30 final brief

8/7/2019 30 Final Brief

1/19

30

UNITED STATES DISTRICT COURTDISTRICT OF NEW HAMPSHIRE

___________________________________

:

PHILLIP ANDOVER, a minor, by and :through his parents, John and Priscilla :

Andover, :

Plaintiff, ::

v. : CIVIL ACTION

: NO. 10-0085-B

CHERRY HILL SCHOOL DISTRICT and :

JENNIFER MARSHALL, Principal, :Cherry Hill High School East, in her official :

and individual capacity, :Defendants. :

___________________________________ :

BRIEF IN OPPOSITION TO DEFENDANTS

MOTION FOR SUMMARY JUDGMENT

Introduction

In this action, Plaintiff, Mr. Phillip Andover, through his parents, John and

Priscilla Andover, is seeking declaratory and injunctive relief against Defendants,

Cherry Hill School District, and Jennifer Marshall, pursuant to 42 U.S.C. 1983

for violation of his First and Fourteenth Amendment Rights. In December of

2009 Mr. Andover was unjustly suspended from Cherry Hill High School East for

off-campus speech.


2/19

Plaintiff files this brief in opposition to Defendants motion for summary

judgment pursuant FRCP 56. Defendants motion for summary judgment should

be denied because there are genuine issues of material fact for trial and

Defendants are not entitled to a judgment as a matter of law. Specifically there

are issues of material fact regarding Mr. Andover intended forum for his speech

and the occurrence of a substantial disruption at Cherry Hill High School East and

the Defendants are not entitled to a judgment as a matter of law on issues of the

relationship between Mr. Andovers speech and the school and the actions of third

parties at the school. Therefore, the court must deny Defendants motion for

summary judgment because these issues must be resolved by a trial before

deciding if Plaintiff, Mr. Andover is entitled to the relief he requests.

Statement of Facts

Phillip Andover is a senior at Cherry Hill High School East and President

of Students Against Drunk Driving (SADD) and is admitted to Yale University on

early decision. (R at 2). On Sunday December 6, 2009, while at home, Phillip

used a website to design a t-shirt available for sale online, and created a web-post

on his Facebook profile drawing attention to the arrest of a Cherry Hill East High

School teacher for driving under the influence (DUI). (R at 5,6). Facebook is a

public social networking website that allows users to display comments and

opinions for view by others. Defendant, the Principal of Cherry Hill East High

2


3/19

School, suspended Phillip for three days because she deemed his conduct was

vulgar and offensive and his behavior was disruptive. (R at 3).

Phillip created the t-shirt with his personal computer on the website

zazzle.com which was available for purchase at zazzle.com. (R at 3, 44). The t-

shirt consisted of the publicly available mugshot of Cherry Hill East teacher Mr.

Richard Perkins after he was arrested for DUI and text that read, See Dick Drink.

See Dick Drive. See Dick Die. Dont Be A dick. Dont Drink And Drive. (R at

6, 44). Phillips Facebook post stated a description of the t-shirt and where to

purchase them. (R at 5). In the web-post he also stated that he would be

wearing (his) around town, and, It wouldnt hurt to let Principal Marshall know

that we dont like having teachers who dont live up to our standards, and letting

Perkins know he has lost our respect (R at 5). Facebook is a public website

that is blocked on the Cherry Hill High School East internet network and

unavailable for access on Cherry Hill East High School computers (R at 36).

Sometime after making the webpost and before December 16th Phillips parents

wrote a letter received by the school board and Defendant Ms. Marshall

discussing Mr. Richard Perkinss arrest and questioning the character of the

teacher. (R at 37).

On December 16th three students wore the t-shirt to school after

purchasing them online. One student was told to cover the t-shirt for the

3


4/19

remainder of the school day and the other two students, who were unable to cover

the t-shirt, were sent home. (R at 31). Ms. Marshall did not punish these students

in a formal manner such as a detention or suspension. (R at 32). Ms. Marshall

questioned these students about the origins of the t-shirts and was told that the t-

shirts were designed by Mr. Andover, but the students purchased the t-shirts

online and wore them in allegiance to SADD. (R at 31). At Defendants request,

one student showed her Phillips Facebook web-post via his cell phone. (R at 30).

The following day sophomore and junior students of Mr. Richard Perkinss first

class were not responsive in class discussion. (R at 32, 33). The class was not

disruptive and Mr. Richard Perkinss was able to deliver his lecture and control

the class. (R at 17). These students were not suspended or punished by the

Defendant. (R at 36). Mr. Perkins does not teach senior students, such as Phillip

Andover. (R at 33).

