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Flores v. Victory Preparatory Academy

United States District Court, D. Colorado

August 28, 2019

MARY FLORES, individually and on behalf of E.F., a minor child; JOEL FLORES, individually and on behalf of E.F., a minor child; BERTHA CEJAS, on behalf of V.S., a minor child; MARIA CASTANEDA, on behalf of M.F. and J.F., minor children; B.F., an individual, on behalf of herself and those similarly situated; and JOHN DOES, 1-150, minor children, Plaintiffs,
VICTORY PREPARATORY ACADEMY, a governmental entity; RON JAJDELSKI, in his individual and official capacities; JEFF SMITH, in his individual and official capacities; CAMIL DELACRUZ, in her individual and official capacities; ROSALIE MONTANO, in her individual and official capacities; NORMA CLINKINBEARD, in her individual and official capacities; JEFF REED, in her individual and official capacities; JAMES SEAY, in her individual and official capacities; NANCY BROOKS, in her individual and official capacities; and JOHN DOES 1-10, in their individual and official capacities, Defendants.



         This matter is before the Court on Defendants' motion to dismiss (ECF No. 25). Plaintiffs brought this action under 42 U.S.C. § 1983, alleging Defendants violated their First and Fourteenth Amendment rights during and after a high school assembly where students protested by refusing to stand and recite the school pledge. Defendants contend that Plaintiffs fail to state a claim on some of their claims and that some Defendants are entitled to qualified immunity on some of their claims. For the reasons stated below, the motion is denied for the most part but granted on one issue.


         In evaluating a motion to dismiss under Fed.R.Civ.P. 12(b)(6), a court must accept as true all well-pled factual allegations in the complaint, view those allegations in the light most favorable to the plaintiffs, and draw all reasonable inferences in the plaintiffs' favor. Brokers' Choice of Am., Inc. v. NBC Universal, Inc., 757 F.3d 1125, 1136 (10th Cir. 2014); Mink v. Knox, 613 F.3d 995, 1000 (10th Cir. 2010). The complaint must allege a “plausible” right to relief. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 569 n.14 (2007); see also Id. at 555 (“Factual allegations must be enough to raise a right to relief above the speculative level.”). Conclusory allegations are insufficient, Cory v. Allstate Ins., 583 F.3d 1240, 1244 (10th Cir. 2009), and courts “are not bound to accept as true a legal conclusion couched as a factual allegation, ” Twombly, 550 U.S. at 555 (quotation omitted). To determine whether a claim is plausible, a court considers “the elements of the particular cause of action, keeping in mind that the Rule 12(b)(6) standard doesn't require a plaintiff to set forth a prima facie case for each element.” George v. Urban Settlement Servs., 833 F.3d 1242, 1247 (10th Cir. 2016) (quotation omitted). However, if the allegations “are so general that they encompass a wide swath of conduct, much of it innocent, then the plaintiffs have not nudged their claims across the line from conceivable to plausible.” Khalik v. United Air Lines, 671 F.3d 1188, 1191 (10th Cir. 2012) (quotation omitted).

         Qualified immunity shields individual defendants named in § 1983 actions unless their conduct was unreasonable in light of clearly established law. Estate of Booker v. Gomez, 745 F.3d 405, 411 (10th Cir. 2014). “[W]hen a defendant asserts qualified immunity, the plaintiff carries a two-part burden to show: (1) that the defendant's actions violated a federal constitutional or statutory right, and, if so, (2) that the right was clearly established at the time of the defendant's unlawful conduct.” Id. (quotation omitted). “Asserting a qualified immunity defense via a Rule 12(b)(6) motion . . . subjects the defendant to a more challenging standard of review than would apply on summary judgment.” Peterson v. Jensen, 371 F.3d 1199, 1201 (10th Cir. 2004).


         For present purposes, these factual allegations in the complaint are accepted as true. Plaintiffs E.F., V.S., M.F., J.F., and B.F. (“the student Plaintiffs”) attended Victory Preparatory Academy (“VPA”), a Colorado charter high school. On the morning of September 28, 2017, VPA held an assembly in the gym. As was customary at VPA, the students were expected to stand and recite the flag salute followed by the school pledge.[1] After reciting the flag salute, the student Plaintiffs and “many if not all of the students . . . sat down and chose not to recite the school pledge.” (ECF No. 1 at ¶ 42.) VPA administrators ordered the students to stand and recite the school pledge, but they refused. (Id. at ¶¶ 43, 44.) The students were then sent to their classes.

         Minutes later, the students were instructed to return to the gym, where Defendant Jajdelski, the chief executive officer of VPA, “began questioning the students about their protest.” (Id. at ¶ 48.) Some of the students had drafted a letter listing their concerns about VPA, [2] and the letter was presented to Defendant Jajdelski. (Id. at ¶ 49.) Defendant Jajdelski attempted to have a discussion with the students about their concerns but soon became frustrated and ordered that the entire student body, about 120 students, be sent home for the day. (Id. at ¶¶ 51, 53.) Students who had driven to school were dismissed shortly thereafter, while VPA staff called the other students' parents to have them picked up. VPA staff also called the police, even though there were no reports of violent or threatening behavior. The police were present while parents were still arriving to pick up students.

