Case 3:14-cv PK Document 5 Filed 04/09/14 Page 1 of 17 Page ID#: 40

Transcription

1 Case 3:14-cv PK Document 5 Filed 04/09/14 Page 1 of 17 Page ID#: 40 Kevin C. Brague, OSB No kbrague@k-hlaw.com KIVEL AND HOWARD, LLP 111 SW Fifth Avenue, Suite 1775 Portland, Oregon Phone: Fax: Attorney for Plaintiffs IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON PORTLAND DIVISION J.F, a minor by and through his parents and next friends, JAMES AND KERRI FLETCHER; v. Plaintiffs, MULTNOMAH COUNTY SCHOOL DISTRICT No. 1J, dba PORTLAND PUBLIC SCHOOLS, an Oregon public school; MAUDE LAMONT, an individual acting in her personal and representative capacity; JOHN ROBINSON, an individual acting in his personal and representative capacity; and BRIAN CHATARD, an individual acting in his personal and representative capacity; Case No. 3:14-cv PK PLAINTIFF S MEMORANDUM IN SUPPORT OF MOTION FOR TEMPORARY RESTRAINING ORDER EXPEDITED HEARING REQUESTED Defendants. I. INTRODUCTION Plaintiffs seek a temporary restraining order and preliminary injunction to enjoin Defendants from enforcing J.F. s 28-day suspension and requirement to take Insight Classes. J.F. seeks the TRO because he is a varsity player on the Wilson Trojan Lacrosse team and in his junior year of high school. Defendants seek to keep J.F. from participating in the full lacrosse Page 1

2 Case 3:14-cv PK Document 5 Filed 04/09/14 Page 2 of 17 Page ID#: 41 season which will irreparably affect J.F. s opportunity for obtaining potential scholarships to colleges based on his participation in lacrosse. Additionally, J.F. is prohibited from participating in Wilson High School s prom due to the 28-day suspension from activities. Plaintiffs seek immediate relief to allow J.F. to play in ongoing lacrosse games which occur roughly every three days to Mid-June. Decl., Kerri Fletcher 15. II. FACTS On Tuesday, April 1, 2014 J.F. was in math class when security guard or school resource officer Debra took him out of class and escorted him to Room 149 and sat him down. Decl. J.F. 3. Room 149 is where Vice Principal Maude Lamont and Dean of Students John Robinson have their offices. Decl. J.F. 3. Mr. Robinson told J.F. that he had issues with alcohol, but J.F. did not understand what he was referring to, so he asked what issue? Decl. J.F. 4. Mr. Robinson then told J.F. that he and Vice Principal Lamont have text messages between J.F. and another student about buying alcohol during school. Decl. J.F. 4. J.F. asked if Mr. Robinson was sure because he was unaware of any such texts. Mr. Robinson confirmed that he had texts. Decl. J.F. 4. J.F. replied that he was not getting into trouble and moving in the right direction. Decl. J.F. 4. Vice Principal Maude Lamont then approached and told J.F. he was going to be suspended for 28-days from lacrosse and school activities and receive a Class A violation. Decl. J.F. 5. J.F. started crying because lacrosse is very important to him and is his motivation for making good decisions. Decl. J.F. 5. J.F. then asked Vice Principal Lamont if she could really suspend him from lacrosse because it was a club sport. Decl. J.F. 5. Vice Principal Lamont then told J.F. that he could stay in the office while he got his composure. Decl. J.F. 5. J.F. called his mom and sat in the hallway until she came. Decl. J.F. 5. J.F. went to leave school, but decided to stay so he could go to lacrosse practice. Decl. J.F. 5, Decl. Kerri Fletcher 4. Mr. and Mrs. Fletcher learned about their son s suspension on April 1, Decl., Page 2

