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A.S. v. Lincoln County R-III School District

United States District Court, E.D. Missouri, Eastern Division

December 17, 2019

A.S., a minor, by and through Next Friend, Chris Schaefer, Plaintiff,



         Public high school student, A.S., engaged in off-campus speech on social media that targeted a fellow student, and he encouraged other high school students to perpetuate the speech. Because this speech was directed to and reached the school community and it was reasonably foreseeable that the speech would cause substantial disruption in the school environment, the school did not violate A.S.'s First Amendment right to free speech by imposing discipline for A.S.'s violation of the school district's cyberbullying policy. Nor did the school disciplinary hearing violate A.S.'s Fourteenth Amendment right to due process. I will therefore grant defendants' motion for judgment on the pleadings on these constitutional claims. I will remand A.S.'s remaining state law claim to the Circuit Court of Lincoln County, Missouri.


         On a Saturday in October 2018, A.S. created a post on the social media platform Snapchat that included a doctored photograph depicting fellow student C.S. in a casket, words referring to C.S.'s funeral and visitation at a funeral home, and ‘crying' and ‘praying hands' emojis. A.S. shared this post with a limited group of classmates on Snapchat and encouraged them to post the meme to their own Snapchat stories, which they did. The following Monday at school, C.S. placed another student in a chokehold during class, upset about that student's comments about his death. After investigation, Assistant Principal Joy Lillard suspended A.S. for ten days for violating the school district's cyberbullying policy. The district's superintendent extended the suspension to the end of the semester. The school district's board of education held a hearing and upheld the extended suspension.

         A.S. (through his next friend) brought this action in state court under 42 U.S.C. § 1983, alleging that defendants Lillard and the school district violated his First Amendment rights by suspending him for engaging in protected speech and, further, that the manner by which they conducted the discipline hearing denied him his Fourteenth Amendment right to due process.[1] A.S. also seeks judicial review of the school district's action under Missouri law. Defendants removed the matter to this Court, invoking federal subject matter jurisdiction. They now move for judgment on the pleadings on A.S.'s constitutional claims.[2]

         Legal Standard

         When considering a motion for judgment on the pleadings under Federal Rule of Civil Procedure 12(c), I must “accept as true all factual allegations set out in the complaint, and must construe the complaint in the light most favorable to the plaintiff, drawing all inferences in his favor.” Wishnatsky v. Rovner, 433 F.3d 608, 610 (8th Cir. 2006). “Judgment on the pleadings is appropriate only when there is no dispute as to any material facts and the moving party is entitled to judgment as a matter of law[.]” Ashley Cty., Ark. v. Pfizer, Inc., 552 F.3d 659, 665 (8th Cir. 2009) (internal quotation marks and citation omitted).

         I review a motion for judgment on the pleadings under the same standard as a Rule 12(b)(6) motion to dismiss. See Clemons v. Crawford, 585 F.3d 1119, 1124 (8th Cir. 2009). Therefore, I consider all facts alleged in the complaint as true to determine if the complaint states a “claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); see also Braden v. Wal-Mart Stores, Inc., 588 F.3d 585, 594 (8th Cir. 2009). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. Although a complaint need not contain “detailed factual allegations, ” it must contain sufficient factual allegations “to raise a right to relief beyond the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).

         In addition to the complaint, I may consider exhibits that are attached to the complaint as well as materials necessarily embraced by the complaint, without having to convert the motion to one for summary judgment. Humphrey v. Eureka Gardens Pub. Facility Bd., 891 F.3d 1079, 1081 (8th Cir. 2018); Ryan v. Ryan, 889 F.3d 499, 505 (8th Cir. 2018). Materials necessarily embraced by the complaint include “documents whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the pleading.” Ryan, 889 F.3d at 505 (internal quotation marks and citations omitted). Upon review of the complaint here, I consider the administrative record consisting of the hearing transcript and evidence before the board of education, as well as the board of education's findings of fact and conclusions of law - both filed in this action by A.S. separately from his complaint - to be materials necessarily embraced by and consistent with the complaint. Accordingly, on this motion for judgment on the pleadings, I consider these materials as well as the allegations in the complaint and the exhibit attached to the complaint.

         Evidence Before the Court on the Motion

         Conduct Giving Rise to the Complaint

         In October 2018, A.S. and C.S. were students enrolled at Troy Buchanan High School, which is a public school within the Lincoln County R-III School District. Joy Lillard was assistant principal at the school. Dr. Mark Penny was the school district's superintendent.

