B.A.P. v. Overton Cnty. Bd. of Educ.

600 F.Supp.3d 839

B.A.P., et al., Plaintiffs,

v.OVERTON COUNTY BOARD OF EDUCATION, et al., Defendants.

NO. 2:20-cv-00065

United States District Court, M.D. Tennessee, Northeastern Division.

Filed April 27, 2022

David J. Markese, Frederick H. Nelson, American Liberties Institute, Orlando, FL, Kristin Fecteau Mosher, The Law Office of Kristin Fecteau, LLC, Nashville, TN, for Plaintiffs.

Kenneth S. Williams, Wimberly Lawson, Cookeville, TN, for Defendant Overton County Board of Education.

D. Scott Bennett, Mary C. DeCamp, Bennett & DeCamp, PLLC, Chattanooga, TN, for Defendants Richard Melton, Stephen Henson.

MEMORANDUM OPINION

WAVERLY D. CRENSHAW, JR., CHIEF UNITED STATES DISTRICT JUDGE

B.A.P. (a minor child) and Richard Penkoski (B.A.P.’s parent) filed an Amended Complaint under 42 U.S.C. § 1983 against the Overton County Board of Education (the Board), Richard Melton, and Stephen Henson. (Doc. No. 43). B.A.P. is a student at Livingston Academy in the Overton County School District, where Melton is the principal and Henson is a teacher. (Id. ¶¶ 8, 12). Melton and Henson are sued in their individual capacities. (Id. ¶¶ 15–16). Before the Court is Melton and Henson's fully briefed Motion to Dismiss. (Doc. Nos. 51, 52, 61, 62). For the following reasons, the Motion will be granted in part and denied in part.

I. Background

This background is drawn from the Amended Complaint and its exhibits (Doc. Nos. 43, 43-1, 43-2), focusing on the allegations relevant to resolving the Motion to Dismiss.

A. Incident

When B.A.P. arrived in Henson's classroom on August 25, 2020, she was wearing a shirt stating, "homosexuality is a sin - 1 Corinthians 6:9-10." (Doc. No. 43 ¶¶ 62–63). This shirt "express[ed] [B.A.P.’s] political viewpoint founded upon her religious beliefs" (id. ¶ 63), including her belief "in the Biblical mandate to spread the Gospel of Jesus Christ." (Id. ¶ 157; see also id. ¶ 25 (alleging a "belief in a mandate to exercise her rights to freedom of speech and the free exercise of religion and to further her political, religious and social beliefs")).

Henson told B.A.P. to report to the principal's office, and she complied. (Id. ¶¶ 8, 68, 70). Principal Melton read from the school handbook and told B.A.P. that her shirt violated the dress code because it was "sexually connotative." (Id. ¶¶ 73–74). Melton asked B.A.P. if she brought a garment that could be used to cover the message on her shirt, and she said no. (Id. ¶¶ 75–76). Melton told B.A.P. that she would not be released from the office unless she changed her shirt. (Id. ¶ 78). Melton then instructed B.A.P. to call her parents and request a change of clothing, and B.A.P. informed them of the situation by text message. (Id. ¶¶ 77, 79–80).

B.A.P.’s father, Richard Penkoski, called the school and spoke to Melton. (Id. ¶ 81). Melton again stated that B.A.P.’s shirt violated the dress code because it included a message that was sexually connotative. (Id. ¶¶ 81–82). Penkoski ended the call to deliberate with family, and he soon called back and asked Melton for clarification on his interpretation of the dress code. (Id. ¶¶ 83–85). Melton read from the dress code and clarified that B.A.P.’s shirt might be sexually connotative because the word "homosexuality" on her shirt included the word "sex." (Id. ¶¶ 86–88). Melton told Penkoski that B.A.P. would be forced to go home if she did not change her shirt, and the call ended. (Id. ¶¶ 93–94). B.A.P.’s stepmother came to the school and took her home, and B.A.P. was marked "absent" for the day. (Id. ¶¶ 97–98). "At all material times," Melton and Henson demanded that B.A.P. not wear the shirt to school again. (Id. ¶¶ 15–16, 58–59).

Plaintiffs maintain that B.A.P.’s shirt was consistent with an established practice of openly acknowledging issues of sexuality in the classroom setting. Specifically, Henson's classroom displayed what appears to be a standard 8.5x11 piece of printer paper affixed to a cabinet near the corner bearing the colors of the rainbow and the words, "diverse, inclusive, accepting, welcoming, safe space, for everyone." (Id. ¶ 65; Doc. Nos. 43-1, 43-2 (Exhibits)). Plaintiffs characterize this image as "pro-homosexual." (Doc. No. 43 ¶¶ 64–66).

B. Policies

The Board's dress code policy provides: "When a student is attired in a manner which is likely to cause disruption or interference with the operation of the school, the principal shall take appropriate action, which may include suspension." (Id. ¶¶ 42–43). The Board also delegates authority to school administrators to prepare and distribute a student handbook for their school. (Id. ¶¶ 3–4, 47–48). Melton drafted the handbook in effect at Livingston Academy for the relevant time period. (Id. ¶ 58). This handbook was given to Livingston Academy staff, including Melton and Henson, and staff were required to acknowledge receipt, read it, and ask administrators any questions about it. (Id. ¶¶ 55–59).

