United States District Court, E.D. Virginia, Richmond Division
M.B., by and through his father and next friend, Michael Brown, Plaintiff,
JEFFREY W. MCGEE, in his official capacity as Director of Maggie L. Walker Governor's School, et al., Defendants.
Hannah Lauck United States District Judge
matter comes before the Court on a Motion to Dismiss for
"failure to state a claim upon which relief can be
granted" filed pursuant to Federal Rule of Civil
Procedure 12(b)(6) by Defendants Jeffrey W. McGee, Director
of Maggie L. Walker Governor's School, and Philip B.
Tharp, Assistant Director of Maggie L. Walker Governor's
School (the "Defendants"). (ECF No. 4.) Plaintiff
M.B., a minor,  by and through his father and next
friend, Michael Brown ("M.B.") responded, and the
Defendants replied. (ECF Nos. 8, 9.) This matter is ripe for
disposition. The Court dispenses with oral argument because
the materials before it adequately present the facts and
legal contentions, and argument would not aid the decisional
process. The Court exercises jurisdiction pursuant to 28
U.S.C. § 1331.
Standard of Review
Federal Rule of Civil Procedure 12(b)(6)
motion to dismiss under Rule 12(b)(6) tests the sufficiency
of a complaint; importantly, it does not resolve contests
surrounding the facts, the merits of a claim, or the
applicability of defenses." Republican Party of N.C.
v. Martin, 980 F.2d 943, 952 (4th Cir. 1992) (citing 5 A
Charles A. Wright & Arthur R. Miller, Federal
Practice and Procedure § 1356 (1990)). In
considering a motion to dismiss for failure to state a claim,
a plaintiffs well-pleaded allegations are taken as true and
the complaint is viewed in the light most favorable to the
plaintiff. Mylan Labs., Inc. v. Matkari, 7 F.3d
1130, 1134 (4th Cir. 1993); see also Martin, 980
F.2d at 952. This principle applies only to factual
allegations, however, and "a court considering a motion
to dismiss can choose to begin by identifying pleadings that,
because they are no more than conclusions, are not entitled
to the assumption of truth." Ashcroft v. Iqbal,
556 U.S. 662, 679 (2009).
Federal Rules of Civil Procedure "require[ ] only 'a
short and plain statement of the claim showing that the
pleader is entitled to relief, ' in order to 'give
the defendant fair notice of what the... claim is and the
grounds upon which it rests.'" Bell Art. Corp.
v. Twombly, 550 U.S. 544, 555 (2007) (omission in
original) (quoting Conley v. Gibson, 355 U.S. 41, 47
(1957)). Plaintiffs cannot satisfy this standard with
complaints containing only "labels and conclusions"
or a "formulaic recitation of the elements of a cause of
action." Id. (citations omitted). Instead, a
plaintiff must assert facts that rise above speculation and
conceivability to those that "show" a claim that is
"plausible on its face." Iqbal, 556 U.S.
at 678-79 (citing Twombly, 550 U.S. at 570;
Fed.R.Civ.P. 8(a)(2)). "A claim has facial plausibility
when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is
liable for the misconduct alleged." Id. at 678
(citing Twombly, 550 U.S. at 556).
Effect of Extrinsic Documents
on a motion under Rule 12(b)(6)..., matters outside the
pleadings are presented to and not excluded by the court, the
motion must be treated as one for summary judgment under Rule
56, " and "[a]ll parties must be given a reasonable
opportunity to present all the material that is pertinent to
the motion." Fed.R.Civ.P. 12(d); see Laughlin v.
Metro. Wash. Airports Auth., 149 F.3d 253, 260-61 (4th
Cir. 1998); Gay v. Wall, 761 F.2d 175, 177 (4th Cir.
1985). However, "a court may consider official public
records, documents central to plaintiffs claim, and documents
sufficiently referred to in the complaint [without converting
a Rule 12(b)(6) motion into one for summary judgment] so long
as the authenticity of these documents is not disputed."
Witthohn v. Fed. Ins. Co., 164 F.App'x 395,
396-97 (4th Cir. 2006) (citing Alt. Energy, Inc.
v. St. Paul Fire & Marine Ins. Co., 267 F.3d 30, 33
(1st Cir. 2001); Phillips v. LCI Int'l, Inc.,
190 F.3d 609, 618 (4th Cir. 1999); Gasner v. Cty. of
Dinwiddie, 162 F.R.D. 280, 282 (E.D. Va. 1995)).
