Appellate Case: 25-8039 Document: 43-1 Date Filed: 05/04/2026 Page: 1 FILED United States Court of Appeals PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS May 4, 2026 Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________
ANDY SMITH; ERIN SMITH; GRACE SMITH,
Plaintiffs - Appellants,
v. No. 25-8039
ALBANY COUNTY SCHOOL DISTRICT NO. 1 BOARD OF TRUSTEES; JANICE MARSHALL, in both her individual and official capacities as Chairman for the Board of Trustees for Albany County School District No. 1; NATE MARTIN, in both his individual and official capacities as Trustee for the Board of Trustees for Albany County School District No.1; KIM SORENSON, in both his individual and official capacities as Trustee for the Board of Trustees for Albany County School District No. 1; EMILY SIEGEL-STANTON, in both her individual and official capacities as Trustee for the Board of Trustees for Albany County School District No. 1; BETH BEAR, in both her individual and official capacities as Chairman for the Board of Trustees for Albany County School District No. 1; LAWRENCE PAREA, in both his individual and official capacities (and/or his successor(s) in their official capacity) as Trustee for the Board of Trustees for Albany County School District No. 1; DR. JUBAL YENNIE, Ed.D., in both his individual and official capacities (and/or his successor(s) in their official capacity) as Superintendent of Albany County Appellate Case: 25-8039 Document: 43-1 Date Filed: 05/04/2026 Page: 2
School District No. 1; JEFF LEWIS, in both his individual and official capacities (and/or his successor(s) in their official capacity) as Principal of Laramie High School,
Defendants - Appellees. _________________________________
Appeal from the United States District Court for the District of Wyoming (D.C. No. 2:23-CV-00159-KHR) _________________________________
Submitted on the briefs: *
Randy B. Corporon and Matthew T. Arnold, Law Offices of Randy B. Corporon, P.C., Greenwood Village, Colorado, and Roxie Lee Hensley, Hensley Law, LLC, Laramie, Wyoming, for Plaintiff-Appellants.
L. Kathleen Chaney and Eric D. Hevenor, Lambdin & Chaney, LLP, Denver, Colorado, for Defendants-Appellees. _________________________________
Before TYMKOVICH, MURPHY, and BACHARACH, Circuit Judges. _________________________________
TYMKOVICH, Circuit Judge. _________________________________
Grace Smith was a junior at Laramie High School in September 2021 when the
Albany County School District No. 1 Board of Trustees instituted a COVID-19
indoor mask mandate. She refused to wear a mask, causing school administrators to
* After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.
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repeatedly suspend her and, eventually, to have her arrested when she would not
leave school grounds. In response, Grace and her parents sued the Board, the
superintendent, and the Laramie High School principal (collectively, the District)
under 42 U.S.C. § 1983 and Wyoming law for allegedly infringing on their federal
and state rights.
The federal claims accuse the District of violating (1) the First Amendment by
compelling speech and retaliating against Grace for her protected opposition to
compelled speech, and (2) the Fourteenth Amendment’s due-process guarantee by
depriving her of her protected property interest in a public education. The district
court granted the District’s motion to dismiss for failure to state a claim on each of
the federal causes of action, declined to exercise supplemental jurisdiction over the
state-law claims, and dismissed the case.
Exercising jurisdiction under 28 U.S.C. § 1291, we AFFIRM. A compelled-
speech claim requires the plaintiff to allege some message that the government entity
forced the plaintiff to propound. But the Smiths have alleged no such message.
Their retaliation claim fails because they have not adequately alleged that Grace’s
refusal to wear a mask was expressive conduct protected by the First Amendment, or
that her other protest activity was the but-for cause of the District’s decision to
punish her. Further, the Smiths’ complaint reveals that Grace received notice and
opportunity for a hearing before she was suspended, which was sufficient process to
satisfy the Fourteenth Amendment’s requirements. Thus, the district court correctly
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dismissed each of the federal claims and acted within its discretion by dismissing the
supplemental state-law claims.
I. Background
Grace started her junior year at Laramie High School in late August 2021. In
response to a local uptick in COVID-19 cases at the time, the District superintendent
developed a COVID mitigation plan that included an indoor mask mandate for
kindergarten through twelfth grade. The Board approved the mandate on September
8, effective through October 15. On the first day of implementation, September 9,
Grace and other students who refused to wear masks were forced to leave school.
After exiting the school, Grace stood outside and held two signs reading “no more
masks” and “join our peaceful protest.” App. 28. The next day, Grace led a walkout
of roughly eighty students to protest the mandate.
