Case5:10-cv-02745-JW Document36 Filed02/17/11 Page1 of 16

1
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7 IN THE UNITED STATES DISTRICT COURT
8 FOR THE NORTHERN DISTRICT OF CALIFORNIA
9 SAN JOSE DIVISION
10 Dianna Dariano, et al., NO. C 10-02745 JW
11 Plaintiffs, ORDER GRANTING IN PART AND
United States District Court

v. DENYING IN PART DEFENDANTS’

For the Northern District of California

12 MOTION TO DISMISS
Morgan Hill Unified Sch. Dist., et al.,
13
Defendants.
14 /
15 I. INTRODUCTION
16 Unlike the general right of United States citizens to hold speeches, rally and picket on the
17 sidewalks of our public streets and in the amphitheaters of our public parks, our Constitution grants
18 public school children only limited First Amendment rights when they enter the schoolhouse gates.
19 Tinker v. Des Moines Indep. Sch. Dist., 393 U.S. 503 (1969). However, these rights are never fully
20 extinguished. Id. Rather, as our public schools provide the equally fundamental democratic
21 function of bestowing educational access to the next generation of citizens without to regard
22 economic, social, ethnic, or racial background, the Constitution has seen fit to balance this first
23 purpose of public schools against the individual autonomous right of First Amendment expression.
24 Without the ability to protect and foster a safe environment in our public schools, educational equity
25 and the democratic pillar it provides could crumble. On the other hand, the framers of our
26 Constitution found fit to highlight the primacy of free speech by placing it first within the
27 framework of our Bill of Rights. Without free discourse, especially the right to express political
28 views and to engage with our government institutions, our democracy is equally jeopardized. It is
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1 this fragile balance that the First Amendment doctrine addressing student’s rights to free speech and
2 free expression in public schools has recognized and warily navigated over the last forty years. The
3 case before the Court requires the Court to traverse this important legal territory. What is before the
4 Court today is a Motion to Dismiss for lack of standing that, if granted, would foreclose further
5 inquiry into these vital considerations. Thus, it is with utmost care that the Court approaches this
6 analysis.
7 Plaintiffs1 bring this action against Morgan Hill Unified School District and certain
8 individuals,2 (collectively, “Defendants”), alleging violations of their First and Fourteenth
9 Amendment rights pursuant to 42 U.S.C. § 1983, and violations of their right to Freedom of
10 Expression under the California Constitution, Art. I, § 2. Plaintiffs allege that Defendants violated
11 their federal and state constitutional rights to freedom of expression, due process and equal
United States District Court
For the Northern District of California

12 protection by disallowing them from wearing American flag shirts in a public high school on Cinco
13 de Mayo Day.
14 Presently before the Court is Defendants’ Motion to Dismiss for Lack of Subject Matter
15 Jurisdiction.3 The Court conducted a hearing on February 7, 2011. Based on the papers submitted
16 to date and oral argument, the Court GRANTS in part and DENIES in part Defendants’ Motion to
17 Dismiss.
18 II. BACKGROUND
19 In a Complaint filed on June 23, 2010,4 Plaintiffs allege as follows:
20
1
21 Dianna Dariano individually and on behalf of their minor child M.D., John Dariano
individually and on behalf of their minor child M.D., Julie Ann Fagerstrom individually and on
22 behalf of their minor child D.M., Kurt Fagerstrom individually and on behalf of their minor child
D.M., Kendall Jones individually and on behalf of their minor child D.G., and Joy Jones individually
23 and on behalf of their minor child D.G. (collectively, “Plaintiffs”).
24 2
Individual Defendants are Nick Boden in his official and individual capacity as Principal
of Live Oak High School, and Miguel Rodriguez in his official and individual capacity as Assistant
25 Principal of Live Oak High School.
26 3
(hereafter, “Motion,” Docket Item No. 12.)
27 4
(hereafter, “Complaint,” Docket Item No. 1.)
28 2
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1 Plaintiffs John and Dianna Dariano are the parents and legal guardians of Plaintiff
2 M.D., a minor, who is and was a sophomore student at Live Oak High School which is
3 located within the Morgan Hill Unified School District. (Complaint ¶ 8.) Plaintiffs Kurt and
4 Julie Ann Fagerstrom are the parents and legal guardians of Plaintiff D.M., a minor, who is
5 and was a freshman student at Live Oak High School. (Id. ¶ 9.) Plaintiffs Kendall and Joy
6 Jones are the parents and legal guardians of Plaintiff D.G., a minor, who is and was a
7 sophomore student at Live Oak High School. (Id. ¶ 10.) Defendant Morgan Hill School
8 District (“District”) is a public entity established and organized under California law in
9 Morgan Hill, California. (Id. ¶¶ 8, 11.) Defendant Nick Boden (“Principal Boden”) was the
10 Principal of Live Oak High School and a policymaker for the District. (Id. ¶ 12.) Defendant
11 Miguel Rodriguez (“Assistant Principal Rodriguez”) was an Assistant Principal of Live Oak
United States District Court
For the Northern District of California