Phillip Andover never wore his t-shirt at school or at a school function and

intended to wear it around town. (R at 3, 5). Phillip never used school materials

to create the t-shirt or his Facebook web-post. (R at 3). Phillip did not encourage

other students to wear the t-shirt at school. (R at 5, 17, 33). Phillip was never in

Mr. Richard Perkins class (R at 17, 37). Phillip did not encourage the

unresponsiveness of Mr. Richard Perkinss class in his post. (R at 5). Phillip

created a t-shirt and web-post off school premises that were not endorsed by the

school. (R at 44, 45). Phillips actions were expressions of his own opinion of

4


5/19

drunk driving. (R at 44, 45). Phillip was suspended for his conduct and is now

concerned that the suspension on his permanent record will negatively affect his

early admission decision at Yale University and future reputation. (R at 45).

Argument

I. MATERIAL QUESTIONS OF FACT AND DISPUTED MATTERS OF

LAW PRECLUDE SUMMARY JUDGMENT FOR DEFENDANTS

This court must deny the Defenses motion for summary judgment.

Summary judgment can only be granted if the pleadings, depositions, answers to

interrogatories, and admission on file, together with affidavits, if any, show that

there is no genuine issue as to material fact and that the moving party is entitled to

judgment as a matter of law. Fed. R. Civ. P. 56(c). A fact in dispute is material

if it could affect the ruling of the case under the controlling law. Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Petitioners must demonstrate that

there is no genuine issue of any material fact and they are entitled to a judgment

as a matter of law. Ricci v. DeStafan, 129 S. Ct. 2658, 2677 (2009). The

nonmoving party has the burden to designate facts that show there is a genuine

issue for trial. Id. A genuine issue of material fact for trial is one where a jury

could return a decision in favor of the non-moving party. Anderson, 477 U.S. at

248. When evaluating a motion for summary judgment, the facts are to be viewed

in a light most favorable to the non-moving party. Matsushita Electric Industrial

5


6/19

Co. v. Zenith Radio Corp., 475 U. S. 574, 587 (1986). Defendants are not entitled

to a judgment as a matter of law because there are material questions of fact in

dispute that could affect the ruling of the case under the controlling authorities of

Tinker v. Des Moines Independent Community School District,Bethel School

District No. 403 v. Fraser, and Morse v. Frederick.

In Tinkerthe Supreme Court of the United States held student speech

cannot be regulated unless it causes a substantial disruption to school activities.

Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969). In Tinker

students wore black armbands in protest of the Vietnam War. Tinker, 393 U.S. at

504. The Supreme Court found the Constitution does not allow the school to

regulate students First Amendment right to free speech when the students

speech does not cause a substantial disruption or material interference with school

activities. Tinker, 393 U.S. at 514.

InFraserthe Supreme Court of the United States held a school has a right

to regulate a students speech in a classroom or at a school assembly when it is

lewd or vulgar. Bethel Sch. Dist. No. 403 v. Fraser,478 U.S. 675 (1986). In

Frasera student gave a speech to a student assembly that contained strong sexual

innuendo. Fraser,478 U.S. at 678. The Court found the in-school speech could

be regulated because of its content and possible offensiveness to the school

assembly which included teachers and 14 year old students. Fraser, 478 U.S. at

683.

6


7/19

In Morse the Supreme Court of the United States held that a school can

regulate a students speech directed at fellow students promoting illegal drug use

at an off-campus school-sponsored event. Morsev. Frederick, 551 U.S. 393

(2007). In Morse, a student held a banner that read BONG Hits 4 JESUS across

the street from the school readable by students at the school-sponsored Torch

Relay event. Morse, 551 U.S. at 397. The Court found the school can regulate

speech at school sponsored events to protect its students from speech that

contributes to the dangers of illegal drug use. Morse, 551 U.S. at 397, 410.

The Defendants motion for summary judgment msut be denied because

there are material questions of fact that need to be determined by a jury and

Defendants are not entitled to a judgment as a matter of law on several issues.

