Government Liability Update

School District Can Be Held Liable for Injury to Student When School Bus Does Not Arrive on Time and Student Gets Ride to School

In Brinsmead v. Elk Grove Unified School District, published September 18, 2023, the Third District Court of Appeal reversed an order of dismissal entered after the trial court sustained the defendant district's demurrer.  According to the complaint, the plaintiffs' daughter was enrolled in the district's school bus program.  One morning, the daughter was present at the bus stop at the scheduled arrival time, to take the bus to school.  The bus did not arrive.  Neither the daughter nor her parents received notice of a delay in the bus service.  Forty minutes after the scheduled arrival time, the daughter got a ride to school in a friend's car.  During the ride, the car was hit head-on by another driver.  The daughter sustained fatal injuries.  The parents sued the school district for wrongful death and a survivor's action.  The district demurred to the complaint on the ground that Education Code section 44808 rendered it immune because the district had not yet begun to undertake the daughter's transportation to school.  After allowing leave to amend, the court sustained the demurrer to the amended complaint without leave to amend.

The appellate court disagreed.  Under Education Code section 44808, a district is immune from liability for the conduct or safety of pupils when not on school property.  But section 44808 provides an exception to immunity and a duty of care where the district has undertaken to provide transportation for a pupil to and from the school premises.  If the district makes that undertaking, it is liable for the pupil's safety while the pupil is or should be under the immediate and direct supervision of a district employee.  When a district accepts a student’s enrollment in a district’s school bus program to provide stable and reliable transportation to school, that acceptance constitutes a “specific undertaking” by the district within the meaning of section 44808.  The court rejected an argument that the undertaking begins only when a bus arrives.  The undertaking occurs both when the school bus arrives and transports students and also when the district accepts the responsibility of providing that transportation.  The appellate court further interpreted section 44808's phrase "should have been under  . . . supervision" to cover the time during which the bus should have arrived and provided transportation to a student.  Whether a particular student was or should have been under a district employee's direct supervision is a question of fact.  The parents therefore adequately alleged the daughter should have been under district supervision by the time she decided to find other transportation and was fatally injured.

School District Did Not Violate Confidentiality of Medical Information Act by Requiring Employee to Provide Verification of COVID-19 Vaccination Status or Undergo Weekly Testing

In Rossi v. Sequoia Union Elementary School District, published August 25, 2023, the Fifth Appellate District affirmed dismissal after demurrer was sustained in this case and in two other related appeals arising out of similar circumstances.  During the State of Emergency declared due to COVID-19, the State Public Health Officer issued an order requiring K-12 schools to verify the COVID-19 vaccination status of all school workers.  The plaintiff was providing in-person classroom assistance when the order issued.  The plaintiff repeatedly refused to disclose her vaccination status or undergo weekly testing.  After attempts to accommodate her with at-home employment, the district eventually terminated her employment.  The plaintiff sued the school district under the Confidentiality of Medical Information Act, Civil Code section 56 et seq.  She alleged causes of action for discrimination due to the plaintiff's refusal to authorize a release of her medical information (Civil Code section 56.20(b)) and for unauthorized use of her medical information, in violation of section 56.20(c).  The trial court sustained the district's demurrer without leave to amend.

The appellate court held that the section 56.20(b) claim was properly resolved by demurrer.    Section 56.20(b) provides that nothing in the section shall prohibit an employer from taking such action as is necessary in the absence of medical information due to an employee's refusal to sign an authorization permitting a health care provider to release information to others.  Where an employer demonstrates that it acted out of a legal necessity to comply with a lawful order, the exception's application can be determined as a matter of law, because it turns on interpretation of the order.  Here, there was no room for factual debate on how the district could have complied with the health order's requirements other than directing her to stay home, and terminating her when it was clear she was never going to test.  As for the section 56.20(c) cause of action, the trial court properly sustained the demurrer because the plaintiff failed to plead a prima facie case that her medical information was "disclosed."  It did not appear she could save her complaint by amendment, so the trial court properly sustained the demurrer without leave to amend.