3 Case 3:14-cv PK Document 5 Filed 04/09/14 Page 3 of 17 Page ID#: 42 James Fletcher 3, and Decl. Kerri Fletcher 3. The Fletchers were upset, but discussed how to best handle the situation, and decided to engage the Vice Principals. Decl., James Fletcher 4, and Decl., Kerri Fletcher 5. At lacrosse practice Coach Derek MacDicksen yelled at the team telling them he was disappointed by them because they were saying they could not get suspended from lacrosse because it was a club sport. Decl. J.F. 6. Coach MacDicksen also told the team they could be suspended from lacrosse under OSAA rules. Decl. J.F. 6. J.F. felt the coach was talking directly to him. Decl. J.F. 6. This was confirmed after practice when the coach spoke with J.F. one-on-one and told him that he had thrown him (the coach) under the bus by telling the school J.F. could not be suspended and lacrosse does not follow OSAA rules with regard to the school. Decl. J.F. 6. Coach MacDicken also told J.F. would be kicked off the team if it happened again. Decl. J.F. 6. On April 3, 2014, Mr. and Mrs. Fletcher, Vice Principal Freeman, and Vice Principal Maude Lamont met to discuss the accusations against J.F. and his suspension from lacrosse. Decl., James Fletcher 5, and Decl., Kerri Fletcher 6. Mr. Fletcher asked Vice Principal Lamont if she had proof of this act being done during school hours, and what rules apply to her searching a student s phone. Decl., James Fletcher 5. Vice Principal Lamont said that J.F. was guilty of planning to buy alcohol. Decl., James Fletcher 5. Mr. and Mrs. Fletcher informed Vice Principal Lamont of how J.F. was doing and how important lacrosse was to him at this time. Decl., James Fletcher 5, and Decl., Kerri Fletcher 6. Vice Principal Lamont responded by reminding the Fletchers of the winter dance issue in 2012 where she tried to selectively punish J.F. while not punishing other students who were involved in the situation. Decl., Kerri Fletcher 6, and James Fletcher 11. The Fletchers went over Vice Principal Lamont s head to challenge her selective discipline which was inconsistent with school policy and the school principal agreed and cancelled Vice Principal Lamont s punishment of J.F. Decl., Kerri Fletcher 6, and James Fletcher 11. This has bothered Vice Principal Lamont since that time and she Page 3

4 Case 3:14-cv PK Document 5 Filed 04/09/14 Page 4 of 17 Page ID#: 43 has raised this issue with the Fletchers on more than one occasion. Decl., Kerri Fletcher 6, and James Fletcher 11. Unfortunately, Vice Principal Lamont s mind was made up as to J.F. s suspension and she told the Fletchers that I think this will do him a lot of good. Decl., James Fletcher 5, and Decl., Kerri Fletcher 7. In addition, while smirking, Vice Principal Lamont told the Fletchers that J.F. could still practice and that he was not off the team. Decl., Kerri Fletcher 7. Vice Principal Lamont s body language, tone, and attitude clearly conveyed to Mrs. Fletcher that this was a deliberate and intentional act to punish J.F. because they had successfully challenged her earlier decisions. Decl., Kerri Fletcher 7. On April 4, 2014, J.F. and Mr. and Mrs. Fletcher went to Wilson High School for a hearing on the 28-day suspension. Decl. J.F. 7, James Fletcher 6, and Kerri Fletcher 8. Vice Principal Lamont and Dean of Students Robinson were there on behalf of the school and started the hearing by turning on a tape recorder and showing the Fletchers copies of text messages. Id. Mr. Fletcher, after Mr. Robinson read each text message, asked if the text message came from J.F. and Mr. Robinson said no. Id. Near or at the end of the hearing, Vice Principal Maude Lamont admitted and said [J.F.] never sent any text messages. Decl. J.F. 8, James Fletcher 7, and Kerri Fletcher 9. There was no mention in the texts of J.F. buying or asking to buy alcohol. Decl., James Fletcher 7, and Decl., Kerri Fletcher 9. The school did not provide copies of any documents and did not ask or allow J.F. to offer rebuttal evidence or testimony. Decl. J.F. 9, Decl., James Fletcher 8, and Decl., Kerri Fletcher 10. Vice Principal Maude Lamont then said there was enough evidence to prove J.F. was guilty and suspended him 28-days from sports and activities and required him to take insight classes. Decl. J.F. 10, James Fletcher 9, and Decl., Kerri Fletcher 11. Mrs. Fletcher was very angry at the end of the meeting because it was apparent that Vice Principal Lamont and Dean of Students Robinson did not have any evidence showing J.F. Page 4