Grace and her father met with the District superintendent on September 15 to
discuss the mandate and challenge the District’s authority to implement it. When
Grace asked about potential consequences for refusing to wear a mask, the
superintendent said it “is the same as any other Board policy regarding student
behavior” and stated specific punishment would be up to the Board. App. 29.
On September 30, Grace received a two-day out-of-school suspension for not
complying with the mask mandate. When she returned to school on October 5 and
again refused to mask, the Laramie High School principal issued her a second two-
day suspension. Grace initially refused to leave the school but departed after
receiving a trespass citation from the Laramie Police Department. She returned to 4 Appellate Case: 25-8039 Document: 43-1 Date Filed: 05/04/2026 Page: 5
school on October 7 and received a third two-day suspension for not masking. But
this time, Grace did not leave after a police officer cited her for trespassing. The
officer eventually arrested Grace, drove her to the police station, booked her, and
released her to her father.
Grace did not return to school when her suspension ended. On October 13, she
spoke to the Board over Zoom and withdrew from Laramie High School.
Grace’s parents, Andy and Erin Smith, sued the Board, superintendent, and
Laramie High School principal in Wyoming state court. Acting for themselves and
on Grace’s behalf, the Smiths brought six claims—three federal and three state. The
federal claims all fall under § 1983 and allege the Board: (1) deprived Grace of her
First Amendment rights by compelling speech, (2) violated the First Amendment by
retaliating against Grace for protesting the mask mandate, and (3) violated the
Fourteenth Amendment by depriving Grace of a protected property interest in
education without due process. The state-law claims allege: (4) the Board interfered
with the Smiths’ fundamental right to care for their child in violation of the Wyoming
constitution and state statutes, (5) the Board acted ultra vires by enacting a public
health policy without authority, and (6) the Wyoming legislature exceeded its state-
constitutional powers by enacting a statute modifying public health authorities.
The District removed the suit to federal court and moved to dismiss for lack of
subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1) and failure
to state a claim under Rule 12(b)(6). The district court held that the Smiths had not
alleged an injury-in-fact and therefore lacked standing. As a result, it dismissed the
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federal claims for lack of subject matter jurisdiction and declined to exercise
supplemental jurisdiction over the state-law claims. We reversed, holding the Smiths
had alleged an injury-in-fact because they alleged Grace was repeatedly punished for
opposing the mandate, had been suspended three times, and was cited for trespassing
and arrested when she refused to leave campus. Smith v. Albany Cnty. Sch. Dist. No.
1 Bd. of Trs., 121 F.4th 1374, 1377–78 (10th Cir. 2024).
On remand, the district court dismissed each of the federal claims for failure to
state a claim under Rule 12(b)(6). First, it held the mask mandate was not compelled
speech. Next, it held the school district did not retaliate against Grace because her
non-compliance with the mandate was not protected speech. Further, the Smiths had
not plausibly alleged a link between Grace’s protected speech—leading the walkout
and discussing her opposition to the mandate with the superintendent—and the
District’s disciplinary actions. Finally, it held Grace had not adequately alleged a
due-process violation because the complaint did not allege facts sufficient to show a
deprivation of process. After dismissing the federal claims, the court declined to
exercise supplemental jurisdiction over the state claims.
II. Discussion
The Smiths appeal the dismissal of their federal claims and urge us to consider
their state-law claims. They argue mask wearing is a form of speech that cannot be
compelled and say the district court was wrong to hold otherwise. Further, they
contend that Grace’s refusal to mask was expressive conduct protected under the
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First Amendment and that the District’s decision to punish Grace for her
noncompliance was therefore unlawful retaliation.
As for Grace’s other protest activity, the Smiths argue the close temporal
proximity between the walkout and suspensions establishes a retaliatory motive.
They also claim the mask mandate violated substantive and procedural due process
by arbitrarily infringing on Grace’s right to “breathe freely” and depriving her of her
property interest in a public education. Opening Br. 32. Finally, the Smiths ask us to
consider the merits of their state-law claims if any of their federal claims survives our
review.
We review a district court’s dismissal for failure to state a claim under Rule
12(b)(6) de novo. SEC v. Shields, 744 F.3d 633, 640 (10th Cir. 2014). To survive a
motion to dismiss, “a complaint must contain enough allegations of fact, taken as
true, ‘to state a claim to relief that is plausible on its face.’” Khalik v. United Air
Lines, 671 F.3d 1188, 1190 (10th Cir. 2012) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)). “Threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009).