School District Complaint Form Did Not Substantially Comply with Claim Requirements and Did Not Serve as a Claim as Presented; No Equitable Estoppel Where Claimant Obtains Counsel within Time to Seek Late-Claim Relief

In A.S. v. Palmdale School District, published August 28, 2023, the Second District Court of Appeal, Division 8 affirmed dismissal of a personal injury suit against a school on demurrer.  On March 5, 2019, an elementary school teacher allegedly grabbed the minor plaintiff's arm and twisted it, resulting in an injury.  The next day, the plaintiff's mother went to the school to file a complaint.  The receptionist told her to go to the school district.  She went to the district office.  The receptionist told the mother that the assistant superintendent had instructed her to give the mother a form entitled "Complaint Form--Employee Student Issue."  The mother asked if there were any other forms she needed to complete.  The receptionist said the assistant superintendent had only instructed her to provide that form.  The mother took the form home and completed it.  In the form, she described the incident, her son's injury, and the medical treatment.  She complained about the school's investigation, and alleged the principal was biased.  She suggested that a thorough district level, unbiased investigation be conducted, and that the teacher receive discipline.  She returned, gave the form to the assistant superintendent, and asked if there were any other documents or paperwork to complete.  He said there were none, and promised a full inquiry would be made and he would be in touch with her.  On February 25, 2020, the minor, now represented by counsel, filed suit.  He alleged that he had complied with the Government Claims Act, and attached a copy of the school complaint as an exhibit to the complaint.  The district demurred three times to the complaint, on the ground that the plaintiff did not comply with the Government Claims Act.  The first two demurrers were sustained with leave.  The third was sustained without leave, and the action was dismissed.

The appellate court ruled that the demurrer was properly sustained.  The school complaint form did not substantially comply with the claims requirement.  A document does not substantially comply with the claims requirement where it entirely omits a claim element required by Government Code section 910.  Under section 910, the claim must show the amount claimed if under $10,000; and if over $10,000 shall indicate whether the claim would be a limited civil case.  The form specified several administrative actions the plaintiff wanted the district to take, but did not state he was seeking monetary damages and made no attempt to estimate the amount of damages or state whether the claim would be a limited case.  It therefore did not substantially comply with the claim requirements.  The district did not waive noncompliance as an affirmative defense by failing to serve a Notice of Noncompliance under Government Code section 910.8.  A public entity must serve such a notice to object to a deficiency in a document that serves as a "claim as presented."  The most important element of a "claim as presented" is that it discloses the existence of a claim against the defendant that, if not satisfied, will result in litigation.  The complaint form here in no way suggested he was seeking compensation or was threatening litigation.  The court rejected the plaintiff's contention that the district was equitably estopped from asserting noncompliance because the assistant superintendent represented that the complaint form was the only form needed.  Even if those statements could have estopped the district while the claimant was unrepresented,  the law recognizes that circumstances may change and render estoppel no longer appropriate.  Here, the claimant obtained counsel and filed suit within the time to apply to the district for leave to present a late claim. The counsel was charged with knowledge of the law in California, including the Government Claims Act.  Further, the allegations of the complaint showed that the counsel was actually aware of the claim presentation requirement.  The plaintiff was charged with his attorney's knowledge of the claim presentation requirement.  He therefore could not satisfy the ignorance or reliance elements of equitable estoppel.  Although the record did not show the exact date the attorney was retained, he filed the suit within one year of the incident, showing that the claimant knew of the claim requirement within the one-year period to apply for leave to present a late claim.