         On Saturday, October 6, 2018, A.S. created a meme entitled “[C.]'s funeral.”[3] The meme was a photograph of a casket with a photo of C.S. superimposed on it, positioned to make it appear as though C.S. was lying in the casket. Words superimposed above the casket stated, “please show up with only positive vibes”; and words superimposed beneath the casket stated, “at Kember-Millard-Keon Family Funeral Chapel.” Emojis of a ‘crying-face' and ‘praying-hands' were also part of the meme. A.S. was not at school when he created the meme, nor was he at a school-sponsored event. A.S. did not use any school property to make the meme.

         On that same day, October 6, A.S. posted the meme to a private Snapchat group made up of other Troy Buchanan High School students. A.S. encouraged the members of this private group to post the meme to their own Snapchat stories, which they did. Posting a meme to a Snapchat story causes the meme to circulate outside any private Snapchat group and makes it available to all persons who “follow” the Snapchat user. Other students also created and posted memes about C.S. and his “death.”

         The date on which A.S. created, posted, and shared the funeral meme with other students, and encouraged these other students to publicly share the meme, was Troy Buchanan High School's homecoming.

         On Monday, October 8, during the fourth class period at the high school, C.S. entered a classroom and put another student, L.P., into a chokehold. The teacher emailed Lillard and informed her of this incident, stating, “I thought he [C.S.] was joking but looked pretty upset. L. has been making comments saying that C. died apparently.” (ECF 6-1.) The teacher also informed Lillard that “we have things under control” and that she did not write up the students, but she suggested that Lillard “have a conversation” with them. (Id.)

         During her investigation into the incident, Lillard learned about the funeral meme and that A.S. had created it. When she talked to A.S. about it, he admitted to making the meme, posting it, and telling others to post it; but he stated that he never posted it publicly nor meant for it to become public. A.S. stated that other persons created additional memes of C.S. and that the group thought it would be funny to act as if C.S. was dead. A.S. memorialized these statements in a written statement. (Admin. Rec, ECF 4 at pp. 71-72.)

         Lillard spoke to A.S. about the funeral meme on October 11. At that time, A.S. was serving an out-of-school suspension for posting a photo of a student's bare buttocks to a teacher's “remind app, ” a school-related homework site used by the teacher and accessed by students. That suspension was imposed October 1 and was set to expire November 13. A.S. was serving this suspension in the district's Academic Educational Program (AEP), which is a program located in a district building separate from the high school. Students participating in AEP receive daily instruction on coursework as well as lessons on positive behavior supports, and they receive full credit for coursework completed while in AEP. A.S.'s suspension for cyberbullying, which is at issue in this case, would not begin until he finished serving his suspension for the “remind app” incident.

         On October 11, Lillard disciplined A.S. for cyberbullying and imposed a ten-day, out-of-school suspension. She also referred the matter to the superintendent of schools for consideration of extended suspension. In a letter dated October 12, Lillard informed A.S.'s parents that A.S. had been suspended for ten school days, effective October 11, and that the matter had been referred to the superintendent. In a letter dated October 19, Superintendent Penny notified A.S.'s parents of his decision to extend A.S.'s out-of-school suspension through the end of the semester.

         In his October 19 letter to A.S.'s parents, Dr. Penny informed them of A.S.'s right to have a hearing before the board of education for review of his decision.

         Dr. Penny advised that, in the event of a hearing,

the administration will provide you with a list of the witnesses who will testify on behalf of the administration, together with a short description of their testimony. Documents may also be used at the hearing. If documents are to be used, they will be provided to you prior to the hearing.

(ECF 4 at p. 149.) Dr. Penny also advised that A.S. or his representative could present witnesses and documentary evidence at the hearing.

         A.S.'s parents determined to appeal the suspension, and a hearing before the board of education was scheduled for and held on November 6. On November 5, the school district's attorney provided A.S.'s attorney with copies of its exhibits and a list of its witnesses with summaries of their expected testimony.

         Board of Education Hearing

         Lillard and Dr. Penny testified at the hearing on November 6. A.S. and his father also testified and were represented by counsel. Documentary evidence was also admitted at the hearing.

         Lillard testified to the following regarding her investigations into the chokehold incident and funeral meme:

         When Lillard spoke with C.S. on October 8 regarding the chokehold incident, he told her that A.S. and his friends had bullied him for over a year, that this group made memes of him, that a meme about his funeral had been created and circulated on social media, and that fellow students were making comments to him about being dead. The meme was created and circulated on homecoming Saturday, and people reached out to C.S. asking if he was okay because they heard he was dead. C.S. told Lillard that the football team held a moment of silence for him during the football game and that, at the homecoming dance, people made comments to him about being a ghost. C.S. told Lillard that he could not take it anymore and he “snapped, ” which led to his altercation with L.P. on October 8.

         At Lillard's request, C.S. sent her the funeral meme as well as other memes targeting him. The funeral meme and several copies of its reposting, as well as the other ...

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