Doe v. Mesa County Valley School District 51 et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Daniel D. Domenico
Civil Action No. 1:23-cv-01858-DDD-TPO
JOHN DOE, by and through his next friend, JANE DOE,
Plaintiff,
v.
MESA COUNTY VALLEY SCHOOL DISTRICT 51;
JARED BUREK, in his individual capacity;
TOM LEFEBRE, in his individual capacity;
MARK ALLEN, in his individual capacity,
Defendants.
ORDER GRANTING MOTION FOR SUMMARY JUDGMENT
This case is about a series of emails that a high school student sent
to his teachers. The emails landed Plaintiff in hot water because the
administrators at the high schools found the emails disrespectful. He
argues that the administration’s responses violated his First Amend-
ment rights and constituted retaliation. Following discovery, Defend-
ants moved for summary judgment, arguing, among other things, their
actions were permissible means to prevent substantial disruption under
Tinker v. Des Moines Independent Community School District. I agree.
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BACKGROUND1
Plaintiff attended Gateway K-12 School at the beginning of the 2020-
2021 school year, his ninth-grade year. During that year, issues often
arose between him and his parents and the school.
On February 3, 2021, Plaintiff sent an email to his teacher Ms.
Ciocco. The email read “Mrs. Ciocco keeps saying she is in a bad mood
and has been giving me dirty looks and when I get my music on like she
allows us she tells me if she sees my phone out again she will take it but
other students get phone calls and she lets them go on there phone and
I have no work in her math class, please forward to my parent.”2 Ms.
Ciocco sent Plaintiff to the office. Defendants contend it was for being
disrespectful, Doc. 43 at ¶ 10, Plaintiff argues it was because of the
email, Doc. 44 at ¶ 10.
When Plaintiff arrived at the office, Principal Mark Allen asked
Plaintiff to step into his office to discuss the problem, but Plaintiff re-
fused. Plaintiff called his parents on speaker phone, and they demanded
information. The conversation could be heard throughout the main office
and disturbed the business of the school. Plaintiff’s parents did not per-
mit Plaintiff to speak with Principal Allen. Principal Allen refused to let
Plaintiff return to class because he feared a disruption to the classroom.
Plaintiff’s parents came to the school and met Principal Allen out-
side. Plaintiff’s father stood “toe-to-toe” with Principal Allen and yelled.
Principal Allen asked his staff to call campus security and the police.
Plaintiff and his parents left school grounds.
1 These facts are undisputed unless otherwise noted. Unless citation in-
dicates otherwise, the facts are taken from Defendants’ Statement of
Undisputed Facts, Doc. 43 at 2–11, and Plaintiff’s Response thereto,
Doc. 44 at 1–7.
2 Plaintiff’s emails are quoted verbatim throughout.
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Plaintiff was allowed to return to school the next day, but Plaintiff
argues he was required to have a reentry meeting to return. Doc. 44 at
¶ 23. His parents were banned from campus.
Plaintiff enrolled at Grand Junction High School for his sophomore
year, 2021-2022. On November 9, 2021, he sent an email to his teachers
India Leech, Amy Rafferty, and Walter Fox. He copied Principal Jared
Burek and other administrators. This email read “I find it wrong that
some of you want to be involved but some do not answer you know who
you are so not if you want to be involved I feel you need to answer shame
on the ones who don’t answer,” he continued, saying to Ms. Rafferty “I
have a few things for you to elaborate for me because your grading
doesn’t make sense.” It finished with “So now let get to my other points
I have asked you mrs. leech for help today but multiple things where
more important correct? So shame on you Mrs. leech shame one you
mrs.rafferty shame on your guys who don’t answer it is sad when I reach
out for help y’all can’t help.”
Principal Burek believed that this email violated the rule that stu-
dents communicate appropriately and professionally. He called Plaintiff
to the office on November 10, 2021, and explained that his email broke
a school rule. Principal Burek specifically explained that language such
as “shame on you” is inappropriate when directed toward teachers.
Plaintiff was given a timeout and not allowed to return to Ms. Rafferty’s
class. A timeout is used to deescalate situations and avoid the need for
more severe consequences like suspension.
