From the opinion of Judge Robert Jonker today in Ashton v. Okemos Public Schools (WD Michigan):
[Plaintiff’s] daughter, EB, was briefly expelled from high school after lying to her parents and police about her interaction at school with an administrator and trying to get another student to support her false story. EB actually admits that it falsely accused the administrator, but the plaintiff nevertheless claims that the school was wrong to discipline EB for it. The plaintiff further alleges that the school and its administrators are responsible for excessive research policies and retaliatory school discipline. There is no real issue of material fact and defendants are entitled to judgment as a matter of law….
In 2021, school officials at Okemos High School began monitoring school bathrooms to stem an increase in violence and to curb vaping and e-cigarette use among students. Vape pens and other similar devices are harder for school officials to detect than traditional tobacco and marijuana products because they are easier to hide and don’t emit odors. But experience taught administrators that students often gathered in a single bathroom to vape together, so spot checks included a brief look under bathroom partitions from public bathroom areas to see if multiple students were together in the same bathroom. bath. . Nothing in policy or practice allowed officials to look inside the stall in a way that allowed them to view students using the bathroom.
In the spring of 2022, … EB, was the subject of two searches by school officials. The first search was a minimal no-contact search of EB’s person after another student complained about EB and other students vaping in the school bathroom. The second search took place approximately three weeks later, when EB was in the bathroom talking to another student. During that search, the vice principal, Alison Cironi, did a random check and leaned out of a common area to look under the partitions of the cubicle.
But the story EB later told his parents was that the vice-principal had approached EB’s desk and looked in while EB was urinating. Based on their daughter’s complaint, EB’s parents filed a complaint with the school and then with the police. It quickly became clear, however, that EB’s story about Ms. Cironi was not true. To make matters worse, it later came out to her that EB had asked another student to lie for her, and that EB’s friends had threatened that student to support EB’s falsehood about her. A disciplinary hearing was held and the school board decided to expel EB for 180 days.
In this lawsuit alleging several constitutional claims, the plaintiff argues that this is not a case in which a school disciplines a student for making false police reports about school administrators. Rather, he argues, it’s a question of privacy in school bathrooms; a school district’s allegedly unconstitutional search policies; and the school’s retaliatory actions against a student and her parents who complained about those policies. The defense requests summary judgment. For reasons fully explained below, the Court concludes that there is no real issue of material fact at trial but that defendants are entitled to summary judgment in their favor on plaintiff’s claims and that this case should be dismissed….
Plaintiff’s first two First Amendment claims ask whether defendants could punish EB for her complaints about Ms. Cironi. After reviewing and drawing all reasonable inferences in favor of the non-moving party, the Court finds that defendants did not violate EB’s free speech rights by expelling her and that the defense is entitled to summary judgment on Prime’s claims Amendment….
In this case, EB’s speech involved, at a minimum, making untrue statements to the police about the school administrator’s conduct involving interactions with students on school property. Thus, defendants could regulate speech and discipline EB as long as the speech materially disrupted classroom work or resulted in substantial disruption or violations of the rights of others. Evidently it was. Charging school administrators to police regarding admittedly false statements about their interactions with students on school property not only threatens to disrupt the normal administration of school rules and policies, but also violates administrators’ rights to be free from allegations that the complaining student knows about. admissions, are false.
In arguing to the contrary, the plaintiff raises several arguments during the briefing, none of which the Court finds convincing. First, the plaintiff claims that the defense never identified the specific statements made by EB that justified the sanction. In connection therewith, Plaintiff contends that EB’s speech falls closer to Justice Alito’s end of the spectrum involving matters of public concern, namely Okemos High School’s search policy, rather than the middle ground of spectrum that was present in the speech in question in Kutchinski and the court found could be regulated.
The Court disagrees. There is no doubt that EB told his parents a false story: namely that EB was in a state of undress in a bathroom as Mrs. Cironi approached the front of the bathroom and that EB saw Mrs. Cironi’s hair as he bent down to look underneath. Even outside of the school context, courts have ruled that the First Amendment allows restrictions on false and defamatory statements. See Counterman vs. Colorado (2023) (cit Gertz v. Robert Welch, Inc. (1974)). The plaintiff spends much ink arguing that EB’s statements do not rise to the level of defamation and that Mr Ashton was not alleging criminal acts when he spoke to the police. But these arguments miss the mark. None of them demonstrate that EB was punished for off-campus speech which, in Justice Alito’s spectrum, is protected by the First Amendment. And to be sure, as in Kutchinski vs. Freeland Cmty. Sch. Dist. (6th Cir. 2023), the speech in question involved “severe or severe bullying or harassment of particular individuals [or] threats directed at teachers or other students.”
In Kutchinsky, a student was punished for creating a fake Instagram account supposedly belonging to a teacher. The student shared the login information with other students, and together the students posted false and sexually explicit messages to the account. The appeals court ruled that the speech involved serious or severe harassment of teachers and a student. The speech here does too. The undisputed record reflects that EB told his 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. Additionally, all of the admittedly false statements involved interactions between students and administrators on school property. This was undoubtedly a matter that the defendants could regulate….
The court also rejects procedural due process, substantive due process, and Fourth Amendment claims. Here is the court’s summary:
Plaintiff seeks to present this case as involving widespread searches of students at Okemos High School without reasonableness constraints and without any notification to parents. EB was caught in the net, the plaintiff claims, and while EB may have embellished what happened, the plaintiff believes that the real reason she was disciplined was EB’s and Mr. Ashton’s complaints about the search.
The summary judgment record, however, fails to support this narrative. EB was subject to a minimal, no-contact search in April 2022 after school officials reasonably relied on another student’s report that EB and other students were vaping in the school bathroom. Three weeks later, EB was again subjected to a reasonable search when a same-sex school official entered the restroom and conducted a brief bathroom check from the common restroom area.
EB lied to his parents about what really happened; she also lied to the police; and also asked another student to lie for her. She admits all this. School officials determined this was a violation of school policies, and EB was expelled for a time before being reinstated. None of this violated EB’s constitutional rights, and the defendants are entitled to summary judgment as a matter of law.
Annabel Shea, Timothy J. Mullins and Travis Mark Comstock, all of Giarmarco Mullins and Horton PC, represent the defendants.