Kuhr v. Millard Pub. Sch. Dist.

CASSIE KUHR and NICK KUHR, by and through their Motherand Next Friend, JEANNE KUHR, and DAN KUHR, Plaintiffs,

v. MILLARD PUBLIC SCHOOL DISTRICT,and DR. KEITH LUTZ, in his capacity as Superintendent of Millard Public Schools, Defendants.

CASE NO. 8:09CV363

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

Dated: March 12, 2012

MEMORANDUMAND ORDER

This matter is before the Court on the Plaintiffs' Motion in Limine (Filing No. 90) and Supplemental Motion in Limine (Filing No. 103), and the Defendants' Amended Motion in Limine (Filing No. 101).

The Plaintiffs Cassie Kuhr and Nick Kuhr, by and through their Mother and Next Friend, Jeanne Kuhr, and Dan Kuhr (collectively "the Kuhrs"), argue that Defendants Millard Public School District ("MPSD") and Dr. Keith Lutz ("Lutz") should be precluded in limine from introducing evidence in five categories. First, the Kuhrs suggest that MPSD's dress code and rules on memorials are irrelevant, and that any probative value such rules may have is outweighed by the prejudice and confusion that would be caused by their admission. Second, the Kuhrs argue that any justification the Defendants might offer for their censorship of student speech is irrelevant. Third, the Kuhrs seek to exclude certain evidence and witnesses that they contend were not timely disclosed by the Defendants. Fourth, the Kuhrs seek to exclude evidence that the Defendants may attempt to offer thatwas not disclosed with reasonable specificity in response to the Kuhrs' discovery requests. Fifth, the Kuhrs assert that newspaper articles should be excluded as hearsay.

The Defendants seek to preclude the Kuhrs from presenting evidence in four categories. First, the Defendants seek to exclude evidence of the purpose and circumstances underlying the "R.I.P." t-shirts at issue in this case, as well as evidence regarding "R.I.P." memorials that followed the death of the school's vice-principal. Second, the Defendants challenge the anticipated testimony of Kuhrs' experts related to street gangs and their culture, asserting that such testimony has no relevance to the issue of what information the Defendants had when making their decision that led to the censorship at issue. Third, The Defendants seek to exclude evidence indicating that Julius Robinson was not a street-gang member or otherwise involved in gang-related activities. Fourth, the Defendants object to certain news reports that were broadcast after the censorship at issue in this case.

I. Plaintiffs' Motions

A. Millard Public School District Rules

The Kuhrs argue that the school's dress code and rules about memorials are not relevant to the question of whether the school violated students' First Amendment rights, and that any probative value of the code and rules is outweighed by the prejudice and confusion they would cause. The Kuhrs cite to Blair v. Anderson, No. 8:07CV295, 2011 WL 839398 (D. Neb. Mar. 4, 2011), for the proposition that "[v]iolations of internal policies are irrelevant to whether a constitutional violation [has] occurred." Id., at *3 (emphasis added) (citing Thompson v. City of Chicago, 472 F.3d 444, 454 (7th Cir. 2006); Tanbergv. Sholtis, 401 F.3d 1151, 1163-64 (10th Cir. 2005); Bonds v. Dautovic, 725 F. Supp. 2d 841, 847 (S.D. Iowa 2010)).

While the Defendants cannot trump First Amendment rights by the creation of rules, the rules may be relevant to show the Defendants anticipated that a substantial disruption would be created by certain forms of student expression. Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 509 (1969). The rules and related testimony about why the rules were put in place may contribute to the fact-finders' understanding of what the Defendants knew about the dangers of this kind of expression that they sought to curb.

The Court will deny the Plaintiffs' Motion to exclude this evidence. The Kuhrs may renew their objection at the time of trial and, if necessary, the Court will consider giving a limiting instruction to the jury to mitigate any confusion caused by the introduction of the rules.

B. Defendants' Justification for Censorship

The Kuhrs object broadly to evidence or testimony related to the Defendants' justification for the censorship, arguing that the justification is irrelevant. The standard set out in Tinker, however, suggests that schools should have the opportunity "to justify prohibition of a particular expression of opinion" by "showing that engaging in the forbidden conduct would materially and substantially interfere with the requirements of appropriate discipline in the operation of the school." Tinker, 393 U.S. at 509 (internal quotations omitted). The Defendants will have an opportunity to present evidence of "facts that might reasonably have led [them] to forecast substantial disruption." Id. at 514. Whether the Defendants' anticipation of disruption was reasonable based on the information at handor simply an "undifferentiated fear or apprehension of disturbance," i.e. speculative, is an issue for the trier of fact. Id. at 508.