In a First Amendment case, we “make an independent examination of the
whole record in order to make sure that the judgment does not constitute a forbidden
intrusion on the field of free expression.” Rohrbough v. Univ. of Colo. Hosp. Auth.,
596 F.3d 741, 745 (10th Cir. 2010).
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A. First Amendment Compelled Speech
The Smiths argue that the District’s mask mandate compelled Grace to speak
against her will. Since, in their view, the District had no authority to promulgate a
public health order, the mask mandate had no legitimate purpose and was instead
imposed to “endorse a favored message.” Opening Br. 19. But the Smiths’
complaint does not articulate what message they believe the mandate conveyed. That
deficiency is fatal to their compelled-speech claim.
The First Amendment prohibits the government from telling people what they
must say “in politics, nationalism, religion, or other matters of opinion.” W. Va.
State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943). It does not matter “whether
the government seeks to compel a person to speak its message when he would prefer
to remain silent or to force an individual to include other ideas with his own speech
that he would prefer not to include.” 303 Creative LLC v. Elenis, 600 U.S. 570, 586
(2023). In line with these principles, we have interpreted the Amendment as
protecting against “(1) speech; (2) to which [a person] objects;” being “(3) compelled
by some governmental action.” Cressman v. Thompson (Cressman II), 798 F.3d 938,
951 (10th Cir. 2015) (addressing imagery on an Oklahoma license plate).
The First Amendment’s definition of speech extends beyond the written and
spoken word to cover other communicative conduct such as “symbolic speech.” Id.
But not all communicative conduct qualifies. Rather, conduct must be “sufficiently
imbued with elements of communication to fall within the scope of the First and
Fourteenth Amendments.” Spence v. Washington, 418 U.S. 405, 410–11 (1974).
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Conduct can qualify for First Amendment protection if “[a]n intent to convey a
particularized message was present, and the likelihood was great that the message
would be understood by those who viewed it.” Id.
The Supreme Court reaffirmed the Spence-test in Texas v. Johnson, 491 U.S.
397 (1989) (addressing flag burning at a protest rally), but subsequently recognized
that “a narrow, succinctly articulable message is not a condition of constitutional
protection,” Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Bos., 515 U.S. 557,
569 (1995) (addressing message expressed by St. Patrick’s Day parade organizers
through the parade’s composition). We have interpreted Hurley in the compelled-
speech context as modifying the Spence-test by eliminating the “particularized
message” requirement. Cressman II, 798 F.3d at 956. Thus, a party asserting a
compelled-speech claim based on symbolic speech must identify either a
“particularized [or] general message . . . that a reasonable observer would perceive.”
Id.
The Smiths’ complaint does not identify any particular or general message
compelled by the mask mandate. Instead, the Smiths allege that the “wearing of
masks is a form of speech,” App. 16, that the mandate compelled Grace “to utter
what [wa]s not in h[er] mind,” App. 33 (alterations in original) (quoting Barnette,
319 U.S. at 634), and that she disagreed “with compelled speech which was
unlawfully cloaked as a public health mandate,” App. 33. But in reality each of these
statements is a “legal conclusion couched as a factual allegation” which we are “not
bound to accept.” Iqbal, 556 U.S. at 678. Regardless, the relevant inquiry is not
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whether wearing masks qualifies as speech in the abstract—it might in some
contexts; we must determine whether a reasonable observer would discern that the
District’s mask mandate communicated a message identified by the Smiths. See
Cressman II, 798 F.3d at 956. The Smiths have framed their allegation at too high a
level of abstraction and fail to identify any readily identifiable message conveyed by
the mandate. That failure undermines their claim and prevents us from proceeding to
the second, reasonable-observer step in the symbolic-speech inquiry. 1
We recognize that the Smiths later identified—in their briefing—possible
messages conveyed by the mandate. In their response to the motion to dismiss in the
district court, for example, the Smiths claimed the mandate compelled an outward
expression of “agreement with government health policies.” App. 113. The Smiths’
opening brief similarly argues the District adopted the mandate “to send the message
that masking was the ‘right’ thing to do, and that the Board was the ‘right’ body to
make that decision.” Opening Br. 23. And their reply brief contends that the
mandate’s “particularized message” was “obey, comply, conform.” Reply Br. 12.
But when reviewing a Rule 12(b)(6) dismissal, we may consider only the complaint
and “attached exhibits and documents incorporated into the complaint by reference.”
Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009) (citation omitted). We
express no opinion on whether the messages the Smiths identified in their briefing
1 Simply put, we cannot assess whether a reasonable observer would understand the mandate’s message without knowing what the message is.
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meet the Cressman II standard; we merely note that we cannot consider them because
they are outside the pleadings.
