Bosch v. Thurman

• Court: District Court, E.D. Arkansas
• Decided: February 28, 2024
• Docket: 4:22-cv-00677
• Status: Unknown

Opinion

Case 4:22-cv-00677-LPR Document 69 Filed 02/28/24 Page 1 of 37

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS CENTRAL DIVISION

MELISSA BOSCH PLAINTIFF

v. Case No.: 4:22-cv-00677-LPR

TONY THURMAN, as Superintendent of Cabot Public School District; CABOT PUBLIC SCHOOL DISTRICT; and CITY OF CABOT, ARKANSAS DEFENDANTS

ORDER

This is primarily—though not exclusively—a First Amendment retaliation case. The case

revolves around two major events: (1) a statement made by Plaintiff Melissa Bosch at a Moms for

Liberty meeting in June of 2022; and (2) the Cabot Public School District’s subsequent decision

to place limitations and restrictions on Ms. Bosch’s ability to enter onto District property. In her

operative Complaint, Ms. Bosch alleged that the District’s decision violated numerous provisions

of the United States Constitution and at least two provisions of the Arkansas Constitution. She

also alleged that the City of Cabot—by way of its police department—engaged in a conspiracy

with the District to deprive her of her constitutional rights.1 Based on these allegations, Ms. Bosch

sued the Cabot Public School District, the Superintendent of the Cabot Public School District (Dr.

Tony Thurman) in his official capacity, and the City of Cabot.2

1 There is nothing in the Amended Complaint or in Ms. Bosch’s summary judgment papers to suggest that Ms. Bosch was trying to assert anything other than a § 1985 conspiracy claim against the City. And that makes perfect sense. The basis of all the other claims in this case is § 1983. The City can only be liable under § 1983 for its own acts. And all of the § 1983 claims in this case challenge acts of the District, not acts of the City. 2 See generally Am. Compl. (Doc. 11). In the Amended Complaint, Ms. Bosch did not specify whether she was suing Superintendent Thurman in his individual capacity or his official capacity. See generally id. As the District and Superintendent Thurman pointed out in their summary judgment papers, the law is clear that this means Ms. Bosch sued Superintendent Thurman in his official capacity only. See Br. in Supp. of Defs.’ Mot. for Summ. J. (Doc. 45) at 31 (citing Artis v. Francis Howell North Band Booster Ass’n, 161 F.3d 1178, 1182 (8th Cir. 1998)). At the summary judgment hearing, Ms. Bosch confirmed that all claims against Superintendent Thurman are in his official capacity only. See Feb. 6, 2024 Hr’g Tr. (Rough) at 13.

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Before the Court are dueling motions for summary judgment.3 The motions raise some

incredibly important questions of law. But the Court cannot reach those questions. For the reasons

discussed below, the Court concludes that Ms. Bosch has waived the merits of her case in their

entirety.4 This is not a decision the Court reaches lightly. Although the Court has, in past cases,

found certain issues or arguments to be waived, the Court has never found a litigant to have waived

an entire case except where there has been a total and unmistakable failure to prosecute. And it

weighs heavily on the Court that, absent waiver, at least one claim (the First Amendment retaliation

claim with respect to the purportedly threatening statement) would likely have made it to trial and

may well have ultimately succeeded. On the other hand, fairness to both sides dictates that the

Court scrupulously enforce the rules of the litigation road, even if doing so leads to a harsh result.

Those rules counsel in favor of granting summary judgment to Defendants on all claims.

I. Background Facts and Procedural History

On summary judgment, the Court is supposed to consider the record in a very particular

way. First, the Court adopts and considers all undisputed facts. Second, as to each genuinely

disputed fact that is material to the outcome of the case, the Court adopts and considers the version

of the fact that is most favorable to the non-moving party and the reasonable inferences from that

3 See Docs. 38, 42, 44. 4 The applicable Eighth Circuit caselaw speaks in terms of waiver. See Satcher v. Univ. of Arkansas at Pine Bluff Bd. of Trustees, 558 F.3d 731, 735 (8th Cir. 2009) (explaining that a party’s “failure to oppose a basis for summary judgment constitutes waiver of that argument”). But it’s not entirely clear whether “waiver” or “forfeiture” is the most apt way to describe the situation set out in the caselaw. See Reinard v. Crown Equip. Corp., 983 F.3d 1064, 1066 (8th Cir. 2020) (“[F]orfeiture is the ‘failure to make the timely assertion of a right,’ whereas waiver is the ‘intentional relinquishment or abandonment of a known right.’” (quoting Hamer v. Neighborhood Hous. Servs., 583 U.S. 17, 20 n.1 (2017)). See also United States v. Campbell, 26 F.4th 860, 889–91 (11th Cir. 2022) (en banc) (Pryor, C.J., concurring) (highlighting the differences between waiver and forfeiture with respect to failures of a party to brief an issue). Whatever the proper nomenclature, the actual content of the Eighth Circuit rule is clear: generally, a party gives up an issue if it fails to respond to the other side’s summary judgment argument on that issue.

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fact that are most favorable to the non-moving party.5 A fact is genuinely disputed if a reasonable

jury could decide the fact in favor of either a plaintiff or a defendant.6

There is a small quirk when (as in this case) there are dueling motions for summary

judgment. Unless the record in front of the Court is composed entirely of undisputed facts or all

of the genuinely disputed facts are immaterial to the outcome of the case, the Court must view the

facts differently depending on which summary judgment motion the Court is analyzing.7 On the

Ms. Bosch’s Motion for Partial Summary Judgment, the Court must adopt the pro-defense version

of any genuinely disputed, material fact.8 On the Defendants’ Motions for Summary Judgment,

the Court must adopt the pro-plaintiff version of any genuinely disputed, material fact.9 Given the

foregoing, the Court will endeavor in this facts-and-procedure section to use mostly undisputed

facts. Where a fact is both genuinely disputed and material to the outcome of the case, the Court

will say so and then explain both versions of the genuinely disputed fact.

This endeavor is made easier in this case because Ms. Bosch did not properly dispute most

of the facts set forth in the Defendants’ Statements of Undisputed Material Facts.10 Pursuant to

Federal Rule of Civil Procedure 56(e)(2), “[i]f a party fails . . . to properly address another party’s

assertion of fact as required by Rule 56(c), the Court may . . . consider the fact undisputed for

5 See Quinn v. St. Louis Cnty., 653 F.3d 745, 750 (8th Cir. 2011). 6 See Liberty Ins. Corp. v. HNTB Corp., 87 F.4th 886, 888 (8th Cir. 2023). 7 See Pitman Farms v. Kuehl Poultry, LLC, 48 F.4th 866, 875 (8th Cir. 2022) (“Cross-motions for summary judgment require viewing the evidence in the light most favorable to the plaintiff and defendant in turn, depending on whose motion is being considered.”). 8 See id. 9 See id. 10 See Def.’s Statement of Undisputed Material Facts (Doc. 40); Defs.’ Statement of Undisputed Material Facts (Doc. 46).

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purposes of the motion[.]”11 The Court is going to do so here. And it is worth a small detour to

explain why.

Rule 56(c) provides that “[a] party asserting that a fact . . . is genuinely disputed must

support the assertion by . . . citing to particular parts of materials in the record . . . or showing that

the materials cited do not establish the absence or presence of a genuine dispute . . . .” The Local

Rules explain how all this is supposed to happen in our District. Local Rule 56.1(a) requires a

party moving for summary judgment to provide “a separate, short and concise statement of the

material facts as to which it contends there is no genuine dispute to be tried.” Local Rule 56.1(b)

requires that, “[i]f the non-moving party opposes the motion, it shall file, in addition to any

response and brief, a separate, short and concise statement of the material facts as to which it

contends a genuine dispute exists to be tried.” Local Rule 56.1(c) provides that “[a]ll material

facts set forth in the statement filed by the moving party pursuant to [Local Rule 56.1(a)] shall be

deemed admitted unless controverted by the statement filed by the non-moving party under [Local

Rule 56.1(b)].”

It is black-letter law that Local Rules can only fill in gaps left by the Federal Rules.12 Local

Rules cannot supersede federal rules.13 So the two must be read together. Doing so requires that

11 The Court is aware that it has other options. For one example, the Court could “give an opportunity [to the offending party] to properly support or address the fact[.]” Fed. R. Civ P. 56(e)(1). But the circumstances of this case counsel application of subsection (e)(2). Prior to summary judgment, Ms. Bosch was on notice—through both the Local Rules and the Final Scheduling Order—of her responsibility to properly controvert facts set forth by the other side. See Local Rule 56.1(c); Final Scheduling Order (Doc. 19) at 3. After she failed to do so, the failure (and potential consequence of that failure) was pointed out by the other side in one of the Reply Briefs. See Defs.’ Reply in Supp. of Summ. J. (Doc. 66) at 2–3. Yet Ms. Bosch did not attempt to remedy the problem in the many months between then and oral argument. Additionally, the failure to properly dispute facts is not the only problem with how Ms. Bosch has litigated this case. As discussed in more detail below, this failure is of a piece with her failure to address nearly all of the issues raised by the Defendants on summary judgment. Ms. Bosch is not litigating this case pro se. She has experienced counsel—three of them. All in all, there is simply no reason for a do-over at this late stage of the summary-judgment proceedings. And she has not asked for one. See Feb. 6, 2024 Hr’g Tr. (Rough) at 28–31. 12 See Fed. R. Civ. P. 83(a). 13 See id.

