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Johnson v. Cache County School District

United States District Court, D. Utah, Northern Division

July 3, 2018

COREY JOHNSON, on behalf of minor child S.J., Plaintiff,
v.
CACHE COUNTY SCHOOL DISTRICT, TERI CUTLER, DENISE MOURITSEN, DOUG SNOW, LORI REYNOLDS, KIRK MCCRAE, MIKE LIECHTY, and STEVEN NORTON, Defendants.

          MEMORANDUM DECISION AND ORDER

          DALE A. KIMBALL UNITED STATES DISTRICT JUDGE.

         This matter is before the court on Plaintiff Corey Johnson's Motion for Temporary Restraining Order and Preliminary Injunction. The parties fully briefed the motion on an expedited basis, and, on June 27, 2018, the court held an expedited hearing on the motion. At the hearing, Plaintiff was represented by Angela H. Elmore, and Defendants were represented by Kyle J. Kaiser and Darin B. Goff. The court heard testimony from S.J., had oral argument from counsel for both parties, and took the motion under advisement. After carefully considering the parties' arguments, as well as the law and facts relevant to the motion, the court enters the following Memorandum Decision and Order denying Plaintiff's motion for preliminary injunctive relief.

         FACTUAL BACKGROUND [1]

         On behalf of his minor daughter, S.J., who was dismissed from her high school cheerleading squad, Plaintiff Corey Johnson brought this §1983 civil rights action against Cache County School District, Teri Cutler, Principal of Mountain Crest High School, Denise Mouritsen, Assistant Principal of Mountain Crest High School, Doug Snow, Assistant Principal at Mountain Crest High School, Lori Reynolds, Cheerleading Advisor at Mountain Crest High School, Kirk McRae, Human Resources Director for Cache County School District, Mike Liechty, Deputy Superintendent, and Steven C. Norton, Superintendent of Cache County School District.

         S.J. is a student at Mountain Crest High School in Cache County, Utah. She tried out for Mountain Crest's cheerleading squad during the 2017-18 academic year and was accepted to the squad for the 2018-19 academic year. While trying out for the squad, S.J. was given paperwork to review, sign, and return. S.J. and her parents signed and returned the Cheer and Stunt Squad Constitution (“Cheer Constitution”), which has a provision that “[m]embers will be dismissed for improper social media usage.” The Cheer Constitution also required members of the squad to uphold all standards of the school constitution and conduct themselves appropriately at school and other schools because they are representing Mountain Crest wherever they go.

         During a meeting prior to tryouts, Lori Reynolds, the cheer squad advisor, spoke at length about social media usage. She explained to the potential cheerleaders that there was a history of inappropriate social media usage by Mountain Crest cheerleaders and it had escalated the sometimes violent rivalry Mountain Crest had with its neighboring high school, Ridgeline, and created conflict within Mountain Crest. She also told the potential cheerleaders that the cheerleaders would need to clean up their social media and instructed the prospective cheerleaders not to post any derogatory or nasty comments, to refrain from bullying or any “catty” comments, and not to post anything that would do dishonor to themselves, their family, or their school. Mountain Crest's cheerleading advisor expressed that the students would be representing the school and the students should be careful about what was posted. Reynolds told the prospective cheerleaders that she intended to change the view others had of Mountain Crest's cheerleaders to minimize the rivalry with Ridgeline and reduce the conflict within Mountain Crest and the cheer squad. Reynolds impression was that the students understood the parameters and that many students, including S.J., commented positively about the rule.

         On March 15, 2018, after learning that she made the squad, S.J. returned to the school for an ice cream social and new member informational meeting the school held for the girls who had made the squad. Mountain Crest's principal, Teri Cutler, one of Mountain Crest's vice presidents, Denise Mouritsen, and cheer coach Lori Reynolds were at the meeting. At the meeting, the students were given Mountain Crest shirts.

