United States District Court, E.D. Missouri, Eastern Division
A.S., a minor, by and through Next Friend, Chris Schaefer, Plaintiff,
LINCOLN COUNTY R-III SCHOOL DISTRICT, et al., Defendants.
MEMORANDUM AND ORDER
CATHERINE D. PERRY UNITED STATES DISTRICT JUDGE
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.
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.
(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. 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.
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
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).
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.
Before the Court on the Motion
Giving Rise to the Complaint
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.
Saturday, October 6, 2018, A.S. created a meme entitled
“[C.]'s funeral.” 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.
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.”
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
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.)
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.)
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.
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.
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.
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
(ECF 4 at p. 149.) Dr. Penny also advised that A.S. or his
representative could present witnesses and documentary
evidence at the hearing.
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
of Education Hearing
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
testified to the following regarding her investigations into
the chokehold incident and funeral meme:
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.
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 ...