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the non-moving party’s factual submission in response to the moving party’s statement of

undisputed material facts must not only “dispute” a fact, but must “support the assertion by . . .

citing to particular parts of materials in the record . . . or showing that the materials cited do not

establish the absence or presence of a genuine dispute . . . .”14 Otherwise, the fact has not been

properly disputed and may thus be deemed undisputed for purposes of summary judgment.15

Although this rule should be easily understood from a review of the Federal and Local

Rules, that is not the only way Ms. Bosch was on notice of her obligations with respect to disputing

facts. The Court’s Final Scheduling Order in this case went out of its way to make those obligations

crystal clear:

The non-moving/opposing party shall respond paragraph by paragraph to the statement of undisputed material facts submitted by the moving party. The responsive portion of the non-moving opposing party’s statement shall repeat the statement verbatim as set forth in the moving party’s statement and respond to it by admitting the statement or pointing out that portion of the statement, if any, he or she disputes. The non-moving/opposing party will state with particularity that portion of the allegation denied, citing to any evidentiary support for the denial.16

Because all parties filed affirmative motions for summary judgment, all parties also filed

Statements of Undisputed Material Facts.17 And, consistent with the foregoing Rules and Order,

all parties filed Responses to the various Statements of Undisputed Material Facts.18 But, unlike

14 See Fed. R. Civ. P. 56(c)(1). 15 See Fed. R. Civ. P. 56(e)(2). 16 Final Scheduling Order (Doc. 19) at 3. 17 See Docs. 40, 43, 46. While the parties have titled these statements in various ways, the Court will refer to them as Statements of Undisputed Material Facts for purposes of this Order. 18 To be clear, the record contains three Statements of Undisputed Material Facts—one from Ms. Bosch (Doc. 43), one from the District and Superintendent (Doc. 46), and one from the City (Doc. 40). And the record contains four Responses to the Statements of Undisputed Material Facts—one Response from Ms. Bosch to the Statement from the District and Superintendent (Doc. 59), one Response from Ms. Bosch to the Statement from the City of Cabot (Doc. 58), one Response from the District and Superintendent to the Statement from Ms. Bosch (Doc. 57), and one Response from the City to the Statement from Ms. Bosch (Doc. 55).

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the Responses from the School District, Superintendent, and City, Ms. Bosch’s Responses to the

opposing parties’ Statements of Undisputed Material Facts are almost entirely insufficient.

In her Response to the City’s Statement of Undisputed Material Facts, Ms. Bosch attempts

to dispute 12 of the City’s 26 statements of fact.19 But in each of those 12 situations, Ms. Bosch

says nothing more than “[d]isputed by Plaintiff.”20 She does not explain whether she is disputing

the whole statement or only a part of it.21 She does not explain why she is disputing the statement.22

She does not provide any citation to the record to support her disputation.23

In her Response to the Statement of Undisputed Material Facts provided by the School

District and Superintendent, Ms. Bosch’s attempt to dispute facts doesn’t get much better. She

purportedly disputes 39 of the 42 statements of undisputed facts.24 But for 35 of the 39 purported

disputes, Ms. Bosch says nothing more than “[d]isputed by Plaintiff.”25 Again, she does not

explain whether she is disputing the whole statement or only a part of it.26 She does not explain

why she is disputing the statement.27 She does not provide any citation to the record to support

her disputation.28

19 See generally Pl.’s Resp. to Def.’s Statement of Undisputed Material Facts (Doc. 58). 20 Id. at 2–3, 5–8. 21 See id. 22 See id. 23 See id. 24 See generally Pl.’s Resp. to Defs.’ Statement of Undisputed Material Facts (Doc. 59). 25 See id. at 2–9, 11–12. 26 See id. 27 See id. 28 See id.

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Ms. Bosch does enough to properly dispute four statements of fact from the School District

and Superintendent.29 For those disputes, even though she is less than clear as to what she is

specifically disputing, she at least backs up her dispute with deposition excerpts.30 So the Court

will consider those facts to be disputed facts.31 But the ability of Ms. Bosch to sufficiently dispute

these four facts cuts against her with respect to all the facts she did not sufficiently dispute.32 There

can be no doubt Ms. Bosch knew how to dispute a fact. Whether her failure to do so was a result

of legal tactics or legal carelessness, it violated the clear rules of the road.

The appropriate consequence here is to consider as undisputed all of the facts that

Ms. Bosch did not properly dispute in her Responses to the Defendants’ Statements of Undisputed

Material Facts.33 But there is a caveat. Ms. Bosch’s affirmative Statement of Undisputed Material

Facts (that she had to file along with her Motion for Partial Summary Judgment) is properly

supported with citations to the record.34 If a statement of fact in that document runs counter to a

29 See Pl.’s Resp. to Defs.’ Statement of Undisputed Material Facts (Doc. 59) at 2, 5, 10, 11. 30 See id. 31 This does not answer the question of whether the dispute around each one of these facts is genuine and material. 32 At oral argument, the Court inquired why Ms. Bosch thought the terse “[d]isputed by Plaintiff” language was sufficient. See Feb. 6, 2024 Hr’g Tr. (Rough) at 28–31. Ms. Bosch suggested nothing more was required “to dispute something that on its face is not an accurate depiction of the citation provided by the Defendants.” Id. at 31. And, to be punctilious about it, the opening paragraphs of Ms. Bosch’s Responses to the Statements of Undisputed Material Facts do generally say that the facts provided by the Defendants “includ[e] misinterpretations from Plaintiff’s [d]eposition . . . .” See Pl.’s Resp. to Def.’s Statement of Undisputed Material Facts (Doc. 58) at 1; Pl.’s Resp. to Defs.’ Statement of Undisputed Material Facts (Doc. 59) at 1. Nonetheless, the Court rejects Ms. Bosch’s position. First, as to each disputed statement (other than the four sufficient disputes), Ms. Bosch’s terse disputation language did not explain what was inaccurate about Defendants’ statement. She did not explain that her dispute was based on the record citation provided in the statement itself. She left the Court to guess. Moreover, she knew this was not the right way to do it. The Court knows she knew this was not the right way to do it because of the four disputes she sufficiently made. In those instances, even though her dispute was similarly about an alleged mischaracterization of the material cited by Defendants, Ms. Bosch provided the citation (or deposition excerpt) on which she based her dispute. There is no good reason why she didn’t do the same for all her purported disputes. 33 See Fed. R. Civ. P. 56(e)(2). 34 See generally Pl.’s Statement of Undisputed Material Facts (Doc. 43).

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statement of fact in the Defendants’ Statements of Undisputed Material Facts, then the Court will

treat the fact as disputed for purposes of all of the pending summary judgment motions.35

With the foregoing in mind, we can now turn in earnest to the background facts and

procedural history of this case.

A. Background Facts

Plaintiff Melissa Bosch has kids who attend two schools in the Cabot Public School

District.36 The Superintendent of the Cabot Public School District is Dr. Tony Thurman.37 On

June 14, 2022, Dr. Thurman asked the Cabot Police to deliver a letter to Ms. Bosch.38 The Cabot

Police delivered (and read) the letter to Ms. Bosch on the same day.39 The substance of this letter

is reproduced here:

Dear Ms. Bosch,

The District has received complaints and concerns about a statement that you made at a Moms for Liberty Meeting at Crossroads Cafe on June 9, 2022. At the meeting, you referred to District staff and stated, “If I was…any mental issues, they would all be plowed down with a freaking gun by now.”

The District will not tolerate threats against students or staff. Effective immediately, you are not permitted on Cabot School District property except to attend to the affairs of your children. You will be able to drop off and pick up your children from school. You will be able to attend your children’s parent/teacher conferences, open house, IEP meetings, 504 meetings, and/or disciplinary meetings after you have scheduled those appointments with building administration at least twenty-four (24) hours in advance. Should it be necessary for you to enter onto Cabot School District property for any other reason, please contact myself or Michael Byrd, Deputy Superintendent, at least twenty-four (24) hours in advance of the event and/or meeting. Failure to follow the directives of this letter will constitute trespassing, and we will request the assistance of local police for enforcement and legal action.

35 Again, this does not resolve whether a particular factual dispute is genuine and material. 36 See Ex. 1 (Dep. of Melissa Bosch) to Defs.’ Mot. for Summ. J. (Doc. 44-1) at 9:5–13. 37 See Ex. 2 (Aff. of Dr. Tony Thurman) to Defs.’ Mot. for Summ. J. (Doc. 44-2) ¶ 2. 38 See Pl.’s Resp. to Def.’s Statement of Undisputed Material Facts (Doc. 58) ¶ 17. 39 See id. ¶ 18.

