First and Fourth Amendment Claims Based on Police Investigation of Gender Queer in Classroom Can Go Forward

From Galdos-Shapiro v. Town of Great Barrington, decided Oct. 17 by Judge Mark Mastroianni (D. Mass.):

Beginning in 2018, Plaintiff worked as an English Language Arts teacher at Du Bois Regional Middle School in Great Barrington, Massachusetts…. [Superintendent] Dillon appointed her advisor to the school’s local chapter of the Gender and Sexuality Alliance (“GSA”). Although paid, this position was primarily administrative, as she oversaw the local branch of “a national network of student-run organizations which unite LGBTQ+ and allied youth in an effort to build their community and to enable them to organize around issues impacting them in their schools and communities.” It was Plaintiff’s job to “facilitate a space and opportunity for the students themselves to undertake activities.” She therefore opened her classroom during the seventh and eighth grade lunch and recess periods each Friday for the GSA’s student run meetings. Plaintiff additionally acted as faculty liaison to the school’s student run “Black, Indigenous, and People of Color Club,” a group that met during the weekly Friday “crew period.” …

Gender Queer is a graphic memoir addressing “issues of self-identity, the confusion of adolescence, and coming out as nonbinary.” … Gender Queer is not part of the curriculum at Du Bois. It is not required to be kept in any classroom, nor must it be read by any student who does not wish to do so. Rather, Plaintiff kept a personally owned copy of the book in her classroom.

At one point in time, Plaintiff loaned the book to Du Bois’s library for exhibition during a “Banned Book Week,” but normally the book resided on a special bookshelf within her room dedicated to the GSA. To access the book, an interested student was required to obtain permission from Plaintiff. During her tenure at Du Bois, only one student sought access to the book. This student and the student’s parents were well known to Plaintiff, and it was Plaintiff’s understanding that the student’s parents approved of their child’s access to the book.

Before December 8, 2023, there was never a challenge to the presence of Gender Queer in Plaintiff’s classroom, despite the Berkshire Hills Regional School District providing a formal mechanism for an individual or group to challenge the presence of a book in a classroom….

In early December of 2023, Great Barrington Police received a visit from “an individual wishing to remain anonymous.” Defendant [police officer] O’Brien interviewed this person and, as requested by this person, treated them with complete public anonymity. This tipster, subsequently identified as the night janitor at Du Bois, provided O’Brien with pictures he had taken of illustrations in Gender Queer. These images depicted two characters engaging in sexual acts. [The opinion doesn’t include the relevant images, but you can see copies of what appear to be the most controversial images from the book in a different opinion, at here and here. -EV]

According to his written report, O’Brien believed these images “may be in violation of” Mass. Gen. Law ch. 272, § 29, but this report did not reference Section 29’s plain text, which includes a defense regarding school employees and educational involvement. [Section 29 provides bans knowingly disseminating obscene material, but provides a defense for any “bona fide school, museum or library,” or anyone “acting in the course of his employment as an employee of such organization or of a retail outlet affiliated with and serving the educational purpose of such organization.” -EV] As an additional source of concern to O’Brien, the tipster stated he had “observed a student sitting on the teachers [sic], [Plaintiff], lap” and “was concerned about this conduct as well as the teacher and a few other staff meeting with students in private, and discussing subjects related to LGBTQ material and telling them not to tell their parents about it.”

There is nothing in O’Brien’s report (attached to the complaint) indicating he validated the tipster’s reliability or inquired as to how this person knew Plaintiff or came upon this information. According to the complaint, had he inquired into this information, O’Brien would have learned the tipster had a lengthy history of making homophobic and racist comments, in general, and targeted remarks toward Plaintiff, in particular. O’Brien allegedly would have learned that, just a few months prior, the tipster had been admonished by school officials for telling another teacher Plaintiff was “teaching kids how to have gay sex.” He also allegedly would have learned the tipster had been suspended for two days by school officials for a tirade directed at another Hispanic teacher. Finally, O’Brien could have learned the tipster’s allegations, especially those relating to observing Plaintiff’s interactions with students, were not logistically possible, as the tipster was the night janitor and did not work during school hours.

After receiving the tipster’s information, O’Brien called Chief Storti to discuss the allegations. As relevant to the court’s later analysis, Storti, in addition to serving as police chief, is alleged in the complaint to have been the parent of children attending Berkshire Hills Regional schools. In his capacity as a parent, Storti urged Superintendent Dillon to cease celebrating “Pride Month.” More specifically, Storti allegedly played a major role in preventing the reading of LGBTQ-related definitions during morning announcements…. Storti … [sent] O’Brien to the school….

Around 2:40 p.m., O’Brien arrived at the school. O’Brien was met there by Principal Wheat, who again reiterated he had no reason to suspect Plaintiff engaged in any wrongdoing. {After meeting with Wheat, O’Brien limited his investigation to the possible obscenity contained in books kept in the classroom, as he made no efforts to question Plaintiff regarding the tipster’s other allegations, including that students sat on her lap. Plaintiff alleges in the complaint that O’Brien “recognized the utter lack of merit to those false allegations,” which explains this lack of questioning of such serious allegations.} …

Further things happened, which are discussed below in the discussion of each legal claim, but the upshot is that plaintiff sued, and the court allowed most of the claims to go forward. As to the First Amendment claim:

Here, Plaintiff has adequately alleged that her possession of Gender Queer is constitutionally protected conduct. “The First Amendment protects works which, taken as a whole, have serious literary, artistic, political, or scientific value, regardless of whether the government or a majority of the people approve of the ideas these works represent.” The complaint also sufficiently alleges an adverse action, as the arrival of a plain clothes police officer inquiring into ownership of a literary work at one’s place of employment (accompanied by one’s employer) can be plausibly viewed as likely to deter a reasonably hardy individual from exercising their right to own the specific book. This is especially true when that police officer, in the presence of the employer, asserts the book contains unlawful child sexual material…. Finally, as to qualified immunity for the officers, the court is persuaded that it has long been clearly established that government agents cannot use “the power of the State to punish or suppress disfavored expression,” and therefore dismissal on qualified immunity grounds is not appropriate.