5 Case 3:14-cv PK Document 5 Filed 04/09/14 Page 5 of 17 Page ID#: 44 attempted or participated in buying or arranging to buy alcohol on school grounds, or during school hours. Decl. J.F. 12 and 13, and Kerri Fletcher 12. Moreover, they were punishing J.F. because of texts between two other boys. Decl. J.F. 11, and Kerri Fletcher 12. She voiced her anger to Vice Principal Lamont and Dean of Students Robinson by telling them that this was bullshit. Decl., Kerri Fletcher 12. Vice Principal Lamont taped recorded the hearing, but has not provided her with a copy of the texts or records despite her written request. Decl., James Fletcher 10, and Kerri Fletcher 13. Vice Principal Lamont further purposefully ignored J.F. s 504 Plan and diagnosis of ADD. Decl. J.F. 10, James Fletcher 12, and Kerri Fletcher 14. J.F. s impulsivity is still present because he was recently taken off prescription Adderall. Decl., James Fletcher 12, and Decl., Kerri Fletcher 14. Portland Public Schools did not follow its policies in working with J.F. and his disability. Decl., James Fletcher 12, and Decl., Kerri Fletcher 14. III. LEGAL ARGUMENT A. Legal Standard For Issuance of a Preliminary Injunction. The proper legal standard for preliminary injunctive relief requires a party to demonstrate that (1) he is likely to succeed on the merits; (2) he is likely to suffer irreparable harm in the absence of preliminary relief; (3) the balance of equities tips in his favor; and (4) an injunction is in the public interest. Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127 (9th Cir. 2009) citing Winter v. Natural Res. Def. Council, 555 U.S. 7, 129 S.Ct. 365, 374 (2008). Applying the above standard to the instant case favors the issuance of a preliminary injunction requiring Defendants to allow J.F. to fully participate in the current and ongoing lacrosse season. B. J.F. is likely to succeed on the merits. J.F. and his parents bring claims against Portland Public Schools for violating his First Amendment and due process rights by and through Section 1983, Retaliation for exercising their Page 5

6 Case 3:14-cv PK Document 5 Filed 04/09/14 Page 6 of 17 Page ID#: 45 rights, violating Section 504, and negligence. 1. First Amendment Claim Plaintiffs are likely to succeed because J.F. exercised his right of free speech by the act of giving money to another classmate in relation at an upcoming party. Plaintiffs further exercised their right of free speech in challenging and criticizing the administration of their neighborhood high school in meting out discipline. a. First Amendment Jurisprudence for School Speech. The Supreme Court s opinion in Tinker v. Des Moines Independent Comm. School Dist. et al, 393 U.S. 503, 506 (1968) lays the applicable groundwork for First Amendment analysis in this case. Tinker teaches that it can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate. Id. at 506. This holding was unmistakable for the fifty year period preceding the opinion. Id. It is imperative to note that any suspension based upon a reasonable fear of disturbance is not enough to overcome the right of freedom of expression. Id. at 508. Schools must show that its prohibitions on speech was caused by something more than discomfort and unpleasantness. Where there is no showing that the forbidden conduct would materially and substantially interfere with the requirements of appropriate discipline in the operation of the school, the prohibition or suspension cannot be sustained. Id. at 509. School districts may not be an enclave of totalitarianism. Id. at 511. Students in school as well as out of school are persons under the Constitution. Id. The vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools. Id. at 512. Under our Constitution, free speech is not a right that is given only to be so circumscribed that it exists in principle but not in fact. Id. at 513. Tinker is followed in the Ninth Circuit. Recently, in J.C. v. Beverly Hills Unified School Dist., 711 F.Supp.2d 1094 (C.D. Cal. 2010), the Central District of California court analyzed the evolution and application of Tinker and student speech precedents. The Beverly Hills case Page 6