Livingston Academy's handbook includes a dress code providing, in relevant part, that students are to "display good taste in matters of dress," and that their regular school attire "should in no way disturb or distract other students or teachers from their normal scholastic pursuits." "Clothing with offensive messages, including advertisements for drugs, alcohol, tobacco, sexual connotations, or double meanings, is unacceptable." (Id. ¶ 49). The handbook does not define the terms "offensive messages," "sexual connotations," or "double meanings." (Id. ¶¶ 52–54).

C. This Lawsuit

The Amended Complaint asserts four claims. Claims 1 and 2 are brought against all three Defendants—the Board, Melton, and Henson. These claims assert violations of Plaintiffs’ First Amendment rights to freedom of speech and free exercise of religion. (Id. ¶¶ 137–77). Claims 3 and 4 are brought against the Board and Melton, but not Henson. Claim 3 asserts a deprivation of Plaintiffs’ due process rights under the Fifth and Fourteenth Amendments. (Id. ¶¶ 178–95). And Claim 4 asserts a violation of Plaintiffs’ rights under the Equal Protection Clause of the Fourteenth Amendment. (Id. ¶¶ 196–215). Melton and Henson move to dismiss all claims against them for failure to state a claim, or in the alternative, based on qualified immunity. (Doc. No. 51 at 1; Doc. No. 52 at 1).

II. Legal Standard

"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). A claim is plausible if the complaint "pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (quoting Twombly, 550 U.S. at 556, 127 S.Ct. 1955 ). In determining plausibility, the Court sets aside allegations consisting of "labels and conclusions" or " ‘naked assertion[s]’ devoid of ‘further factual enhancement.’ " Id. (quoting Twombly, 550 U.S. at 555, 557, 127 S.Ct. 1955 ).

III. Analysis

A. Plaintiff Penkoski's Personal Claims

Plaintiff Penkoski brings this action both "individually and in his representative capacity on behalf of B.A.P. and his other minor children in schools under the authority of" the Board. (Doc. No. 43 ¶ 13). Melton and Henson argue that Penkoski fails to state a claim against them on his own behalf because neither Melton nor Henson took an action against Penkoski that amounts to a violation of Penkoski's constitutional rights. (Doc. No. 52 at 13 n.2, 18 n.3). Plaintiffs do not acknowledge or respond to this argument. (See Doc. No. 61). Therefore, Plaintiffs have forfeited Penkoski's personal claims against Melton and Henson. See Swanigan v. FCA US LLC, 938 F.3d 779, 786–87 (6th Cir. 2019) (finding claim forfeited where defendants moved to dismiss it and plaintiffs did not mention or rebut it in their response) (citing Am. Copper & Brass, Inc. v. Lake City Indus. Prods., Inc., 757 F.3d 540, 545 (6th Cir. 2014) ).

Regardless of this forfeiture, moreover, the Court agrees with Melton and Henson. Plaintiffs seek to vindicate constitutional rights through Section 1983. "[S]ection 1983 provides a cause of action which is personal to the injured party." LeFever v. Ferguson, 645 F. App'x 438, 447 (6th Cir. 2016) (citing Purnell v. City of Akron, 925 F.2d 941, 948 n.6 (6th Cir. 1991) ) (emphasis in original). Plaintiffs’ Section 1983 claims against Melton and Henson are premised entirely on actions allegedly taken against B.A.P., not Penkoski. "[A] minor's personal cause of action is her own and does not belong to her parent or representative." Shepherd v. Wellman, 313 F.3d 963, 970 (6th Cir. 2002) (citing Cheung v. Youth Orchestra Found. of Buffalo, Inc., 906 F.2d 59, 61 (2d Cir. 1990) ); but see Winkelman ex rel. Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 526, 127 S.Ct. 1994, 167 L.Ed.2d 904 (2007) (holding that parents have "independent, enforceable rights under [the Individuals with Disabilities Education Act]," a federal statute not at issue here). Accordingly, Penkoski fails to state a personal claim against Melton and Henson.

B. Free Speech and Free Exercise

Turning to B.A.P.’s claims, the First Amendment protects freedom of speech and the free exercise of religion. U.S. Const. amend. I. "[S]tudents do not ‘shed their constitutional rights to freedom of speech or expression,’ even ‘at the school house gate.’ " Mahanoy Area Sch. Dist. v. B. L. by & through Levy, ––– U.S. ––––, 141 S. Ct. 2038, 2044, 210 L.Ed.2d 403 (2021) (quoting Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969) ). A school environment, however, has "special characteristics" that courts must consider when applying the First Amendment to student expression. Id. (quoting Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 266, 108 S.Ct. 562, 98 L.Ed.2d 592 (1988) ). For...