First, the intended forum of Mr. Andovers speech is a material question of fact

because he intended his speech to be in a public forum. If he intended his speech

to reach and effect school, as the Defense argues, his speech may be subject to

regulation by the school. Second, it is a material question of fact whether a

substantial disruption occurred at school. If a substantial disruption did not occur,

Mr. Andovers speech cannot be regulated by Tinker. Third, Defendants are not

entitled to a judgment as a matter of law because there is an issue of a sufficient

nexus between Mr. Andovers speech and the school premises, and cannot be

regulated by school officials underFraser. Last, Defendants are not entitled to a

judgment as a matter of law because Mr. Andovers speech did not sufficiently

7


8/19

cause any substantial disruptions or interference with school activities and cannot

be regulated underTinker. Because there are material questions of fact, and the

Defendants are not entitled to a judgment as a matter of law the court should deny

Defendants motion for summary judgment.

II. MATERIAL QUESTIONS OF FACTS PREVENT GRANT OF

DEFENDANTS MOTION FOR SUMMARY JUDGMENT

A. The Intended Destination of Plaintiffs Speech is a Disputed Material

Question of Fact for the Jury

The intended destination of Mr. Andovers speech is a material question of

fact in dispute because Mr. Andover intended his speech to be read in a public

forum and the Defendants suggest Mr. Andover intended his speech to have an

effect at school. The Defenses motion for summary judgment states Mr.

Andovers speech is subject to regulation underFraserbecause the speech was

intended to reach and affect the school. (R at 10). The Court inFraserdid not

address speech intended to have an effect at school, only speech that was in the

classroom or at a school assembly. Fraser,478 U.S. at 685. The application of

Fraserto Mr. Andovers speech will be discussed in section III.A. The intended

destination of Mr. Andovers speech is material to the decision of the case

because if the speech is determined to have been intended to reach school, then it

is one step closer to possibly being regulated underTinker, FraserorMorse.

However, Mr. Andover cannot be held responsible underTinker, Fraser, or

8


9/19

Morse for speech he did not intend nor bring to the school.

Mr. Andover did not intend his speech to be in a school forum because the

speech was created at home and posted to a public internet forum on Facebook

The T-shirt was created and sold from a third party website. Instructions on

where to find and purchase the T-shirt were only available on the Facebook post.

Facebook is blocked from all computers at Cherry Hill High School East and

cannot be accessed from school computers. Mr. Andovers use of the Facebook

forum, inaccessible from school, shows that he did not intend the post to reach the

school grounds.

Mr. Andovers Facebook post was eventually accessed at school under the

direction of Defendant, Ms. Marshall from a students cell phone. This does not

show that Mr. Andover intended the Facebook post to be accessible at school.

The record does not show Cherry Hill High School Easts in-school cell phone

usage policy. That Ms. Marshall had to direct a student to access the Facebook

post for her suggests usage of cell phones in this manner is prohibited by Cherry

Hill High School East, not all cell phones at Cherry Hill High School East can

access Facebook, or both. Limited access to Facebook at Cherry Hill High

School East with cell phones does not show Mr. Andover intended his post to

reach school grounds.

The record shows that many of Mr. Andovers Facebook friends are also

students at Cherry Hill High School East. While Defense may present this fact as

9


10/19

Mr. Andovers intent for this speech to reach school, it does not negate Facebook

is blocked for all students while using Cherry Hill High School East internet

access. Furthermore, the post makes no mention of Cherry Hill High School East,

viewing the post at school, or bringing the T-shirts to school.

The Defense states that Mr. Andover intended his speech to affect the

school forum. Because the record shows that Mr. Andover directed his speech to

a public forum that is not available at the school, Mr. Andover did not intend his

speech to affect the school. This is a material question of fact to be decided at

trial by a jury and does not permit summary judgment to be awarded to

Defendants.

B. The Occurrence of a Substantial Disruption is a Disputed Material

Question of Fact for the Jury.

Existence of a substantial disruption of school activities is a material

question of fact because the record does not show any substantial disruption. The

U.S. Supreme Court held in Tinkerthat student speech was protected under the

First Amendment so long as the speech did not create a substantial disruption or

material interference with school activities. Tinker,393 U.S. at 514. A

substantial disruption would allow Mr. Andovers speech to be regulated under

Tinker. The Defense argues that Mr. Andovers created a substantial disruption at

Cherry Hill High School East, but that argument is contrary to the record.

10


11/19

Mr. Andover never brought his speech to school to create a substantial

disruption. However, the Defense will likely contend that there are three events

in the record that describe substantial disruptions. First, Ms. Marshall received

one phone call early in the day regarding the caller seeing the T-shirt worn at the

mall the night before. As principal of the school, Ms Marshall likely receives

many phone calls throughout the day from not only families with members

enrolled in the school, but also members of the surrounding community. One

phone call cannot be considered a substantial disturbance.

