CE Opp To 12b6

Case 3:17-cv-03657-JD Document 36 Filed 10/20/17 Page 1 of 22
1 DARRYL D. YORKEY (SBN 280351)

P.O. Box 9636
2 Berkeley, California 94709
Telephone: (510) 221-6874
3 Fax: (888) 491-5926
Email: dyorkey@gmail.com
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ALAN A. BECK (SBN 276646)
5 2962 Harcourt Drive
San Diego, California 92123
6 Telephone: (619) 905-9105
Email: alan.alexander.beck@gmail.com
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CATHERINE A. BEEKMAN (SBN 245605)
8 915 Trancas Street, Suite B
Napa, California 94558
9 Telephone: (707) 346-3060
Fax: (707) 561-6646
10 Email: cate@beekmancortes.com
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Attorneys for Plaintiff C.E.
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13 IN THE UNITED STATES DISTRICT COURT
14 FOR THE NORTHERN DISTRICT OF CALIFORNIA
15 C.E., through his Guardian C.E., ) Case No. 3:17-cv-03657
16 )
Plaintiff, ) PLAINTIFF C.E.S OPPOSITION TO
17 ) DEFENDANTS MOTION TO DISMISS
v. ) UNDER FRCP 12(b)(6)
18 )
19 ALBANY UNIFIED SCHOOL )
DISTRICT; ALBANY UNIFIED ) Date: November 21, 2017
20 SCHOOL DISTRICT BOARD OF ) Time: 10 a.m.
EDUCATION; ALBANY HIGH ) Place: Courtroom 11, 19th Floor
21 SCHOOL; VALERIE WILLIAMS, in her ) Judge: Hon. James Donato
Personal and official capacities as )
22 Superintendent of the Albany Unified )
23 School District; JEFF ANDERSON, in his )
personal and official capacities as Principal )
24 of Albany High School; MELISA PFOHL, )
in her personal and official capacities as )
25 Assistant Principal of Albany High School; )
26 CHARLES BLANCHARD, in his personal )
and official capacities as Member of the )
27 Albany Unified District Board of Education; )
JACOB CLARK, in his personal and )
28 official capacities as Member of the Albany )
PLAINTIFF C.E.S OPPOSITION TO DEFENDANTS Case No. 3:17-cv-03657-JD

MOTION TO DISMISS UNDER FRCP 12(b)(6)
Unified District Board of Education; KIM )

1 TRUTANE, in her personal and official )
2 capacities as Member of the Albany Unified )
District Board of Education; and DOES )
3 1-50, )
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4 Defendants. )
5 ____________________________________)
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TABLE OF CONTENTS
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2 I. INTRODUCTION ..............................................................................................................................1
3 II. STANDARD OF REVIEW ..............................................................................................................1
4 III. ELEVENTH AMENDMENT ..........................................................................................................2
5 IV. ARGUMENT...................................................................................................................................2
6 A. Plaintiff C.E.s First Amendment Rights Were Violated. .............................................................. 2
7 1. C.E.s Speech Lacked a Sufficient Nexus to the School. ....................................................2
8 2. It Was Not Reasonably Foreseeable C.E.s Speech Would Reach The School. .................4
9 B. Defendants Conduct Violates the California Constitution and Applicable State Law. ............ 7
10 C. Plaintiffs Procedural Due Process Claim Alleges Sufficient Facts to Support a
Cognizable Legal Theory. ................................................................................................................... 9
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1. Plaintiff Alleged Sufficient Facts to Support an Inference Board Member Kim
12 Trutane was Biased. .............................................................................................................9
13 2. Plaintiff has a Constitutional Right to an Unbiased Arbiter at his Pre-Expulsion
Hearing...............................................................................................................................10
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3. Plaintiff C.E. is Not Required to Exhaust Administrative and State Court
15 Remedies Before Bringing a Claim under Section 1983. ..................................................12
16 4. Defendant Kim Trutane is Not Entitled to Qualified Immunity. .......................................12
17 5. Defendants Charles Blanchard and Jacob Clark are Not Entitled to Qualified
Immunity. ...........................................................................................................................13
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D. Younger does not Require this Court to Abstain from Considering C.E.s Due Process
19 Claim because there is no Pending State Proceeding.................................................................... 14
20 E. Leave to Amend. ................................................................................................................................ 15
21 V. CONCLUSION ...............................................................................................................................15
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1 TABLE OF AUTHORITIES
2 CASES
3 Act Up! Portland v. Bagley, 988 F.2d 868 (9th Cir. 1993) ................................................................. 12
4 Archibald v. McLaughlin, 181 F.Supp. 175 (D. D.C. 1960)............................................................... 15
5 Ashcroft v. Iqbal, 556 U.S. 662 (2009) ................................................................................................. 9
6 Balistreri v. Pacifica Police Dept., 901 F.2d 696 (9th Cir. 1990) ........................................................ 1
7 C.R. v. Eugene Sch. Dist. 4J, 835 F.3d 1142 (9th Cir. 2016)............................................................ 2, 5
8 Chavez v. Bank of America, N.A., 2010 WL 1854087 (E.D.Cal. 2010). .............................................. 9
9 Citizens United v. FEC, 558 U.S. 310 (2010)....................................................................................... 9
10 Clark v. Burleigh, 4 Cal. 4th 474 (1992) ............................................................................................. 7
11 Clements v. Airport Authority of Washoe County, 69 F.3d 321 (9th Cir. 1995)........................... 11, 12
12 Davison v. Plowman, 247 F.Supp.3d 767, 776 (E.D. Va. 2017). ........................................................ 8
13 Foman v. Davis, 371 U.S. 178 (1962) ................................................................................................ 15
14 Goldberg v. Worldlife Shippers & Movers of Chicago, Inc., 236 F.2d 198 (7th Cir. 1956) .............. 15
15 Harper v. Poway Unified Sch. Dist., 445 F.3d 1166 (9th Cir. 2006).................................................... 5