While Evidence of Minor Plaintiff’s Subsequent Molestation May be Introduced into Childhood Sexual Abuse Trial, Trial Court Must Follow Statutory Procedure in Deciding What Evidence, if Any, to Allow

 

In Jane S.D. Doe v. Superior Court (Mountain View High School Dist.), published July 27, 2023, the California Supreme Court reversed a trial court decision denying a pretrial motion in limine.  The plaintiff sued the district to recover for sexual abuse committed by her fourth-grade teacher in 2009-2010.  There was evidence she was then molested by a family friend in 2013.  The plaintiff moved in limine under Evidence Code sections 352 and 1106 to bar evidence of the 2013 molestation.  The district contended that the 2013 incident may be the cause of the plaintiff’s emotional harm from 2013 forward.  It submitted sealed filings setting out what it knew of the 2013 molestation, and included a declaration as to the relevance of the evidence.  The trial court ruled that the evidence of the 2013 molestation fell outside the scope of any shield statute.  It reasoned that the statutory term “sexual conduct” in the shield statutes covers only voluntary conduct or a willingness to engage in such conduct; and that the molestation was involuntary.  The court then analyzed the admission of the evidence under Evidence Code sections 780 (credibility) and 352.  The court ruled that the district should be allowed to elicit information about the second molestation, in the most minimally invasive manner possible; and that under section 352, the probative value was not substantially outweighed by undue delay, prejudice, or misleading the jury.  After the ruling, the plaintiffs’ counsel petitioned the appellate court for a writ of mandate.  The appellate court initially granted a stay of trial that day, but denied the writ and dissolved the stay the next day.  The plaintiff’s counsel petitioned the Supreme Court for review.  Opening statements proceeded in the trial court.  In opening statement, the plaintiff’s counsel mentioned the evidence of the 2013 molestation.  The district’s counsel stated the evidence would show that the plaintiff blamed her emotional distress entirely on the employee’s molestation, but that it would introduce expert testimony diagnosing the plaintiff with PTSD from the 2013 molestation.  After some witnesses testified, the Supreme Court stayed the trial,  granted review, and remanded the matter back to the court of appeal. The trial court stayed the case, but told the jury that would be recalled for resumption of the trial.  The appellate court ruled that the shield statutes did apply, including the requirement under section 1106 that evidence could be admitted under Evidence Code section 783 if it went to credibility.  It then ruled that the trial court had in essence conducted the evidentiary hearing section 783 required.  The appellate court also upheld the trial court’s section 352 analysis.  It remanded the case for further trial proceedings.  The Supreme Court granted a second petition for review.

 

The Supreme Court concluded that the evidence of the 2013 molestation might be admissible under Evidence Code sections 1106, 783, and 352.  Section 1106(a) generally shields sexual harassment, sexual assault, or sexual battery plaintiffs by barring evidence of a plaintiff’s sexual conduct to prove consent by the plaintiff or absence of injury to the plaintiff.  Section 1106(e) states that the statute does not make inadmissible evidence offered to attack the plaintiff’s credibility under section 783.  Section 783(d) provides that the court may allow introduction of evidence regarding the plaintiff’s sexual conduct so long as the evidence is relevant pursuant to section 780 (governing witness credibility) and not inadmissible under section 352 (discretionary exclusion of relevant evidence due to undue prejudice).  Sections 1106(e) and 783, the Supreme Court ruled, address overall witness credibility, not just situations where the defendant contends the plaintiff is offering false testimony.  Credibility also concerns such matters as accuracy and memory.  Sections 783, 780, and 352 do work together to prevent admission of evidence that is unnecessarily harassing, irrelevant, or unduly prejudicial, but do not limit admission to challenging allegedly false testimony.  The Supreme Court disagreed with the appellate court’s conclusion that the trial court essentially carried out the evidentiary hearing procedure prescribed in section 783, however.  The statute requires that the trial court hold a robust hearing out of the presence of the jury, at which it would allow the questioning of the plaintiff regarding the offer of proof made by the defendant.  Here, the questioning would have been expected to address whether the plaintiff claimed 100 percent of her emotional distress damages is attributable to the employee molestation and none to the 2013 molestation.  Further, once determining the evidence was admissible, the trial court should have made an order stating what evidence the district could introduce and the nature of the questions to be permitted.  As a result, the district’s legal arguments throughout the litigation were a moving target.  Finally, the trial court’s section 352 analysis should be applied to serve the intent of the shield statutes to guard against unwarranted intrusion into the victim’s private life; and focus on the prejudice suffered by complainants who may experience harassment and intimidation, all weighed against the defendant’s right to a fair adjudication and to counter a plaintiff’s evidence.  The Supreme Court remanded the matter to the trial court to undertake proper proceedings under sections 1106 and 783.

