Rodriguez v. Harrison School District Two et al

OCR transcription for search; preserved printed pages are authoritative

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
District Judge S. Kato Crews

Civil Action No.: 1:23-cv-02769-SKC-MDB

J.R., a minor, by and through his mother and general guardian,
EDEN HOPE RODRIGUEZ

Plaintiff,
Vv.
HARRISON SCHOOL DISTRICT TWO, et ail.,

Defendants.

ORDER RE: THREE MOTIONS TO DISMISS (DKTS. 51, 52 & 53)

Plaintiff J.R. is a minor and student at Defendant Cheyenne Mountain Charter
Academy d/b/a the Vanguard School (the “School’), a charter school chartered by
Defendant Harrison School District Two (the “District”). At the start of the 2023-24
school year, school officials pulled J.R. out of classes for displaying various patches
on his backpack that included the Gadsden flag and different representations of
firearms. This lawsuit ensued.

The Amended Complaint (“AC”) (Dkt. 48) alleges violations of J.R.’s First
Amendment rights against the School, the District, and several of their respective
officials (in their official and individual capacities), and seeks damages, declaratory

judgment, and injunctive relief.

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The matter is now before the Court on three motions to dismiss filed by

different groups of the Defendants. The District and Defendants Wendy Birhanzel

(Superintendent) and Mike Claudio (Assistant Superintendent) filed one motion to

dismiss (“District MTD”). Dkt. 53. The School filed the second motion to dismiss

(“School MTD”) with Defendants Renee Henslee (Executive Director) and Jeff Yocum

(Director of Operations).! Dkt. 51. And, Defendant Beth Danjuma (former Assistant

Principal) filed the last motion to dismiss (“Danjuma MTD”). Dkt. 52. The following

chart summarizes J.R.’s claims against each Defendant alleged in the AC:

CLAIM

DEFENDANTS

First Claim: As-Applied Violation of Right to
Free Speech under the First and Fourteenth
Amendments — Damages

Birhanzel, individually
Claudio, individually
Henslee, individually
Yocum, individually
Danjuma, individually

Second Claim: As-Applied Violation of Right
to Free Speech under the First and
Fourteenth Amendments — Damages —
Monell Claim?

District
School

Third Claim: As-Applied Violation of Right
to Free Speech under the First and
Fourteenth Amendments — Injunctive & Decl.
Relief

District

School

Birhanzel, officially
Claudio, officially
Henslee, officially
Yocum, officially

Fourth Claim: Facial First Amendment
Challenge to Reference to Weapons Policy —
Overbreadth — Injunctive and Decl. Relief

District
School

1 The District, Birhanzel, and Yocum are collectively referred to as the “District
Defendants.” The School, Henslee, and Yocum are the “School Defendants.

2 See Monell v. Dep’t of Soc. Servs.,

Section C.4.

436 U.S. 658, 690 (1978). See also infra

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CLAIM DEFENDANTS

Fifth Claim: First Amendment Violation — | District

Retaliation for Engaging in Protected Free | School

Speech Activity Birhanzel, officially and individually
Claudio, officially and individually
Henslee, officially and individually
Yocum, officially and individually
Danjuma, officially and individually

Plaintiff filed a consolidated Response to the MTDs. Dkt. 84. Each Defendant
group filed a Reply. Dkt. 94 (District Defendants); Dkt. 92 (School Defendants);
Dkt. 90 (Danjuma). J.R. filed a Notice of Supplemental Authorities (Dkt. 98), and the
Court permitted the District Defendants to file a Response to the Notice (Dkt. 101).
The Court has reviewed all the briefing, the docket, and the relevant law. No hearing
is necessary. The Court has jurisdiction under, inter alia, 28 U.S.C. § 1331.

A. LEGAL PRINCIPLES

1. Rule 12(b)(1)

Federal courts, as courts of limited jurisdiction, must have a statutory basis
for their jurisdiction. See Morris v. City of Hobart, 39 F.3d 1105, 1111 (10th Cir. 1994)
(citing Castaneda v. INS, 23 F.3d 1576, 1580 (10th Cir. 1994)). Under Federal Rule
of Civil Procedure 12(b)(1), the court may dismiss a complaint for lack of subject
matter jurisdiction. The determination of a court’s subject matter jurisdiction is a
question of law. Madsen v. United States ex rel. U.S. Army, Corps of Eng’ rs, 841 F.2d
1011, 1012 (10th Cir. 1987). “A court lacking jurisdiction cannot render judgment but
must dismiss the cause at any stage of the proceedings in which it becomes apparent