16 Health Cost Controls v. Skinner, 44 F.3d 535 (7th Cir. 1995) ........................................................... 15
17 J.S. v. Blue Mountain Sch. Dist., 650 F. 3d 915 (3d Cir., 2011) ........................................................... 4
18 Keating v. Neb. Pub. Power Dist., 562 F.3d 923 (8th Cir. 2009) ....................................................... 12
19 La Porte Constr. Co. v. Bayshore Natl Bank, 805 F.2d 1254 (5th Cir. 1986) .................................. 15
20 Layshock v. Hermitage Sch. Dist., 593 F.3d 249 (3d Cir. 2010). ......................................................... 7
21 Livid Holdings Ltd. V. Salomon Smith Barney, Inc., 416 F.3d 940 (9th Cir. 1998) ............................. 2
22 Lopez v. Tulare Joint Union High Sch. Dist., 34 Cal. App. 4th 1302 (1995) ............................... 7, 8, 9
23 Nightlife Partners, Ltd. v. City of Beverly Hills, 108 Cal.App.4th 81 (2003) .................................... 11
24 Raymond International v. Bookcliff Construction, Inc. 489 F.2d 732 (8th Cir. 1974) ....................... 15
25 Raymond v. Board of Regents of the University of Minnesota, 847 F.3d 585 (8th Cir. 2017) ........... 12
26 Smith v. Novato Unified Sch. Dist., 150 Cal.App.4th 1439 (2007) ....................................................... 9
27 Sprint Communications, Inc. v. Jacobs, 134 S. Ct. 584 (2013) .......................................................... 14
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1 Staub v Proctor Hospital, 562 US 411 (2011).................................................................................... 13

2 Stivers v. Pierce, 71 F.3d 732 (9th Cir. 1995) .................................................................................... 13
3 The Pruneyard Shopping Ctr. v. Robins, 447 U.S. 74 (1980). ......................................................... 7, 8
4 Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969)............................................ 2, 5, 6
5 Tobey v. Jones, 706 F.3d 379 (4th Cir. 2013) ....................................................................................... 9
6 United States v. Redwood City, 640 F.2d 963 (9th Cir. 1981).............................................................. 1
7 Walker v. Berkeley, 951 F.2d 182 (9th Cir. 1991) .............................................................................. 11
8 Withrow v. Larkin, 421 U.S. 35 (1975)......................................................................................... 11, 12
9 Wyler Summit Pship v. Turner Broad. Sys., 135 F.3d 658 (9th Cir. 1998) ......................................... 2
10 Wynar v. Douglas Cnty. Sch. Dist. 728 F.3d 1062 (9th Cir. 2013) .................................................. 2, 3
11 Younger v. Harris, 401 U.S. 37 (1971). .............................................................................................. 14
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13 CONSTITUTIONAL PROVISIONS
14 U.S. Const. Amend. XI ......................................................................................................................... 2
15 U.S. Const. Amend. XIV ................................................................................................................ 1, 10
16 Cal. Const. art 1, 2 ............................................................................................................................. 7
17 Cal. Const. art. I, 7(a)....................................................................................................................... 10
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19 STATUTES
20 18 U.S.C. 1030. .................................................................................................................................. 4
21 18 U.S.C. 2511 ................................................................................................................................... 4
22 18 U.S.C. 2701 ................................................................................................................................... 4
23 42 U.S.C. 1983 .................................................................................................................................... 2
24 Cal. Pen. Code 502............................................................................................................................. 4
25 Cal. Pen. Code 630............................................................................................................................. 4
26 Cal. Ed. Code 48922 ........................................................................................................................ 11
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1 RULES
2 FRCP 12(b)(6) .................................................................................................................................. 1, 9
3 FRCP 15(a) ......................................................................................................................................... 15
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1 I. INTRODUCTION
2 Defendants have filed a 12(b)(6) motion that will largely have no relevance to the outcome of
3 this litigation regardless of how this Court rules. Defendants raise the defense of sovereign immunity
4 only as to Defendants Albany Unified School District (AUSD) and Albany Unified School District
5 Board of Education (ABOE), thereby waiving any sovereign immunity argument as to the named
6 Defendants in their official capacities. Even if this Court rules in favor of Defendants on this issue,
7 Plaintiff C.E.s suit will proceed against the named Defendants in their official capacities.
8 In their Motion to Dismiss, Defendants have briefed a First Amendment issue that has
9 already been fully briefed in motions for summary judgement that are under submission and pending
10 before this Court. This Courts ruling on this issue will presumably be based on those preexisting
11 motions. The only meaningful issue presented in Defendants Motion to Dismiss is whether Plaintiff
12 C.E. should be allowed to proceed to discovery on his claim that the ABOE was biased in its
13 handling of his expulsion hearing. In their motion, Defendants failed to address the merits of C.E.s
14 argument and misconstrue his complaint as having plead a standard procedural due process
15 violation. Plaintiff C.E. has plead that the school board was biased and that this bias violated his civil
16 rights under the 14th Amendment. Plaintiffs position is dramatically different from what Defendants
17 seem to have argued against in their motion to dismiss.
18 Other than the claims Plaintiff C.E. concedes, Defendants motion to dismiss should be
19 denied for the reasons specified below.
