Doe v. Cavanaugh, CIVIL ACTION No. 19-cv-11384-WGY

• Citation: 437 F.Supp.3d 111
• Decision Date: 05 February 2020
• Docket Number: CIVIL ACTION No. 19-cv-11384-WGY, CIVIL ACTION No. 19-cv-11987-WGY
• Parties: John DOE, BY his Mother and NEXT FRIEND Jane DOE, Plaintiff, v. Carol CAVANAUGH, in her Official Capacity, Evan Bishop, in his Official Capacity, and Hopkinton Public Schools, Defendants, Ben Bloggs, by his Mother and Next Friend, Jane Bloggs, Plaintiff, v. Carol Cavanaugh, in her Official Capacity, Evan Bishop, in his Official Capacity, and Hopkinton Public Schools, Defendants.
• Court: U.S. District Court — District of Massachusetts

437 F.Supp.3d 111

John DOE, BY his Mother and NEXT FRIEND Jane DOE, Plaintiff,

v.Carol CAVANAUGH, in her Official Capacity, Evan Bishop, in his Official Capacity, and Hopkinton Public Schools, Defendants,Ben Bloggs, by his Mother and Next Friend, Jane Bloggs, Plaintiff,

v.Carol Cavanaugh, in her Official Capacity, Evan Bishop, in his Official Capacity, and Hopkinton Public Schools, Defendants.

CIVIL ACTION No. 19-cv-11384-WGY

CIVIL ACTION No. 19-cv-11987-WGY

United States District Court, D. Massachusetts.

Filed February 5, 2020

Alexandra H. Deal, Law Office of Alexandra H. Deal, W. Medford, MA, for Plaintiff, John Doe.

Elizabeth F. Toner, Joshua R. Coleman, Murphy, Lamere & Murphy P.C., Braintree, MA, Douglas I. Louison, Matthew T. Goepfrich, Regina M. Ryan, Louison, Costello, Condon & Pfaff, LLP, Boston, MA, for Defendants, Carol Cavanaugh.

Jeffrey P. Wiesner, Jennifer A. McKinnon, Wiesner McKinnon LLP, Boston, MA, for Plaintiff, Jane Bloggs.

ORDER

YOUNG, D.J.

Ben Bloggs ("Bloggs") a high school student who alleges that school administrators and the school violated his rights to free speech under state and federal law, has brought the lawsuit Bloggs v. Cavanaugh, 19-cv-11987 ("Bloggs Civil Case"), through his mother and next friend Jane Bloggs. He brings claims pursuant to sections 1983 and 1988 of title 42 of the United States Code, and the First Amendment to the United States Constitution, as well as Massachusetts General Laws, chapter 71, section 82 ; chapter 231A section 1; and chapter 12 section 11. He also seeks a declaration that Hopkinton Public School's ("Hopkinton" or the "School") anti-bullying policy and the enacting Massachusetts statute are unconstitutionally vague and overbroad. See generally Bloggs Civil Case, Compl. Declaratory Injunctive Relief ("Compl."), ECF No. 1.

The suit arises out of an incident of alleged bullying on the part of Bloggs and seven other students on the Hopkinton varsity hockey team (the "Team"). A parent of "Robert Roe", a student on the Team, filed a report with the School alleging that a member of the Team had taken videos of Roe without his permission and was sharing that video with other students as part of a larger pattern of harassment. Compl. ¶ 15. The report named four other students as witnesses or participants, though Bloggs was not among them. Id. While investigating the incident, school administrators discovered a private Snapchat group chat entitled "Geoff Da Man" consisting of eight members of the Team, one of whom was Bloggs. Roe himself was not a member of the Snapchat group. Id. ¶ 21. While much of the communication on the Snapchat group was innocent, it also included derogatory commentary about Roe, along with pictures and videos of him. Id. ¶¶ 24, 25. Bloggs himself posted the following in the chat: "Are [Roe's] parents ugly too or did he just get bad genes." Bloggs Civil Case, Defs.' Mem. Law Supp. Mot. Dismiss, ("Defs.' Mem.") 5, Ex. 2, Snapchat Screenshots 4, ECF No. 14-2.

Based on the investigation, the School Principal, Evan Bishop ("Bishop"), suspended Bloggs from school for five days and from the Team for the remainder of the season. Compl., Ex. F, Notice of Short-Term Suspension Finding 2-3, ECF No. 1-7. The decision to suspend Bloggs was based on his participation in the Snapchat group, reports of additional videos and photos that were not retained on Snapchat, and reports of active exclusion aimed at Roe. Id. Additionally, Bishop found that "[t]he conduct caused emotional harm to the target, created a hostile environment for him during school-sponsored events and activities and infringed on his rights at school." Id. at 2.

Bloggs brings five counts against the School in the complaint. Count I requests declaratory and injunctive relief pursuant to section 1983, alleging that Hopkinton violated Bloggs' right to Freedom of Speech. Compl. ¶¶ 61-65. Count II also requests declaratory and injunctive relief pursuant to section 1983, alleging violation of Bloggs' right to Freedom of Association. Id. ¶¶ 66-71. Count III requests declaratory judgment pursuant to section 1983 because the Massachusetts' anti-bullying statute, Massachusetts General Law chapters 71, sections 37H and 37O, and Hopkinton's Bullying Policy violate the First Amendment due to being vague and overbroad. Id. ¶¶ 72-79. Count IV alleges that the School's actions violate Article 16 of the Massachusetts Declaration of Human Rights and requests relief under the Massachusetts Civil Rights Act, Massachusetts General Law chapter 12, section 11I. Id. ¶¶ 80-83. Finally, Count V alleges violation of Massachusetts' free speech statute, Massachusetts General Law chapter 71, section 82.