         When Plaintiffs Mary and Joel Flores arrived at VPA to pick up their son, Plaintiff E.F., they and other parents asked the police if they could speak with Defendant Jajdelski about why the students were being sent home. He refused to meet with them. The parents who had gathered in front of the school were instructed to leave and proceeded to do so. As they were leaving, Plaintiff Mary Flores interviewed students about the protest and recorded videos with her cell phone. The protest and schoolwide suspension were covered in a local TV news segment, which featured an interview with Plaintiff V.S. Plaintiff V.S. also commented about the protest on Facebook, including by sharing on his Facebook page a post by another student stating that “Defendant Jajdelski could suck the student's left nut.” (Id. at ¶ 119.)

         Students returned to VPA the following day, and normal operations continued at the school. The same day, Plaintiff V.S. and his mother were called to meet with Defendant Jajdelski. Defendant Jajdelski showed Plaintiff V.S. screenshots of his Facebook posts about the protest. Plaintiff V.S. apologized for the posts, but Defendant Jajdelski told him he had already decided to expel him from VPA. Plaintiff V.S.'s mother told Defendant Jajdelski she wanted her son to remain at VPA, but she was compelled to sign paperwork withdrawing him from the school.

         Two days after the protest, La Prensa, a weekly Spanish-language newspaper published by Plaintiffs Mary and Joel Flores, ran a frontpage article critical of VPA's handling of the September 28 protest. Plaintiff B.F. was quoted in the article. The complaint translates her comments as follows: “We refused to stand and they [the administration] yelled at us and told us ‘Get up! Everyone get up!'” (Id. at ¶ 90 n.4.) Plaintiff B.F. also posted messages about the protest on Facebook. She stated that she was proud of VPA students for taking “[a] step towards change” and encouraged them to continue refusing to recite the school pledge and to “[s]it down and link arms to show we are united.” (Id. at ¶¶ 86, 87.)

         A few days later, Plaintiff B.F. and her father were called to meet with Defendant Jajdelski. Defendant Jajdelski mentioned her Facebook posts about the protest and accused her of being a “ringleader” and “cyberbullying and intimidating other students into joining” the protest. (Id. at ¶¶ 98, 100.) Defendant Jajdelski told Plaintiff B.F.'s father that he needed to withdraw his daughter from VPA or she would be expelled. Plaintiff B.F.'s father then executed the paperwork withdrawing her from the school.

         About a week after the protest, Plaintiffs Mary and Joel Flores received a letter from VPA stating that they were not allowed on the VPA campus. The campus ban was unanimously approved by the VPA board members, who are the other named individual Defendants in this lawsuit. The letter from VPA states that after the September 28 protest, these Plaintiffs “chose to detain, film, and photograph [VPA] students without school and parent permission”; “[t]his activity is not only illegal, it is a violation of school policy”; and these “actions created an unsafe situation and required police intervention.” (Id. at ¶ 70.) Apparently referring to the article in La Prensa, the letter further states that these Plaintiffs “intentionally chose to create a false narrative with students, the public, and the media regarding VPA student activities and school administration decisions” and perpetuated “information which is false and manipulative regarding [VPA].” (Id.) VPA never rescinded the campus ban, and Plaintiffs Mary and Joel Flores were prevented from attending their son's home sports games and parent-teacher conferences for the rest of the school year.

         Plaintiffs' complaint asserts five claims for relief. The first two claims are discussed together because they overlap significantly. Plaintiffs contend that Defendant Jajdelski and VPA violated students' First Amendment rights first by compelling them to recite the school pledge and second by suspending them when they peacefully expressed themselves by refusing to recite the pledge. These claims are asserted on behalf of the student Plaintiffs and all students who were suspended on September 28, 2017.[3]

         In their third claim, Plaintiffs assert that Defendants Jajdelski and VPA retaliated against Plaintiffs V.S. and B.F. by expelling them for their social media posts about the protest in violation of their First Amendment rights. This claim is brought on behalf of Plaintiffs V.S. and B.F. only.[4]

         In their fourth claim, Plaintiffs contend that Defendants Jajdelski, VPA, and VPA's board members violated the First Amendment rights of Plaintiffs Mary and Joel Flores by banning them from the VPA campus in retaliation for their newspaper coverage of the September 28 protest. Plaintiffs bring this claim on behalf of Plaintiffs Mary and Joel Flores only.[5]

         Plaintiffs' fifth claim for relief has several parts. Plaintiffs contend that Defendants violated their Fourteenth Amendment rights by suspending and expelling students without affording them due process. Plaintiffs also contend that Defendants violated the rights of Plaintiffs' Mary and Joel Flores by banning them from campus without affording them due process. Plaintiffs further contend that VPA's discipline policies, including those set forth in VPA's Parent/Student Handbook, are unconstitutionally vague and overbroad. Plaintiffs bring this part of their claim on behalf of Plaintiffs E.F. and M.F. and “all students who currently attend VPA.” (ECF No. 67 at 2.)


         A. First and Second Claims

         Defendants argue that Plaintiffs' first and second claims should be dismissed because compelling students to recite the school pledge is legally permissible. They also argue that Defendant Jajdelski is entitled ...

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