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Sincerely,

Dr. Tony Thurman Superintendent40

This letter is at the heart of the instant case. So it is important to understand both why the letter

was issued and what the letter does.41

1. The Lead-Up to the Letter

The letter references a statement made by Ms. Bosch at a June 9, 2022 Moms for Liberty

meeting.42 And it is true that, on June 9, 2022, Ms. Bosch had attended a meeting of the Lonoke

County chapter of Moms for Liberty.43 Moms for Liberty is an organization that had “become

active in the local school districts . . .[,] [would] try to find people to run for school board, review

curriculum and the policies, and make sure schools [were] following [the curriculum and

policies].”44 The June 9, 2022 meeting included both members of the group and members of the

general public.45 Overall there were about twenty meeting attendees, the majority of whom were

parents or grandparents of District students.46 There were a few kids present too.47

40 Ex. 2 (Letter) to Pl.’s Mot. for Partial Summ. J. (Doc. 42-2). 41 In addition to the letter, Dr. Thurman filed a police report and asked the Cabot Police to investigate and determine whether Ms. Bosch had committed a crime. See Ex. 9 to Ex. 1 (Dep. of Melissa Bosch) of Defs.’ Mot. for Summ. J. (Doc. 44-1) at 72–76. The Court does not read the Amended Complaint to assert that the request to investigate or the investigation itself were violations of the federal or state constitutions. See generally Am. Compl. (Doc. 11). 42 See Ex. 2 (Letter) to Pl.’s Mot. for Partial Summ. J. (Doc. 42-2). 43 See Pl.’s Resp. to Def.’s Statement of Undisputed Material Facts (Doc. 58) ¶ 1. 44 See Ex. 1 (Dep. of Melissa Bosch) to Defs.’ Mot. for Summ. J. (Doc. 44-1) at 36:1–4. 45 See id. at 42:10-43:6; Pl.’s Resp. to Def.’s Statement of Undisputed Material Facts (Doc. 58) ¶ 3. 46 See Pl.’s Resp. to Def.’s Statement of Undisputed Material Facts (Doc. 58) ¶ 3. 47 See id.

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The record in this case includes an audio recording of the entire June 9, 2022 meeting.48

That is because, unbeknownst to Ms. Bosch or other members of Moms for Liberty, someone was

surreptitiously taping the meeting.49 The audio reveals that members of the chapter, including

Ms. Bosch, were actively involved in local school politics and policy, were considering creating a

charter school that would potentially compete for students with the Cabot Public School District,

and were recruiting candidates for school board races.50 The audio also reveals that members of

the chapter, including Ms. Bosch, were frustrated with some of the administrators and staff of the

Cabot Public School District for a variety of reasons.51

The audio is about one hour and forty-seven minutes long.52 The audio begins well before

the meeting formally starts.53 The meeting itself lasted approximately an hour and twenty

minutes.54 About 80 minutes into the audio recording, Ms. Bosch can be heard complaining about

an interaction between herself and school staff (including a school librarian).55 The interaction

was related to the District’s policy concerning school library books.56 Ms. Bosch voiced frustration

that “they were rude,” would not answer her questions, and “pushed back” on her requests.57 She

then said—in a somewhat more dramatic voice than she had used during the rest of the meeting—

“I’m telling you, if I was any mental issues, they would all be plowed down with a freaking gun

48 See Ex. 2 (Audio Recording) to Ex. 1 (Dep. of Melissa Bosch) of Defs.’ Mot. for Summ. J. (Doc. 44-1). 49 See Pl.’s Resp. to Def.’s Statement of Undisputed Material Facts (Doc. 58) ¶ 4. 50 See, e.g., Ex. 2 (Audio Recording) to Ex. 1 (Dep. of Melissa Bosch) of Defs.’ Mot. for Summ. J. (Doc. 44-1) at 14:05–25:15. 51 See id. at 31:27–1:23:01. 52 See generally id. 53 See id. at 0:01–28:58. 54 See id. at 28:58–1:47:47. 55 See id. at 1:19:56. 56 See id. 57 See id. at 1:22:06–09.

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by now because I have had it.”58 According to Ms. Bosch’s deposition testimony, her statement

was directed toward the District librarians, Dr. Thurman, the media, and a local group of Cabot

moms.59 Immediately after Ms. Bosch made her statement, laughter can be heard on the audio.60

It is unclear how many people are laughing, who is laughing, or whether Ms. Bosch was laughing.61

Someone else then chimed in about how “you can’t be a conservative republican and have one

moment of weakness where you flip,” to which Ms. Bosch responded, “I know.”62

Other than what is noted above, there is no evidence that anyone said anything to Ms.

Bosch or anyone else about her statement during the meeting or immediately after the meeting.

However, four days later, on June 13, 2022, one or more people anonymously posted on Facebook

and TikTok short clips of the audio recording that included Ms. Bosch’s statement.63 After hearing

the statement online, an unidentified number of individuals posted on social media that they

58 Id. at 1:22:23–31. Ms. Bosch adds something about being either a patient person or not a patient person, but what she said cannot be clearly deciphered from listening to the audio. See id. at 1:22:30–32. And neither party discusses this part of her statement. After this unclear statement, Ms. Bosch ends her comment with a dramatic “ugh.” See id. at 1:22:32. 59 See Pl.’s Resp. to Defs.’ Statement of Undisputed Material Facts (Doc. 59) ¶ 2. 60 See Ex. 2 (Audio Recording) to Ex. 1 (Dep. of Melissa Bosch) of Defs.’ Mot. for Summ. J. (Doc. 44-1) at 1:22:28– 33. 61 See id. 62 See id. at 1:22:34–38. 63 See Pl.’s Resp. to Defs.’ Statement of Undisputed Material Facts (Doc. 59) ¶ 6; Pl.’s Resp. to Def.’s Statement of Undisputed Material Facts (Doc. 58) ¶ 5; Ex. 1 (Dep. of Melissa Bosch) to Defs.’ Mot. for Summ. J. (Doc. 44-1) at 72:21–23.

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believed Ms. Bosch was a threat.64 The record specifically reveals four people voicing concerns,

but implies there were more.65

In any event, it is undisputed that the District quickly became aware of these four concerns

“and similar concerns from parents and community members after monitoring social media

responses” to the audio clip.66 It is also undisputed that “[i]n addition to concerns expressed on

social media, parents of District students called the District to express concern over their children’s

safety” because of Ms. Bosch’s statement.67 Still, aside from knowing the number is something

greater than four, how many parents overall voiced concerns on social media or directly to the

District is unknown. We do know, however, that parents were not the only ones to voice concerns.

District staff, in particular some District librarians, “contacted the District and expressed concern

for their safety based on [Ms.] Bosch’s statement.”68 (The record does not reveal anything more

about the nature and extent of the concerns expressed by District staff.) A few articles concerning

the statements were published in local papers and on national news websites.69

On June 13, 2022—the same day that the short audio clip of the Moms for Liberty meeting

was posted—Ms. Bosch called the police to file a report because she “felt like what was posted

64 See Pl.’s Resp. to Defs.’ Statement of Undisputed Material Facts (Doc. 59) ¶ 8. For example, one parent commented on Facebook: “I wanna know if I should file a complaint, being as my daughter is a library aid[e] at the high school, with the same librarian that [Ms. Bosch] made the threat against . . . .” Ex. 4 (Facebook Post) to Ex. 1 (Dep. of Melissa Bosch) of Defs.’ Mot. for Summ. J. (Doc. 44-1) at 55. Others responded to this comment, writing, for example, “[t]hat would really scare me[,]” and “. . . I would be worried as well! That lady has no business on any school[.]” Id. The same parent who remarked that Ms. Bosch had no business at the school also commented that “[n]obody feels safe with [Ms. Bosch] around their children.” Ex. 5 (Facebook Post) to Ex. 1 (Dep. of Melissa Bosch) of Defs.’ Mot. for Summ. J. (Doc. 44-1) at 56. 65 See Pl.’s Resp. to Defs.’ Statement of Undisputed Material Facts (Doc. 59) ¶¶ 12, 13. 66 Id. ¶ 12. 67 Id. ¶ 24. 68 See id. ¶ 25. 69 See Pl.’s Resp. to Def.’s Statement of Undisputed Material Facts (Doc. 58) ¶ 8; Ex. 7 (Arkansas Times Article) to Def.’s Statement of Undisputed Facts (Doc. 40-7) at 1–3; Ex. 8 (Media Matters Article) to Def.’s Statement of Undisputed Material Facts (Doc. 40-8) at 1–2.

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online sounded like it was spliced to make it look like [she] was a threat.”70 At that time, she

expressed that she was concerned because she thought the purportedly spliced audio clip “sounded

like [she] was a danger.”71 We know now that the audio clip was not spliced or otherwise altered,

although it was only a small clip of a much longer meeting.72

This brings us back to the District’s issuance of the letter on June 14, 2022. Superintendent

Thurman issued the letter without having spoken to Ms. Bosch.73 He explained to the Cabot Police

Chief that he was issuing the letter at the direction of the Cabot School Board.74 Dr. Thurman’s

statements to this effect were captured on the bodycam recording of the Cabot Police officer who

was asked to deliver the letter to Ms. Bosch.75 Specifically, Dr. Thurman said to the Chief that,

“my board wants me to make a [police] report” and “our board also wants to send her a letter of

no-trespass to be provided to her immediately.”76 In his affidavit, Dr Thurman testified that, “[i]n

response to Bosch’s statement and to help ease the actual and anticipated substantial disruption to

the District’s operations, the District decided to require Bosch to provide notification before

coming onto District property, except when dropping off and picking up her children from

school.”77 No other Moms for Liberty member received such a letter.78

70 Ex. 1 (Dep. of Melissa Bosch) to Defs.’ Mot. for Summ. J. (Doc. 44-1) at 68:19–69:4. 71 See Pl.’s Resp. to Defs.’ Statement of Undisputed Material Facts (Doc. 59) ¶ 16. 72 See id. ¶ 17. 73 See Defs.’ Resp. to Pl.’s Statement of Undisputed Material Facts (Doc. 57) ¶ 10. 74 See Ex. 12 (First Police Body Camera Video) to Def.’s Statement of Undisputed Material Facts (Doc. 40-12) at 13:53–58. 75 See id. 76 Id. at 13:44–58. 77 Ex. 2 (Aff. of Dr. Thurman) to Defs.’ Mot. for Summ. J. (Doc. 44-2) ¶ 8. 78 See Pl.’s Resp. to Defs.’ Statement of Undisputed Material Facts (Doc. 59) ¶ 33.

