Chynna C.

Simmons, #9936
Joshua Townsend Sr., #8001
Simmons Townsend PLLC

910 W. Main Street, Suite 316

Boise, Idaho 83702
Telephone: 208.906.1500
Simmons@SimmonsTownsend.com
Townsend@SimmonsTownsend.com

Attorneys for Plaintiff

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF IDAHO

B. W., through his guardian Case No. 1:18-cv-00184-CWD

BRENDA WANN,

Plaintiff, MEMORANDUM IN SUPPORT

OF PLAINTIFF’S MOTION
vs. FOR PRELIMINARY
INJUNCTION AND
VALLIVUE SCHOOL DISTRICT No. 139, TEMPORARY RESTRAINING
ORDER

Defendant.

The Plaintiff, by and through his attorney Chynna C. Simmons of SIMMONS

PLLC
TOWNSEND , submits this brief in support of his Motion for Preliminary Injunction and

Temporary Restraining Order, and show this Court:

MEMORANDUM IN SUPPORT OF PLAINTIFF’S MOTION FOR

PRELIMINARY INJUNCTION AND TEMPORARY RESTRAINING ORDER
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 I. BACKGROUND

The plaintiff, B.W., (hereinafter “Plaintiff”) is a 17-year-old student of Ridgevue

High School (hereinafter “Ridgevue”), in the Vallivue School District No. 139, (hereinafter

“District”) who is currently scheduled to graduate in Spring of 2019. Recently, on February 23,

2018, the District, without disclosing witness statements or producing a singe witness against

B.W., expelled B.W. for one calendar year based on allegations of sexual harassment and

bullying.

Prior to his expulsion, B.W. was enrolled in advanced classes including Advance

Placement English, Advance Placement US History, Pre-Calculus, and Anatomy and

Physiology. Plaintiff was an honor roll student every term during his enrollment at Ridgevue

and maintained a cumulative grade point average of 3.363. B.W. was also part of the Ridgevue

Football, Wrestling, and Baseball teams.

On February 9, 2008, B.W. and two of his friends, J.M. and M.S. were engaging in

horse play in the locker room of Ridgevue. A video of such horse play was uploaded to “Snap

Chat” by M.S. Three days later, when faculty learned of the video, J.M., M.S., and B.W. were

asked to provide written statements. B.W. was detained by the school resource officer, a

Nampa Police Officer, and denied access to his parental guardian before and while making the

written statement.

The next day a school board hearing was held where the Vice Principal read the

following statement into the record:

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 4 students (BW, MS, JM, KB) were in the locker room/parking lot area on
2.9.18 before school (after football workouts). KB was never in the parking lot.
JM, MS and BW were in BW's vehicle after getting some food. JM and BW
were having words back and forth and BW became physical with JM. JM is
much smaller than BW/MS. Both BW and MS were reported to have been
physically pinning down and punching JM (in the arm) repeatedly in the
vehicle. The three students then proceeded to the locker room area and KB let
them in the door. BW was locked out at this time and eventually let back in.
When BW came into the locker room, he continued to be physically aggressive
towards MS and JM. Statements were made that BW was messing around and
may be typical of his behavior.

Eventually BW tackled JM down to the ground and continued to pin him down,
using his key and jabbing in in various parts of the body. BW eventually probed
JM in the buttocks where it has been reported that the key penetrated the
rectum. At this point, BW or MS referred to the event as an "oil check". Victim
reports multiple incidents of penetration with the key. JM got up and ran out of
the locker room. MS was recording the incident and send the footage to BW.
KB was a witness. Moments later, after the students had taken showers, BW
went over to JM in the PE locker room and poured shampoo on his head.

Later that day the incident was on snapchat and available for others to see.
Victim stated that he saw the video on BW's phone.