On May 3, 2022, Plaintiff sent an email to Mr. Fox, his counselor,
Stacy Keever, and his mother. This email read “who here is familiar with
gradpoint and how long it takes a student to complete a course. I hope
you mr.fox answer with ‘I’ll prove you wrong’ because that’s what you
said in person,” “I was wanting help with gradpoint your response was
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it’s my fault so shame on you I expect an apology,” “I want copies of every
report card from this year an I expect it by the end of the day,” and fi-
nally “We need to know that instead of blaming the student like you do
fox it’s never your fault correct. Respond wisely because you’re on video
saying things so make sure it’s the same statement.”
Principal Burek again believed this email violated the student code
of conduct. Plaintiff met with Principal Burek and Dean of Students
Tom LeFebre before he went to Mr. Fox’s class. They asked Plaintiff to
rewrite the email to express his frustrations respectfully. Plaintiff states
he was required to do so. Doc. 44 at ¶ 67.
Plaintiff sued, asserting that these actions violated his first amend-
ment rights and constituted retaliation.
DISCUSSION
Summary judgment is appropriate when “the movant shows that
there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A fact is
material if “under the substantive law it is essential to the proper dis-
position of the claim.” Wright ex rel. Tr. Co. of Kansas v. Abbott Lab’ys,
Inc., 259 F.3d 1226, 1231–32 (10th Cir. 2001). A dispute is genuine “if
the evidence is such that a reasonable jury could return a verdict for the
nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). If, drawing all reasonable inferences in the light most favorable
to the nonmoving party, a reasonable juror could not return a verdict for
the nonmoving party, summary judgment is proper. Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986).
I. 	First Amendment Claim
When assessing whether a public school has violated a student’s
right to free speech, lower courts are bound by Tinker v. Des Moines
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Independent Community School District, 393 U.S. 503 (1969). While stu-
dents do not “shed their constitutional rights to freedom of speech or
expression at the schoolhouse gate,” schools are not without power to
punish student speech. The Tenth Circuit laid out the governing law in
Thompson v. Ragland, 23 F.4th 1252 (10th Cir. 2022), explaining the
circumstances in which schools can restrict student speech. Schools can
prohibit and punish (1) “conduct by the student, in class or out of it,
which for any reason—whether it stems from time, place, or type of be-
havior—materially disrupts classwork or involves substantial disorder
or invasion of the rights of others,” Tinker, 393 U.S. at 513; (2) “sexually
explicit, indecent, or lewd speech,” Bethel Sch. Dist. No. 403 v. Fraser,
478 U.S. 675, 684 (1986); (3) “student speech in school-sponsored expres-
sive activities so long as their actions are reasonably related to legiti-
mate pedagogical concerns,” Hazelwood Sch. Dist. v. Kuhlmeier, 484
U.S. 260, 273 (1988); and (4) restrict student expression that they rea-
sonably regard as promoting illegal drug use,” Morse v. Frederick, 551
U.S. 393, 408 (2007).
This case comes down to a typical Tinker analysis. “Under Tinker, a
public school may not restrict private student expression unless the
school reasonably forecasts it ‘would materially and substantially inter-
fere with the requirements of appropriate discipline in operation of the
school,’ or ‘impinge upon the rights of other students.’” Taylor v. Roswell
Indep. Sch. Dist., 713 F.3d 25, 36 (10th Cir. 2013) (quoting Tinker, 393
U.S. at 505–06). Here, summary judgment is proper if the evidence
shows that a reasonable person would believe Plaintiff’s actions created
a risk of material disruption to the school’s educational efforts. Id.
Defendants argue that the three incidents at issue each had a risk of
substantial disruption that they sought to prevent. Plaintiff responds
that the facts that support Defendants’ conclusion are in dispute.
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On February 3, 2021, Plaintiff was sent to the office by Ms. Ciocco.
The parties dispute some of what followed. Plaintiff disputes Defend-
ants’ assertions that he was yelling, demanding an explanation, and be-
ing insubordinate. Doc. 44 at ¶ 11, 13, and 35. The parties further dis-
pute whether Plaintiff was sent home because of the email and whether
the February 4 meeting was a required “reentry meeting.” Compare Doc.
43 at ¶¶ 23–24 with Doc. 44 at ¶¶ 23–24.
