Carver Middle Sch. Gay-Straight Alliance v. Sch. Bd. of Lake Cnty.

249 F.Supp.3d 1286

CARVER MIDDLE SCHOOL GAY–STRAIGHT ALLIANCE, an Unincorporated Assoc iation, and H.F., a Minor by and through Parent Janine Faughnan, Plaintiffs,

v.SCHOOL BOARD OF LAKE COUNTY, FLORIDA, Defendant.

Case No. 5:13–cv–623–Oc–10PRL

United States District Court, M.D. Florida.

Signed April 12, 2017

Benjamin James Stevenson, ACLU Foundation of Florida, Inc., Pensacola, FL, Daniel B. Tilley, ACLU Foundation of Florida, Inc., Miami, FL, Leslie Cooper, Pro Hac Vice, American Civil Liberties Union Foundation, Inc., New York, NY, for Plaintiffs.

Stephanie Jo McCulloch, Stephen Warfield Johnson, McLin & Burnsed, PA, Leesburg, FL, for Defendant.

ORDER ON REMAND

Wm. Terrell Hodges, UNITED STATES DISTRICT JUDGE

Carver Middle School Gay–Straight Alliance (GSA) and one of its members, a student at Carver Middle School in Lake County, acting through her parent, filed this action against the Lake County School Board in December of 2013. (Doc. 1). The dispute involved a refusal by the School Board to recognize the GSA as a school sponsored club at Carver Middle School for the 2013–2014 school year.

The complaint sought a declaratory judgment, injunctive relief and nominal damages. Id. It asserted two legal theories as a basis for seeking those remedies. One theory was that the School Board's failure to recognize the GSA as a school approved club was a violation of the Equal Access Act, 20 U.S.C. §§ 4071 – 4074,¹ and the second theory was that the School Board's refusal was a violation of the Plaintiffs' rights under the First Amendment to the Constitution of the United States.

This Court's Decision

The case was tried before the Court without a jury, and in August of 2015, the Court filed its decision in the form of a memorandum opinion including findings of fact and conclusions of law. (Doc. 75). Judgment was entered for the School Board. (Doc. 76) Carver Middle School Gay–Straight Alliance v. School Board of Lake County, 124 F.Supp.3d 1254 (M.D. Fla. 2015) ). The Court held that the action was non-justiciable because it was not ripe as a case or controversy at the time it was filed;² and, in any event, that the controversy had become moot.³

Alternatively, addressing the merits of the case, the Court held that the claim under the Equal Access Act failed because the Act by its terms simply did not apply to Carver Middle School. Similarly, with respect to the Constitutional claim, this Court applied the relevant Supreme Court precedents beginning with Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969) and ending with Hazelwood School District v. Kuhlmeier, 484 U.S. 260, 108 S.Ct. 562, 98 L.Ed.2d 592 (1988), and held that there was no infringement of the First Amendment.

The Decision on Appeal

The Court of Appeals found that the Equal Access Act was applicable to Carver Middle School; that the GSA's claim for nominal damages caused by its rejection as a school sponsored club for the school year 2013–2014 was ripe for adjudication at the time suit was filed; and the claim for nominal damages for that school year was justiciable, not moot. Carver Middle School Gay–Straight Alliance v. School Board of Lake County, 842 F.3d 1324 (11th Cir. 2016).

The Court of Appeals therefore vacated the "order that dismissed the complaint under the Equal Access Act"⁴ and remanded for further proceedings consistent with the Court's opinion. 842 F.3d at 1333. Specifically, with regard to the claim under the Equal Access Act, the Court of Appeals directed this Court to determine (1) whether there is a private right of action under the Act; and (2) whether the GSA has organizational standing to pursue prospective relief.

Post Appeal Proceedings

Upon remand of the case, this Court conducted a hearing to discuss with counsel the future progress of the litigation. Afterward, the Court entered an order (Doc. 94) directing the Plaintiff to file, as it had expressed a willingness and desire to do, a new application for recognition as a school sponsored club at Carver Middle School. The School Board was directed, in turn, to respond to the application by a certain date. Id. Additionally, the Plaintiff was directed to file a motion or other pleading setting out its view of the precise issues remaining for determination together with the Plaintiff's legal arguments concerning such issues. Id. The School Board was allowed time to respond.

Pursuant to those directives, the GSA filed its application for recognition as an approved club at Carver Middle School (Doc 95), and the School Board approved it. (Doc. 96).⁵ As of now, therefore, the GSA is a recognized club at Carver Middle School.

With respect to the GSA's specification of the issues remaining to be determined, as directed in the Court's order (Doc. 94), the GSA identified three questions (Doc. 98, pages 2–3):

(1) Is the Carver GSA [and the minor Plaintiff] entitled to an award of $1 in damages?

