Case 3:14-cv SI Document 25 Filed 04/24/14 Page 1 of 14 Page ID#: 405

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1 Case 3:14-cv SI Document 25 Filed 04/24/14 Page 1 of 14 Page ID#: 405 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 SI PLAINTIFFS RESPONSE TO DEFENDANT MULTNOMAH COUNTY SCHOOL DISTRICT S MOTION TO DISSOLVE TEMPORARY RESTRAINING ORDER AND CROSS- MOTION TO EXTEND THE APRIL 16, 2014 TEMPORARY RESTRAINING ORDER TO MAY 2, 2014 ORAL ARGUMENT REQUESTED Defendants. LOCAL RULE 7-1 CERTIFICATION In compliance with Local Rule 7-1, the parties made a good faith effort through personal or telephone conferences to resolve the dispute and have been unable to do so. / / / / / / Page 1 PLAINTIFFS RESPONSE TO DEFENDANT SCHOOL DISTRICT S MOTION

2 Case 3:14-cv SI Document 25 Filed 04/24/14 Page 2 of 14 Page ID#: 406 A. Introduction PLAINTIFF S RESPONSE TO MOTION TO DISSOLVE TRO As the court and Defendant know, a TRO is appropriate when a plaintiff demonstrates that serious questions going to the merits were raised and the balance of hardships tips sharply in the plaintiff s favor. Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, (9 th Cir. 2011). The TRO in this case issued subsequent to an evidentiary hearing at which time the court analyzed Plaintiffs evidence regarding the serious questions going to the merits and balanced the hardships and found that a TRO should issue. The facts and evidence have not changed. The serious question and issues raised by the court, and which form the basis of Defendant s Motion, are these, specifically: [T]he serious question is, if there is a hearing and if there is an opportunity to be heard, but at that hearing or as a result of that hearing there is insufficient evidence presented, yet action is taken, does that violate procedural due process? See Transcript of TRO Hearing - Tr. 96. and, So even if there was, however, application of the 24/7 policy here such that there would be evidence that J.F. did violate the 24/7 policy, that would then lead to the question of whether or not that policy is lawful in Oregon as within the school district's proper authority to regulate activity outside of school grounds and outside of school hours. See Tr B. The District Denied J.F. Procedural Due Process under the First Serious Question J.F. s procedural due process was violated by the District and Vice Principal Lamont because their imposed discipline of J.F. deprived J.F. of life, liberty, or property without due process of law. See U.S. Const. Amend XIV. Protected property rights are created by sources such as state statutes and protected liberty interests is read broadly for men to enjoy the privileges essential to the orderly pursuit of happiness. Bd. of Regents v. Roth, 408 U.S. 564, 572, 577 (1972). The case of Goss v. Lopez, 419 U.S. 565, 573 (1975) holds that a student has a Page 2 PLAINTIFFS RESPONSE TO DEFENDANT SCHOOL DISTRICT S MOTION

3 Case 3:14-cv SI Document 25 Filed 04/24/14 Page 3 of 14 Page ID#: 407 property interest in education which requires minimum due process. The immediate issue, then, is the nature of J.F. s property and liberty interest in this case based on the fact before the court. J.F. s discipline from the District for his off-campus, beyond school hours conduct violated his property and liberty interest in his education. It has long been held that an education is simply not rote book learning in the highly controlled classroom environment. Rather, education comprehends not merely the instruction received, but the whole experience of moral, intellectual, and physical training. Black s Law Dictionary, 4 th ed., p It can hardly be argued that education would not encompass the development of academic and career skills which would necessarily include such things as the arts, debate, strategy, intellectual, social, and physical development and achievement. Oregon embodies and adheres to this definition and recognizes it as part of its statutes governing the State s education. See O.R.S and O.R.S Specifically, O.R.S (5) states, in relevant part, that the school system shall: (5) Supports the physical and cognitive growth and development of students. * * * * * (7) Provides opportunities for students to learn, think, reason, retrieve information, use technology and work effectively alone and in groups; (8) Provides for rigorous academic content standards and instruction in mathematics, science, English, history, geography, economics, civics, physical education, health, the arts and world languages; * * * * * 1 citing Barbers Comm'n v. Hardeman, 31 Ala. App. 626, 629 (1945) [Education is not necessarily derived from the study of books in school but everything that a man learns by conversation, by reading, by observation or by experience contributes to his education. Education is the process of developing and training the powers and capabilities of human beings.] Page 3 PLAINTIFFS RESPONSE TO DEFENDANT SCHOOL DISTRICT S MOTION