No written statements were presented, no basis for the statement read into the

record was given, no witnesses were presented. 1 Upon reading the aforementioned statement,

the board asked Plaintiff if the statement was accurate or if there was anything to add. Although

Plaintiff denied “penetrating the rectum,” on the advice of Superintendent Pat Charlton, the

Plaintiff “took responsibility” for the incident generally and apologized.

A second hearing was held on February 20, 2018. Again, no written statements

1
Although it is unclear what was provided in the DDRC packet, it is believed that the board received the
written witness statements of students J.M., M.S., and K.B. and adult faculty Tom Dewitz, Neil Stuzman, and Ryan
Anderson. It is also believed that the investigative report read into the record was based upon these witness
statements.

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were presented, no basis for the statement was given, and no witnesses were presented. When

asked if the statement was correct, B.W. replied as follows:

“I deny that the key penetrated his rectum. I jabbed him but at no point did it
go up his butt or into his rectum. I do take full responsibility for what I did. [. .
.] This was not an attack. I’ve never had a problem with [J.M.]. It was boys
being boys . . .”

The board, without offering any explanation, decided to expel B.W. for one year.

Thereafter, B.W. obtained counsel and through counsel requested a new hearing in

which the witnesses against B.W., whom gave written statements (which were not provided to

counsel until two weeks after the expulsion hearing), could be present so that B.W. could

inquire into and seek clarification of some of the accusations made and into some of the

erroneous recollections provided. The District originally agreed to provide a new hearing but a

month later and a mere two hours before the hearing, rescinded its agreement and cancelled

the hearing.

B.W. has filed with the Court an action for declaratory judgement and damages for

violation of his due process rights. B.W. has also requested in the Complaint and herein that

the Court enter a temporary restraining order and preliminary injunction preventing the

District from enforcing the expulsion in violation of Planitiff’s due process rights. If the

expulsion is enforced in the interim, any recovery by B.W. would be futile because he would

already have lost the year of education he is entitled to. The harm to B.W. from the expulsion

will be irreparable if not enjoined.

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 II. LEGAL STANDARD

This Court properly issues a temporary restraining order and preliminary injunction

where there are serious questions going to the merits, irreparable injury to the plaintiff is

likely, the balance of hardships tips in the plaintiff’s favor, and injunction is in the public

interest. M.R. v. Dreyfus, No. 11-35026, 2011 U.S. App. LEXIS 24986 at * 18, 663 F.3d 1100,

1107–08 (9th Cir. Dec. 16, 2011). However, the Plaintiff need not make an absolute showing

of each of those four elements. Rather, they can overcome a weak showing of one element

with a strong showing of another. Vanguard Outdoor, LLC, v. City of Los Angeles, 648 F.3d

737, 739–740 (9th Cir. 2011).

III. ARGUMENT

A. Because the District Did Not Present Witnesses or Witness Statements, there are
Serious Questions Going to the Merits of the Plaintiffs’ Procedural Due Process.

The District expelled B.W. after two hearings. However, the District did not produce a

single witness at either hearing, did not allow B.W. to cross examine adverse witnesses and

did not allow B.W. to review the written statements made against him. Federal due process

and Idaho law both require much more form the District.

1. Procedural Due Process is Required Before the District Can Expel a

Student.

The Idaho Constitution, the Idaho legislature, and the federal government have

repeatedly recognized a child’s right to a free common education. I.C. § 6-2203, et. seq.;

Thornock v. Boise Indep. Sch. Dist., 115 Idaho 466, 470, 767 P.2d 1241, 1245 (1988); Doe v.

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 Ariz. Dep't of Educ., 111 F.3d 678, 680 (9th Cir. 1997).

Article 9, § 1 of the state constitution (“the education clause”) provides:

The stability of a republican form of government depending mainly upon the

intelligence of the people, it shall be the duty of the legislature of Idaho, to
establish and maintain a general, uniform and thorough system of public, free
common schools.