"[I]n the event of conflict between the bare allegations
of the complaint and any attached exhibit..., the exhibit
prevails." Fayetteville Inv'rs v. Commercial
Builders, Inc., 936 F.2d 1462, 1465 (4th Cir. 1991).
Also, "[w]hen matters outside the pleadings are
presented in a response to a 12(b)(6) motion, a
district court has discretion to exclude the additional
material." Lawson v. Miles, No. 1:11cv949, 2012
WL 3242349, at *4 (E.D. Va. Aug. 6, 2012) (emphasis added)
Extrinsic Documents Before the Court
attached to his Complaint "Exhibit 1, " the
February 22, 2016 email he sent to the Harvard University
Admission's Office (me "Harvard Admission's
Office). (ECF No. 1-1.) The Defendants attached to their
Motion to Dismiss "Exhibit A, " a full copy of the
Maggie L. Walker Governor's School ("MWGS")
Handbook. (ECF No. 5-1.) M.B. attached to his Response to the
Motion to Dismiss five exhibits: (1) a March 11, 2016 letter
from McGee to M.B.'s parents giving notice of M.B.'s
disciplinary infraction; (ECF No. 8-1), (2) screenshots of
the Common Application questions relating to an
applicant's disciplinary history; (ECF No. 8-2), (3) a
March 15, 2016 letter from M.B.'s attorney to McGee
regarding M.B.'s appeal of the disciplinary action; (ECF
No. 8-3), (4) a March 24, 2016 letter from McGee to
M.B.'s attorney in response to the March 15, 2016 letter;
(ECF No. 8-4), and, (5) an April 22, 2016 letter from McGee
to M.B.'s parents stating McGee's decision to uphold
the disciplinary sanction imposed on M.B, (ECF No. 8-5).
Court will consider only three of the proffered exhibits: (1)
the February 22, 2016 email from M.B. to the Harvard
Admission's office; (2) the MWGS Handbook; and, (3) the
March 11, 2016 letter from McGee to M.B.'s parents. M.B.
sufficiently refers to those three exhibits in his Complaint,
they are central to M.B.'s claims, and neither party
disputes their authenticity. See Witthohn, 164
F.App'x at 396-97 (citations omitted). The Court,
however, will not consider the four remaining exhibits: (1)
the screenshots of the Common Application questions; (2) the
March 15, 2016 letter from M.B.'s attorney to McGee; (3)
the March 24, 2016 letter from McGee to M.B.'s attorney;
and, (4) the April 22, 2016 letter from McGee to M.B.'s
parents. Although he seeks to append them now, M.B. did not
refer to those four documents in his Complaint, and they are
not central to his claim. The Court will exercise its
discretion and decline to consider those documents. See
Lawson, 2012 WL 3242349, at *4.
Procedural and Factual Background
alleges three counts in the Complaint, each against both
Defendants in their official capacities.
Count I: "Due Process - Lack of Notice." In
violation of M.B.'s Fourteenth Amendment rights,
"the Defendants are depriving him of liberty without due
process of law" because "[t]he 'bullying'
standard as applied to the facts of this case is unduly
vague." (Compl. ¶¶ 48, 47.)
Count II: "Due Process - Arbitrary and Capricious
Action." In violation of M.B.'s Fourteenth Amendment
rights, the Defendants are "seeking to rewrite the
Standards for Student Conduct retroactively to punish M.B.
for conduct which they dislike, but which was not prohibited
at the time." (Compl. ¶ 51.)
Count III: "Free Speech." In violation of
M.B.'s First Amendment rights, the Defendants punished
M.B. for his speech. (Compl. at 10.)
seeks: (1) an injunction prohibiting the Defendants from
reporting that M.B. committed bullying and requiring the
Defendants to expunge any reference to this incident from his
record; (2) nominal damages; and, (3) costs and
Defendants have moved to dismiss all counts of the Complaint.