The court also declined to dismiss plaintiff’s Equal Protection Claim, based on an allegation that “O’Brien was made aware of the book’s presence in other specific classrooms (of teachers who do not identify as LGBTQ), yet he made no efforts to identify or investigate those other teachers or classrooms and instead confined his investigation to Plaintiff and her classroom only.” And it declined to dismiss her Fourth Amendment unreasonable seizure claim, reasoning that O’Brien at least temporarily detained Plaintiff, and lacked reasonable suspicion to do so:

While there is no allegation O’Brien physically touched Plaintiff, he closed the door to Plaintiff’s classroom and placed himself between Plaintiff and the exit and remained in front of the way out for the better part of the interaction. O’Brien never informed Plaintiff she was free to leave. Instead, he told Plaintiff that he was turning on his body camera, before indicating he was there to investigate her possession of Gender Queer. Having viewed this body camera footage, the court finds it is plausibly alleged that the circumstances of the interaction could support a factfinder in concluding an investigatory detention occurred…. [Such an investigatory detention is permitted] so long as “the officer’s action is supported by reasonable suspicion to believe that criminal activity ‘may be afoot.'” To “pass[ ] constitutional muster,” a Terry stop requires officers have “more than a naked hunch”; they must, rather, have a “particularized and objective” basis to suspect the seized individual of involvement in criminal conduct.

According to the complaint and the documents annexed thereto, while there were originally two asserted bases for the criminal investigation—the allegation that children sat on Plaintiff’s lap, and the images of Gender Queer—the focus of the investigation narrowed to the book by the time Officer O’Brien entered Plaintiff’s classroom, as he questioned her “only with regard to her possession of … Gender Queer.” …

First, … the reliability of the tipster was … relevant in the context of the allegations regarding the book…. Here, there were obvious reasons to doubt the tipster’s reliability and no corroboration of the tipster’s information. In fact, as alleged in the complaint, Officer O’Brien “had already dismissed as not worth investigating” the graver allegations the tipster made against Plaintiff, “having recognized the utter lack of merit to those false allegations.” …

Second, the two images [provided by the janitor] from Gender Queer furnished no probable cause or reasonable suspicion for several reasons. As an initial matter, Mass. Gen. Law ch. 272, § 29 immunized Plaintiff from prosecution in the context of this case…. In addition, the cover of the book (provided to O’Brien by the tipster) displayed that it had received a national prize from the American Library Association, thereby indicating that it had literary and artistic merit regarding a controversial subject….

But the court rejected plaintiff’s Fourth Amendment search claim, which was based on O’Brien’s examining various parts of the classroom:

Generally, “the question whether [a government] employee has a reasonable expectation of privacy must be addressed on a case-by-case basis.” O’Connor v. Ortega (1987). “Individuals do not lose Fourth Amendment rights merely because they work for the government instead of a private employer,” but “[t]he employee’s expectation of privacy must be assessed in the context of the employment relation,” as “some government offices may be so open to fellow employees or the public that no expectation of privacy is reasonable.” A public employee therefore has a reasonable expectation of privacy in private areas of the workplace—such as desk drawers and file cabinets—but typically lacks a reasonable expectation of privacy in those areas of the workplace that are more open to the public or fellow employees.

Applying O’Connor and its progeny to this case, the court concludes Plaintiff had a reasonable expectation of privacy in her desk drawers, file cabinets, and enclosed personal items such as a bag, backpack, or briefcase in the classroom…. [T]here is no reasonable expectation of privacy in the entire classroom because of the inherently open nature of the space.

Turning to the complaint, there are no well-pled factual allegations supporting an inference O’Brien searched those areas of the classroom entitled to a reasonable expectation of privacy. Rather, the complaint alleges O’Brien “looked” at Plaintiff’s “bookshelves,” then “rifled through papers and materials on Ms. Galdós-Shapiro’s desk and other classroom tables that housed, among other things, Ms. Galdós-Shapiro’s personal property, curriculum paperwork, and students’ work.”

Classroom bookshelves are not akin to drawers or file cabinets, as they are visible to all who enter the room. It is also widely understood students (or other faculty) will remove (and read) the contents of these shelves; this common understanding of a bookshelf’s purpose further underscores the lack of a reasonable expectation of privacy, as “persons cannot reasonably maintain an expectation of privacy in that which they display openly.” Plaintiff similarly lacks a reasonable expectation of privacy in classroom tables, as the material on these tables is visible to anyone entering the room. To the extent anyone possesses a privacy interest in a student’s desk, it is the student, not the teacher.

Lastly, the material on Plaintiff’s desk was also exposed to public view, meaning this area of her desk is not entitled to a reasonable expectation of privacy, as any student or visitor to the classroom would have been able to view any material on the desk which was allegedly “rifled” through. It is unreasonable to view papers left out on a desk as having a recognized privacy interest, especially when school children routinely move through the space….

Howard M. Cooper, Benjamin J. Wish, Maria T. Davis, and Shayne N. Lotito (Todd & Weld LLP) represent plaintiff.