Pinard v. Clatskanie School Dist. 6J

• Decision Date: 01 May 2006
• Docket Number: No. 04-35574.,04-35574.
• Citation: 467 F.3d 755
• Court: U.S. Court of Appeals — Ninth Circuit
• Parties: Jacob PINARD; Mark Lipke; Griffin Linn; Harry Mills; Tyson Jarvi; Travis Jeffers; Nathan White; D.J. Crawford; Christopher Somes, Plaintiffs-Appellants, v. CLATSKANIE SCHOOL DISTRICT 6J, a public body; Jeff Baughman; Michael Corley; Les Wallace; Earl Fisher, Defendants-Appellees.

467 F.3d 755

Jacob PINARD; Mark Lipke; Griffin Linn; Harry Mills; Tyson Jarvi; Travis Jeffers; Nathan White; D.J. Crawford; Christopher Somes, Plaintiffs-Appellants, v. CLATSKANIE SCHOOL DISTRICT 6J, a public body; Jeff Baughman; Michael Corley; Les Wallace; Earl Fisher, Defendants-Appellees.

No. 04-35574.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted September 15, 2005.

Filed May 1, 2006.

Amended October 30, 2006.

Michael R. Seidl (argued) and Lori K. DeDobbelaere, Seidl Law Office, P.C., Portland, OR, for the plaintiffs-appellants.

Peter R. Mersereau (argued) and Thomas W. McPherson, Mersereau & Shannon, LLP, Portland, OR, for the defendants-appellees.

Appeal from the United States District Court for the District of Oregon; Ancer L. Haggerty, District Judge, Presiding. D.C. No. CV-03-00172-ALC.

Before RAYMOND C. FISHER, RONALD M. GOULD and CARLOS T. BEA, Circuit Judges.

ORDER AND AMENDED OPINION

FISHER, Circuit Judge.

ORDER

The court sua sponte has amended the opinion filed at 446 F.3d 964 (2006). The amended opinion is filed concurrently with this order. The parties may file petitions for rehearing based on the amended opinion.

OPINION

This student speech case arises from a school district's suspension of student athletes from its high school varsity basketball team. The students allege that the school district and various school officials violated their First Amendment free speech rights by suspending them in retaliation for speaking out against their coach. The district court granted summary judgment against the students, concluding that they were not engaged in a constitutionally protected activity because their speech did not involve a matter of public concern. In the alternative, the court concluded that the school district could constitutionally punish the students because their decision not to board a team bus and play in a regularly scheduled out-of-town game substantially and materially interfered with a school activity.

We hold that the district court erred in adopting from the government employment context the public concern standard for determining whether the First Amendment protects student speech. Under the proper standard articulated in Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 514, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969), the students' petition and complaints against the coach were protected speech because they could not reasonably have led school officials to forecast substantial disruption of or material interference with a school activity. However, we agree with the district court that the students' refusal to board the bus was not protected by the First Amendment because, even if expressive conduct, it substantially disrupted and materially interfered with the operation of the varsity boys basketball program. The district court did not, however, consider the plaintiffs' retaliation claims. We therefore reverse and remand for further proceedings consistent with this opinion.¹

I. Factual and Procedural Background

Plaintiffs are eight former members of the 2000-01 Clatskanie High School varsity boys basketball team in Clatskanie, Oregon.² The defendants include the Clatskanie School District, Jeff Baughman (the varsity boys basketball coach), Michael Corley (the high school principal), Lester Wallace (the high school athletic director), and Earl Fisher (the superintendent).³ Baughman, a teacher at the high school before taking on coaching responsibilities, became the team's head coach for the 2000-01 school year.

Considering the evidence in the light most favorable to the plaintiffs, as we must at this stage of the litigation, see Bingham v. City of Manhattan Beach, 341 F.3d 939, 945-46 (9th Cir.2003), Baughman was verbally abusive and highly intimidating. For example, plaintiff D.J. Crawford testified that after a game, Baughman had him hold a basketball while Baughman "slapped" and "beat" at it (also "hitting [Crawford's] arms") to make sure he was holding the ball tightly. Although the ball-holding drill might recreate a game situation, what followed was inappropriate. Baughman made a triangular shape with his fingers and told Crawford, "You know what this is? This is what you are. You are a fucking pussy."⁴ Describing Baughman's intimidation tactics, plaintiff Griffin Linn testified that Baughman once told the team, "I can fuck with your minds in so many ways you won't know which way is up, and don't think I can't. I'll make your lives a living hell."⁵ Linn explained that the players did not report Baughman's behavior because Baughman made it clear that "anything that happened in the locker room stays in the locker room."

