Norris ex rel. A.M. v. Cape Elizabeth Sch. Dist., No. 19-2167

CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)
Writing for the CourtLYNCH, Circuit Judge.
Citation969 F.3d 12
Parties Shael NORRIS, ON BEHALF OF her minor child A.M., Plaintiff, Appellee, v. CAPE ELIZABETH SCHOOL DISTRICT ; Donna Wolfrom, Superintendent of Cape Elizabeth Schools; Jeffrey Shedd, Principal of Cape Elizabeth High School; Nathan Carpenter, Vice Principal of Cape Elizabeth High School, Defendants, Appellants.
Docket NumberNo. 19-2167
Decision Date06 August 2020

969 F.3d 12

Shael NORRIS, ON BEHALF OF her minor child A.M., Plaintiff, Appellee,
v.
CAPE ELIZABETH SCHOOL DISTRICT ; Donna Wolfrom, Superintendent of Cape Elizabeth Schools; Jeffrey Shedd, Principal of Cape Elizabeth High School; Nathan Carpenter, Vice Principal of Cape Elizabeth High School, Defendants, Appellants.

No. 19-2167

United States Court of Appeals, First Circuit.

August 6, 2020


Melissa A. Hewey, Portland, ME, Bruce W. Smith, Amy K. Olfene, Jeana M. McCormick, Portland, ME, and Drummond Woodsum on brief, for appellants.

Emma E. Bond, Zachary L. Heiden, Portland, ME, and the American Civil Liberties Union of Maine Foundation on brief, for appellee.

Scott H. Harris, Manchester, NH, Christina M. Denbow, Manchester, NH, McLane Middleton, Professional Association, Nicole J. Ligon, H. Jefferson Powell, and Ian C. Kalish, New York, NY, on brief for Ana Goble and First Amendment Clinic at Duke Law School, amicus curiae.

James B. Haddow, Portland, ME, Petruccelli, Martin & Haddow LLP, Jennifer Nelson, Gabriel Rottman, and The University of Virginia School of Law First Amendment Clinic on brief for the Maine Press Association, amicus curiae.

Peter Mancuso, Andrew Schmidt Law PLLC, and Diane L. Rosenfeld, Cambridge, MA, on brief for the Gender Violence Legal Policy Workshop at Harvard Law School, amicus curiae.

Before Lynch, Selya, and Barron, Circuit Judges.

LYNCH, Circuit Judge.

969 F.3d 14

The defendants in this case are Maine's Cape Elizabeth School District and officials of Cape Elizabeth High School. They appeal from the entry of a preliminary injunction prohibiting them from suspending A.M., a sophomore student at Cape Elizabeth High School at the time this suit was filed. They seek to suspend A.M. because on September 16, 2019, she anonymously posted a sticky note on a mirror in a Cape Elizabeth High School girls' bathroom that stated "THERE'S A RAPIST IN OUR SCHOOL AND YOU KNOW WHO IT IS." The defendants investigated the note after another student brought it to them promptly and they concluded that it constituted bullying under the school's policies, which warranted imposing a three-day suspension on A.M.

A.M., through her mother Shael Norris, filed a complaint requesting that the district court enjoin the defendants from suspending her on the grounds that (1) the suspension violated her "right to free expression under the First Amendment to the U.S. Constitution, as applied to the states by the Fourteenth Amendment and 42 U.S.C. § 1983"; and (2) the defendants violated Title IX of the Education Amendments of 1972 by retaliating against her for making a complaint. A.M. also moved for a preliminary injunction, which the district court granted based on A.M.'s First Amendment claim. A.M. ex rel. Norris v. Cape Elizabeth Sch. Dist., 422 F. Supp. 3d 353, 358 (D. Me. 2019).

We do not endorse the district court's precise reasoning, but for the reasons described below, we hold the district court did not abuse its discretion in granting the preliminary injunction.

I.

