Federal judge rejects bulk of SMSD’s motion to dismiss students’ 1st Amendment lawsuit

Student protestors at SM North the afternoon of National School Walkout day in April 2018.

Chief United States District Judge Julie Robinson today issued an order permitting a group of students’ case against the Shawnee Mission School District over the National Walkout Day demonstrations last year to go forward — though the judge dismissed claims that were made against Deputy Superintendent Kenny Southwick as an individual.

The ACLU of Kansas organized the students’ suit in May, and the school district’s attorneys filed a motion to have the claims dismissed in September. As of late November, the district had spent more than $36,000 on legal fees associated with the case.

In her order, Robinson asserts that the student plaintiffs had demonstrated plausible claims that the district violated their 1st Amendment rights by trying to steer discussion during student protests away from the topic of gun control:

Because the only justification for the speech restrictions alleged in the Complaint is the need to avoid association with a controversial topic, the Court cannot find at this stage of the litigation that SMSD reasonably forecast that the students’ speech during the walkout would cause substantial disruption with discipline or student safety. Therefore, the Court finds that Plaintiffs have stated a plausible claim that their First Amendment rights were violated by the District’s speech restrictions during the walkout.

Additionally, Robinson concluded that a SM North administrator’s move to confiscate the camera of a student journalist could plausibly be interpreted as a violation of the student’s 1st Amendment rights:

Plaintiffs state a plausible claim that Defendants violated their First Amendment rights by confiscating S.W.’s camera and barring her attendance at the full walkout event without an adequate showing that the District reasonably forecast that student journalism about the subject matter would have created a material or substantial disruption of normal school activity, or created a safety risk.

The judge agreed with the district’s attorneys’ request to dismiss the claims against Kenny Southwick as an individual.

However, Robinson did grant the school district’s lawyers’ request to throw out the claims against Southwick, who was serving as interim superintendent at the time of the protests, as an individual. Robinson said that Southwick had taken no actions that exposed him to personal liability for the potential 1st Amendment violations:

…Defendants argue there are no facts alleged in the Complaint that support a theory of personal liability against Southwick—he did not personally confiscate S.W.’s camera, and he did not personally promulgate a policy that restricted the students’ speech during the walkout. The Court agrees.

Robinson’s order on the district’s motion to have the case dismissed comes just four days before the parties are scheduled to meet with a judge for a conference on potential settlement of the case.

The attorneys for both the district and the students submitted a joint request to extend the deadline for discovery in the case to April 19 from the original cutoff date of Feb. 22. A trial on the matter is tentatively scheduled for Dec. 3, 2019 should the parties not settle the case prior.