Primary Assumption of the Risk Doctrine Does Not Apply to Mandatory Physical Education

In Nigel B. v. Burbank Unified School District, published July 3, 2023, the Second District Court of Appeal, Division 5 reversed a jury verdict against the defendant school district and its physical education teacher.  The plaintiff was an eighth grade student.  Another student often bullied him.  During a PE class, the plaintiff participated in a touch football game.  The student who had been bullying the plaintiff ran into the plaintiff at full speed, causing him to fly several feet in the air and land on his left side.  The plaintiff suffered a tear in his anterior cruciate ligament.  At the time of the injury, the PE teacher sat on a chair 220 feet from the field, doing paperwork.  The plaintiff sued the PE teacher and the district for negligence and breach of a mandatory duty imposed by Education Code section 49079, and sued the student who hit him and the student’s parents for battery and intentional infliction of emotional distress.  At trial, the trial court declined to instruct the jury on the primary assumption of risk doctrine.  Over the defendants’ objections, the trial court created a special verdict form that asked the jury whether the student who hit the plaintiff acted in a manner that was negligent and intentional, and only to apportion fault to the student if the student’s conduct was negligent rather than intentional.  The jury found that the district had failed to carry out a mandatory duty; that the failure was a substantial factor in causing harm to the plaintiff; and that the student intentionally injured the plaintiff.  The jury did not apportion fault between the student and the district.

 

The appellate court reversed the finding of breach of mandatory duty.  Education Code section 49079 requires a school district to inform teachers about students who have engaged in or are reasonably suspected of engaging in physical injury or willful violence upon another person, or harassment, threats, or intimidation.  There was no substantial evidence that the district knew or reasonably suspected the student who injured the plaintiff was engaged in such conduct before the plaintiff’s injury.  Although there was substantial evidence of the PE teacher’s failure to report another student’s intentional injury of the plaintiff, there was no substantial evidence this failure was a substantial factor in causing the plaintiff’s injury.  The appellate court therefore directed that judgment be entered for the district.  The appellate court affirmed the trial court’s refusal to instruct the jury on the primary assumption of risk doctrine.  Although the doctrine applies to a range of school activities, they are all activities in which students voluntarily participate.  The court declined to extend the doctrine’s application to a sports activity that was part of a mandatory physical education class.  It is the compulsory nature of education that imposes a duty on school districts to take reasonable steps to protect students.  Finally, the appellate court reversed the trial court’s ruling that the defendants could not apportion fault to the other student if he acted intentionally.  A negligent tortfeasor is entitled to apportion fault to an intentional tortfeasor.

Public Entity Immunity to Punitive Damages Applies Broadly, and Bars Enhanced Damages under Code of Civil Procedure Section 340.1

In Los Angeles Unified School District v. Superior Court (Jane Doe), published June 1, 2023, the California Supreme Court affirmed a lower appellate court case reversing denial of a motion to strike a damages claim.  An alleged victim of sexual abuse by an employee of the school at which she was a student sued the defendant school district alleging negligence and failure to report suspected child abuse.  She sought an award of up to treble damages from the district under Code of Civil Procedure section 340.1(b)(1), as amended in 2019.  The district moved to strike from the complaint allegations of a cover-up and the request for treble damages, under Government Code section 818, which bars punitive and exemplary damages from being awarded against public entities.  The trial court denied the motion, and concluded that section 340.1(b)(1)'s treble damages provision was intended to be compensatory, not punitive.  The court of appeal granted the district's writ petition reversing the trial court's decision.  The appellate court determined that the treble damages were primarily punitive and thus barred by section 818.  The California Supreme Court granted review of the ruling.  While review was pending, other court of appeal agreed that enhanced damages under section 340.1(b)(1) are not recoverable against public entities.

