SALINE PARENTS v. GARLANDSALINE PARENTS v. GARLAND
Case Information
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA SALINE PARENTS et al. ,
Plaintiffs , v. No. 1:21-cv-2775 (DLF) MERRICK B. GARLAND,
Defendant. MEMORANDUM OPINION
Sаline Parents, an association of parents, and six individual parents from Saline, Michigan, and Loudoun County, Virginia, seek to enjoin the Attorney General from enforcing an alleged policy that chills their activities protesting their school districts’ policies. Before the Court is the defendant’s Motion to Dismiss. Dkt. 10. For the reasons thаt follow, the Court will grant the motion under Rule 12(b)(1) for lack of jurisdiction.
I. BACKGROUND
A. Factual Background
On October 4, 2021, the Office of the Attorney General issued a memorandum titled “Partnership Among Federal, State, Local, Tribal, and Territorial Law Enforcement to Address Threats Against School Administrators, Board Members, Teachers, and Staff.” Def.’s Mot. to Dismiss, Ex. A (AG Memo) at 2, Dkt. 10-2. The memorandum targets “a disturbing spike in harassment, intimidation, and threats of violence against school administrators, board members, teachers, and staff who participate in the vital work of running . . . public schools.” It states: “While spirited debate about policy matters is protected under our Constitution, that protection does not extend to threats of violence or efforts to intimidate individuals based on their views.” Id.
The Attorney General’s memorandum announced two action items. First, “[i]n the coming days, the Department [of Justice] w[ould] announce a series of measures designed to address the rise in criminal conduct directed toward school pеrsonnel.” Id. Second, the Attorney General directed the FBI to “convene meetings with federal, state, local, Tribal, and territorial leaders in each federal judicial district” to discuss “strategies for addressing threats against school administrators, board members, teachers, and staff” and to “open dedicated lines оf communication for threat reporting, assessment, and response.” Id. Following the Attorney General’s memorandum, on October 20, 2021 the FBI sent an internal email to agents describing its efforts to identify and track these threats. First Am. Compl. at ¶ 85, Dkt. 8; Def.’s Mot. to Dismiss, Ex. B (FBI Email) at 2, Dkt. 10-3. The email stated that the FBI “share[s] an obligation to ensure all individuals[, including schоol staff,] are able to do their jobs without threats of violence or fear for their safety.” FBI Email at 2 . “As a result, [the FBI] created a threat tag, EDUOFFICIALS, to track instances of related threats.” Id. The email asked FBI offices to “apply the threat tag to investigations and assessments of threats specifically directed against school board administrators, board members, teachers, and staff,” in order to “scope this threat on a national level and provide an opportunity for comprehensive analysis of the threat picture.” Id.
The plaintiffs are Saline Parents, an “unincorporated association of parents,” and six parents who reside in either Saline, Michigan or Loudoun County, Virginia. First Am. Compl. ¶¶ 9–37. Both the Saline Parents organization and the individual plaintiffs oppose “‘progressive’ policies and curricula” in their respective school districts, Saline Area Schools and Loudoun County Public Schools. ¶¶ 11, 13, 16, 20, 22, 24, 26, 35. According to the plaintiffs, their advocacy has included making public statements of opposition at school board meetings, id. ¶¶ 12, 27, such as “clapping instead of using ‘jazz hands,’” id. ¶ 32; leading efforts to recall school board members by “collecting signatures, writing letters, and attending press conferences,” id. ¶ 30; initiating a student walk out, id. ¶ 34; posting on social media, id. ¶ 35; and organizing a “shoe drop protest, where hundreds of shoes were left in front of” school administrative offices, id. ¶ 36. The plaintiffs explicitly state that their activities did not include “widespread threat of criminal violence,” and that their meetings with school officials “involve[d] [only] private citizens expressing their opposition to harmful policies being considered by government officials . . . as is their right to do under the First Amendment.” Id. ¶ 65.