20 II. STANDARD OF REVIEW
21 To meet the minimum requirements of Rule 12(b)(6), a complaint need only allege sufficient
22 facts to support a cognizable legal theory. Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th
23 Cir. 1990). While a complaint must allege supportive facts, detailed factual allegations are not
24 required. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). A complaint must give the
25 defendant fair notice of what the claim is and the grounds upon which it rests. Id.
26 Federal Rule of Civil Procedure 12(b)(6) dismissal is proper only in extraordinary cases.
27 United States v. Redwood City, 640 F.2d 963, 966 (9th Cir. 1981). In reviewing a motion to dismiss
28 for failure to state a claim upon which relief can be granted, a court accepts all well-plead facts from
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PLAINTIFFS OPPOSITION TO DEFENDANTS Case No. 3:17-cv-03657-JD
1 the complaint as true, and draws all inferences and views the facts in the light most favorable to the
2 plaintiffs. Livid Holdings Ltd. V. Salomon Smith Barney, Inc., 416 F.3d 940, 946 (9th Cir. 1998);
3 Wyler Summit Pship v. Turner Broad. Sys., 135 F.3d 658, 661 (9th Cir. 1998).
4 III. ELEVENTH AMENDMENT
5 Plaintiff C.E. concedes the Albany Unified School District (AUSD) and the Albany
6 Unified School District Board of Education (ABOE), as entities, have sovereign immunity under
7 the Eleventh Amendment. Defendants have not argued, and Plaintiffs do not concede, that the
8 individual defendants in their official capacities (Jeff Anderson, Valerie Williams, Melisa Pfohl,
9 Charles Blanchard, Jacob Clark, and Kim Trutane) are immune from suit under 42 U.S.C. 1983
10 based on the Eleventh Amendment.
11 IV. ARGUMENT
12 A. Plaintiff C.E.s First Amendment Rights Were Violated.
13 As to the free speech component of Defendants motion to dismiss, their claims should be
14 denied because it was not reasonable to conclude that C.E.s protected conduct would substantially
15 disrupt school activities. Defendants can cite to no precedent that extends a schools authority to
16 punish speech to a situation similar to C.E.s. The Ninth Circuit has held that school districts can
17 discipline students for off campus speech where 1) there is a nexus between the speech and the
18 school, 2) it is reasonably foreseeable that the speech will make its way onto campus, and 3) the
19 factors set forth by the Court in Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969)
20 are otherwise satisfied. C.R. v. Eugene Sch. Dist. 4J, 835 F.3d 1142, 1148-53 (9th Cir. 2016). Here,
21 as demonstrated by this Circuits precedent, C.E.s speech does not satisfy any of these three prongs.
22 1. C.E.s Speech Lacked a Sufficient Nexus to the School.
23 The closest Ninth Circuit case on point is Wynar v. Douglas Cnty. Sch. Dist. 728 F.3d 1062
24 (9th Cir. 2013). In that case, plaintiff Landon Wynar, a student, told friends via the internet
25 messaging service Myspace that he was intending to carry out a school shooting. Concerned, several
26 of his friends contacted school officials who promptly suspended and then expelled Landon Wynar
27 from school. The Ninth Circuit found there was a reasonable relationship between Landon Wynars
28 posts and the school: "given the subject and addressees of Landon's messages, it is hard to imagine
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1 how their nexus to the school could have been more direct; for the same reasons, it should have been
2 reasonably foreseeable to Landon that his messages would reach campus. Id. at 1069. The Court
3 further held Wynars suspensions were constitutional because his comments constituted a real risk
4 to the school. Id. at 1070. The Court held that even if Wynar was not serious about his comments, it
5 was not unreasonable for the school to proceed as if he was serious about his comments. Id. at 1071
6 [We need not discredit Landon's insistence that he was joking; our point is that it was reasonable
7 for Douglas County to proceed as though he was not.]
8 Here, in contrast, C.E.s private Instagram posts had no nexus to the school. Unlike in
9 Wynar, nothing about C.E.s posts themselves related to school or a school activity. All conduct
10 related to the account occurred off-campus and outside of school hours. The only arguable
11 connection between C.E.s posts and the school is the involvement of students - some of the
12 accounts posts depicted people who happened to be students, and most of the followers were
13 students. It is not surprising, however, that a high school students off-campus speech might
14 sometimes be among and about other students, since students tend to form friend groups with other
15 students. But surely schools do not gain authority to discipline private off-campus speech within
16 friend groups simply because all or most of the members are students. Yet that is the authority the
17 District here claims, even though none of C.E.s posts were related to the school.
18 In Wynar, the Ninth Circuit emphasized there is no bright-line rule defining at what point off-
19 campus speech becomes sufficiently connected to school to permit discipline; the question is very
20 fact specific. The Court found Wynars disturbing conduct was clearly distinguishable from mere
21 insults to another member of the school community.
22 One of the difficulties with the student speech cases is an effort to divine and impose
a global standard for a myriad of circumstances involving off-campus speech. A
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student's profanity-laced parody of a principal is hardly the same as a threat of a
24 school shooting, and we are reluctant to try and craft a one-size fits all approach. We
do not need to consider at this time whether Tinker applies to all off-campus speech
25 such as principal parody profiles or websites dedicated to disparaging or bullying
fellow students. Wynar at 1069.
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While Wynars off-campus speech was undeniably related to the school since it threatened
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school violence - C.E.s off-campus speech lacked any substantial connection to the school. To find
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1 the mere involvement of students in private off-campus speech creates a sufficient nexus to the
2 school to permit discipline would massively expand schools authority over off-campus speech.
