The Volokh Conspiracy
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Parent Submits Photo of School Postings to LibsOfTikTok, Gets Restricted from Accessing School Property or Events
The court has allowed plaintiff's First Amendment claim against School District decisionmakers based on this to go forward.
Some excerpts from today's long decision by Judge Eric Melgren (D. Kan.) in Schmidt v. Huff (see also this post for the analysis of a separate First Amendment claim that Schmidt also brought):
On February 3, 2025, Plaintiff visited [Gardner-Edgerton High School] in the evening to prepare snack bags for the next day [in her capacity as volunteer for her son's wrestling team]…. After she finished, Plaintiff went upstairs to the second floor and found the room number associated with a promotional poster for the Gay Straight Alliance Club. The classroom's lights were already on, and the door was open. Plaintiff took pictures of the classroom door, posters displayed on the classroom walls, and books stacked on the classroom bookshelves. The classroom door had multiple posters and stickers on it, including the teacher's last name.
"Libs of TikTok" is a popular social media account known for posting photos and videos of individuals or organizations that often express progressive or liberal views, especially those surrounding topics like LGBTQ+ rights, education, and identity. The account typically collects its content by browsing public posts on social media and reposting them, or by directly posting submissions from followers who send in content they believe aligns with the account's focus. Although named Libs of TikTok on all platforms, the account is active on multiple social media networks, including Instagram, X (formerly Twitter), Facebook, and TikTok.
Plaintiff sent the Libs of TikTok X account the pictures she took at the school. Plaintiff had no control over whether Libs of TikTok saw her photos, decided to post them, picked which ones to post, or would notify her when it did post her photos. On February 7, 2025, at 10:26 a.m., Libs of TikTok posted the photo of the classroom door that Plaintiff had submitted. The post's caption read, "School in Gardner, Kansas (@GEHSBlazers) Strip them of their funding immediately." …
That same afternoon, … [School District] Superintendent Huff confronted Plaintiff about taking pictures and sending them to Libs of TikTok. Defendant Huff told Plaintiff that her actions disrupted the school day because the teacher whose name was posted on the classroom door was so distraught by the online comments that she asked to leave for the rest of the school day.
On February 11, 2025, Defendant Huff emailed Plaintiff a letter on official District letterhead (the "Letter"). The Letter stated the following:
The purpose of this letter is to address certain actions taken by you in violation of Board policy and state law that have resulted in threats, intimidation, abuse and harassment directed at school district personnel and students which has caused a material disruption to the school environment. Specifically, during your visit to the high school on Monday February 3, 2025, you entered into and took several pictures of classrooms, offices and other areas in the school building to include a picture of the classroom door of a teacher, which was then posted on social media. The taking and posting of this picture was done without the permission and consent of the teacher or the school district and is in contravention of Board policies including Board Policy KGB [Concealed Observations], KBC [Media Relations], KGD [Disruptive Acts at School or School Activities], KGDA [Public Conduct on School Property], KFD [School Volunteers] & KM [Visitors to the School] and state law….
[B]ased on your conduct, you are no longer to serve on the ED Services committee. In addition, for the balance of this school year (through June 30, 2025), you are no longer welcome to be on school district property or attend school events or activities without express written permission from building administration. Your presence on school district grounds or at school events or activities, both home and away, without express written permission from building administration will be considered to be and enforced as a trespass.
That same day, Superintendent Huff instructed Assistant Superintendent Ben Boothe to contact the Gardner Police Department and file an incident report. The report detailed that Boothe "wished to trespass [Plaintiff] due to an incident on the evening February 3rd where she was observed walking through the school taking pictures of classrooms and entering some of the classrooms." Specifically, the incident involved "a photo shared of room 401 to a group called 'libs of tiktok' on 02/07/2025 at approximately 1026 hours." Boothe stated that Plaintiff "was on school video taking pictures of the outside of the door to room 401 then entered the room after taking the photo."
Boothe informed the officer that he would send Plaintiff a certified letter detailing her trespass from District property and providing the Gardner Police Department case number documenting the incident. The officer requested a copy of the Letter on February 13, 2025. The Letter was provided to the officer on February 20, 2025, which was uploaded into evidence.com along with the associated case number.
Principal Frank Bell was tasked with receiving Plaintiff's requests to be on school property or attend school events and determine whether they should be granted. Bell informed Plaintiff that she could attend her son's Senior Night at the high school on February 13, 2025. However, she was only allowed to access the "PE wing," as "all other parts of our building are off-limits." Beyond Senior Night, Bell informed Plaintiff that she was required to obtain permission from "GEHS building administration for permission to be anywhere on our campus."
When Plaintiff asked about whether she could attend her son's Graduation Commencement Ceremony, Bell responded, "I would hope that with time, you would demonstrate proper civic behavior to our high school community, and honor the expectations of the letter you received. I made a good faith effort on your behalf, and advocated for you to be able to attend Thursday's Senior Night without receiving a request directly from you." He added:
Candidly, it will take some time and healthy civic behavior on your part, to earn the school's trust once again. Your recent choices have created a major disruption at Gardner-Edgerton High School. Regretfully, I read nothing in your email response that even acknowledged any of that, or that you had any remorse. Even so, our hope is that time and good behavior will heal what has been done, and we can enjoy a productive parent-school partnership for the betterment of all students.