The United State Supreme Court has held over 40 years ago that “[h]aving chosen to

extend the right to an education to people of [Plaintiff’s] class generally, [a State]

may not withdraw that right on grounds of misconduct, absent fundamentally fair

procedures to determine whether the misconduct has occurred.” Goss v. Lopez, 419

U.S. 565, 574, 95 S. Ct. 729, 736 (1975) (analyzing identical Ohio education law).

Although [Idaho] may not be constitutionally obligated to establish and

maintain a public school system, it has nevertheless done so and has required its
children to attend. Those young people do not ‘shed their constitutional rights’
at the schoolhouse door. ‘The Fourteenth Amendment, as now applied to the
States, protects the citizen against the State itself and all of its creatures --
Boards of Education not excepted.’

Id. quoting Tinker v. Des Moines School Dist., 393 U.S. 503, 506 (1969), and West Virginia

Board of Education v. Barnette, 319 U.S. 624, 637 (1943).

As the United States Supreme Court recognized, “‘education is perhaps the most

important function of state and local governments,’ and the total exclusion from the

educational process for more than a trivial period, and certainly if the suspension is for 10

days, is a serious event in the life of the suspended child.” Goss v. Lopez, 419 U.S. 565, 576

(1975) quoting Brown v. Board of Education, 347 U.S. 483, 493 (1954).

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 “Neither the property interest in educational benefits temporarily denied nor the liberty

interest in reputation, which is also implicated, is so insubstantial that suspensions may

constitutionally be imposed by any procedure the school chooses, no matter how arbitrary.”

Goss, 419 U.S. at 576. Likewise, “[t]he Due Process Clause also forbids arbitrary deprivations

of liberty. ‘Where a person’s good name, reputation, honor, or integrity is at stake because of

what the government is doing to him,’ the minimal requirements of the Clause must be

satisfied.” Id. quoting Wisconsin v. Constantineau, 400 U.S. 433, 437 (1971); Board of

Regents v. Roth, 408 U.S. 564, 573 (1972).

In Goss v. Lopez, School authorities suspended the appellant students from school for

10 days based on charges of misconduct. Id. The United States Supreme Court held that due

process applied to the suspension because “[i]f sustained and recorded, those charges could

seriously damage the students’ standing with their fellow pupils and their teachers as well as

interfere with later opportunities for higher education and employment.” Id. at 574-75. The

Court went on to hold that “[i]t is apparent that the claimed right of the State to determine

unilaterally and without process whether that misconduct has occurred immediately collides

with the requirements of the Constitution.” Id. at 575.

The District in this case went even further than the school board in Goss by expelling

B.W. for an entire year. Regardless of what Idaho law requires, the clear and unequivocal

precedent set forth in Goss requires that B.W. be afforded due process before he is expelled for

allegations of misconduct. B.W. was denied even the most basic notions of due process.

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 2. Procedural Due Process Requires the District to Give Notice of the Facts
and Produce Adverse Witnesses for Cross Examination in Expulsion
Hearings.

a) Notice of the Allegations and the Factual Basis for the Allegations is
required

At a minimum, due process requires notice and a meaningful opportunity to respond.

United States v. James Daniel Good Real Prop., 510 U.S. 43, 77 (1993). Without any notice of

the information being used against him and the actual facts alleged, B.W. was unable to

meaningfully defend himself before the panel. In re Gault, 387 U.S. 1, 21 (1967).

The notice requirement “lies at the heart of due process.” Gray Panthers v. Schweiker,

652 F.2d 146, 168 (D.C. Cir. 1980). “‘The fundamental requisite of due process of law is the

opportunity to be heard,’ a right that ‘has little reality or worth unless one is informed that the

matter is pending and can choose for himself whether to . . . contest.’” Goss v. Lopez, 419 U.S.

565, 579 (1975) quoting Grannis v. Ordean, 234 U.S. 385, 394 (1914).