4 Case 3:14-cv SI Document 25 Filed 04/24/14 Page 4 of 14 Page ID#: 408 (12) Provides students with the knowledge and skills that lead to an active, healthy lifestyle; Oregon s pronouncements and statutes recognizes athletics and extra-curricular activities as mandatory parts of its public elementary and secondary schools which provides the statutory basis under Roth and Goss for finding a property and liberty interest in extra-curricular school sponsored or adopted activities. Additionally, Federal law through Title IX also provides a basis for finding extracurricular school sponsored or adopted activities, a procedural due process property and liberty interest. Title IX prohibits discrimination on the basis of sex under any education program or activity receiving Federal financial assistance. See 20 U.S.C.S (June 23, 1972, P.L ). The District receives Federal financial assistance through multiple Federal grants by and through the Oregon Department of Education, as well as direct Federal grants. A Title IX program or activity includes high school sports and other extra-curricular activities. As such, every student has a Federally recognized due process property and liberty interest in their high school s extra-curricular activities, sports, and clubs. In addition, Section 1983 applies in this case because Defendants acted under color of statute, ordinance, regulation, custom, or usage of state and Federal law. See 42 U.S.C Thus, under the development of Oregon s statutes and Title IX, Oregon s Legislature and the U.S. Congress have recognized the importance of the property and liberty interest in extracurricular activities. Notably, Whipple v. OSAA, 52 Or.App. 419 (1981), relied upon by the District for holding no procedural due process property or liberty interest, was decided a decade prior to the Oregon Educational Act for the 21 st Century which now provides the statutory basis for the property and liberty interest denied by the District to J.F. See O.R.S et seq. (1991). The District s reliance upon Wood v. Strickland, 420 U.S. 308 (1975) is also not applicable to this case because the conduct at issue in Strickland was the spiking of a punch bowl at a school Page 4 PLAINTIFFS RESPONSE TO DEFENDANT SCHOOL DISTRICT S MOTION

5 Case 3:14-cv SI Document 25 Filed 04/24/14 Page 5 of 14 Page ID#: 409 function. Id. at 311. Strickland is not a case concerning off-campus conduct, beyond school hours. Perhaps not surprisingly, there is a dearth of case law involving schools punishing offcampus behavior. Therefore, the case of Riggan v. Midland Independent School Dist., 86 F.Supp.2d 647 (2000) is instructive and persuasive. Riggan was a public high school student who followed his principal to another teacher s house after seeing the principal at a local restaurant, and then took pictures of the principal s suburban parked on a public street. Id. at 650. This occurred off school grounds and after school hours. Rumors were persistent about the principal engaging in sexual misconduct. Riggan never disclosed the pictures or took any other action. The principal then pursued punishment against Riggan and had him suspended, assigned to an alternative school, excluded from graduation ceremonies, and required two letters of apology. Id. at 652. Two other students involved received far less punishment. Id. The court rejected the school s claim that exclusion from graduation ceremonies did not deprive the student of a protected property interest. Id. at In looking at the whole picture, the court found the school denied the student procedural due process. It also found that the principal was biased and the charges against Riggan were unclear so as to not provide him meaningful notice of what he had done wrong. Id. at Riggan is appropriately followed in this case. Here, J.F. was accused in planning to buy alcohol on school grounds and during school hours which was not true. In fact, the text messages relied upon by Vice Principal Lamont were not products of J.F. and were produced to him. Later, Vice Principal Lamont admitted that there were no text messages between J.F. and any other student. See Tr. 61. In other words, the District has and had no evidence that J.F. participated in any drug related activity during school hours and on school grounds. As such, this is not an issue of an error of judgment, but rather malfeasance or negligence. Further, as held in Riggan, the actual bias of Vice Principal Lamont violated J.F. s procedural due process because she was unable, in any way, to function fairly as a trier of fact. Riggan at 656. Vice Page 5 PLAINTIFFS RESPONSE TO DEFENDANT SCHOOL DISTRICT S MOTION

