Father-principal public assembly dispute goes to trial

This case is a horse of a different color, clarifying what it takes to win a freedom of assembly case against a public school district that kicked a father off the property and away from other school events in retaliation for speaking out against his daughter's bullying by the school principal.

The case is Johnson v. Perry, decided on June 8. Johnson is the father. His daughter was a school athlete. The principal, Perry, bullied the daughter into remaining on the girls varsity basketball team. Plaintiff objected to the bullying, and in retaliation the principal barred him from non-sporting events on school property. Believing the father a danger to the school and the staff (the principal and dad got into some heated arguments over the bullying), the principal also banned the father from sports events on school property and from all school events away from school property. As the Second Circuit (Kearse, Lohier and Jacobs) notes, "each aspect warrants particularized analysis." In other words, each expulsion order requires a separate constitutional analysis. The case drives home a point that I love to make: constitutional law is more complicated than you think.

First, we look at the expulsion from school property in general. The Court notes that "precedents as to whether a parent has a First Amendment right of access to school property are scarce. If such a right exists ... it is not limitless." The Court of Appeals notes that plaintiff has not cited any cases holding that parents have an unlimited right of access to school property. In addition, school officials do have a duty to prevent boisterous and threatening conduct on campus. What it all means is that the principal gets qualified immunity on this issue because First Amendment case law is not clearly established on the unlimited right of access.

As for the order expelling the parent from the school for athletic competitions, dad has a case. While the school is a limited public forum in the context of sporting events (meaning you can kick people out for any rational basis and without discriminating on the basis of viewpoint), people are actually encouraged to be boisterous and rowdy during sporting events, so the father's alleged boisterous behavior is no justification. If the jury believes the father, he was expelled from the on-campus sporting events because of the father's viewpoint and that the expulsion was not reasonable. The Court writes:

The jury could permissibly find that Perry had repeatedly bullied JD, that Perry had falsely denied bullying her and maligned her, and that Johnson had vehemently complained of the bullying and the falsehoods. The jury could further infer that Johnson presented no threat of disruption or of harm to anyone--nor even any specter of intimidation, his daughter having already withdrawn from the varsity team before imposition of the ban--and that Perry's motive in banning Johnson from the Capital Prep limited public forum was to punish him for having expressed his views that Perry had engaged in bullying and falsification.

The principal also banned the father from attending any sporting events beyond school property. This is an easier call for the Court of Appeals. "First, the distinction between school regulations applicable on school property and those targeting events beyond school property is one that other Circuits, in assessing whether school authorities' restrictions violated First Amendment rights, had found important, and indeed dispositive." The principal cannot get qualified immunity on this issue. Interestingly, Judge Kearse cites cases from around the country in denying qualified immunity (judges usually only look to cases from the Supreme Court and their own Circuit on determining if the law was clearly established). In addition, the principal had actually banned pop from attending a high school sporting event held at Mohegan Sun, a private entity. If the jury finds that the father was not a threat to community and that the expulsion order was in retaliation for his speech, then the principal has no right to do that. This issue -- along with the on-campus athletic expulsion -- goes to the jury.