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M.B. v. McGee

United States District Court, E.D. Virginia, Richmond Division

March 24, 2017

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.


          M. Hannah Lauck United States District Judge

         This 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, [1] 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.[2]

         I. Standard of Review

         A. Federal Rule of Civil Procedure 12(b)(6)

         "A 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).

         The 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).

         B. Effect of Extrinsic Documents

         "If, 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) (citations omitted).

         C. Extrinsic Documents Before the Court

         M.B. 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).

         The 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.[3] The Court will exercise its discretion and decline to consider those documents. See Lawson, 2012 WL 3242349, at *4.

         II. Procedural and Factual Background

         A. Procedural History

         M.B. 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[4] 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[5] rights, the Defendants punished M.B. for his speech. (Compl. at 10.)

         M.B. 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 attorneys' fees.

         The 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).

         B. Summary of Allegations in the Complaint [6]

1. Alleged Facts

         M.B.'s 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.[7] (Ex. 2.) Because the parties' dispute originates from the email, the Court reproduces it in full:

         To 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 gown.
The School Profile is linked here [hyperlink included]
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.)

         After 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.[8] 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.)

         McGee 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. ¶38.)

         M.B. 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 Handbook.

         M.B. 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.)

         2. Student Handbook Provisions

         Three 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.

         a. The Honor Code

         Other 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.

         The 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.

         b. The Prohibition Against Bullying

         "Section 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.

         c. The Definition of Bullying

         "Section P: Definitions & Policy Clarifications" of the Student Handbook defines bullying. That ...

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