We describe the facts as alleged in the complaint and supported by the evidence at the preliminary injunction hearing. At the time this suit was filed, A.M. was a fifteen-year-old sophomore at Cape Elizabeth High School ("Cape Elizabeth H.S." or "the school"). The defendants are Cape Elizabeth School District, Superintendent of Cape Elizabeth Schools Donna Wolfrom, Principal of Cape Elizabeth H.S. Jeffrey Shedd, and Vice Principal of Cape Elizabeth H.S. Nathan Carpenter.

A. Facts

On September 16, 2019, A.M. placed a sticky note on a mirror in a second-floor Cape Elizabeth H.S. girls' bathroom that read "THERE'S A RAPIST IN OUR SCHOOL AND YOU KNOW WHO IT IS." The sticky note was unsigned. The note did not identify who committed the "rape" or the gender of the "rapist." It also did not state where or when the "rape" occurred. It did not identify who

969 F.3d 15

the "YOU" was or the purported basis of the knowledge of that "YOU."1

Another student found the note a few minutes later and arranged for a different student to bring it to the school administration. That same day, two other female students posted sticky notes in another bathroom at the school. One of the other notes stated that the school should "kick out the rapist," and another stated that the administration "is protecting him."2

Shedd and Carpenter initiated an investigation into all of the sticky notes' allegations, not just the sticky note authored by A.M., as well as into the identities of the authors. They treated the notes as complaints under Title IX. Over the course of ten days, they interviewed forty-seven students about the notes, including A.M., and reviewed security camera footage from inside the school. The sticky notes caused "alarm" and "fear" among some students at the school. In her first interview on September 16, A.M. did not disclose that she was the author of the first note.

Through the investigation, the school authorities say they came to believe that the sticky notes referenced a particular male student, "Student 1." The investigation uncovered that there had been earlier rumors among some members of the student body that Student 1 had committed sexual assault. The most widespread rumor centered around a video that had been circulated on social media allegedly depicting Student 1 about to commit sexual assault.3 The evidence shows that the video was made and circulated months before A.M. posted the note and that the rumors were circulating before A.M.'s note was posted. Some of the students had only heard about the video and had not seen it themselves. Some but not all of the students who had seen the video described it as a joke. The school administrators eventually obtained a copy of the video and viewed it. It did not depict Student 1 about to commit sexual

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assault, or sexual assault at all.4 The defendants do not assert that A.M. was the source of the rumors, nor do they assert that A.M. was responsible for the video.5

On September 17, 2019, Student 1 experienced ostracism from his peers and stayed out of school for the following seven or eight days. The school does not allege that A.M. was one of the students who ostracized Student 1. Student 1's mother informed the school that she believed Student 1's treatment at school had been caused by the sticky notes and that this treatment constituted bullying. She also expressed particular concern about learning who captioned the video that had been circulated among the students.

Also on September 17, 2019, school administrators interviewed A.M. for the second time. After being confronted with video evidence of her entering the bathroom around the time the first note was posted, A.M. admitted writing and posting the first note. The statements made by A.M. and the defendants during this interview are disputed. The defendants assert that during this interview, A.M. stated that her purpose for posting the note was to "instill[ ] fear in the school community and to alert the school community because she felt the [s]chool was not taking allegations of sexual assault seriously." They further state that A.M. specifically identified Student 1 as her note's target, described "incidents of alleged rape that [she] believed (without personal knowledge) that he was involved in," and "complained [he] was ‘idolized’ by the High School faculty."

A.M. denies making these statements and denies that Student 1 was her note's intended target. She states that the administrators repeatedly asked her to disclose the names of any perpetrators and victims of sexual assaults of which she was aware. She responded by describing two different incidents. The first one involved the video of Student 1, which she claims she only learned of after posting the note. The second incident involved a different student who had been accused of committing sexual assault. That student had been involved in a Title IX investigation conducted in the spring of 2019 which had substantiated the allegation of sexual assault. A.M. asserts the administrators told her that they were aware of the incidents that she had described and that they did not constitute "rape."