C. Evidence Produced at Summary Judgment

The Kuhrs argue that some evidence and witnesses produced in support of the Defendants' motion for summary judgment were not timely disclosed under the supplemental disclosure requirements of Fed. R. Civ. P. 26(e) and should be excluded at trial pursuant to Fed. R. Civ. P. 37(c).

Rule 37(c)(1) limits the use of "information or witness[es] . . . at trial, unless the failure [to disclose] was substantially justified or is harmless." Rule 37(c) also gives the court discretion to apply an appropriate alternative sanction. The Eighth Circuit has noted "that the district court's discretion narrows as the severity of the sanction or remedy it elects increases," and the Circuit has provided guidance for appropriate sanctions. Wegener v. Johnson, 527 F.3d 687, 693 (8th Cir. 2008) (citing Heartland Bank v. Heartland Home Fin., Inc., 335 F.3d 810, 817 (8th Cir. 2003); Laclede Gas Co. v. G.W. Warnecke Corp., 604 F.2d 561, 565-66 (8th Cir. 1979)). A court should consider "the reason for noncompliance, the surprise and prejudice to the opposing party, the extent to which allowing the information or testimony would disrupt the order and efficiency of the trial, and the importance of the information or testimony." Id. (citing Sellers v. Mineta, 350 F.3d 706, 711-72 (8th Cir. 2003); Marti v. City of Maplewood, 57 F.3d 680, 683 (8th Cir. 1995)).

Here, the evidence at issue was disclosed in summary judgment filings, and the Defendants argue that any failure to make the disclosures in a timely manner was harmless. The Kuhrs contend that the failure was not harmless because the evidence wasproduced after the discovery deadline. The Kuhrs do not claim any specific prejudice, however, nor do they specify what discovery they would have pursued had they received the disclosures earlier. Because the Plaintiffs received notice of the evidence well in advance of trial, and given that it does not appear to alter the fundamental facts as understood by the parties, the Defendants' failure to disclose in a timely manner appears to be harmless. The issue will be addressed at the Court's pretrial meeting with counsel, and the Kuhrs may request an opportunity to question the affiants, or to depose them at the Defendants' expense, before their testimony is received at trial.

D. Evidence not Disclosed in Response to Plaintiffs' Discovery Requests

The Kuhrs seek to exclude other evidence on the basis that it was not disclosed by the Defendants in response to interrogatories, requests for production, and requests for admission. The Kuhrs note that the Defendants responded to such discovery requests with vague, non-responsive statements. Such incomplete responses by the Defendants could have prompted the Kuhrs to file motions to compel before the end of the discovery deadline, but they made no such motions. The Kuhrs may raise their objections at the time of trial, and the Court will consider, among other things, any prejudice the Kuhrs may have suffered as a consequence of the Defendants' alleged failure to provide complete and forthright responses to discovery requests.

E. Exclusion of Newspaper Articles as Hearsay

The Kuhrs seek to exclude certain newspaper articles as hearsay. While the articles constitute out-of-court statements, the Defendants' purpose in offering such articles is notyet clear. Accordingly, the Plaintiffs' Motion in Limine will be denied, without prejudice to reassertion at trial.¹

II. Defendant's Motion

A. Alternate Meanings of "R.I.P." T-Shirt

The Defendants seek to exclude evidence of the purpose and circumstances underlying the creation and wearing of the "R.I.P." t-shirts at issue in this case, as well as any evidence regarding "R.I.P." memorials that followed the death of the school's vice-principal. The Defendants argue that alternate understandings of the t-shirt are irrelevant to the reasonableness of the Defendants' forecast of substantial disruption. While the Defendants concede the relevance of evidence showing they were aware of information suggesting the shirts were not a threat at or prior to the censorship, they object to any evidence that suggests an alternate meaning to the t-shirts that is unconnected with the Defendants' knowledge at those times.

The issue for trial is whether the Defendants' forecast was reasonable based on the information at hand, not whether the shirts were actually gang related or actually posed any danger. However, the Kuhrs do not suggest any purpose for the admission of this evidence except to call into question the "credibility" of the Defendants' forecast by showing the meaning that the Kuhrs and others intended when creating or wearing the shirts, and they do not claim that Defendants were aware of the intent. If the Kuhrs are able to showthat the Defendants were aware of the alternate understandings of the t-shirts, then evidence of the alternate understandings will be...