The Smiths’ failure to plead a particular or general message compelled by the
mask mandate means their compelled-speech claim fails on the first prong of the
analysis. See Cressman II, 798 F.3d at 951 (explaining a compelled-speech claim
must first establish “speech”). We therefore affirm the dismissal of the Smiths’
compelled-speech claim.
B. First Amendment Retaliation
The Smiths’ second claim alleges the District unlawfully retaliated against
Grace for exercising her First Amendment right to speak on a matter of public
concern. “The First Amendment bars retaliation for protected speech and
association.” Buck v. City of Albuquerque, 549 F.3d 1269, 1294 (10th Cir. 2008). A
First Amendment retaliation claim has three components: (1) the “plaintiffs were
engaged in constitutionally protected activity”; (2) the “defendants caused the
plaintiffs to suffer an injury that would chill a person of ordinary firmness from
continuing to engage in that activity”; and (3) the “defendants’ actions were
motivated by plaintiffs’ protected activity.” Id. (citing Worrell v. Henry, 219 F.3d
1197, 1212 (10th Cir. 2000)).
According to the Smiths’ complaint, Grace engaged in three forms of
constitutionally protected activity: (1) organizing and leading a walkout against the
mask mandate, (2) speaking with District officials about her opposition to the
mandate, and (3) engaging in symbolic speech by refusing to comply with the
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mandate. They further alleged the District’s decision to suspend Grace three times
and to have her fined and arrested for trespassing would chill a person of ordinary
firmness from continuing to protest the mandate. And they claim the District was
motivated to punish Grace for her “open defiance of the . . . requirement for indoor
mask use.” App. 37.
The district court determined the “walkout and related demonstrations” were
protected speech but found the Smiths had not alleged a causal link between those
activities and her suspensions. It also held that non-compliance with the mandate
was not First Amendment speech and therefore was not protected activity. As a
result, the Smiths had not plausibly alleged a case of unlawful retaliation. 2 We agree.
1. Walkout Demonstration
The District does not contest the district court’s determination that Grace’s
participation in the walkout and related demonstrations was protected activity. 3 It
also does not challenge, and therefore concedes, that the Smiths have adequately pled
2 The district court did not address Grace’s discussions with District administrators. The Smiths’ opening brief does not mention the meeting or argue that the district court erred by not discussing it. As a result, we do not address that allegation on appeal. See Muscogee (Creek) Nation v. Pruitt, 669 F.3d 1159, 1166 (10th Cir. 2012) (“Issues designated for review are lost if they are not actually argued in the party’s brief.” (citation modified)). 3 The District’s response brief argues only that the Smiths have not met the first element of retaliation because Grace’s “refusal to wear a mask was not protected First Amendment speech.” Resp. Br. 38.
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the chilling prong of a retaliation claim. That leaves only causation—or
motivation—for our review.
In a First Amendment retaliation claim, “a plaintiff must establish a ‘causal
connection’ between the government defendant’s ‘retaliatory animus’ and the
plaintiff’s ‘subsequent injury.’” Nieves v. Bartlett, 587 U.S. 391, 398 (2019)
(quoting Hartman v. Moore, 547 U.S. 250, 259 (2006)). Retaliatory motive “must be
a ‘but-for’ cause, meaning that the adverse action against the plaintiff would not have
been taken absent the retaliatory motive.” Id.
The Smiths’ complaint alleges the District suspended Grace for “open defiance
of the . . . requirement for indoor mask use.” App. 37. A straightforward reading of
that language conveys the District punished Grace for her refusal to wear a mask on
campus. It does not indicate at all—let alone clearly or sufficiently—that the
District’s actions were motivated by Grace’s role in the walkout. And even under a
generous reading of the complaint, the Smiths have not alleged that participation in
the walkout was the but-for cause of Grace’s suspensions. Thus, the Smiths’ own
allegation that the District punished Grace for refusing to comply with the mask
mandate itself undercuts their argument that the District was motivated by the
walkout.
The Smiths claim the temporal proximity between Grace’s suspension and the
walkout supports an inference of retaliation. Even assuming that twenty days
between protected activity and punishment is sufficiently brief to support their
argument, we have repeatedly explained that “the mere temporal proximity of a
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Plaintiff’s protected speech to the adverse action is insufficient, without more, to
establish a retaliatory motive.” Baca v. Sklar, 398 F.3d 1210, 1221 (10th Cir. 2005)
(citation modified). Relying on a Title VII case, the Smiths contend that “temporal
proximity may support a prima facie inference that the protected activity was a
contributing factor” to the adverse action. Opening Br. 28 (citing Clark Cnty. Sch.