that jurisdiction is lacking.” Basso v. Utah Power & Light Co., 495 F.2d 906, 909 (10th
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Cir. 1974).
A motion to dismiss for lack of subject matter jurisdiction may take two forms.
See Holt v. United States, 46 F.3d 1000, 1002 (10th Cir. 1995). It may facially attack
a complaint’s allegations or it may challenge the facts upon which subject matter
jurisdiction depends. Id. at 1002-1003.
When reviewing a factual attack on subject matter jurisdiction, a district
court may not presume the truthfulness of the complaint’s factual
allegations. 	A 	court 	has 	wide 	discretion 	to 	allow 	affidavits, 	other
documents, 	and 	a 	limited 	evidentiary 	hearing 	to 	resolve 	disputed
jurisdictional facts under Rule 12(b)(1). In such instances, a court’s
reference to evidence outside the pleadings does not convert the motion
to a Rule 56 motion.
Id. at 1003 (internal citations omitted); see also Wheeler v. Hurdman, 825 F.2d 257,
259 n.5 (10th Cir. 1987). “The burden of establishing subject-matter jurisdiction is on
the party asserting jurisdiction.” Montoya v. Chao, 296 F.3d 952, 955 (10th Cir. 2002)
(citing Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)). “The
district 	court 	is 	given 	discretion 	in 	determining 	the 	procedure 	to 	employ 	in
considering a motion to dismiss for lack of jurisdiction . . . .” Fed. Deposit Ins. Corp.
v. Oaklawn Apartments, 959 F.2d 170, 174 (10th Cir. 1992) (quoting Ten Mile Indus.
Park v. Western Plains Serv. Corp., 810 F.2d 1518, 1524 (10th Cir. 1987)).
2. 	Rule 12(b)(6)
Under Rule 12(b)(6), a court may dismiss a complaint for “failure to state a
claim upon which relief can be granted.” See Fed. R. Civ. P. 12(b)(6). In deciding a
motion under Rule 12(b)(6), the court must “accept as true all well-pleaded factual
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allegations . . . and view these allegations in the light most favorable to the plaintiff.”
Casanova v. Ulibarri, 595 F.3d 1120, 1124-25 (10th Cir. 2010) (internal citations
omitted). But the Court is not “bound to accept as true a legal conclusion couched as
a factual allegation.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (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). To
survive a motion to dismiss, “a complaint must contain sufficient factual matter,
accepted as true, to state a claim to relief that is plausible on its face.” Id. at 678
(cleaned up).
The Twombly/Iqbal pleading standard first requires the court to identify
which allegations “are not entitled to the assumption of truth” because, for example,
they state legal conclusions or merely recite the elements of a claim. Id. It next
requires the court to assume the truth of the well-pleaded factual allegations “and
then determine whether they plausibly give rise to an entitlement to relief.” Id. at
679. In this analysis, courts “disregard conclusory statements and look only to
whether the remaining, factual allegations plausibly suggest the defendant is liable.”
Khalik v. United Air Lines, 671 F.3d 1188, 1191 (10th Cir. 2012). The standard is a
liberal one, however, and “a well-pleaded complaint may proceed even if it strikes a
savvy judge that actual proof of those facts is improbable, and that recovery is very
remote and unlikely.” Dias v. City & Cnty. of Denver, 567 F.3d 1169, 1178 (10th Cir.
2009).
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B. FACTUAL BACKGROUND
Taking the well-pleaded factual allegations as true for purposes of analyzing
the Motions, the Court discerns the following relevant facts.
When J.R. filed the AC, he was a seventh-grade student at the School for the
2023-24 school year. Dkt. 43, ¶14. The School is “a public charter school authorized
by the [District].” Id. The District has “responsibility for the oversight and operation
of local public and charter schools, including The Vanguard School.” Id. at ¶15.
Birhanzel is the Superintendent of the District, and Claudio is the Assistant
Superintendent. Id. at ¶¶16-17. “Birhanzel is the highest level executive of Defendant
School District. Her decisions, including the decision to ban J.R. from displaying his
patches, represent official policies of Defendant School District.” Id. at ¶100. Henslee
is the Executive Director of the School, Yocum is its Director of Operations, and
Danjuma is the former Assistant Principal. Id. at ¶¶19-21.
At all relevant times, J.R. placed various patches on his school backpack. Id.
at ¶60. At the start of the school year, the patches included: (1) a monochrome
American flag patch; (2) several patches of Pac Man ghosts holding firearms (“Ghost
Patches”); (3) a patch displaying the words “Firearms Policy Coalition Official
Member” with an image of a firearm (the “FPC Patch”); (4) a patch with the Dogecoin
cryptocurrency logo; (5) a patch with the words “Bear Arms N’ Bitcoin 2020;” (6) a
“display of a person wearing an ATF cap looking over a wall;” and (7) a patch
parodying the Gadsden Flag and containing a coiled snake on a red field with the
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words “DON’T TELL ON ME” (“Parody Flag Patch”). Id. at ¶61. He later removed
several of these patches and replaced them with others, to include: (1) a patch of the
traditional Gadsden Flag; (2) a homemade banner stating “J-Rod 4 VP Revolution;”
and (3) several patches depicting Saint Michael, a religious symbol, holding a sword.
Id. at ¶63.
According to the AC, “J.R. sought to convey various messages through both his
choice of specific patches to display and through the overall organization and
arrangement of these elements on his backpack.” Id. at ¶65. These messages include
supporting the Firearms Policy Coalition (an advocacy organization focused on the
Second Amendment), “the social utility of responsible firearm ownership, and his
support for Second Amendment-protected freedoms,” “his support for the right of
Americans to self-manufacture [ghost guns],’” and “his bedrock political view that
government should ‘stay in its lane’ and be limited to strictly necessary functions, so
as to protect individual freedoms.” Id. at ¶¶66-68; see also id. at ¶¶69-70.
“Although he rotates his patches from time to time, J.R. has generally
displayed the same dozen or so patches or similar patches on his backpack for a
number of years . . . ,” including the two prior years he was a student at the School.
Id. at ¶76. None of his “patches [caused] any disruptions inside or outside school or
in any way impede[d] the educational mission of The Vanguard School during the
2022-23 or 2021-22 school years, much less cause a substantial disruption.” Id. at
¶¶77, 79-80.
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In August 2023, however, Defendants viewed J.R.’s patches as problematic. “A
Dress Code, designated as Policy ‘JICA’ in the School District’s policy manual, was in
effect at the beginning of the . . . 2023-24 school year.” Id. at ¶27. The District has
had a dress code policy since 2013. Id. “[A] key provision of the code flatly prohibits
students from displaying ‘any . . . symbols, words, slogans, patches, or pictures
that . . . [r]efer to . . . weapons’ (the ‘Reference to Weapons Policy’).” Id. at ¶29. “The
Reference 	to 	Weapons 	Policy 	prohibits any 	expression 	‘refer[ring]’ to 	weapons
whatsoever, without any consideration of the definition of a weapon . . . , or whether
the particular expression could reasonably be deemed disruptive to the classroom
environment, or the maintenance of a safe and orderly school.” Id. at ¶30.
On August 3, 2023, Claudio presented a “Student and Staff Dress Code Policy
Update” to the District’s Board of Directors. Id. at ¶36. The presentation included
several examples of dress code violations, including an image of the Gadsden Flag
with the rationale, “Designer of the flag was Christopher Gadsden, a slave trader &
owner of slaves. Reminder of the resentment of whites towards the slaves.” Id. at
¶¶38, 40. “Claudio’s presentation represents the official policy of Defendant District.
