Cousins v. Sch. Bd. of Orange Cnty.

687 F.Supp.3d 1251

Jennifer COUSINS, Matthew Cousins,P.C., M.C., S.C., N.C., Will Larkins, David Dinan, Vikranth Reddy Gongidi,K.R.D., R.R.D. and CenterLink, Inc., Plaintiffs, v. The SCHOOL BOARD OF ORANGE COUNTY, FLORIDA,the School Board of Indian River County, Florida,the School Board of Duval County, Florida,the School Board of Palm Beach County, Florida,Thomas R. Grady, Ben Gibson, Monesia Brown, Esther Byrd,Grazie P. Christie, Ryan Petty and Joe York, Defendants.

Case No.: 6:22-cv-1312-WWB-LHP

United States District Court, M.D. Florida, Orlando Division

Signed August 16, 2023

Angela Vigil, Baker & McKenzie, Miami, FL, Bacardi L. Jackson, Samuel T.S. Boyd, Southern Poverty Law Center, Miami, FL, Camilla B. Taylor, Pro Hac Vice, Lambda Legal Defense and Education Fund, Inc., Chicago, IL, Jennifer Vail, Pro Hac Vice, Southern Poverty Law Center, Montgomery, AL, Jodi Lynn Siegel, Simone Michelle Chriss, Southern Legal Counsel, Inc., Gainesville, FL, Kell L. Olson, Pro Hac Vice, Lambda Legal Defense and Education Fund, Inc., Tucson, AZ, L. Andrew S. Riccio, Debra A. Dandeneau, Baker & McKenzie, LLP, New York, NY, Paul David Castillo, Pro Hac Vice, Lambda Legal Defense and Education Fund, Inc., Dallas, TX, Scott Daniel McCoy, Southern Poverty Law Center, Tallahassee, FL, for Plaintiffs.

Howard S. Marks, Sheena A. Thakrar, Burr & Forman LLP, Orlando, FL, for Defendant The School Board of Orange County, Florida.

Matthew Joseph Carson, Jeffrey Slanker, Robert Jacob Sniffen, Terry Joseph Harmon, Sniffen & Spellman, PA, Tallahassee, FL, for Defendant The School Board of Indian River County, Florida.

Jon Robert Phillips, Laura J. Boeckman, Mary Margaret Giannini, City of Jacksonville Office of General Counsel, Jacksonville, FL, for Defendant The School Board of Duval County, Florida.

Anna Patricia Morales-Christiansen, Jon Erik Bell, Sean Fahey, Palm Beach County School District, Office of the General Counsel, West Palm Beach, FL, for Defendant The School Board of Palm Beach County, Florida.

Daniel Bell, Henry Charles Whitaker, Anita J. Patel, Erik Sayler, Florida Attorney General's Office, Civil Litigation Division, Tallahassee, FL, for Defendants Thomas R. Grady, Ben Gibson, Monesia Brown, Esther Byrd, Grazie P. Christie, Ryan Petty, Joe York.

ORDER

WENDY W. BERGER, UNITED STATES DISTRICT JUDGE

THIS CAUSE is before the Court on Defendant School Board of Orange County's Motion to Dismiss (Doc. 109), Duval County School Board's Motion to Dismiss (Doc. 110), Defendant School Board of Indian River County, Florida's Motion to Dismiss (Doc. 111), and Defendant School Board of Palm Beach County, Florida's Motion to Dismiss (Doc. 113) and Plaintiffs' Response to School Board Defendants' Motions to Dismiss (Doc. 128).

I. BACKGROUND

Plaintiffs consist of a group of parents and their school age children that attend school in Orange and Indian River Counties (collectively, "Parent and Student Plaintiffs"), and a non-profit group, Center Link, Inc. ("CenterLink"), that operates in Orange, Duval, and Palm Beach Counties. (Doc. 82, ¶¶ 13-16). In 2022, Florida enacted House Bill 1557, which took effect on July 1, 2022. (Id. ¶¶ 1, 22). As relevant to this dispute, the newly enacted provisions of section 1001.42, Florida Statutes, prohibit "[c]lassroom instruction by school personnel or third parties on sexual orientation or gender identity" for children in kindergarten through third grade, and provide that such instruction must be age and developmentally appropriate for children thereafter. (Id. ¶ 22 (quoting Fla. Stat. § 1001.42(8)(c)(3))). In addition, the law requires school boards to "adopt procedures for notifying a student's parent if there is a change in the student's services or monitoring related to the student's mental, emotional, or physical health or well-being and the school's ability to provide a safe and supportive learning environment for the student[,]" and bars school boards from implementing any procedures that prohibit school district personnel from notifying a parent regarding the same or "have the effect of encouraging a student to withhold from a parent such information[,]" and bans school district personnel from discouraging or prohibiting parental notification of and involvement in decisions regarding a student's mental, emotional, or physical health or well-being unless "a reasonably prudent person would believe that disclosure would result in abuse, abandonment, or neglect[.]" (Id. ¶ 23 (quoting Fla. Stat. § 1001.42(8)(c)(1)-(c)(2))). Defendants Thomas Grady, Ben Gibson, Monesia Brown, Esther Byrd, Grazie P. Christie, Ryan Petty, and Joe York ("State Board Defendants") are members of the Florida State Board of Education, which is the head of the Florida Department of Education and is tasked with implementation and enforcement of the new law. (Id. ¶ 17). Defendants, the School Board of Orange County ("Orange County"), the School Board of Indian River County ("Indian River County"), the School Board of Duval County ("Duval County"), and the School Board of Palm Beach County ("Palm Beach County"), have enforcement authority within their respective jurisdictions under the new law. (Id. ¶¶ 18-21).