7 Case 3:14-cv PK Document 5 Filed 04/09/14 Page 7 of 17 Page ID#: 46 outlined the analytical framework for student speech precedents: (1) vulgar, lewd, obscene and plainly offensive speech is governed by Fraser; (2) school-sponsored speech is governed by Hazelwood; and (3) speech that falls into neither of these categories is governed by Tinker. Id. at A significant analysis is then undertaken as to the nexus between the off-campus speech and the authority of a school to regulate the speech, and ultimately holds that the Ninth Circuit and majority holds that the geographic origin of the speech is not material. Id. at Nevertheless, in this case where the speech occurred in a traditional public forum and not on the internet where the speech is memorialized and can find its way to school, deference should be paid to the longstanding First Amendment forum jurisprudence. Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens. Greer v. Spock, 424 U.S. 828, (1976); see also, Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45 (1983) [streets and parks have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions]. Defendants are suspending J.F. for 28-days due a text message about an interaction that occurred off campus and outside of school hours. Defendants do not have a legal basis for punishing J.F. The Second Circuit confines the authority of school official to punish only speech on school property, so when the school day ends the community is not deprived of the salutary effects of expression. Thomas v. Bd. of Educ., 607 F.2d 1043, 1052 (2d Cir. 1979). This grant of authority is consistent with the Supreme Court s recognition of the principle that the parents claim to authority to direct the rearing of their children is a basic structure of our society. Reno v. ACLU, 521 U.S. 844, 865 (1997); see also, Ginsberg v. New York, 390 U.S. 629, 639 (1968), Page 7

8 Case 3:14-cv PK Document 5 Filed 04/09/14 Page 8 of 17 Page ID#: 47 and Prince v. Massachusetts, 321 U.S. 158, 166 (1944) [ It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder. ] The Third Circuit similarly holds that it would be an unseemly and dangerous precedent to allow the state, in the guise of school authorities, to reach into a child's home and control his/her actions there to the same extent that it can control that child when he/she participates in school sponsored activities. Layshock v. Hermitage Sch. Dist., 650 F.3d 205, 216 (3d Cir. Pa. 2011). This case further holds that allowing the District to punish a student for conduct he engaged in while at off school campus would create just such a precedent. Id. The Third Circuit upheld the district court s ruling that the school district's response to the student s expressive conduct violated the First Amendment guarantee of free expression. b. Fraser is not Applicable to this Case. This case does not involve vulgar, lewd, obscene and plainly offensive speech and is not properly analyzed under Bethel School Dist. No. 403 v. Fraser, 478 U.S. 675 (1986). Here, there is no evidence of sexually explicit, indecent, or lewd speech. In addition, Fraser is limited to speech that occurs in school. Beverly Hills at It must be noted that Fraser, as interpreted by the Supreme Court holds that a school need not tolerate student speech that is inconsistent with its basic educational mission even though the government could not sensor similar speech outside the school. Hazelwood School District v. Kuhlmeier, 484 U.S. 260, (1988). c. There is no Student Publication or School-Sponsored Speech at Issue. This case does not involve school-sponsored speech such as a student newspaper or similar publication, so the analysis in Kuhlmeier is not applicable. d. The Speech here is Governed by Tinker. This case involves speech that does not fit into the first two categories of the Ninth Circuit s analytical framework for student speech as articulated in Beverly Hills. As such, the Page 8