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2. What Happened After Ms. Bosch Got the Letter

As explored at oral argument, the scope of the restrictions placed on Ms. Bosch by the

letter is not entirely clear from the letter’s text.79 One could read the letter as saying Ms. Bosch is

only going to be allowed on District property to tend to the affairs of her kids.80 But one could

read the letter as saying that she may or will be allowed on District property for other reasons, so

long as she gives 24-hours’ notice.81 It depends on whether a reader gives primary effect to the

second sentence of the second paragraph or the fifth sentence of the second paragraph.

There is, however, some clarity as to what has happened since the letter. It is undisputed

that Ms. Bosch understood that there were no restrictions on her ability to drop off or pick up her

children at school.82 And there is no evidence that Ms. Bosch has been unable to do so at her

pleasure.83 Ms. Bosch has notified the District that she will attend her son’s football games and

school board meetings.84 The District has never denied her access to the games or the meetings.85

Ms. Bosch has testified that she has stopped going to the track, and she has refrained from going

to the tennis courts and baseball fields because she doesn’t think she should have to ask permission

or give notice to do those things.86 Because she hasn’t notified the school of her desire to use the

79 See Feb. 6, 2024 Hr’g Tr. (Rough) at 56–59. 80 See Ex. 2 (Letter) to Pl.’s Mot. for Partial Summ. J. (Doc. 42-2) (“Effective immediately, you are not permitted on Cabot School District property except to attend to the affairs of your children.”). 81 See id. (“Should it be necessary for you to enter onto Cabot School District property for any other reason, please contact myself or Michael Byrd, Deputy Superintendent, at least twenty-four (24) hours in advance of the event and/or meeting.”). 82 See Pl.’s Resp. to Defs.’ Statement of Undisputed Material Facts (Doc. 59) ¶ 30. 83 See id. ¶¶ 30, 31, 35. 84 See Ex. 1 (Dep. Of Melissa Bosch) to Defs.’ Mot. for Summ. J. (Doc. 44-1) at 165:5–7; Ex. 2 (Email) to Defs.’ Mot. for Summ. J. (Doc. 44-2) at 8, 10, 11. 85 See Pl.’s Resp. to Defs.’ Statement of Undisputed Material Facts (Doc. 59) ¶ 35. See also Ex. 1 (Dep. of Melissa Bosch) to Defs.’ Mot. for Summ. J. (Doc. 44-1) at 165:5–12. 86 See Ex. 1 (Dep. of Melissa Bosch) to Defs.’ Mot. for Summ. J. (Doc. 44-1) at 97:24–25, 162:14–165:4.

14 Case 4:22-cv-00677-LPR Document 69 Filed 02/28/24 Page 15 of 37

track, tennis courts, or baseball fields, we do not know what the District would say in response to

such requests.

The letter remains in effect despite the fact that the Cabot Police decided that Ms. Bosch’s

statement “was not made in the context of a threat[,]” and thus Ms. Bosch “would not be

[criminally] charged . . . .”87 Ms. Bosch was not given the opportunity for a hearing concerning

the District’s decision to quasi-trespass her.88 And there are no facts from either side to suggest

that District has ever given her any other avenue to challenge that decision. The rules set out in

the letter have no sunset date.89 Finally, it appears that the letter may have (at least in part) cost

Ms. Bosch a job.90

Given all this, it is not surprising that Ms. Bosch turned to the judicial system for relief. It

is also not surprising that the District, the Superintendent, and the City are aggressively defending

their actions—especially in light of the terrible spate of school shootings that the country has

suffered in the last quarter of a century.

B. Procedural History

This case was filed on July 25, 2022.91 The Amended Complaint, which is the operative

Complaint, was filed on September 26, 2022.92 In that Amended Complaint, Ms. Bosch makes

clear that the federal claims alleged in the lawsuit arise under § 1983 and § 1985.93 But she never

87 See Ex. 9 (Dr. Thurman’s Police Report) to Defs.’ Mot. for Summ. J. (Doc. 44-1) at 74. 88 See Ex. 2 (Letter) to Pl.’s Mot. for Partial Summ. J. (Doc. 42-2) (giving no opportunity for Ms. Bosch to challenge or otherwise appeal the District’s determination to limit her access to District property). 89 See id. 90 See Ex. 1 (Dep. of Melissa Bosch) to Defs.’ Mot. for Summ. J. (Doc. 44-1) at 135:11–137:6. 91 See Compl. (Doc. 1). 92 See Am. Compl. (Doc. 11). 93 See id. ¶¶ 12–13, 24–42.

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suggests the vehicle under which any pendent state law claims arise—e.g., the Arkansas Civil

Rights Act.94

Ms. Bosch brings the following claims under § 1983 against the Cabot Public School

District and Superintendent Thurman in his official capacity:

(1) a First Amendment retaliation claim with respect to Ms. Bosch’s purportedly threatening statement;95

(2) a First Amendment retaliation claim with respect to Ms. Bosch’s association with Moms for Liberty and related political activities;96

(3) a straight First Amendment claim that restricting Ms. Bosch’s access to the school prevents her from speaking, assembling, or associating with teachers, staff, and other parents;97

(4) a Fourteenth Amendment procedural due process claim with respect to the lack of notice and a hearing before or after the issuance of the letter;98

(5) a Fourteenth Amendment substantive due process claim with respect to the right to parent and control a child’s education;99

(6) a Fourteenth Amendment substantive due process claim predicated on allegedly arbitrary government action;100 and

(7) a Fourteenth Amendment equal protection claim concerning how she was treated versus how others similarly situated were treated.101

94 See id. ¶ 31. 95 See id. ¶¶ 31–35. 96 See id. ¶¶ 32.D–F. 97 See id. ¶ 32.A. 98 See id. ¶ 36. 99 See id. ¶ 33. 100 See id. ¶ 36.C. 101 See id. ¶ 37. Ms. Bosch also made a Fourteenth Amendment privileges and immunities claim with respect to the right to access and travel across public lands. But she has since explicitly abandoned this claim. See Feb. 6, 2024 Hr’g Tr. (Rough) at 8.

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Ms. Bosch sues all the Defendants (including the City) under § 1985, alleging a conspiracy to

violate her civil rights.102 She also obliquely references claims for violations of Article 2, sections

2 and 6 of the Arkansas Constitution.103 As remedies for the foregoing claims, Ms. Bosch seeks

declaratory relief, injunctive relief, mandamus relief, compensatory damages, and punitive

damages.104

On October 9, 2023, all the parties filed motions for summary judgment.105 Because this

Order must ultimately wrestle with questions of waiver, the Court details the summary judgment

briefing process far more than it would in other cases. The Court starts with Ms. Bosch’s Motion

and then discusses the Defendants’ Motions.

Ms. Bosch moved for “partial summary judgment as to liability.”106 Her Brief was 10

pages long.107 The first two pages of the Brief are facts.108 There are only two developed

arguments in the Brief: (1) her First Amendment retaliation claim with respect to her purportedly

threatening statement; and (2) her procedural due process claim.109 The retaliation argument is

four pages long.110 And the procedural due process argument is about one page long.111 The other

102 See Am. Compl. (Doc. 11) ¶ 13, 39. 103 See id. ¶ 31. 104 See id. ¶¶ 43–63. Ms. Bosch’s claim for punitive damages is out. The District and Superintendent moved for summary judgment on punitive damages, arguing that punitive damages are not recoverable against a municipal entity under § 1983. See Br. in Supp. of Defs.’ Mot. for Summ. J. (Doc. 45) at 32–33. Ms. Bosch never opposed summary judgment on these grounds. See Pl.’s Resp. to Defs.’ Motions for Summ. J. (Doc. 60) at 1–4. But even if she had, punitive damages are not recoverable against a municipality. See City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 267–68 (1981) (holding that a municipality is immune from punitive damages under § 1983). 105 See Docs. 38, 42, 44. 106 See Pl.’s Mot. for Partial Summ. J. (Doc. 42) at 1. 107 See id. 108 See id. at 1–2. 109 See id. at 3–10. 110 See id. at 5–8. 111 See id. at 8–10.

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two pages consist of one- or two-sentence boilerplate recitations of some of Ms. Bosch’s other

claims—without any elaboration.112 The only other thing of note in the Brief is a one-sentence

conclusion that the Defendants “had the power of a policy maker clothed with authority of state

and government law.”113

The City’s Response Brief was eight pages long.114 It specifically addressed the First

Amendment retaliation claim with respect to Ms. Bosch’s purportedly threatening statement.115 It

specifically addressed the procedural due process claim.116 And it specifically argued that it was

entitled to summary judgment under Monell because there was no municipal policy, practice, or

custom that was the moving force behind any alleged violation of Ms. Bosch’s constitutional

rights.117 In addition, the Brief specifically “incorporate[d] all arguments contained in [the City’s]

Brief in Support of Summary Judgment.”118 As will be discussed below, that Brief addressed all

of Ms. Bosch’s claims. Proceeding this way was understandable, because Ms. Bosch’s Motion for

Partial Summary Judgment included (as the Court has already explained) only terse, boilerplate

references to a plethora of her other claims.