12 High School and a policymaker for the District. (Id. ¶ 13.)

13 On May 5, 2010, Plaintiffs M.D., D.M. and D.G. (collectively, “Student Plaintiffs”)
14 and two other students, who are not plaintiffs in this action, wore shirts depicting images of
15 the American flag to Live Oak High School. (Complaint ¶ 14.) Student Plaintiffs wore their
16 American flag shirts to school to express a message conveying a pro-U.S.A. viewpoint and
17 had done so on prior occasions without incident. (Id. ¶ 15.) Also on May 5, 2010, many
18 students were expressing a pro-Mexico viewpoint through shirts and bodypaint, displaying
19 Mexican flags, and singing and dancing. (Id. ¶ 21.)
20 On the morning of May 5, 2010, Plaintiffs D.M. and D.G. arrived to school at
21 approximately 7:04 a.m. and Plaintiff M.D. arrived at approximately 9:15 a.m. (Complaint ¶
22 16.) At no time, even during a “brunch break” in the high school courtyard, did Student
23 Plaintiffs’ American flag shirts cause a disruption on the school campus. (Id. ¶¶ 17, 18, 22.)
24 Shortly after 10:05 a.m., while Student Plaintiffs were on “brunch break,” they were
25 confronted by Assistant Principal Rodriguez. (Id. ¶ 20.) Assistant Principal Rodriguez
26 informed Student Plaintiffs that they were not permitted to wear their American flag shirts
27 and gave Student Plaintiffs the option of either removing the shirts or turning them inside
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1 out. (Id.) Not wanting to disrespect their country and the American flag, Student Plaintiffs
2 refused to comply with either option. (Id.) After Plaintiff D.M. asked why the American
3 flag shirts were not permitted, Assistant Principal Rodriguez ordered Student Plaintiffs to his
4 office. (Id.)
5 Student Plaintiffs complied with Assistant Principal Rodriguez’s request and
6 proceeded to his office. (Complaint ¶ 23.) En route to the office, Plaintiff M.D. contacted
7 his mother, Plaintiff Dianna Dariano, by cellular phone and updated her on Assistant
8 Principal Rodriguez’s request. (Id.) Plaintiff Dianna Dariano departed for the school
9 immediately and began to notify the parents of the other two Student Plaintiffs. (Id. ¶ 24.)
10 Upon arrival at Live Oaks High School, Plaintiff Dianna Dariano proceeded to
11 Assistant Principal Rodriguez’s office. (Complaint ¶ 25.) Before entering to join her son,
United States District Court
For the Northern District of California

12 Plaintiff Dianna Dariano overheard Assistant Principal Rodriguez lecturing Student Plaintiffs
13 inside the office about the holiday Cinco de Mayo. (Id. ¶¶ 25, 26.) All students, aside from
14 Plaintiff M.D., left the office once Plaintiff Dianna Dariano entered. (Id. ¶ 25.) While
15 inside, Assistant Principal Rodriguez notified Plaintiff Dianna Dariano that the American
16 flag shirts would not be permitted at the school that day and began to lecture her about Cinco
17 de Mayo. (Id. ¶ 26.) During this time, parents of other Student Plaintiffs arrived at the office
18 and requested an immediate meeting with Principal Boden. (Id. ¶ 27.)
19 Just a few moments later, the parents met with both Assistant Principal Rodriguez
20 and Principal Boden in a nearby conference room. (Complaint ¶ 28.) During the meeting,
21 Assistant Principal Rodriguez and Principal Boden lectured the parents about Cinco de Mayo
22 and reiterated that Student Plaintiffs were required to remove their American flag shirts or
23 turn them inside out. (Id.) Principal Boden expressed angrily that Student Plaintiffs would
24 be allowed to wear their American flag shirts any day but on Cinco de Mayo. (Id.)
25 About an hour and a half later, Plaintiff M.D. and two other non-plaintiff students
26 not wearing shirts with a purely pro-U.S.A. message were allowed to return to class based on
27 one parent’s demand that they not be banned. (Complaint ¶ 29.) Shortly after Plaintiff M.D.
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1 returned to class, Plaintiff Dianna Dariano learned that expression of a pro-Mexico viewpoint
2 was being permitted at the school and, concerned that her son was being unfairly singled out
3 for his pro-America viewpoint, removed Plaintiff M.D. from class. (Id. ¶ 31.) Plaintiffs
4 D.M. and D.G. were not allowed to return to class and were threatened with suspension
5 should they not remove their American flag shirts or turn them inside out. (Id. ¶ 30.)
6 Plaintiffs D.M. and D.G. refused to comply based on patriotic reasons, so they were directed
7 to leave the school. (Id.)
8 Principal Boden and Assistant Principal Rodriguez’s censorship of Student Plaintiffs’
9 American flag shirts was conducted pursuant to a District policy, which states: “Clothing . . .
10 or actions which . . . disrupt school activities will not be tolerated. Such actions or the
11 wearing and/or possession of these items may be cause for suspension.” (Complaint ¶¶ 33,
United States District Court
For the Northern District of California

