Fuller v. Warren Cnty. Educ. Serv. Ctr.

• Decision Date: 14 February 2022
• Docket Number: 1:21cv451
• Court: U.S. District Court — Southern District of Ohio
• Parties: Akeem Fuller, et al., Plaintiffs, v. Warren County Educational Service Center, et al., Defendants.

Akeem Fuller, et al., Plaintiffs,
v.
Warren County Educational Service Center, et al., Defendants.

No. 1:21cv451

United States District Court, S.D. Ohio, Western Division

February 14, 2022

OPINION & ORDER

MICHAEL R. BARRETT, JUDGE

This matter is before the Court upon Plaintiffs' Motion for Temporary Restraining Order and Preliminary Injunction. (Doc. 2). Defendants filed a Response in Opposition (Doc. 5); and Plaintiffs filed a Reply (Doc. 6).

On August 23, 2021, this Court held a hearing on Plaintiffs' Motion. (Doc. 18). At the hearing, Plaintiffs presented the testimony of Elizabeth Carpenter. (Doc. 21). After the hearing, the parties filed post-hearing briefs. (Docs. 24, 27, 29).

For the reasons that follow, Plaintiffs' Motion for Temporary Restraining Order and Preliminary Injunction is GRANTED.

I. BACKGROUND

Plaintiffs Akeem Fuller, Nick Evans, and Mark Linquist are paraprofessionals at Laura Farrell Elementary School (“Farrell School”). (Doc. 1, ¶1). The Farrell School is located in Franklin, Ohio, and is operated by Defendant Warren County Educational Service Center (“WC ESC”). (Id., ¶ 14). WC ESC is a creation of state statute and supports school districts by meeting the needs of students who require specialized and

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focused intervention and support. (Id., ¶ 9). The students at Farrell School have been identified as having severe emotional disabilities. (Doc. 11, Tom Isaacs Dep., PAGEID 314). There are one to two paraprofessionals in each classroom. (Id., PAGEID 316). Some paraprofessionals are not assigned to a classroom, but instead serve on a “Safety Care Team, ” which is a group of paraprofessionals who have a higher level of training to handle students who may be experiencing a “behavioral event.” (Id., PAGEID 318).

Defendant Tom Isaacs is the superintendent and chief administrative officer of WC ESC. (Doc. 1, ¶ 10). Defendant Pat Paré is the Senior Executive Director of Human Resources and Business Operations of WC ESC. (Id., ¶ 11). Defendant Alisha Dean is the Program Supervisor at the Farrell School. (Id., ¶ 12). Defendant Wiley Collett is the Onsite Supervisor at the Farrell School. (Id., ¶ 13). Plaintiffs bring their claims against the individual defendants in both their personal and official capacities.

The following recitation of facts is largely gathered from Plaintiffs' Complaint. For purposes of Plaintiffs' Motion for Preliminary Injunction, Defendants have not disputed the factual background included here.

In the fall of 2020, while working at Farrell School, Plaintiffs wore clothing and face masks which communicated social or political messages, including: “Black Lives Matter, ” “I Can't Breathe, ” “Unapologetically Black, ” and “Down With Racism.” (Doc. 1, ¶¶ 16, 18).

In September of 2020, Defendants Dean and Collett stopped Linquist in the hallway of the school. (Id., ¶ 18). Linquist was wearing a t-shirt with “Black Lives Matter” on it. (Id.) Collett informed Linquist that a parent had called the school and

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complained about the message on his t-shirt. (Id.) Collett told Linquist to be “careful” and “mindful” of what he was wearing. (Id.)

Around that same time, Fuller wore a face mask with the message “I can't breathe, ” in reference to George Floyd's death in May 2020. (Doc. 8-1, Akeem Fuller Dep., PAGEID 176). The school nurse complained to Collet that she was offended and upset by the mask. (Doc. 15, Wiley Collett Dep., PAGEID 568-69). Collett approached Fuller and told him that the administration had received a complaint about the mask. (Doc. 8-1, Akeem Fuller Dep., PAGEID 177). Collett asked that Fuller to remove the mask. (Id.) Fuller complied. (Id. at PAGEID 178).

Soon thereafter, Evans wore a t-shirt to school with the phrase “8 Minutes - 46 Seconds” on it, referring to the length of time George Floyd was restrained by police officers during the incident which led to his death. (Id., ¶ 20). Evans was told to report to Dean's office. (Id.) Dean informed Evans that someone from the adjacent neighborhood had seen Evans walking close to the school premises while wearing the shirt and called to complain that the t-shirt was offensive and should not be worn in or near a school setting. (Id.) Dean explained to Evans that the school “cannot be political.” (Id.) Dean told Evans that he could either remove the shirt, or wear it inside out. (Id.) Fearing discipline, Evans wore the t-shirt inside out to hide its message. (Id.)

