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Ninth Circuit:
Sovereign Immunity Is No Protection Where Challenged Conduct Might Recur
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals has held—in a case by a farm that engages in historical reenactments against a school district that ceased allowing schools to attend the performances after the owner of the farm posted political tweets causing parent complaints—that state actors cannot avoid a constitutional challenge to a policy by voluntarily stopping conduct in the face of litigation and claiming sovereign immunity.
A panel, in a memoranda decision filed Wednesday, affirmed an order granting final judgment in favor of the school district and related parties on a motion for summary judgment by District Judge Jesus G. Bernal. Senior Circuit Judge Dorothy W. Nelson and Circuit Judge Lawrence VanDyke joined in the majority decision and Circuit Judge Gabriel P. Sanchez dissented.
The panel said that the case was one in which they must “resolve the interplay between the voluntary-cessation exception to mootness and Eleventh Amendment immunity.”
Appealing the judgment were Riley’s American Heritage Farms and its owner James Patrick Riley, who sued the Claremont Unified School District, Superintendent James Elsasser, Principal of Chaparral Elementary School Ann O’Connor, and school board members Steven Llanusa, Hilary LaConte, Beth Bingham, Nancy Treser Osgood, and David S. Nemer in October 2018.
The suit followed a decision by the district to direct its schools to cancel previously booked field trips.
The plaintiffs allege violations of their First and Fourteenth Amendment rights under 42 U.S.C. §§1983 and 1985 and seek compensatory and injunctive relief.
Bernal’s View
Bernal first dismissed the complaint following a motion summary judgment by the defendants in July 2020, saying:
“Plaintiffs would need to cite a case in which the court found that a school violates the First Amendment when it refuses to contract with a vendor in retaliation for the vendor’s speech….[T]his is true even if there is a triable issue regarding whether the decision to cancel the field trips was motivated by the desire to retaliate for Riley’s speech…. [T]he Court has likewise been unable to find [such a case]. Accordingly, any right that Defendants may have violated when they ended their relationship with Plaintiffs was not then clearly established. Defendants are therefore entitled to qualified immunity and summary judgment in their favor is appropriate on all claims.”
On March 17, 2022, the Ninth Circuit, in an opinion by Circuit Judge Sandra Segal Ikuta, reversed and remanded for a trial to resolve a factual dispute over whether the district maintains an ongoing policy in violation of the plaintiffs’ First Amendment rights.
After losing the appeal, CUSD responded by approving Riley’s Farms as a field trip vendor, adopting a resolution affirming the lack of a policy discouraging trips to Riley’s Farms and clarifying that the district does not permit employees to consider political beliefs or speech of persons affiliated with a proposed field trip.
On May 18, 2023, Bernal again issued judgment in favor of defendants, finding that the district’s changes made clear that there was no longer a dispute about the existence of an ongoing policy and there was “nothing more for the Court to do.”
Ninth Circuit’s View
The panel explained that the “Eleventh Amendment protects California school districts as arms of the state” and that “[t]hose protections yield only if there is an ongoing unconstitutional policy whose future applications can be enjoined in suits against state officers.”
The jurists declared that the voluntary cessation of a challenged practice does not moot a case unless later events make it clear that the allegedly unconstitutional behavior could not reasonably be expected to recur. In this case, they said:
“Given the policy’s lack of formality and relative novelty, how easily it can be reversed, and the lack of procedural safeguards to protect from arbitrary action, Appellees have not carried their heavy burden to show that the conduct cannot reasonably be expected to recur. Thus, for our purposes, the dispute about the existence of an ongoing policy is live.”
The judges said that “our holding is narrow” and opined:
“Because the later changes did not moot the policy, at summary judgment, the evidence creates an issue of material fact about whether there is such a policy and whether it is ongoing. A party cannot circumvent a court’s holding about a disputed fact by changing course in the midst of litigation—even if the party is a state actor.”
They continued:
“Riley’s Plaintiffs claim they are still feeling the effects of the policy. Trips to Riley’s Farm from CUSD schools, a long-standing tradition for schools around CUSD for 17 years, have not happened since the policy was enacted. Further, no procedural protections would prevent CUSD from blacklisting Riley’s Farms again in the future in the face of parental complaints. The Eleventh Amendment does not preclude us from acting in such circumstances.”
Concluding that the plaintiffs have a right to proceed to trial to determine whether there is an ongoing policy preventing field trips to the farm, the judges said:
“In short, there was a dispute of fact during the first appeal about whether there was an unconstitutional policy. That dispute remains—despite CUSD’s attempts to moot it out and thereby claim immunity.”
Sanchez’s View
Sanchez disagreed, saying “[b]ecause the district court correctly determined that Plaintiffs have failed to identify any material fact evincing an ongoing constitutional violation, I would affirm the district court’s order granting summary judgment for Defendants.”
Noting that the exception to sovereign immunity cited by the majority only applies to prospective injunctive relief in the face of ongoing violation of the law, Sanchez said:
“Plaintiffs present no evidence of an ongoing unconstitutional practice, policy, or procedure….Since 2022, Defendants have presented uncontroverted evidence that no CUSD policy or practice exists barring schools from attending a Riley’s Farm field trip.”
According to the complaint, Riley made comments on his personal social media account about “[t]he perceived radicalism of certain members of the ‘Black Lives Matter’ political movement, juxtaposed for ironic impact with the radicalism of the ISIS terrorist group” and criticized U.S. Sen. Elizabeth Warren, D-Mass., for “play[ing] up an insubstantial and possibly nonexistent Native American background…by a quintessentially plain-vanilla New Englander.”
He also posted comments saying “I just realized we may have been the last generation born with only two genders,” and “[w]hite supremacy? …You mean those 3 guys who live in two different counties in Arkansas? If there’s a problem in America today it’s BLACK supremacy, Farrakhan, Obama, Lebron James, etc….”
The case is Riley’s American Heritage Farms v. James Elsasser (Claremont Unified School District), 23-55516.
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