12 37.) As it was the case that the American flag shirts did not cause any disruption, the District
13 policy provides school officials too much discretion to engage in prior restraint of messages
14 and viewpoints, and provides no objective standards or guidelines to limit enforcement of the
15 policy. (Id. ¶¶ 34, 35, 36.)
16 On the basis of the allegations outlined above, Plaintiffs allege four causes of action: (1)
17 Violation of Freedom of Speech Under the First Amendment, 42 U.S.C. § 1983; (2) Violation of
18 Due Process Under the Fourteenth Amendment, 42 U.S.C. § 1983; (3) Violation of Equal Protection
19 Under the Fourteenth Amendment, 42 U.S.C. § 1983; and (4) Violation of Freedom of Speech Under
20 the California Constitution, Art. I, § 2.
21 Presently before the Court is Defendants’ Motion to Dismiss.
22 III. STANDARDS
23 Rule 12(b)(1) of the Federal Rules of Civil Procedure provides for a motion to dismiss for
24 lack of subject-matter jurisdiction. A Rule 12(b)(1) motion may be either facial, where the inquiry
25 is confined to the allegations in the complaint, or factual, where the court is permitted to look
26 beyond the complaint to extrinsic evidence. Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir. 2004).
27 On a facial challenge, all material allegations in the complaint are assumed true, and the question for
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1 the court is whether the lack of federal jurisdiction appears from the face of the pleading itself. See
2 Wolfe, 392 F.3d at 362; Thornhill Publishing Co. v. General Telephone Electronics, 594 F.2d 730,
3 733 (9th Cir. 1979). When a defendant makes a factual challenge “by presenting affidavits or other
4 evidence properly brought before the court, the party opposing the motion must furnish affidavits or
5 other evidence necessary to satisfy its burden of establishing subject-matter jurisdiction.” Safe Air
6 For Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). The court need not presume the
7 truthfulness of the plaintiff’s allegations under a factual attack. White v. Lee, 227 F.3d 1214, 1242
8 (9th Cir. 2000); Augustine v. United States, 704 F.2d 1074, 1077 (9th Cir. 1983). However, in the
9 absence of a full-fledged evidentiary hearing, disputes in the facts pertinent to subject-matter are
10 viewed in the light most favorable to the opposing party. Dreier v. United States, 106 F.3d 844, 847
11 (9th Cir. 1996). The disputed facts related to subject-matter jurisdiction should be treated in the
United States District Court
For the Northern District of California

