Brown v. Cabell County Bd. Of Educ., Civil Action No. 3:09-0279.

• Decision Date: 26 May 2010
• Docket Number: Civil Action No. 3:09-0279.
• Citation: 714 F.Supp.2d 587
• Court: U.S. District Court — Southern District of West Virginia
• Parties: Anthony Joseph BROWN by and through his father, Joseph David BROWN, Plaintiff, v. CABELL COUNTY BOARD OF EDUCATION, William A. Smith in his official capacity as superintendent of Cabell County Schools, and Greg Webb in his official capacity as principal of Huntington High School, Defendants.

714 F.Supp.2d 587

Anthony Joseph BROWN by and through his father, Joseph David BROWN, Plaintiff,

v.CABELL COUNTY BOARD OF EDUCATION, William A. Smith in his official capacity as superintendent of Cabell County Schools, and Greg Webb in his official capacity as principal of Huntington High School, Defendants.

Civil Action No. 3:09-0279.

United States District Court, S.D. West Virginia.

May 26, 2010.

Glen D. Conway, Conway Law Office, Richard W. Weston, Weston Law Office, Huntington, WV, for Plaintiff.

David J. Mincer, Kristen Vickers Hammond, Bailey & Wyant, Charleston, WV, Gregory W. Bailey, Bowles Rice McDavid Graff & Love, Morgantown, WV, for Defendants.

MEMORANDUM OPINION AND ORDER

ROBERT C. CHAMBERS, District Judge.

Pending is the Defendants' Motion for Summary Judgment (Doc. 74). The Court heard argument on this motion, from all parties, at a hearing held May 24, 2010. For the reasons explained below, the Court GRANTS the motion. In making its decision, the Court has relied on deposition and hearing testimony submitted along with the defendants' motion. Plaintiff did not contest this evidence in his response or offer any contrary evidence for the Court to consider. As such, the facts in the record are uncontradicted; judgment to the defendants is appropriate as a matter of law.

Background

Plaintiff, Anthony Brown, is a student at Huntington High School. On March 17, 2009, during the spring of his freshman year, he was given a ten-day suspension for writing the words “Free A-Train” on the back of his hands. He argues that school administrators violated his First Amendment right to freedom of speech when they handed down the suspension. He requests a declaratory judgment that the school's actions were unconstitutional under the First and Fourteenth Amendments to the United States Constitution, an expungement of the suspension from his disciplinary record, compensatory damages, and attorneys' fees.

In order to understand Brown's message, and the school's proffered motivation for suspending him, it must be put into context. The term “A-Train” was a nickname for Anthony Jennings, a Huntington High School student who had been recently expelled at the time of Brown's suspension. On March 4, 2009, “A-Train” was accused of shooting a Huntington Police Officer-Ryan Bentley-while fleeing an armed robbery. Details of the shooting were widely distributed through the local media. Jennings was charged with attempted murder and two counts of armed robbery. He has since pled guilty to the attempted murder charge.

Jennings was widely perceived to be a member, if not the leader, of a gang known as the “Black East Thugs,” or “BET” for short, which had a known presence at Huntington High School. The gang existed for about two years but had not caused significant problems at school. In March, 2009, their activities escalated and culminated in a series of events that posed more serious concerns. From the evidence it appears that the gang was made up predominantly of young men who attended Huntington High School, and they made an effort to attract attention and recruit new members there. Members often wore red pants to school, identified themselves on social networking sites as gang members, left gang-related graffiti throughout the school building, and generally made students and teachers aware of their membership in BET. Members would commonly skip class together (in fact, this was the reason Anthony Jennings was expelled). School administrators learned of several incidents of BET members disregarding rules of conduct at the school and engaging in acts of aggression to intimidate or even physically assault other members of the Huntington High School community-particularly other students who were not members of the gang. Gang members would verbally assault faculty and staff who confronted them, at times cursing them outright in front of other students. Fights became more prevalent and some parents began to fear for their children's safety.

One extreme incident occurred on March 3, 2009, when gang members traveled by school bus to another student's home and fought with him, his parents, and his cousin. The student had recently moved from New Jersey and rumor had it that he had belonged to a gang in the big city. BET wanted to recruit him, but he had rebuffed their efforts. They decided to beat him in retaliation. The police were called and the group scattered, but the BET members involved were eventually identified by video footage on the bus and expelled. The day after the incident, BET members threatened to shoot two fellow students in the back of the head. Following this incident, a group of 12 parents went to the Cabell County Board of Education to complain specifically about that event and more generally about gang activity at the school.

