School District Can't "Prohibit All [Parents'] Speech on School Property That It Finds 'Offensive or Inappropriate'"

An excerpt from the 11,000-word opinion in Hartzell v. Marana Unified School Dist., decided today by Ninth Circuit Judge Milan Smith, joined by Judges Wallace Tashima and Bridget Bade:

Following an incident on February 7, 2020, at Dove Mountain K-CSTEM school (Dove Mountain), Plaintiff-Appellant Rebecca Hartzell was banned from the school premises. Hartzell claims that she was banned from the school in retaliation for her protected speech. Defendants-Appellees, the Marana Unified School District (the District) and Andrea Divijak, the principal at Dove Mountain, assert that Hartzell was banned because of her conduct; specifically, they allege that Hartzell assaulted Divijak….

Hartzell is the parent of eight school-aged children, five of whom attended Dove Mountain during the 2019–20 school year. Divijak was serving as the principal of Dove Mountain at that time. In August 2019, the District opened Dove Mountain, a new kindergarten through eighth grade school. Dove Mountain is a part of and run by the District….

Hartzell has a master's degree in special education and a doctorate focusing on applied behavioral analysis and autism. She also became an associate professor of practice at the University of Arizona, and a director of the master's program in applied behavioral analysis at that institution….

On February 7, 2020, Dove Mountain hosted an event where students presented projects they had been working on for a few months. Two of Hartzell's children were scheduled to present in different rooms simultaneously. While attending the event, Hartzell saw Divijak in a classroom and approached her. Hartzell was accompanied by one of her children, who attended preschool at Dove Mountain. No other children were present.

Hartzell "sarcastically" thanked Divijak for "making [her] choose which kid [she was] going to support again today." Hartzell testified that she began to walk away, but Divijak responded that she was "sorry that [Hartzell was] just never happy." Hartzell testified that she turned back around and explained her proposed solution to the scheduling conflicts.

According to Hartzell, Divijak refused to speak with her further and began to walk away while Hartzell was speaking. Hartzell says she responded that it seemed she and Divijak were never able to have a conversation. However, Hartzell denies doing anything to stop Divijak from walking away and specifically denies grabbing Divijak's wrist. Even so, Hartzell acknowledges that she accidentally touched Divijak's arm as she walked by and that she said "stop, I'm talking to you." Hartzell recalls that Divijak shouted, "Don't touch me." Hartzell testified that Divijak continued walking away and that Hartzell said, "Forget it. I'll just contact the District."

After her interaction with Divijak, Hartzell went to the room where one of her daughters was giving a presentation. Hartzell testified that she was approached by a hall monitor, who ordered Hartzell to leave immediately, informed her that the police would be called if she did not leave, and escorted her out of the building. Hartzell went to the parking lot and was approached by Marana Police Department Officer Jerry Ysaguirre.

According to Ysaguirre, Hartzell admitted placing her hand on top of Divijak's wrist to stop her so they could continue speaking. Hartzell said she immediately regretted this action and removed her hand. Hartzell insisted to Ysaguirre that she never grabbed Divijak's wrist.

Ysaguirre advised Hartzell about the procedures for investigating "an assault" involving a teacher. He told her that she was "trespassed from" the entire school property and that, while her children could continue to attend Dove Mountain, Hartzell could not enter school property and would have to arrange for someone else to drop off and pick up her children. Ysaguirre explained that Hartzell could be arrested for trespassing if she returned. Ysaguirre told Hartzell that the order would remain in effect until the District decided otherwise….

On March 30, 2020, the state filed misdemeanor assault charges against Hartzell in Marana Municipal Court for "knowingly touching another person with the intent to injury, insult of provoke such person," in violation of At the request of the town prosecutor, the charges were dismissed on September 22, 2020….

Hartzell sued, among other things arguing that she was excluded under "District Policy KFA," and that this policy is unconstitutional. The court allowed this case to go forward:

District Policy KFA … prohibits "[a]ny conduct intended to obstruct, disrupt, or interfere with" a school's operations, "[p]hysical or verbal abuse or threat of harm to any person on property owned or controlled by the District," and "[u]se of speech or language that is offensive or inappropriate to the limited forum of the public school educational environment." The policy provides that "[a]ny member of the general public considered by the Superintendent, or a person authorized by the Superintendent, to be in violation of these rules shall be instructed to leave the property of the District," and that "[f]ailure to obey the instruction may subject the person to criminal proceedings pursuant to A.R.S. 13-2911 [for trespassing.]" …

Policy KFA defines "interfer[ing] with or disrupt[ing]" an educational institution to include, among other things, "[u]se of speech or language that is offensive or inappropriate to the limited forum of the public school educational environment." "If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable." Because Policy KFA allows the District to prohibit speech that it finds "offensive or inappropriate," it runs afoul of this principle.