For much the same reason, the 11-page Response Brief from the District and

Superintendent also adopted by reference arguments made in other summary judgment papers.119

The District and Superintendent adopted all the arguments they made in their own Motion for

112 See id. at 3–4. 113 Id. at 3. 114 See Def.’s Resp. to Pl.’s Mot. for Partial Summ. J. (Doc. 54). 115 See id. at 3–4. 116 See id. at 4–5. 117 See id. at 6–8. The City also argues that Ms. Bosch’s state constitutional claims rise and fall with her federal claims. See id. at 5–6. 118 Def.’s Resp. to Pl.’s Mot. for Partial Summ. J. (Doc. 54) at 1. Fed. R. Civ. P. 10(c) allows this. 119 See Defs.’ Resp. to Pl.’s Mot. for Partial Summ. J. (Doc. 56) at 2.

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Summary Judgment, as well as all the arguments the City made in its Motion for Summary

Judgment and in its Response to Ms. Bosch’s Motion for Summary Judgment.120 The District and

Superintendent then went on to directly address whether Ms. Bosch had a liberty interest in being

on school property,121 whether the Defendants engaged in First Amendment retaliation for the

purportedly threatening statement or for other political activity,122 and whether the Defendants

were constitutionally required to hold a hearing before or after issuing the quasi-trespass letter.123

Ms. Bosch filed a three-page Reply.124 The reply addressed only the First Amendment

retaliation issue.125 Specifically, it addressed (1) whether Ms. Bosch’s statement was a true

threat,126 (2) whether the substantial disruption test from Tinker applies to off-campus, adult

speech,127 (3) whether the substantial disruption test was met even if it applies,128 and (4) the

likelihood that the District was retaliating against Ms. Bosch for other political activity in addition

to the purportedly threatening statements.129 The Reply did not mention any other claim.130 The

Reply also did not address Defendants’ Monell arguments.131

120 See id. 121 See id. at 3, 10–11. 122 See id. at 3–10. 123 See id. at 10–11. 124 See Pl.’s Reply in Supp. of Mot. for Partial Summ. J. (Doc. 65) . 125 See id. at 1–3. 126 See id. at 1. 127 See id. at 2–3. 128 See id. 129 See id. at 3. 130 See generally id. 131 See generally id.

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As for the Defendants’ summary judgment motions, they moved for summary judgment on

all claims.132 The City’s Brief was 17 pages long.133 It directly challenged Ms. Bosch’s First

Amendment retaliation claim with respect to her purportedly threatening statement.134 It directly

challenged her pure First Amendment claim.135 It directly challenged her substantive due process,

equal protection, and procedural due process claims.136 It directly challenged her scantily-pled

state constitutional claims.137 And it directly addressed her § 1985 claims.138 It also explained that

the City was entitled to summary judgment under Monell because there was no municipal policy,

practice, or custom that was the moving force behind any alleged violation of Ms. Bosch’s

constitutional rights.139

The District and Superintendent’s Brief was 34 pages long.140 It directly challenged

Ms. Bosch’s pure First Amendment claims,141 First Amendment retaliation claims (both respecting

her purportedly threatening statement and respecting her other political activity and

associations),142 procedural due process claim,143 substantive due process claims,144 equal

132 See Br. in Supp. of Def.’s Mot. for Summ J. (Doc 39) at 1; Br. in Supp. of Defs.’ Mot. for Summ. J. (Doc. 45) at 6– 31. 133 See Br. in Supp. of Def.’s Mot. for Summ. J. (Doc. 39). 134 See id. at 3–7. 135 See id. at 4–8. 136 See id. at 9–13. 137 See id. at 13. 138 See id. at 13–15. 139 See id. at 15–17; Defs.’ Resp. to Pl.’s Mot. for Partial Summ. J. (Doc. 56) at 2 (adopting and incorporating the City of Cabot’s Brief in Support of Summary Judgment). 140 See Br. in Supp. of Defs.’ Mot. for Summ. J. (Doc. 45). 141 See id. at 6–8, 17–21. 142 See id. at 9–17. 143 See id. at 23–25. 144 See id. at 21–23.

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protection claim,145 § 1985 claim,146 state constitutional claims,147 and her request for punitive

damages.148

Plaintiff filed a Combined Brief in Response to Defendants’ Motions for Summary

Judgment.149 Her Response Brief was four pages long.150 It addressed one issue and one issue

only: Ms. Bosch’s First Amendment retaliation claim with respect to her purportedly threatening

statements.151 The brief did not even mention any of the other challenged claims, the Monell issue,

or the punitive damages issue.152

The City’s five-page Reply incorporated all of the arguments in its other summary

judgment papers.153 The City’s Reply specifically addressed Ms. Bosch’s arguments concerning

the substantial disruption doctrine from Tinker.154 The Reply from the District and Superintendent

was nine pages long.155 It adopted all arguments of all Defendants in all the summary judgment

papers.156 It asserted that Ms. Bosch did “not dispute summary judgment” on any claim except

the First Amendment retaliation claim.157 It argued (correctly, as the Court has concluded above)

that many of the facts that Ms. Bosch purportedly disputes should be deemed undisputed because

145 See id. at 26–27. 146 See id. at 28–30. 147 See id. at 30–31. 148 See id. at 32–33. 149 See Pl.’s Resp. to Defs.’ Motions for Summ. J. (Doc. 60). 150 See id. 151 See id. 152 See id. 153 See Reply Br. in Supp. of Def.’s Mot. for Summ. J. (Doc. 64) at 1. 154 See id. at 3–5. 155 See Reply Br. in Supp. of Defs.’ Mot. for Summ. J. (Doc. 66). 156 See id. at 2. 157 Id.

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of her failure to properly controvert them.158 Finally, it addressed the specifics of the First

Amendment retaliation claims,159 the pure free speech claim,160 and the issue of whether Ms. Bosch

has a liberty interest in coming onto District property.161

The Court held a summary judgment hearing on February 6, 2024.162 At that hearing,

Plaintiff all but conceded she had waived the § 1985 claim:

THE COURT: It appears to me that the Defendants, one or both of them, properly moved for summary judgment on the 1985 claim. And it appears to me that in your summary judgment briefing – and when I say that, I mean all of your summary judgment briefing, whether it was the responses –

MR. STEINBUCH: Yes.

THE COURT: – or your affirmative briefing, you did not mention 1985 at all. That strikes me as meaning you have waived the 1985 issue. If you disagree with that, I need to know why.

MR. STEINBUCH: I take Your Honor’s word that I didn’t mention it. I mean, I don’t recall specifically. If I fail to respond to the argument, is it a waiver, probably. Yeah.

THE COURT: Okay. So it strikes me that you’ve waived the 1985 issue.

MR. STEINBUCH: Okay.163

The Court then inquired whether Ms. Bosch had similarly waived all of her claims aside from the

First Amendment retaliation and procedural due process claims.164 The Court invited Ms. Bosch

(through counsel) to show the Court where in the briefing she had addressed any claims aside from

158 See id. at 2–3. 159 See id. at 4–7. 160 See id. at 7–8. 161 See id. at 3–4. 162 See Clerk’s Minutes (Doc. 68). 163 Feb. 6, 2024 Hr’g Tr. (Rough) at 9–10. 164 See id. at 10–12.

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the First Amendment retaliation and procedural due process claims.165 The Court explained that

(1) “the only thing I see that you have actually briefed is the First Amendment retaliation claim

and the procedural due process claim[,]” and (2) “[s]o unless you show me where you’ve briefed

those other [claims] and not just mentioned it in a line, but actually developed it . . . I am going to

consider those waived.”166

Ms. Bosch’s counsel acknowledged this invitation, but never took the Court up on it.167

During Ms. Bosch’s affirmative argument time, Ms. Bosch’s counsel explained that he would

address the point of rebuttal.

THE COURT: . . . If you think you have any of those claims left, except for First Amendment retaliation and procedural due process, then I need to know which ones you think you have left, and I need you to show me in the briefing—which is one of the reasons I asked for y’all to have the briefing here. I need you to show me in the briefing where you made those arguments and developed them.

MR. STEINBUCH: Okay, your Honor. And I’ll be happy to do that. Do you want me to do that now or do you want –

THE COURT: I do, if you –

MR. STEINBUCH: I mean, I don’t know offhand to be honest with you, right? That’s the point. And let me sort of contextualize. Of course, in this case, we rely heavily on the analysis, not no precedent, of the district court in Dallas in the Cain case that, you know, we’ve attached to the filings. And in that case, the Court dismissed out all of the other claims, except the First Amendment claims. So we saw that as largely driving the analysis of this Court. With that said, I don’t know which of the other claims I’ve mentioned in the briefing or not. I can do that now. I can do it after.

THE COURT: Well, what I think I would like – what I would like you to do, is when you sit down –

MR. STEINBUCH: Right.

THE COURT: – one of the things I’d like you to do is go through the briefing.

165 See id. at 10–11. 166 Id. at 12. 167 See id. at 10–11, 69–77.

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MR. STEINBUCH: Yes, sir.168

On rebuttal, Ms. Bosch’s counsel focused on legal arguments to avoid or excuse waiver.169 But he

did not point the Court to any portions of Ms. Bosch’s summary judgment briefing:

THE COURT: [I]t’s a fair legal argument. I want to make sure though, it suggests to me that you’re not telling me that I’m reading your briefs wrong. That, I’m right when I say you didn’t raise and sufficiently develop the other issues. It’s just that you think the consequence of that is not waiver, or if it’s waiver, I can overlook it; is that fair to say?

