Eagle Point Educ. Ass'n/SOBC/OEA v. Jackson Cnty. Sch. Dist. No. 9
| Decision Date | 26 January 2018 |
| Docket Number | 15-35972,Nos. 15-35704,s. 15-35704 |
| Parties | EAGLE POINT EDUCATION ASSOCIATION/SOBC/OEA; Dave Carrell; Staci Boyer, Plaintiffs–Appellees, v. JACKSON COUNTY SCHOOL DISTRICT NO. 9, Defendant–Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Peter R. Mersereau (argued) and Thomas W. McPherson, Mersereau Shannon LLP, Portland, Oregon, for Defendant–Appellant.
Jason Walta (argued), National Educational Association, Washington, D.C.; Margaret S. Olney, Henry J. Kaplan, and Thomas K. Doyle, Bennett Hartman Morris & Kaplan LLP, Portland, Oregon; for Plaintiffs–Appellees.
Before: Susan P. Graber, Richard A. Paez, and Richard R. Clifton, Circuit Judges.
In anticipation of a teachers' strike, a public school district adopted policies that prohibited picketing on property owned or leased by the school district, prohibited strikers from coming on school grounds, even for reasons unrelated to the strike, and prohibited signs and banners at any facilities owned or leased by the school district without advance written approval by the district superintendent. The policies were motivated by the strike, and they were formally rescinded shortly after the strike ended. The union, one of its members, and a student filed a civil rights action against the school district under 42 U.S.C. § 1983, contending that the district infringed on their First Amendment rights. The district court granted summary judgment in favor of Plaintiffs and subsequently awarded them attorney's fees and costs.
The school district appeals, primarily arguing that the policies enacted by the district during the teachers' strike should be viewed as "government speech" by the school district itself and should not be judged as restrictions on the free speech rights of teachers or students. That argument reflects a fundamental misunderstanding of the government speech doctrine. No reasonable observer would have misperceived the speech which the district sought to suppress—speech favoring the teachers' side in the strike—as a position taken by the school district itself. The government speech doctrine does not authorize the government's suppression of contrary views. We affirm.
Defendant–Appellant Jackson County School District No. 9 ("the District") is a public school district located near Medford, Oregon. Plaintiff–Appellee Eagle Point Education Association/SOBC/OEA ("the Union") is a labor organization representing employees of the District, including both teachers and staff members. Plaintiff–Appellee Dave Carrell was at the relevant time acting president of the Union and an employee of the District. Plaintiff–Appellee Staci Boyer was then a student in the District's high school. The strike which lies behind this action took place in May 2012.
In anticipation of that strike, the District adopted two resolutions on May 2, 2012. One of those resolutions, identified as the Resolution on Picketing, provided that "[n]o picketing will be allowed on any district property or facilities owned or leased by the District" and that "[p]icketers are prohibited from entering school facilities for any reason whatsoever." The policy was not limited to property used specifically for instructional purposes. At about the same time, the District entered into a three-month lease for a vacant lot across the street from school district headquarters that had been used by the Union in the past for organizing. After renting the lot, the District notified the Union that it could not use that lot.
The other resolution, the Resolution on Signs and Banners, provided that "[s]igns and banners will not be allowed in or upon buildings and other facilities unless written approval of the Superintendent is obtained in advance." By its terms, it was not limited to locations used for instruction either, but applied to "any and all other facilities owned or leased by the District."
At about the same time, the District sent a "Check–Out Notification Letter" to members of the Union. That letter informed recipients that they would "not be permitted on school property during the strike." Union members were required to sign a statement in which they agreed not to enter school property during the strike. The District informed its staff that "[a] parent who is a striking teacher shall not visit his/her child on any day in which they are participating in the picket line." (The two Resolutions, the Check Out Notification Letter, and the requirement to sign the statement will collectively be referred to as "the District policies.")