The District defends Policy KFA by arguing that schools nevertheless have substantial authority to regulate speech on school grounds. It is certainly true that "courts must apply the First Amendment 'in light of the special characteristics of the school environment.'"Even so, for "school officials to justify prohibition of a particular expression of opinion, [they] must be able to show that [their] action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint." "Certainly where there is no finding and no showing that engaging in the forbidden conduct would 'materially and substantially interfere with the requirements of appropriate discipline in the operation of the school,' the prohibition cannot be sustained."

Here, the District has failed to make this showing. First, Hartzell proffered testimony that she did not grab Divijak's arm, but merely accidentally touched Divijak's arm as she walked by. A reasonable jury could infer from this testimony that Hartzell was banned for her speech during her encounter with Divijak as opposed to any physical contact. "'[P]ure speech' … is entitled to comprehensive protection under the First Amendment."

Second, the District's interest in disciplining and protecting students was not in play. The speaker was a parent rather than a student, the parent was speaking to another adult, and the only child within earshot was the speaker's own. On these facts, the District does not have a special interest in regulating speech because it is not standing "in the place of parents," as sometimes occurs when regulating student speech.

Third, to be sure, schools have "an interest in protecting minors from exposure to vulgar and offensive spoken language." But although Hartzell's speech was critical and sarcastic, it was not vulgar or lewd like the speech described in Bethel. Bethel also recognized a school's interest in "prohibit[ing] the use of vulgar and offensive terms in public discourse." However, unlike a "school assembly or a classroom" with an "unsuspecting audience of … students," the need to teach students the "appropriate form of civil discourse" does not arise when the speech at issue is made by a parent to an administrator outside of the presence of students except for the parent's child….

Finally, although Hartzell's speech occurred on school property, Hartzell had been invited to attend the presentations of her children, and Divijak had been speaking with other parents. In that context, it was not disruptive or intrusive for Hartzell to approach Divijak and express concerns related to her children's education.

The District cannot constitutionally prohibit all speech on school property that it finds "offensive or inappropriate." Nor can the District prohibit that speech simply by defining it as disruptive or intrusive. Clearly, the District can prohibit offensive or inappropriate speech if it "materially and substantially interfere[s] with the requirements of appropriate discipline in the operation of the school[.]" Although "undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression," "facts which might reasonably have led school authorities to forecast substantial disruption of or material interference with school activities" could be different. Such facts are not present here.

As a result, the provision of Policy KFA barring "speech … that is offensive or inappropriate" is unconstitutional if the District applied it to ban Hartzell because of her criticism of Divijak….

Comments

[tuphat]

"approached by a hall monitor, who ordered Hartzell to leave" -- Damn, that's impressive. Back in the day, hall monitoring was a pretty passive job reserved for wimpy/nerdy kids like me.

[Dr. Ed 2]

Most schools now hire adults to do this.

[JasonT20]

Schools in Florida certainly don't have the budget for that.

[gormadoc]

I don't think they normally hire specifically for that job. At my school it was just another duty for some faculty.

[Dr. Ed 2]

Depends on the largess of the district.

Yes, I taught 6 classes, had one period of supervision, and one "free" period. But now, many districts have hired a cadre of largely mothers who never went to college as "aide" or "paraprofessionals" and they are not only hall monitors but school bus monitors.

Other districts may not have the money for this.

[Dr. Ed 2]

Other than the *former* K-12 teacher in me hoping that there was somehow a way for both women to lose, and I'd use choicer terms if I could, who did win here?

There are a lot of things that aren't clear here, starting with mother's wife's basis of a claim and how the district avoids responsibly for its agent's actions (the defamation at the college). I have trouble making this into an assault.

I wonder what the backstory on this is because it *is* rather stupid to schedule two children's events for the same time, and then trespassing the mother, the district has bought itself 5 discipline problems, I can assure you.

My guess is that three of the children belong to one of the wives and the other two belong to the other, and the first thing I learned as a student teacher was that almost every discipline problem came from a broken home.

And there is an incredible level of basic fascism in your average school district today-- they probably do think they can punish all critics. And on that basis, I have to ask who won?

[JasonT20]

Here, the District has failed to make this showing. First, Hartzell proffered testimony that she did not grab Divijak's arm, but merely accidentally touched Divijak's arm as she walked by. A reasonable jury could infer from this testimony that Hartzell was banned for her speech during her encounter with Divijak as opposed to any physical contact.

Eugene naturally focuses on the 1st Amendment angle to the case, but this is an incomplete description of the testimony surrounding the incident. That statement from the court that a jury could reasonably believe Hartzell's testimony is odd to me because it doesn't say why it is reasonable for a jury to believe Hartzell over the other testimony about her actions.