9 Case 3:14-cv PK Document 5 Filed 04/09/14 Page 9 of 17 Page ID#: 48 test is that a school can regulate student speech if such speech materially and substantially disrupts the work and discipline of the school. A school can reasonably portend disruption in those circumstances similar to the facts in LaVine v. Blaine School District, 257 F.3d 981 (9 th Cir. 2000) [the student wrote a graphic and violent poem about killing his classmates]. Such facts are not present here. The Ninth Circuit recognizes that an actual disruption is not required, but school officials must have more than an undifferentiated fear or apprehension of disturbance to overcome the student s freedom of expression. Tinker at 508. School officials must also show that the prohibition of student speech was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint. Id. at 509. The disruption must also be more than the school s own investigation. Beverly Hills at e. The Speech Here did not Materially or Substantially Disrupt the Work and Discipline of the School. Plaintiffs speech did not disrupt the work of the school because all actions by Defendants were done in the normal course of school business. The substantial disruption test is a fact intensive inquiry, but consists of the following factors: (a) students discussing the speech at issue; (b) was the student s speech violent or threatening to members of the school; (c) whether the school administrators are pulled away from their ordinary tasks to respond to or mitigate the effects of a student s speech; and (d) whether the school s decision to discipline is based on evidence or facts indicating a foreseeable risk or disruption, rather than undifferentiated fears or mere disapproval of the speech. Beverly Hills at 1111, 1112, 1114, and There was not discussion among students about J.F. Plaintiffs speech was non-violent and non-threatening. No administrator was pulled away from ordinary tasks. There was no disruption of the school by any means. Page 9

10 Case 3:14-cv PK Document 5 Filed 04/09/14 Page 10 of 17 Page ID#: Due Process. The Supreme Court sets the requirements for due process in school in Goss v. Lopez, 419 U.S. 565, 579 (1975). Goss v. Lopez requires that the student be given oral or written notice of the charges against him and an opportunity to present his side of the story. Defendants gave no such notice or opportunity to J.F. and therefore violated his due process rights. a. Monell Liability. It is the custom and practice of Defendants to deny students their due process rights when suspended by not providing any notice or hearing prior to the decision of suspension being made. Municipalities and other local government units, including school districts, are among those persons to who 1983 applies. Monell v. Dep t of Soc. Servs., 436 U.S. 658, 690 (1978); and 42 U.S.C A local government unit may not be held responsible for the acts of its employees under respondeat superior. Bd. of County Comm rs v. Brown, 520 U.S. 397, 403 (1997). A plaintiff must demonstrate the constitutional deprivation was the product of a policy or custom of the local government unit. Id. A plaintiff may establish municipal liability upon a showing that there is a permanent and well-settled practice by the municipality which gave rise to the alleged constitutional violation. City of St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988). Once the custom s existence is demonstrated, the plaintiff need not also demonstrate that official policy-makers had actual knowledge of the practice at issue. Navarro v. Block, 72 F.3d 712, (9 th Cir. 1996). i Liability Attaches to Defendants liability attaches here because Defendants have the policy, custom, and practice of disciplining students for off-campus speech and conduct as demonstrated by their suspending J.F. The speech at issue here occurred on a sidewalk a traditional constitutionally protected public forum for expressing nearly all manner of speech. Oregon law regarding student discipline is confined to the school during school hours. ORS and ORS (2) allows for reasonable force to be used by a school Page 10

11 Case 3:14-cv PK Document 5 Filed 04/09/14 Page 11 of 17 Page ID#: 50 employee to maintain order in the school or classroom. There are no facts here to implicate this subsection. ORS (3) states that a school board may authorize discipline, suspension or expulsion of a student who assaults or menaces another employee or student. There is no evidence of assault or menacing in this case. Menacing is defined in this subsection as intentional attempts to place another student in fear of imminent serious physical injury. ORS (4) states that use of threats, intimidation, harassment or coercion against any fellow student... is sufficient cause for discipline, suspension or expulsion from school. This subsection must be read in conjunction with its additional subpart which requires school boards to develop policies on managing threatening or violent students by immediate removal from the classroom, placing the student in a setting where the behavior will receive immediate attention, and requiring the student to be evaluated. Each of these provisions envision discipline within the school setting and not for off-campus, after hours conduct. b. The District is Violating Plaintiffs Natural Rights and Constitutional Rights of Liberty and Privacy. The District is exceeding the scope of its authority in punishing J.F. and his parents. The Oregon Court of Appeals has held that parents have an important interest in public school students. Specifically, the District violates the parents constitutional and natural rights when it disciplines a student: wholly outside the schoolroom and school grounds when they are presumed to be under the control of their parents. It has been said that when the schoolroom is entered by a pupil, the authority of the parent ceases and that of the teacher begins; when the pupil is sent to his home, the authority of the teacher ends, and that of the parent is resumed. Neuhaus v. Federico, 12 Or.App. 314, 321 (1973). The court went on to adopt the caution that a court should be the last to sanction any unlawful interference with the liberty of parents... to direct the upbringing and education of children under their control. Id. at 322 citing Pierce v. Society of the Sisters, 268 U.S. 510, 45 S. Ct. 571 (1925). Page 11