The Defendants assert that Count I, the Void for Vagueness
claim, and Count II, the Arbitrary and Capricious claim, must
be dismissed because M.B. fails to allege a constitutionally
protected interest on which a claim for a Due Process
violation may be based. The Defendants further argue that
Count I, the Void for Vagueness claim, should be dismissed
because M.B. had adequate notice that MWGS prohibited his
conduct; and Count II, the Arbitrary and Capricious claim,
should be dismissed because the Defendants had a rational
basis for their decision to punish M.B. for bullying.
Finally, the Defendants aver that Count III, the Free Speech
claim, should be dismissed because "it was reasonably
foreseeable that [M.B.'s] email would reach the school
and his email threatened to-and did-cause a material and
substantial disruption to the operation of MWGS and collided
with the rights of others." (Mem. Supp. 10-11.) M.B. has
responded to the Motion to Dismiss, (ECF No. 8), and the
Defendants have replied, (ECF No. 9).
Summary of Allegations in the Complaint
1. Alleged Facts
Complaint conveys a relatively straightforward series of
events. M.B., then a junior at MWGS, "a prestigious
public high school" located in Richmond, Virginia,
(Compl. ¶ 13), learned in the Spring of 2016, that R.P.,
another student at MWGS, had been admitted to and received a
financial scholarship from Harvard University. M.B. "was
aware that R.P. had been caught and disciplined for
cheating" by MWGS, and believed that MWGS administration
had either deleted this incident from R.P.'s school
records or failed to disclose it during the application
process. (Id. ¶ 20.) Believing that MWGS's
honor code required him to report this information, M.B. sent
an email to the Harvard Admission's Office from his home
computer on February 22, 2016, at 10:28 a.m. (Ex. 2.)
Because the parties' dispute originates from the email,
the Court reproduces it in full:
Harvard admissions officers ...
I am a concerned student attending [MWGS]. A controversy has
arisen recently regaurding [sic] an admitted applicant to you
[sic] college, a one [R.P.]
Recently, this student has recieved [sic] a scholarship
funding surmounting [sic] to a large sum of money. However,
in order to qualify for this scholarshsip, [R.P.] would need
to have no honor code violations on [R.P.'s] record. This
was not the case.
Members of administration of [MWGS] deleted numerous accounts
of honor code violations, to include instances of cheating on
tests. The result, it seems, is that [R.P.] has gotten away
with numerous instances of cheating and fraud; which [R.P.]
has been known for doing often.
With this blemish removed from [R.P.'s] record, [R.P.]
has been admitted into your presitgious [sic] university
under falsified pretense [sic]. If not clear, the
administration of my high school has Dated this to enhance
college acceptance and scholarship numbers. These numbers are
boasted by the school, as this high school is one of the
greatest schools for college acceptance [sic].
While I am not denying the intensity of this school, the case
of [R.P.] is of great concern to myself as a student, who
values sincerity in education. I find the faults of [R.P.]
and especially that of the school administration to be quite
disturbing, thus I have notified you accordingly.
The [School] Honor Code is as follows:
The . . . Honor Code ensures that students do not lie, cheat,
or commit plagiarism, not [sic] tolerate those who do. The
[School's] student-led Honor Council endeavors to uphold
the Honor Code and to promote a trusting, collegial
atmosphere between students and faculty.
At [MWGS] our philosophy on honor is simple: achievement
based on fraud will crumble, but true scholarship and love of
learning will endure for life. An honorable mindset does not
end at graduation, for our honor system builds an ethos of
honor that lasts long after students depart [MWGS] in cap and
The School Profile is linked here [hyperlink
for [sic] validation or more information, feel free to
contact Jeff McGee, Director at [email address] Phil Tharp,
Assistant Director at [email address]
My name is [M.B.], a junior at [MWGS], and I am simply a
student obliged to uphold a certain degree of honor.
(Ex. 2-3.) M.B. never shared the email with any other
student, nor did he express his concerns about R.P. over any
form of social media. R.P. did not learn of the email until
after M.B. "was called before the administration to
determine whether he should be punished for sending it."