Second, three students wore the t-shirt Mr. Andover created to school after

purchasing them from a third party online. Students either had to cover the t-shirt

or were sent home. These students were not disciplined for creating a substantial

disruption. Ms. Marshall has stated that she has sent many students home before

for wearing an offensive shirt to school. (R at 35). Because this occurrence

happens frequently with Ms. Marshall, it cannot constitute a substantial

disturbance in school function, otherwise it would be punished more severely.

Lastly, students in Mr. Perkinss class were not interacting in class. The

record shows there was no substantial disruption in this occurrence. Mr. Perkins

stated that he delivered the days material to the students and maintained of

control the class. (R at 17). Classes through the rest of the day did engage in

discussion. None of the students that abstained from discussion were suspended.

11


12/19

Because classes were able to carry on with the material being delivered by Mr.

Perkins, there was no substantial disruption.

The Defense states that Mr. Andovers speech caused a substantial

disruption. None of the three instances described in the record substantially

interfered with the school environment. Summary judgment cannot be granted on

this issue because it is a material question of fact to be decided by the trier of fact.

III. DISPUTED MATTERS OF LAW REQUIRE TRIAL AND

DISMISSAL OF DEFENDANTS MOTION FOR SUMMARY

JUDGMENT

A. The Determination of a Sufficient Relationship Between Mr.

Andovers Speech and School is a Disputed Matter of Law Requiring

a Decision at Trial.

Defendants are not entitled to a judgment as a matter of law on the issue of

Mr. Andovers speech and its presence on school grounds. The U.S. Supreme

Court explains in Morse v. Frederickthat student speech can be more rigorously

censored when it is made in a school setting (applyingFraserto lewd and vulgar

speech)or when the speech creates a substantial disruption, as in Tinker. Morse,

551 U.S. at 393. Defense expands this rule to include speech intended to affect

the school. This is an overextension of the boundaries of speech that schools can

12


13/19

regulate and Defendants are not entitled to a judgment as a matter of law on this

issue.

As mentioned, the Defense points to the rule inFraserto include lewd,

vulgar and offensive speech that they say is intended to affect school. On the

contrary,Fraseris quite distinct in drawing the line between on-campus and off-

campus speech. Justice Brennan, explained it well in his concurring judgment in

Fraser, If respondent had given the same speech outside of the school

environment, he could not have been penalized simply because government

officials considered his language to be in appropriate Fraser, 478 U.S.at 689.

(Brennan, J. concurring in judgment).

Mr. Andover took action to keep his speech from school. First, he limited

his speech to a website that is blocked from all Cherry Hill High School East

computers. Second, Mr. Andover made the post and created the t-shirt while at

home with a personal computer, never once using school grounds or property for

his speech. Mr. Andover never mentions Cherry Hill High School East in the post

or on the t-shirt. Third, Mr. Andover never wore the t-shirt to school and

explicitly stated he would be wearing (his) around town.

This set of circumstances is similar toLayshockin which the court found

that a parody Myspace (another popular social networking site) profile of the

principal did not affect the school environment. Layshock v. Hermitage Sch.

13


14/19

Dist., 496 F. Supp. 2d 587 (W.D.Pa. 2007) InLayshockthe posting was created

from home, like Mr. Andovers post. Id. at 591. However, unlike Mr. Andovers

post, inLayshockthe post in question was accessible from school computers for a

week, yet the school district was in violation of First Amendment rights for

disciplining the author of the post. Id. at 592. Mr. Andovers speech was less

accessible at Cherry Hill High School East and should be considered even further

removed from regulation by school administration.

Most recently, a student created a group for other students on Facebook

titled Ms. Sarah Phelps is the worst teacher Ive ever met. and was suspended.

Evans v. Bayer. No. 08-61952-CIV-GARBER, 210 WL 521119, at *1 (S.D.Fla.

Feb. 12 2010). The court inEvans agrees that a school should not condone the

use of vulgar or lewd language, quite simply, the case at hand does not involve

the same type of speech asFraser, nor is it in the same context. Evanss

Facebook group does not undermine the fundamental values of a school

education. Evans, 210 WL 521119at *8. Mr. Andovers Facebook post is

similar in context, creation, location, and is also critical of a school teacher.

Likewise his speech should be protected by the 1st Amendment because it was far

removed from the school.

