United States District Court, D. Massachusetts
ORDER ON MOTIONS TO DISMISS
Sorokin United States District Judge
Kerry and Rebecca Hurwitz's Complaint alleges eight
counts, seven of which are under state law, against various
groupings of the following defendants: Newton Public Schools
(NPS); Matthew Hills, Chair of the Newton School Committee;
David Fleishman, Superintendent of Newton Public Schools;
Gail Spector, co-publisher of the village14 blog; Gregory
Reibman, co-publisher of the village14 blog; GateHouse Media
Massachusetts; and GateHouse Media LLC.
16, 2017, the Court ordered a status conference with the
parties. Doc. No. 44. The Court was concerned that it lacked
subject matter jurisdiction in this case and held the
conference to expressly raise the issue with the parties. At
the status conference on May 23, 2017, the Court extensively
reviewed the issues with counsel and ordered Plaintiffs'
counsel to file a status report about whether Plaintiffs
would be dismissing the § 1983 claim. Doc. No. 46. On
June 14, 2017, Plaintiffs informed the Court that they would
not be dismissing their First Amendment claims. Doc. No. 50.
Plaintiffs subsequently filed their oppositions to the
various motions to dismiss.
Complaint is extensive and the Court will summarize only
those facts relevant to the 42 U.S.C. § 1983 claim.
attended Newton North High School. Doc. No. 1-1 at 2. Kerry
is her mother. Id. Kerry became concerned that
materials used in freshman and sophomore world history
classes contained inaccurate and anti-Semitic materials after
reading about NPS's removal of a chapter of the Arab
World Studies Notebook from the curriculum in November
2011. Id. at 3. Kerry reviewed Rebecca's school
materials following the removal of the chapter and found
“extensive inaccuracies and biases.” Id.
Kerry organized a parent group in early 2012 which worked
“to ensure that class material in Newton and other
public schools is accurate and non-biased.”
Id. at 3-4. Kerry and the parent group challenged a
number of class materials over the course of the next year.
Id. at 4. At some point in 2012, Fleishman and
Jonathon Bassett, the chair of the Newton North history
department, “told Kerry that she could not discuss
class materials or what was learned in class with her
child's teachers.” Id.
filed a Statement of Concern with the Massachusetts
Department of Elementary and Secondary Education (DESE) on
May 28, 2013, alleging that NPS failed to adequately review
class material. Id. at 5. DESE told Kerry that her
and Rebecca's names would remain confidential.
Id. Kerry had concerns for the family's personal
safety because of past issues related to an editorial Kerry
had published. Id. at 5-6. The Complaint contains no
allegations whatsoever that any defendant at any time either
(a) physically harmed either Plaintiff or (b) attempted or
threatened to do so. In addition, the Complaint contains no
allegations whatsoever that any other person committed any
such conduct related to this incident. Plaintiffs' fears
arose from their past experience of being threatened in 2010
after Kerry published an editorial. Doc. No. 1-1 at 5-6.
There is no allegation that any Defendant had anything to do
with that alleged threat.
ultimately declined to take action on the Statement of
Concern as explained in a letter dated September 17, 2013
sent to Plaintiffs. Id. at 6. The letter was sent to
Fleishman as well. Id. The letter lists both Kerry
and Rebecca's names and their home address. Id.
October 22, 2013, “large advertisements criticizing the
NPS, Fleishman, and Hills were published in five Boston-area
newspapers.” Id. at 7. The advertisements were
placed by a group that Plaintiffs have no association with.
Id. at 8. “Within 24 hours after the
advertisements were published, Fleishman distributed an
unredacted copy of the Letter to all 13 School Committee
members . . . .” Id. at 8. “One or two
days after receiving the unredacted Letter from Fleishman,
Hills sent it to at least two media entities-the Tab and
Village14. Hills admitted sending the Letter at a videotaped
School Committee meeting on October 28, 2013.”
Id. at 9. According to Plaintiffs, “[t]he
timing of Hills' transmittal of the Letter, as well as
other acts and statements by him, indicates that may have
[sic] made the transmittal for the advertisements, even
though Kerry had nothing to do with them.” Id.