12 Case 3:14-cv PK Document 5 Filed 04/09/14 Page 12 of 17 Page ID#: 51 The Neuhaus case is instructive and persuasive precedential authority because the court recognized the continuum of discipline between in-school student conduct connected to the educational process and a school rule that regulates out-of-school conduct. The Neuhaus court used the example of a school rule that prohibited pupils from attending parties during the evening and a court holding that a student s conduct at home is subject to domestic control and beyond the power of the school and invaded the right of the parents. Id. at 323 citing Dritt v. Snodgrass, 66 Mo. 286 (1877) and Hobbs v. Germany, 94 Miss. 469 (1909). Here, Defendants are disciplining J.F. for off campus and out of school speech/conduct. In punishing J.F., Defendants are unlawfully and unconstitutionally infringing upon the natural and constitutional rights of Plaintiffs. It is not a novel proposition to say that parents have a recognized legal interest in the education and upbringing of their child. See, e.g., Pierce v. Society of Sisters, 268 U.S. 510, , 45 S. Ct. 571, 69 L. Ed (1925) (acknowledging "the liberty of parents and guardians to direct the upbringing and education of children under their control"); Meyer v. Nebraska, 262 U.S. 390, , 43 S. Ct. 625, 67 L. Ed (1923). There is no necessary bar or obstacle in the law, then, to finding an intention by Congress to grant parents a stake in the entitlements created by IDEA. Without question a parent of a child with a disability has a particular and personal interest in fulfilling "our national policy of ensuring equality of opportunity, full participation, independent living, and economic self-sufficiency for individuals with disabilities." 1400(c)(1). Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 529 (2007). [emphasis added]. As properly applied in the context of an educational setting, the interest of parents in the care, custody and control of their children is perhaps the oldest of the fundamental liberty interests recognized by the U.S. Supreme Court. Troxel v. Granville, 530 U.S. 57, 65 (2000). As a fundamental constitutional liberty interest, any deprivation of this interest it is subject to a strict scrutiny analysis. Plaintiffs have a recognized fundamental liberty interest to control the education of their own. Troxel v. Granville, 530 U.S. 57, 65 (2000) citing Pierce v. Society of Page 12

