David G. Chandler Ethan R. Depweg v. McMinnville School District Thomas Chapman Mike Hyder Carole Whitehead

978 F.2d 524, 978 F.3d 524, 92 Cal. Daily Op. Serv. 8816, 92 Daily Journal DAR 14603, 1992 U.S. App. LEXIS 27834, 1992 WL 308695
Court of Appeals for the Ninth Circuit·Decided October 28, 1992·No. 91-35051·Published·Cited by 77 cases

Opinions

[526] WALLACE, Chief Judge:

Chandler and Depweg appeal from a decision of the district court dismissing their action for failure to state a claim. They seek declaratory and injunctive relief and compensatory damages for violation of their First Amendment rights under the United States and Oregon Constitutions. The district court had jurisdiction pursuant to 28 U.S.C. §§ 1331, 1343. We have jurisdiction over this timely appeal pursuant to 28 U.S.C. § 1291. We reverse and remand.

I

On February 8, 1990, the school teachers in McMinnville, Oregon commenced a lawful strike. In response to the strike, the school district hired replacement teachers. Chandler and Depweg were students at McMinnville High School and their fathers were among the striking teachers. On February 9, 1990, Chandler and Depweg attended school wearing various buttons and stickers on their clothing. Two of the buttons displayed the slogans “I’m not listening scab” and “Do scabs bleed?” Chandler and Depweg distributed similar buttons to some of their classmates.

During a break in the morning classes, a temporary administrator saw Depweg aiming his camera in a hallway as if to take a photograph. The administrator asserted that Depweg had no right to take his photograph without permission and instructed Depweg to accompany him to the vice principal’s office. Chandler witnessed the request and followed Depweg into the office, where they were met by vice principal Whitehead. Whitehead, upon noticing the buttons, asked both students to remove them because they were disruptive. Dep-weg told Whitehead that his morning classes had not been disrupted. A replacement teacher in one of Depweg’s classes confirmed that there had been no disruption. Nonetheless, Whitehead ordered that the buttons be removed. Chandler and Depweg, in the belief that the buttons were protected as a lawful exercise of free speech, refused to comply. They also refused to be separated. Whitehead then suspended them for the remainder of the school day for willful disobedience.

Depweg and Chandler returned to school on February 13, 1990, the next regularly scheduled school day, with different buttons and stickers on their clothing. They each wore a button that read “Scabs” with a line drawn through it (i.e., “no Scabs”), and a sticker that read “Scab we will never forget.” In addition, they displayed buttons with the slogans “Students united for fair settlement,” and “We want our real teachers back.” Approximately 1:45 p.m., assistant vice principal Hyder asked Chandler to remove those buttons and stickers containing the word “scab” because they were disruptive. Chandler, anticipating further disciplinary action, complied with the request.

Chandler and Depweg filed this action in district court, pursuant to 42 U.S.C. § 1983, alleging that the school officials’ reasons for requesting the removal of the buttons were false and pretextual, and therefore violated their First Amendment rights to freedom of expression. They state that the buttons caused no classroom disruption. They further allege that many of their classmates wore the same buttons, but that none were asked to remove them. Chandler and Depweg charge that the school singled them out for punishment, in violation of their First Amendment rights to freedom of association, because they led the student protest against the school district’s decision to hire replacement teachers.

The school district moved to dismiss the complaint for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. The district court granted the motion, stating that the slogans on the buttons were “offensive” and “inherently disruptive.”

II

We review the dismissal of a complaint for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure de novo. Arcade Water Dist. v. United States, 940 F.2d 1265, 1267 (9th Cir. 1991). “Our review is based on the con[527] tents of the complaint, the allegations of which we accept as true and construe in the light most favorable to the plaintiff.” Hoesterey v. Cathedral City, 945 F.2d 317, 318 (9th Cir.1991) (Hoesterey), cert. denied, — U.S. —, 112 S.Ct. 1941, 118 L.Ed.2d 546 (1992). A court should not grant a motion to dismiss for failure to state a claim unless “it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957).

A.

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David G. Chandler Ethan R. Depweg v. McMinnville School District Thomas Chapman Mike Hyder Carole Whitehead, 978 F.2d 524, 978 F.3d 524, 92 Cal. Daily Op. Serv. 8816, 92 Daily Journal DAR 14603, 1992 U.S. App. LEXIS 27834, 1992 WL 308695 (9th Cir. 1992).

978 F.2d 524 (David G. Chandler Ethan R. Depweg v. McMinnville School District Thomas Chapman Mike Hyder Carole Whitehead) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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