Defendant District further ratified both Defendant Claudio’s presentation and his
later decisions to apply Defendant District’s policies to bar J.R. from displaying
certain expressive images on his backpack.” Id. at ¶41.
Based 	on 	a 	“Charter 	School 	Contract 	establishing 	Defendant 	Districts’
supervision and control over Defendant The Vanguard School, The Vanguard School
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has a nominal exemption from the District’s Dress Code policies.” Id. at ¶42. But “any
purported exemption is illusory. In actual practice, the Dress Code, including the
Reference to Weapons Policy and the District’s ban on politically disfavored messages
such as the Gadsden Flag, applies with full force to The Vanguard School and all of
its students.” Id. at ¶43.
While J.R. had worn his patches in previous years, “[o]n or around August 18,
2023, less than a week after the start of the new school year, J.R. was summoned to
the principal’s office by Defendant Danjuma, and informed that an unidentified staff
member had allegedly complained that his patches were inappropriate in some
unspecified way.” Id. at ¶84. J.R. then removed the Ghost Patches but kept the FPC
Patch and the Parody Flag Patch. Id. at ¶85.
The following Monday, “J.R. was again summoned to the principal’s office in
reference to his patches” and told by Yocum “that the FPC patch was forbidden under
the Reference to Weapons Policy.” Id. at ¶86. Yocum emailed J.R.’s mother “a
hyperlink to Defendant District’s Dress Code, and specifically stated that the ban on
patches or images that ‘[r]efer to . . . weapons’ was being applied to J.R. pursuant to
the District’s policy.” Id. At a meeting the same day, “while admitting that the FPC
Patch was not disruptive, and that the school did not consider J.R. to represent a
threat to anyone, Mr. Yocum opined that the ‘images themselves are considered not
safe to be in schools.’” Id. at ¶87. Yocum “understood that there were potentially free
speech concerns at play, and that he would discuss the matter with counsel for the
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District and/or The Vanguard School, and would get back to J.R. and his family with
an official determination on the propriety of J.R.’s expression within a matter of
days.” Id. at ¶89.
Two days later, Yocum “relayed Defendants’ official determination that J.R.
was barred from displaying the FPC Patch. The decision was made jointly by
Defendant The Vanguard School and Defendant School District.” Id. at ¶90. They
also barred the Parody Flag Patch. Id. Yocum “stated that he had consulted the
school’s attorney, as well as Defendant District. Defendant Yocum asserted that the
patches were being barred because they could allegedly ‘be deemed disruptive or
potentially disruptive to the classroom environment.’” Id. at ¶91. Yocum told J.R. that
he had to remove the FPC Patch and the Parody Flag Patch or he could not return to
classes; J.R., however, did not comply. Id. at ¶¶92-93. Henslee then sent emails to
J.R.’s mother demanding he remove the patches, which J.R. finally did. Id. at ¶¶94-
95. “[T]he decisions to bar J.R. from displaying patches on his backpack were made
by both The Vanguard School and the District acting jointly, notwithstanding the
nominal exemption from the District Defendants’ policies purportedly enjoyed by The
Vanguard School.” Id. at ¶44.
“On Monday, August 28, 2023, J.R. returned to school, having removed all of
the patches Defendants previously barred.” Id. at ¶97. “Partially to protest the
censorship that he suffered, J.R. added the traditional Gadsden Flag Patch and two
Saint Michael patches.” Id. at ¶96. J.R. was again pulled from classes into the
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principal’s office. Id. at ¶98. His mother “was called to an emergency meeting at the
school, during which Defendant Danjuma relayed that the District Superintendent
(Defendant Birhanzel) had determined that the Gadsden Flag was unacceptable
under the Dress Code.” Id. at ¶99. “The sole rationale for Defendants’ ban on display
of the Gadsden Flag was, in Defendant Danjuma’s words, ‘due to its origins [in]
slavery and the slave trade.’ Defendant Danjuma further stated ‘we can’t have [the
Gadsden Flag] in and around other kids.’” Id. at ¶102. “J.R. was not allowed to return
to class for the remainder of the day.” Id. at ¶107.
After the end of the school day, Yocum sent an email to elaborate on
Defendants’ reasons for barring J.R.’s Gadsden Flag patch. Id. at ¶108. In his email,
Yocum,
cited to articles by advocates arguing that the Gadsden Flag was “[t]ied
to” various contemporary political movements disfavored by the articles’
authors. The articles, in turn, decried the purported link between the
Gadsden 	Flag 	and 	such 	things 	as 	“hard-line 	Republican 	anti-tax
movement[s],” and “political protests . . . opposing restrictions on gun
ownership and objecting to rules imposed in 2020 to slow the spread of
the coronavirus.” Some of the articles also noted that the originator of
the Flag, Christopher Gadsden, owned slaves and was involved in the
slave trade in the 18th Century. According to Defendant Yocum, in the
present day, the flag is also “tied to” what he called “‘Patriot’ groups”
and “other white-supremacy [and . . .] hate groups.”
Id. Yocum “had been coordinating with Defendant Claudio.” Id. at ¶118. And
“Defendants’ rationale was arrived at jointly” by the School Defendants and District
Defendants. Id. at ¶109.
Other students at the School and other District schools regularly express
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themselves by displaying symbols, words, slogans, patches or pictures. For example,
“students regularly display patches or other accessories concerning lesbian, gay and
bisexual 	students. 	Additionally, 	students 	regularly 	display 	patches 	or 	other
accessories expressing views on the topic of climate change.” Id. at ¶46. Staff at the
School 	and 	other 	District 	schools 	do 	the 	same. 	For 	example, 	“staff 	members
prominently display bumper stickers with strong political and other messages on
automobiles parked on school property.” Id. at ¶48.
After J.R.’s mother’s meeting with Danjuma, video of the meeting circulated
on social media. Id. at 133. The School then “issued a statement ‘recogniz[ing] the
historical significance of the Gadsden flag and its place in history.’ The statement
also asserted that ‘[a]t this time, the Vanguard School Board and the District have
informed the student’s family that he may attend school with the Gadsden flag patch
visible on his backpack.’” Id. at ¶137. But “Claudio has never provided assurances
that J.R. would be free from further censorship targeting the Gadsden Flag Patch. To
the contrary, Defendant Claudio explicitly reserved the right to once again bar
display of the patch. Defendant Claudio informed Ms. Rodriguez that Defendants
were temporarily allowing J.R. to wear the patch, stating they would continue to
allow the patch ‘until [they receive a complaint] from [a] student or staff member.’”
Id. at ¶139. Further, “Defendants have not lifted their ban on the FPC Patch, the
Ghost Patches, or the Parody Flag Patch.” Id. at ¶140.
J.R. has resumed wearing the Gadsden Flag patch, the Ghost Patches, and the
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FPC Patch. Id. at ¶¶143-44. But the AC asserts “Defendants[’] forbearance is only
temporary and will be reversed as soon as Defendants deem it expedient to do so.” Id.
at ¶144.
Following the media spotlight on J.R. and the Defendants, other students at
the School have verbally and physically harassed J.R. Id. at ¶145. Defendants have
failed to intervene to address this harassment and intimidation despite being
informed of these incidents. Id. at ¶147. J.R. has also reported to school officials that
other students have stolen patches from his backpack, including the Gadsden Flag
patch, but Defendants “have failed to investigate or intervene to prevent or redress
