Amicus Brief: E.D. v. Noblesville School District

Plaintiffs E.D. and her parents sued the Noblesville (IN) School District, its superintendent, high school principal, and other officials for derecognizing the Students for Life group. To advertise a meeting, the chapter proposed to administrators to post a flyer with a photo of students in front of SCOTUS holding signs that said “Defund Planned Parenthood,” along with the meeting time, place, and location. E.D. and her mother met with an administrator, who told E.D. she couldn’t post the flyer because it was “political.” That same day, the principal sent E.D.’s mother an email revoking the club’s status, claiming that “[a] poster cannot contain any content that is political” and expressing his doubts that the club was student-driven. After plaintiffs sued, the principal re-recognized the group.

The district court granted defendants summary judgment on all counts, finding that the principal wasn’t a final policymaker, but relying only on cases analyzing repealed laws. It also ruled that plaintiffs couldn’t succeed on their retaliation and Equal Access Act claims because they didn’t create a triable issue that punishing protected speech was a motivating factor in the revocation decision because flyers “could reasonably be perceived to bear the imprimatur of the school.” Plaintiffs are appealing two issues: First, whether an Indiana school principal qualifies as a final policymaker for Monell liability (municipalities’ violation of civil rights); and second, whether the principal retaliated and violated the Equal Access Act.

Now before the U.S. Court of Appeals for the Seventh Circuit, the Manhattan Institute has joined the Upper Midwest Law Center on a brief supporting E.D. and analyzing how qualified immunity applies in the educational context—and arguing that it shouldn’t apply here. First, the doctrine poorly fits circumstances where executive officials, with the benefit of time to consider their course of action, deliberately choose to violate First Amendment rights. Second, to the extent the court even engages in qualified-immunity analysis, it should consider whether the defendants had fair notice that their conduct would implicate and potentially violate E.D.’s constitutional rights. Third, the court should determine whether E.D.’s rights were violated regardless of whether any right was clearly established. And fourth, given the facts of this case, qualified immunity simply does not protect the defendants because they violated E.D.’s clearly established First Amendment rights.

Ilya Shapiro is a senior fellow and director of Constitutional Studies at the Manhattan Institute. Follow him on Twitter here.

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