Circuit rejects constitutional claims arising from school district expulsion orders

Courts do not like it when dangerous or even potentially dangerous people want to enter a public school building. The facts of this case suggest to me that the Second Circuit was not about to give this guy any leeway.

The case is Jones v. Bay Shore Union School Free School District, a summary order decided on December 20. In the late 1980s, Jones coached the girls' softball team when the district had reason to believe he had sexually assaulted four students, prompting his resignation. In 1998, after plaintiff tried to reengage with the district as an NAACP representative, school officials barred him from the property. In 2008, when Jones' daughter was attending school in the district, the school allowed him to enter the school to participate in her education. A few years later, the district told Jones he could address the Board of Education in writing instead of doing so in person. A few years later, in 2012, the district said he could address the Board in person if he gave advance notice.

Jones sues the district, arguing that he was barred from school property in retaliation for his First Amendment activity: advocating on behalf of minority students. The Court of Appeals agrees with the district court: Jones has no case. True, Jones had engaged in First Amendment activity when he wanted to be the NAACP representative. But the district had legitimate concerns about student safety. While the school superintendent had initially been receptive to Jones' attempt to be the NAACP representative back in 2008, he changed his mind when he learned about the sexual misconduct allegations.

The Second Circuit (Winter, Jacobs and Cabranes) does not provide much analysis, but this looks like a Mount Healthy case, where the government can repel First Amendment claims by showing it would have denied the plaintiff an entitlement even if the plaintiff had not engaged in First Amendment activity. I sometimes see this as a judgment call by the courts. How do you figure out the hypothetical question of whether the government would have reached its adverse decision even without the free speech? In this instance, the Second Circuit solves that puzzle quickly.

Jones also sues under the Due Process Clause over the procedures he must follow to attend school board meetings. The Second Circuit doesn't see it. While Jones has to provide advance notice before attending the meetings, that is a de minimus burden in light of the district's interest in protecting students from someone who was discharged from teaching for suspected sexual misconduct with students.