The Volokh Conspiracy
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"Moms for Liberty" Member's Suit Against School Board for Reporting Critic to Justice Dep't Can Proceed
From Judge Mark Goldsmith's opinion in Hernden v. Chippewa Valley Schools(E.D. Mich.); note that the question here is simply where the Board could potentially be held liable as an entity for the Bednard e-mail, not yet whether the e-mail actually violated Hernden's constitutional rights (for more, see the Complaint and the attached e-mails):
Hernden alleges that she is a police officer and the mother of a child who was educated in the Chippewa Valley school system in Clinton Township, Michigan. The Board allegedly implemented policies that limited in-person instruction during the COVID pandemic, and Hernden expressed her opposition to these policies by contacting members of the Board via Zoom, email, and in-person Board meetings.
On December 11, 2020, Defendant Elizabeth Pyden—a member of the Board serving as its secretary—allegedly forwarded a series of emails between Hernden and Pyden to Hernden's "then-supervisor, challenging Plaintiff's conduct as unbecoming of a police officer." Hernden submits that her supervisor then commenced an investigation to determine whether Hernden had violated any departmental rules, though Hernden was not disciplined.
In a subsequent email to the Board, Hernden allegedly "cautioned" the Board against "interrupting her public comments" and suggested that doing so violated the First Amendment. In Hernden's view, this email constituted "an implied threat of legal action against the Board and/or its individual members for perceived violations of Plaintiff's First Amendment rights during public comments at the Board's public meetings."
Hernden alleges that Defendant Frank Bednard—member and president of the Board— then forwarded Hernden's email to the United States Department of Justice (DOJ) with a complaint about her behavior. Bednard also informed the other members of the Board about his communication with the DOJ. The email from Bednard reflects that, on October 5, 2021, Bednard wrote an email addressed to "DOJ" that contained the following assertions, and then shared this communication with the Board members listserv:
I appreciate your looking into these groups of people who bring such threats to anybody that stands in their way. The email I included below is from Sandra Hernden. This woman, Sandra Hernden, comes to every meeting to harass our board, administration, and community….
We know that [Hernden and the group "Mothers of Liberty"] have not gained any traction as it is the same 10-15 people that show up every meeting to intimidate, threaten, and harass. Anything that could be done to curb this behavior by these people would be greatly appreciated by our board, administration, and our community.
Bednard included his title under his signature: "President, Chippewa Valley Schools Board of Education." Hernden now alleges:
Defendant Bednard's referral [to the DOJ] was an official act of the Board taken under color of law. Defendant Bednard's e-mail acknowledging the referral was sent to the Board as a whole, and it reflects joint action by each of its members. This e-mail reflects a collective decision of the Board, as well as Defendant Bednard individually.
Hernden brings claims under the First Amendment pursuant to 42 U.S.C. § 1983 against Pyden, Bednard, and the District for their alleged acts of retaliation—i.e., Pyden's email to Smith and Bednard's email to the DOJ—in response to Hernden's exercise of her free speech. Now before the Court is the District's motion to dismiss, which argues that Hernden cannot establish municipal liability against the District under Monell v. Dep't of Soc. Servs. (1978)….
"[M]unicipal liability under § 1983 attaches where—and only where—a deliberate choice to follow a course of action is made from among various alternatives by the official or officials responsible for establishing final policy with respect to the subject matter in question."
In the District's view, "[c]onspicuously absent from Plaintiff's Complaint … is any allegation that the Board of Education or the School District as an entity retaliated against Plaintiff in any manner." The parties debate the merits of two theories under which the District is potentially liable for the retaliatory acts alleged by Hernden: (i) Bednard's email to the DOJ constituted official Board policy, and (ii) the Board maintained a policy of inaction toward First Amendment violations….
The court rejected theory (ii), but allowed the case to go forward on theory (i):
[T]he District cannot escape allegations that the Board made a final decision potentially subjecting it to Monell liability merely because there is no vote or resolution on record. Under Michigan law, a local governing body like the Board can reach an official "decision" even if does not follow prescribed procedures….
The "critical question" is whether Hernden has plausibly alleged that Bednard's act of emailing the DOJ constituted "official policy" made by "local officials who have final policymaking authority," such that the Board made "a deliberate choice to follow a course of action." …
The Court finds it plausible that—based on Bednard (i) telling the DOJ that its assistance would be appreciated by "our board," (ii) speaking in the first-person plural voice, (iii) signing the email as the Board's president, and (iv) sharing the email with the Board after he sent it—the email "reflects a collective decision of the Board." These allegations suffice to maintain a claim against the District at the pleadings stage….
Stephen Delie of the Mackinac Center Legal Foundation represents plaintiff.
