Durstein v. Alexander
| Citation | 527 F.Supp.3d 858 |
| Decision Date | 19 March 2021 |
| Docket Number | CIVIL ACTION NO. 3:19-0029 |
| Parties | Mary DURSTEIN, Plaintiff, v. Todd ALEXANDER; Board of Education, Cabell County Schools; State Superintendent of Schools, West Virginia Department of Education, Defendants. |
| Court | U.S. District Court — Southern District of West Virginia |
David Lindsey Marburger, Pro Hac Vice, Marburger Law, Cleveland, OH, Michael S. Bailey, Bailey Legal Services, Barboursville, WV, for Plaintiff.
David E. Rich, Eric Salyers, Perry W. Oxley, Ashley T. Wentz, Oxley Rich Sammons, Huntington, WV, for Defendants Todd Alexander, Board of Education, Cabell County Schools.
Pending is Defendant State Superintendent of Schools's Motion to Dismiss Supplemental Complaint. ECF No. 102. For the reasons below, the Court GRANTS the Motion.
In her Amended Complaint, Mary Durstein alleges the following facts. Am. Compl., ECF No. 20. Durstein worked as a full-time teacher for Cabell County Schools from November 2001 until her termination on March 6, 2017. Id. at ¶ 4. During the 2016–2017 school year, Durstein taught World Studies at Huntington High School. Id. at ¶ 5. She operated a Twitter account viewable by the public and often posted about political issues. Id. at ¶¶ 17–18. A journalism student at Marshall University gathered several of Durstein's tweets, and the student or a friend of the student shared the tweets with Cabell County Schools and local news organizations. Id. at ¶ 23.
On January 9, 2017, Huntington High School Principal Jody Cunningham called Durstein into his office to meet with him and Todd Alexander, an assistant superintendent for Cabell County Schools. Id. at ¶¶ 21–22, 6. At this meeting, Alexander and Cunningham discussed three of Durstein's tweets with her. Id. at ¶ 24. The first, posted on July 16, 2015, is a retweet of conservative commentator Ann Coulter containing a photograph of two men and five women, some of whom are wearing hijabs. Id. at ¶ 25; ECF No. 20-1. One of the men in the photo is Mohammad Youssuf Abdulazeez, who had opened fire on two military installations in Tennessee. Am. Compl. ¶ 25. A caption above the photo reads "Deport them." ECF No. 20-1. The second tweet, also from July 16, 2015, states Am. Compl. ¶ 26; ECF No. 20-2. In the third tweet, posted on May 28, 2016, Durstein responds "Exactly !!!!!!!!!" to a meme calling President Barack Obama a "Muslim douchebag." Am. Compl. ¶ 28; ECF No. 20-3.
On January 24, 2017, the Superintendent of Cabell County Schools suspended Durstein without pay. Am. Compl. ¶ 42. On March 6, 2017, the Board of Education of Cabell County Schools voted to terminate Durstein. Id. at ¶ 45; ECF No. 20-12. Durstein appealed, but the West Virginia Education and State Grievance Board upheld her termination on September 22, 2017. Am. Compl. ¶ 46.
On December 11, 2017, Durstein received notice that the State Superintendent of Schools was investigating whether to revoke her teaching certificates. Id. at ¶ 50; ECF No. 20-13. The letter listed the findings of the Cabell County Schools’ investigation and stated that the State Superintendent would "be determining whether a hearing is warranted under West Virginia Code § 18A-3-6 for immorality with a rational nexus to your teaching responsibilities." ECF No. 20-13. Additionally, the letter indicated that there was "no timetable for completion of investigations." Id. Finally, the letter stated, "[i]n the meantime, should you seek employment in the public school system, it is your responsibility to disclose the fact of our investigation to prospective employers regardless of whether their application or interview process calls for such disclosure." Id. As of the filing of her Amended Complaint, Durstein had not received a decision from this investigation. Am. Compl. ¶ 51.
Durstein filed her Complaint on January 8, 2019, and her Amended Complaint on February 28, 2019. ECF Nos. 1, 20. On December 13, 2019, the Court entered a Memorandum Opinion and Order on the State Superintendent's Motion to Dismiss Durstein's Amended Complaint. ECF No. 56, at 19–25. The Amended Complaint asked the Court to make the following declaratory judgments: (1) the First Amendment bars the State Superintendent of Schools from revoking or suspending Durstein's teaching certificates based on her tweets; (2) the First Amendment bars the State Superintendent from applying the "immorality" provision of W.Va. Code § 18A-3-6 to her tweets as a ground for revoking or suspending her teaching certificates; and (3) the "immorality" provision of W. Va. Code § 18A-3-6 violates the First Amendment on its face. Am. Compl. ¶¶ 99–105. The State Superintendent moved to dismiss the claims arguing that the Younger abstention doctrine applied and that Durstein lacked standing. ECF No. 24.