Ysaguirre reviewed the school’s security camera footage and determined that, although the actual grab was not seen on the video, Divijak’s reaction to the contact was more consistent with her own description of the incident. That same day, Roehm reviewed the surveillance video and reported to the District Superintendent, Doug Wilson, and the Assistant Superintendents, Carolyn Dumler and Kristin Reidy, that the “wrist grab is not clear.”

Sounds like it is undisputed that Hartzell did touch Divijak, and the disputed part is whether it was significant enough to warrant Divijak's reaction. But, something else not mentioned here is the history Hartzell herself admitted to of teachers and district officials viewing her as a "nasty parent" for the ways in which she 'advocated' for her children.

The court opinion here doesn't give enough detail or different perspectives to know the truth of whether she had earned the "nicknames" that she was told school teachers and officials gave her or whether it was the teachers and officials that deserve the scorn. But if the district's policy went too far and violated the 1st Amendment because of how broad it was, then it should be struck down so that it can be replaced with something that doesn't. That is what should happen, in my opinion as a former teacher for 21 years, because the truth is that parents can be abusive and harassing, and as this case in Florida shows, even assault school resource officers. If there are parents unhinged enough to do that to a law enforcement officer, even taking her taser from her after she tried to use it to defend herself, then you think a teacher would be able to deal with that?

[questioner7]

"why it is reasonable for a jury to believe Hartzell over the other" -- it's not _un_reasonable, hence it's reasonable. Enough to "allow the case to go forward".

"parents can be abusive and harassingeven assault" -- actual assaults are obviously different. But just verbal advocacy, nasty or not, should not get you banned from your kids' public school. Such advocacy is part of the constitutional right to peaceably petition the government for redress of grievances.

[JasonT20]

But just verbal advocacy, nasty or not, should not get you banned from your kids' public school. Such advocacy is part of the constitutional right to peaceably petition the government for redress of grievances.

Try going into the DMV and verbally abusing the clerks there because you think they took a bad photo of you for your license or something. There's advocating for your child fervently, and then there's harassment and abuse. If you're saying that teachers and administrators have to take that when a parent feels like unloading on them, then you'll find even fewer people wanting to go into teaching than is already the case. And more experienced teachers (like me) leaving because the job just isn't worth sacrificing our own health due to the stress.

[Rossami]

If the description above strikes you as "harassment and abuse" then you're too thin-skinned to be allowed out in public. And that means you are certainly too thin-skinned to hold a job as a school administrator. Customers are sometimes jerks and say mean things. That's part of life. Deal with it like an adult. Or don't and quit.

I'll also note that I consider your claim to be an "experienced teacher" to be less than credible since every teacher I've ever talked to or worked with says the biggest problems they have are with disengaged parents. Having a parent who wants to participate in their kid's education is a blessing, even if they are sometimes a jerk (or a helicopter).

[Dr. Ed 2]

No, the "experienced" teachers would argue that any parent who disagrees with them, no matter how politely, is a worse problem. Absolute power corrupts absolutely and they have absolute power.

[JasonT20]

Absolute power corrupts absolutely and they have absolute power.

JFC, most kids won't listen to us and keep their fucking phones away in class. For every parent that does interact with us in positive ways and takes our advice about how to help their children succeed in our classes, there is at least another one that acts like our job is to please them and do what they want us to do. (When are you going to let my kid retake that test that they didn't study for? My kid should be able to make up that work he didn't do in class three weeks ago, because he was playing games on his phone, and he'll still get full credit for it.) My message those kinds of parents:

"Sorry, but our job is to do what is best for your child, while also doing what is best for all of the children in our classes, while also not burning out, fucking up our own health from the stress, and being unable to continue in the profession."

When parents want us to do those things, and treat us like professionals that do want those things, then we love to have them working with us.

[JasonT20]

What, you think that the hypothetical DMV clerk has some obligation to sit there and take someone yelling at them over their license photo? That the managers couldn't tell the person to leave if they weren't going to be civil? You're right. Customers can be jerks and "say mean things." And guess what, the employees and managers don't have to let them do that, they can draw a line where they want about how much of a jerk a customer can be before they are asked to leave. Why should it be different for school employees? Because they work for the government instead of a business? Fine, 1st Amendment, they pay taxes, whatever. But that doesn't mean that government employees can't draw a line somewhere.

In the case from the article, the principal was walking away from Hartzell, which she had every right to do. She had other duties to take care of, such as being present and monitoring how the rest of the function was proceeding, and she was under no obligation to discuss something with that parent at that specific time, just because that's when the parent wanted to discuss it.

I'll also note that I consider your claim to be an "experienced teacher" to be less than credible since every teacher I've ever talked to or worked with says the biggest problems they have are with disengaged parents. Having a parent who wants to participate in their kid's education is a blessing, even if they are sometimes a jerk (or a helicopter).

