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McKinney v. Huntsville School District

United States District Court, W.D. Arkansas, Fayetteville Division

October 17, 2018

JESSICA McKINNEY, as next friend and legal guardian of K.P., a minor PLAINTIFFS



         Currently before the Court are a Motion for a Preliminary Injunction (Doc. 4) and Brief in Support (Doc. 6) filed by Jessica McKinney, as next friend and legal guardian of K.P., a minor, and a Response (Doc. 12) and Brief (Doc. 13) in Opposition submitted by Defendant Huntsville School District ("the District"). The Court heard oral argument on the Motion on July 19, 2018. Because of the impending start of the 2018 school year, the Court scheduled a telephone conference for August 2, 2018, at which time it denied Plaintiff's Motion from the bench. This Opinion and Order memorializes that ruling.[1]

         I. BACKGROUND

         On Saturday, February 24, 2018, [2] during a weekend visit with his father, K.P., a student at Huntsville High School, took a photo of himself wearing a trench coat and holding an AR-15 rifle. His design in taking the picture was to emulate a 1920's style photo of a mobster with a tommy gun, a style he found aesthetically pleasing. After taking the picture, K.P. posted the photograph late Saturday evening on Instagram with no caption.

         Though the exact time is not clear at this point, the next morning, K.P. opened his Instagram account and saw that a number of individuals had commented on his post.[3]These comments included: "school shooter meme," "when I drop my pencil, start shooting," and "see you at school on Monday."

         At approximately 6 a.m. on Sunday morning, K.P. allegedly removed the photo he uploaded. In its place, he posted a similar photograph of himself in the trench coat but sans rifle. This time, however, he included the following caption:

You think I would ever wear this in public? That last post had no caption because I thought some people may blow it out of proportion, nothing bad was intended by that. I'm an ambitious, young enterprising individual, who wouldn't throw my future away for something as pointless as a school shooting. If I wanted to make an impact I would choose a much more high profile crowd th[a]n a bunch of hicks and jocks who are never going to be anything of particular value. And my friends go there? Why would I perform an action that would only bring negativity and pain into their lives? Life is about spreading positivity, and making our lovely earth better when we are called out of it than it was when we first began breathing it's (sic) air, and drinking its water.

(Mot. for Preliminary Injunction, Doc. 6, p. 2 (emphasis added)).

         It is undisputed that these photos and comments reached the campus community.[4] For instance, on Saturday evening, soon after the initial picture had been posted, Principal Roxanne Enix began receiving calls and text messages from concerned parents and school officials who had seen the pictures and posts and who had identified K.P. as a Huntsville student-in part because other pictures on his Instagram account featured him in Huntsville athletic gear. (Doc. 6-2, p. 6). The posts were also uploaded to the school's Facebook account by a concerned individual who wanted to know what the District's reaction would be.

         Upon seeing the post, Principal Enix and school officials immediately perceived a threat to the school. The additional comments by the other posters, other Huntsville students, and K.P.'s follow-up post only increased these concerns. For instance, individuals seeing the "when 1 drop my pencil, start shooting" comment allegedly worried that the comment implicated two students (the pencil dropper and the shooter). (Doc. 12, p. 11).

         The Huntsville School District and the police also took the matter very seriously. Police officers went out searching for K.P. at his father's house and ultimately were able to speak to him on Sunday evening after he had returned to Jessica McKinney's house. Before they made contact with K.P., an undercover officer accessed K.P.'s Instagram account and observed that K.P. had posted a dark-humored meme in the wake of the Parkland shooting.[5] The police discussed this meme with him, his later posts, and their possible interpretations. As a sign of good faith, K.P. offered to hand over three firearms that he had in his possession. The police also advised K.P. that he had been suspended and that he should not report to school the following day. The police ultimately concluded that K.P. did not pose a threat to the school and no legal charges were ever brought.