The Supreme Court unanimously agreed with the appellate court's conclusion.  Government Code section 818 provides, “Notwithstanding any other provision of law, a public entity is not liable for damages awarded under Section 3294 of the Civil Code or other damages imposed primarily for the sake of example and by way of punishing the defendant.”  While the statute clearly shields public entities from punitive damages, also referred to as exemplary damages, its language establishes that its prohibition can extend to more than just what are conventionally referred to as punitive damages.  It applies to other damages imposed primarily for the sake of example and by way of punishing the defendant.  It therefore also applies to other kinds of damages when they function, in essence, as awards of punitive or exemplary damages.  This comports with the purpose of the statute, which codifies the common law rule exempting public entities from punitive damages because such damages impoverish the public treasury without serving any admonitory function.  Based on past case law, considerations relevant to determining whether a particular award is barred under section 818 may include whether the damages involved go beyond those necessary to fully compensate the plaintiff; whether a damages remedy functions to offset some otherwise applicable restriction on compensatory
damages; whether there is an element of discretion by the fact finder in the award of damages; and whether in the normal course actual damages are likely to be difficult to establish or quantify.  The ultimate question remains whether the damages function in essence as a form of punitive or exemplary damages.  The court noted previous decisions it had made reading section 818 narrowly, as only applying to damages that are "simply and solely" punitive:  People ex rel. Younger v. Superior Court (1976) 16 Cal.3d 30; San Francisco Civil Service Assn. v. Superior Court (1976) 16 Cal.3d 46; and Kizer v. County of San Mateo (1991) 53 Cal.3d 139.  The court overruled those decisions insofar as they articulated the "simply and solely" or "simply or solely" punitive standard.  The court then concluded that the enhanced damages that section 340.1(b)(1) authorizes amount to punitive damages for purposes of section 818.  Section 340.1(b)(1) provides that, in an action seeking damages suffered due to childhood sexual assault, “a person who is
sexually assaulted and proves it was as the result of a cover up may recover up to treble damages against a defendant who is found to have covered up the sexual assault of a minor, unless prohibited by another law.”  The court interpreted "unless otherwise prohibited by another law" as referring to Government Code section 818.  Section 340.1(b)(1) authorizes treble damages only upon proof of morally offensive behavior on behalf of the defendant.  The decision to increase the award lies entirely with the fact finder.  If the fact finder decides to increase the damages award, the amount by which it does so, although capped at treble damages, is not fixed.  The awards require the existence of actual injury, but may go substantially beyond the amounts necessary to fully compensate plaintiffs for the injuries they have suffered.  The court did not find any nonpunitive characteristic or function that sufficiently distinguishes the enhanced damages from punitive damages.  The court further noted that the language of section 340.1(b)(1).

Childhood Sexual Assault Cases Litigated to Judgment Based on Claim Timeliness Were Not Revived by AB 218

In M.D. Doe, et al., v. Marysville Joint Unified School District, ordered published March 27, 2023, the Third District Court of Appeal affirmed the dismissal of the plaintiffs' lawsuit after demurrer.  In 2002, the plaintiffs sued the district and an employee, alleging their school counselor sexually abused them.  in that lawsuit, the trial court entered judgment for the district after finding that the plaintiffs had failed to timely present a claim to the district.  The appellate court affirmed, and the California Supreme Court denied review.  In 2019, the Legislature passed Assembly Bill 218, amending Code of Civil Procedure section 340.1 to extend the statute of limitations for victims bringing childhood claims of sexual assault that had not been "litigated to finality."  The plaintiffs then filed this lawsuit, predicated on the same facts as the 2002 suit.  The trial court sustained the district's demurrer, without leave to amend, based on res judicata.  On appeal, the plaintiffs argued that because their first action was dismissed based on timeliness, res judicata did not apply because their previous claims were not "litigated to finality" on the merits,  and may therefore be revived; and that dismissing the claims violated equal protection.