12 same way as one would adjudicate a motion for summary judgment. Id.
13 IV. DISCUSSION
14 Defendants move to dismiss for lack of subject matter jurisdiction on the grounds that: (1)
15 there is no live “case or controversy” on which to base claims for injunctive and declaratory relief;
16 (2) claims for nominal damages against the District and Assistant Principal Rodriguez and Principal
17 Boden in their official capacities are barred by the Eleventh Amendment; (3) Plaintiff M.D. did not
18 suffer any “injury in fact” on which to base claims for a First Amendment violation; and (4) Plaintiff
19 Parents cannot bring a constitutional challenge on their own behalf, as they are not students at Live
20 Oak High School. (Motion at 1, 7-13.) The Court addresses each ground in turn.
21 A. No Live “Case or Controversy”
22 Defendants contend that there is no live case or controversy on which Plaintiffs may base
23 their claims for prospective relief as: (1) Assistant Principal Rodriguez and Principal Boden did not
24 act pursuant to District policy and are no longer employed by the District; and (2) assuming
25 arguendo that the case is not moot, Plaintiffs do not have a reasonable expectation that they will be
26 subjected to similar violations in the future such that they are entitled to the “capable of repetition,
27 yet evading review” exception to the mootness doctrine. (Motion at 10.) Plaintiffs respond that
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1 their claims for prospective relief are not moot, as it was District policy, not merely the acts of
2 individual Defendants that violated their constitutional rights, and Defendants’ purported voluntary
3 cessation of enforcement of that policy is insufficient to moot the case.5
4 At issue is whether Assistant Principal Rodriguez and Principal Boden’s discontinuance of
5 their employment relationship with the District, coupled with the Superintendent of the District’s
6 public statement following the incident stating that there is not and has never been a District policy
7 forbidding patriotic clothing, moots the case. (Motion at 10.)
8 Article III of the United States Constitution limits the reach of federal judicial power solely
9 to hear and decide actual cases and controversies. LGS Architects, Inc. v. Concordia Homes of
10 Nevada, 434 F.3d 1150, 1153 (9th Cir. 2006). As consequence, should a plaintiff pray for
11 prospective relief “‘[w]here the activities sought to be enjoined already have occurred, and the
United States District Court
For the Northern District of California

12 [court] cannot undo what has already been done, the action is moot, and must be dismissed’ for lack
13 of jurisdiction.” Id. (quoting Bernhardt v. County of Los Angeles, 279 F.3d 862, 871 (9th Cir.
14 2002)). When a defendant moves to dismiss an action for mootness on the ground that the defendant
15 has voluntarily ceased the offending activities, the defendant bears the “heavy burden of
16 persua[ding] the court that the challenged conduct cannot reasonably be expected to start up again . .
17 . .” Adarand Constructors, Inc. v. Slater, 528 U.S. 216, 222 (2000) (internal citations and quotations
18 omitted). Indeed, a court should find that “[v]oluntary cessation of challenged conduct moots a case
19 . . . only if it is absolutely clear that the allegedly wrongful behavior could not reasonably be
20 expected to recur.” Id. (internal citations and quotations omitted). The Ninth Circuit has found that
21 mootness based on a defendant’s claim of voluntary termination of the wrongful activity is
22 “exceedingly rare.” LGS Architects, 434 F.3d at 1153.
23 Here, Plaintiffs allege, in pertinent part:
24 Defendants’ censorship of Student Plaintiffs’ pro-U.S.A. message was pursuant to
25
26
5
(Plaintiffs’ Opposition to Defendants’ Motion to Dismiss, hereafter, “Opp’n,” Docket Item
27 No. 26.)
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1 School District policy, which states, “Clothing . . . or actions which . . . disrupt school
activities will not be tolerated. Such action or the wearing and/or possession of these items
2 may be the cause for suspension.”
The challenged School District policy provides school officials, such as Defendants
3 Boden and Rodriguez, with no objective standards or guidelines to enforce its provisions,
thereby granting government officials unbridled discretion to silence messages and
4 viewpoints, such as the message and viewpoint expressed by Student Plaintiffs, that the
government officials dislike.
5 The challenged School District policy permits school officials, such as Defendants
Boden and Rodriguez, to engage in a prior restraint of student speech by prohibiting students
6 from wearing message-bearing clothing without any objective evidence that the speech
caused or will cause substantial or material disruption to the school environment.
7 The challenged School District Policy was the moving force behind the
unconstitutional acts committed by Defendants Boden and Rodriguez as set forth in this
8 Complaint.
9 (Complaint ¶¶ 33-37.) Defendants challenge these allegations with a declaration from Defendant
10 Boden stating that he “did not act pursuant to a policy of the Morgan Hill Unified School District in
11 deciding what action to take with respect to [Plaintiffs] in the instant suit.”6 Rather, Defendant
United States District Court
For the Northern District of California