Hopkinton has moved to dismiss Bloggs' complaint for failure to state a claim upon which relief may be granted. See Bloggs Civil Case, Defs.' Carol Cavanaugh, Evan Bishop, Hopkinton Public School's Mot. Dismiss Pls.' Compl., ECF No. 13. The parties have fully briefed the motion. See Defs.' Mem.; Bloggs Civil Case, Pl.'s Opp'n Defs.' Mot. Dismiss, ("Pl.'s Opp'n"), ECF no. 18. The Court heard arguments on January 13, 2020 and dismissed all counts against School Superintendent Carol Cavanaugh ("Cavanaugh") and School Principal Evan Bishop in their individual and official capacity, taking all others under advisement. Bloggs Civil Case, Electronic Clerk's Notes Mot. Hr'g 1/13/2020, ECF No. 25.

This case is the second before the court stemming from the same incident of alleged bullying. The other case, brought by "Doe," another member of the Team, is Doe v. Cavanaugh, 19-cv-11384-WGY ("Doe Civil Case"). Bishop, Hopkinton and Cavanaugh filed a motion to dismiss, Doe Civil Case, Defs.' Mot. Dismiss First Am. Compl. Failure State Claim Relief Granted, ECF No. 22, and in the motion session of October 17, 2019, this Court denied their motion to dismiss as to Counts I, II, and IV (which correspond to Counts I, II, and V of Bloggs' Complaint), and took Count III (which is identical to Count III of Bloggs' Complaint) under advisement. Doe Civil Case, Electronic Clerk's Notes Mot. Hr'g 10/17/2019, ECF No. 31. Bishop, Hopkinton and Cavanaugh, on December 17, 2019 moved to consolidate the two cases, see Doe Civil Case, Defs.' Mot. Consolidation, ECF No. 43, and this Court granted the motion insofar as any of Bloggs' counts survive the motion to dismiss. Doe Civil Case, Order Mot. Consolidate Cases, ECF No. 46.

Since four of Bloggs' five claims survive the motion to dismiss, the cases will be consolidated. Fed. R. Civ. Proc. 42(a)(2).

In considering a motion to dismiss, the court accepts all factual allegations in the complaint as true and draws all reasonable inferences in plaintiff's favor. See Langadinos v. American Airlines, Inc., 199 F.3d 68, 69 (1st Cir. 2000). Under Federal Rule of Civil Procedure 12(b)(6), a claim that does not plead "enough facts to state a claim to relief that is plausible on its face" will be dismissed. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). A court does not have to accept plaintiff's assertions as true if the allegations are conclusory but "couched as a factual allegation." Id. at 555, 127 S.Ct. 1955 (citing Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986) ).

The Supreme Court defined the standard for when schools can constrict student speech in Tinker v. Des Moines Indep. Cmty Sch. Dist., 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969). Under the Tinker standard, student speech "may be regulated only if it would substantially disrupt school operations or interfere with the right of others." Saxe v. State Coll. Area Sch. Dist., 240 F.3d 200, 214 (3d Cir. 2001) ; see also Tinker, 393 U.S. at 513, 89 S.Ct. 733 ; Pyle v. South Hadley Sch. Comm., 861 F. Supp. 157, 166 (D. Mass. 1994) (Ponsor, J.)).

Bloggs pleads sufficient facts with respect to Count I to allow an inference that school administrators could not reasonably forecast his private comments would cause substantial material disruption or infringe on the rights of others. Compl. ¶ 49. The evidence on the record establishes that Bloggs made several comments in a private group chat, and may have engaged in other exclusionary behavior, but that Roe never saw them until the investigation. Id. ¶ 47. Bloggs pointed to several other cases that have found the disciplining of minor disruptions to be a violation of students' rights under the Tinker standard. See Pl.'s Opp'n 10 (citing J.S. ex rel. Snyder v. Blue Mountain Sch. Dist., 650 F.3d 915, 929 (3d Cir. 2011) ; T.V. ex rel. B.V. v. Smith-Green Comm'ty Sch. Corp., 807 F. Supp. 2d 767, 784 (N.D. Ind. 2011) ). Hopkinton cited cases, conversely, indicating that cyber-bullying, even outside of school, can qualify as a substantial disruption. Defs.' Mem 9 (citing Bell v. Itawamba County Sch. Bd. 799 F. 3d 379, 390 (5th Cir. 2015) ; Kowalski v. Berkeley County Sch. 652 F.3d 565 (4th Cir. 2011) ; Sypniewski v. Warren Hills Regional Bd. of Educ., 307 F.3d 243, 257 (3d Cir. 2002) ; Dunkley v. Board of Educ., 216 F. Supp. 3d 485 (D.N.J. 2016) ). Whether Hopkinton was justified in suspending Bloggs is a factual question, and the motion to dismiss Count I is therefore denied.

Bloggs also pleads sufficient facts with respect to Count II to allow an inference that School administrators punished him for the actions of other students rather than his own, a potential violation of his freedom of association. Bloggs' argument is that other students were responsible for the alleged bullying that led to the initial report, and Roe learned of his derogatory comments only due to the School investigation. Compl. ¶¶ 54, 69. Bishop, Hopkinton and Cavanaugh dismiss Bloggs argument as asserting a right to "socialize through social media." Defs.' Mem. 12. They point to case law indicating there is no "generic right to mix and mingle," URI Student Senate v. Town of Narragansett 631 F.3d 1, 12-13 (1st Cir. 2011), and that "social friendships ... are legally...