Even making all factual inferences in Plaintiff’s favor, the facts are
sufficient to support Defendants’ contention that their actions were rea-
sonably based on an effort to prevent substantial interference. The par-
ties do not dispute that Plaintiff’s phone call with his parents created a
disturbance in the office, Doc. 43 at ¶ 15, Doc. 44 at ¶ 15; that Principal
Allen prevented Plaintiff from returning to class to prevent a disruption
to the classroom, Doc. 43 at ¶ 18, Doc. 44 at ¶ 18; and that Plaintiff’s
parents confronted Principal Allen and security and the police were
called. Doc. 43 at ¶¶ 20–21, Doc. 44 at ¶¶ 20–21. Even if Plaintiff was
sent home and required a reentry meeting, Defendants have shown that
it was justified by the disturbance caused in the office.
The November 9, 2021, and May 3, 2022, instances follow similar
patterns. On both days, Plaintiff sent an email expressing his frustra-
tions with his teachers. In response to the November 9, 2021 incident,
Principal Burek gave Plaintiff a timeout. Doc. 43 at ¶ 54. This prevented
him from going to his fifth-period class with Ms. Rafferty’s class, one of
the teachers he had emailed. Id. Principal Burek testified that he did so
because he was worried Plaintiff would continue to confront Mr. Rafferty
and demand answers immediately, as he had done in his email, and this
would disrupt the class. Id. at ¶¶ 53, 54; Doc. 43-11 at ¶ 15. Similarly,
after the May 3, 2022, email, Principal Burek and Dean LeFebre made
Plaintiff rewrite the email before Mr. Fox’s class because they were
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again concerned Plaintiff would confront Mr. Fox, causing a disruption.
Doc. 43 at ¶ 64.
Plaintiff disputes these facts. But he disputes them only on the
grounds that the incident reports that Principal Burek wrote do not
mention disruption. See Docs. 43-12 and 43-18. From this silence, Plain-
tiff posits that Principal Burek did not forecast disruption at all. To the
extent this argument is about Principal Burek’s subjective intent, that
is not relevant to the Tinker analysis. See Taylor, 713 F.3d at 45 (“the
Tinker standard, which evaluates the exercise of school discretion based
on objective reasonableness”).
And these omissions do not move the needle on the objective reason-
ableness analysis. The question is not whether the reports used the word
“disruption;” it is whether the record would permit a reasonable person
to think restricting Plaintiff’s speech was necessary to prevent disrup-
tion. In a similar case, the Tenth Circuit held that “[i]n assessing mate-
riality, ‘[w]e are obligated to examine the record as a whole . . . and eval-
uate what the school actually did, as opposed to carving out an isolated
statement from the record.’” Id., 713 F.3d at 39 (quoting Fleming v. Jef-
ferson Cnty. Sch. Dist., 298 F.3d 918, 931 (10th Cir. 2002) (some modifi-
cations in original)).
In Taylor, the school district banned a religious group from handing
out rubber fetus dolls to make an anti-abortion statement. The rubber
dolls had been ripped apart, bounced off walls, and stuck to ceilings. So
the school district confiscated the dolls and banned their distribution to
stem this disruption. The plaintiffs in that case pointed out that, when
he confiscated the dolls, the principal said “It’s time to shut this
down . . . Some people are getting offended,” and argued that showed the
confiscation had to do with the message, not disruption. Id. at 38–39.
But the Tenth Circuit held that even that statement did not overcome
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the same principal’s testimony about actual hallway disruptions or com-
plaints from other students. Regardless of the statement’s meaning, the
whole record pointed toward limiting disruption. Id.
Here too, the record as a whole points toward limiting disruption.
Plaintiff does not dispute that he has a history of confronting teachers.
Plus, taking a timeout and rewriting the email are geared toward pre-
venting confrontation, not punishing. See Doc. 43 at ¶ 55 (“A time-out is
an intervention school administrators use to deescalate situations, avoid
further conflict, and therefore avoid the need for a more severe conse-
quence such as in-school suspension.”), Doc. 44 at ¶ 55 (“Undisputed). I
cannot ignore Taylor’s example that “[v]iewing evidence in light most
favorable to Plaintiffs does not extend to ignoring undisputed evidence
that undermines their position,” 713 F.3d at 39. And I cannot ignore that
Plaintiff does not dispute significant evidence that points toward a po-
tential disruption.