3 2. It Was Not Reasonably Foreseeable C.E.s Speech Would Reach The School.
4 Just as the content of C.E.s off-campus speech did not have a sufficient nexus to the school
5 to justify discipline, neither was it reasonably foreseeable his speech would reach the school. In
6 Wynar, the Court did not view the mere referencing of students in the posts as sufficient to fulfill the
7 foreseeability prong, but focused on the disturbing content of the messages. The Court found
8 because the messages contents were disturbing and detailed threats of school violence, and were
9 shared with students at the school, it was reasonably foreseeable the messages would travel back to
10 school.
11 Here, C.E.s speech was more analogous to the vulgar MySpace account in J.S., which the
12 court found so outrageous that no one took its content seriously. J.S. v. Blue Mountain School
13 District 650 F. 3d 915 (3d Cir., 2011). C.E.s speech was juvenile and offensive, like that of J.S; it
14 did not communicate serious and detailed threats of school violence like that of Wynar.
15 Furthermore, C.E. did not have an audience that was likely to bring this message to school.
16 C.E.s account was a secret forum, and its audience knew the inappropriate content was meant to
17 remain private. Given the content of the speech and its private nature, it was not reasonably
18 foreseeable that C.E.s speech would reach the school.
19 Indeed, none of the followers of C.E.s posts disclosed their contents. The subject matter of
20 his speech was only disclosed after one of the account followers phone was stolen and information
21 was pilfered from it. Then, in an effort to harm C.E. and the followers of his account, the thief turned
22 over the information to school officials. This Court should not find it is foreseeable for C.E. to have
23 to account for larceny or for activity that likely violates multiple state and federal laws, including but
24 not necessarily limited to the Computer Fraud and Abuse Act, 18 U.S.C. 1030, et seq., Stored
25 Communications Act, 18 U.S.C. 2701, et seq., the Electronic Communications Privacy Act
26 (Wiretap Act), 18 U.S.C. 2511, et seq., Californias Comprehensive Computer Data Access and
27 Fraud Act, Cal. Pen. Code 502, and Californias Invasion of Privacy Act, Cal. Pen. Code 630, et
28 seq.
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1 C.E. took reasonable steps to ensure his privacy, the privacy of his Instagram account, and
2 the privacy of his followers. Only through an improper act was their privacy violated. That is not
3 reasonably foreseeable. A nondigital analogy would be if C.E. was having the same conversation
4 with friends in the privacy of his own home. Imagine a criminal, intent on damaging C.E., broke into
5 his home, recorded his private conversation, and then turned it over to school officials. This Court
6 would assuredly not find it was foreseeable that a burglar would record a private conversation.
7 Similarly, it was not reasonably foreseeable that someone would steal data off of the phone of one of
8 C.E.s followers and turn it over to school officials. Defendants argument fails at the foreseeability
9 prong.
10 3. C.E.s Speech Did Not Cause a Substantial Disturbance.
11 C.E.s speech is not within the schools jurisdiction because it fails both the nexus and
12 foreseeability prongs of the school speech test. However, even if it did pass those prongs, it fails the
13 Tinker rule that a school district may discipline a student for his or her speech only in two situations:
14 (1) where the speech in question might reasonably lead school authorities to forecast substantial
15 disruption of school activities; or (2) where the speech interferes with the rights of other students
16 to be secure and to be let alone. C.R., 835 F.3d at 1149, citing Tinker, 393 U.S. at 508. Neither
17 scenario applies here.
18 The interference with the rights of others prong is the easiest of which to dispose.
19 Defendants cite to two cases to support the proposition that this test is met. First, they cite to C.R., a
20 case involving a group of middle school boys who sexually harassed a disabled girl and her male
21 friend while walking home from school. C.R., 835 F.3d at 1146. Second, Defendants cite to Harper
22 v. Poway Unified Sch. Dist., 445 F.3d 1166, 1178 (9th Cir. 2006) where the Ninth Circuit held a
23 students decision to wear a T-shirt at school with a religious message condemning homosexuality
24 impinged upon the rights of other students under Tinker.
25 These cases are radically distinguishable from the instant case. Both cases deal with students
26 directly targeting other students with abuse. The Ninth Circuit made clear that Tinkers interference
27 prong is only fulfilled when students proactively attack other students. The difference between those
28 two cases and C.E.s situation is the difference between yelling at or berating a person versus talking
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1 about them with a friend behind their back. Defendants position would be much stronger if C.E. had
2 emailed the affected students pictures of his Instagram posts or directly solicited them to join the
3 Instagram page. On the contrary, C.E. took all measures he believed would prevent the students from
4 seeing the posts.
5 Defendants cite to two cases that essentially hold that schools can discipline students who
6 walk up to other students and berate them. Defendants argue these holdings support their position
7 that a student can be disciplined for having personal beliefs and opinions and discussing those
8 beliefs and opinions in private and at home. Defendants position is untenable. Because C.E. did not
9 target anyone with his speech, Defendants argument fails.
10 As for the first test, C.E.s private speech did not create a substantial disruption to school
11 activities. Plaintiffs speech was completely unavailable to the general public because it occurred on a
12 private forum. Plaintiffs engaged in a private conversation that was conducted within a private
13 forum, made off school property, and away from any school activities. There is no indication C.E.s
14 conduct, his Instagram account, or the images it contained disturbed the workings of the school or
15 interfered with the educational environment.
