Doe v. Hopkinton Pub. Sch.

• Decision Date: 19 November 2021
• Docket Number: No. 20-1950,20-1950
• Citation: 19 F.4th 493
• Parties: John DOE, by his Mother and Next Friend, Jane Doe; B.B., by his Mother and Next Friend, Jane Bloggs, Plaintiffs, Appellants, v. HOPKINTON PUBLIC SCHOOLS, Defendant, Appellee, Carol Cavanaugh, in her individual capacity and official capacity as Superintendent of the Hopkinton Public Schools; Evan Bishop, in his individual capacity and official capacity as Principal of Hopkinton High School, Defendants.
• Court: U.S. Court of Appeals — First Circuit

19 F.4th 493

John DOE, by his Mother and Next Friend, Jane Doe; B.B., by his Mother and Next Friend, Jane Bloggs, Plaintiffs, Appellants,

v.HOPKINTON PUBLIC SCHOOLS, Defendant, Appellee,Carol Cavanaugh, in her individual capacity and official capacity as Superintendent of the Hopkinton Public Schools; Evan Bishop, in his individual capacity and official capacity as Principal of Hopkinton High School, Defendants.

No. 20-1950

United States Court of Appeals, First Circuit.

November 19, 2021

Alexandra H. Deal and Jeffrey P. Wiesner, with whom Jennifer McKinnon, Paik, Brewington & Deal LLP, and Wiesner McKinnon LLP were on brief, for appellants.

William G. Creeley, Seth B. Orkand, and Robinson & Cole LLP on brief for Foundation for Individual Rights in Education, amicus curiae.

Sophia Cope and Naomi Gilens on brief for Electronic Frontier Foundation, amicus curiae.

Elizabeth F. Toner and Joshua R. Coleman, with whom Murphy, Lamere & Murphy, P.C. was on brief, for appellees.

Maura Healey, Attorney General, Abrisham Eshghi, Douglas Martland, and Joshua Olszewski-Jubelirer, Assistant Attorneys General, on brief for the Commonwealth of Massachusetts, amicus curiae.

Francisco M. Negrón, Jr., John Foskett, and Valerio, Dominello, & Hillman LLC on brief for National School Boards Association, Maine School Boards Association, Massachusetts Association of School Committees, New Hampshire School Boards Association, and Rhode Island Association of School Committees, amici curiae.

Patience Crozier and Bennett Klein on brief for GLBTQ Legal Advocates & Defenders and Anti-Defamation League, amici curiae.

Ruth A. Bourquin, Rachel E. Davidson, Rebecca R. Krumholz, and Matthew R. Segal on brief for the American Civil Liberties Union of Massachusetts, amicus curiae.

Nicolas Y. Riley and Institute for Constitutional Advocacy & Protection on brief for Professor Daniel B. Rice, amicus curiae.

Before Lynch, Selya, and Barron, Circuit Judges.

LYNCH, Circuit Judge.

After an investigation, Hopkinton High School ("School"), a part of the Hopkinton Public Schools, found that eight students on the school hockey team, including plaintiffs/appellants John Doe and Ben Bloggs, had bullied their fellow hockey team member Robert Roe.¹ The School disciplined all eight students involved in the bullying. Doe was suspended for three days, and Bloggs was suspended for five days.

Of the disciplined students, Doe and Bloggs chose to sue in federal court challenging the constitutionality of their discipline. They argued that they were exercising their First Amendment rights and that the causal connection between their conduct and the admitted bullying was insufficient. They further argued that the "emotional harm" prong of Mass. Gen. Laws ch. 71, § 37O is unconstitutional. They also argued that the punishment violated state law, specifically their student speech rights guaranteed under Mass. Gen. Laws ch. 71, § 82.

On cross motions for summary judgment, the parties agreed to proceed on a case stated basis. The district court rejected Doe's and Bloggs's claims and entered judgment in favor of Hopkinton Public Schools on all counts. See Doe v. Hopkinton Pub. Schs., 490 F. Supp. 3d 448, 470 (D. Mass. 2020).

We affirm.

I.

We describe the relevant facts supported by the record. At the time of the disciplinary investigation, plaintiffs Doe and Bloggs were tenth-grade students at the School. Roe was a ninth-grade student. Doe, Bloggs, and Roe were members of the School's hockey team during the 2018-2019 season.

A. Facts

On February 4, 2019, Roe's father filed a bullying complaint alleging that another high school student and member of the hockey team, Student 1, had been bullying Roe. The written complaint was filed on the School's standard bullying complaint form. The complaint stated that Roe had observed Student 1 video-recording him without his consent on multiple occasions and that those video recordings had been circulated amongst other students. The complaint further stated that Roe's parents had previously reported Student 1 to the high school hockey coach in December 2018 for taking photos of Roe in the locker room without his consent. Despite the prior complaint in December 2018, Student 1 had continued to take photos and videos of Roe without his permission. The complaint also listed three other members of the hockey team as witnesses but not Doe or Bloggs.