this misconduct.” Id. at ¶148.
C. ANALYSIS
1. 	The District’s and School’s Challenge to Plaintiff’s Standing3
3 As an initial matter, the District MTD includes a contract between the District and
School (“School Contract”) in its appendix. Dkt. 53-1, pp.1-22. Those Defendants then
cite to provisions of the School Contract in support of their arguments. They further
argue that the Court may consider the School Contract because “a court is permitted
to review the complaint, its attachments, and documents incorporated into the
complaint by reference.” Dkt. 53, p.4 n.2. But they do not explain where or how J.R.
incorporated or relied on the School Contract in his AC. To the contrary, the AC states
only, “On information and belief, pursuant to a Charter School Contract establishing
Defendant Districts’ supervision and control over Defendant The Vanguard School,
The Vanguard School has a nominal exemption from the District’s Dress Code
policies.” Dkt. 43, ¶42. J.R.’s single allegation made “on information and belief” is
insufficient for the Court to consider the School Contract for purposes of the District’s
or any other parties’ Rule 12(b)(6) arguments. See Berneike v. CitiMortgage, Inc., 708
F.3d 1141, 1146 (10th Cir. 2013). But the Court does consider the School Contract in
its analysis of the Rule 12(b)(1) and standing arguments. See Holt, 46 F.3d at 1003.
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“The 	burden 	of 	establishing 	subject-matter 	jurisdiction 	is 	on 	the 	party
asserting jurisdiction.” Montoya v. Chao, 296 F.3d 952, 955 (10th Cir. 2002) (citing
Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)). Article III
standing is a “bedrock constitutional requirement.” Food & Drug Admin. v. All. for
Hippocratic Med., 602 U.S. 367, 378 (2024) (quoting United States v. Texas, 599 U.S.
670, 675 (2023)). Article III of the Constitution limits the federal courts’ jurisdiction
to “Cases” and “Controversies.” Spokeo, Inc. v. Robins, 578 U.S. 330, 337 (2016).
Because Article III standing is an issue of a court’s jurisdiction, a court must first
satisfy itself that it exists. Kerr v. Polis, 20 F.4th 686, 692 (10th Cir. 2021). Therefore,
a plaintiff must establish Article III standing by demonstrating: “(1) an injury in fact;
(2) a causal connection between the injury and the challenged action; and (3) a
likelihood that a favorable decision will redress the injury.” Jordan v. Sosa, 654 F.3d
1012, 1019 (10th Cir. 2011) (citing Friends of Earth Inc. v. Laidlaw Envtl. Servs., Inc.,
528 U.S. 167, 180-81 (2000)).
Similarly, in his Response, J.R. attaches and cites to a discovery hearing transcript
and several documents produced in discovery. Dkt. 84, p.35-36; Dkts. 84-2 through
84-9. When analyzing the Motions to Dismiss, the Court is limited to the factual
allegations contained in J.R.’s AC. His proffered exhibits and arguments based on
them are beyond the AC and the Court does not consider them. See Abdulina v Eberl’s
Temporary Servs., Inc., 79 F. Supp. 3d 1201, 1206-07 (D. Colo. 2015) (citations
omitted) 	(“Plaintiff, 	however, 	cannot 	amend [his] 	complaint 	by 	adding 	factual
allegations in response to Defendant’s motion to dismiss.”).
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The District argues J.R. lacks standing to assert his third and fourth claims
for relief, which seek injunctive and declaratory relief. While its standing arguments
are less than clear, it appears to challenge the causation and redressability prongs
based on its theory that it had no authority to dictate the School’s dress code. Dkt. 53,
p.19. But the Court finds the AC contains sufficient factual allegations to plausibly
establish J.R.’s standing.
The AC alleges Claudio presented a Student Dress Code update reflecting the
District’s official policy and the Gadsden flag as an example of a dress code violation.
Dkt. 43, ¶¶36, 38, 41. It further alleges that based on the School Contract, the District
has “supervision and control” over the School; and while the School had a “nominal
exception” from the District’s dress code policy, that exception is “illusory.” Id. at
¶¶42-43. Instead, it alleges that “[i]n actual practice, the Dress Code, including the
Reference to Weapons Policy and the District’s ban on politically disfavored messages
such as the Gadsden Flag, applies with full force to [t]he Vanguard School and all of
its students.” Id. at ¶43. And he plausibly alleges the District and School coordinated
their decisions to enforce the dress code against J.R. and bar his patches. These
allegations suffice to establish the causation and redressability prongs to support
J.R.’s standing.
Despite its arguments, the School Contract does not support the District’s Rule
12(b)(1) contentions. While the contract identifies the District’s JICA Policy (student
dress code) as a policy that is waived for the School, it also provides the policy is
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waived “subject to all other terms and conditions of this Agreement.” Dkt. 53, ECF
pp.11, 19. In Section 3.2, the contract inconsistently requires the School to establish
its own dress code while also making the obligation optional. Id. at p.2. (compare
“Vanguard agrees that it shall . . . develop its own discipline and dress code policies”
with “Vanguard may adopt its own code of conduct for students and shall be granted
a waiver from corresponding District policies as long as the developed codes, policies
and procedures regarding student conduct and student discipline are in compliance
with applicable federal and state laws . . .”). And the contract does not plainly
demonstrate a clear delegation of authority to the School. Cf. id. (“Vanguard shall
agree to enforce a standard of conduct that requires all faculty and staff to conduct
themselves in a manner . . . which does not cause, in the District’s view, a public
embarrassment . . . .”).
What is missing under the District’s theory are factual allegations or evidence
that the School developed its own dress code or voluntarily adopted the District’s
dress code. In short, at this stage of the case, the School Contract alone does not
support that the District had no authority over the dress code that allegedly infringed
J.R.’s First Amendment rights. On the current record, the Court is satisfied of J.R.’s
standing to assert all his claims.4
4 The fact that the School District apparently concedes J.R.’s standing for his second
claim seems to contradict its argument that he lacks standing for his third and fourth
claims.
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The School similarly argues J.R. lacks standing for his fourth claim for relief
as asserted against it. In his response, however, J.R. indicates he “does not oppose
the School’s motion with respect to Claim 4.” Dkt. 84, ECF p.58 n.19. Thus, the School
MTD is granted regarding Claim 4 as against the School.
2. 	Whether the District’s Changed Student Dress Code Has Mooted
J.R.’s Third and Fourth Claims
The District also argues the Court lacks subject matter jurisdiction over J.R.’s
third and fourth claims for relief because the District has since modified its dress code
and thus mooted those claims. The Court disagrees.
The doctrine of mootness is grounded in Article III’s limitation on the subject
matter jurisdiction of federal courts. See U.S. Const. art. III, § 2, cl. 1. “Mootness is a
threshold issue because the existence of a live case or controversy is a constitutional
prerequisite to federal court jurisdiction.” McClendon v. City of Albuquerque, 100 F.3d
863, 867 (10th Cir. 1996). “The mootness doctrine provides that although there may
be an actual and justiciable controversy at the time the litigation is commenced, once
that controversy ceases to exist, the federal court must dismiss the action for want of
jurisdiction.” Jordan v. Sosa, 654 F.3d 1012, 1023 (10th Cir. 2011) (citing 15 James
W. Moore & Martin H. Redish, Moore’s Federal Practice § 101.90, at 101–237 (3d ed.