MR. STEINBUCH: Partially. Meaning, as I sat down and listened to opposing counsel as well as gone through the briefs, I can’t promise you that I have marked all the sections correctly, right? But I certainly can tell you having written those briefs, that we did not fully address all of the arguments, and I will leave it to the Court’s sound discretion to differentiate which arguments were fully addressed— let me change that, sufficiently addressed outside the scope of the First Amendment retaliation and the due process – due process.

THE COURT: Procedural due process.

MR. STEINBUCH: Thank you. Yeah, procedural due process, right. Great term.170

In addition to the broader waiver point—regarding waiver of most claims—the Court

homed in on a waiver question that would affect the two claims (First Amendment retaliation and

procedural due process) on which Ms. Bosch actually spent attention in her summary judgment

papers.171 That narrower waiver question is whether Ms. Bosch waived the Monell issue by failing

to respond to it. Recall that the Defendants argued—either expressly or by way of adoption—that

they could not be liable because the alleged unconstitutional acts were not caused by a policy,

168 Feb. 6, 2024 Hr’g Tr. (Rough) at 10–11. 169 See id. at 69–70, 72. 170 See id. at 72. 171 See id. at 10–12.

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custom, or practice.172 Ms. Bosch didn’t counter this argument in her Response, and the only

indirect, oblique reference to Monell in Ms. Bosch’s Motion for Partial Summary Judgment is a

single-sentence, unsupported assertion that the Defendants were policymakers.173

The Court engaged in a somewhat extensive colloquy with Ms. Bosch’s counsel on this

point:

THE COURT: Let me talk to you specifically for a second about the First Amendment retaliation claim.

MR. STEINBUCH: Yes, sir.

THE COURT: And the procedural due process claim.

THE COURT: And, here, I do expect you to – I hope you’re going to have some push back, and I want to know what it is.

MR. STEINBUCH: Okay.

THE COURT: The Defendants made an argument that you didn’t talk about whether you sued these – anybody in their individual capacity or official capacity, and so the law then requires it to just be an official capacity claim.

MR. STEINBUCH: Yes. That’s what it is for us.

THE COURT: Okay. Good. Which requires under Monell, a custom[] [or] policy.

THE COURT: The only thing you said on that point that I could find in your briefs was that the Defendants are policymakers.

MR. STEINBUCH: That’s correct.

THE COURT: But you didn’t explain why. You didn’t explain the law on it. You didn’t explain the facts. You didn’t, quite frankly, even explain who you’re talking

172 See Br. in Supp. of Def.’s Mot. for Summ. J. (Doc. 39) at 15–17; Defs.’ Resp. to Pl.’s Mot. for Partial Summ. J. (Doc. 56) at 2 (adopting and incorporating the City of Cabot’s Brief in Support of Summary Judgment). 173 See Pl.’s Mot. for Partial Summ. J. (Doc. 42) at 3.

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about when you say the Defendants are policymakers. So the next question I have is, have you waived those issues?

MR. STEINBUCH: I don’t think so. Meaning, as I have articulated a few moments ago, they are literally the heads of both agencies, right? The head of the police, although we’ve – no. No. No. Let me not expound on that at the moment. The head of the police and the head of the school district. It’s superintendent, right? So while I’m not a big fan of res ipsa loquitur, perhaps this is the first instance that I have been able to use it in court. I think that is indeed the archetype of a policy maker.

THE COURT: But isn’t the policy maker for the school district the school board?

MR. STEINBUCH: In some respects, yes, right? But I’m not sure those are necessarily competing, right? Meaning, the policy maker for the school board – the district is the school board for ongoing, you know, planning, shall we say for lack of a better locution. But the superintendent is the policy maker for day-to-day operations.

THE COURT: So how do I know that? And this is where honestly I’m a little bit frustrated. It’s one thing if you told me in your brief that Arkansas law makes the superintendent a policy maker and you cited me to the section of Arkansas law. It’s another thing if you told me that there is a long list of cases that say a superintendent is a policy maker and cited those long list of cases. But you didn’t do any of that. And so I’m wondering whether you legally developed that argument enough.

MR. STEINBUCH: That’s of course for you ultimately to decide, right? But, like I said, frankly, it didn’t strike me from reading the briefs from opposing counsel nor in writing our brief that that was something that was particularly in contention. That may be my failing.

THE COURT: Okay. But your argument as I understand it, and tell me if this is wrong, I really need to know.

MR. STEINBUCH: No, I understand.

THE COURT: Your argument is it’s just – it’s just very clear that the superintendent is a policy maker.

MR. STEINBUCH: Indeed.

THE COURT: And you think the superintendent is the one who made this decision, and so that is where they get Monell liability.

MR. STEINBUCH: Yes, sir. He signed the letter.

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THE COURT: I understand.174

Later on in the argument, the Court re-emphasized the importance of the Monell waiver

question:

THE COURT: In my view, your claim really comes down – your retaliation claim really comes down to, was this a true threat, did it apply under the substantial disruption Tinker analysis, which honestly, I’m going to ask a lot of questions of other side on. If you want to say anything about that when you get back up, that’s fine, and then was there a chill. I mean, that’s my view to what the real live, active dispute here is.

MR. STEINBUCH: Indeed, that goes to the first point that the Court made about what causes of action we are most pursuing.

THE COURT: And I will tell you, again, this is your case.

THE COURT: And part of the reason you are here is to be a zealous advocate for your client, so I am not suggesting that you should give up any claims.

MR. STEINBUCH: Understood.

THE COURT: But I would like when you go back to your chair to really look what you think under the briefing you waived because the way I see this, at least at this point, is really the only thing that potentially you are still proceeding on is the First Amendment retaliation claim and the procedural due process claim and everything else is waived. If you came back up here and said, Judge, you know what, you’re right, obviously that would go a long way to advancing the case and making it a quicker process when I write an opinion. On the other hand, you shouldn’t do that if you feel like I’m wrong.

THE COURT: However, there is one caveat to that. I do really want to make sure I get your full opinion on the Monell issue. And the reason I do there is because if you waive that, that could doom your First Amendment retaliation claim and your procedural due process claim, and so I think that is really important. The way I understand the ground right now is you don’t believe you’ve waived that because you said the Defendants, and really you mean the school superintendent and the chief of police, are policymakers.

174 Feb. 6, 2024 Hr’g Tr. (Rough) at 13–15.

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THE COURT: And you think that statement is enough. But I want to make sure after you go sit down, you look through the briefs and make sure that is really all you said on it.

MR. STEINBUCH: I’ll take a look, yes.

THE COURT: Thank you.175

As one would expect given this colloquy, Ms. Bosch’s counsel began his rebuttal by

discussing the Monell waiver question. But he essentially conceded that his summary judgment

briefs did not address the Defendants’ Monell arguments.

THE COURT: We’ve gone through a lot, so instead of five minutes, I’m going to give you ten minutes.

MR. STEINBUCH: I don’t know if I’ll need it, but we’ll find out. I didn’t think I’d need the first half and I did. So a few things, the Monell question. So my co- counsel Mr. Lancaster informed me and did all the research during this hearing, which is always the better way to get an answer, as to a doctrine called—and pardon my Latin—Iura novit curia, the Court’s presumed to know the law, but –

THE COURT: That’s a dangerous doctrine.

MR. STEINBUCH: Right, I know, on many levels. But what is meant by this notion is whether or not I cite to a statute or a case law, if there is a statute or a case law and you find it, that’s the law. So this goes to this waiver notion, right? And so let me give you –

THE COURT: How do you square that with the cases that say, if there are undeveloped arguments, they’re considered waived? If the doctrine you just quoted me was essentially the end all and be all, there wouldn’t be waiver in the undeveloped argument situation.

MR. STEINBUCH: Look, this is an ongoing debate, shall we say, within both the academy and the judiciary as to what is the role of a judge, right? So if I come in here incompetent, and maybe from time to time I come close to that standard, does that mean that my client is not entitled to what the law dictates if you know that the law dictates and simply I didn’t say it? And it’s always been frankly a personal frustration of mine, not in terms of my appearances, I assure you. Maybe I’ve come close to that line in the past, but because I see other people with counsel that I’m

175 Id. at 38–39.

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far more comfortable maligning than myself. And so it always concerns me that, okay, that fellow or woman didn’t do a great job, but we all know, right, we all know this is the law. . . .176

Essentially, counsel’s point was that the Court should excuse Ms. Bosch’s failure to adequately

brief the Monell policymaker issue.