After one particular home game, Baughman told the players that if they wanted him to quit, they should say so, and he would resign.⁶ The players apparently took Baughman at his word. On February 12, 2001, several weeks after Baughman's statement, co-captains Jacob Pinard and Christopher Somes called a team meeting at a local restaurant to discuss Baughman's behavior. Before the meeting, one of the plaintiffs typed up a petition requesting that Baughman resign. The petition stated:

As of February 12, 2001, the Clatskanie Tigers Boys Varsity Basketball Team would like to formally request the immediate resignation of Coach Jeff Baughman. As a team we no longer feel comfortable playing for him as a coach. He has made derogative [sic] remarks, made players uncomfortable playing for him, and is not leading the team in the right direction. We feel that as a team and as individuals we would be better off if we were to finish the season with a replacement coach. We, the undersign [sic], believe this is in the best interest of the team, school, town, and for the players and fans. We would appreciate the full cooperation of all the parties involved.

With the exception of a foreign exchange student, every varsity player attended the meeting, including Baughman's son. No coaches, teachers or parents attended. After discussing the petition, all but one of the players (Baughman's son) signed it. The players also added a type-written note beneath the signatures stating: "[W]e will not be approached individually on this. This was a team decision and we will be addressed as a team."

The following morning, co-captain Somes delivered the petition to Baughman. The coach immediately took it to the high school principal, defendant Corley, who was in a meeting with the superintendent, defendant Fisher. The three defendants met for 10 to 15 minutes, during which time Baughman expressed that he was "confused," "very upset" and "hurt." Although none of these defendants could recall exactly what was discussed during this meeting, Corley remembers recommending that Baughman not resign, and Superintendent Fisher suggested that they meet with the players to "find out the detail" of the petition. Baughman was also concerned because the team was scheduled to play an important away game that evening. Upset by the events of the morning, Baughman asked Corley for permission to take off the remainder of the day, which Corley granted. Corley did not ask Baughman whether he would coach the game that night.

Once home, Baughman called the junior varsity coach, Gary Points, "to inform him of the situation." According to Points, Baughman stated that he "wanted to know who his back-stabbers were" and wanted "to corner the little sons-of-bitches and not give them an out." When Points asked what Baughman meant, Baughman responded that Corley had given him two options: he could either resign, or decide not to resign and tell the players to either get on the bus and play or if they chose not to board the bus to turn in their uniforms. According to Points, Baughman claimed that Corley and Wallace were advising him to choose the second option.

After Baughman left the school, Corley called a meeting with athletic director Wallace and all of the players who had signed the petition.⁷ The players told Corley and Wallace about Baughman's derogatory remarks, stated he was unfair and expressed their discomfort in playing for him. When the players indicated that they would not play on the team if Baughman was going to coach them, Corley and Wallace explained they could not have Baughman immediately removed without an investigation. According to the plaintiffs, Corley and Wallace presented the players with two options: the players could participate in a mediation process with the two of them serving as mediators and board the team bus for the game that evening, or they could adhere to their position and forfeit their privilege to play in the game. The plaintiffs contend that neither Corley nor Wallace advised them that they would be disciplined further for choosing the second option.⁸ The meeting ended without the players expressing whether they intended to board the bus.

Later in the day, Baughman informed Corley and Wallace that he was not going to coach the game that evening. Wallace then made arrangements for a substitute coach to replace Baughman. Corley and Wallace did not inform the players of Baughman's decision.

With the exception of Somes, each of the players who had signed the petition chose not to board the bus and did not play in the game. The junior varsity team played in place of the eight missing players along with Somes, Baughman's son and the foreign exchange student, losing the game by more than 50 points. Baughman did not coach the team, and most of the plaintiffs attended the game as spectators. The plaintiffs con tend they decided not to board the bus to demonstrate their resolve and sincerity concerning the petition and complaints against Baughman. They also maintain they would not have refused to travel with the team had they known Baughman was not coaching.

The next day, Corley and Wallace met with the plaintiffs, Somes and several of the players' parents. According to two of the parents in attendance, Corley announced that...