Plaintiffs claim that the publication of the unredacted
letter containing Rebecca's name and the Hurwitz
family's home address caused them to suffer damages.
suit was initially filed in Middlesex Superior Court and
Defendants removed to this Court citing federal question
jurisdiction. Doc. No. 1. All Defendants have moved to
dismiss in six separate Motions to Dismiss. Plaintiffs'
only federal claim, and thus the sole basis of federal
question jurisdiction in this Court, is Count IV which
alleges a violation of 42 U.S.C. § 1983 against Hills,
Fleishman, and NPS. Plaintiffs allege that “Hills,
Fleishman and NPS, persons acting under color of state law,
deprived plaintiffs of secured rights, including but not
limited to her right to privacy and First Amendment right to
free speech, causing injury to plaintiffs, who avail
themselves to 41 U.S.C. § 1983-‘Civil action for
deprivation of rights.' The actions of Hills and NPS were
retaliatory in nature.” Doc. No. 1-1 at 20.
Plaintiffs' various filings describe the federal right to
privacy they assert the defendants named in this Count
violated. The constitutional right to privacy encompasses two
categories of interests; “[o]ne is the individual
interest in avoiding disclosure of personal matters. And
another is the interest in independence in making certain
kinds of important decisions.” Whalen v. Row,
429 U.S. 589, 599-600 (1977) (footnote omitted). The Court
sees no meritorious argument that any right to privacy
encompassed here falls into the latter category. As to the
interest in avoiding disclosure of personal matters,
“[e]ven if the right of confidentiality has a range
broader than that associated with the right to autonomy, that
range has not extended beyond prohibiting profligate
disclosure of medical, financial, and other intimately
personal data.” Vega-Rodriguez v. P.R. Tel.
Co., 110 F.3d 174, 183 (1st Cir. 1997) (citing
Borucki v. Ryan, 827 F.3d 836, 841-42 (1st Cir.
1987) (citation omitted)). Plaintiffs' home address does
not rise to the level of “intimately personal
data” protected by the United States Constitution.
See Borucki, 827 F.3d at 842 n.8 (noting that cases
finding a right to privacy “implicate other protected
rights as well, such as the autonomy branch of the privacy
right, and first amendment rights”).
the Court moves to Plaintiffs' First Amendment claims.
Again, Plaintiffs' filings are not a model of clarity.
Arguably, Plaintiffs' Complaint alleges a claim for
deprivation of First Amendment rights against Hills,
Fleishman, and NPS and alleges a claim for First Amendment
retaliation against Hills and NPS.
Plaintiffs' claim for a deprivation of First Amendment
rights, nowhere in the Complaint do the facts state such a
claim. In the Complaint, Plaintiffs briefly allege that
“[Fleishman's] restriction on speaking with
teachers about the curriculum and class materials was an
unlawful infringement on Kerry's First Amendment right of
free speech and was done in retaliation for organizing and
participating in meetings of parents and other residents
regarding those topics, and for her role in the [Arab
World Studies] Notebook's removal.”
Doc. No. 1-1 at 5. Plaintiffs have failed: to support this
theory with sufficient factual allegations in the Complaint;
or, in their Oppositions, either to explain this theory or
present it in any way. To show a deprivation of their First
Amendment rights, Plaintiffs “must allege that [their]
speech was in fact chilled or intimidated by”
Defendants' actions. Hague v. Mass. Dep't of
Elementary & Secondary Educ., No. 10-30138-DJC, 2011
WL 4073000, at *3 (alteration in original) (quoting
Sullivan v. Carrick, 888 F.3d 1, 4 (1st Cir. 1989)).
This Plaintiffs have not alleged. Ironically though, they
have alleged facts to the contrary, that they persisted in
speaking out by filing the Statement of Concern. See
Doc. No. 1-1 at 5.
event, parents do not have a First Amendment right to
unfettered access to their children's teachers. A public
high school is generally not a public forum; rather, public
high school classrooms are generally designated as nonpublic
fora. See Peck v. Upshur Cnty. Bd. of Educ., 155
F.3d 274, 292-93 (4th Cir. 1998) (finding that public schools
are nonpublic fora); Muller by Muller v. Jefferson
Lighthouse School, 98 F.3d 1530, 1539 (7th Cir. 1996)
(finding that an elementary school is a nonpublic forum)
(citing Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S.