With the complaint, Roe's parents contemporaneously emailed School administrators, providing more specific information about the bullying but acknowledging that they did not have complete information. They stated that Student 1 had been video-recording and photographing Roe without his permission. The bullying was furthered by the fact that these video recordings and photographs were circulated in a group chat. They stated that this bullying had created a hostile environment for Roe and had impacted his personal rights and well-being. Roe's parents reported that they believed other students on the team were involved in bullying Roe and that other team members were part of the group chat engaged in the bullying. Roe's parents filed the bullying complaint on the Monday after a weekend incident during which Student 1 had filmed Roe without his consent on the hockey team bus. Roe's parents also referenced the December 2018 complaint to the hockey coach and their understanding that this conduct was not an isolated event but a pattern of repeated bullying. Roe's parents asked that Roe be moved out of the physics class in which two of the bullies were present.

Upon receipt of the bullying complaint, the School promptly investigated the allegations as it was obligated to under the Hopkinton School Committee Policy on Bullying Prevention & Intervention ("Hopkinton Bullying Policy"). Massachusetts state law requires the School to have a bullying policy, and the Hopkinton Bullying Policy uses nearly the same definition of "Bullying" as that in the Massachusetts anti-bullying statute. See Mass. Gen. Laws ch. 71, §§ 37H & 37O. The Hopkinton Bullying Policy is available on the School's website and is distributed in the Student Handbook, which must be signed by students' parents or guardians every school year. The Hopkinton Bullying Policy defines "Bullying" as:²

the repeated use by one or more students or by a member of a school staff of a written, verbal, or electronic expression, or a physical act or gesture, or any combination thereof, directed at a target that:

• causes physical or emotional harm to the target or damage to the target's property;

• places the target in reasonable fear of harm to him/herself, or of damage to his/her property;

• creates a hostile environment at school for the target;

• infringes on the rights of the target at school; or

• materially and substantially disrupts the education process or the orderly operation of a school.

Pursuant to the Hopkinton Bullying Policy, Josh Hanna and Justin Pominville, assistant principals at the School, conducted the investigation into the bullying.³

The investigation covered the various means of bullying, including Roe's own reports of exclusion and feeling bullied, the surreptitious audio- and video-recording and photographing of Roe, the unauthorized sharing of photographs of Roe and his family, the isolating of Roe, and the group communications between the members of the hockey team bullying Roe. Hanna and Pominville met with Roe's parents and Roe. They interviewed ten other members of the hockey team, starting with those initially named in the bullying complaint. Hanna and Pominville also met with law enforcement. The School's athletic director interviewed the hockey coach.

We recount the general course of the investigation and relevant factual findings made by Hanna and Pominville in the School's Bullying Investigation Report ("Bullying Report").

During his interview, Roe stated that he was actively excluded at hockey team spaghetti dinners and on the team bus. He reported that other team members whispered about him and looked at him. He stated that as a result, he became aware of the existence of the Snapchat group, which was discussed in front of him. Roe told the investigators that the bullying included sneaking photos and videos of him without his permission and sharing those photos and videos of him in the group. He reported that he felt alone on the hockey team bus and at hockey team events. Roe named four students whose bullying had been evident to him: Student 1, Student 3, Student 5, and Student 6. Roe reported that Student 1 had attempted to get him to say "I am gay" and "dick" while audio-and video-recording him.

Hanna interviewed Student 2, one of the students listed as a witness in the bullying complaint. Student 2 stated that there was a Snapchat group composed of members of the hockey team.⁴ Student 2 gave his phone to Hanna to view. Upon viewing, Hanna saw videos, photos, and messages, not yet deleted, communicated by and among the Snapchat group members, including Doe and Bloggs.

Hanna and Pominville viewed and preserved the photos, videos, and messages in the Snapchat group that had been saved or not yet deleted. Hanna learned from those messages that eight members of the Hopkinton hockey team were members of the group: Student 1, Student 2, Student 3, Student 4, Student 5, Student 6, Doe, and Bloggs. The members of the group confirmed as true Roe's statement that he had been excluded from the Snapchat group. The group was named "Geoff Da Man."⁵ Bloggs told the investigators that the Snapchat group had been created in December 2018. The group continued until it was broken up when the discipline was imposed. The School maintains that the group would have continued absent that discipline. The Snapchat postings were composed not only of messages from members of the group but also videos and photos of Roe taken without his consent, dating back to at least January 19, 2019, and circulated among the members.

The preserved Snapchat messages included demeaning...