B. Procedural Background
On October 19, 2021, the plaintiffs filed this suit against Merrick Garland in his official capacity as Attorney General. Dkt. 1. The plaintiffs allege that the Attorney General adopted an unlawful policy (AG Policy) “to use federal law enforcement resources to silence parents аnd other private citizens who publicly object to and oppose the . . . policies of the ‘progressive’ Left that are being implemented . . . in public school districts” such as Saline and Loudoun County. First Am. Compl. ¶ 2. Specifically, they allege that the AG Policy labels them as “domestic terrorist[s]” and “criminalize[s]” their speech, thereby chilling their “opposition and outrage to ‘progressive’ school board curricula and policies.” Id. ¶¶ 88, 94.
The plaintiffs seek to enjoin the AG Policy and any federal actions taken pursuant to it. ¶ D. Their complaint pleads causes of action based on the First Amendment, id. ¶¶ 108–19; equal protection under the Fifth Amendment, id. ¶¶ 120–25; protection of parental rights under the Fifth Amendment, id. ¶¶ 126–28; and the Religious Freedom Restoration Act, id. ¶¶ 129–40. The defendant subsequently moved to dismiss the complaint under Rules 12(b)(1) and 12(b)(6) on multiple grounds, including for lack of standing. Dkt. 10.
II. LEGAL STANDARDS
When deciding a
III. ANALYSIS
The defendant seeks to dismiss the complaint on standing grounds. Mem. in Supp. of
Def.’s Mot. to Dismiss at 16, Dkt. 10-1. To establish standing, a plaintiff must show: (1) an “injury
in fact”; (2) a “causal connection betwеen the injury” and the challenged action; and (3) a
likelihood that the “injury will be redressed by a favorable decision.”
Lujan v. Defs. of Wildlife
,
A. Threat of Enforcement
The plaintiffs’ first alleged injury amounts to a pre-enforcement challenge because it
derives from the threatened enforcement оf a law. First Am. Compl. ¶¶ 83, 99. In such cases,
plaintiffs need not show “[a]n actual arrest, prosecution, or other enforcement action.”
Woodhull
Freedom Found. v. United States
,
At the first prong, it is undisputed that the plaintiffs intend to engage in conduct that is
arguably affected with a constitutional interest—namely, the First Amendment. The First
Amendment protects free speech, including advocacy against school officials, but does not extend
to “true thrеats” and “[t]hreats of violence.”
Virginia v. Black
,
But the plaintiffs fail at the second prong for two independent reasons. The alleged AG
Policy does not “arguably proscribe[]” plaintiffs’ conduct,
Susan B. Anthony List
,
The alleged AG Policy is not regulatory, proscriptive, or compulsory in nature because it
does not impose any regulations, requirements, or enforcement actions on individuals. None of
the documents that the plaintiffs allege establish the policy create an imminent threat of future
legal actions against anyone, much less the plaintiffs. The Attorney General’s October 4
memorandum simply announced a plan to “announce a series of measures” in the future and
directed the FBI to convene meetings with leaders in each federal judicial district. AG Memo at
2. At most, it charged the FBI with “open[ing] dedicated lines of communication for threat
reporting, assessment, and response” at these meetings, without requiring any particular regulatory
or enforcement action.
Id.
Similarly, the FBI’s October 20 internal email created a new threat tag
to track threats against school officials and listed a few guidelines along which to evaluate those
threats. FBI Email at 2. Nowhere in the email did the FBI require that any particular action be
taken in response to a threat labeled with the new tag.
See id.
Finаlly, the plaintiffs’ photo of one
marked Homeland Security vehicle outside a school board meeting—in a city that is neither Saline
nor in Loudoun County—does not plausibly establish an inference that the Attorney General has
taken or intends to take any kind of enforcement action. First Am. Compl. ¶ 87. The plaintiffs’
future conduct therefore cannot be considered “arguably proscribed” by the alleged AG Policy.
