Anderson v. Hansen

489 F.Supp.3d 836

Heidi ANDERSON, et al., Plaintiffs,

v.Dr. Mark HANSEN, et al., Defendants.

Case No. 20-C-1305

United States District Court, E.D. Wisconsin.

Signed September 25, 2020

Brady Ross Henderson, Cream City Law LLC, Milwaukee, WI, for Plaintiffs.

Saveon D. Grenell, Joel S. Aziere, Buelow Vetter Buikema Olson & Vliet LLC, Waukesha, WI, for Defendants.

DECISION AND ORDER

LYNN ADELMAN, United States District Judge

Heidi Anderson alleges that the Elmbrook School District banned her from District property because she exercised her First Amendment right to express opinions at a school board meeting. The ban prevents her from attending future school board meetings, visiting her children's school, and from voting in person at her polling place unless she first obtains permission to enter District property from its superintendent, defendant Dr. Mark Hansen, or the principal of her children's school. Before me now is Anderson's motion to preliminarily enjoin the ban. See Fed. R. Civ. P. 65(a).

I. BACKGROUND

Anderson is the mother of two children who attend schools within the Elmbrook School District. On August 11, 2020, the Elmbrook Board of Education held a public meeting to address the District's procedures for dealing with the COVID-19 pandemic. One of the measures under consideration was a requirement that all children attending school in person wear masks to minimize the transmission of the virus through respiratory droplets. Anderson attended the meeting in person and signed up to speak about the proposal.

Anderson opposes mask mandates in general, and she was against the District's proposal to require children to wear masks at school. The Board allowed her to express her views during the time allotted for citizen comments about the proposal. She was given two minutes to speak. When she was called to the podium, she delivered remarks that lasted over eight minutes. During her remarks, Anderson gave a variety of reasons for opposing the mask proposal. Some reasons related to her faith. Anderson is Christian, and she believes that wearing masks is inconsistent with the Christian faith. During her remarks, she expressed her view that "[s]ix-foot distance and masks are a Pagan ritual of Satanic worshipers." ECF 6-2 at 2. She stated that because her family is Christian and does not practice Satanic worship, her children are not made to "stand six feet apart from each other with facial coverings." Id.

Towards the end of her remarks, Anderson turned her attention to Dr. Mushar Hassan, a medical doctor and school board member whom the Board had designated as its medical liaison:

[Mrs. Anderson:] Dr. Mushar, and I hope I'm saying this correctly, you are not the right choice to be the Board liaison. You do not practice in infectious disease, you have political leaning contrary to the will of this district. You online state that you're a big Obama fan and you comply mentally with his control philosophy, and you have publicly slammed our president Trump online. I'm finishing. As a leader in the Islamic community—

[Interjection by School Board President:] Heidi, we have to avoid defamatory comments.

[Mrs. Anderson:] This is not defamatory. I'm stating facts. [To Dr. Hassan:] You are a leader in the Islamic community are you not, and a leader on the Board—

[Board President:] Heidi.

[Mrs. Anderson:] O.K. Well listen, my kids are Christians. They are not subject to wearing face coverings. Christian children should not be forced to wear face coverings any more than children who are Islamic or Muslim should be forced to, as you've put it, "be subject to the American style sexualization of children," and have to wear less clothing than you're comfortable with your children wearing.

....

[To the Board generally:] You are employed by the people of Brookfield and Elm Grove, you are elected to serve us. And the Elmbrook School administration works at our pleasure. You do not work for Madison, or any other unelected entity—our government is of the people, by the people, and for the people. This is one country, one nation under God, and we look to God for these answers when we can't figure it out and I would suggest that you all do that. There is a wonderful prayer that he taught us to pray, it's called the Lord's prayer, and you can find it in your Bible. Thank you for your time.

ECF No. 6-2 at 3–4.