13 Case 3:14-cv PK Document 5 Filed 04/09/14 Page 13 of 17 Page ID#: 52 Sisters, 268 U.S. 510, (1925). Notably, Justice O Connor in her opinion in Troxel, citing extensive U.S. Supreme Court precedent 1, concluded that it cannot now be doubted that the Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody and control of their children. Id. at 66. Mr. and Mrs. Fletcher are very much involved in their custody, care, and control of their son J.F. and Defendants intrusion and suspension of J.F. is inappropriate. Especially because the conduct for which he is accused occurred off campus and outside of school hours, and within their province and right to control, regulate, and punish any offending conduct. The Fletchers do not need a government super-nanny. Defendants simply do not have the power or authority to regulate the conduct that occurred here as explained by the Supreme Court. The cases sometimes characterized as protecting "privacy" have in fact involved at least two different kinds of interests. One is the individual interest in avoiding disclosure of personal matters, n25 and another is the interest in independence in making certain kinds of important decisions. n26 n25 In his dissent in Olmstead v. United States, 277 U.S. 438, 478, Mr. Justice Brandeis characterized "the right to be let alone" as "the right most valued by civilized men"; in Griswold v. Connecticut, 381 U.S. 479, 483, the Court said: "[T]he First Amendment has a penumbra where privacy is protected from governmental intrusion." See also Stanley v. Georgia, 394 U.S. 557; California Bankers Assn. v. Shultz, 416 U.S. 21, 79 (Douglas, J., dissenting); id., at 78 (POWELL, J., concurring). n26 Roe v. Wade, supra ; Doe v. Bolton, 410 U.S. 179; Loving v. Virginia, 388 U.S. 1; Griswold v. Connecticut, supra ; Pierce v. Society of Sisters, 268 U.S. 510; Meyer v. Nebraska, 262 U.S. 390; Allgeyer v. Louisiana, 165 U.S In Paul v. Davis, 424 U.S. 693, 713, the Court characterized these decisions as dealing with "matters relating to marriage, procreation, 1 Prince v. Massachusetts, 321 U.S. 158 (1944); Stanley v. Illinois, 405 U.S (1972); Wisconsin v. Yoder, 406 U.S. 205, 232 (1972); Quilloin v. Walcott, 434 U.S. 246, 255 (1978); Parham v. J.R., 442 U.S. 584, 602 (1979); Santosky v. Kramer, 455 U.S. 745, 753 (1982); and Washington v. Glucksburg, 521 U.S. 702, 720 (1997). Page 13

14 Case 3:14-cv PK Document 5 Filed 04/09/14 Page 14 of 17 Page ID#: 53 contraception, family relationships, and child rearing and education. In these areas, it has been held that there are limitations on the States' power to substantively regulate conduct." Whalen v. Roe, 429 U.S. 589, (1977) [emphasis added]. Plaintiffs are likely to succeed in this litigation because Defendants, each of them, are overstepping the bounds of their authority. 3. Retaliation. Plaintiffs are likely to succeed on the merits of their retaliation claim. To prove a First Amendment retaliation claim, Plaintiffs must prove (1) Defendants took action that would chill or silence a person of ordinary firmness from future First Amendment activities, and (2) prove that Defendants intent was a but-for cause of their action. Skoog v. County of Clackamas, 469 F.3d 1221, 1232 (9th Cir. 2006). Notably, in the Ninth Circuit a plaintiff does not need to plead the absence of probable cause in order to state a claim for retaliation. Id. Here, Vice Principal Lamont is punishing and suspending J.F. to keep him from playing lacrosse due to the 2012 incident in which Plaintiffs successfully challenged her decision to selectively punish students and let others go. But-for Vice Principal Lamont s animus towards the Fletchers for their advocacy, she would not have suspended J.F. which she also knew would detrimental to his college aspirations. 4. Negligence. Defendants, each of them, have reasonable professional, regulatory, and statutory responsibilities and duties to act in an in loco parentis status with regard to each student. Defendants breached this duty and are causing damage Plaintiffs. a. Defendants Fail to Adhere, or Deliberately Ignore, their own Policy to Fairly and Consistently Discipline Students. Every district school board shall enforce consistently and fairly its written rules regarding pupil conduct, discipline and rights. ORS (3). Defendants also violate this law. See Decl., Fletcher. Defendants do not consistently or fairly mete out discipline in violation of Oregon law. Page 14

