the policy banning discussion of sexual activity and birth control other than abstinence.
Plaintiffs state that "both the law of the Fifth Circuit and the consensus of cases nationwide demonstrates that Clemmons has violated the clearly-established rights of Plaintiffs."
The Court disagrees. In the end, since no cases exist within this circuit relating to whether public secondary schools may rightfully ban a gay-straight student group from access to a secondary school campus, the cases outside the Fifth Circuit must have defined the right with sufficient clarity to enable a reasonable official to assess the lawfulness of his conduct. McClendon, 305 F.3d at 330. Therefore, this Court must assess whether the six cases cited by Plaintiffs, recognizing the existence of a right for gay-straight student groups to meet on a public secondary school campus, established the contours of that right with sufficient clarity to provide a reasonable superintendent with fair warning that denying the group access to the campus would violate Plaintiffs' rights.
The Court is aware that almost two decades ago the Fifth Circuit held that a public university could not discriminate against gay students who sought to form an organization. See Gay Student Services v. Texas AM University, 737 F.2d 1317 (5th Cir. 1984). However, this ruling did not have a direct impact on primary through secondary public schools because the law distinguishes the rights of minors in a public school arena from the rights of adults.
Plaintiffs cite to East High Gay/Straight Alliance v. Bd. of Educ., 81 F. Supp.2d 1166 (D. Utah 1999); East High Sch. Prism Club v. Seidel, 95 F. Supp.2d 1239 (D. Utah 2000); Collin v. Orange Unified Sch. Dist., 83 F. Supp.2d 1135 (C.D. Cal. 2000); Gay-Straight Alliance Network v. Visalia Unified Sch. Dist., 262 F. Supp.2d 1088 (E.D. Cal. 2001); Franklin Cent. Gay/Straight Alliance v. Franklin Tp. Cmty. Sch. Corp., 2002 WL 32097530 (S.D. Ind. 2002); Boyd County High Sch. Gay Straight Alliance v. Bd. of Educ., 258 F. Supp.2d 667 (E.D. Ky. 2003).
Under the circumstances of this case, this Court cannot say that the unlawfulness of Defendant Clemmons' particular actions should have been apparent to him in light of clearly established law at the time of the actions. The relatively few cases addressing the issue on a level of generality relevant to this case occurred not only outside of this circuit, but also in federal district courts. None of the cases consisted of opinions handed down by a circuit court. Such a fact seems relevant since the Fifth Circuit has stated that "even if a `consensus' of circuits had adopted" the relevant rule, such an adoption still may not have provided a defendant with fair warning. McClendon, 305 F.3d at 332-33 (emphasis added to show that the consensus of cases should be from a higher level than obscure district court orders).
Clemmons may have had fair warning that generalized limits on a student's free speech might violate the First Amendment; the law was less clear whether, in the context of secondary school students, limits on the speech of a group of minors whose goals included discussing safe sex and providing a website with direct links to materials that clearly discussed explicit sexual acts, might violate the First Amendment. Defendant's Brief cites to Supreme Court precedence which allows limitations on speech of a sexual nature or speech that might be considered inappropriate for secondary school students. In such a context, it cannot be said that Defendant Clemmons violated the clearly established First Amendment rights of Plaintiffs. Nor can it be said that his actions were objectively unreasonable, especially when viewed in the light that all reasonable superintendents in similar circumstances may not have acted differently. Therefore, the Court finds that Plaintiffs have failed to meet their burden of showing that Defendant Clemmons violated a clearly established First Amendment right of which all other similarly situated superintendents would have been aware and would have acted differently under the circumstances.
Defendant also contends that the safety of the children was considered in denying the group's requests. The argument includes preventing harassment of students within the group and efforts to prevent claims being brought against the District for helping to create a dangerous situation and failing to protect students from acts of violence that occur on campus. The Court notes that the latter argument proffered by Defendant is within the "state-created danger" doctrine, and the Fifth Circuit has not adopted such a theory at this time.
Plaintiffs also assert claims that Defendant Clemmons violated their clearly established Equal Access Act ("EAA") rights.
It shall be unlawful for any public secondary school which receives Federal financial assistance and which has a limited open forum to deny equal access or a fair opportunity to, or discriminate against any students who wish to conduct a meeting within that limited open forum on the basis of the religious, political, philosophical, or other content of the speech at such meetings.20 U.S.C. § 4071 (a) (1990).
As stated above, schools may not discriminate on the basis of the content of the speech. However, the EAA does not limit a school's authority to properly maintain order and discipline on school premises, protect the well being of the students and faculty, and assure that attendance of students at meetings is voluntary. 20 U.S.C. § 407 l(f) (listing exclusions to the EAA). The relevant question is whether it should have been clear to Defendant Clemmons that denying the GAP Youth group access to the bulletin boards, PA system, and meeting areas of the campus violated the EAA. Here, Defendant Clemmons relied upon exceptions to the EAA. Clemmons stated in both his deposition testimony and in a sworn affidavit that he considered the then current criminal laws of Texas and determined that he could not allow a group to meet on campus that by its purpose and goals condoned directly or indirectly conduct that was classified as unlawful by state law. Such an assertion was made in reliance of the "maintaining order" exception to the EAA. Upholding the law is in fact a form of maintaining order. Defendant Clemmons further contends that the safety of the students was considered, as well as the District's liability for establishing a situation allowing harassment and possible physical injury to a student. See supra footnote 4. Clemmons also asserted that he believed the district's policy of prohibiting discussion of sexual activity or birth control other than abstinence fell within the "well being of the student" exception to the EAA.
Clemmons may have had fair warning that the Equal Access Act does not allow discrimination in a "limited open forum" based on the context of a group's speech; but, again, the law was much less clear about whether exceptions to the EAA permitted Defendant Clemmons to deny the group's requests to post fliers, use the PA system, and meet on campus. Plaintiffs maintain that cases resolving the issue have rejected the "maintaining order and discipline" exception to the EAA in situations relating to gay-straight student groups. As stated above, the cases on which Plaintiffs rely were from five district courts outside of this circuit. Because the cases dealing with the issue of gay-straight alliances at public secondary schools were outside of this district, this state, and this circuit, it cannot be said that the law was clearly established within this circuit or even within the circuits from which the district courts issued their orders. Nor can it be said that Defendant Clemmons' reliance upon the exceptions to the EAA were objectively unreasonable. It cannot be concluded that all reasonable superintendents would view a policy which bans the discussion of sexual activity and birth control other than abstinence as falling beyond the "well being of the student" exception. The policy is a means of promoting the health, safety, and welfare of the students. Under the circumstances of this case, invoking exceptions to the EAA is not a violation of clearly established statutory rights of which all reasonable superintendents in Clemmons' "circumstances would have then known" that such conduct violated the EAA.
CONCLUSION
Absent contrary authority other than from far-flung district courts, this Court finds it impossible to conclude that Defendant Clemmons was either "plainly incompetent" or "knowingly violat[ing] the law" when he denied GAP Youth access to the LHS campus. For the reasons set forth above, the Court is of the opinion that Defendant Clemmons' Motion for Summary Judgment Based on Qualified Immunity should be GRANTED and Plaintiffs claims against Defendant Clemmons in his individual capacity should be DISMISSED with prejudice. All relief not expressly granted is denied. The Court makes no findings or conclusions regarding Plaintiffs' suit against the other Defendants.
SO ORDERED.