         The school administrators and Reynolds again warned the new squad members about proper social media usage. Reynolds directed the new cheerleaders not to post anything about making the cheerleading squad to social media until the formal announcement of the cheerleading squad was made at a school assembly the following day. The advisor reminded the students that students who were not selected would be disappointed and she told the students not to gloat about making the team. S.J. claims that she and her friends E.W. and S.E.J. were never instructed not to post an announcement to social media, but they did remember a vague instruction to “be nice.” However, the school officials and M.K., another new cheerleader, recalled the directive not to post until the assembly. M.K. stated that the instruction made an impression on her because she had already posted to SnapChat that she had made the squad and she deleted her post after the meeting because of the instruction. M.K. also recalled another new cheerleader, B.L., reminding the other students about how disappointing it had been for her not to make the squad the previous year and encouraging the group to follow Reynold's directions not to post anything to social media that night.

         At the meeting, Principal Cutler spoke to the new cheerleaders about their obligation to be kind to other students and told them that “nice matters.” The principal also stated that there was a “zero tolerance” policy for violations of the cheer constitution and that violations would result in expulsion from the cheer squad. The cheerleaders agreed to be positive on social media.

         After the social, S.J. and four of her fellow cheerleaders decided to go to dinner to celebrate. While they were driving to the restaurant in a private vehicle on public roads, S.J. recorded the girls singing along to some of the lyrics of Big Sean's song “I.D.F.W.U.” S.J. posted an eight-second video to her SnapChat story of the girls singing the following lyrics from the song: “I don't fuck with you, you little stupid ass bitch, I ain't fucking with you.” S.J. posted this video to a private story that included approximately thirty to forty of her contacts. S.J. and the other girls were wearing the Mountain Crest cheer shirts that they were given at the ice cream social. The school administrators could tell that the girls were wearing the Mountain Crest shirts and they believed that it would have been clear to any Mountain Crest student and some Ridgeline students that the girls were wearing Mountain Crest cheer attire.

         S.J. states that while at dinner there were many other cheerleaders there celebrating and she saw them taking videos of themselves. She claims that many other posts were shared. S.J.'s friend, S.E.J. was able to save one of the SnapChat posts. However, this video and none of the other alleged snaps were ever brought to the administration's attention.

         Approximately thirty minutes after S.J. posted the video, S.J. deleted the video from her SnapChat story. She testified that she did not mean to post it and she did not think it was something appropriate for her to share with people on her SnapChat story. However, the following day, immediately before the school assembly announcing the members of the cheer squad to the school, a former member of the cheer team advised the administration that S.J. had posted the video. The former cheerleader had received the video from other students. SnapChat stories can be saved and screen recorded by anyone in the SnapChat story and sent to others.

         After the assembly, Reynolds, the assistant cheer coach, and the administration met and discussed the situations. They all agreed to move forward with dismissal of S.J. and the four other students in the video from the cheer squad. The administrators viewed the video as boasting that they had made the team to students who did not make the team. Cutler thought the inappropriate language bordered on threatening and was informed that the video made other girls who had not been chosen to feel bullied and that S.J. and the other girls were gloating. The following Monday, March 19, 2018, S.J., the four other girls in the video, and their parents were asked to meet with Mountain Crest's Principal, Assistant Principal, Athletic Director, and Cheerleading Advisor about the video. The administrators stated that the video violated the Cheer Squad Constitution's social media policy and the girls were being dismissed from the team. S.E.J.'s father recorded the meeting.

         Each family also met separately with the administrators and the parents were given the lyrics sung by the girls in writing. The four girls in the video were remorseful and asked to be allowed to return to the team. The administrators met as a group after these individual meetings and decided that because the four other girls were remorseful and did not record or post the video, they could be reinstated to the squad. Later that night, the administrators contacted the parents of the four other girls who were in the video and told these parents that their daughters would be allowed back on the team if they agreed to an apology, fifty hours of community service, and a statement on appropriate social media use. The principal then held a meeting with all the members of the cheer squad and their parents to discuss the video and the responsible usage of social media. At the meeting, the principal explained that S.J. had posted a video of the five girls singing a song with profanity and that it was against the policy. The four girls who were singing but did not post the video were given contracts with the conditions for rejoining the squad. The girls signed the contracts and read an apology letter in front of the remaining team and their families. Each of the girls has completed the conditions and been reinstated to the team.