260 (1988)); Hedges v. Wauconda Comm'y Unit Sch.
Dist. No. 118, 9 F.3d 1295, 1302 (7th Cir. 1993)
(finding that a junior high school is a nonpublic forum);
Miles v. Denver Pub. Schs., 944 F.2d 773, 776 (10th
Cir. 1991) (finding that a ninth grade classroom is a
nonpublic forum). For a nonpublic forum, restrictions
“must still be both viewpoint neutral and reasonable to
be constitutional.” Del Gallo v. Parent, 557
F.3d 58, 72 (1st Cir. 2009). This “is not a
particularly high hurdle, ” Ridley v. Mass. Bay
Transit Auth., 390 F.3d 65, 90 (1st Cir. 2004), and any
restriction “need not be the most reasonable or the
only reasonable limitation, ” Cornelius v. NAACP
Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 808
(1985). Fleishman's restriction did not prevent Kerry
from speaking to school officials but instead restricted the
time and place where Kerry was permitted to discuss the
curriculum. See Doc. No. 1-1 at 4-5. While that is
not a content-neutral restriction, the law does not require
content-neutral restrictions in nonpublic fora. See Am.
Freedom Def. Initiative v. Mass. Bay Transit Auth., 781
F.3d 571, 578 (1st Cir. 2015). Because Fleishman's
restriction was viewpoint neutral and the Court finds, given
the factual allegations of the Complaint with all reasonable
inferences drawn in Plaintiffs' favor, Plaintiffs have
failed to allege plausibly that the restriction was not
reasonable under the circumstances alleged. Thus, Plaintiffs
have failed to make out a First Amendment claim.
out a First Amendment retaliation claim, “the plaintiff
must show that his conduct was in fact constitutionally
protected. Then, he must adduce proof of a causal connection
between the allegedly protected speech and the allegedly
retaliatory response. Causation is established by showing
that the plaintiff's conduct was a substantial or
motivating factor in bringing about the allegedly retaliatory
action.” Goldstein v. Galvin, 719 F.3d 16, 30
(1st Cir. 2013) (citations and quotation marks omitted).
Plaintiffs here allege that “Hills' and NPS'
transmittal of the Letter to the media were or may have been
in retaliation for plaintiffs' and others' exercise
of their First Amendment rights.” Doc. No. 40 at 11.
Clearly, Plaintiffs have no claim for retaliation against
Hills and NPS if they were reacting to the actions of others.
In that case, Plaintiffs' actions are not “a
substantial or motivating factor in bringing about the
alleged retaliatory action”; rather, they are no factor
at all. As to Plaintiffs' allegation that the actions
were based on their own conduct, the facts alleged in that
Complaint fail to bear out the allegation. Plaintiffs'
Complaint alleges both that the DESE letter was sent to the
media primarily because of the ad placed in the newspaper and
that Plaintiff had nothing to do with publication of the ad.
Plaintiffs claim that “The NPS took no action with
respect to the Letter until large advertisements criticizing
the NPS, Fleishman, and Hills were published in five
Boston-area newspapers on or about October 22, 2013, ”
Doc. No. 1-1 at 7, and that “Within 24 hours after the
advertisements were published, Fleishman distributed an
unredacted copy of the Letter to all 13 School Committee
members, including Newton Mayor Setti Warren . . . .”
Id. at 8. Plaintiffs allege that “One or two
days after receiving the unredacted letter from Fleishman,
Hills sent it to at least two media entities” and that
the timing “as well as other acts and statements by
him, indicates that may have [sic] made the transmittal to
retaliate for the advertisements even though Kerry had
nothing to do with them.” Id. at 9.
Plaintiffs' argument rests the retaliation claim on the
timing between ...