Dad’s criticism of daughter’s coach protected speech

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DETROIT — School officials are not entitled to qualified immunity where a father was suspended from attending his daughter’s softball games after he criticized his daughter’s coach, the 6th U.S. Circuit Court of Appeals has held.

The father claimed school officials retaliated against him for speech he believed was protected by the First Amendment claim, but the district court granted the school’s motion for summary judgment.

U.S. Circuit Judge Chad A. Readler said that was the wrong call.

“As we see things, it is clearly established at a low level of generality that when a school employee interacts with a student, speech by the student’s parent about those interactions enjoys First Amendment protection,” he explained. “On that basis, we must reverse the district court. We remand the case to resolve whether retaliation occurred in the first instance.”

Senior U.S. Circuit Judge Ronald Lee Gilman and U.S. Circuit Judge Andre Mathis joined Readler’s opinion in McElhaney v. Williams (MiLW 01-107132, 12 pages).

Background

Randall McElhaney’s daughter, LM, played softball for the Upperman High School team in Baxter, Tennessee. A dedicated booster of both his daughter and her team, McElhaney had season tickets behind home plate, where a sign identified him as the ticket owner.

At the beginning of the season, the school distributed an information sheet to team members and their families that outlined rules and expectations. It included instructions for parents to be “supportive” and rather than negative. Parents were prohibited from attending team practices or interacting with their children mid-game.

This “Parent – player Information” sheet also set guidelines for discussing playing time with the coaches. Student athletes had an open-door policy with the coaches. For parents, though, a no tolerance policy was in place: “Playing time is a nonnegotiable for coaches to talk directly with parents about.”

LM played second base and pitched during her senior year. As the season progressed, her playing time decreased. McElhaney was not pleased with this development — and he texted Coach Dustin Williams to let him know.

McElhaney outlined “errors” made by teammates and the coaching staff’s decision to decrease LM’s playing time. Williams responded, saying he felt disrespected and disappointed that it got to this point.

Believing McElhaney violated team policy by texting to complain about his LM’s removal from the starting lineup, Williams forwarded the texts to Principal William Stepp.

The principal found the messages to be inappropriate and banned McElhaney from a week’s worth of softball games. Stepp believed the suspension was warranted by McElhaney’s violation of team rules.

McElhaney’s challenges to the suspension were unsuccessful. School district officials who reviewed the matter told McElhaney they wouldn’t “overrule” the decision.

McElhaney didn’t honor the suspension — he attended LM’s next game and, by all accounts, he didn’t disrupt the game. But Stepp spotted McElhaney in the stands and asked him to leave. A school resource officer warned McElhaney that failing to leave would render him a trespasser. Fearing arrest, McElhaney left.

At the district court

Citing 42 U.S.C. § 1983, McElhaney filed a civil rights suit against Williams, Stepp, some school athletic administrators and the school resource officer. He claimed his communications with Williams were protected speech under the First Amendment and that the school officials wrongly retaliated against him. He added that he wasn’t given due process before infringing on his property right to his season tickets.

The school officials moved for summary judgment, asserting that they were entitled to qualified immunity. Applying Lowery v. Euverard, the district court agreed, holding that the right to attend games after McElhaney criticized the coach wasn’t clearly established; the defendants’ allegedly retaliatory acts didn’t violate McElhaney’s constitutional rights.

The district court also concluded that McElhaney didn’t experience a due process violation. Any purported injury he suffered could be remedied through a breach of contract action.

Judgment was entered in favor of the defendants. McElhaney appealed.

Analysis

“Overcoming the invocation of qualified immunity requires McElhaney to turn a double play of sorts,” Readler noted. “He must show both that (1) school officials violated his constitutional rights, and (2) that ‘the right was ‘clearly established’ at the time of the challenged conduct. As McElhaney must touch both bases, a court need resolve only one of the two inquiries in defendants’ favor to grant judgment to defendants.”

Here, the constitutional right at issue is the right not to be subjected to retaliation for engaging in First Amendment activity. The parties’ disagreement is the protected nature of McElhaney’s speech.

Readler said “any reasonable official” would’ve understood that McElhaney’s speech was protected.

“Unless the nature of their speech falls within one of the ‘historic and traditional’ categories, schools cannot regulate the content of parents’ speech about their child to a school employee who interacts with the child,” the judge explained. “That is precisely the nature of the clearly established right at issue here.”

And while the First Amendment “muscularly protects” most types of speech, disrespectful speech doesn’t open up a person to government retaliation.

“For today’s purposes, it is enough to say that those protections encompass a parent’s criticism of the ways in which school employees treat the parent’s child at school,” Readler wrote. “In that situation, it is clearly established at a low level of generality that a school official may not retaliate against the parent for the content of his speech.”

As such, McElhaney satisfied the plainly established prong of the qualified immunity inquiry, leaving the threshold question of whether a constitutional violation occurred.

And that, Readler said, was a determination best made by the district court on remand.

“Back in the district court, the evidence might show that none (or only some) of defendants’ actions were motivated by McElhaney’s speech, rather than the time, place, or manner of that speech,” he wrote. “Or it might show that the ban was not a sufficiently adverse action. Either way, these questions are best answered by the district court in the first instance.”