United States District Court, N.D. California
ORDER GRANTING IN PART MOTION FOR TEMPORARY
RESTRAINING ORDER Re Dkt., 1
DONATO UNITED STATES DISTRICT JUDGE
are four Albany High School students who were suspended in
relation to a number of racially charged images posted to
Instagram by another student who is not a party here.
Plaintiffs do not dispute that the images had
“prejudiced and potentially bigoted overtones, ”
and that they commented on, “followed” and/or
“liked” some of those images. Dkt. No. 2
¶¶ 29, 46-77. But they maintain that the Instagram
account was a “private, personal account” of the
non-party poster that “had no connection with any
official school activity or any official school account on
any other social media platform.” Id.
Plaintiffs filed a complaint against the Albany Unified
School District, Albany High School and four individuals that
challenges the school disciplinary proceedings as improper
under the First, Fourth and Fourteenth Amendments to the
United States Constitution and a California state education
law. Dkt. No. 2. Before the Court is plaintiffs' motion
for a temporary restraining order to preserve the status quo
while the Court considers the merits of the claims. Dkt. No.
1. The Court grants the motion in part.
initial matter, the Court treats this as a request for a
temporary restraining order with notice to the other side.
Plaintiffs' motion for a temporary restraining order was
filed on May 1, 2017. Dkt. No. 1. Although that filing did
not include the requisite attorney certification about
efforts made to give notice, see Fed. R. Civ. Pro.
65(b)(1)(B), defense counsel subsequently filed notices of
appearance on the ECF docket on May 8, 2017. Dkt. Nos. 12,
13, 14. Defense counsel also participated in a telephone
conference on May 23, 2017, in which the Court discussed the
TRO application with all parties and stated it was likely to
grant a temporary restraining order if defendants would not
voluntarily agree to a standstill pending further
proceedings. Dkt. No. 22. Defendants have not opposed
plaintiffs' motion, and the Court finds that they have
received adequate written and oral notice that a temporary
restraining order might be ordered.
request for a temporary restraining order is decided under
the same factors as a preliminary injunction motion.
Stuhlbarg Int'l Sales Co., Inc. v. John D. Brush and
Co., Inc., 240 F.3d 832, 841 n.7 (9th Cir. 2001). The
plaintiff must establish that he is likely to succeed on the
merits, is likely to suffer irreparable harm in the absence
of preliminary relief, the balance of equities tips in his
favor and an injunction is in the public interest. Winter
v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20
(2008). A stronger showing of one element may offset a weaker
showing of another. Alliance for the Wild Rockies v.
Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011). Our
circuit also uses the “serious questions”
approach under which an injunction may be ordered when
plaintiff demonstrates serious questions going to the merits
and the balance of hardships tips sharply in plaintiff's
favor, in addition to meeting the other elements of the
Winter test. Id. at 1131-32. “[A]t an
irreducible minimum, ” the party seeking an injunction
“must demonstrate a fair chance of success on the
merits, or questions serious enough to require
litigation.” Pimentel v. Dreyfus, 670 F.3d
1096, 1105-06 (9th Cir. 2012).
First Amendment is central to plaintiffs' case, and there
is no doubt that they have raised “serious
questions” under it. As our circuit has recognized,
“[c]ourts have long dealt with the tension between
students' First Amendment rights and ‘the special
characteristics of the school environment, '” and
that challenge has been made all the more difficult in our
modern times because, “outside of the official school
environment, students are instant messaging, texting,
emailing, Twittering, Tumblring, and otherwise communicating
electronically.” Wynar v. Douglas County School
Dist., 728 F.3d 1062, 1064 (9th Cir. 2013). Here, the
students were communicating via Instagram. The application of
the Supreme Court's school speech jurisprudence to the
type of off-campus speech at issue in this case raises open
and complex questions that our circuit has expressly held are
not amendable to “a one-size fits all approach.”
