Myers v. Loudoun County School Bd.

Citation500 F.Supp.2d 539
Decision Date23 July 2007
Docket NumberCivil No. 07-CV-200.
CourtU.S. District Court — Eastern District of Virginia
PartiesEdward R. MYERS, Plaintiff, v. LOUDOUN COUNTY SCHOOL BOARD, et al., Defendants.

Edward R. Myers, Sterling, VA, pro se.

Dennis Patrick Lacy, Jr., Reed Smith LLP, Richmond, VA, for Defendants.

MEMORANDUM OPINION

CACHERIS, District Judge.

This matter is before the Court on Defendants' motion to dismiss or in the alternative for summary judgment. For the following reasons, the Court will Grant Defendants' motion.

I. Background

Plaintiff Edward Myers, ("Myers"), acting pro se, brings suit against the Loudoun County School Board ("the School Board") and Dr. Edgar B. Hatrick ("Hatrick"), School Board superintendent. Plaintiff is the father of three children who are students in Loudoun County Public Schools ("LCPS"),1 and a member of the Anabaptist Mennonite faith, which, according to Plaintiff, condemns the mixture of church and state. Plaintiff has been involved in a self-professed "long-running dispute with LCPS over [its] patriotic curriculum."2 Having lost his previous constitutional challenge, Myers began to actively protest LCPS's daily recital of the pledge of allegiance by handing out flyers and attempting to place advertisements in school publications.

On March 26, 2004, Plaintiff requested an advertisement in the 2003-2004 Sugarland Elementary yearbook and submitted four dollars for payment. The proposed advertisement read:

Tired of civil religion exercises in public schools? Try this pledge alternative: I pledge hell's legions to the rag of the united states of hysteria, and screw the public, make them stand, one nation, dumber than cod, so liberty and justice fall.

(Def.'s Reply Brf. Ex B). On March 30, 2004, Sugarland Principal Jennifer Ostrowski ("Ostrowski") returned Plaintiffs payment and informed him that the advertisement request was untimely. Although the reason for denial given by Ms. Ostrowski was untimeliness, she also noted that the proposed message was inappropriate for inclusion in an elementary school yearbook.

On September 20, 2005, Plaintiff handed out leaflets on the sidewalk adjacent to Dominion High School in Loudoun County, Virginia, resulting in numerous complaints from students and parents. Following these complaints, a security guard informed Plaintiff that he could not hand out leaflets on the sidewalk. Plaintiff then emailed school officials and stated his intent to resume distribution of leaflets on the sidewalk and his belief that the school lacked the authority to prevent him from doing so. (Def.'s Reply Br. Ex. A). LCPS Deputy Superintendent Ned Waterhouse ("Waterhouse") agreed that the school lacked jurisdiction, and notified the High School Principal John Brewer ("Brewer") that Myers was permitted to distribute leaflets on the sidewalk. Since that time, Plaintiff has "not been prevented from side-walk leaflet distribution by any employees of LCPS.

On July 30, 2006, Plaintiff remitted a check for seventy-five dollars in an attempt to purchase a business card advertisement in the fall 2006 athletic program for Dominion High School. The proposed advertisement contained the web address: "www.CivilReligionSucks.com" and advertised "flag desecration products." On August 4, 2006, Myers was informed that use of the word "sucks" was inappropriate for inclusion in an advertisement for a LCPS athletic program. Plaintiff attempted to alleviate this problem by changing "sucks" to "sux" in the web address. This subsequent request was also denied as inappropriate.

In September 2006, Plaintiff requested permission to distribute a flyer to every student at Sugarland Elementary through the "Thursday Folders,"3 and to the students at Seneca Ridge Middle and Dominion High schools during Constitution Week.4 The requests were denied by LCPS on the grounds that there was no forum for flyer distribution in homerooms at the High School and Middle School, and the Thursday Folders were limited to school employees and school-related entities. Plaintiff also alleged that a request to include an advertisement in the High School newspaper, The Torch, was also denied.5

On March 2, 2007, Myers brought the instant action, pro se, alleging violations of his fundamental right to direct the upbringing of his children, as well as violations of his First Amendment right to free speech and his right to petition the government. Plaintiff filed this action against both the School Board and Dr. Edgar Hatrick. In his Complaint, Myers requests injunctive and declaratory relief against the School, including curriculum modifications and access to advertising space in newsletters, yearbooks, school newspapers, sports programs, and literature racks such as the Thursday Folders.6 On April 30, 2007 Defendants filed a motion to dismiss or alternatively for summary judgment. Defendants request the dismissal of Dr. Hatrick as an individual, as well as dismissal, or alternatively summary judgment on: (1) Plaintiffs request for curriculum modification; (2) Plaintiffs right to petition claim; and (3) Plaintiffs free speech claims. These motions are currently before the Court.