The Union went on strike on May 8, 2012. The District enforced the policies. Use of the newly rented vacant lot across the street from the District administrative office was prohibited. District security personnel directed picketers to stay off District property, including gravel by the side of a public roadway adjacent to an elementary school and areas that were not cordoned off either before or after the strike. Striking employees were prohibited from entering school grounds, even for reasons unrelated to picketing. Plaintiff Carrell testified that he was turned away by a security guard when he tried to attend a weekend flower sale at the high school.
Plaintiff Boyer, then a high school senior, drove into the school parking lot on May 11, 2012, with a sign on the back windshield of her car that stated "I Support D9 Teachers." A District security guard prohibited her from parking in the lot. An assistant principal at her school explained to her that signs supporting teachers or "protesting" were forbidden.
After another student posted a picture of her pet on Facebook with a sign that said "Strike Dog," the principal of the high school sent an email to the same assistant principal identifying that student by name, along with three others, stating that "students that have posted negativity on Facebook" should be "inform[ed] ... that they are not coming to school on Monday."
The strike ended, and Union members returned to work on May 17, 2012, after the Union and the District reached a tentative agreement. The District rescinded the Resolutions on June 13, 2012.
Prior to the strike, the District had policies regulating use of school grounds. It nonetheless officially encouraged parental school visits and the use of school facilities for civic and recreational purposes. School-sponsored events were permitted on school grounds without a permit, including charitable fund-raising, confidential pregnancy counseling, and an annual Mother's Day weekend plant sale.
Plaintiffs filed suit against the District on May 14, 2012, alleging that the District policies violated their free speech rights under the First Amendment and the Oregon Constitution. The parties later filed cross-motions for summary judgment. The court granted Plaintiffs' motion for summary judgment and denied the District's motion.
A judgment was entered on August 18, 2015, declaring that the District violated Plaintiffs' free speech rights under the First Amendment of the United States Constitution and under Article I, section 8 of the Oregon Constitution, enjoining the District from re-enacting the resolutions and policies declared unlawful, and awarding Plaintiffs nominal damages in the amount of $100. The District timely appealed.
Plaintiffs petitioned for an award of attorney's fees and costs, and the parties stipulated to the amount of $150,000. The District reserved the right to challenge on appeal Plaintiffs' entitlement to such an award. The court entered a Stipulated Judgment for Attorney Fees and Costs on November 29, 2015. The District timely appealed.
This court consolidated the two appeals filed by the District.
We review a district court's ruling on cross-motions for summary judgment de novo. Council of Ins. Agents & Brokers v. Molasky–Arman , 522 F.3d 925, 930 (9th Cir. 2008).
The primary argument presented by the District is that its policies were a form of government speech. If the policies were government speech, then they would not be subject to the Free Speech Clause. See Pleasant Grove City v. Summum , 555 U.S. 460, 467, 129 S.Ct. 1125, 172 L.Ed.2d 853 (2009) (). On the other hand, if the policies were instead regulatory policies restricting private speech on government property, then the Free Speech Clause would apply and the policies would be subject to a "forum analysis." See Walker v. Tex. Div., Sons of Confederate Veterans, Inc. , ––– U.S. ––––, 135 S.Ct. 2239, 2250, 192 L.Ed.2d 274 (2015) ().
The District's argument stretches the government speech doctrine beyond logical bounds, however. The District was entitled to make its own position known, and it did, but the doctrine did not give the District leave to suppress speech by others.
The starting point in applying the government speech doctrine is to establish that the action in question was in fact something that should be treated as a statement by the government. Two recent Supreme Court decisions, Summum and Walker , illustrate the doctrine.
In Summum , the Supreme Court held that the First Amendment rights of a religious organization were not violated by a city's denial of its request to erect a monument in a city park. 555 U.S. at 481, 129 S.Ct. 1125. The 2.5 acre park located in the historic district of Pleasant Grove, Utah, had 15 permanent displays, at least 11 of which were donated by private groups or individuals. The displays included a historic granary, a wishing well, the City's first fire station, a September 11 monument, and a Ten Commandments monument donated by the Fraternal Order of Eagles in 1971. Summum was a...
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