16 It was only after a third party stole the phone of one of C.E.s followers, and after
17 Defendants broadcast this matter openly, publicly, and inaccurately, that the Albany High School
18 student body become aware of it. Defendants cannot trigger or provoke a disturbance then punish
19 Plaintiffs because a disturbance occurred. C.E.s private speech on its own caused no disruption to
20 school activities.
21 Defendants cannot point to any case law that justifies disciplining C.E. on the grounds it
22 caused a substantial disturbance. Instead Defendants string cites point to a series of cases holding
23 schools may ban the Confederate flag from being worn at school. These unsurprising holdings only
24 support the proposition that schools may regulate public expressive conduct in schools. C.E.s
25 speech is more analogous to him wearing a confederate shirt in his own home and inviting some
26 friends over. Even if an uninvited guest were to also arrive and report back to his classmates that
27 C.E. wore a confederate flag shirt, whatever disruption would be far too attenuated to justify
28 punishment under Tinker.
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1 Defendants want no limit to their ability to discipline students outside of school. But that is
2 not the traditional role of the school and this is a position Tinker rejected. Tinker holds that schools
3 have authority to regulate conduct directly related to school function. It did not hold that schools
4 have the right to regulate home conduct that happens to spill over to school. In this case, any
5 disruption to school activities was caused by the conduct of a thief and the negligence of school
6 officials. C.E.s private conduct alone was too attenuated from school to survive Tinker.
7 This Court should heed the admonishment of the Third Circuit in Layshock v. Hermitage
8 School District.:
9 It would be an unseemly and dangerous precedent to allow the state, in the guise of
school authorities, to reach into a childs home and control his/her actions there to the
10 same extent that it can control that child when he/she participates in school sponsored
activities. Allowing the District to punish Justin for conduct he engaged in while at
11 his grandmothers house using his grandmothers computer would create just such a
precedent, and we therefore conclude that the district court correctly ruled that the
12 Districts response to Justins expressive conduct violated the First Amendment
guarantee of free expression.593 F.3d 249 (3d Cir. 2010).
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B. Defendants Conduct Violates the California Constitution and Applicable State Law.
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Article 1, section 2, of the California Constitution provides: "Every person may freely speak,
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write and publish his or her sentiments on all subjects, being responsible for the abuse of this right.
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A law may not restrain or abridge liberty of speech or press." Plaintiff should prevail on his state
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constitutional claims whether or not he prevails on his federal claim.
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Californias Constitutional protections to speech are at times greater than the federal
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constitutions protection to speech. The Pruneyard Shopping Ctr. v. Robins, 447 U.S. 74 (1980). The
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Court in Lopez v. Tulare Joint Union High School District clarified the tests used under California
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law to determine whether a government entity (like a school district) may curtail constitutionally
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protected speech occurring on government property. Lopez v. Tulare Joint Union High School
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District, 34 Cal. App. 4th 1302.
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California courts have adopted a forum analysis to determine when the government's
25 interest in limiting the use of its property to its intended purpose outweighs the
interest of those wishing to use the property for other purposes. (Clark v. Burleigh
26 (1992) 4 Cal. 4th 474, 482 [14 Cal. Rptr. 2d 455, 841 P.2d 975].) To this end, the
California Supreme Court divides public property into three categories: public,
27 nonpublic and limited. The categories determine the applicable standard of review,
strict scrutiny or reasonable basis, the court employs to examine government
28 restrictions. A public forum is the traditional soapbox in a town square: no one
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can be denied access and prior restraints are rarely permissible. Official school
1 publications in California fall into the limited forum category. Id. at 1328.
2 In Lopez, the Court held that a school has the right to censor profane or vulgar speech that is
3 published in official school publications or newspapers. Lopez is distinguishable from the present
4 case in that C.E. did not use an official school publication to communicate with his friends, but
5 instead used a private profile on a non-governmental, non-school-related social media platform
6 (Instagram) so he could privately communicate and share ideas with his friends. In line with
7 Plaintiffs First Amendment arguments above, this Court should determine that the private profile
8 Plaintiff used to communicate with his friends was wholly on a public platform and thus strict
9 scrutiny should apply. Even if this Court determines there is a nexus between the Instagram account
10 and AHS, this Court should still apply strict scrutiny, as Instagram is a full-public, not a limited-
11 public, platform. See, e.g., Davison v. Plowman, 247 F.Supp.3d 767, 776 (E.D. Va. 2017).
12 Accordingly, Defendants should not be able to deny Plaintiff of his rights to communicate and share
13 ideas on a public site such as Instagram, even if they are unpopular, because, these types of restraints
14 are rarely permissible. Id. at 1328.
15 While the Court should find discipline for speech occurring wholly outside of school is
16 improper and a violation of Plaintiffs free speech rights, to the extent this Court determines the
17 school has any discretion at all to discipline Plaintiff for his conduct, the Court should apply the
18 standards specified by California Education Code section 48950. That section reads,
19 A school district operating one or more high schools, a charter school, or a private
secondary school shall not make or enforce a rule subjecting a high school pupil
20 to disciplinary sanctions solely on the basis of conduct that is speech or other
communication that, when engaged in outside of the campus, is protected from
21 governmental restriction by the First Amendment to the United States
Constitution or Section 2 of Article I of the California Constitution.
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This statute has been coined part of the Leonard Laws, which are a number of sister
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statutes in California that apply free speech rights to students at public and private secondary
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schools, post-secondary schools, and colleges and universities. Leonard Law protections exceed
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constraints that have been established in Federal jurisprudence for school speech. Fairly read, [the
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Leonard Law statutes] simply state that students have the same free speech rights on campus as they
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have off campus. Lopez at 1316.