6 Case 3:14-cv SI Document 25 Filed 04/24/14 Page 6 of 14 Page ID#: 410 Principal Lamont s bias was testified to at the TRO hearing, and apparent in the tape recorded meeting with Plaintiffs. See Tr. 13 and 56. The Riggan case illustrates that there are violations of procedural due process in the school setting when the school administrators punish students for off-campus, beyond school hours conduct where the evidence is insufficient or based on speculation and there is bias on the part of the administrator doling out punishment. Accordingly, Procedural due process is violated when there is insufficient evidence presented and a school nevertheless continues with a disciplinary suspension. C. The District Denied J.F. Procedural Due Process under the Second Serious Question One of the principal facts to keep in mind throughout this case and analysis is that Plaintiff s conduct occurred off-campus and outside of school hours. As such, the school cases relied upon by Defendant are distinguishable because in those cases the student conduct occurred on campus and either during school or at a school function. That is not the case here. Here, the only on-campus, during school activity were the text messages between two other students which did not involve or concern J.F. See Tr Further, Plaintiffs must reiterate that the punishment imposed was wrong and the discipline was not for J.F. s on-campus, during school conduct, but was an over-reach of authority neither granted, nor authorized by law. 2 The District s policies are based on Oregon statute and its policies cite the statute relied upon. In this case, the policy at issue is AD policy which specific statutory authority comes from O.R.S as stated in the policy. Notably, the 24/7 athlete policy is without statutory authority. As a matter of law O.R.S proscribes the contours of discipline subject to 2 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). Page 6 PLAINTIFFS RESPONSE TO DEFENDANT SCHOOL DISTRICT S MOTION

7 Case 3:14-cv SI Document 25 Filed 04/24/14 Page 7 of 14 Page ID#: 411 suspension or expulsion related to drugs, in relevant part, as follows: (a) May allow discipline, suspension or expulsion for conduct that includes, but is not limited to:... * * * * * (c) Possession or distribution of tobacco, alcohol, drugs or other controlled substances[.] This particular statute is important because it forms the legal foundation upon which the District formed its Alcohol, Other Drugs, & Tobacco policy ( AD). See Decl. Lamont, Ex. 3, pg. 6. The District does not have the legal or statutory authority to discipline J.F. for off-campus, after school hours conduct because J.F. was never in possession of, and never distributed alcohol that is the statutory limitation imposed upon the District. In short, the District s Policy AD exceeds the scope of the statutory authority found at O.R.S Pursuant to O.R.S (4) this court may find and decree that the Policy exceeds the statutory authority of the agency. That is the appropriate finding here because the specific contours of O.R.S are limited to possession or distribution of tobacco, alcohol, drugs, or controlled substances while at school. This specific statutory prohibition concerning alcohol (the only relevant issue here) does not include off-campus, beyond school hours planning. The District s policy exceeds its statutory authority and is punishing students, specifically J.F. without due process notice. The overall limitation of the school s authority is found within the text of O.R.S in the following language: (1) Public school students shall comply with rules for the government of such schools, pursue the prescribed course of study, use the prescribed textbooks and submit to the teachers' authority. (2) Each district school board shall adopt written policies for the discipline, suspension or expulsion of any refractory student. See O.R.S The limitation of the school s authority is recognized by the limiting language of rules for the Page 7 PLAINTIFFS RESPONSE TO DEFENDANT SCHOOL DISTRICT S MOTION

8 Case 3:14-cv SI Document 25 Filed 04/24/14 Page 8 of 14 Page ID#: 412 government of such schools and refractory student. The government of public schools is limited to the school, school events, and school bus stops. See Neuhaus v. Federico, 12 Or.App. 314, 321 (1973), See also TRO Hearing Ex. 2 / Decl. Lamont Ex. 1, pg The District s own policy recognizes its limitation to school grounds and activities during school hours. J.F. did not violate O.R.S To the extent the District s policies exceed its own definition and the scope of O.R.S , then it is meting out discipline which exceeds its legal authority. As such, it is a constitutional violation of J.F. s rights because there was not sufficient due process notice. Additionally, the limiting language the legislature s chose to use of refractory student in O.R.S further evidences the limited scope of the District s authority. First, the statute authorizes only policies for the government of schools and students. When a student is not at a school activity or on school grounds, they are minor children subject to the responsibility of their parents and the juvenile laws. See O.R.S and , and O.R.S. 419A.010 et seq. By using the term refractory student the Legislature envisioned policies to work with stubborn, obstinate, and hard to manage students under a process of escalating consequences. 4 The order of consequences set forth by the Legislature are discipline, suspension, then expulsion. See O.R.S Here, the District and Vice Principal Lamont, as stated in the recording, abdicated their judgment in favor of blindly following policy to immediate suspension. Such zero tolerance policies and abdication of administrator responsibility does little else but feed the school to prison pipeline and deny educational opportunities to students and refractory students. See Suppl. Decl. Kerri Fletcher, Ex. 1, Out of School Suspension and Expulsion, PEDIATRICS, Feb. 3 Possession, selling, drug or alcohol-impaired learning, or use of alcohol, drugs or facsimiles is not tolerated in schools, on school grounds, at school activities by students, staff or other persons. Additionally, this rule applies to students during school hours regardless of location. 4 See Webster s New Twentieth Century Dictionary, 2 nd ed. 1975, pg for definition of refractory. Page 8 PLAINTIFFS RESPONSE TO DEFENDANT SCHOOL DISTRICT S MOTION