At oral argument, both parties also directly addressed the merits of the First Amendment

retaliation claims.177 After the conclusion of the argument, the Court explained it would take the

case under advisement.178

II. Discussion

The Eighth Circuit has been clear that “failure to oppose a basis for summary judgment

constitutes waiver of that argument.”179 Even Ms. Bosch conceded at the summary judgment

hearing that the failure to respond to a potentially dispositive argument in favor of summary

judgment constitutes a waiver of the challenged claim.180 Given this rule, it is extraordinarily clear

that most of Ms. Bosch’s claims end here. Ms. Bosch’s Response to the Defendants’ Motions for

Summary Judgment addressed only her First Amendment retaliation claims. Her Motion for

Partial Summary Judgment addressed only her First Amendment retaliation and procedural due

process claims. Because all the other claims went unaddressed, they are clearly waived.181

176 Id. at 69–70. 177 See id. at 16–27, 34–38, 44–67, 74–77. 178 See id. at 77. 179 Satcher v. Univ. of Arkansas at Pine Bluff Bd. of Trustees, 558 F.3d 731, 735 (8th Cir. 2009). See also Paskert v. Kemna-ASA Auto Plaza, Inc., 950 F.3d 535, 540 (8th Cir. 2020) (“The ‘failure to oppose a basis for summary judgment constitutes waiver of that argument,’ because the non-moving party is responsible for demonstrating any genuine dispute of material fact that would preclude summary judgment.” (quoting Satcher, 558 F.3d at 735)). 180 See Feb. 6, 2024 Hr’g Tr. (Rough) at 10 (“If I fail to respond to the argument, is it a waiver, probably. Yeah.”). 181 The Court will consider Ms. Bosch’s Motion for Summary Judgment as sufficient to preserve the procedural due process claim, even though Ms. Bosch failed to even mention the claim in her Response to Defendants’ Motions for Summary Judgment. In her Motion for Partial Summary Judgment and Incorporated Brief in Support, Ms. Bosch argues that:

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To be sure, one could quibble with the assertion that all the other claims went unaddressed

in Ms. Bosch’s Motion for Partial Summary Judgment. But undeveloped arguments are waived

just like completely omitted arguments are.182 To the extent that Ms. Bosch scantily references

any of these other claims in her Motion for Partial Summary Judgment, the bare mention of a

particular claim is not enough to oppose summary judgment on that claim.183 For example, in Ms.

Bosch’s affirmative summary judgment motion, she asserts that the Defendants violated her right

to associate and assemble, right to equal protection, and right to privileges and immunities without

any explanation or legal citation.184 Ms. Bosch also claims that “Defendants’ exercise of police

power fails to comply with substantive due process principles, as it is and has been arbitrary and

unreasonable[,]” and “Defendants’ actions and omissions violate substantive due process because

they have been arbitrary and unreasonable.”185 These are nothing more than recitations of mere

legal conclusions. They were made without any supporting citations, and without any legal

The Fourteenth Amendment prohibits states from depriving any person “of life, liberty, or property, without due process of law.” U.S. Const. Amend. XIV, § 1. As a general rule, due process requires that “individuals must receive notice and an opportunity to be heard before the Government deprives them.” United States v. James Daniel Good Real Prop., 510 U.S. 43, 48, 114 S. Ct. 492, 126 L. Ed. 2d 490 (1993); see also Humane Soc’y of Marshall Cty. v. Adams, 439 So. 2d 150, 152 (Ala. 1983) (“The fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner.”). Thus, due process generally requires that the state afford a party threatened with a deprivation of rights a process involving pre-deprivation notice and access to a tribunal in which the merits of the deprivation may be fairly challenged. See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542, 105 S. Ct. 1487, 84 L. Ed. 2d 494 (1985). Pl.’s Mot. for Partial Summ. J. (Doc. 42) at 9–10. While short and to the point, the Court believes Ms. Bosch’s argument is sufficient to avoid claim-wide waiver. By its very nature, moving for summary judgment is opposing summary judgment in favor of the other party (or here, parties). 182 See RJT Invs. X v. Comm’r, 491 F.3d 732, 738 n.9 (8th Cir. 2007). 183 See, e.g., Cubillos v. Holder, 565 F.3d 1054, 1058 n.7 (8th Cir. 2009) (explaining that mere reference to an issue did not properly develop the argument, and, therefore, the issue was deemed waived). 184 See Pl.’s Mot. for Partial Summ. J. (Doc. 42) at 4. 185 See id. at 9.

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analysis. These are just the types of circumstances in which the Eighth Circuit has considered a

party’s arguments to be undeveloped and therefore waived.186

This leaves on the table only the First Amendment retaliation and procedural due process

claims against the District and the Superintendent.187 The problem for Ms. Bosch here is Monell—

more specifically, the problem is Ms. Bosch’s failure to respond to the Defendants’ argument that

any alleged retaliation for speech or any procedural due process violation was not the result of a

policy, practice, or custom. Here’s why.

The parties agree that the District is a municipal entity.188 All parties further agree that

Superintendent Thurman is being sued in his official capacity only. 189 That’s just another way of

suing the School District. “A plaintiff who sues public employees in their official, rather than

individual, capacities sues only the public employer and therefore must establish the municipality’s

liability for the alleged conduct.”190 Long story short, Ms. Bosch’s remaining claims are subject

to Monell.191 As recited in the procedural history portion of this Order, one of the Defendants’

186 See, e.g., United States v. Stuckey, 220 F.3d 976, 982 (8th Cir. 2000). Even assuming waiver does not operate as an absolute bar to the Court considering the claims on the merits, there is no good reason to do so here. Ms. Bosch made clear at oral argument that the claim she is really interested in pressing is the First Amendment retaliation claim. See Feb. 6, 2024 Hr’g Tr. (Rough) at 11–12. 187 As discussed in note 1 supra, logically the only claim against the City could be the § 1985 conspiracy claim. If the Amended Complaint meant to bring any of the other claims against the City, they would fail. The only actions attributable to the City were the delivery of the letter issued by the District and the investigation into the police report filed by the Dr. Thurman. Ms. Bosch does not suggest either of those specific actions violated the federal or state constitutions. The Court noted this at oral argument in its colloquy with the City. See Feb. 6, 2024 Hr’g Tr. (Rough) at 68–69. And Ms. Bosch’s counsel did not take issue with that conclusion in the immediately-subsequent rebuttal. See id. at 69–77. 188 See id. at 13, 43. 189 See id. at 13; Br. in Supp. of Defs.’ Mot. for Summ. J. (Doc. 45) at 31. See also Kelly v. City of Omaha, Neb., 813 F.3d 1070, 1075 (8th Cir. 2016) (explaining that a public official is sued in his official capacity when the plaintiff does not include an “express statement” that he is sued in his individual capacity). 190 Kelly, 813 F.3d at 1075. 191 See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978). See also Artis, 161 F.3d at 1181 (treating a school district as a municipal entity for purposes of § 1983). See also Los Angeles Cnty., Cal. v. Humphries, 562 U.S. 29, 34 (2010) (“Monell’s holding applies to § 1983 claims against municipalities for prospective relief as well as to claims for damages.”).

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arguments for summary judgment was that (1) Monell required Ms. Bosch to provide evidence of

a municipal policy, practice, or custom that was the moving force behind any alleged violation of

Ms. Bosch’s constitutional rights, and (2) she had not done so.192

Ms. Bosch did not respond to this argument at all in her papers opposing summary

judgment. And in her papers seeking summary judgment, there is only one bald assertion that the

Defendants “had the power of a policy maker clothed with authority of state and government

law[,]” and “implemented government policy under the authority of state law.”193 Considering all

her summary judgment papers together, Ms. Bosch provided no law or analysis to support her

assertion. And the only potentially relevant fact she provided was that Dr. Thurman was the

Superintendent.194

Ms. Bosch’s failure to meaningfully address Monell constitutes a waiver of the issue.195

That is true whether one considers Ms. Bosch to have not responded on the Monell issue at all or

whether one considers the single-sentence response to be entirely undeveloped.196 Either way,

Ms. Bosch is deemed to have given in on the question whether a policy, custom, or practice was

the cause of any alleged retaliation for speech or the cause of any alleged procedural due process

violation. And because proving a policy, custom, or practice was the cause of any alleged

retaliation for speech or the cause of any alleged procedural due process violation is a prerequisite

for liability, the District and Superintendent are entitled to summary judgment on those claims.

192 See Br. in Supp. of Def.’s Mot. for Summ. J. (Doc. 39) at 15–17; Defs.’ Resp. to Pl.’s Mot. for Partial Summ. J. (Doc. 56) at 2 (adopting and incorporating the City’s Brief in Support of Summary Judgment). 193 Pl.’s Mot. for Partial Summ. J. (Doc. 42) at 3. 194 In her rebuttal time at oral argument, Ms. Bosch’s counsel attempted to provide citations to state statutes and caselaw for the proposition that a Superintendent is a policymaker. See Feb. 6, 2024 Hr’g Tr. (Rough) at 73–74. But counsel conceded that none of that law or analysis was in Ms. Bosch’s briefs. See id. at 74. Oral argument rebuttal cannot be used to raise arguments that were not raised in briefing. 195 See RJT Invs., 491 F.3d at 738 n.9. 196 See id. (discussing undeveloped arguments); see also Satcher, 558 F.3d at 735 (discussing unopposed arguments).

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Unlike the Court’s ruling with respect to all the other claims in this case, the Court has

significant unease with applying the waiver doctrine in a way that dooms Ms. Bosch’s First

Amendment retaliation claims. There are two reasons for this.

First, in reviewing the record, the Court stumbled across evidence that strongly suggests

the School Board directed Superintendent Thurman to send the quasi-trespass letter. The Court

has already recited this evidence in the background facts section of this Order.197 If the School

Board made the quasi-trespass decision, it would be very difficult to say it was not a policy

sufficient to establish municipal liability. So, throwing out the First Amendment retaliation and

procedural due process claims on Monell grounds alone feels a little like sticking one’s head in the

sand.

Second, absent waiver of the Monell issue, the First Amendment retaliation claim with

respect to Ms. Bosch’s purportedly threatening statement would likely go on to a jury.198 Given

the Court’s decision to find waiver here, a full merits analysis is neither appropriate nor advisable.