Dist. v. Breeden, 532 U.S. 268, 273–74 (2001)). Even if the same inference applied
in the First Amendment context, a finding that protected activity was a contributing
factor falls short of Nieves’s requirement that it be the “but-for” cause. 587 U.S. at
398. Thus, the Smiths’ argument for an inference from temporal proximity—without
more—falls short of the necessary showing for retaliatory motive.
In sum, the Smiths have not plausibly alleged that Grace’s participation in the
walkout was the but-for cause of her suspensions. As a result, their claim that the
District retaliated against her for that protected activity fails.
2. Refusal to Wear a Mask
The Smiths’ next argument is that Grace’s refusal to wear a mask was a
symbolic expression of her “disagreement with compelled speech.” App. 36. Unlike
their walkout allegation, the Smiths’ claim that the District punished Grace for open
defiance of the mask mandate establishes the necessary link between the alleged
protected activity and the District’s motivation. Thus, the key question is whether
Grace’s refusal to mask is symbolic speech protected by the First Amendment.
The district court held that Grace’s conduct was not constitutionally protected
because compliance or noncompliance with a policy is not “forced speech or
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expressive conduct.” App. 155. It explained that mask-wearing—and impliedly the
choice not to do so—is not “primarily expressive” and therefore not protected speech.
App. 156. As a result, Grace’s refusal to wear a mask was not speech and could not
support a claim of First Amendment retaliation. We stop short of endorsing a per se
rule that noncompliance with a policy regulating conduct can never receive First
Amendment protection. See Troster v. Penn. State Dep’t of Corr., 65 F.3d 1086,
1093 (3d Cir. 1995) (explaining “refusal to comply with a governmental directive
may in some cases amount to symbolic protest covered by the First Amendment”).
But we agree with the district court that Grace’s noncompliance with the District’s
mask mandate in this context does not cross the line into protected expressive
conduct for First Amendment purposes.
Again, whether conduct is sufficiently communicative to warrant First
Amendment protection is determined by the Spence-test. Johnson, 491 U.S. at 404.
To survive dismissal the Smiths must allege that Grace’s conduct (1) “inten[ded] to
convey a particularized message,” 4 and (2) “in the surrounding circumstances the
likelihood was great that the message would be understood by those who viewed it.”
Spence, 418 U.S. at 410–11. They satisfy the first element by asserting a message of
“disagreement with compelled speech which was unlawfully cloaked as a public
health mandate.” App. 36–37. Their complaint, however, does not plausibly allege a
4 Since the Smiths allege Grace’s conduct communicated a particularized message, we need not decide whether Hurley modified the first Spence prong outside the compelled-speech context.
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“great likelihood” that an onlooker would understand Grace’s message. For instance,
in context of the pandemic and contemporaneous debate over the efficacy of masks,
an observer could reasonably conclude Grace was not masking for reasons unrelated
to supposed compelled speech: that she generally disagreed with the mandate, that
she had a health-related reason not to wear a mask, or that she believed masks offered
no meaningful protection from COVID-19.
The complaint also describes Board meetings in which Board members and the
superintendent acknowledged they were not public health officers and debated their
authority to mandate masks despite state and county public health agencies’ explicit
decisions not to. App. 23–27. Thus, an observer, aware of the circumstances of the
District’s decision to implement the mandate, could conclude Grace’s non-masking
was meant to convey her belief that the District had no authority to impose a
mandate. But we think it is unlikely that an onlooker would discern a message of
opposition to compelled speech that the mandate symbolically represented. Indeed,
the existence of other more plausible explanations for a person’s decision to defy a
mask mandate weighs against finding that an observer would be very likely to
identify Grace’s particular message. See Falcone v. Dickstein, 92 F.4th 193, 207 (3d
Cir. 2024) (finding a refusal to mask “susceptible to multiple interpretations”).
The Smiths make two unsuccessful counterarguments. First, they say Grace’s
defiance of the mandate “conveyed a message of opposition” that was “amplified by
the walk-out and protest signs.” Opening Br. 25. But as we have already discussed,
we will not entertain the Smiths’ late attempts to convert Grace’s message into
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something different from the one alleged in the complaint. Regardless, we do not see
how carrying signs that read “no masks” and “join our peaceful protest” plainly
communicate opposition to compelled speech. See App. 28. More fundamentally,
the suggestion that Grace’s message needed explanatory support from her other
protest activities counsels against finding that her refusal to mask was expressive
conduct. See Rumsfeld v. F. for Acad. & Institutional Rts., Inc., 547 U.S. 47, 66
(2006). While context drives the expressive-conduct inquiry, a plaintiff cannot
“transform conduct into ‘speech’ simply by talking about it.” Id. Thus, if “the
expressive component” of Grace’s conduct “is not created by the conduct itself but
by the speech that accompanies it,” then that conduct “is not so inherently expressive
that it warrants protection.” Id.