In its Memorandum and Order, the Court found that the State Superintendent's proceeding against Durstein fit into the categories of cases to which Younger abstention applies. ECF No. 56 at 20–21 (). Additionally, the Court found that the " Middlesex factors" were satisfied. Id. at 22–25 (citing Middlesex Cty. Ethics Comm. v. Garden State Bar Ass'n , 457 U.S. 423, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982) ). Accordingly, the Court granted the State Superintendent's Motion. Id. at 25.
On January 10, 2020, Durstein moved under Rule 59(e) of the Federal Rules of Civil Procedure to vacate the Court's order dismissing the State Superintendent, claiming that on January 9, 2020, the State Superintendent had formally closed his investigation into her and thus the Court's grounds for abstention were eliminated. ECF Nos. 57 & 58. The Parties ultimately agreed that resolution of the Motion to Vacate was not necessary for Durstein to move to file a supplemental complaint stating a facial challenge against the State Superintendent. See ECF No. 66. Accordingly, the Court entered an order denying the Motion to Vacate as moot. Id. Motions for leave to file a supplemental complaint were filed on March 17, 2020 and April 16, 2020. ECF Nos. 68 & 76.1 After briefing, the Court granted Durstein leave to file her Supplemental Complaint. ECF No. 94.
The Supplemental Complaint was filed on August 14, 2020. Suppl. Compl., ECF No. 95. Together, the Amended and Supplemental Complaints assert 6 counts. Counts One, Two, Three, Four, and Six are irrelevant to this Motion, as they are asserted against either Defendant Alexander or Defendant Board of Education. The Supplemental Complaint adds facts relating to the investigation into her teaching license, and reasserts a revised Count Five against the State Superintendent. Suppl. Compl.
Durstein claims that the State Superintendent's investigation had a significant impact on her "job prospects" in the state of West Virginia. She claims that during the investigation she applied for an open teaching position in Logan County, West Virginia, and was told by the Personnel Director of Logan County Schools, Id. at ¶¶ 8–9. Additionally, she alleges that she applied to a multitude2 of other teaching positions in West Virginia but failed to receive any interviews.3
Durstein notes that the State Superintendent's January 9, 2020 letter "does not articulate any reason for the Superintendent's decision to close his investigation, and provides no assurance that Durstein does not risk another investigation by returning to engaging with others on social medial about public controversies while at home." Id. at ¶¶ 36. Durstein avers that she has avoided engaging in expressive activity for fear that State Superintendent may take action against her license. See id. at ¶¶ 33–35, 44–53.
Moreover, in addition to the letter stating that Durstein had an obligation to disclose the existence of the ongoing investigation to any prospective employer, she asserts that the "pendency of the Superintendent's investigation was noted on the West Virginia Dept. of Education's online records about Durstein, which human resources officers of West Virginia school districts typically would consult when considering her application to teach." Id. at ¶¶ 13–14. Durstein ultimately secured employment as a substitute teacher in Ohio. Id. at ¶ 17.
In the Supplemental Complaint, Durstein drops two of her asserted grounds for a declaratory judgment but "continues to seek a declaratory judgment that the provision of [W.Va.] Code § 18A-3-6 that allows the Superintendent to revoke or suspend a teaching certificate for ‘immorality’ violates the First Amendment on its face." Suppl. Compl. ¶ 122.
Specifically, Durstein claims (1) § 18A-3-6 "contains no standards—on its face or as authoritatively interpreted by West Virginia's highest court—to confine the Superintendent's threshold determination of which speech can or cannot qualify as ‘immoral’ "; (2) it "allows the Superintendent to engage in viewpoint discrimination in violation of the First Amendment"; and (3) it "coerces licensed teachers to refrain from engaging in certain speech that they have a right to express under the First Amendment ...." Id. at ¶¶ 129, 131, 135. Additionally, Durstein argues that the "rational nexus" condition in the statute does not sufficiently narrow the Superintendent's discretion in a way that saves the statute from constitutional infirmity. Id. at ¶¶ 132–34.
On September 21, 2020, the State Superintendent filed a Motion to Dismiss the Supplemental Complaint. ECF No. 102. In its Motion, the State Superintendent argues that the claim against the State Superintendent must be dismissed for want of subject matter jurisdiction, because the Plaintiff "fails to...
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