Id. at 1067-69. The questions here include, among
others: the degree to which First Amendment protections apply
to the students' off-campus speech on Instagram; which
analytical framework applies (see Wynar, 728 F.3d at
1067, listing Supreme Court's “four lead student
speech cases” and the respective areas of student
speech each governs) and what outcome is dictated by the
relevant analysis; and how, if at all, the analysis is
affected by the fact that plaintiffs did not directly post
the images but only commented on them. These questions are
clearly “serious enough to require litigation, ”
Pimentel, 670 F.3d at 1105-06, and are sufficient to
meet that TRO element without consideration of
plaintiffs' other claims.
irreparable harm, plaintiffs have focused on plaintiff Kevin
Chen, who faces an expulsion hearing on June 1, 2017.
See Dkt. No. 1-1 at 11, Dkt. No. 25. The Court finds
that a public school disciplinary hearing that would chill or
violate First Amendment rights undoubtedly qualifies as
irreparable harm. The Court is also advised that Chen is a
rising senior about to start the college admissions process,
and being wrongly expelled would likely cause irreparable
harm to his admission prospects. These factors amply satisfy
the harm showing for a TRO.
have not, however, established irreparable harm for the
mandatory measures they seek -- i.e., to
“remove any and all record of disciplinary action
related to this incident” and to “allow
plaintiffs to make up any work missed as a result of their
suspensions.” Dkt. No. 1 at 2. “The sole purpose
of a temporary restraining order is to preserve the status
quo pending hearing on the moving party's application for
a preliminary injunction, ” Alison O. v. Anthem
Blue Cross Life and Health Ins. Co., No. C 13-4787 PJH,
2013 WL 5979515, at *6 (N.D. Cal. Nov. 8, 2013), and
“status quo” means the last uncontested status
that preceded the pending controversy. GoTo.com, Inc. v.
Walt Disney Co., 202 F.3d 1199, 1210 (9th Cir. 2000).
Plaintiffs' requests that are not limited to enjoining
further disciplinary action go too far beyond maintaining the
status quo. The requests appear to be based on their fear
that this lawsuit will “take years to resolve, ”
Dkt. No. 1-1 at 12, but as the Court has already discussed
with the parties, that will not happen here. The Court
consequently finds that plaintiffs have established
irreparable harm only for Chen's upcoming expulsion
hearing and any other new disciplinary proceedings or actions
defendants may take against plaintiffs before the Court
resolves this case on the merits.
balance of the equities, this case directly implicates these
four high school students' First Amendment rights, and
the outcome of the case could have a strong impact on their
ability to apply for and be admitted to the colleges of their
choice. Defendants have not presented evidence suggesting any
countervailing considerations. The balance tips sharply in
plaintiffs' favor. In addition, a TRO is in the public
motion for a temporary restraining order, Dkt. No. 1, is
granted in part. Defendant Albany Unified School District is
enjoined from proceeding with the expulsion hearing for
plaintiff Kevin Chen that is currently scheduled for June 1,
2017. All defendants are also enjoined from holding any
disciplinary proceedings or taking any other disciplinary
action against plaintiffs based on the conduct that is at
issue in this case pending further order of the Court. Given
the nature of the case and the relief ordered, a bond need
not be posted under Federal Rule of Civil Procedure 65(c).
See Jorgensen v. Cassiday, 320 F.3d 906, 919-20 (9th
Cir. 2003); Barahona-Gomez v. Reno, 167 F.3d 1228,
1237 (9th Cir. 1999).
discussed with the parties during the May 23, 2017, telephone
conference, the Court will proceed directly to an early,
partial summary judgment proceeding as contemplated by
Federal Rule of Civil Procedure 65(a)(2). Consistent with the
parties' stipulation, Dkt. No. 27, the Court sets a
summary judgment hearing for July 13, 2017, at 10:00
a.m., and the parties are directed to follow the
briefing schedule that was proposed for that hearing date.
The pending motion for preliminary injunction, Dkt. No. 10,
will be terminated as moot.