Second, the Smiths claim their factual allegation that multiple students and
school staff members told Grace they “received and understood [her] pure symbolic
speech” satisfies the Spence-test’s requirement. 5 But the fact that an unidentified
number of observers understood Grace’s intended message does not answer the legal
question of whether there was a great likelihood that observers would understand the
5 Pure speech is “[w]ords or conduct limited in form to what is necessary to convey [an] idea.” Speech, Black’s Law Dictionary (12th ed. 2024). Because pure speech implicates core First Amendment considerations, it is “rigorously protected regardless of meaning.” Cressman II, 798 F.3d at 951. The Smiths’ complaint and briefing repeatedly blurs the categories of pure speech and symbolic speech. For clarity, we note Grace’s refusal to wear a mask does not qualify as pure speech and is subject to the test for allegedly symbolic conduct. See id. (identifying types of pure speech and collecting cases).
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message. The test is an objective one; it cannot be met through a general claim that
an unknown number of people told Grace they subjectively understood her message.
See White House Vigil for ERA Comm. v. Clark, 746 F.2d 1518, 1540 (D.C. Cir.
1984) (describing the second prong as the “objective requirement[] of the
constitutional test”).
Instead, the Smiths needed to allege facts about the context of Grace’s refusal
to mask that would enable an objective reasonable observer to understand her
message. See Spence, 418 U.S. at 410 (“[T]he context in which a symbol is used for
purposes of expression is important, for the context may give meaning to the
symbol.” (citing Tinker v. Des Moines Indep. Sch. Dist., 393 U.S. 503 (1969))). But
the complaint does not allege that necessary context—it does not indicate that
compelled speech was a topic of concern in the community at the time, or that
students, parents, or staff widely considered the mandate as implicating speech.
Rather, the Smiths’ recounting of discussions at Board meetings reveals that the
prevailing issues were the pandemic and what efforts the District could take to
protect students from disease. In that context, we cannot conclude an objective
observer would identify what is, essentially, an idiosyncratic message against
compelled speech.
Since Grace’s refusal to mask is not expressive conduct protected by the First
Amendment, it cannot serve as the basis for a retaliation claim. We affirm the
district court’s dismissal of the Smiths’ retaliation claim on those grounds.
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C. Deprivation of Due Process
The Smiths’ final federal claim contends that the District deprived Grace of
due process in violation of the Fourteenth Amendment. The complaint alleges a
deprivation of due process arising from the District’s “promulgat[ion] and
enforce[ment] [of] the [m]ask [m]andate.” App. 41. It specifically claims that the
District “arbitrarily and capriciously deprived [Grace] of protected property
interests,” App. 41, a category of interests safeguarded by procedural due process,
see Mathews v. Eldridge, 424 U.S. 319, 332 (1976). In the lower-court proceedings,
however, the District construed the allegation as a substantive due process claim, and
the parties argued it on those grounds. Since the district court addressed both
procedural and substantive due process, we do the same. The Smiths fail under either
theory.
1. Procedural Due Process
The Smiths allege the District “failed to meet basic constitutional standards of
due process when [it] promulgated and enforced the Mask Mandate.” App. 40–41.
And they claim the District “arbitrarily and capriciously deprived [Grace] of
protected property interests, including, but not limited to, education, body autonomy,
medical decision making, and to be afforded protection offered under [Wyoming
law].” App. 41. Further, they claim Grace had a “legitimate entitlement to a public
education” and could not be deprived of that right by imposition of “an illegal
compelled speech mandate.” App. 40. While the Smiths do not fully develop their
procedural due process argument, they argue “students are entitled to due process
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protections before being deprived of their education.” Opening Br. 32 (citing Goss v.
Lopez, 419 U.S. 565, 572 (1975)). We read the complaint as most clearly alleging
the District deprived Grace of her protected property interest in a public education
without sufficient process.
“The Fourteenth Amendment forbids the State to deprive any person of life,
liberty, or property without due process of law.” Goss, 419 U.S. at 572. Students
have a protected property interest in public education when state law entitles them to
one. Id. at 573. A student also has a protected liberty interest when his “good name,
reputation, honor, or integrity is at stake because of what the government is doing to
him.” Id. at 574 (quoting Wisconsin v. Constantineau, 400 U.S. 433, 437 (1971)).