12 Boden contends that “[he] made a judgment call based on the larger context of the situation . . . and
13 from a duty and obligation . . . inherent to [his] position as Principal . . . [to ensure] a safe campus
14 for the approximately 1300 students in [his] care and custody . . . .” (Id.) In addition, Defendants
15 present a declaration from Superintendent Smith and a number of exhibits in support of the
16 contention that in the days following the events at issue Superintendent Smith made a number of
17 public statements on behalf of the District: (1) disavowing Defendants Boden and Rodriguez’s
18 actions in relation to Plaintiffs; and (2) clarifying that the District did not have a policy against
19 students wearing patriotic clothing to school.7 In particular, Superintendent Smith issued a short
20 press release on May 6, 2010 at 11 a.m.;8 left a voicemail for parents on the evening of May 6,
21 2010;9 and held a formal press release on May 7, 2010 at 11:45 a.m. stating that:
22
6
23 (Motion, Ex. A, Declaration of Nick Boden in Support of Defendants’ Motion to Dismiss ¶
2, hereafter, “Boden Decl.,” Docket Item No. 12.)
24
7
(See Motion, Ex. B, Declaration of Dr. Wesley Smith in Support of Defendants’ Motion to
25 Dismiss, hereafter, “Smith Decl.,” Docket Item No. 12.)
26 8
(Smith Decl., Ex. A.)
27 9
(Smith Decl., Ex. B.)
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1 It’s important to understand that this was never about whether students were allowed
to wear patriotic clothing on our campuses. They can. It was about ensuring that our high
2 school campus was orderly and safe. School leaders have to make judgment calls on when to
take preventative measures to preempt a possible incident or conflict. In this situation, it
3 appears that a decision was made too quickly. Today, the principal of Live Oak has issued
an apology to the students, parents, staff and community for the decision that was made.
4
(Smith Decl., Ex. C.)
5
In response, Plaintiffs present a declaration from Plaintiff Dianna Dariano10 that Principal
6
Boden stated during his meeting with Plaintiffs that:
7
There is a school rule against wearing disruptive clothing, and if we . . . think your
8 shirt is going to cause a problem, then we can tell you to take it off.
9 (Dariano Decl. ¶ 8.) Further, Plaintiffs contend that Defendants’ own evidence supports the
10 contention that Principal Boden, as the school principal acting pursuant to his duties, is a
11 decisionmaker for the District and was enforcing District policy. (Boden Decl. ¶ 2; Opp’n at 7-8.)
United States District Court
For the Northern District of California

12 In light of the conflicting evidence presented, the Court finds that whether Principal Boden
13 and Assistant Principal Rodriguez acted pursuant to the District policy is a fact in high dispute.
14 Thus, in interpreting that fact in the light most favorable to Plaintiffs, the Court finds Principal
15 Boden and Assistant Principal Rodriguez’s cessation of employment insufficient to moot the case.
16 Further, while Defendants present evidence that Superintendent Smith, acting on behalf of the
17 District, disavowed the particular May 5, 2010 incident, he did not disavow the specific policy
18 challenged by Plaintiffs in this case. (Smith Decl., Ex. C.) In fact, in his public statements,
19 Superintendent Smith affirmed the necessity of enforcement of the policy to ensure safe and orderly
20 campuses and merely eschewed the speed at which the decision was made in this case. (Id.)
21 Moreover, Defendants present no evidence that: (1) the policy at issue has been amended; (2) other
22 policies have been issued to prevent reoccurrence; or (3) the District has voluntarily ended
23 enforcement. Defendants do not dispute that Student Plaintiffs are still enrolled in the District and,
24
25
26
27 10
(See Opp’n, Ex. A, Declaration of Plaintiff Dianna Dariano, hereafter, “Dariano Decl.”)
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1 as consequence, still potentially subject to the challenged policy.11 Thus, the Court finds that
2 Defendants have failed to meet their high bar of asserting mootness based on voluntary cessation.
3 Defendants’ reliance on Lopez v. Candele12 is misplaced. First, Defendants’ reliance on
4 Lopez for the proposition that the Ninth Circuit has adopted the Fifth Circuit’s13 presumption of
5 good faith for voluntary cessation of allegedly unconstitutional activity on the part of government
6 actors misinterprets the doctrine.14 In Lopez, the Ninth Circuit held that a statement made by the
7 “administration official with the responsibility for overseeing college policies” that no action would
8 be taken against the plaintiff under the challenged policy was “entitled to significant weight.” Id. at
9 *12. The court did not apply greater weight to the official’s statement because the official was a
10 public officer of a government entity, as the Fifth Circuit clearly held in Sossamon.15 Rather, the
11 court found that the official’s statement should be entitled to greater weight as the official was the
United States District Court
For the Northern District of California