(Compl. ¶ 36.)
receiving M.B.'s email, the Harvard Admission's
Office contacted the MWGS guidance counselor responsible for
R.P.'s application. McGee and Tharp received a forwarded
copy of the email from Harvard, and on February 23, 2016,
they called M.B. and his parents to McGee's office to
talk about the email. On March 11, 2016, McGee sent
M.B.'s parents a letter, saying that he had found M.B. in
violation of MWGS's prohibition on bullying. On April 22,
2016, McGee held an "administrative 'appeal
hearing.'" (Id. ¶ 41.) During the
hearing, M.B. told McGee that when he sent the email, he
"was not directing any action against R.P., but rather
upholding what he believed was his duty under the Honor Code,
" and that his conduct did not constitute
"bullying, " as defined in the MWGS Handbook.
(Id.) McGee upheld his original decision finding
M.B. in violation of MWGS's prohibition on
bullying. M.B.'s punishment consisted of:
(1) performing six hours of work detail; (2) writing a
statement about what he learned about the experience; and,
(3) a "permanent mark [on] his school file so as to
show that he was found guilty of 'bullying.'"
(Id. ¶ 40.) M.B.'s "derogatory record
[of bullying will be] provided to any college to which M.B.
will apply next year." (Id.)
and Tharp told M.B. that his behavior constituted bullying
"because the definition of 'bullying' in the
Student Handbook includes a number of 'examples' of
bullying, one of which is 'falsifying statements about
other persons.'" (Compl. ¶ 37 (quoting
Maggie L. Walker Governor's School Handbook and Code
of Conduct ("Student Handbook") 56
(2015-2016).) According to McGee, M.B.'s email to Harvard
was false because M.B. stated that R.P. had been punished for
cheating numerous times, but R.P. had only been "caught
and convicted of cheating ones” at MWGS. (Id.
states that "there was no aggression on [his] part,
" and that he did not send the email intending to
'"harm, intimidate[J or humiliate' R.P.[, but
merely] to carry out M.B.'s reporting obligations under
the Honor Code." (Compl. ¶¶ 33-34 (quoting
Student Handbook 56).) M.B. claims that "he reported the
facts, as he understood them, quietly and discreetly, fully
identifying himself and giving the university the means to
quickly confirm the information he was reporting."
(Id. ¶ 4.) In part because of his innocent
intentions, M.B. asserts that his action in sending the email
did not constitute bullying as defined by MWGS's Student
alleges that the Defendants' actions will cause him
reputational injury and will "distinctly alter his legal
status by formally marking him as a 'bully, ' thereby
jeopardizing his ability to obtain admission to the college
of his choice" because "college admissions
personnel or members of the public will [likely] see the
damaging information." (Id. ¶ 45.)
Student Handbook Provisions
sections of MWGS's Student Handbook pertain to this
Complaint: (1) the Honor Code; (2) the prohibition against
bullying; and, (3) the definition of bullying.
The Honor Code
than the section governing all aspects of student conduct
(the "Standards for Student Conduct" section), the
Honor Code is the longest section of the Student Handbook,
spanning nine pages. The Honor Code consists of nine articles
and thirteen amendments, containing detailed provisions for
what constitutes an Honor Code violation, how MWGS
adjudicates alleged violations, and the consequences of a
conviction for violating the Honor Code.
Honor Code "provides that students do not lie, cheat, or
commit plagiarism, nor tolerate those who do." (Student
Handbook 17.) To foster freedom, trust, and responsibility,
the Honor Code "delegates to the individual students
responsibility for integrity in their academic
behavior." (Id. at 18.) Students have
responsibility to, inter alia, "[r]eport any
violations of the Honor Code. If a student witnesses or
realizes that a violation of the Honor Code has occurred, the
student must report the offense to the instructor
involved." (Id.) Cheating, plagiarism, lying,
and forgery all constitute violations of the Honor Code.
The Prohibition Against Bullying
D: Threats to Persons" of the Student Handbook contains
the prohibition on bullying. That prohibition states in full:
Bullying, either individually or as part of a group, no
student shall harass other students. Repeated or single
incidents of negative behaviors targeting a specific victim.
The following conduct is illustrative of bulling [sic]:
Physical intimidation, taunting, name calling, and insults.
Comments regarding the race, gender, religion, physical
abilities or characteristics of associates of the targeted
person. Falsifying statements about other persons [sic].
Id. at 40.
The Definition of Bullying
P: Definitions & Policy Clarifications" of the
Student Handbook defines bullying. That ...