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T.A. v. McSwain Union Elementary School

July 15, 2010


The opinion of the court was delivered by: Oliver W. Wanger United States District Judge



Plaintiff T.A. ("Plaintiff") is proceeding with an action pursuant to 28 U.S.C. § 1983 against Defendants McSwain Union Elementary School, Terrie Rohrer, C.W. Smith, and Martha Henandez ("Defendants"). Defendants filed a motion for summary judgment on May 14, 2010. (Docs. 47, 49). Plaintiff filed opposition to the motion for summary judgment on June 7, 2010. (Doc. 55). Defendants filed a reply on June 14, 2010. (Doc. 65).


In April of 2008, Plaintiff was enrolled as a sixth-grade student at McSwain Union Elementary School ("the School"). (Plaintiff's Statement of Undisputed Fact 1 )("Plaintiff's SUF"). The School is kindergarten through eighth-grade public school.

(Plaintiff's SUF 2). The School enforces a Dress Code Policy that provides:

Personal articles, clothing, or manner of dress shall make no suggestion of tobacco, drug, or alcohol use, sexual promiscuity, profanity, vulgarity, or other inappropriate subject matter.

(Plaintiff's SUF 7). The School has adopted a "Dress and Grooming" Policy that provides:

The governing board believes that appropriate dress and grooming contribute to a productive learning environment. The board expects students to give proper attention to personal cleanliness and to wear clothes that are suitable for the school activities in which they participate. Students' clothing must not present a health or safety hazard or a distraction which would interfere with the educational process.

(Plaintiff's SUF 8).

The School has also adopted a "Freedom of Speech/Expression" Policy that provides: free inquiry and exchange of ideas are essential parts of the democratic education. The board respects students' rights to express ideas and opinions, take stands on issues, and support causes, even when such speech is controversial or unpopular.

(Plaintiff's SUF UF 10). The Freedom of Speech/Expression Policy further provides:

Students are prohibited from making any expressions or distributing or posting any materials that are obscene, libelous, or slanderous. Students also are prohibited from making any expressions that's so incites (sic) students as to create a clear and present danger of the commission of unlawful acts on school premises, the violation of school rules, or substantial disruption of the school's orderly operation. (Education Code 48907). (Plaintiff's SUF 13).

On April 29, 2008, during STAR*fn1 testing week, Plaintiff wore a shirt to school that expressed her opposition to abortion. (Defendant's SUF 10). The shirt featured the word "ABORTION" in white with black-bordered block letters on the front side. (Plaintiff's SUF 4). Below the word "ABORTION" are three squares approximately three inches in height. The first two squares contain color picture images of what appear to be human fetuses in two stages of prenatal development. (Plaintiff's SUF 4). The third square -- containing no image -- is filled in with black. Below the three squares appears the caption "growing, growing . gone." (Plaintiff's SUF 4). The back of the shirt features the words:

American Life League's

Sixth Annual


PRO-LIFE T-SHIRT-DAY April 29, 2008

(Plaintiff's SUF 6). Plaintiff obtained the shirt from her church. (T.A. Dec. at 28). Plaintiff's mother signed a document giving Plaintiff permission to wear the shirt to school when Plaintiff signed up for the shirt at her church. (T.A. Dec. at 28-30).

Upon arriving at school on April 29, Plaintiff proceeded to the cafeteria for breakfast. (T.A. Dec. at 38). As Plaintiff was eating her breakfast, a school official, Linda Newman, approached Plaintiff and told her she needed to report to the office. (T.A. Dec. at 49). On her way to the office, Plaintiff encountered Martha Hernandez. (T.A. Dec. at 49). According to Plaintiff, Ms. Hernandez grabbed Plaintiff's arm and led her to the office. (T.A. Dec. at 59). Terrie Rohrer, the School's principal, and C.W. Smith, the School's assistant principal, were inside the office when Plaintiff arrived. (T.A. Dec. at 59).

Mr. Smith determined that the shirt violated the Dress Code Policy, specifically Item 7 of the Parent-Student Handbook, because the pictures depicted on the shirt constituted "inappropriate subject matter." Mr. Smith determined that the pictures were "too graphic for the younger students that we have at our school site." (Plaintiff's SUF 22). Mr. Smith also feared that the pictures would distract students during the time in which they should have been taking the STAR test. (Plaintiff's SUF 23). Mr. Smith gave Plaintiff three options with respect to her shirt: (1) maintain possession of the shirt, but wear it inside out; (2) have Plaintiff's mother come pick the shirt up and provide a replacement; or (3) turn the shirt over to the school for the remainder of the school day, and receive a temporary replacement shirt. (T.A. Dec. at 66). Plaintiff opted to receive the temporary replacement and was ...

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