From Judge Robert Jonker’s opinion today in Ashton v. Okemos Public Schools (W.D. Mich.):
[Plaintiff’s] daughter, E.B., served a time-limited expulsion from her high school after she lied to her parents and to the police about her interaction at school with an administrator and tried to get another student to back her false story. E.B. actually admits she falsely accused the administrator but Plaintiff nevertheless claims the school was wrong to discipline E.B. for it. Plaintiff further claims the school and its administrators are liable for overbroad search policies and for retaliatory school discipline. There is no genuine issue of material fact and Defendants are entitled to judgment as a matter of law….
In 2021, school officials at Okemos High School began spot checking school bathrooms to stem a rise of violence and to curb vape and e-cigarette use amongst its students. Vape pens and other like devices are more difficult for school officials to detect than traditional tobacco and marijuana products because they are easier to conceal and do not emit odors. But experience taught the administrators that students would often congregate in a single bathroom stall to vape together, and so the spot checks included a brief look underneath the bathroom stall partitions from public areas in the bathroom to see if multiple students were in the same stall together. Nothing in policy or practice permitted officials to look inside the stall in a way that would allow viewing of students using the toilet.
In the spring of 2022, … E.B., was subject to two searches by school officials. The first search was a minimal no-contact search of E.B.’s person after another student complained about E.B. and other students vaping in the school bathroom. The second search took place approximately three weeks later when E.B. was in a bathroom stall speaking with another student. During that search the assistant principal, Alison Cironi, conducted a spot check and leaned down from a common area to look underneath the stall partitions.
But the story E.B. later told her parents was that the assistant principal had approached E.B.’s stall and looked into it while E.B. was urinating. Based on their daughter’s report, E.B.’s parents complained to the school and then to the police. It quickly became clear, however, that E.B.’s story about Ms. Cironi was not true. Compounding matters, it later came out that E.B. had asked another student to lie for her, and that E.B.’s friends threatened that student to back up E.B.’s falsehood. A disciplinary hearing was held, and the school board decided to expel E.B. for 180 days.
In this lawsuit alleging several constitutional claims, Plaintiff contends that this is not a case about a school disciplining a student for making false reports to the police about school administrators. Rather, she claims, it is a case about school bathroom privacy; a school district’s allegedly unconstitutional search policies; and the school’s retaliatory actions towards a student and her parents who complained about those policies. The defense moves for summary judgment. For the reasons explained in full below, the Court concludes there is no genuine issue of material fact for trial but that the Defendants are entitled to summary judgment in their favor on Plaintiff’s claims and that this case should be dismissed….
Plaintiff’s first two claims involving the First Amendment ask whether Defendants could punish E.B. for her reports about Ms. Cironi. After its review and drawing all reasonable inferences in favor of the non-moving party, the Court determines that Defendants did not violate E.B.’s free-speech rights by expelling her, and that the defense is entitled to summary judgment on the First Amendment claims….
Here, E.B.’s speech involved, at a minimum, admitted untruthful statements to the police about school administrator conduct involving interactions with students on the school property. Thus, Defendants could regulate the speech and discipline E.B. so long as the speech materially disrupted classwork or involved substantial disorder or invasions of the rights of others. It plainly did. Accusing school administrators to the police regarding admittedly false statements about their interactions with students on school property not only threatens to disrupt normal administration of school rules and polices but also invades the rights of administrators to be free of accusations the complaining student knows, by her own admissions, are false.
In arguing for a contrary conclusion, Plaintiff musters several arguments throughout the briefing, none of which the Court finds to be persuasive. First, Plaintiff contends that the defense has never identified the specific statements uttered by E.B. that justified the discipline. Relatedly, Plaintiff contends that E.B.’s speech falls closer to the end of Justice Alito’s spectrum involving matters of public concern, namely the search policy of the Okemos High School, rather than the spectrum’s middle ground that was present in the speech at issue in Kutchiniski and the court found could be regulated.
The Court disagrees. There is no dispute that E.B. told her parents a false story: namely, that E.B. was in a state of undress in a bathroom stall while Ms. Cironi approached the front of the stall and that E.B. saw Ms. Cironi’s hair as she bent down to look underneath. Even outside the school context, courts have determined that the First Amendment permits restrictions on false and defamatory statements. See Counterman v. Colorado (2023) (citing Gertz v. Robert Welch, Inc. (1974)). Plaintiff spends a lot of ink in arguing that E.B.’s statements do not rise to the level of defamation, and that Mr. Ashton was not alleging criminal wrongdoing when he spoke with the police. But these arguments miss their mark. None of them demonstrate that E.B. was punished for off campus speech that—on Justice Alito’s spectrum—is protected by the First Amendment. And to be sure, like in Kutchinski v. Freeland Cmty. Sch. Dist. (6th Cir. 2023), the speech at issue here involved “serious or severe bullying or harassment targeting particular individuals [or] threats aimed at teachers or other students.”
In Kutchinski, a student was punished for setting up a fake Instagram account as ostensibly belonging to a schoolteacher. The student shared the log-in information with other students, and together the students posted false and sexually graphic messages on the account. The court of appeals determined the speech involved serious or severe harassment of teachers and a student. The speech here does too. The undisputed record reflects that E.B. told her parents a false story about Ms. Cironi; that she repeated the false accusations to the police; and that she tried to get another student to lie for her. Moreover, all the admittedly false statements were about student/administrator interactions on school property. This undoubtedly was speech that Defendants could regulate….
The court also rejects plaintiff’s procedural due process, substantive due process, and Fourth Amendment claims. Here’s the court’s summary:
Plaintiff tries to pitch this case as involving widespread searches of students at Okemos High School untethered to any reasonableness and absent any parental notification. E.B. got caught up in the dragnet, Plaintiff contends, and while E.B. may have embellished what happened, Plaintiff believes the real reason she was subjected to discipline was E.B.’s and Mr. Ashton’s complaints about the search.
The summary judgment record, however, fails to support this narrative. E.B. was subject to a minimal, no contact, search in April 2022 after school officials reasonably relied on another student’s report that E.B. and other students were vaping in a school bathroom. Three weeks later, E.B. was again subjected to a reasonable search when a school official of the same gender entered the bathroom and conducted a brief check of the bathroom stalls from the bathroom’s common area.
E.B. lied to her parents about what actually happened; lied to the police too; and also asked another student to lie for her. She admits all this. School officials determined that this was a violation of the school’s policies, and E.B. was expelled for a time before being reinstated. None of this violated E.B.’s constitutional rights and Defendants are entitled to summary judgment as a matter of law.
Annabel Shea, Timothy J. Mullins, and Travis Mark Comstock, all of Giarmarco Mullins & Horton PC, represent defendants.