         Nevertheless, despite the police department's determination, students, staff, and community members remained incredibly concerned about the safety of the school and its members. For instance, teachers and District officials reading K.P.'s follow-up post wondered whether his comment about choosing a more "high profile crowd" meant that he was speaking about administrators and teachers rather than students. (Doc. 6-2, p. 8). These concerns prompted at least one teacher to refuse to perform her outside morning duty. (Doc. 12, p. 6). As a result, Principal Enix allowed all teachers to perform their morning duties from inside the school building. In addition, parents and other community members continuously called Principal Enix throughout the weekend and students themselves expressed fear about returning to campus. See, e.g., Doc. 12, Exhs. A-E (affidavits of students, teachers, and administrators describing the immediate reaction to these posts).

         To allay fears, Principal Enix held an early-morning emergency staff meeting at Huntsville High School before school started on Monday, February 26, 2018.[6] Later that day, at the request of Huntsville police and the FBI, school officials pulled students out of classes to conduct several assemblies with law enforcement officers on the importance of appropriate social media postings.[7]

         The following day, K.P. received a formal letter advising him that he had been suspended for a period of ten days and that he had been recommended for a 365-day expulsion.[8] The expulsion hearing was held on March 5, 2018, and the school board voted to uphold the recommendation to expel him for a year.[9] In deciding on K.P.'s punishment, the School District relied on two specific District policies listed in the student handbook, 4.17 and 4.20.

4.17: The District's administrators may also take disciplinary action against a student for off-campus conduct occurring at any time that would have a detrimental impact on school discipline, the educational environment, or the welfare of the students and/or staff. A student who has committed a criminal act while off campus and whose presence on campus could cause a substantial disruption to school or endanger the welfare of other students or staff is subject to disciplinary action up to an including expulsion. Such acts could include, but are not limited to a felony or an act that would be considered a felony if committed by an adult, an assault or battery, drug law violations, or sexual misconduct of a serious nature. Any disciplinary action pursued by the District shall be in accordance with the student's appropriate due process rights.
4.20: No. student shall by the use of violence, force, noise, coercion, threat, intimidation, fear, passive resistance, or any other conduct, intentionally cause the disruption of any lawful mission, process, or function of the school, or engage in any such conduct for the purpose of causing disruption or obstruction of any lawful mission, process, or function. Nor shall any student encourage any other student to engage in such activities.

(Docs. 6-8, 6-9).

         Although the expulsion had the effect of disrupting K.P.'s classes, the District offered-and enrolled him in-an alternative, online education program, known as A, that would allow him to take as many classes as he could manage so that he would still be on track to graduate with his class. Moreover, any classes successfully completed during this program will be added to his transcript as normal and will not bear any indication that they were earned through the A program during his expulsion. K.P. testified that he did not complete any courses, in part because he had difficulty getting enrolled in the program and had other online connectivity issues. He ultimately went to work in construction and has not attempted to enroll at any other school district.

         Plaintiff now seeks a preliminary injunction that would enjoin continued enforcement of the expulsion and require the District to remove any reference of either the initial suspension or the expulsion from K.P.'s transcript. (Doc. 4, p. 2).


         It is well established that "a preliminary injunction is an extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion." Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (citing 11A C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure § 2948, pp. 129-130 (2d ed. 1995)) (emphasis in original).

         Although the factors to be considered when deciding whether this burden has been met are similar nationwide, district courts in the Eighth Circuit should consider: (1) the movant's likelihood of success on the merits; (2) the threat of irreparable harm to the movant in the absence of injunctive relief; (3) the balance between this harm and the injury that granting the injunction will inflict on the other party; and (4) whether the injunction is in the public interest. Dataphase Sys., Inc. v. C L Sys., Inc., 640 F.2d 109, 114 (8th Cir. 1981). While no single factor is determinative, id., the Eighth Circuit has made clear that in weighing whether to grant a preliminary injunction, the "likelihood of success on the merits is most significant." Minn. Ass'n of Nurse Anesthetists v. Unity Hosp., 59 F.3d 80, 83 (8th Cir. 1995) (quoting S & M Constructors, Inc. v. Foley Co., 959 F.2d 97, 98 (8th Cir. 1992)). Despite the importance of the likelihood of success on the merits, the inquiry should focus on "whether the balance of the equities so favors the movant that justice requires the court to intervene to preserve the status quo until the merits are determined." Dataphase, 640 F.2d at 113.

         III. ...

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