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10 Case 3:14-cv SI Document 25 Filed 04/24/14 Page 10 of 14 Page ID#: 414 D. Plaintiffs are not relitigating a school decision, but opposing unlawful school conduct. The District makes much about Plaintiffs exercising their constitutional right to seek redress in the court for their extra-statutory and illegal discipline of J.F. Plaintiffs rush to court for relief was based on a ticking clock and the devastating effect of missed opportunities for potential colleges and junior colleges to scout J.F. for post-secondary school opportunities. The punishment imposed which was based on off-campus beyond school hours conduct was specifically designed to deny those opportunities to J.F. This is not to say that some punishment or consequence was not appropriate. There was punishment to J.F. and negative consequences, but that punishment was a parent obligation not a school one. Further, the District is partly responsible for Plaintiffs seeking relief in court. As admitted, Vice Principal Lamont told and wrote to Plaintiffs that to appeal her decision required notification to Greg Wolleck, School Supervisor by telephone or writing within 5 days of receipt of the letter. See Decl. Kerri Fletcher Ex. 1. That information was wrong. Kerri Fletcher notified Mr. Wollack via on April 6 th seeking an urgent appeal. On April 9 th, Mr. Wollack responded stating the appeal goes to the principal. April 10 th after 5:00 p.m. Mr. Chatard responded admitting the appeal should go to him and that his secretary would contact the Plaintiffs on Friday, April 11 th to set up an appeal hearing. Decl. Kerri Fletcher Ex. 2. Ms. Kersey, the school secretary, contacted the Plaintiffs on Monday, April 14 th to set up an appeal hearing on April 16 th. See Decl. Kerri Fletcher Ex. 3. J.F. s lacrosse team had scheduled games for April 8 th, 10 th, and 15 th (this last game J.F. was appropriately benched by the coach not the school or school district). The TRO was granted on April 16, J.F. has been the object of interest from colleges and junior colleges for his lacrosse skills and has received expressions of that interest. See Tr. 28. As a direct result of the District s unlawful discipline of J.F. for off-campus, beyond school hours conduct, he has been irreparably harmed in missing many opportunities to continue honing and demonstrating his skills to Page 10 PLAINTIFFS RESPONSE TO DEFENDANT SCHOOL DISTRICT S MOTION

11 Case 3:14-cv SI Document 25 Filed 04/24/14 Page 11 of 14 Page ID#: 415 interested colleges and junior colleges. The Court received evidence and testimony and ultimately held, albeit with reservation, that J.F. would suffer irreparable harm. See Tr The District has not, and cannot show any detriment to it arising out of J.F. s suspension. In fact, the District s General Counsel (who is not a teacher, educator, or licensed administrator) only opines about broad educational policies and goals. There is not a single factual instance of any example of any detriment to the District. The whole of Ms. Patterson s declaration is based on unsubstantiated fear of what could, possibly, occur, maybe, sometime in the future. The District relies upon the Court s dicta in Requa v. Kent Sch. Dist. No. 415, 492 F.Supp.2d 1272 (WD Wash 2007) for the proposition that the School District s ability to punish students would be undermined by a TRO. Of significant importance is the distinguishing fact that the student s conduct (filming a teacher s butt) in Kent Sch. Dist. occurred during school and on campus. Here, there is no undermining the school s discipline because it is punishing J.F. for off-campus conduct that occurred outside school hours. The District also relies upon Boucher v. Sch. Bd. of the Sch. Distr. of Greenfield, 134 F.3d 821 (7 th Cir. 1998) which also concerns conduct that occurred at school during school hours and which also harmed to the school computer systems. The case of Brown v. Plainfield Cmty. Consol. Dist. 202, 500 F.Supp.2d 996 (ND Ill 2007) is likewise distinguishable because it involved the inappropriate physical touching of a teacher by a student at school and during school hours. Again, there is no undermining the school s discipline here because the District is punishing J.F. for off-campus conduct that occurred outside school hours. The District does not have a legitimate state interest in a minor child s off-campus conduct that does not occur during school hours. The District and Ms. Patterson present speculative risks to their customs and policies for disciplining students to maintain order, yet there is no instance, factual record, or basis for their position. As noted above, much of this process is a result of the Wilson High School administration not being aware of their own process which delayed and prolonged their own Page 11 PLAINTIFFS RESPONSE TO DEFENDANT SCHOOL DISTRICT S MOTION