2010)). Put another way, “[m]ootness is ‘standing set in a time frame: The requisite
personal interest that must exist at the commencement of the litigation (standing)
must continue throughout its existence (mootness).’” Prison Legal News v. Fed.
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Bureau of Prisons, 944 F.3d 868, 879 (10th Cir. 2019) (quoting Brown v. Buhman, 822
F.3d 1151, 1164 (10th Cir. 2016)).
“An 	action 	becomes 	moot 	‘[i]f 	an 	intervening 	circumstance 	deprives 	the
plaintiff of a personal stake . . . at any point.’” Id. at 880 (quoting Brown, 822 F.3d at
1165). “But an action is not moot if a plaintiff has ‘a concrete interest, however small,
in the outcome.’” Id. (quoting Knox v. Serv. Emps. Int’l Union, Local 1000, 567 U.S.
298, 307-08 (2012)).
“Under the ‘voluntary cessation exception’ to mootness, ‘a defendant cannot
automatically moot a case simply by ending its unlawful conduct once sued.’” Prison
Legal News, 944 F.3d at 880 (quoting Already, LLC v. Nike, Inc., 568 U.S. 85, 91
(2013)). “This rule is designed to prevent gamesmanship.” Brown, 822 F.3d at 1166.
But “[a] defendant’s voluntary cessation may moot a case, [ ] if the defendant carries
‘the formidable burden of showing that it is absolutely clear the allegedly wrongful
behavior could not reasonably be expected to recur.’” Id. at 1166-67 (quoting Already,
568 U.S. at 91. “The Supreme Court has described this burden as ‘heavy,’ and
‘stringent.’” Id. (citations omitted).
“In practice, this heavy burden frequently has not prevented governmental
officials from discontinuing challenged practices and mooting a case.” Id. at 1167
(quoting Rio Grande Silvery Minnow, 601 F.3d at 1116) (cleaned up). “Courts may
accord ‘more solicitude’ to government officials’ claims that their voluntary conduct
moots a case.” Prison Legal News, 944 F.3d at 881 (citing Rio Grande Silvery Minnow,
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601 F.3d at 1116 n.15). This solicitude is not automatic. Id. “But ‘government self-
correction provides a secure foundation for mootness so long as it seems genuine.’” Id.
(quoting Brown, 822 F.3d at 1167-68). “Most cases that deny mootness following
government 	officials’ 	voluntary 	cessation 	‘rely 	on 	clear 	showings 	of 	reluctant
submission [by governmental actors] and a desire to return to the old ways.’” Brown,
822 F.3d at 1167 (quoting Rio Grande Silvery Minnow, 601 F.3d at 1116) (emphasis
in original). “[I]n the government enforcement context, [the Tenth Circuit has
instructed] ‘not [to] require some physical or logical impossibility that the challenged
policy will be reenacted absent evidence that the voluntary cessation is a sham for
continuing possibly unlawful conduct.’” Id. (quoting Rio Grande Silvery Minnow, 601
F.3d at 1117-18).
Here, the District argues it has changed its student dress code. Dkt. 53, p.21
(“Given that the School District has amended its dress code policy and eliminated its
prohibition on the display of weapons, a policy that J.R. does not challenge, there is
no longer a live controversy . . . .”). It submitted an affidavit from Birhanzel to support
its argument:
On December 11, 2023, the Executive Leadership Team [of the District]
met to conduct its regularly assigned duties. During this meeting, we
reviewed District Policy JICA, and we decided via consensus to amend
the policy in order to avoid legal challenges and future litigation. The
Executive Leadership Team revised Policy JICA to remove the District’s
dress code ban of students adorning any article of clothing or accessory
that showed and/or referenced weapons. Among other revisions to
District Policy JICA, we decided to replace the reference to weapons ban
with language approved of by the U.S. Supreme Court and taken
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directly 	from 	its 	decision 	in 	Tinker 	v. 	Des 	Moines 	Independent
Community School District, 939 U.S. 503 (1953). On December 19, 2023,
the Executive Leadership Team published the School District’s revised
Policy 	JICA 	via 	the 	School 	District’s 	website 	which 	reflects 	the
applicable dress code policy in place at the School District.
Dkt. 53-1, ECF p.27, ¶5. It also provided the December 19, 2023 version of the District
Policy 	JICA, 	which 	states 	the 	following 	items 	are 	appropriate: 	“Clothing,
paraphernalia, . . . accessories, . . . that are or contain any advertisement, symbols,
words, slogans, patches, or pictures that are free from: 1. References to drugs, tobacco,
alcohol, 	or 	messages 	or 	images 	that 	might 	reasonably 	forecast 	a 	substantial
disruption of or material interference with school activities.” Id. at ECF p.23. This
version deleted the prior prohibition on items with references to weapons. Compare
id. and Dkt. 43-2. Further, Birhanzel’s affidavit states:
Since December 19, 2023, I attest that there has been no prohibition on
students 	wearing 	clothing 	or 	accessories 	displaying 	or 	referencing
weapons at District schools pursuant to Policy JICA. * * * I attest that
the School District . . . has no intention to reimpose a dress code ban on
displaying or referencing weapons at school as previously articulated
within prior versions of District Policy JICA.
Dkt. 53-1, ECF p.27, ¶6. She additionally attests, “the Gadsden flag is not banned
pursuant (sic) in either the prior or current versions of District Policy JICA. Rather,
pursuant to District Policy JICA, a student’s display of the Gadsden flag will only be
prohibited if a school administrator shows that such display ‘reasonably forecast[s] a
substantial disruption of or material interference with school activities.’” Id. at ECF
p.28, ¶7.
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At first blush, Birhanzel’s affidavit and the revised JICA policy appear to moot
J.R.’s claims for injunctive and declaratory relief. But, since her affidavit explains
that the District published the revised policy on the District’s website, the Court
reviewed the currently available version of that policy on the website. See O’Toole v.
Northrop Grumman Corp., 499 F.3d 1218, 1225 (10th Cir. 2007) (“It is not uncommon
for courts to take judicial notice of factual information found on the world wide web.”).
The Court’s review reveals the District has either revised the policy further since
December 19, 2023, or never updated the published policy with the December 19
version. See Harrison School District 2, Code of Conduct 2024-2025, Student Dress
Code, Policy JICA available at https://www.hsd2.org/families/code-of-conduct (last
accessed Apr. 17, 2025). This latest published version continues to expressly prohibit
items that display or reference weapons. Id.; compare with Dkt. 43-2.
“For voluntary cessation to moot a case, [the Court] must be convinced that
‘the allegedly wrongful behavior could not reasonably be expected to recur.’” Brown,
822 F.3d at 1175 (quoting Already, 568 U.S. at 91). The Court is not convinced here
because the District appears to have returned to the allegedly wrongful behavior by
either never publishing the updated policy or revising it again after December 2023
to reinstate the objectionable language. Thus, assuming arguendo that the December
19, 2023 policy mooted J.R.’s third and fourth claims against the District, the Court
finds the currently published policy raises serious questions about whether the
District’s purported revisions were genuine. See Brown, 822 F.3d at 1167. In short,
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the District has failed to meet its “heavy” and “stringent” burden to show that its
claimed voluntary cessation moots J.R.’s claims.5 These claims shall proceed against
the District.
3. 	J.R.’s Second Claim Survives the Motions to Dismiss
Both the District and School argue J.R.’s second claim, alleging Monell liability
under 42 U.S.C. § 1983 for violations of his right to free speech, fails under Rule
12(b)(6). Neither argues J.R. has alleged insufficient allegations to plead this claim.
Their arguments instead appear to focus on the two entities finger-pointing at the