Because there is “ample undisputed evidence,” id., that Defendants
reasonably forecast substantial disruption, any restrictions of speech
were constitutionally permissible under Tinker.
Although the Tinker analysis is dispositive, I will briefly address De-
fendants’ main argument that they applied only the content-neutral rule
from the student handbook, “use appropriate and professional verbal
and physical boundaries.” Doc. 43 at 13 (quoting Doc. 43-13 at 3).
First, I note that it is unclear whether content-neutral regulations
create an exception to Tinker. In Thompson, the Tenth Circuit noted
that the Supreme Court’s statement that “a university ‘may expect that
its students adhere to generally accepted standards of conduct’ that gov-
ern ‘the time, the place, and the manner’ of student speech.” 23 F.3d at
1257 (quoting Healy, 408 U.S. at 192–93). The Thompson panel went on
to note that the plaintiffs in that case did not argue that the speech
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“otherwise violated valid restrictions on the time, place, or manner of
speech” and failed to claim a violation of the student code of conduct. Id.
at 1259.
Defendants read Thompson to exclude content-neutral rules from
Tinker scrutiny and “clearly established law in the Tenth Circuit per-
mits school officials to reasonably enforce the student code of conduct.”
Doc. 43 at 19. They argue I should follow the Ninth Circuit holding from
Jacobs v. Clark County School District: “Tinker says nothing about how
viewpoint- and content-neutral restrictions on student speech should be
analyzed.” 526 F.3d 419, 431–32 (9th Cir. 2008).
But I cannot stretch Thompson as far as Defendants do. The Thomp-
son panel did not hold that content-neutral codes of conduct are exempt
from Tinker because it did not even address that argument—it was not
presented. These facts may matter, but I am not persuaded that Thomp-
son created a new exception to Tinker. In an opinion from just six
months before Thompson, the Supreme Court confirmed just three ex-
ceptions to Tinker:
This Court has previously outlined three specific categories
of student speech that schools may regulate in certain cir-
cumstances: (1) indecent, lewd, or vulgar speech uttered
during a school assembly on school grounds; (2) speech, ut-
tered during a class trip, that promotes illegal drug use;
and (3) speech that others may reasonably perceive as
bearing the imprimatur of the school, such as that appear-
ing in a school-sponsored newspaper.
Mahanoy Area Sch. Dist. v. B. L. by & through Levy, 594 U.S. 180, 187–
88 (2021) (citation modified). All other circumstances run through
Tinker. See id.
Even if content-neutrality were definitive, a reasonable jury could
find that the punishments in this case were not content neutral. A rule
is not content neutral if it “draws distinctions based on the message a
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speaker conveys.” Reed v. Town of Gilbert, Ariz., 576 U.S. 155, 163
(2015). Here, Defendant Burek took issue with the words and content of
the email. See Doc. 43 at ¶ 50, 61; Doc. 44 at ¶ 50, 61. So the rule depends
on the content of the email. To make this point clear, one of the remedial
actions taken was to make Plaintiff rewrite the email. Doc. 43 at ¶ 65;
Doc. 44 at ¶ 65. Because the rule’s application depends on the content of
the email, a reasonable jury could find it is not content neutral.
II. 	Remaining Claims
Defendants also claim they are entitled to summary judgment on
Plaintiff’s retaliation claims. To establish a First Amendment retalia-
tion claim, a plaintiff must show that he was engaged in constitutionally
protected activity, that the defendant’s actions caused the plaintiff to
suffer an injury that would chill a person of ordinary firmness from con-
tinuing to engage in that activity, and that the defendant’s adverse ac-
tion was substantially motivated as response to the plaintiff’s exercise
of constitutionally protected conduct. Worrell v. Henry, 219 F.3d 1197,
1212 (10th Cir. 2000).
Because, as explained above, Plaintiff has not shown he was engaged
in constitutionally protected speech, Defendants are entitled to sum-
mary judgment on the remaining retaliation claims.
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CONCLUSION
It is ORDERED that:
The 	Defendants’ 	Motion 	for 	Summary 	Judgment, 	Doc. 	43, 	is
GRANTED.
DATED: March 25, 2026 	BY THE COURT:
Daniel D. Domenico
Chief United States District Judge
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