“Part of the function of notice is to give the charged party a chance to marshal the facts

in his defense and to clarify what the charges are, in fact.” Wolff v. McDonnell, 418 U.S. 539,

564 (1974). As such, adequate notice, must “set forth the alleged misconduct with

particularity” so that the student can challenge both the application of the law to their factual

circumstances and the factual premises of the school’s action. see e.g. In re Gault, 387 U.S. 1,

19-20 (1967).

In In re Gault, the United States Supreme Court overturned a conviction of a juvenile

after he was referred to the system for “deviational behavior”—specifically for making a lewd

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telephone call. In re Gault, 387 U.S. 1, 19-20 (1967). In that case, the teen was not given

notice of the allegations until the fact finding hearing. The Court held that where the “initial

hearing” is a hearing on the merits[,] Notice at that time is not timely.” Id. at 33.

B.W. was not given notice of the factual allegations against him until the Vice

Principle read the investigative report before the panel. B.W. wasn’t given notice of what

information was relied on for the investigative report until almost a month after his expulsion.

Without notice of the factual allegations against him, the witness statements, or an opportunity

to hear or question the adverse witnesses, B.W. and the District, had no ability to evaluate the

truth of the facts behind the allegations, and B.W. had no way of disproving inaccurate witness

accounts of which he was not even made aware.

B.W. was further denied any meaningful opportunity to question the allegations when

he was told by a member and leader of the judging panel, Superintendent Pat Charlton, that he

should “take responsibility” and “everything would be OK.” Under the influence of Mr.

Charlton, and with little information to dispute, B.W. disputed what he could but generally

apologized for what he believed the “wrongdoing” to be—wrestling in the locker room.

Like in In re Gault, “[f]ailure to observe the fundamental requirements of due process

has resulted in instances, which might have been avoided, of unfairness to individuals and

inadequate or inaccurate findings of fact and unfortunate prescriptions of remedy.” Id. Had

B.W. had prior notice of the witness statements, the investigative report, and the boards

understanding of the “incident,” B.W. could and would have—as best he could without being

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able to cross examine the witnesses—questioned, disputed, and disproved the false allegations

that ultimately resulted in his expulsion. Perhaps, had the board heard the true nature of the

“incident”—wrestling in the locker room—they would not have proscribed the “unfortunate”

and “extreme” remedy of expulsion and B.W. could be in school pursuing his education rather

than arguing for his future before this court.

a) Notice of the Adverse Witnesses and an Opportunity to Cross Examine

Adverse Witnesses is Required.

While “[t]he requirement of a prior hearing will depend primarily on the nature of the

penalty imposed, the extent to which the underlying facts are in dispute, and the need for swift

action to preserve order and discipline within the school.” Black Coal. v. Portland Sch. Dist.,

484 F.2d 1040, 1044 (9th Cir. 1973). In addition to notice, in cases of expulsion, the United

States Supreme Court and the Ninth Circuit have unequivocally stated that the Fourteenth

Amendment’s Due Process requires the opportunity to question adverse witnesses. Id.; Goss v.

Lopez, 419 U.S. 565, 584 (1975). Similar to the federal due process requirements, Idaho law

requires that the student be given the right “to cross-examine any adult witnesses who may

appear against him.” I.C. § 33-205.

B.W. was not made aware of the allegations against him—inter alia that he “attacked”

another student and “penetrated his rectum” with a car key—until Vice Principle Berquist read

the investigative summary before the panel. Additionally, B.W. was not informed of the

witness statements given to the panel, the contents or those statements, or the authors of those

statements. Although it is believed that the board and the investigative report relied on written

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witness statements of students J.M., M.S., and K.B. and adult faculty Tom Dewitz, Neil

Stuzman, and Ryan Anderson, B.W. was not informed of these witnesses nor allowed to

question these witnesses or their statements. No witnesses testified in person to the panel at

either hearing and B.W. was given no opportunity to cross examine the adult nor student

witnesses or question their written statements since B.W. was not made aware of those

statements.