12 Case 3:14-cv SI Document 25 Filed 04/24/14 Page 12 of 14 Page ID#: 416 decision making process. Now, the District complains of the consequences for overreaching in its efforts to suspend J.F. Regardless, the unlawful, ill-defined, zero tolerance policy at issue here should be decreed as exceeding the statutory authority of the school district. E. Conclusion The TRO issued by the court was and remains appropriate in this case because J.F. presented serious questions going to the merits and balancing the hardships tips sharply in J.F. s favor. Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, (9 th Cir. 2011). Moreover, the District cannot demonstrate some critical public interest that would be injured by the grant of the TRO. Id. at Thus, the court having found in favor of J.F. previously should deny Defendant s Motion to Dissolve based on the foregoing arguments and analysis. PLAINTIFF S CROSS-MOTION FOR EXTENSION OF THE TRO Plaintiffs move the court for an order, for good cause, to extend the Temporary Restraining Order for a like period, or until at least May 2, 2014 pursuant to Fed. R. Civ. P. 65(b)(2). LEGAL MEMORANDUM The facts giving rise the TRO have not changed. The answers and analysis to the Court s serious questions favor Plaintiffs and extending the TRO to May 2, Recently, Principal Chatard, after consulting with the District s attorneys and reading the TRO hearing transcript, upheld Vice Principal Lamont s decision to suspend J.F. See Decl. Kerri Fletcher. Accordingly, an extension of the TRO is appropriate. Per the Court s request and notice, the TRO expires on April 29, 2014 and on that same day is a scheduled lacrosse game between Wilson High School and Marist High School in Eugene, Oregon. If the TRO ends and is not extended, then J.F. s suspension resumes effect and Page 12 PLAINTIFFS RESPONSE TO DEFENDANT SCHOOL DISTRICT S MOTION

13 Case 3:14-cv SI Document 25 Filed 04/24/14 Page 13 of 14 Page ID#: 417 he will be prohibited from participating in that game. The next athletic competition J.F. will be permitted participation is on May 2, 2014 against Hood River, but at Wilson High School. There are five subsequent lacrosse games after May 2 nd. The issue, then, is will J.F. suffer irreparable harm for missing the April 29 th lacrosse game. To be candid, J.F. may not be able to show irreparable harm is likely for missing a single athletic competition. Of course, missing one or two games in a season is much different than missing a month of games when there is a demonstrated interest by colleges and community colleges in J.F. s lacrosse abilities. Presently, J.F. has not been able to confirm the appearance or interest of a scout or recruiter for the April 29 th competition. Nevertheless, the University of Oregon is nearby and it is conceivable that a member of the University of Oregon lacrosse team coaching staff may be at the game. Admittedly, without confirmation of a scout or similar representative, irreparable injury is not likely. DATED: April 24, KIVEL & HOWARD LLP By /s/ Kevin C. Brague Kevin C. Brague, OSB No kbrague@k-hlaw.com Attorney for Plaintiffs Page 13 PLAINTIFFS RESPONSE TO DEFENDANT SCHOOL DISTRICT S MOTION

14 Case 3:14-cv SI Document 25 Filed 04/24/14 Page 14 of 14 Page ID#: 418 CERTIFICATE OF SERVICE I hereby certify that I served the foregoing PLAINTIFF S *** on the party listed below by the following indicated method or methods: Michael Porter, Esq. Mike.porter@millernash.com Andrea M. Barton, Esq. Andrea.barton@millernash.com 111 SW Fifth Avenue, Suite 3400 Portland, OR Attorneys for Defendants by electronic means through the U.S. District Court, District of Oregon s CM/ECF document filing system. 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. 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: April 24, /s/ Kevin Brague Kevin C. Brague, OSB No Attorney for Plaintiffs Page 1 CERTIFICATE OF SERVICE