12 senior decision maker charged with interpreting and applying the challenged policy, without
13 reference to the official’s status as a public servant. Lopez, 2010 WL 5128266, at *12.
14 Second, Defendants’ reliance on Lopez for the proposition that Plaintiffs lack standing in the
15 present case unduly extends the holding in Lopez.16 In Lopez, the court held that there was no case
16
11
17 Further, the continued enrollment of Student Plaintiffs distinguishes Plaintiffs’ claims for
injunctive and declaratory relief from those asserted in Cole and Bauchman, where the plaintiffs had
18 graduated. Cole v. Oroville Union High Sch. Dist., 228 F.3d 1092, 1098 (9th Cir. 2000); Bauchman
for Bauchman v. West High Sch., 132 F.3d 542, 548 (10th Cir. 1997). Thus, Defendants’ reliance
19 on this caselaw for the proposition that there is no live case or controversy in the present action is
misplaced.
20
12
No. 09-56238, 2010 WL 5128266 (9th Cir. December 16, 2010).
21
13
Sossamon v. Lone Star State of Texas, 560 F.3d 316, 325 (10th Cir. 2009).
22
14
(Reply in Support of Defendants’ Motion to Dismiss for Lack of Subject Matter
23 Jurisdiction at 4-5, hereafter, “Reply,” Docket Item No. 28.)
24 15
Sossamon, 560 F.3d at 325 (“[G]overnment actors in their sovereign capacity and in the
exercise of their official duties are accorded a presumption of good faith because they are public
25 servants, not self-interested private parties.”).
26 16
(Notice of Recent Decision and Supplemental Memorandum of Points and Authorities in
Support of Defendants’ Motion to Dismiss for Lack of Subject Matter Jurisdiction at 3, Docket Item
27 No. 22.)
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1 or controversy on which to base a pre-enforcement challenge of the school’s sexual harassment

2 policy on the ground that the plaintiff had “failed to make a clear showing that his intended speech
3 on religious topics gave rise to a specific and credible threat of adverse action . . . under the
4 college’s sexual harassment policy.” Lopez, 2010 WL 5128266, at *1. In so doing, the court
5 considered three factors: (1) “whether pre-enforcement plaintiffs have failed to show a reasonable
6 likelihood that the government will enforce the challenged law against them”; (2) “whether plaintiffs
7 have failed to establish, with some degree of concrete detail, that they intend to violate the
8 challenged law”; and (3) “whether the challenged law is inapplicable to plaintiffs, either by its terms
9 or as interpreted by the government.” Id. at *6. Upon consideration, the court found that the
10 plaintiff had failed to make a showing of a threat of adverse action in that the verbal abuse of a
11 teacher, in response to the plaintiff’s speech, including the word “offended” without any further
United States District Court
For the Northern District of California

12 reference to a school policy was too attenuated. Id. at *9. Second, the teacher’s later comment that
13 the student had agreed to abide by the terms of the Student Code of Conduct was at most a “general
14 threat” rather than a “direct threat of punishment.”17 Third, the school never took steps to enforce
15 the policy and explicitly stated that the policy would not be enforced against the plaintiff. Id. at *9.
16 Lastly, the court found the plain language of the statute inapplicable to the plaintiff’s case and an
17 absence of any interpretation by the school that the policy applied to the plaintiff’s conduct. Id. at
18 *12. Here, unlike in Lopez, Plaintiffs have clearly alleged that they were threatened with
19 enforcement for undertaking action that falls within the plain language of the challenged policy.
20 (Complaint ¶¶ 20, 25, 28, 30.) Further, Student Plaintiffs were not merely reminded generally of
21 their need to adhere to school policies, but were allegedly taken to the office by school
22 administrators and threatened with the requirement of altering their conduct or leaving the school.
23 (Id.) Thus, the Court finds Lopez inapplicable to the facts of this case.
24
25
26
17
Id. (quoting United Public Workers of America (C.I.O.) v. Mitchell, 330 U.S. 75, 88
27 (1947)).
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1 Accordingly, the Court DENIES Defendants’ Motion to Dismiss on the grounds that
2 Plaintiffs’ claims for declaratory and injunctive relief are moot.18
3 B. Eleventh Amendment Bar to Damages Claim
4 Defendants contend that the Eleventh Amendment bars any claims against the District,
5 Principal Boden and Assistant Principal Rodriguez in their official capacities under Belanger and its
6 progeny.19 (Motion at 10-11.) Plaintiffs respond that their claims for damages do not implicate the
7 Eleventh Amendment bar, as they solely seek monetary damages against Principal Boden and
8 Assistant Principal Rodriguez in their individual capacities. (Opp’n at 14-15.)
9 While Ex Parte Young20and its progeny have long barred suits for damages against state
10 agencies and agents in their official capacities, “the Eleventh Amendment does not erect a barrier
11 against suits to impose ‘individual and personal liability’ on state officials under § 1983.” Hafer v.
United States District Court
For the Northern District of California