other, which only suggests there are evidentiary issues that do not warrant dismissal
of this claim.
It is long-standing precedent that “[g]overnment officials may not be held liable
for the unconstitutional conduct of their subordinates under a theory of respondeat
superior.” Iqbal, 556 U.S. at 676 (citing Monell, 436 U.S. at 691); see also City of
Canton v. Harris, 489 U.S. 378, 385 (1989) (A governmental entity “can be found
liable under § 1983 only where the municipality itself causes the constitutional
5 The Court is troubled by the inaccuracy of Birhanzel’s affidavit and the currently
published JICA policy. See Brown, 822 F.3d at 1171 (sworn declaration submitted by
government 	official 	explaining 	policy 	change 	that 	mooted 	plaintiff’s 	claims 	is
persuasive because “violation of the declaration would expose [the government
official] to prosecution for perjury or contempt.”). The Court recognizes, however, that
the currently published policy does not necessarily demonstrate Birhanzel’s affidavit
executed on January 31, 2024, was false at the time. To the extent those facts changed
after execution of the affidavit, however, the District should have brought it to the
Court’s and Plaintiff’s attention. Either way, the matter is troubling.
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violation at issue.”) (citing Monell, 436 U.S. at 694-95, 698); Myers v. Okla. Cnty. Bd.
of Cnty. Comm’rs, 151 F.3d 1313, 1316 (10th Cir. 1998) (“It is well established . . .
that a municipality cannot be held liable under section 1983 for the acts of an
employee if [the] employee committed no constitutional violation.”). “[M]unicipal
liability under § 1983 attaches where—and only where—a deliberate choice to follow
a course of action is made from among various alternatives by the official or officials
responsible for establishing final policy with respect to the subject matter in
question.” Brammer-Hoelter v. Twin Peaks Charter Acad., 602 F.3d 1175, 1188 (10th
Cir. 2010) (internal quotation marks and citations omitted); Schneider v. City of
Grand Junction Police Dep’ t, 717 F.3d 760, 769 (10th Cir. 2013) (“[T]he Supreme
Court require[s] a plaintiff to show that the policy was enacted or maintained with
deliberate indifference to an almost inevitable constitutional injury.”).
To establish municipal liability under Monell, a plaintiff must show (1) a
municipal employee committed a constitutional violation and (2) a municipal policy
or custom was the moving force behind the violation. Jiron v. City of Lakewood, 392
F.3d 410, 419 (10th Cir. 2004). An official policy or custom under Monell may take
several forms, including:
(1) a formal regulation or policy statement; (2) an informal custom
amounting to a widespread practice that, although not authorized by
written law or express municipal policy, is so permanent and well settled
as to constitute a custom or usage with the force of law; (3) the decisions
of employees with final policymaking authority; (4) the ratification by
such final policymakers of the decisions–and the basis for them–of
subordinates 	to 	whom 	authority 	was 	delegated 	subject 	to 	these
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policymakers’ review and approval; or (5) the failure to adequately train
or supervise employees, so long as that failure results from deliberate
indifference to the injuries that may be caused.
Bryson v. City of Okla. City, 627 F.3d 784, 788 (10th Cir. 2010) (cleaned up).
The 	District 	argues 	the 	School 	Contract 	between 	it 	and 	the 	School
demonstrates the District had no authority over the School’s dress code. But as
explained above, on a Rule 12(b)(6) motion, the Court generally cannot consider
documents beyond the complaint.6 See, supra, § C.1. And the same holds true for the
School. While the School argues it has no liability under Monell because the
individual School Defendants were not final policy makers, its argument is the other
side of the same coin—the School Defendants argue that none of them had discretion
over enforcement of the school dress code because enforcement was dictated by the
District.
What 	these 	arguments 	ignore 	are 	the 	allegations 	in 	the 	AC, 	which 	is
necessarily the focus of a Rule 12(b)(6) motion. Concerning the District, the AC
alleges, for example, that Birhanzel’s decisions included “the decision to ban J.R. from
displaying his patches, 	represent[ing] 	official 	policies 	of 	[the] 	School 	District.”
Dkt. 43, ¶100. And Claudio made a presentation on the 2023-24 District dress code
that represented the District’s official policy and included the Gadsden flag as an
6 See, supra, n.3. But even when the Court considered the School Contract in context
of the District’s standing challenge, the Court found the School Contract is not as
clear as the District argues. See, supra, § C.1.
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example of a display that violated that policy; “Defendant District further ratified
both Defendant Claudio’s presentation and his later decisions to apply Defendant
District’s policies to bar J.R. from displaying certain expressive images on his
backpack.” Id. at ¶¶38, 41.
Concerning the School, J.R. asserts that while it “has a nominal exemption
from the District’s 	Dress Code 	policies,” “any purported exemption is illusory
[because, in] actual practice, the Dress Code, including the Reference to Weapons
Policy and the District’s ban on politically disfavored messages such as the Gadsden
Flag, applies with full force to The Vanguard School and all of its students.” Id. at
¶42-43. The AC further plausibly alleges the decisions to bar his patches “were made
by both The Vanguard School and the District acting jointly . . . ;” Yocum emailed
J.R.’s mother “a hyperlink to Defendant District’s Dress Code, and specifically stated
that the ban on patches or images that ‘[r]efer to . . . weapons’ was being applied to
J.R. pursuant to the District’s policy;” Yocum also said that he would consult “with
counsel for the District and/or The Vanguard School . . . ;” the decision barring J.R.
from displaying the FPC Patch “was made jointly by Defendant The Vanguard School
and Defendant School District;” Danjuma, in a meeting with J.R. and his mother,
“relayed that the District Superintendent (Defendant Birhanzel) had determined that
the Gadsden Flag was unacceptable under the Dress Code;” and “Defendants’
rationale was arrived at jointly by The Vanguard School Defendants, including
Defendant Yocum, Defendant Danjuma, and Defendant Henslee, and by The District
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Defendants, including Defendant Claudio and Defendant Birhanzel.” Id. at ¶¶44, 86,
898, 90, 99, 109.
In short, J.R. alleges numerous instances of one, the other, or both the District
or School acting in concert or of their own accord to deprive J.R. of his constitutional
rights. Thus, at this stage of the case, the Court rejects the District’s argument that
it had no authority over the school dress code that J.R. alleges suppressed his free
speech. And the Court rejects the School’s similar argument for the same reasons
noted above.
4. 	J.R.’s Third Claim Survives the School MTD
J.R. also brought his third claim seeking injunctive relief and declaratory
judgment for as-applied violations of his free speech against Birhanzel, Claudio,
Henslee, and Yocum, in their respective official capacities as employees of either the
District or School. But as the School MTD points out, “There is no longer a need to
bring official-capacity actions against local government officials [because] local
government units can be sued directly.” Dkt. 51, p.18 (quoting Kentucky v. Graham,
473 U.S. 159, 167 n.14 (1985). Meaning, suing Henslee in her official capacity, for
example, is the same as suing the School. Thus, J.R.’s third claim is dismissed as to
Birhanzel, Claudio, Henslee, and Yocum, in their official capacities since J.R. has
sued the governmental units directly.