         Mountain Crest administrators did not give S.J. the opportunity to rejoin the team. The administrators who met with S.J. and her parents noted that S.J. was unrepentant and insistent that the post was accidental and unintentional. S.J. and her parents demanded that S.J. be allowed to be reinstated unconditionally. However, the administrators concluded that S.J.'s explanation that she accidentally posted the video was a lie because it would require several taps, not just one, to post the video on a mobile device, and a S.J. failed to take responsibility for her actions. The school concluded that S.J.'s reinstatement would likely cause disruption to the cheer squad for several reasons: (1) S.J.'s snap was insubordinate given the admonishment not to post anything until after the school assembly and undermined the coach's authority; (2) S.J.'s and the other girls' conduct in the video while wearing Mountain Crest cheer shirts undermined the school's efforts to rehabilitate the cheer squad's reputation; and (3) the boasting portrayed in the video had the potential to create discord within the cheer team and could be perceived as an act of cruelty in violation of the cheer constitution.

         The Mountain Crest Constitution in the Student Handbook encourages students to participate in extracurricular activities but reserves the right to the administration to declare a student ineligible to represent the school in any activity and revoke the right of participation in an activity if the student fails to uphold the school's and/or the particular group's standards. Cheerleaders are held to higher standards than other sports groups. The administration holds cheerleaders to standards similar to school officers and views cheerleaders as school leaders, ambassadors, and the face of Mountain Crest athletics.

         S.J.'s father appealed the dismissal decision to Mountain Crest's Vice Principal and Principal, who both denied his appeal. The Principal also submitted the dispute to the Mountain Crest Executive Council, a group of students who review school decisions and provide advice and input. Johnson's appeal letter was submitted to the council in redacted form so that the matter would be anonymous. The council concurred in the decision to dismiss S.J. from the cheer quad for improper social media usage.

         Johnson also appealed to the Cache County School District's Superintendent, who denied the request to be reinstated but allowed S.J. to be reinstated based on conditions set by Mountain Crest administrators. Mountain Crest administrators conditioned S.J.'s reinstatement on doing fifty hours of community service, apologizing to the cheer squad, preparing a research-based presentation on improper social media usage, and meeting with administrators regarding a positive plan to move forward. The school officials presented these terms to Johnson in the form of a contract and Johnson asked if these terms were negotiable. The school officials told him that they were the only option for S.J. to return to the squad, and Johnson unambiguously rejected the terms for reinstatement. However, the school has left open the possibility for S.J. to rejoin the cheer squad at any time if she completes the reinstatement conditions.

         S.J. has not been punished by the school for her SnapChat video. No discipline notes have been placed in S.J.'s school record. There are no restrictions on her academic activities and she is free to tryout for or participate in any other extracurricular activity for which she qualifies.

         Johnson filed the present action under 42 U.S.C. § 1983 and § 1988, alleging a violation of S.J.'s First Amendment free speech rights and a violation of S.J.'s Fourteenth Amendment's due process rights to have clear restrictions on her free speech rights.

         LEGAL ANALYSIS

         Plaintiff's Motion for Preliminary Injunction

         Plaintiff moves for a preliminary injunction, pursuant to Rule 65 of the Federal Rules of Civil Procedure, ordering Defendants to immediately restore S.J. to her prior status on the cheer squad and forbidding Defendants from punishing S.J. for her out-of-school speech while this suit is pending. Plaintiff contends that S.J.'s SnapChat post is protected by the Free Speech Clause of the First Amendment because she created it outside of school and shared it with only 30-40 SnapChat friends and Defendants could not punish her for the post. Defendants, however, argue that S.J. was dismissed from the cheer squad and given conditions for her reinstatement because her conduct violated the directions of her coach, undermined her coach's authority, subverted the squad's goal of improving its reputation, and she failed to take responsibility for the post or show any remorse for posting it.

         I. Preliminary Injunction Standard

         A preliminary injunction is an “extraordinary and drastic remedy.” Warner v. Gross, 776 F.3d 721, 728 (10th Cir. 2015). Preliminary injunctive relief is appropriate if the moving party establishes: “(1) a likelihood of success on the merits; (2) a likelihood that the movant will suffer irreparable harm in the absence of preliminary relief; (3) that the balance of equities tips in the movant's favor; and (4) that the injunction is in the public interest.” Roda Drilling Co. v. Siegal, 552 F.3d 1203, 1208 (10th Cir. 2009). Because a preliminary injunction is an ...


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