When Plaintiff again asked about the graduation ceremony, Bell replied, "you do not have our permission to attend any future GEHS functions, home or away, including our Graduation Commencement Ceremony." Additionally, Bell informed Plaintiff that she must schedule and attend all teacher conferences over Zoom or telephone….
Schmitd sued, and the court allowed her claims to go forward against the school officials:
[B]y banning Plaintiff from school property and events based on [the Libs Of Tik Tok] X post, Huff not only banned Plaintiff for her own speech, but also banned her for others' speech. Following the ban notice, Huff instructed Boothe to file a police report and issue a no-trespassing order, which carried with it legal penalties. This measure constitutes an injury sufficient to chill a person of ordinary firmness from continuing to speak.
Moreover, the ban was substantially motivated as a response to Plaintiff's speech. The Letter makes clear that Plaintiff's conduct—taking pictures later posted to social media—was the reason she was "no longer welcome to be on school district property or attend school events or activities without express written permission from building administration." Despite Huff's arguments that he never denied Plaintiff's request to attend an event, the fact that Plaintiff faced more administrative burdens than other parents because of her unpopular speech constitutes retaliation.
Lastly, the ban was overbroad and not narrowly tailored to address the specific "threat" Plaintiff posed. The ban effectively prevented Plaintiff from speaking at school board meetings, associating with her children and other parents, and attending church services without express written permission from building administration because all these events were held on school property….[R]egardless of whether Plaintiff chose to participate in these publicly available activities or whether her requests to participate were granted, requiring her to seek permission, when others were not required to do so, imposes a burden substantially greater than necessary to further the government's interests.
This is especially true when Huff has not identified a legitimate governmental interest. As this Court ruled in its last order for injunctive relief [see this post -EV], based on the plain language of the school policies cited to justify the ban, Plaintiff did not violate any of those policies. Additionally, even though Huff accused Plaintiff of violating state law, he did not cite any specific law in the Letter. Still, throughout this case, Huff has been unable to articulate how Plaintiff violated any state law. As such, Huff unconstitutionally retaliated against Plaintiff, and violated her First Amendment rights to speech, association, and religion in the process….
Defendant Boothe is primarily alleged to have filed a police report, at Huff's direction, to enforce the no trespass order against Plaintiff. Based on the information Boothe provided to the officer in the police report, the Court concludes that Boothe assisted Huff in retaliating against Plaintiff due to her opposing viewpoint. Specifically, Boothe told the officer that "there was a photo shared of room 401 to a group called 'libs of tiktok' on 02/07/2025 at approximately 1026 hours." He stated Plaintiff "was on school video taking pictures of the outside of the door to room 401 then entered the room after taking the photo." Specifically, Boothe "wished to trespass [Plaintiff] from all USD231 properties due the incident and previous incidents involving [Plaintiff]."
From this information, it is clear that Boothe's reason for filing a trespass report was substantially motivated as a response to Plaintiff's constitutionally protected speech. As previously stated, the legal penalties that flow from a violation such as trespass, constitute an action that would chill a person of ordinary firmness from continuing to engage in that activity….
Defendant Bell is primarily alleged to have been assigned the responsibility of receiving Plaintiff's requests to be on school property or attend school events and determine whether they should be granted. However, Bell's writings to Plaintiff demonstrate retaliation. For example, he reiterated that Plaintiff was "not to attend any events, home or away." He explained that this was because Plaintiff needed to "earn the school's trust once again." Specifically, Bell cited Plaintiff's "recent choices"—i.e., the Libs of TikTok incident—as having "created a major disruption at Gardner-Edgerton High School" that he hopes Plaintiff will acknowledge with remorse or at least "heal what has been done" through "time and good behavior."
Following this conversation, Plaintiff asked if she could attend her son's Graduation Commencement Ceremony. Bell responded, "Regarding our Graduation Commencement Ceremony, I would hope that with time, you would demonstrate proper civic behavior to our high school community, and honor the expectations of the letter you received." When Plaintiff again asked about the graduation ceremony, Bell stated, "you do not have our permission to attend any future GEHS functions, home or away, including our Graduation Commencement Ceremony."
Bell's statements are a clear indication of retaliation. Plaintiff's, or rather Libs of TikTok's, social media post was constitutionally protected speech. Blanketly banning a parent from all school property and events—both home and away—absent approval from the school principal would chill a person of ordinary firmness from continuing to engage in that activity.
This is especially true when the principal has denied the parent's request to attend important events in the life of her son, like graduation. Lastly, the ban on Plaintiff's ability to attend events was substantially motivated as a response to her speech. As such, because retaliation against Plaintiff for exercising her constitutional rights is a clearly established violation, Bell is not entitled to qualified immunity, so the Court denies his Motion….
Linus Baker represents plaintiff.