This brings the Court to the School’s argument for dismissal of the third claim
against it directly. But the School’s arguments for dismissal of this claim are woefully
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underdeveloped. The School makes only cursory arguments 	that J.R. has not
sufficiently alleged municipal liability for “his First Amendment Claims.” Id. at p.17.
But, as with his second claim for relief, the Court finds J.R. has alleged sufficient
facts to plausibly allege, at this stage, liability by the School on this claim for relief.
See, supra, § C.3, and infra, § C.5.
5. 	J.R.’s 	First 	Claim 	Against 	the 	Individual 	Defendants,
Individually
J.R. alleges his first claim for relief, asserting as-applied violations of his right
to free speech, against each individual Defendant in their individual capacity. Each
individual Defendant argues they are entitled to qualified immunity.
The First Amendment guarantees freedom of speech and applies to the states
through the Due Process Clause of the Fourteenth Amendment. See, e.g., Gitlow v.
New York, 268 U.S. 652, 666, (1925). Students and teachers do not “shed their
constitutional rights to freedom of speech or expression at the schoolhouse gate.”
Tinker v. Des Moines Indep. Comm’y Sch. Dist., 393 U.S. 503, 506 (1969). But “the
constitutional rights of students in public schools are not automatically coextensive
with the rights of adults in other settings.” Bethel Sch. Dist. No. 403 v. Fraser, 478
U.S. 675, 682 (1986). Schools must be given authority “consistent with fundamental
constitutional safeguards, to prescribe and control conduct in the schools.” Tinker,
393 U.S. at 507.
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“Restrictions on student speech in public schools are analyzed under one of two
standards.” Taylor v. Roswell Indep. Sch. Dist., 713 F.3d 25, 35-36 (10th Cir. 2013)
(citing Corder v. Lweis Palmer Sch. Dist. No. 38, 566 F.3d 1219, 1225 (10th Cir. 2009).
Private student speech is analyzed under the more stringent Tinker standard,
whereas school-sponsored speech is governed by Hazelwood Sch. Dist. V. Kuhlmeier,
484 U.S. 260 (1988). Taylor, 713 F.3d at 36 (citation omitted).
“Under Tinker, a public school may not restrict private student expression
unless the school reasonably forecasts it ‘would materially and substantially interfere
with the requirements of appropriate discipline in operation of the school,’ or ‘impinge
upon the rights of other students.’” Id. (quoting Tinker, 393 U.S. at 505-06). Further,
an “‘undifferentiated fear or apprehension of disturbance is not enough to overcome
the right to freedom of expression,’ and ‘the mere desire to avoid the discomfort and
unpleasantness that always accompany an unpopular viewpoint cannot justify the
prohibition by school officials of a particular expression of opinion.’” Thomas v.
Ragland, 23 F.4th 1252, 1258 (10th Cir. 2022) (quoting Seamons v. Snow, 84 F.3d
1226, 1237 (10th Cir. 1996)). The Supreme Court has excepted three scenarios from
the 	Tinker 	analysis–(1) sexually 	explicit, 	indecent, 	or 	lewd 	speech, 	(2) school-
sponsored speech analyzed under the Hazelwood analysis, and (3) speech promoting
illegal drug use. Id. at 1257 (citations omitted).
Here, each of the Individual Defendants assert qualified immunity. Qualified
immunity shields individual defendants in Section 1983 actions unless their conduct
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was unreasonable based on clearly established law. Estate of Booker v. Gomez, 745
F.3d 405, 411 (10th Cir. 2014). “[W]hen a defendant asserts qualified immunity, the
plaintiff carries a two-part burden to show: (1) that the defendant’s actions violated
a federal constitutional or statutory right, and, if so, (2) that the right was clearly
established at the time of the defendant’s unlawful conduct.” Id. (quotation omitted).
The Court has discretion to consider these prongs in any order. Leverington v. City of
Colo. Springs, 643 F.3d 719, 732 (10th Cir. 2011). Whether a defendant is entitled to
qualified immunity is a legal question. Wilder v. Turner, 490 F.3d 810, 813 (10th Cir.
2007).
As to the first prong, “[i]f no constitutional right would have been violated were
the allegations established,” the inquiry is at an end. Saucier v. Katz, 533 U.S. 194,
201 (2001). The second prong—whether the right was clearly established—must be
considered “in light of the specific context of the case, not as a broad general
proposition.” Id. An official’s conduct “violates clearly established law when, at the
time of the challenged conduct, ‘the contours of a right are sufficiently clear’ that
every ‘reasonable official would have understood that what he is doing is violating
that right.’” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011) (quoting Anderson v.
Creighton, 483 U.S. 635, 640 (1987)). To be clearly established, “existing precedent
must have placed the statutory or constitutional question beyond debate.” Id.
“To show that the law is clearly established, a plaintiff must normally point to
a ‘Supreme Court or Tenth Circuit decision on point, or the clearly established weight
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of authority from other courts.’” Jordan v. Jenkins, 73 F.4th 1162, 1168 (10th Cir.
2023), cert. denied sub nom. Donnellon v. Jordan, 144 S. Ct. 1343, 218 L. Ed. 2d 421
(2024) (quoting Cortez v. McCauley, 478 F.3d 1108, 1114 (10th Cir. 2007)). “The
degree of specificity required from prior case law depends in part on the character of
the challenged conduct. The more obviously egregious the conduct in light of
prevailing constitutional principles, the less specificity is required from prior case law
to clearly establish the violation.” Pierce v. Gilchrist, 359 F.3d 1279, 1298 (10th Cir.
2004) (citations omitted). “In the rare obvious case, though, ‘the unlawfulness of the
[government actor’s] conduct is sufficiently clear even though existing precedent does
not address similar circumstances.’” Jordan, 73 F.4th at 1168 (quoting McCoy v.
Meyers, 887 F.3d 1034, 1053 (10th Cir. 2018)).
“The procedural posture of the qualified-immunity inquiry may [also] be
critical.” Thompson, 23 F.4th at 1256. Because the qualified immunity analysis is a
“fact-bound inquiry[,]” asserting the defense “via a Rule 12(b)(6) motion . . . subjects
the defendant to a more challenging standard of review than would apply on
summary judgment.” Id. (quoting Thomas v. Kaven, 765 F.3d 1183, 1194 (10th Cir.
2014)). “On a motion to dismiss, ‘it is the defendant’s conduct as alleged in the
complaint that is scrutinized for [constitutionality].’” Id. (quoting Behrens v. Pelletier,
516 U.S. 299, 309 (1996)).
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The Court finds, under Tinker, the AC plausibly alleges each of the Individual
Defendants violated J.R.’s First Amendment rights.7 For example, the AC alleges the
weapons reference in the dress code did not consider “whether the particular
expression could reasonably be deemed disruptive to the classroom environment, or
the maintenance of a safe and orderly school.” Dkt. 43, ¶30. Further, none of J.R.’s
patches disrupted the classroom or the maintenance of a safe and orderly school
during the 2022-23 or 2021-22 school years, and Yocum admitted that at least the
“the FPC Patch was not disruptive . . . .” Id. at ¶¶77-80, 87. Yet, after Yocum
consulted the School’s attorney and the District, he switched course and told J.R. the
FPC Patch and the Parody Flag Patch could “be deemed disruptive or potentially
disruptive to the classroom environment.” Id. at ¶91. Nevertheless, J.R. alleges no
Defendant made any assessment that displays of his patches would be reasonably
likely to disrupt classes at the School. Id. at ¶¶120-30; see also id. at ¶169. Thus, as
7 Birhanzel and Claudio misperceive J.R.’s claim against them as being predicated on
a theory of supervisory liability theory, but J.R. disclaims that theory. Dkt. 53, pp.15-
18; Dkt. 84, p.32 n.14. They also argue neither had “any legal authority to direct,