That protection extends to a student’s punishment for alleged misconduct. Id. at 575.
We have no doubt that Grace’s three two-day suspensions interfered with her
ability to receive a public education to which she was entitled by Wyoming law. See
Wyo. Stat. Ann. § 21-4-301 (2025) (mandating school districts provide free education
to all children ages five to twenty-one). The question, then, is whether the District
afforded her adequate process. For suspensions of ten days or less, “due process
requires . . . that the student be given oral or written notice of the charges against him
and, if he denies them, an explanation of the evidence the authorities have and an
opportunity to present his side of the story.” Goss, 419 U.S. at 581. “[A]s a general
rule notice and hearing should precede removal of the student from school.” Id. at
582. The hearing need not be formal, and students are not entitled to “the
opportunity to secure counsel, to confront and cross-examine witnesses supporting
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the charge, or to call his own witnesses to verify his version of the incident.” Id. at
583.
The Smiths’ complaint does not adequately allege that the school district
denied Grace sufficient process before suspending her. To the contrary, the
complaint acknowledges that Grace and several family members met with the District
superintendent to discuss the mask mandate before she was suspended. At that
meeting, the superintendent told Grace that refusing to wear a mask would be treated
“the same as any other Board policy regarding student behavior.” App. 29. Further,
before issuing each of the suspensions, the Laramie High School principal informed
Grace she was being suspended for “continu[ing] to demonstrate open defiance of the
authority of the ACSD#1 Board of Trustees requirement for indoor mask use.” App.
30 (alteration in original). The Smiths do not claim Grace ever denied the charge
when confronted. Yet they acknowledge that upon receiving her third suspension
Grace was afforded a “pre-suspension conference” with a school administrator. App.
30. She does not suggest the District denied her a similar conference before her first
or second suspensions, or claim the conference was in any way deficient.
In sum, the District provided Grace notice and an opportunity to be heard
before her suspensions. For short suspensions like Grace’s, that is all the Fourteenth
Amendment requires. See Goss, 419 U.S. at 581–82.
2. Substantive Due Process
Though the complaint alleges a deprivation of procedural due process, the
Smiths argued in district court that the mask mandate implicated substantive due
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process. Since the district court addressed the parties’ arguments and the Smiths
continue to press the claim on appeal, we address it for completeness.
We recognize “two types of substantive due process claims: (1) claims that the
government has infringed a fundamental right; and (2) claims that governmental
action deprived a person of life, liberty, or property in a manner so arbitrary it shocks
the judicial conscience.” Stepp v. Lockhart, 168 F.4th 1286, 1313 (10th Cir. 2026)
(citation modified); see also Timothy M. Tymkovich, Joshua Dos Santos & Joshua J.
Craddock, A Workable Substantive Due Process, 95 Notre Dame L. Rev. 1961, 1989–
93 (2020) (discussing the two strands of substantive due process). “[W]e apply the
fundamental-rights approach when the plaintiff challenges legislative action, and the
shocks-the-conscience approach when the plaintiff seeks relief for tortious executive
action.” Halley v. Huckaby, 902 F.3d 1136, 1153 (10th Cir. 2018). The Smiths
allege the District “failed to meet basic constitutional standards of due process when
[it] promulgated and enforced” the mandate. App. 40–41. We construe the
mandate’s promulgation as a legislative act and its enforcement as an executive one
and analyze each in turn.
Due process “guards against arbitrary legislation by requiring a relationship
between the [law] and the government interest it seeks to advance.” Dias v. City and
County of Denver, 567 F.3d 1169, 1181 (10th Cir. 2009). If the enactment implicates
a fundamental right, it must be “narrowly tailored to serve a compelling state
interest.” Washington v. Glucksberg, 521 U.S. 702, 721 (1997) (quoting Reno v.
Flores, 507 U.S. 292, 302 (1993)). A fundamental right or liberty interest is one that
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is “deeply rooted in this Nation’s history and tradition” and “implicit in the concept
of ordered liberty.” Id. at 720–21.
The Smiths’ complaint does not identify a qualifying fundamental right.
Rather, their opening brief, for the first time, asserts a right “to breathe freely,
unencumbered by restrictive, ineffective, bacteria-accumulating (and thus disease-
inducing) facial coverings.” Opening Br. 32. Even if we overlook the pleading
insufficiency and preservation issues inherent in advancing a new theory on appeal,
see Utah Animal Rts. Coal. v. Salt Lake Cnty., 566 F.3d 1236, 1244 (10th Cir. 2009),
the Smiths make no argument for a fundamental right to breathe freely; they make
only a bare, unsupported assertion. They cite no legal authority recognizing the right
and do not argue it is “deeply rooted in this Nation’s history and tradition.”