In October of 2020, Fuller and Linquist met with the WC ESC administration to discuss the prohibition on messages regarding racism, police brutality, and racial inclusion. (Id., ¶¶ 21, 23). WC ESC administration told Fuller and Linquist that WC ESC would not alter its position on the subject. (Id., ¶ 23).

Plaintiffs bring the following claims: (1) violation of the Free Exercise Clause of

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the First Amendment; (2) viewpoint discrimination in violation of the First Amendment; (3) prior restraint in violation of the First Amendment; (4) disparate discriminatory impact in violation of the Equal Protection Clause of the Fourteenth Amendment; and (5) “disparate treatment.”

In their motion, Plaintiffs seek to enjoin Defendants from imposing restrictions on their right to exercise freedom of speech by wearing clothing and accessories that display social or political messaging. (Doc. 2). Plaintiffs explain that even though the motion for injunctive relief is predicated on violations of the Free Exercise Clause of the First Amendment, they have not abandoned their claims that the school enforced its speech policies more stringently and discriminatorily against African American employees in violation of the Equal Protection Clause of the Fourteenth Amendment. (Doc. 29, PAGEID 990).

II. ANALYSIS

A. Standard of Review

“Four factors determine when a court should grant a preliminary injunction: (1) whether the party moving for the injunction is facing immediate, irreparable harm, (2) the likelihood that the movant will succeed on the merits, (3) the balance of the equities, and (4) the public interest.” D.T. v. Sumner Cty. Sch., 942 F.3d 324, 326 (6th Cir. 2019) (citing Benisek v. Lamone, 138 S.Ct. 1942, 1943-44 (2018)). These four factors are “to be balanced, not prerequisites that must be met.” Jones v. City of Monroe, 341 F.3d 474, 476 (6th Cir. 2003) (citing In re DeLorean Motor Co., 755 F.2d 1223, 1228 (6th Cir. 1984)). However, a preliminary injunction is “extraordinary remedy which should be granted only if the movant carries his or her burden of proving that the circumstances

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clearly demand it.” Overstreet v. Lexington-Fayette Urban County Gov't, 305 F.3d 566, 573 (6th Cir. 2002).

B. Likelihood of success on the merits

1. 42 U.S.C. § 1983

Section 1983 creates no substantive rights, but merely provides remedies for deprivations of rights established elsewhere. Tuttle v. Oklahoma City, 471 U.S. 808 (1985). Section 1983 has two basic requirements: (1) state action that (2) deprived an individual of federal statutory or constitutional rights. Flint v. Kentucky Dept. of Corrections, 270 F.3d 340, 351 (6th Cir. 2001) (citing Bloch v. Ribar, 156 F.3d 673, 677 (6th Cir. 1998) and United of Omaha Life Ins. Co. v. Solomon, 960 F.2d 31, 33 (6th Cir. 1992)). In addition, WC ESC cannot be found liable unless Plaintiffs “can establish that an officially executed policy, or the toleration of a custom within the school [ ] leads to, causes, or results in the deprivation of a constitutionally protected right.” See Doe v. Claiborne Cnty., 103 F.3d 495, 507 (6th Cir. 1996) (citing Monell v. Dept. of Soc. Servs., 436 U.S. 658, 690-91, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978)). Plaintiffs' official-capacity claims against the individual Defendants in this case “represent only another way of pleading an action against an entity of which an officer is an agent.” See Kentucky v. Graham, 473 U.S. 159, 165-66, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985). In contrast, the personal-capacity suits against the individual Defendants “seek to impose personal liability upon a government official for actions he takes under color of state law.” Id.

Here, because the parties have provided no discussion of these topics, the Court assumes for purposes of deciding the motion that the parties agree that the individual Defendants were acting under the color of state law; and that the WC ESC is subject to

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liability pursuant to an officially executed policy or custom. The only dispute is whether Defendants' actions violated Plaintiffs' First Amendment rights.

2. First Amendment

The First Amendment prohibits the government from “abridging the freedom of speech.” U.S. Const. Amend. I. Even though Plaintiffs state that the motion for injunctive relief is based the First Amendment, and not their equal protection claim, they repeatedly conflate the two claims. For example, at one point, Plaintiffs argue that “Defendants' policy and practice of targeting Black Paraprofessionals and limiting what messaging and clothing can be worn on their person has deprived them of fundamental First Amendment rights.” (Doc. 2, PAGEID 29). At the hearing, and in the post-hearing briefing, the parties seem to add new theories and arguments regarding whether Defendants' policy is unconstitutionally vague, or overbroad (see, e.g., Doc. 21, PAGEID 658), but these claims were not set forth in the Complaint.

To make the Court's analysis more challenging, it is not clear from the pleadings the exact policy which is being challenged. In a footnote in Plaintiffs' Complaint, Plaintiffs reference WC ESC's dress code, which provides that the administration has “the right to specify appropriate dress and grooming guidelines for all employees;” and requires employees to report to work “physically clean, neat, modest, and well groomed, and in a manner consistent with community standards.” (Doc. 1, PAGEID 6).^[1] In their post-hearing briefing,...