But, in summary, the Court is strongly leaning in the following direction: (1) Ms. Bosch’s statement

is probably constitutionally-protected hyperbole as a matter of law,199 but at a minimum the

question of whether it’s constitutionally-protected hyperbole or a true threat gets to the jury;200

197 See supra, pages 12–13. 198 The First Amendment retaliation claim with respect to other political activity would not go to a jury. There is no evidence from which a reasonable jury could conclude any causal connection between Ms. Bosch’s other political activity and the quasi-trespass action by the District. Among many other things, the quasi-trespass decision was limited to Ms. Bosch; it did not include any other Moms for Liberty members of political activists of the same stripe. This only makes sense if the letter was related to Ms. Bosch’s purportedly threatening statement as opposed to her other political activity. The procedural due process claim would also fail at summary judgment, for the reasons set out in Lovern v. Edwards, 190 F.3d 648, 656 (4th Cir. 1999), Porter v. Duval Cnty. Sch. Bd., 406 F. App’x 460, 462 (11th Cir. 2010) (per curiam), and other similar cases. Essentially, Ms. Bosch does not have a property or liberty interest in coming on District grounds that would trigger the procedural due process requested. 199 See Watts v. United States, 394 U.S. 705, 706–08 (1969) (holding that, given the context, the statement “[i]f they ever make me carry a rifle the first man I want to get in my sights is L.B.J.” was not a true threat). 200 See Brandy v. City of St. Louis, Missouri, 75 F.4th 908, 915 (8th Cir. 2023) (“In the absence of unusual facts . . . , the question whether a statement amounts to a true threat is a question generally left to a jury.”).

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(2) Tinker’s substantial disruption doctrine does not apply to off-campus speech by adults;201 (3)

the restrictions and limitations placed on Ms. Bosch by the School District were a response to, and

motivated by, her purportedly threatening statement;202 and (4) whether the restrictions and

limitations would chill a person of ordinary firmness from continuing in the activity is a triable

question on which a reasonable jury could go either way.203

Despite the two reasons for caution just discussed, the Court does not believe the

circumstances presented here provide sufficient justification to ignore the principle of party

presentation.204 That principle is deeply rooted in our judicial system. It serves to ensure judges

maintain their role as umpires and avoid becoming fans.205 The Court should not be in the business

of saving litigants from the consequences of their conduct of the litigation—including their choices

of what issues to develop and what issues not to develop.206

201 No Supreme Court case nor any Eighth Circuit case has extended Tinker’s substantial disruption doctrine to truly off-campus speech by adults. And, to the best of the Court’s knowledge and the parties’ knowledge, neither has any circuit court in this country. See Feb. 6, 2024 Hr’g Tr. (Rough) at 60–62. The few out-of-circuit district court cases identified by Defendants that have done so are unpersuasive—especially in light of the extreme caution urged by the Supreme Court in Mahanoy when extending Tinker to off-campus student speech. See Mahanoy Area Sch. Dist. v. B.L. by & through Levy, 141 S. Ct. 2038, 2045–46 (2021). Transforming a doctrine originally focused on school supervision of on-campus student speech into a new First Amendment exception applicable to adult speech anywhere and anytime is too far a leap for this Court. Neither the original understanding of the First Amendment nor the logic of the Supreme Court precedent suggests that such a breathtaking extension of Tinker would be appropriate. See id.; Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 508–09 (1969). 202 See Scheffler v. Molin, 743 F.3d 619, 621 (8th Cir. 2014) (explaining that, among other things, a plaintiff must show that the adverse action—here, the District’s decision to limit Ms. Bosch’s access to District property—was motivated in part by the plaintiff’s exercise of his or her constitutional rights—here, the statement Ms. Bosch made at the Moms for Liberty meeting). 203 See Garcia v. City of Trenton, 348 F.3d 726, 729 (8th Cir. 2003) (“Ultimately, [the question of chill] is usually best left to the judgment of a jury, twelve ordinary people, than to that of a judge, one ordinary person. The jury, after all, represents the conscience of the community. It decides many similar questions—for example, what would a person of ordinary prudence have done in certain circumstances? Here, the matter is sufficiently close, in our view, to come within the jury’s province.”). 204 See Ivey v. Audrain Cnty., Missouri, 968 F.3d 845, 851 (8th Cir. 2020) (“The principle of party presentation counsels against adopting theories of a plaintiff’s case that he does not advance, much less one that he expressly disclaims.”). 205 See id. (“[J]udges should decide only questions presented by the parties.” (internal quotation marks and citations omitted)). 206 See id.

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At oral argument, Ms. Bosch’s counsel suggested that “it didn’t strike [him] from reading

the briefs from opposing counsel nor in writing [his] brief that [the Monell issue] was something

that was particularly in contention.”207 But the Monell issue was a key and clear part of the

Defendants’ summary judgment arguments. The City dedicated multiple pages to the argument

across three of its summary judgment papers.208 And the School District and Superintendent made

clear that they were adopting all the City’s arguments.209 Ms. Bosch had every opportunity to

identify and respond to this argument. Indeed, it appears that Ms. Bosch knew from the very

beginning that her claims required proving a policy, custom, or practice. Otherwise, why allege in

the Amended Complaint and assert (in a single sentence) in her Motion for Partial Summary

Judgment that the Defendants were policymakers?210 Given that Ms. Bosch knew this was a

necessary argument, her failure to develop it is that much worse.

Furthermore, Ms. Bosch’s failure to address the Defendants’ Monell argument was not an

isolated failure. It was part and parcel of a failure to address numerous arguments—indeed, the

large majority of arguments—made by Defendants, as well as a failure to properly controvert facts

set out by Defendants. Essentially, Ms. Bosch appears to have briefed only the “sexy” issues in

this case (e.g., true threat vs. substantial disruption vs. protected speech, as well as chilling effect)

and left it to the Court to sort out all the other issues. Ms. Bosch more or less said as much at oral

argument.211 This is not the way to litigate a case. Caveat advocatus. Caveat litigans.

207 Feb. 6, 2024 Hr’g Tr. (Rough) at 15. 208 See Br. in Supp. of Def.’s Mot. for Summ. J. (Doc 39) at 15–17; Def.’s Resp. to Pl.’s Mot. for Partial Summ. J. (Doc. 54) at 6–8; Reply in Supp. of Def.’s Mot. for Summ. J. (Doc. 64) at 5. 209 See Defs.’ Resp. to Pl.’s Mot. for Partial Summ. J. (Doc. 56) at 2; Reply in Supp. of Defs.’ Mot. for Summ. J. (Doc. 66) at 2. 210 See Am. Compl. (Doc. 11) ¶ 26; Pl.’s Mot. for Partial Summ. J. (Doc. 42) at 3. 211 See Feb. 6, 2024 Hr’g Tr. (Rough) at 69–70.

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As to the Court’s independent discovery of evidence that the School Board likely directed

the creation and transmission of the letter, that discovery is less worrisome because Ms. Bosch did

not pursue this legal theory. Her position was (and still is) that Superintendent Thurman is a

policymaker. Ms. Bosch never pressed an argument that the Board was responsible for the letter.

Even after the Court brought up this evidence during oral argument, Ms. Bosch’s counsel still

maintained the position that the reason the letter qualifies as a policy is that the Superintendent is

a policymaker.212 It is Ms. Bosch’s right to elect what legal theory she wants to pursue. But it is

also her responsibility to support the argument with law and analysis. She failed to do so.

Finally, the failure prejudiced Defendants. Had Ms. Bosch responded to their Monell

argument in her briefing, Defendants could have reviewed the facts and law on which Ms. Bosch

relied and addressed them in Reply briefs. Ms. Bosch’s failure to respond prevented the

Defendants from having that opportunity. Instead, she dumped a bunch of Monell-related law and

statutes on the Court at the last possible moment—during her rebuttal argument at the hearing.213

That’s not fair to the Defendants, let alone the Court.

CONCLUSION

For the foregoing reasons, Plaintiff’s Motion for Partial Summary Judgment (Doc. 42) is

DENIED and Defendants’ Motions for Summary Judgment (Docs. 38 and 44) are GRANTED.

The Court wishes to emphasize that an appeal of this Order would be quite reasonable. And the

Court would be neither surprised nor perturbed if the Eighth Circuit concluded that this Court

overapplied the waiver doctrine with respect to the Monell issue or undervalued the reasons to

overlook any waivers of the Monell issue by Ms. Bosch. Were the Eighth Circuit to reverse on

212 See id. at 14–15, 73. 213 See Feb. 6, 2024 Hr’g Tr. (Rough) at 73–74.

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this waiver issue, the Court would likely move this case to trial on the First Amendment retaliation

claim with respect to the purportedly threatening statement made by Ms. Bosch.214 It certainly

seems like a reasonable jury could go either way on that issue.215

IT IS SO ORDERED this 28th day of February 2024.

________________________________ LEE P. RUDOFSKY UNITED STATES DISTRICT JUDGE

214 The Court has previously (even if briefly) explained why it would likely grant Defendants summary judgment on the merits of the procedural due process claim and the First Amendment retaliation claims based on Ms. Bosch’s political activity, apart from the purportedly threatening statements. See supra note 198. 215 The Court would likely wait until trial to make a final determination on whether the Court would (1) direct jurors as a matter of law that Ms. Bosch’s statement was protected speech, or (2) let jurors determine whether Ms. Bosch’s statement was protected speech or a true threat.