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1 The California Court of Appeals applied Leonard Law free speech principles in Smith v.
2 Novato Unified School Dist., 150 Cal.App. 4th 1439 (2007). In Smith, the Court dealt with a schools
3 censorship of an anti-immigration article written by one of its students. The lower court found the
4 anti-immigration article contained fighting words due to the perceived racial overtones of the article.
5 The Appeals Court reversed and ruled in favor of the student.
6 Here, Plaintiffs speech is analogous. In California, content-based regulations of school
7 speech must survive the same strict standards as out-of-school speech. Defendants must defend their
8 conduct under traditional norms for content-based restrictions. Content-based restrictions that apply
9 to certain viewpoints but not others face the highest level of scrutiny. Legal Services Corp. v.
10 Velazquez, 531 U.S. 535 (2001). Under strict scrutiny, the Government carries the burden of proving
11 its action furthers a compelling interest and is narrowly tailored to achieve that interest. Citizens
12 United, 558 U.S. at 340 (quotation omitted). This is a burden that cannot be met where less
13 restrictive alternatives are available. Ashcroft, 542 U.S. at 666.
14 Plaintiffs conduct is clearly protected speech both under the Federal Constitution and State
15 Constitution for all of the reasons argued above. Plaintiffs posts may be controversial, but that is the
16 very type of speech and expression that the law intends to protect. As Defendants are clearly in
17 violation of California law, Plaintiff C.E. should similarly prevail on his free speech claims under
18 California law.
19 C. Plaintiffs Procedural Due Process Claim Alleges Sufficient Facts to Support a Cognizable
Legal Theory.
20
1. Plaintiff Alleged Sufficient Facts to Support an Inference Board Member Kim
21 Trutane was Biased.
22 A Rule 12(b)(6) motion to dismiss does not resolve contests surrounding facts, the merits of a
23 claim, or the applicability of defenses. Tobey v. Jones, 706 F.3d 379, 387 (4th Cir. 2013) (internal
24 quotations omitted); see also Chavez v. Bank of America, N.A., 2010 WL 1854087 at 4
25 (E.D.Cal.2010). A complaint need not spell out every possible fact needed to be proven or contain
26 detailed factual allegations, but must state a claim for relief that is plausible on its face. Ashcroft
27 v. Iqbal, 556 U.S. 662, 678 (2009).
28
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1 Plaintiff C.E. has presented concrete evidence of Kim Trutanes involvement with the groups
2 who were protesting C.E.s Instagram page and actively urging the Board to expel the students
3 responsible. Plaintiff C.E. has alleged that Kim Trutane participated in and was present during
4 demonstrations and protests that were held in reaction to C.E.s Instagram account. Plaintiff C.E. has
5 presented concrete evidence of Kim Trutanes involvement with the groups that were protesting
6 C.E.s Instagram page and actively urging the Board to expel the students responsible. Plaintiff C.E.
7 alleged Defendant Trutane participated in and was present during demonstrations and protests that
8 were held in reaction to C.E.s Instagram account. At a school board meeting on April 18, 2017, a
9 parent accused Defendant Trutane of encouraging students to demonstrate against Plaintiff and other
10 students associated with the Instagram account outside a restorative justice session at AHS on March
11 30, 2017 a demonstration that became uncontrolled and led to physical violence against two of the
12 Instagram account followers. Defendant Trutane admitted she was present during the student
13 demonstration, and admitted that she told some students when the implicated students would be
14 walking past.
15 Defendant Trutane also actively participated in a separate demonstration protesting Plaintiffs
16 Instagram page on March 26, 2017. Defendant Trutane posted on Facebook in response to another
17 persons posting an event notice about the March 26th demonstration, has this been conceived in
18 coordination with the Black/African American Parents Engagement Group? and So glad that you
19 are joining forces! I am definitely going to both events. Looking forward to sending a strong
20 message of support tomorrow and next Friday that we will not tolerate racism, Albany is for
21 everyone!
22 Plaintiff has met his burden to allege specific facts to support the claim that Kim Trutane
23 harbored bias and that her bias influenced the way in which she participated and voted in his pre-
24 expulsion hearing. Plaintiff C.E.s claim is based on more than mere speculation.
25 2. Plaintiff has a Constitutional Right to an Unbiased Arbiter at his Pre-Expulsion
Hearing.
26
The law is settled that pupils have the right to a full and fair hearing in front of an unbiased
27
arbiter before expulsion may occur. U.S. Const. Amend. XIV, 1; Cal. Const. art. I, 7(a);
28
-10-
1 Withrow v. Larkin (1975) 421 U.S. 35, 46; Nightlife Partners, Ltd. v. City of Beverly Hills (2003)
2 108 Cal.App.4th 81 [noting constitutional due process guarantees also apply to administrative
3 proceedings at the local level].
4 Defendants claim C.E. was not entitled to a neutral arbiter at his pre-expulsion hearing. So
5 long as a fair decision-maker presides at some point through the appeals process, they argue, due
6 process will be satisfied. Accordingly, they argue that because C.E. has not appealed his expulsion to
7 the superior court, due process is still possible and his claim is not ripe.
8 To support this argument, Defendants distort a statement made by the court in Walker v.
9 Berkeley, an employment termination case. 951 F.2d 182 (9th Cir. 1991). In Walker, city employees
10 challenged their terminations on procedural due process grounds. The pre-termination hearing only
11 afforded minimal due process just notice and an opportunity to be heard. The post-termination
12 hearing, on the other hand, was a quasi-judicial evidentiary hearing with greater procedural rights.