Glucksberg, 521 U.S. at 721. Their failure to argue adequately for a fundamental
right means the mask mandate is not subject to strict scrutiny.
Though the mandate does not implicate a fundamental right, it must
nonetheless “be rationally related to legitimate government interests.” Id. at 728.
Rational-basis review is highly deferential to government action. Seegmiller v.
LaVerkin City, 528 F.3d 762, 772 (10th Cir. 2008). To succeed, the Smiths must
“show the governmental act complained of does not further a legitimate state purpose
by rational means.” Id. (citing Powers v. Harris, 379 F.3d 1208, 1215 (10th Cir.
2004)). They have not met that burden.
States have a legitimate interest in “[s]temming the spread of COVID-19.”
Roman Cath. Diocese of Brooklyn v. Cuomo, 592 U.S. 14, 18 (2020) (describing the
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interest as “unquestionably . . . compelling”). So the Smiths must show the District’s
mask mandate was not rationally related to that interest. But their complaint mounts
no attack against the mandate’s rational basis, contains no allegation that a mask
mandate is unrelated to the goal of reducing COVID transmission, and presents no
facts that would support such a claim. And at the time the District implemented its
mandate, public health agencies were widely promoting such policies. As a result,
the Smiths’ rights-based substantive due process claim fails. See Iqbal, 556 U.S. at
679 (“[O]nly a complaint that states a plausible claim for relief survives a motion to
dismiss.”).
The second strand of substantive due process protects against tortious
executive action that shocks the conscience. Stepp, 168 F.4th at 1313. “‘Conduct
that shocks the judicial conscience’ is ‘deliberate government action that is arbitrary
and unrestrained by the established principles of private right and distributive
justice.’” Id. at 1313–14 (quoting Hernandez v. Ridley, 734 F.3d 1254, 1261 (10th
Cir. 2013)). “This standard is exacting, and only the most egregious official conduct
can be said to be arbitrary in the constitutional sense.” Lindsey v. Hyler, 918 F.3d
1109, 1116 (10th Cir. 2019) (citation modified).
The Smiths allege the District “arbitrarily and capriciously abused [its] power
and deprived [Grace] of her constitutionally protected property interests.” App. 41.
We are unpersuaded. Whatever might be said of imposing school mask mandates or
punishing students for non-compliance, neither action shocks the conscience given
the widespread directives from public health officials that mandates had some utility.
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Contrary to the Smiths’ characterization of Grace’s punishment as “extreme,”
Opening Br. 30, the Supreme Court has recognized short suspensions as a permissible
disciplinary measure when students are afforded sufficient process. Goss, 419 U.S.
at 584. As already discussed, Grace received all the process the Constitution
required before each of her suspensions.
Finally, the Smiths’ portrayal of Grace’s arrest after her refusal to leave
campus as “clearly disproportionate to any purported school interest,” Opening Br.
30, falls flat. The Smiths cite no authority supporting their argument that the District
had to allow Grace, a suspended student, to remain on school grounds. Given the
adequacy of the process Grace received for the suspensions and her persistent refusal
to depart when asked by administrators and police, the District’s actions do not meet
the “exacting” standard for conscience-shocking government behavior. Lindsey, 918
F.3d at 1116.
The Smiths have not adequately alleged an unlawful infringement of a
protected right or government action so arbitrary that it is conscience shocking.
Thus, their substantive due process claim fails.
D. State Law Claims – Supplemental Jurisdiction
After dismissing the Smiths’ federal claims, the district court declined to
exercise supplemental jurisdiction over the remaining state-law claims regarding the
District’s authority under state law to impose a mask mandate. That refusal was well
within the court’s discretion. See Koch v. City of Del City, 660 F.3d 1228, 1248
(10th Cir. 2011) (“When all federal claims have been dismissed, the court may, and
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usually should, decline to exercise jurisdiction over any remaining state claims.”).
On appeal, the Smiths do not challenge the district court’s decision and instead argue
that if “even one of the federal claims survive[s] review,” we should exercise
supplemental jurisdiction to review the remaining state-law claims. Opening Br. 33.
Since we have affirmed the dismissal of all the federal claims, the district court did
not abuse its discretion in dismissing the supplemental state-law claims.
III. Conclusion
For the foregoing reasons, we affirm the district court’s judgment.