(2) Is the Carver GSA the prevailing party entitled to an award of reasonable attorney's fees under § 1988?

(3) Are lodestar attorney's fees reasonable?

A.

In addition to those enumerated issues, the GSA also presented argument on one of the questions that the Court of Appeals expressly left for this Court to resolve in the first instance on remand, namely, "whether the Equal Access Act affords a private right to relief, monetary or otherwise." 842 F.3d at 1331.

On that point, the GSA persuasively relies upon Schwier v. Cox, 340 F.3d 1284 (11th Cir. 2003) as a definitive explication of the relevant law of the Circuit leading to the conclusion that 42 U.S.C. § 1983 creates a private right of action to enforce the Equal Access Act.⁶ The Court agrees. While the Equal Access Act does not contain any mechanism for enforcement of its provisions, it clearly embodies each of the three elements identified in Schwier as necessary to a determination that § 1983 fills that procedural void: (1) Congress in the Equal Access Act specifically intended to benefit secondary "school students who wish to conduct a meeting within [the school's] limited open forum..." as defined by the statute, 20 U.S.C. § 4071 ; (2) the right protected by the statute is not so vague and amorphous that its enforcement would strain judicial competence; and (3) the statute imposes a binding obligation on the states that is couched in mandatory, not precatory, terms. See 340 F.3d at 1290.

B.

Both parties have moved in their post remand pleadings for partial summary judgment on the Plaintiff's claims for nominal damages under the Equal Access Act. (Doc. 98, page 17; Doc. 102, page 9).

It is now the settled law of the case under the decision and mandate of the Court of Appeals that the Equal Access Act applies—and did apply when this suit was filed—to the Carver Middle School; that the claim was a justiciable case or controversy that was "ripe" for judicial decision; and that the claim for nominal damages did not become moot. Additionally, the Court has now determined in this order that 42 U.S.C. § 1983 supplies a procedural mechanism or cause of action for litigating violations of the Equal Access Act. Finally, in its prior opinion (Doc. 75, page 27; 124 F.Supp.3d at 1269–1270 ) this Court found that "[t]he rejection of the GSA application was necessarily predicated upon the content of the expressive activity or associational rights intended to be exercised by the GSA as stated in its charter." That finding, which is not disturbed by anything in the Court of Appeals opinion, inexorably translates into a violation of the Equal Access Act. The Act says, with respect to "any students who wish to conduct a meeting," that it shall be unlawful for a school subject to the Act to deny equal access to school recognition based upon the "content of the speech at such meetings." 20 U.S.C. § 4071(a). And that statutory proscription has both a positive as well as a negative aspect: it precludes any attempt by the school to dictate what the speech must be, just as it precludes any attempt by the school to mandate what the speech cannot be except as permitted by § 4071(f).⁷

C.

The School Board argues, however, that even if there was a violation of the Equal Access Act, nominal damages may be awarded only for Constitutional infringements, not statutory violations. This says too much and is not the law.

In Carey v. Piphus, 435 U.S. 247, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978), the Supreme Court held that proof of a violation of a fundamental Constitutional right mandated an award of nominal damages to the victim in the absence of any proof of actual injury. This rule has been consistently applied in the Eleventh Circuit where a Constitutional violation has been found. E.g., Hughes v. Lott, 350 F.3d 1157, 1162 (11th Cir. 2003) ; KH Outdoor LLC v. City of Tru ssville, 465 F.3d 1256, 1261 (11th Cir. 2006) ; Pelphrey v. Cobb County, Georgia, 547 F.3d 1263, 1282 (11th Cir. 2008).

The School Board relies upon two decisions in the Circuit in which statements are made that nominal damages should be awarded for fundamental Constitutional violations under the authority of Carey v. Piphus, but are not mandated for statutory violations. Walker v. Anderson Electrical Connectors, 944 F.2d 841 (11th Cir. 1991), and Barker v. Niles Bolton Associates, Inc., 316 Fed.Appx. 933 (11th Cir. 2009).⁸ The key word in that formulation is "mandated." Nominal damages are not required as a remedy for the enforcement of statutory rights as they are under Carey for Constitutional violations,⁹ but that does not mean that such damages are prohibited in statutory cases. Neither Walker or Barker so hold, and both are distinguishable from this case.

In Walker, the Court of Appeals refused to approve a nominal damages award to the plaintiff in a Title VII employment discrimination case. The jury found for the plaintiff, but awarded no damages. The plaintiff then sought, by a post trial motion, entry of a judgment for nominal damages. The Court of Appeals af...