The board meeting was broadcast over the Internet. Anderson later learned that her comments had sparked controversy online. Some observers described her remarks as "ignorant," "Islamophobic," and "insensitive." Aff. of Heidi Anderson ¶ 14. In response to these comments, the Elmbrook School District contacted community members and told them that the District condemned Anderson's remarks. Id. ¶ 16. The District also "censored" a portion of Anderson's comments, id. , which I assume means that the District edited the archived video recording of her comments to remove the comments she directed towards Dr. Hassan. Further, on August 12, 2020, the day after the meeting, the School Board published a statement on its website in which it apologized to Dr. Hassan and expressed its view that Anderson's statement was unacceptable. See District Response to Citizen's Comments (Aug. 12, 2020).¹ When Anderson objected to the District's actions, Superintendent Hansen "demanded" to meet with her. Aff. of Heidi Anderson ¶ 17. She refused to meet with Hansen because she did not feel comfortable doing so.

After Anderson declined to meet with Hansen, he wrote a letter to her on behalf of the District and had a process server personally deliver it to her. The letter is dated August 13, 2020, and it was copied to the Chief of the City of Brookfield Police Department. The letter informed Anderson that she would not be allowed on any District property without the prior approval of either the superintendent or the principal of her children's school. Because the letter is central to the plaintiff's claim, I reproduce it in full:

Dear Mrs. Anderson:

The District is responsible for maintaining a safe and orderly environment for all persons who are on District property and for preventing the disruption of its operations. This includes, but is not limited to, not tolerating the harassment of individuals based on their race, religion or membership in any other protected class. Your recent conduct at the August 11, 2020 Board of Education meeting crossed the boundaries of acceptable and appropriate conduct by any person on District property.

You are hereby advised that effective immediately, you are not allowed on any District property or to be present in any District facility without the prior approval of myself, as Superintendent of the District or the principal of the school where your children attend school. If you fail to comply with this directive, you will be considered a trespasser on District property and the District will enlist the assistance of local law enforcement in having you removed from District property for trespassing.

In addition, if you are permitted to be on District property and you engage in conduct that harasses other persons and/or disrupts the efficient operations of the District, you will be required to leave the premises immediately. Should you fail to comply with a directive that you leave the premises because of your disruptive or harassing conduct, you will be considered a trespasser and law enforcement will be contacted to have you removed from District property.

It is truly unfortunate that your conduct has forced the District to establish these protocols. However, the District will not tolerate any further incidents of the types of behavior that you engaged in during the August 11, 2020 Board meeting.

I trust that no further action will be needed but the District is committed to maintaining a safe and orderly environment for all persons on District property and will take all legal action available to it including, but not limited to, filing a criminal complaint against you should you violate these directives.

Sincerely,

Mark D. Hansen, Superintendent

ECF No. 6-3.

Under the District's policy as stated in the letter, Anderson may not attend a Board of Education meeting or participate in events at her children's school, including her daughter's dance recitals, without first obtaining permission from the superintendent or the school principal. Moreover, because Anderson's polling place is located inside an elementary school in the District, she may not vote in person without first receiving permission from the superintendent or a school principal.

After being served with the letter, Anderson commenced this action under 42 U.S.C. § 1983. She alleges that the policy set forth in the letter amounts to discrimination against her for exercising her First Amendment right to free speech at the school board meeting. She seeks a preliminary injunction preventing the District or Superintendent Hansen from enforcing the policy against her pending the final resolution of this suit. The defendants oppose the motion.

II. DISCUSSION

To obtain a preliminary injunction, the plaintiff must first show that: (1) without an injunction, she likely will suffer irreparable harm before final resolution of the case; (2) traditional legal remedies would be inadequate; and (3) she has some likelihood of success on the merits. E.g. , Courthouse News Service v. Brown , 908 F.3d 1063, 1068 (7th Cir. 2018). If the plaintiff satisfies these elements, the court must then weigh the harm the plaintiff will suffer without an injunction against the harm the defendants will suffer with one. Id. This assessment is made on a sliding scale: The more likely the plaintiff is to win, the less heavily need the balance of harms weigh in her favor; the less likely she is to win, the more need it weigh in her favor. Id. Finally, the court must ask whether the preliminary injunction is in the public interest, which means considering what effect an injunction will have on non-parties. Id. Ultimately, the...