Because Mr. Andover intentionally made his speech from home, in a

public forum that was not available on school computers, he did not intend his

14


15/19

speech to reach school. Therefore it cannot be regulated under the principals

established by the Supreme Court inFraser. This is contrary to Defendants

application of the law. Defendants are not entitled to a judgment as a matter of

law on this issue.

B. Mr. Andovers Responsibility for Actions of Other Students is a

Matter of Law Requiring a Decision at Trial

Defendants argue that Mr. Andovers speech created a substantial

disruption and was lewd and vulgar, therefore able to be regulated under the rules

ofTinkerandFraser. The occurrence of a substantial disruption is a question to

be resolved by a jury, but the circumstances in the record the Defense considers

disruptive or lewd and vulgar are the actions of other students that Mr. Andover

cannot be held responsible for.

Three other students wore the t-shirts they purchased to school as their

own statement of opinion. Mr. Andover, personally, or in his role as president of

SADD, did not encourage wearing the t-shirts too school; he stated he would be

wearing his around town. This instance is similar toKillion v. Franklin Regl

Sch. Dist. in that the speech was brought to campus by another student. In

Killion, a student had created a Top Ten List while at home that contained

offensive remarks about a school official. He emailed the list to friends. His

friends subsequently brought the list school gounds. Killion v. Franklin Regl

15


16/19

Sch. Dist., 136 F.Supp.2d 446 (W.D.Pa. 2001). The court found that the list did

not create a substantial disruption and punishment of the author was a violation of

his First Amendment rights. Id, at 458. Mr. Andover created the speech at home,

which was then brought to school by a third party in a tangible form for others to

read, as inKillion. And as inKillion, Mr. Andover did not have control over the

appearance of his speech on campus. LikeKillion, the t-shirts did not create a

substantial disruption and disciplining Mr. Andover is a violation of his first

Amendment rights.

InPyle, the student was reprimanded for wearing a t-shirt that contains the

same text as the t-shirt Mr. Andover created contains. Pyle v. So. Hadley

Sch.Comm. 861 F.Supp. 157 (D. Mass. 1994). The court found that the school

was within its rights to discipline vulgar expression at school underFraser.

However, inPyle, the student that wore the shirt was disciplined. Not the creator.

Id. at 163. This distinction is significant because Mr. Andover cannot be held

responsible for the actions of others. Mr. Andover specifically stated that he

would be wearing his shirt around town.

The situation in Mr. Perkinss class, though not a disruption, is

questionable behavior. While Mr. Andovers post referred to making Ms.

Marshall and Mr. Perkins aware of students feelings towards drinking and

driving, he did not suggest any on school activity. In fact, he led by example and

expressed his opinion with his family through a letter to the school board. Mr.

16


17/19

Andover cannot be held responsible for a third partys own actions. Porter v.

Ascension Parish School Boardsimilarly held that a student cannot be held

responsible for a third partys actions at school. Porter v. Ascension Parish Sch.

Bd., 393 F.3d 608 (5th Cir. 2004). A students offensive, and potentially

disruptive picture (depicting the school under military siege) that was created at

home was brought to school by a third party. Porter, 393 F.3d at 611. The student

was not responsible for the actions of others that brought his opinion to school.

Porter, 393 F.3d at 620.

The Defense alleges that Mr. Andover is responsible for substantially

disrupting school and lewd and offensive speech. However, not only does the

record show that Mr. Andovers speech did not cause a substantial disruption, nor

did Mr. Andover bring lewd and offensive speech to school, but any questionable

occurrence was the result of other students action. Mr. Andover was not

responsible for either instance discussed in the record and cannot be held

responsible for other students expression and speech. Defendants are not entitled

to a judgment as a matter of law on this issue and their summary judgment should

be denied.

17


18/19

Conclusion

For the foregoing reasons, the plaintiff, Phillip Andover, respectfully

requests that the Court deny the Defendants motion for summary judgment.

Respectfully submitted,

___________________

30

Counsel for Mr. Phillip Andover

Dugan & Cohen, LLC

998 Blossom Road

Cherry Hill, NH

(603) 999-5555

Dated: April 14, 2010

18


19/19

WORD COUNT CERTIFICATION

I certify that the preceding brief contains no more than 4,250 words. I

have determined the number of words in this brief using Words word count

function. I have not altered Words regular word count function in any way.

Respectfully submitted,

___________________

30

Counsel for Mr. Phillip Andover

Dugan & Cohen, LLC

998 Blossom Road

Cherry Hill, NH

(603) 999-5555

Dated: April 14, 2010

19

30 final brief

Documents