The Parent and Student Plaintiffs allege that as a result of Orange and Indian River Counties' implementation or contemplated implementation of the new provisions of section 1001.42, certain books, materials, and school activities may become unavailable, their speech and that of others will be chilled, and schools will be unable to effectively respond to bullying. (Id. ¶¶ 33, 36-38). As support for these propositions, the Parent and Student Plaintiffs allege that Orange County has a duty to enforce the law, has or plans to remove certain books from schools, recommended that safe space stickers be removed from classrooms, and has failed to address bullying in their preferred manner on one occasion. (Id. ¶¶ 54-55, 57-58, 66, 84). With respect to Indian River County, the Parent and Student Plaintiffs allege that the County has a duty to enforce the law and is now reviewing a lesbian, gay, bisexual, transgender, queer, and questioning ("LGBTQ+") Administrative Resource Guide, which is currently unavailable. (Id. ¶¶ 94, 99).

CenterLink is a non-profit organization that provides support for its members, which consist of LGBTQ+ community centers across the country, including in Orange, Duval, and Palm Beach Counties. (Id. ¶¶ 16, 100). CenterLink alleges that since the passage of the amendments to section 1001.42, it has spent a couple of hours a week responding to member inquiries regarding the law and has conducted seminars in Florida on the law. (Id. ¶ 102). CenterLink alleges that some of its members work with schools to develop policies and procedures to prevent bullying and provide trainings in schools. (Id. ¶ 107). As relevant to this litigation, CenterLink has member centers in Duval County and Palm Beach County that have historically worked with the school boards to provide trainings and to develop policies and procedures relating to LGBTQ+ issues. (Id. ¶¶ 111, 128). The centers in Duval County and Palm Beach County have also received student referrals from teachers and school board members in the past. (Id. ¶¶ 112, 127). CenterLink alleges that these partnerships have been hindered due to the law. (Id. ¶¶ 114, 118, 124). CenterLink also has a member center in Orange County. (Id. ¶ 121).

Plaintiffs filed the First Amended Complaint alleging claims against the County Defendants for violations of their First and Fourteenth Amendment rights. (See generally Doc. 79). On October 20, 2023, this Court dismissed the First Amended Complaint for, among other issues, Plaintiffs' failure to allege standing to pursue claims against the County Defendants. (Doc. 81 at 10-26). Nevertheless, because it was not clear that at least some of the pleading deficiencies could not be cured, the Court granted Plaintiffs leave to file an amended complaint. (Id. at 27-28). Plaintiffs filed the Second Amended Complaint asserting claims for chilled and prohibited speech in violation of the First Amendment (Count I), violation of the right to receive information under the First Amendment (Count II), overbreadth (Count III), deprivation of due process under the Fourteenth Amendment (Count IV), and deprivation of equal protection under the Fourteenth Amendment (Count V). (See generally Doc. 82). The County Defendants have moved to dismiss for lack of standing and failure to state a claim.

II. LEGAL STANDARD

A. Subject Matter Jurisdiction

A party may move to dismiss the claims against it for "lack of subject-matter jurisdiction." Fed. R. Civ. P. 12(b)(1). "Attacks on subject matter jurisdiction . . . come in two forms: 'facial attacks' and 'factual attacks.' " Garcia v. Copenhaver, Bell & Assocs., M.D.'s, P.A., 104 F.3d 1256, 1260-61 (11th Cir. 1997) (quoting Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir. 1990)). "Facial attacks challenge subject matter jurisdiction based on the allegations in the complaint, and the district court takes the allegations as true in deciding whether to grant the motion." Morrison v. Amway Corp., 323 F.3d 920, 925 n.5 (11th Cir. 2003). "However, where a defendant raises a factual attack on subject matter jurisdiction, the district court may consider extrinsic evidence such as deposition testimony and affidavits." Carmichael v. Kellogg, Brown & Root Servs., Inc., 572 F.3d 1271, 1279 (11th Cir. 2009). "When jurisdiction is properly challenged, a plaintiff has the burden of showing jurisdiction exists." Kruse, Inc. v. Aqua Sun Invs., Inc., No. 6:07-cv-1367-Orl-19UAM, 2008 WL 276030, at *2 (M.D. Fla. Jan. 31, 2008).

B. Failure to State a Claim

"A pleading that states a claim for relief must contain . . . a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). Pursuant to Federal Rule of Civil Procedure 12(b)(6), a party may move to dismiss a complaint for "failure...