13 The Walker court acknowledged, in that context, that failure to provide an impartial decision-maker
14 at the pre-termination stage, of itself, does not create liability, so long as the decision-maker at the
15 post-termination hearing is impartial. Walker, supra, 951 F.2d at 184; see also Clements v. Airport
16 Authority of Washoe County, 69 F.3d 321 (9th Cir. 1995), at footnote 15 [A pre-termination hearing
17 involves only notice and an opportunity to respond, and does not constitute an adjudication. Thus,
18 the decision-maker in a pre-termination hearing need not be impartial, so long as an impartial
19 decision-maker is provided at the post-termination hearing. See Walker, 951 F.2d at 184. (Italics
20 original.)]
21 Walker is inapposite to C.E.s claim. Here, the pre-expulsion hearing was the full, quasi-
22 judicial, evidentiary hearing. The only administrative remedy available to C.E. is a limited appeal to
23 the County Board of Education. Education Code section 48922, which authorizes that appeal,
24 expressly restricts the authority of the County Board on appeal to narrow legal questions based on
25 the record of the pre-expulsion hearing. New evidence may only be offered in very limited
26 circumstances.
27 The facts of this case are distinguishable from Walker, and the reasoning of that decision
28 does not apply here. The violation of C.E.s right to due process was complete when he was denied a
-11-
1 neutral decision-maker at the most procedurally robust hearing available to him. [A]ny bias in the
2 administrative process could not be cured by subsequent judicial review in state court. Generally,
3 an adjudication that is tainted by bias cannot be constitutionally redeemed by review in an unbiased
4 tribunal. Clements, 69 F.3d at 333, citing Ward, 409 U.S. 57, 93 S.Ct. 80.
5 3. Plaintiff C.E. is Not Required to Exhaust Administrative and State Court Remedies
Before Bringing a Claim under Section 1983.
6
Defendants rely on an Eighth Circuit case, Raymond v. Board of Regents of the University of
7
Minnesota, to argue C.E. must exhaust state court remedies before pursuing any procedural due
8
process claim in federal court. 847 F.3d 585 (8th Cir. 2017). But exhaustion of state remedies is
9
required only where a post-deprivation due process violation is alleged the Raymond court itself
10
acknowledged as much. Id. at 590, citing Keating v. Neb. Pub. Power Dist. 562 F.3d 923, 929 (8th
11
Cir. 2009) [[I]t is not necessary for a litigant to have exhausted available postdeprivation remedies
12
when the litigant contends that he was entitled to predeprivation process. [emphasis in original.])
13
The denial of a neutral arbiter at a pre-deprivation hearing is a violation of due process in and
14
of itself that cannot be cured by subsequent proceedings in an unbiased tribunal, even if they include
15
de novo review. Clements, supra, 69 F.3d at 333, citing Ward, supra, 409 U.S. 57. A biased
16
proceeding is not a procedurally adequate one. Id.
17
4. Defendant Kim Trutane is Not Entitled to Qualified Immunity.
18
Defendants assert the individual school board members are entitled to qualified immunity
19
because no clearly established law put defendants on fair notice that [C.E.] deserved more process.
20
Defendants Motion to Dismiss, page 14. Plaintiff C.E. does not claim he deserved more process,
21
rather he argues he was denied a fair process in an unbiased tribunal.
22
To overcome this qualified immunity defense, Plaintiff C.E. must show (1) the law
23
prohibiting biased decision-makers in a school expulsion hearing was clearly established at the time
24
of the alleged deprivation; and (2) no reasonable official could have believed presiding over an
25
expulsion hearing while harboring a personal bias complied with the law. See Act Up!Portland v.
26
Bagley (9th Cir. 1993) 988 F.2d 868, 871. Both prongs are met: the law is settled that due process
27
requires a neutral arbiter at school expulsion hearings, see, e.g., Withrow, supra, 421 U.S. at 46, and
28
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1 no board member who is biased against a pupil facing expulsion could have reasonably believed he
2 or she should preside over the hearing. See Stivers v. Pierce (9th Cir. 1995) 71 F.3d 732, 750.
3 5. Defendants Charles Blanchard and Jacob Clark are Not Entitled to Qualified
Immunity.
4
Defendants Charles Blanchard and Jacob Clark are not entitled to qualified immunity,
5
because, like Defendant Kim Trutane, they became biased against Plaintiff C.E. during his pre-
6
expulsion hearing. Bias was imputed to Charles Blanchard and Jacob Clarke when their decision-
7
making authority was influenced by Kim Trutanes bias against Plaintiff C.E. Their liability was
8
established when they acted arbitrarily and improperly in voting to expel C.E. for the exercise of his
9
Constitutionally protected First Amendment civil rights. Qualified immunity of the members of a
10
multi-person tribunal may be precluded where one member is actually biased against the party
11
before it. Stivers v. Pierce, 71 F.3d 732, 750 (9th Cir. 1995); Staub v Proctor Hospital, 562 US 411
12
(2011). Where the evidence shows actual bias on the part of only one board member, and not
13
improper conduct on the part of the other defendants, those other defendants are not liable. Stivers,
14
71 F.3d at 750. Liability, however, is imputed to other board members when they act in an arbitrary
15
and improper manner stemming from the bias exerted by the participation of a tainted board member
16
in judicial or quasi-judicial proceedings. Id. While the 9th Circuit has not held that a duty is imposed
17
on board members to ferret out bias on the part of their colleagues, it has recognized they do have
18
an affirmative duty not to join the biased member by acting improperly themselves. Id. at 751. This
19
type of liability, for members of a tribunal who have become tainted by another, biased member, has
20
been colloquially named cats paw liability. Staub, 562 US 411. This cats paw liability and
21
imputed bias is sufficient to defeat a qualified immunity defense. Stivers, 71 F.3d at 751.