The appellate court rejected the plaintiffs' interpretation of section 340.1's "litigated to finality" argument.  The plain language of section 340.1 does not support the interpretation.  Under the statute's language, the statute only revives claims that have not already reached final adjudication.  The plaintiffs' claims were litigated to completion:  summary judgment, affirmed on appeal, with the Supreme Court denying review.  The prior version of section 340.1 stated that the revival provision of section 340.1 does not apply to claims litigated to finality on the merits.  The Legislature had good reason to remove that language:  reopening a case litigated to finality would be unconstitutional.  Under separation of powers, the power to conclusively resolve cases by rendering dispositive judgments rests with the judiciary alone.  The Legislature therefore may not reverse final judgments.  AB 218 therefore negates the plaintiffs' interpretation, as the Legislature expressly removed language permitting plaintiffs to reopen cases disposed of on nonmerit-based grounds.  The Legislature intended that all claims litigated to finality, regardless of the basis for adjudication, may not be revived under section 340.1.  Further, plaintiffs' argument that their action was dismissed as untimely under the statute of limitations is inaccurate.  Instead, the courts found the plaintiffs failed to timely present a claim under Government Code section 911.2.  The timeliness requirements are similar, but different.  The court further rejected the argument that treating those who litigated their claims to finality differently from those who did not violated Equal Protection.  The Legislature had a rational basis for differentiating between the two groups:  separation of powers.

Plaintiff Need Not Exhaust Remedies under the IDEA to Obtain Money Damages under the ADA

In Perez v. Sturgis Public Schools, published March 21, 2023, the U.S. Supreme Court unanimously reversed a lower court decision dismissing a suit under the Americans with Disabilities Act.  The plaintiff, a deaf student, alleged that his school district deprived him of a Free and Appropriate Public Education by providing him with inadequate sign language interpreters, with the result that he was unable to graduate from high school with his class.  He and his family filed a complaint with the state department of education, alleging that the school had failed its duties under the Individuals with Disabilities Education Act (IDEA) and other laws.  Before an administrative hearing was held, the district and family entered into a settlement under which the district agreed to provide him the forward-looking equitable relief he sought.  The plaintiff then sued the district under the ADA, seeking compensatory damages.  The district court and circuit court held that the suit was barred under 20 U.S.C. section 1415(l), part of IDEA.  This statute provide that nothing in IDEA shall be construed to restrict individuals from seeking "remedies" under the ADA or other federal laws protecting rights of children with disabilities, except that before filing an action under one of those laws, seeking "relief" that is also available under the IDEA, the procedures under section 1415 for administrative remedies shall be exhausted.  The courts have split on whether this provision requires exhaustion of administrative remedies under IDEA when seeking damages (which are not available under IDEA).

The Supreme Court held that under the statutory language, "relief" and "remedies" have the same meaning.  Therefore, IDEA's administrative remedies must be exhausted only when seeking remedies (such as forward-looking equitable relief) that is available under IDEA.  Because backward-looking compensatory damages are not available under IDEA, plaintiffs do not need to exhaust IDEA's administrative remedies before suing under other federal statutes for such damages.

