Monday, April 20, 2020
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Ninth Circuit:
Public School Principal’s Threat to Parent Is Nonactionable
Panel’s Majority Says That a Forewarning That If an Undocumented Alien Complained to School Board About a Policy, ICE Would Be Brought Into the Picture, Does Not Qualify As a Cognizable Claim
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals, in a 2-1 decision, has affirmed summary judgment in favor of the Pasadena Unified School District and others in an action brought by a mother, on her own behalf and that of her three children, based on the then-principal of an elementary school telling her that if she complained to the school board about a policy of his, he would summon Immigration and Customs Enforcement officers.
Circuit Judges Sandra Ikuta and Kenneth K. Lee formed the court’s majority. Their memorandum opinion, filed Thursday, affirms a decision by District Court Judge Percy Anderson of the Central District of California.
A dissent was authored by Algenon L. Marbley, chief judge of the District Court for the Southern District of Ohio, sitting by designation. He argued that the threat by the then-principal, Juan Ruelas, to contact Immigration and Customs Enforcement (“ICE”) if the mother spoke up against his lunch policy, “carries with it the threat of deportation,” and as such “cannot be characterized as a de minimis harm, or mere ‘bad-mouthing’ ” and “violates the First Amendment.”
‘Undocumented Immigrant’
The plaintiff, identified in the majority opinion as “an undocumented immigrant,” litigated as “Jane Doe.” Although a 2017 press statement by the Mexican American Legal Defense and Educational Fund, which represented her, pointed out that she “has been in the U.S. for 19 years,” there was no allegation that she is in the U.S. legally, and her complaint sets forth:
“Commencing in the fall 2015 semester, Plaintiff Jane Doe decreased her participation in family engagement events at the School to reduce the risk of retaliation or follow-through on Defendant Ruelas’s threat to call ICE.”
Doe’s complaint, filed in the Los Angeles Superior Court on Aug. 22, 2017, was removed by the defendants to federal court.
Allegations of Pleading
That complaint alleges (with paragraph numbering omitted):
“On or about August 25, 2015, Plaintiff Jane Doe met with Principal Ruelas and expressed concern regarding an apparent new School practice that involved throwing away students’ lunches if not consumed in a short period of time.
“During that meeting, Plaintiff Jane Doe informed Defendant Ruelas that she would file a formal complaint with the District concerning the School’s lunchtime practice if he did not address her concern.
“In response, Defendant Ruelas threatened to send ICE to Madison Elementary School if Plaintiff Jane Doe filed a complaint against him with the [school district], laughed at her, and then walked away.
“The events that occurred on or about August 25, 2015 have caused Plaintiff Jane Doe emotional distress.”
It also alleges emotional suffering on the part of her children who were students at Madison.
Majority’s Opinion
The majority held that the evidence did not reflect liability on the part of Ruelas or other individual defendants connected with the school district, and that the school district was therefore not liable, and that, in any event, prerequisites for municipal liability were not met.
Unlike Marbley—who declared that a First Amendment retaliation claim was established—the majority expressed no view as to whether that was so. They held that “in light of the mixed case law in this circuit,” it is not “clearly established” whether parents have a “right to be free from a school official’s threats,” and in the absence of certainty that such a right exists, qualified immunity is not defeated.
The opinion says in a footnote: “Although the district court did not address qualified immunity, we may affirm on the basis of qualified immunity where, as here, it is ‘supported by the record.’ ”
The plaintiff’s claim that Ruelas’s threat violated her right to due process by inhibiting her volunteer activities at the school was met with the comment:
“Doe’s Due Process claim fails because she does not have a protected property or liberty interest in volunteering.”
Equal Protection Claim
The opinion by Ikuta and Lee says in response to the plaintiff’s equal protection claim:
“While Ruelas’ threat may be unseemly and unbecoming of a school principal, Doe has not presented evidence that his threat—which was never acted upon—denied her or her children equal protection of the law.
“Doe claims that Ruelas’ threat caused her children emotional distress, interfering with their equal education opportunities. She relies on Brown v. Board of Education to argue that psychological impact on children can violate the equal protection clause. But Ruelas’ single instance of a threat—no matter how inappropriate—cannot compare to the shameful chapter in our nation’s history of sustained and systematic segregation. Moreover, the Brown court relied on expert evidence that long-standing segregation policies had a psychological effect on minority students and hindered their ability to learn….Doe, on the other hand, has not presented any such evidence.
“Doe’s Equal Protection claim also fails because it amounts to a First Amendment retaliation claim, not an Equal Protection claim. Doe has not shown that Ruelas threatened her because of her immigration status.”
Visiting Judge’s Dissent
Marbley found merit in the equal protection claim, asserting:
“The stigma and loss of dignity from the school principal’s threat to call immigration authorities on the Student Plaintiffs’ mother singled [her and her children] out for discriminatory treatment on the basis of their national origin in violation of the Equal Protection Clause. This stigma is a recognized harm that inherently interferes with their ability equally to access education. Indeed, this reasoning is fundamental to the desegregation cases.”
He drew attention to language in Brown v. Board of Education that it is the “feeling of inferiority” on the part of students who are segregated based on their race “that may affect their hearts and minds in a way unlikely ever to be undone.”
The judge contended:
“The majority erroneously concludes Principal Ruelas’s threat was motivated only by Doe’s intention to file a complaint and therefore should be analyzed exclusively under the First Amendment. The majority’s approach ignores that the heart of Ruelas’s threat—to call immigration enforcement—was motivated, at least in part, by Plaintiffs’ perceived national origin.”
Qualified Immunity
He disputed the view that qualified immunity applies, insisting that the right to be free from retaliation based on the exercise of free speech is well established.
Marbley also said:
“I would find Plaintiff has at least alleged a triable issue of material fact as to whether her Due Process right to volunteer at her children’s school were violated by Ruelas’s threat to call immigration enforcement.”
Marbley contested the majority’s conclusion that—aside from the issue of the individual defendants’ liability—municipal liability was precluded. Such liability, he noted, may be founded on a “deliberate indifference” to a recognition of constitutional rights, and said:
“Plaintiff alleges she repeatedly made the School Board, the District’s final policymaking authority, aware of Ruelas’s threats, creating a triable issue of fact as to whether the school district’s inaction constituted deliberate indifference to her constitutional rights.”
The case is Doe v. Pasadena Unified School District, 18-56436.
Ruelas’s overall conduct as principal led to other litigation and a transfer to a different post in the school district.
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