15 Case 3:14-cv PK Document 5 Filed 04/09/14 Page 15 of 17 Page ID#: 54 C. Plaintiffs will suffer irreparable harm in the absence of Preliminary Relief. J.F. is a varsity lacrosse player in his junior year. The lacrosse season begins late March and continues through April. College applications deadlines are generally mid-january to mid- February. This is the last varsity season that J.F. is able to play to have the opportunity to present his athletic ability to any prospective college or university. Defendants punishment simply eliminates this opportunity and provides no other means for mitigation because there is no other lacrosse season prior to college application deadlines. D. Balancing the equities favor Plaintiffs for issuance of a TRO. Courts must balance the competing claims of injury and must consider the effect on each party of the granting or withholding of the requested relief. Winter v. Natural Resources Defense Council, Inc. 555 U.S. 7, 129 S.Ct. 365, 376 (2008). Plaintiffs will be irreparably harmed by not participating in this lacrosse season, as explained above. Defendants will not be harmed by allowing J.F. to participate in the club sport lacrosse season and other school activities. Defendants will not suffer any expense or inconvenience in allowing J.F. to participate in extra-curricular activities. Defendants cannot state that the perception of the District with regard to the exercise of uniform punishment will be compromised (as Plaintiffs expect Defendants to do) because Defendants do not consistently and fairly enforce its written rules regarding pupil conduct. See ORS (3) and Decl., Fletcher, supra. The balance tips in favor of the Plaintiffs in weighing the equities. E. Granting Plaintiffs TRO is in the Public Interest. The public interest is best served by a public entity obeying and following the law. Here, Defendants disregard the law by inconsistently and unfairly enforcing discipline. The public interest is further served by more clearly defining the boundaries of what Page 15

16 Case 3:14-cv PK Document 5 Filed 04/09/14 Page 16 of 17 Page ID#: 55 conduct and under what conditions may be punishable for any act assisting or promoting such activity. This rule is too vague and overly broad to be enforceable. Defendants actions here violate Plaintiffs natural rights as parents, as well as their constitutional rights to privacy and liberty in controlling and directing the education of J.F. The greater public interest is served here when these fundamental and natural rights of parents are preserved and protected from unwarranted government intrusion. F. The bonding requirement should be waived in this case. Based on the harm to Plaintiffs and the absence of any inconvenience to Defendants in allowing J.F. to participate in extra-curricular activities including lacrosse and prom, Defendants will not suffer any harm or damage as a result of being enjoined. Accordingly, Plaintiffs request the bonding/surety requirement at Fed. R. Civ. P., Rule 65(c) be waived. IV. CONCLUSION Based on the foregoing, Plaintiffs demonstrate that they are likely to succeed on the merits of their Complaint against Defendants, and that they will suffer irreparable harm in the absence of temporary relief. Moreover, the equities of the facts and circumstances presented tip in Plaintiffs favor and against Defendants. The public interest served here because a public school district and its employees should be held to a higher standard of fairness and reasonableness when dealing with students on the cusp of adulthood and not deny them future educational opportunities out of second-hand comments taken out of context. DATED this 9 th day of April, KIVEL & HOWARD LLP By /s/ Kevin C. Brague Kevin C. Brague, OSB No Attorney for Plaintiffs Page 16

17 Case 3:14-cv PK Document 5 Filed 04/09/14 Page 17 of 17 Page ID#: 56 CERTIFICATE OF SERVICE I hereby certify that I served the foregoing PLAINTIFF S MEMORANDUM IN SUPPORT OF MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION on the party listed below by the following indicated method or methods: Portland Public Schools Attn: Superintendent 501 North Dixon Street Portland, Oregon, fax Maude Lamont John Robinson Brian Chatard Wilson High School 1151 SW Vermont Portland, OR fax [ ] by electronic means through the U.S. District Court, District of Oregon s CM/ECF document filing system. [X] by mailing a full, true and correct copy thereof in a sealed, first-class postage paid envelope, addressed to the address as shown above, with the U.S. Postal Service at Portland, Oregon, on the date set forth below. [ ] by causing a full, true, and correct copy thereof to be hand-delivered to the attorney at the attorney s last known office address listed above on the date set forth below. [X] by faxing a full, true, and correct copy thereof to the attorney at the fax number shown above, which is the last-known fax number for the attorney s office, on the date set forth below. DATED this 9 th day of April, /s/ Kevin Brague Kevin C. Brague, OSB No Page 1 CERTIFICATE OF SERVICE KIVEL AND HOWARD, LLP 111 SW Fifth Avenue, Suite 1775 Portland, Oregon