Principal's Warning to Teacher Wearing MAGA Hat to Training Raises Triable Issue of Fact of First Amendment Retaliation

In Dodge v. Evergreen School Dist. #114, published December 29, 2022, the 9th Circuit Court of Appeals affirmed in part and reversed in part summary judgment for the defendants.  The plaintiff teacher wore a red Make America Great Again hat to mandatory teacher training, taking the hat off when he entered the school where the training was held.  The professor leading the training reported to the school's principal that she felt intimidated and traumatized by the hat.  The principal also learned that the hat upset a few teachers at the training.  She spoke with the school's HR officer to discuss what could be done.  They agreed the best option was to talk to the teacher directly.  She told the plaintiff that some people take the hat as a symbol of hatred and bigotry, and that while should could not ask him to stop wearing it, he should use "better judgment" in the future.  The next day, the plaintiff attended another teacher training at a school in the district.  He again wore the MAGA hat until he entered the building.  The principal again contacted the HR director.  They agreed the principal needed to set a "clear directive" that the plaintiff not have the hat in the training.  Later that day, the teacher went to a training at his school, and left his hat in his truck.  The principal again spoke with the plaintiff.  According to the plaintiff, the principal swore during the conversation, called the plaintiff a homophobe, a bigot, and hateful; used profanity; told him that she did not want him wearing the hat; and said, "[N]ext time I see you with that hat, you need to have your union rep.  Bring your rep because I'll have mine."  The principal denied using profanity in the conversation.  The plaintiff made an HR complaint about the principal.  After investigation, the district found that the principal did not violate district policy.  The HR officer informed the plaintiff that no further action would be taken on the complaint; but she granted the plaintiff's request for a transfer to another school.  The plaintiff appealed to the school board.  During a second investigation, the board gave the principal a choice of resigning as principal, accepting demotion, or facing disciplinary proceedings.  She resigned.  The plaintiff sued the district, the principal, and the HR officer for retaliation in violation of his First Amendment free speech rights.  The district court granted summary judgment on the grounds that the principal's and HR officer's actions were protected by qualified immunity, and that the plaintiff had failed to establish that the district had ratified any unconstitutional actions.

The 9th Circuit reversed summary judgment as to the principal.  The plaintiff stated a prima facie claim for first amendment retaliation:  wearing the hat (with the political message it conveyed) was protected speech on a matter of public concern; he acted as a private citizen (rather than as part of his job duties) in wearing the hat to a teacher training; and while the principal "badmouthing" the plaintiff was not an adverse employment action, her threat that he needed to have his union rep if he wore the hat again raised a genuine issue of material fact over whether he faced an adverse employment action--a threat to his employment--for his expression.  The court affirmed summary judgment for the HR officer, because it found no evidence the officer caused or set in motion a series of acts by others that she reasonably should know would cause constitutional injury.  Nor were any of her actions reasonably likely to deter him from engaging in protected speech.  The court then applied Pickering balancing to determine whether the principal established a legitimate administrative interest in preventing the plaintiff's speech that outweighed the plaintiff's First Amendment rights.  While some of the training attendees may have been outraged or offended by the plaintiff's political expression, there was no evidence of actual or tangible disruption to school operations, beyond the inherent controversy of political speech.  The appellate court next applied the second prong of qualified immunity analysis to the principal's acts:  whether she violated clearly-established law.  The court noted that because the Pickering analysis requires a fact-sensitive, context-specific balancing of competing interests, the law will rarely be sufficiently clearly established to preclude qualified immunity.  But Supreme Court and 9th Circuit case law clearly establish that disagreement with a disfavored political stance or controversial viewpoint, by itself, is not a valid reason to curtail  expression of that viewpoint at a public school, particularly where the only disruption was the effect the speech had on those who disagree with it because they disagree with it.  This is therefore one of the rare Pickering cases where the violation of the First Amendment was clearly established.    Finally, the court agreed with the district court that there was no evidence the district ratified the principal's conduct.