22
In the present case, Plaintiff C.E. was expelled when Defendants Trutane, Blanchard, and
23
Clark voted unanimously to expel him from AHS. Defendant Trutane demonstrated clear bias when
24
she did not recuse herself from the pre-expulsion hearing after having participated in demonstrations
25
against C.E.s Instagram account and in having close relationships with, even making promises to,
26
parental groups that were calling for C.E.s expulsion without due process. See supra. Defendants
27
Clark and Blanchard acted arbitrarily and improperly when they voted to expel Plaintiff C.E. for the
28
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1 exercise of his constitutionally protected First Amendment rights. There can be no credible argument
2 that their arbitrary and improper actions to expel C.E. were the product of neither (1) the influence of
3 Trutanes bias in the proceedings or (2) a latent bias that they had not previously disclosed and for
4 which they should have recused themselves. For these reasons, Defendants Clark and Blanchard are
5 not entitled to the defense of qualified immunity and are liable to Plaintiff C.E. for not only violating
6 his First Amendment civil rights but also his civil rights under the Fourteenth Amendment for their
7 actions and participation in his pre-expulsion hearing.
8 D. Younger does not Require this Court to Abstain from Considering C.E.s Due Process
Claim because there is no Pending State Proceeding.
9
After ABOE expelled Plaintiff C.E., he appealed to the Alameda County Board of Education,
10
which affirmed the expulsion. C.E. has not filed a petition for writ of administrative mandamus, nor
11
any other claim in state court related to his expulsion.
12
Younger abstention does not apply here because there is no case pending in state court there
13
is no acute, live controversy. Younger v. Harris, 401 U.S. 37 (1971). Younger created a narrow
14
abstention requirement in cases where federalist principles demand state proceedings be permitted to
15
run their course, including 1) ongoing state criminal prosecutions; 2) certain civil enforcement
16
proceedings; and 3) civil proceedings involving certain orders ... uniquely in furtherance of the
17
state courts' ability to perform their judicial functions. Sprint Communications, Inc. v. Jacobs, 134
18
S. Ct. 584, 591 (2013) [internal citations omitted]. In each instance, the abstention requirement only
19
applies where state proceedings are ongoing. The Ninth Circuit recently stated Younger abstention
20
applies in certain circumstances when [courts] are asked to enjoin ongoing state enforcement
21
proceedings. Nationwide Biweekly Administration, Inc. vs. Jan Lynn Owen 2017 WL 4509128, 8,
22
citing Younger, 401 U.S. at 43-45.
23
Contrary to Defendants argument, Younger did not create a blanket abstention rule requiring
24
federal courts to abstain from considering Constitutional questions when a state court has concurrent
25
jurisdiction to hear the claim.
26
27
28
-14-
1 E. Leave to Amend.
2 FRCP 15(a) instructs that leave to amend a complaint should be freely given when justice so
3 requires. It is therefore well settled that plaintiffs should ordinarily be given an opportunity to
4 correct any deficiencies in their claims before those claims are dismissed for failure to state a cause
5 of action. See, e.g., Foman v. Davis, 371 U.S. 178, 182 (1962); Health Cost Controls v. Skinner, 44
6 F.3d 535, 538 (7th Cir. 1995); La Porte Constr. Co. v. Bayshore Natl Bank, 805 F.2d 1254, 1256
7 (5th Cir. 1986).
8 Leave to amend a Complaint is routinely granted at any stage of the litigation process. Leave
9 has been granted after discovery has been completed, following a pretrial conference, after a motion
10 to dismiss has been granted but before the order of dismissal has been entered, after a case has been
11 set for trial, at the beginning, middle and end of trial, after a judgment has been entered, and even
12 on remand following an appeal. See, Archibald v. McLaughlin, 181 F.Supp. 175 (D. D.C. 1960);
13 Raymond International v. Bookcliff Construction, Inc., 347 F.Supp. 208 (D. Neb. 1972); affd per
14 curium, 489 F.2d 732 (8th Cir. 1974) (amendment permitted after discovery completed); Goldberg v.
15 Worldlife Shippers & Movers of Chicago, Inc., 236 F.2d 198 (7th Cir. 1956) (amendment permitted
16 after pretrial conference and two days before trial).
17 Assuming arguendo that the Court finds merit to any of Defendants arguments, Plaintiffs
18 respectfully request leave to amend their Complaint.
19 V. CONCLUSION
20 For the foregoing reasons, this Court should deny Defendants Motion to Dismiss under
21 FRCP 12(b)(6).
22
23 DATED: October 20, 2017
24 Respectfully submitted,
25 By: _____________________________________
/S/
Darryl Yorkey, Esq.
26 Attorney for Plaintiff C.E.
27
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1
/S/
By: _____________________________________
2 Alan Beck, Esq.
4
/S/
By: _____________________________________
5
Catherine Beekman, Esq.
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CE Opp To 12b6

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Case 3:17-cv-03657-JD Document 36 Filed 10/20/17 Page 1 of 22

1 DARRYL D. YORKEY (SBN 280351)

PLAINTIFF C.E.S OPPOSITION TO DEFENDANTS Case No. 3:17-cv-03657-JD

Unified District Board of Education; KIM )

PLAINTIFF C.E.S OPPOSITION TO DEFENDANTS Case No. 3:17-cv-03657-JD

1 Staub v Proctor Hospital, 562 US 411 (2011).................................................................................... 13

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