Johnson v. Perry
859 F.3d 156
| 2d Cir. | 2017Background
- Norman Johnson complained to school staff that Principal Stephen Perry bullied and harassed Johnson's daughter (JD) to keep her on the varsity girls basketball roster despite her desire to play only JV.
- After a heated February 7, 2013 meeting in which Johnson accused Perry of lying and Perry ended the meeting, Perry emailed Johnson a "trespass" notice banning him from Capital Preparatory Magnet School events (on- and off-campus), except commencement.
- The ban prevented Johnson from attending school events including a senior presentation and senior night; he was also escorted out of a state championship game held at Mohegan Sun after school officials instructed venue staff to remove him.
- Johnson sued under 42 U.S.C. § 1983 alleging violations of his First Amendment right of assembly, Fourteenth Amendment due process and equal protection, and state-law IIED. The district court dismissed some claims, later reinstated due process sua sponte, and denied qualified-immunity summary judgment on the First Amendment claim.
- On interlocutory appeal, the Second Circuit limited review to the First Amendment qualified-immunity issue (appellate jurisdiction did not encompass the sua sponte due process revival) and considered the facts as alleged by Johnson.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether banning Johnson from school property generally violated the First Amendment | Johnson: blanket ban punished his protest of Perry's treatment of JD and impermissibly restricted assembly | Perry: schools can limit access to maintain safety/order; no unlimited First Amendment right to general access | Held: No clearly established right to unlimited access; Perry entitled to qualified immunity for bans from school property except for sports events |
| Whether banning Johnson from spectator sports on school property violated the First Amendment | Johnson: basketball games are limited public fora where he had a right to attend and express views; ban was viewpoint-motivated | Perry: ban was reasonable and justified by safety concerns; sports events not protected in same way | Held: Denial of summary judgment proper — jury could find ban was unreasonable and viewpoint-based; qualified immunity denied as to sports on-campus |
| Whether causing Johnson's removal from an off-campus, private venue (Mohegan Sun) violated the First Amendment | Johnson: he was an invitee at the venue; removal at Perry's behest abridged his assembly rights beyond school property | Perry: private venue has separate authority; no First Amendment protection from being removed by private owner | Held: Denial of summary judgment proper — on Johnson's version Perry caused removal without reasonable basis; qualified immunity denied as to off-campus removal |
| Appellate jurisdiction over due process claim reinstated by district court sua sponte | N/A (Johnson sought to proceed) | Perry: appealed denial of summary judgment only; notice of appeal did not include court's sua sponte due process revival | Held: Appeal dismissed for lack of jurisdiction as to due process claim because Perry's notice of appeal did not sufficiently specify that issue |
Key Cases Cited
- De Jonge v. Oregon, 299 U.S. 353 (1937) (assembly right is cognate to speech/press; fundamental)
- Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969) (student-speech discipline requires more than mere discomfort)
- Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788 (1985) (forum analysis: traditional, designated, limited, nonpublic forums)
- Papineau v. Parmley, 465 F.3d 46 (2d Cir. 2006) (First Amendment protects invitees on private property from government-induced removal absent clear danger)
- Lovern v. Edwards, 190 F.3d 648 (4th Cir. 1999) (no right to "boundless access" to school property where conduct threatened school operations)
- Bystrom v. Fridley High Sch., 822 F.2d 747 (8th Cir. 1987) (distinction between regulating on-campus and off-campus expression is legally significant)