South Carolina Lawyers Weekly
Where a high school student alleged that he was suspended after expressing non-threatening factual views about a school shooting in Florida, the district court erred in dismissing his First Amendment claim. Schools cannot silence such student speech simply because it communicates controversial or upsetting ideas.
Background
Jonathan Starbuck brought this 42 U.S.C. § 1983 action against the Williamsburg James City County School Board asserting that his public high school suspended him in violation of the First, Fifth and 14th Amendments. The district court dismissed Starbuck’s complaint for failure to state a claim on which relief could be granted.
Monell
The district court held that Monell v. Department of Social Services, 436 U.S. 658 (1978), limited municipal liability to occasions when the municipality’s express policy allegedly violated a constitutional right. However, the Supreme Court also explained in Monell that “local governing bodies … can be sued directly under § 1983 … where … the action that is alleged to be unconstitutional implements or executes a … decision officially adopted and promulgated by that body’s officers.”
Under Virginia law, the school board has final policymaking authority over short-term suspensions. This means that the school board’s actions regarding student suspensions can serve as “policies” for the purpose of municipal liability under Monell. Moreover, when a final policymaker has the authority to review the decision of a subordinate, its approval of that allegedly unconstitutional decision can also give rise to liability under section 1983. Under this theory of liability, if the school board ratified the suspension of a student by subordinates, the school board would be liable for any deprivation of constitutional rights caused by that suspension.
The school board asserts three arguments in support of its view that Monell bars Starbuck’s claim. First, the board contends that Starbuck failed to raise this theory of municipal liability in his complaint and that he cannot do so for the first time on appeal. But examination of Starbuck’s pro se complaint reveals that he sufficiently set forth the facts that provided the basis for the legal theory he asserts against the school board.
Second, the board argues that Starbuck cannot rely on the board’s ratification of subordinate officials’ conduct to hold the board liable here because the board “did not simply ‘ratify’ the actions of the school employees who suspended” him. Whether it ratified the suspension or independently imposed it, however, the board’s act was sufficient to hold the school board liable for constitutional violations resulting from that act.
The board finally argues that its act ratifying Starbuck’s suspension does not constitute “the moving force” behind the constitutional violation. Neither the Supreme Court nor this court has ever held that initial involvement is required to hold officials with final policymaking authority liable as the “moving force” for ratification of the decisions of subordinates. Here it is clear that the school board’s act did constitute the moving force behind the asserted constitutional violation—the alleged punishment of protected speech.
First Amendment
According to his complaint, Starbuck only engaged in a factual conversation with his peers about a current event that is uniquely salient to the lives of American teenagers, a school shooting. Schools cannot silence such student speech on the basis that it communicates controversial or upsetting ideas.
The board relies on cases in which courts have “agreed that language reasonably perceived as threatening school violence is not constitutionally protected.” But Starbuck’s remarks, as described in his complaint (which must be viewed in the light most favorable to him), were non-threatening statements about the tragedy that any student could have uttered in response to the news. Starbuck’s amended complaint states a First Amendment claim.
Fifth Amendment
The Fifth Amendment’s Due Process Clause does not apply to municipalities, but only to federal actors. Moreover, to the extent that Starbuck seeks to invoke the protections of the Fifth Amendment’s Self-Incrimination clause, he has not alleged that school officials “compelled [him] in those proceedings to furnish testimonial evidence that might incriminate [him] in later criminal proceedings.” And to the extent Starbuck invokes the Fifth Amendment’s Double Jeopardy Clause, that clause applies to criminal cases, not school discipline proceedings.
14th Amendment
Starbuck argues that the board’s shift in its description of the reason for his suspension (from self-protection and threats to the prevention of classroom disturbance) violated his 14th Amendment right to due process. But that is not what happened here.
The board did not even attempt to change the factual basis for the suspension—it just used slightly different words to describe that basis. There is no unconstitutional bait-and-switch here because both parties always understood what particular speech constituted the basis for Starbuck’s short-term suspension. Moreover, the board gave Starbuck “an opportunity to explain his version of the facts” and “to characterize his conduct and put it in what he deem[ed] the proper context.”
Affirmed in part and reversed in part.
Starbuck v. Williamsburg James City County School Board (Lawyers Weekly No. 001-057-22, 14 pp.) (Diana Gribbon Motz, J.) Case No. 20-2334. March 15, 2022. From E.D. Va. at Newport News (Mark S. Davis, C.J.) Benjamin Lerman and Jacob Larson for Appellant. Jeremy David Capps for Appellee. 4th Cir.