The discipline and expulsion hearings conducted by the District lacked any and all

forms of due process and were conducted in clear violation of Plaintiff’s Constitutional rights.

Based on the case law set forth above and the facts of this case, there are not only serious

questions going to the merits of Plaintiff’s due process claims but serious questions going to

the merits of the grounds for expulsion and the hearing conducted by the District. As such,

Plaintiff should be granted a temporary restraining order and preliminary injunction preventing

the District enforcing the expulsion, disparaging or defaming B.W., or otherwise reprimanding

B.W. in any way, including athletic or academic restrictions; and require the District to

reinstate and re-enroll B.W., with full rights and standing, at Ridgevue High School until this

Court adjudicates Plaintiff’s due process rights and the District conducts a proper hearing with

all adverse witnesses presented.

B. Enforcing the Expulsion of Plaintiff without First Requiring a Proper Hearing with
Notice and the Right to Cross Examine Adverse Witnesses will Irreparably Harm
Plaintiff.

One of the fundamental purposes for due process is to avoid “the risk of an erroneous

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 deprivation of such interest through the procedures used, and the probable value, if any, of

additional or substitute procedural safeguards.” Mathews v. Eldridge, 424 U.S. 319, 334-35

(1976)

[T]he procedural rules which have been fashioned from the generality of due
process are our best instruments for the distillation and evaluation of essential
facts from the conflicting welter of data that life and our adversary methods
present. It is these instruments of due process which enhance the possibility that
truth will emerge from the confrontation of opposing versions and conflicting
data. ‘Procedure is to law what 'scientific method' is to science.’

In re Gault, 387 U.S. 1, 21 (1967). As stated above, without the meaningful hearing and an

opportunity to challenge the evidence and testimony relied upon, the District had no way of

confirming the witness statements—which were largely based on hearsay—or verify the true

nature of the “incident.” Without procedural safeguards guaranteed by the Courts and the

Constitution, there is a substantial likelihood that the factual allegations asserted against B.W.

turn out to be incorrect and a substantial likelihood that B.W. should have never been expelled

in the first place. However, by allowing the District to expel B.W. while this Court decides the

issue, B.W. will face the potentially unjustified consequences regardless.

Regardless of whether B.W. is correct and is entitled to a new and procedurally proper

hearing before the board, if B.W. remains expelled during this litigation then any new hearing

granted at the end would be moot because, even if the expulsion is reversed, B.W. would have

nevertheless been out of school—and expelled—for the entirety of the one year expulsion and

would have nevertheless lost the opportunity to graduate next year and to play sports—or gain

athletic scholarships—as a senior. B.W. would likely lose any potential athletic scholarships

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he may have been able to receive

As such, B.W. should be granted a temporary restraining order and preliminary

injunction preventing the District enforcing the expulsion, disparaging or defaming B.W., or

otherwise reprimanding B.W. in any way, including athletic or academic restrictions; and

require the District to reinstate and re-enroll B.W., with full rights and standing, at Ridgevue

High School until this Court adjudicates Plaintiff’s due process rights and the District conducts

a proper hearing with all adverse witnesses presented.

C. Balancing of Hardships Weighs in Favor of Granting Plaintiff the TRO and

Preliminary Injunction.

In an expulsion situation, the United States Supreme Court has held that the students

interest in not erroneously being excluded from education and the accompanying social and

athletic activaties outweighs the schools interest in efficiently administering punishment to

students. Goss v. Lopez, 419 U.S. 565, 580 (1975). Specifically, the Court explained it’s

reasoning as follows:

The student’s interest is to avoid unfair or mistaken exclusion from the

educational process, with all of its unfortunate consequences. The Due Process
Clause will not shield him from suspensions properly imposed, but it disserves
both his interest and the interest of the State if his suspension is in fact
unwarranted. The concern would be mostly academic if the disciplinary process
were a totally accurate, unerring process, never mistaken and never unfair.
Unfortunately, that is not the case, and no one suggests that it is.
Disciplinarians, although proceeding in utmost good faith, frequently act on the
reports and advice of others; and the controlling facts and the nature of the
conduct under challenge are often disputed. The risk of error is not at all trivial,
and it should be guarded against if that may be done without prohibitive cost or
interference with the educational process.