School District Did Not Violate Students' Free Speech Rights under First Amendment or California Law by Disciplining Them for Off-Campus Social Media Posts Targeting Fellow Students

In Chen v. Albany Unified School District, published December 27, 2022, the 9th Circuit Court of Appeals affirmed summary judgment in favor of the defendant school district and associated defendants.  A high school student created a private Instagram account to share memes, images, and comments with his close friends.  He allowed 13 people to follow his account.  He used the account to make cruelly insulting posts about various students in his school, including racist posts, including posts joking about lynching and slavery.  Another student made racist comments in the group, and “liked” offensive posts.  When one of the account’s followers showed posts in the group to students who had been depicted in a post with nooses, knowledge of the group’s contents spread throughout the school, causing great emotional upset and disruption.  Two of the account’s followers were physically assaulted.  The district voted to expel the group creator and the follower who posted racist comments.  Those students filed suits against the school district defendants under 42 U.S.C. section 1983, alleging violation of free speech rights under the First Amendment and California law, as well as violation of procedural due process.  The district court related those cases.  It granted summary judgment for the defendants, reasoning that the district defendants could properly regulate the students’ off-campus speech.

The court of appeals agreed.  The First Amendment’s protection of public school children’s speech is more limited than that of adult speech.  The speech of students in a school setting may be restricted if either it might reasonably lead school authorities to forecast substantial disruption of or material interference with school activities; or it collides with the rights of other students to be secure and to be let alone.  Even outside the school setting, the First Amendment rights of minors are not co-extensive with adults’.  That is especially true in connection with school activities.  Students do not have a First Amendment right to target specific classmates with vulgar or abusive language.  Without limiting any political viewpoint or other protected content, schools may insist on civil discourse in the school context.  Here, the First Amendment would not prevent a school from punishing the sort of speech at issue if it had occurred under the school’s supervision.  The content threatens the targeted students’ sense of physical, emotional, and psychological security.  The threat of disruption of school activities is equally obvious (and demonstrated here).  The central question is whether the off-campus nature of the speech places it outside of the school’s authority to regulate or discipline.  Although schools may regulate some off-campus student speech, their authority is diminished as opposed to on-campus speech.  The 9th Circuit has devised a three-factor test for determining whether off-campus speech bears a sufficient nexus to the school to allow school district regulation:  (1) the degree and likelihood of harm to the school caused or augured by the speech; (2) whether it was reasonably foreseeable the speech would reach and impact the school; and (3) the relation between the content and context of the speech and the school.  Under these standards, the group’s creator’s speech bore a sufficient nexus to the school to warrant disciplinary action by the school.  The student’s subjective intention to keep the account private is not controlling; the court must consider whether it was reasonably foreseeable that the speech would reach and impact the school.  Given the ease with which electronic communications may be copied or shown to others, it was foreseeable that the posts would ultimately reach the targeted students.  Once the privacy of the account was breached, the degree and likelihood of harm to the school from the speech was significant.  Because the speech caused serious or severe bullying or harassment targeting specific individuals, the school’s regulatory interests remained significant, and strongly implicated the school’s authority and responsibility to act in loco parentis in protecting students from maltreatment by classmates.  A failure to respond to the harassment might have exposed it to potential liability for failure to respond adequately to a racially hostile environment.  Because the student never contended that he was espousing a particular political ideology,  his claim that the school was somehow censoring the promotion of a disfavored ideological message rings hollow.  Although the other student’s involvement in the account was substantially more limited, his contribution properly subjected him to school discipline as well.  The court rejected the students’ arguments that the school violated their rights under the California Constitution and Education Code sections 48950 and 48907.  California’s free speech rights for students under those provisions do no extend further than their First Amendment rights.  The creator student’s claim of violation of procedural due process fails, because the student pursued an administrative writ under California law on that point and lost.  Claim preclusive bars him from relitigating that issue in the federal lawsuit.  His argument that a member of the administrative body was biased against him is governed by the same procedural due process standards under federal law as under state law.