12 Melo, 502 U.S. 21, 31-32 (1991) (citations omitted).

13 Here, Plaintiffs allege, in pertinent part:
14 Wherefore, Plaintiffs ask this Court: . . . (D) to award Plaintiffs nominal damages
against Defendants in their individual capacities for violating their constitutional rights
15 pursuant to 42 U.S.C. § 1983 and other applicable law . . . .
16 (Complaint ¶ 52.)
17 Contrary to Defendants’ contentions, Plaintiffs have prayed for nominal damages exclusively
18 against Defendants in their individual capacities, and not against the District and individual
19 Defendants in their official capacities. Thus, the Court finds that the Eleventh Amendment would
20 not serve to bar Plaintiffs’ claims for nominal damages.
21
22
23 18
As the Court has found that the case is not moot, the Court need not reach whether the
“capable of repetition, yet evading review” exception to mootness applies.
24
19
See Belanger v. Madera Unified Sch. Dist., 963 F.2d 248, 251-54 (9th Cir. 1992) (holding
25 that the unique centralized funding system in California renders its school districts state agencies for
purposes of the Eleventh Amendment); see also Cole v. Oroville Union High Sch. Dist., 228 F.3d
26 1092, 1100 n.4 (9th Cir. 2000).
27 20
209 U.S. 123 (1908).
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1 Accordingly, the Court DENIES Defendants’ Motion to Dismiss Plaintiffs’ claims for
2 nominal damages as to Plaintiffs Boden and Rodriguez in their individual capacities.
3 C. Plaintiff M.D. and Injury in Fact
4 Defendants contend that Plaintiff M.D. lacks standing to bring claims for violation of his
5 constitutional rights, as Plaintiff M.D. suffered no actual injury from Defendants’ conduct in that he
6 was allowed to return to class wearing his American flag shirt. (Motion at 11-13.) Plaintiffs
7 respond that Plaintiff M.D. was injured in his detention and harassment by Defendants, as well as by
8 nature of his being presently enrolled at the school and, therefore, still subject to the challenged
9 District policy. (Opp’n at 15-17.)
10 The case or controversy limitation delineated by Article III of the United States Constitution
11 requires that a plaintiff have “standing” in order to invoke the power of the federal courts. Allen v.
United States District Court
For the Northern District of California

12 Wright, 468 U.S. 737, 750 (1984). A “core component” of standing, “derived directly from the
13 Constitution,” is one in which a plaintiff must “allege personal injury fairly traceable to the
14 defendant’s allegedly unlawful conduct and likely to be redressed by the requested relief.” Id. at
15 751. In regards to the First Amendment, a plaintiff can allege actual injury of free speech rights in
16 either of two ways. New Hampshire Right to Life Political Action Committee v. Gardner, 99 F.3d 8,
17 13-14 (1st Cir. 1996). In the first instance, free speech rights may be violated by actual or
18 threatened enforcement of an unconstitutional policy. Elrod v. Burns, 427 U.S. 347, 373-74 (1976)
19 (“The loss of First Amendment freedoms, for even minimal periods of time, unquestionably
20 constitutes irreparable injury.”) (citing New York Times Co. v. United States, 403 U.S. 713 (1971)).
21 In the second instance, one particular to the free speech context, a plaintiff may allege actual injury
22 due to the chilling effects, including self-censorship, that result from the mere possibility of
23 enforcement of an unconstitutional statute. Meese v. Keene, 481 U.S. 465, 473 (1987). However, to
24 mount a pre-enforcement challenge to a particular statute, a plaintiff’s fear of prosecution must be
25 objectively reasonable. Laird v. Tatum, 408 U.S. 1, 13-14 (1972).
26
27
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1 Here, Plaintiffs allege, in pertinent part:

2 Shortly after “brunch break” began, Defendant Rodriguez confronted Student
Plaintiffs at their table. (Complaint ¶ 20.) Defendant Rodriguez told the boys [including
3 Plaintiff M.D.] that they would not be able to wear their pro-U.S.A. shirts and gave them the
option of either removing the shirts or turning them inside out. . . . (Id.) When asked by
4 Plaintiff D.M. why the shirts were not permitted, Defendant Rodriguez responded by
ordering the boys to go to his office. (Id.) Student Plaintiffs complied with Defendant
5 Rodriguez’s order to go to his office . . . . (Id. ¶ 23.)
When [Plaintiff M.D.’s Mother] arrived . . . she went to Defendant Rodriguez’s
6 office. (Complaint ¶ 25.) Upon arriving the door was closed, but she could hear what was
being discussed and knew that her son was in the room. (Id.) In particular, she could hear
7 Defendant Rodriguez lecturing the boys about “Cinco de Mayo.” (Id.) Because Plaintiff
M.D. and two of the other boys were wearing “Tap Out” t-shirts and not ones conveying a
8 purely pro-U.S.A. message . . . Defendant Boden, over the objection of Defendant
Rodriguez, lifted Defendant Rodriguez’s ban on these shirts . . . . (Id. ¶ 29.) At this point,
9 the boys had been in the office for approximately an hour and a half. (Id.)
Shortly after her son was allowed to return to class with his “Tap Out” shirt and after
10 learning that Defendants were permitting students to express a pro-Mexico viewpoint
through message-bearing t-shirts, body paint, the display of Mexican flags, music, and dance,
11 [Plaintiff M.D.’s Mother] removed [Plaintiff M.D.]. (Complaint ¶ 31.) [Plaintiff M.D.’s
United States District Court

Mother] believed that [Plaintiff M.D.] was unfairly singled out by Defendants for adverse
For the Northern District of California

12 treatment on account of his pro-U.S.A. viewpoint and did not want him to remain in school
that day. (Id.)
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While the Complaint does not allege that Plaintiff M.D. was threatened with suspension
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for refusal to remove his shirt, the Court finds that Plaintiff M.D. has alleged facts sufficient to
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support an injury fairly traceable to Defendants’ allegedly unlawful conduct. Plaintiff M.D. was
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allegedly threatened with enforcement of the challenged policy and detained. In particular, the
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Complaint alleges that Plaintiff M.D. was told by Defendants to remove his shirt or go to the office,
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was detained in the Live Oaks’s office for an extended period and was only hesitantly allowed to
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return to class. Further, Plaintiff M.D. remains enrolled in the District and is thus potentially subject
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to future enforcement of the challenged District policy.
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Accordingly, the Court DENIES Defendants’ Motion to Dismiss Plaintiff M.D.’s claims for
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lack of standing.
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D. Parent Claims
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Defendants contend that Plaintiff Parents fail to assert any viable claims for violation of their
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individual constitutional rights, as they are not students at Live Oak High School. (Motion at 1.)
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Plaintiffs respond that parents of minor school children have the right to bring suit on behalf of their
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1 minor children for violation of the minor’s constitutional rights and that Plaintiff Parents bring these
2 claims on behalf of their minor children, not on an individual basis. (Opp’n at 1.)
3 Fed. R. Civ. P. 17(c) provides in pertinent part that “[t]he following representatives may sue
4 or defend on behalf of a minor or an incompetent person: (A) a general guardian . . . .”
5 Here, Plaintiffs allege in the Complaint that each parent is suing “on [their] own behalf and
6 on behalf of [their minor child], as [their] next friend.” (Complaint ¶¶ 8, 9, 10.) However, Plaintiffs
7 do not allege facts sufficient to state a claim for violation of their individual First Amendment rights
8 and do not dispute that Plaintiff Parents bring their claims solely on behalf of their minor children.
9 (Opp’n at 1.) Thus, the Court finds that insofar as Plaintiff Parents assert claims individually against
10 Defendants for violations of Plaintiff Parents’ First Amendment rights, Plaintiffs fail to state a claim
11 on which relief might be granted.
United States District Court
For the Northern District of California

12 Accordingly, the Court GRANTS Defendants’ Motion to Dismiss Plaintiff Parents’

13 individual claims against Defendants for violation of their own First Amendment rights.
14 V. CONCLUSION
15 The Court GRANTS in part and DENIES in part Defendants’ Motion to Dismiss Plaintiffs’
16 Complaint for lack of subject matter jurisdiction.
17 The Court sets March 14, 2011 at 10 a.m. for a Case Management Conference. On or
18 before March 4, 2011, the parties shall file a Joint Statement including, inter alia, a good faith plan
19 for discovery and a proposed schedule for how this case should proceed in light of this Order.
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21 Dated: February 17, 2011
JAMES WARE
22 United States Chief District Judge
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1 THIS IS TO CERTIFY THAT COPIES OF THIS ORDER HAVE BEEN DELIVERED TO:
2 Alyson Cabrera acabrera@gordonrees.com
Mark S. Posard mposard@gordonrees.com
3 Robert J. Muise rmuise@thomasmore.org
William Joseph Becker bbeckerlaw@gmail.com
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5 Dated: February 17, 2011 Richard W. Wieking, Clerk
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By: /s/ JW Chambers
7 Elizabeth Garcia
Courtroom Deputy
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United States District Court
For the Northern District of California

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