Susan B. Anthony List
,
Further, even if the alleged policy contained any kind of restriction, regulation, or
proscription, it would not apply to the plaintiffs’ conduct. The plaintiffs represent that their
conduct includes verbal opposition and peaceful protests, akin to “private citizens petitioning their
government officials for a redress of grievances,” but never “threat[s] of criminal violence.” First
Am. Compl. ¶ 65. They emphasize that they intend to engage only in “constitutionally protected
conduct.” ¶¶ 39, 65. The Attorney General’s memorandum explicitly statеs that it does not
target what “is protected under our Constitution,” which includes “spirited debate about policy
matters.” AG Memo at 2. It only covers “criminal conduct” that is not constitutionally protected,
such as “threats of violence or efforts to intimidate individuals based on their views.” ;
see
Virginia
,
Despite the alleged policy’s explicit terms, the plaintiffs blithely assert that they are nonetheless the “subjects” of the аlleged policy, Pls.’ Opp’n at 39, based solely on its timing and the fact that members of school boards have complained that plaintiffs were “attacking the board,” see First Am. Compl. ¶¶ 89, 93–94. Without more, this allegation is unpersuasive. The plaintiffs also contend that they “are currently targets of investigation and data collection,” Pls.’ Oрp’n at 38, but the complaint contains no such factual allegations. See generally First Am. Compl.
Based on the complaint, the Court cannot conclude that the alleged AG Policy “arguably
proscribe[s]” the plaintiffs’ conduct.
Woodhull
, 948 F.3d at 371. Thus, “there is something
fundamental to a pre-enforcement challenge that is missing here.”
Matthew A. Goldstein, PLLC
v. U.S. Dep’t of State
,
B. Reputational Injury
The plaintiffs further allege that they have suffered reputational harm caused by “the AG’s
designation of [the] [p]laintiffs as criminal ‘threats’ and ‘domestic terrorists.’” Pls.’ Opp’n at 38.
Reputational injury can be a cognizable type of injury in fact.
Meese v. Keene
,
The only concrete evidence that the plaintiffs provide of reputational injury is the National
School Board Association’s use of the words “domestic terrorism” in a September 29, 2021 letter
to the White House.
See
First Am. Compl. ¶¶ 93–94; Def.’s Mem. at 13–14. This letter raised
concerns about “acts of malice, violence, and threats against public school officials” and
charactered these “heinous actions” as “equivalent to a form of domestic terrorism.” Def.’s Mem.
at 13–14. But for the reasons stated above, the letter cannot fairly be interpreted as directed at the
plaintiffs’ activities. Moreover, contrary to the plaintiffs’ contention, the letter cannot plausibly
be considered part of the alleged policy, much less “the sole basis for the AG Policy,” First Am.
Compl. ¶ 76. The letter was sent by a private entity unaffiliated with the Attorney General, and
the Attorney General’s October 4 memorandum does not even mention the lettеr.
See
AG Memo
at 2. “[T]he court need not accept inferences unsupported by the facts alleged or legal conclusions
that are cast as factual allegations.”
Gregorio v. Hoover
,
CONCLUSION
For the foregoing reasons, the motion to dismiss is granted. A separate order consistent with this decision accompanies this memorandum opinion.
________________________ DABNEY L. FRIEDRICH United States District Judge September 23, 2022
Notes
[1] The Court discusses both the organizational plaintiff and individual plаintiffs together because
Saline Parents’ organizational standing either depends on or is identical to the individual plaintiffs’
standing. The organizational plaintiff, Saline Parents, may assert either representative standing or
direct standing. As to representative standing, “[an organization] has standing to bring suit on
behalf of its members when,” amоng other things, “its members would otherwise have standing to
sue in their own right.”
Friends of the Earth, Inc. v. Laidlaw Env’t Servs., Inc.
,