A.M. states that she "explained repeatedly" to the administrators that she "posted the note to address the problem of sexual assault in [the] school and because of concerns with the school's handling of sexual assault claims." A.M. further states that she did not intend to direct the term "rapist" in the note at any specific person; rather, she believes there are multiple people

969 F.3d 17

who have committed sexual assault at Cape Elizabeth H.S. She denies even knowing about the video of Student 1 until after she had posted the sticky note. A.M. asserts that the "YOU" in her sticky note is a reference to the school administration, which she believes has been inattentive to the needs of sexual assault survivors at Cape Elizabeth H.S.

On September 20, 2019, Shedd sent an email to Cape Elizabeth H.S. students and parents. The email contained a letter from him describing the sticky notes and stating that the notes "claimed adults in the school knew and implied that we...

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14 practice notes
  • Doe v. Hopkinton Pub. Sch., CIVIL ACTION NO. 19-11384-WGY
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • September 22, 2020
    ...6, 2020, after this Court conducted the case stated hearing, the First Circuit issued its opinion in Norris v. Cape Elizabeth Sch. Dist., 969 F.3d 12 (1st Cir. 2020), clarifying the First Amendment's Tinker standard as it applies to student speech and school discipline.Like the current case......
  • A.V. v. Plano Indep. Sch. Dist., Civil Action No. 4:21-CV-00508
    • United States
    • United States District Courts. 5th Circuit. United States District Court of Eastern District Texas
    • February 14, 2022
    ...on the reasons the school originally provided to the student for their suspension. Norris on behalf of A.M. v. Cape Elizabeth Sch. Dist. , 969 F.3d 12, 25–26 (1st Cir. 2020) (stating that in Tinker , "the Supreme Court considered only those justifications offered to the students when they w......
  • Doe v. Mills, 21-1826
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • October 19, 2021
    ...and its ultimate decision to deny the preliminary injunction for abuse of discretion.7 Norris ex rel. A.M. v. Cape Elizabeth Sch. Dist., 969 F.3d 12, 21 (1st Cir. 2020)."A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely......
  • Starbuck v. Williamsburg James City Cnty. Sch. Bd., 20-2334
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • March 15, 2022
    ...never had any opportunity to respond to the ultimate reason for the suspension. Cf. Norris ex rel. A.M. v. Cape Elizabeth Sch. Dist. , 969 F.3d 12, 26–28 (1st Cir. 2020) (holding that school officials cannot rely on post-hoc rationalizations asserted only after the start of litigation to de......
  • Request a trial to view additional results
13 cases
  • Doe v. Hopkinton Pub. Sch., CIVIL ACTION NO. 19-11384-WGY
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • September 22, 2020
    ...6, 2020, after this Court conducted the case stated hearing, the First Circuit issued its opinion in Norris v. Cape Elizabeth Sch. Dist., 969 F.3d 12 (1st Cir. 2020), clarifying the First Amendment's Tinker standard as it applies to student speech and school discipline.Like the current case......
  • Doe v. Mills, 21-1826
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • October 19, 2021
    ...and its ultimate decision to deny the preliminary injunction for abuse of discretion.7 Norris ex rel. A.M. v. Cape Elizabeth Sch. Dist., 969 F.3d 12, 21 (1st Cir. 2020)."A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely......
  • Starbuck v. Williamsburg James City Cnty. Sch. Bd., 20-2334
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • March 15, 2022
    ...never had any opportunity to respond to the ultimate reason for the suspension. Cf. Norris ex rel. A.M. v. Cape Elizabeth Sch. Dist. , 969 F.3d 12, 26–28 (1st Cir. 2020) (holding that school officials cannot rely on post-hoc rationalizations asserted only after the start of litigation to de......
  • Cushing v. Packard, Civil No. 21-cv-147-LM
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of New Hampshire
    • February 22, 2021
    ...these four factors, the first—likelihood of success on the merits—is the most important. Norris ex rel. A.M. v. Cape Elizabeth Sch. Dist., 969 F.3d 12, 22 (1st Cir. 2020). If the plaintiff cannot demonstrate that he is likely to succeed on the merits, the request for a preliminary injunctio......
  • Request a trial to view additional results

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