After Anthony Jennings's March 4, 2009, arrest, administrators at Huntington High School were nervous about the reaction of BET and the disturbance it might cause in the school. Anthony's brother, Brandon Jennings, continued to attend school and outward displays of support for “A-Train” began to appear. A few days after the shooting, Antonio McKechin, a known BET member, taped a picture of Jennings to a white T-Shirt above the words “Free A-Train.” Vice-Principal Rob Archer received a call from the science teacher, Mr. Lake, who told him McKechin became disruptive during class by wearing the shirt and carrying on about why “A-Train” should be free. On his was to the office McKechin paraded through the hall yelling “Free A-Train” and “free my boy.” ¹

In the days following McKechin's outburst, school administrators began receiving phone calls from concerned parents. Parents were anxious about the school's ability to control the gang situation and about rumors that BET members would bring guns to school. Some parents were specifically concerned that gang members wearing slogans in support of “A-Train” would be intimidating to other students. Parents asked pointedly if the school could guarantee their children's safety in such a situation and some indicated that they would pull their children out of school and not allow them to return until the BET gang problem was dealt with. Principal Gregg Webb described the number of telephone calls as an “onslaught.”

At an early morning administrators' meeting, staff discussed the phone calls from parents. Attendance Vice-Principal Baisden advised that the school had recently had an increased absentee rate and that the number of students signing out early had increased as well. They discussed the fact that teachers had been emailing and leaving messages about interruptions in class due to students talking about “A-Train,” BET, and the “Free A-Train” slogan written in student notebooks. Principal Webb testified that from these and other reports, it was evident that the “Free A-Train” slogan was causing problems in the classrooms and with student and parent perceptions of safety at Huntington High School. He testified that the slogans intimidated other students and prompted interruptions in classes, with some students leaving class. On March 14, 2009 Principal Webb sent out a mass email advising teachers that the slogan “Free A-Train” and the t-shirts bearing the slogan were banned from school. Teachers were told to inform students of the ban in their first period classes.

Two days after the enactment of the ban, two students known to be members of BET wore screen printed shirts bearing the “Free A-Train” slogan and Anthony Jennings's face. Administrators took them from their lunch period in order to talk with them about their shirts and, as the defendants describe it, a near riot ensued. Huntington Police Officer Ernie Blackburn, who is regularly stationed at the school, was forced to call for backup and six officers came to Huntington High School to help maintain order. Plaintiff, Anthony Brown, spoke about the shirts with Vice-Principal Rob Archer during the incident. Plaintiff asked what would happen if he were to wear a “Free A-Train” shirt to school the next day. Vice-Principal Archer told him plainly that he would be suspended.

On the morning of March 17, 2009, Plaintiff approached Vice-Principal Archer in the hallway on his way into the school building. Plaintiff displayed his hands which had “Free A-Train” written on them. Archer reminded Plaintiff that they has spoken about this the previous day and told him he needed to wash the slogan from his hands. Archer assumed that he would and did not follow him to the bathroom to make sure he did so. According to the Vice-Principal, Plaintiff did not cause many problems and usually did as he was told.

Plaintiff approached Vice-Principal Archer again during the lunch period. Archer noticed that Plaintiff still had the slogan written on his hands, in the same color and writing as before. He had apparently not followed the instructions to wash it off. This time Archer accompanied Plaintiff to the restroom and stood outside until he washed the message from his hands. Plaintiff showed Archer his clean hands and the Vice-Principal thought the problem was resolved.

After Plaintiff's lunch period had ended, but while Archer was still eating, Plaintiff approached him again. Plaintiff had written “Free A-Train” on the back of his hands for a second time and displayed the message to Archer once again. Archer asked him what the problem was and reminded him that he could be suspended. Plaintiff replied, “I've got to do what I've got to do. He's my dog.” Archer told Plaintiff to wait for him in the office as he finished lunch. After he arrived in the office, Archer called Plaintiff's parents and informed them of the situation. While Plaintiff was waiting for his father to pick him up, he showed off his hands and the “Free A-Train” slogan to other students nearby. At least one student was uncomfortable with the situation and stated that she didn't want any part of it. She called her parent,...