control, or participate in Vanguard and/or its employees’ decisions affecting J.R. . . .”
Dkt. 53, p.16-17 n.6. But the Court has already rejected this argument. See, supra,
§ C.1. Henslee and Yocum argue that Tinker is not the right standard and instead
suggest the Supreme Court’s reasoning in Morse is more appropriate. Dkt. 51, pp.13-
17. But in Morse, the Supreme Court held that student speech promoting illegal drug
use is a carve-out to the usual Tinker analysis. Morse, 551 U.S. at 403, 408-09; see
also Thompson, 23 F.4th at 1257. This case, however, does not involve speech about
illegal drug use, and thus Tinker provides the correct standard. See Taylor, 713 F.3d
at 36 (citing Morse, 551 U.S. at 406-06).
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alleged, J.R. plausibly states violations of his First Amendment rights under the
Tinker standard.
To be sure, the AC alleges each of the Individual Defendants took action that
led to these violations. Birhanzel decided to ban J.R. from displaying his patches. Id.
at ¶100. Claudio was involved in the decision to ban J.R. from displaying the Gadsden
Flag. Id. at ¶¶36-41. Claudio and Yocum coordinated around the decision to bar one
or more of J.R.’s patches. Id. at ¶¶114-18. Henslee sent e-mails to J.R.’s mother
“reiterating Defendants’ demand that J.R. remove the FPC and Parody Flag Patches,
and threatening that ‘[i]f he returns to school with any unacceptable patches, he will
be sent to the front office until they are removed.’” Id. at ¶94. Yocum explained to
J.R. that the FPC Patch was prohibited under the dress code and later emailed the
same to J.R.’s mother along with the position that the Parody Flag Patch was
similarly banned. Id. at ¶¶86, 90. Yocum further “instructed that if J.R. did not
remove the FPC Patch and the Parody Flag Patch, he would not be allowed to attend
classes.” Id. at ¶92. The first week of school, Danjuma informed J.R. that certain of
his original patches needed to be removed. Id. at ¶84. And she told J.R.’s mother that
the Gadsden Flag was unacceptable under the dress code according to Birhanzel. Id.
at ¶99. She explained, “we can’t have [the Gadsden Flag] in and around other kids,”
and that the flag had “its origins [in] slavery and the slave trade.” Id. at ¶102.
Ultimately, “Defendants’ rationale [for banning display of the Gadsden Flag] was
arrived at jointly by The Vanguard School Defendants, including Defendant Yocum,
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Defendant Danjuma, and Defendant Henslee, and by The District Defendants,
including Defendant Claudio and Defendant Birhanzel.” Id. at ¶109. Based on these
allegations, J.R. has plausibly pleaded each Individual Defendant violated his First
Amendment rights.
And the Court finds J.R.’s rights were clearly established. Since the Supreme
Court’s decision in Tinker, it has been clearly established that
In 	order for the 	State 	in 	the 	person 	of 	school 	officials 	to 	justify
prohibition of a particular expression of opinion, it must be able to show
that its action was caused by something more than a mere desire to
avoid the discomfort and unpleasantness that always accompany an
unpopular viewpoint. Certainly 	where there 	is 	no finding and no
showing that engaging in the forbidden conduct would “materially and
substantially interfere with the requirements of appropriate discipline
in the operation of the school,” the prohibition cannot be sustained.
Tinker, 393 U.S. at 509 (quoting Burnside v. Byers 363 F.2d 744, 749 (1966). Here,
there are no allegations in the AC, and an insufficient showing by the Individual
Defendants, that their alleged violation of J.R.’s First Amendment rights was based
on facts which might reasonably have led school authorities to forecast substantial
disruption of, or material interference with, school activities or any showing that
disturbances or disorders on school premises in fact occurred when J.R. displayed his
patches. Id. at 514. Instead, the AC plausibly alleges the Individual Defendants
“banned and sought to punish [J.R.] for a silent passive expression of opinion,
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unaccompanied by any disorder or disturbance” on his part, which Tinker has
precluded since 1969.8 Id. at 508.
Consequently, the Court does not find the Individual Defendants are entitled
to qualified immunity based on the current record.9
6. 	J.R.’s Fifth Claim Against All Defendants
Lastly, 	J.R. 	alleges 	a 	First 	Amendment 	retaliation 	claim 	against 	all
Defendants. To state a claim for First Amendment retaliation, he must plead facts to
plausibly allege the following elements: (1) he engaged in constitutionally protected
activity; (2) Defendants’ actions caused him to suffer an injury that would chill a
person 	of 	ordinary 	firmness 	from 	engaging 	in 	the 	protected 	activity; 	and 	(3)
Defendants’ actions were substantially motivated as a response to the protected
activity. See Hyberg v. Enslow, 801 F. App’x 647, 651 (10th Cir. 2020). J.R. must also
“establish a ‘causal connection’ between the [Defendants] ‘retaliatory animus’ and
[J.R.’s] ‘subsequent injury.” See Hall v. Brown, No. 22-4080, 2023 WL 7014046, at *5
8 Further, since Tinker other courts outside of the Tenth Circuit have found displays
of firearm images on students’ clothing are constitutionally protected. See Newsom ex
rel. Newsom v. Albemarle Cnty. Sch. Bd., 354 F.3d 249, 252, 259, 261 n.10 (4th Cir.
2003); Burnham v. Ianni, 119, F.3d 668, 676 n. 13 (8th Cir. 1997); Schoenecker v.
Koopman, 349 F. Suppp. 3d 745, 747, 752-54 (E.D. Wis. 2018); Griggs v. Ft. Wayne
Sch. Bd., 359 F. Supp. 2d 731, 732-33 (N.D. Ind. 2005).
9 The Court’s decision today does not foreclose Defendants from reasserting a
qualified immunity defense at the summary judgment phase. See Seamons, 84 F.3d
at 1238 (citing Behrens, 516 U.S. at 299).
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(10th Cir. Oct. 25, 2023) (quoting Nieves v. Bartlett, 139 S. Ct. 1715, 1722 (2019)). The
retaliatory animus must be the “but-for cause of [their] injury, meaning that the
adverse action against [him] would not have been taken absent the retaliatory
motive.” Id. (quoting Hartman v. Moore, 547 U.S. 250, 260 (2006)) (internal quotation
marks omitted).
The difficulty for J.R. on this claim for relief is he group pleaded his allegations.
Carrado v. Daimler AG, No. 17-cv-3080-WJM-SKC, 2018 WL 4565562, at *3 (D. Colo.
Sept. 24, 2018) (group pleading violates Rule 8). Nowhere does he identify who did
what to him in the name of unlawful retaliation. See Dkt. 43, ¶¶145-49, 226-239. And
this is beside the point of this claim being asserted against the Individual Defendants
in their official capacities, which is redundant since J.R. has also sued the entities.
His fifth claim is therefore dismissed.
* 	* 	*
For the reasons shared above, the Court ORDERS the following:
1. 	All three Motions to Dismiss (Dkts. 51, 52, and 53) are GRANTED IN PART
and DENIED IN PART;
2. 	the third and fifth claims for relief as against Birhanzel, Claudio, Henslee,
Yocum, and Danjuma, in their official capacities, are DISMISSED WITH
PREJUDICE;
3. 	the fourth claim for relief as against the School is DISMISSED WITHOUT
PREJUDICE;
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4. 	the fifth claim for relief as against the School and District is DISMISSED
WITHOUT PREJUDICE;
5. 	the surviving claims for relief are as follows: first claim for relief against
Birhanzel, Claudio, Henslee, Yocum and Danjuma, all individually; second
claim for relief against the School and District; third claim for relief against
the School and District; and the fourth claim for relief against the District;
and
6. 	The parties are ORDERED to contact the Chambers of Magistrate Judge
Dominguez Braswell within 7 days concerning the discovery stay and the
next steps for this action.
DATED: April 18, 2025.
BY THE COURT:
S. Kato Crews
United States District Judge
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