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Goss v. Lopez, 419 U.S. 565, 579-80 (1975). The Court continued by explaining that while the

School’s interest in expediency is valid, “We do not believe that school authorities must be

totally free from notice and hearing requirements if their schools are to operate with acceptable

efficiency.” Goss v. Lopez, 419 U.S. 565, 581 (1975).

The competing interests in this case are almost identical to those in Goss. While the

District faces some difficulties in conducting a more thorough and reliable fact finding and

evidentiary hearing, the consequences to B.W. for the failure of that slight hardship affect his

reputation, his current education, his collegiate education, and his future employment

opportunities. Contrary to B.W., who would have no remedy if the expulsion is served and then

found to be wrongful, in the event that B.W. does not prevail on his claims before this Court,

the District suffers no detriment from the temporary restraining order or preliminary injunction

because it can simply reimplement the expulsion without issue.

Furthermore, this Court should grant the temporary restraining order because, in light of

missing the spring semester awaiting a proper hearing, B.W. is required to take summer school

classes in order to graduate next spring and enrollment in those classes has already begun.

As discussed in detail supra, it is this extreme deprivation and the consequences the

expulsion creates that not only justify the procedural safeguards the United State Supreme

Court has prescribed but that justify the Temporary Restraining Order and Preliminary

Injunction requested.

D. The Injunction is in the Public Interest.

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 The Idaho Constitution mandates that the state “establish and maintain a general,

uniform and thorough system of public, free common schools.” ID Const. Sec. 1 Art. 9. Stated

in the express language of the mandate is that the “[t]he stability of a republican form of

government depending mainly upon the intelligence of the people[.]” Id. As such, the public

interest in not wrongfully denying B.W. an education is the same compelling reason that give

B.W. the constitutional right to receive an education—the stability of a republican form of

government.

E. No Bond Should be Required of The Plaintiff Because He is an Indigent Minor and

Because the District Will Not Suffer Financial Expense From the Preliminary
Injunction.

In cases involving the public interest, no bond or a nominal bond is appropriate when

granting a preliminary injunction. Save Our Sonoran, Inc. v. Flowers, 408 F.3d 1113, 1126

(9th Cir. 2005). This case involves the public interest in providing a free education to its

citizens. Secondly, the Plaintiff is entitled to finish his high school education whether that be

right now or after his one-year expulsion. Thus, the District will suffer no financial costs from

the Court enjoining Plaintiff’s one-year expulsion because, regardless, B.W. is entitled to the

same amount of education from the District. Lastly, the Court should not require the bond

because the Plaintiff is a minor of little to no financial means, any bond required would be

unfeasible. As such, the Plaintiff requests that the Court not set a bond for the preliminary

relief he seeks.

IV. CONCLUSION

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 For the reasons set forth above, Plaintiff requests that the Court grant a temporary

restraining order and preliminary injunction preventing the District enforcing the expulsion,

disparaging or defaming B.W., or otherwise reprimanding B.W. in any way with regard to

the “incident”, including athletic or academic restrictions; and require the District to reinstate

and re-enroll Plaintiff, with full rights and standing, at Ridgevue High School until this

Court adjudicates Plaintiff’s due process rights and the District conducts a proper hearing

with all adverse witnesses presented.

DATED this 26th day of April, 2018, at Boise, Idaho.

Simmons Townsend PLLC

BY: /s/ Chynna C. Simmons

Chynna C. Simmons
Attorneys For Plaintiff

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