II. Standard of Review

A Rule 12(b)(6) motion to dismiss tests the legal sufficiency of the complaint. See Randall v. United States, 30 F.3d 518, 522 (4th Cir.1994). It should be denied unless "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief."7 De Sole v. United States, 947 F.2d 1169, 1177 (4th Cir.1991) (citations omitted); see also Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957).

Where "matters outside the pleading are presented to and not excluded by the court," a 12(b)(6) motion may be converted to a motion for summary judgment. Fed. R.Civ.P. 12(b). In such an instance, the court is required to give all parties "reasonable opportunity to present all material made pertinent to such motion by Rule 56." Fed.R.Civ.P. 12(b); see also Plante v. Shivar, 540 F.2d 1233, 1235 (4th Cir. 1976). According to the Fourth Circuit, "reasonable opportunity includes some indication by the court to all parties that it is treating the 12(b)(6) motion as a motion for summary judgment, with the consequent right in the opposing party to file counter affidavits or to pursue reasonable discovery." Plante v. Shivar, 540 F.2d 1233, 1235 (4th Cir.1976)(quoting Johnson v. RAC Corp., 491 F.2d 510, 513 (4th Cir. 1974)). Moreover, Roseboro v. Garrison, 528 F.2d 309, 310 (4th Cir.1975), which addresses procedural safeguards for pro se litigants, also requires that before granting a motion for summary judgment, "the pro se plaintiff must be advised of his right to file counter affidavits or other responsive material and that he be alerted to the fact that his failure to so respond might result in the entry of summary judgment against him." Davis v. Zahradnick, 600 F.2d 458, 460 (4th Cir.1979) (discussing Roseboro requirements).8

III. Analysis

The Court will first address the various claims in the complaint asserted on behalf of Plaintiffs children and an unidentified friend of his children. The Fourth Circuit has already determined that, while Plaintiff has a right to advocate on his own behalf pro se, he is barred from advocating on behalf of his children. See Myers v. Loudoun Co. Public Schools, 418 F.3d 395, 399-401 (4th Cir.2005). This holding certainly extends to unrelated minors that are merely friends of Plaintiffs children. Accordingly, all claims asserted on behalf of Plaintiffs children or other persons will be dismissed pursuant to the Fourth Circuit's ruling in Plaintiffs first action, and the Court will consider only Plaintiffs personal constitutional claims.

A) Plaintiff's Request to Redraft Curriculum

Plaintiff first asks this Court to mandate various curricular and procedural changes in LCPS to accommodate the unique set of beliefs that he proscribes for his children. It is axiomatic that the Bill of Rights serves as an aegis of protection for the insular minority from what Alexis De Tocqueville coined "the tyranny of the majority," and that under this regime, it is essential that each citizen be afforded the same set of fundamental rights necessary for a free and open society. This umbrella of rights does not exclude viewpoints unacceptable to the majority or embraced by only a few. Nevertheless, courts must carefully draw a line between protection of individual interests and interference with public administration. This is particularly true with judicial imposition on the administration of public schools. See Goss v. Lopez, 419 U.S. 565, 578, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975); Vernonia School Dist. 47J v. Acton, 515 U.S. 646, 656-57, 115 S.Ct. 2386, 132 L.Ed.2d 564 (1995).

In the instant action, Plaintiffs requests for curricular and procedural changes at LCPS are grounded in his right to direct the upbringing of his children. It is well settled that the rights protected in the substantive due process shelter of the Fourteenth Amendment include the right to "bring up children" as one sees fit. Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 67 L.Ed. 1042 (1923). However, this fundamental right is not unbounded and the state may impose restraints and requirements that, touch the lives of children in direct conflict with the wishes of their parents. See Bellotti v. Baird 443 U.S. 622, 639 n. 18, 99 S.Ct. 3035, 61 L.Ed.2d 797 (1979)(recognizing that the "constitutional parental right" to direct upbringing of one's child protects only "against undue, adverse interference by the state").

With respect to potential conflicts between the state's duty to educate its citizens and the parents' rights to direct the upbringing of their children, two general rights have emerged: (1) the state cannot mandate that children attend only public schools; see Pierce v. Soc'y of Sisters, 268 U.S. 510, 535, 45 S.Ct....

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