And I find your statement to be less than credible because any teacher I've known*, would qualify that statement about their biggest problem being disengaged parents with how it is also a problem to have parents that are helicopter parents, want their child given special considerations that aren't earned or needed, that blame the teacher when the child won't do their work or put their phone away when told to, and too many things like that to list.

I don't want to have to make a choice about whether I'd rather have a parent that was such jerk that it made my job harder and more stressful, but paid attention to what was going on with their kid at school, vs. a parent that didn't even know whether they were going to school. Neither of those is good for the child or the teacher.

*After 21 years, I can guarantee that I've known, worked with, and had lengthy conversations about our jobs with more teachers than you've ever met, let alone the number of teachers with which you've had conversations about their jobs.

[MatthewSlyfield]

"the constitutional right to peaceably petition the government for redress of grievances."

The way I would read 1A, peaceably applies to the right to assemble, not to the right to petition the government for redress of grievances as an independent thing.

[Brett Bellmore]

"although the actual grab was not seen on the video, Divijak’s reaction to the contact was more consistent with her own description of the incident."

Note to self: If I ever want to accuse somebody of assault, I should theatrically throw myself to the floor as they brush past me.

[David Nieporent]

Note to self: If I ever want to accuse somebody of assault, I should theatrically throw myself to the floor as they brush past me.

Brett planning to transition to a career in professional soccer!

[Harvey Mosley]

I'm guessing he's too short for the NBA.

[KenveeB]

When there's conflicting evidence, the jury gets to decide. You have one person saying A, another saying B, and the video isn't clear. That's the definition of when you ask the jury who they believe.

[JasonT20]

Fair enough. It is reasonable for a jury to believe Hartzell, just like it is reasonable for a jury to believe the principal, then, right? It is their call after seeing them testify in person and considering how consistent their claims are with other evidence.

[KenveeB]

Yes, the opinion was just that the case can go forward because the jury *could* believe them.

[ReaderY]

It seems to me that the fact Hartzell concedes touching occurred means that the district had probable cause to believe she committed an assault at the time.

I understand that further examination indicates she did not in fact commit one.

But it seems to me that the existence of probable cause gave the school the right to remove her at the time. The subsequent determination that there was no an actual assault (based on the higher preponderance of tje evidence standard) means the school can’t ban her permanently and has to let her back in. But it does not make the school’s initial action illegitimate. Because there was probable cause, there was a legal basis for what the district did, and hence there was no illegal first amendment retaliation.

Both sides should just walk away from this, chill, stop paying their lawyers, accept that what happened was an unfortunate misunderstanding, and let bygones be bygones.

[MatthewSlyfield]

"It seems to me that the fact Hartzell concedes touching occurred means that the district had probable cause to believe she committed an assault at the time."

I disagree, it is not practical to treat every incidental physical contact as assault.

[Thought about __ all my life]

Well, there's the problem,I pay their salary, that is my child not thiers --- and they tell me what I can't say !!!!!

[MaverickNH]

Whether the parent’s hand inadvertently contacted the teacher’s wrist or whether she intentionally touched or briefly clasped the teacher’s wrist, she did not restrain the teacher from walking away without further response. The resultant accusation of assault and a ban from school property is way excessive, designed to be punitive and impose undue hardship on the parent.

While schools adopt Zero Tolerance policies of all sorts against students, parents and taxpayers, those same “customers” must tolerate increasing levels of abuse and disdain from schools and unions.

[Dr. Ed 2]

Exactly.

And I don't see anyone defending the teacher's attempt to get mother fired, and wanna bet she didn't also file with child protective?

[ReaderY]

One could equally argue that while kicking her off school premises one time over a misunderstanding about the wrist-touching was an over-reaction, it nonetheless doesn’t merit a big federal case, taking up a lot of the time of 12 citizen-jurors and a bunch of court personnel who could put their time more productively elsewhere, and hundreds of thousands of dollars in legal fees. One could argue that that’s an overreaction too. Just let her back in and everybody cool down and walk away from this.

Everybody should just get off their high horses, chill, stop the lawyers running their meters, stop taking up lots of everybody else’s time, and stop all the big drama with all these supposed issues of vital principle over this absurd teapot-sized tempest.

[Krayt]

I'm reminded of the this.

[MatthewSlyfield]

"One could equally argue that while kicking her off school premises one time over a misunderstanding about the wrist-touching was an over-reaction"

They didn't kick her off school premises one time. They banned her from school premises permanently.

Ysaguirre advised Hartzell about the procedures for investigating "an assault" involving a teacher. He told her that she was "trespassed from" the entire school property and that, while her children could continue to attend Dove Mountain, Hartzell could not enter school property and would have to arrange for someone else to drop off and pick up her children.

Yeah kicking her off school property once might have been reasonable. But that's not what happened.

[Dr. Ed 2]

Hopefully Secretary McMahon will put an end to some of this fascism...

[Satchmo_Lives]

Anything attempted will immediately be halted by the courts.