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Johnson v. New Brighton Area School Dist.

September 11, 2008


The opinion of the court was delivered by: Ambrose, Chief District Judge


Before me are Plaintiff's and Defendants' cross-motions for summary judgment. For reasons set forth in my opinion below, I am granting Defendants' motion and am denying Plaintiff's motion.

I. Factual & Procedural History

The facts relevant to the disposition of the cross-motions for summary judgment are as follows, and unless otherwise noted, are not disputed:

Plaintiff ("Johnson") filed a First Amendment lawsuit claiming that Defendants violated his free speech rights. Johnson was a senior at New Brighton Area High School during the 2005-2006 school year. (Docket entry nos. 34 & 36, ¶1). On April 25, 2006, the high school held a school-wide assembly featuring a former Harlem Globetrotter, Melvin Adams, who delivered a motivational speech with a focus on diversity and racial tolerance. (Docket entry nos. 34 & 36, ¶10). During his presentation, Mr. Adams called upon students who volunteered to actively participate in the presentation. (Docket entry nos. 34 & 36, ¶11). Once each student was on stage, Mr. Adams would "nickname" the student. (Ibid.) Johnson volunteered to participate, was selected by Mr. Adams, and was nicknamed, "Osama bin Laden."*fn1 (Ibid.) Three other students received the nicknames, Brittany Spears, Sandra Bullock and Chris Brown. (Docket entry no. 35-2, ¶10).

The next day, April 26, 2006, numerous students and at least one teacher referred to Johnson as "Osama" or "Osama bin Laden." (Docket entry nos. 34 & 36, ¶12-13). Following his lunch period on April 26, 2006, Johnson stopped in the library to speak with a friend who was sitting alone at a library table. (Docket entry nos. 34 & 36, ¶14). The parties disagree with respect to the content of the conversation which transpired between Johnson and his friend.

Johnson claims that when he approached his friend she asked, "what's up Osama?" (Docket entry no. 35-2, ¶19). Johnson said that he replied, in a joking fashion, "If I were Osama, I would already have pulled a Columbine." (Ibid.) Defendants claim, through their teacher, Mrs. Mercer, who was present in the library at the time of the incident, that Johnson's friend "yelled over and said, 'yo, Osama, go to class.' " (Docket entry no. 36, ¶15). According to Mrs. Mercer, Johnson responded by saying, " 'If you guys don't quit calling me that, I'm going to pull a Columbine'." (Docket entry nos. 34 & 36, ¶17). Mrs. Mercer described Johnson's tone of voice as "angry" at the time he made this Columbine comment, but admitted Johnson did not yell nor make the statement in loud fashion. (Docket entry no. 35-6, depo. p. 17). Mrs. Mercer said she thought Johnson's statement was a threat because of his word choice -- "Columbine" -- which "everybody knows...means shooting" and his grammar choice (meaning his use of future tense) when making the statement. (Docket entry no. 35-6, depo. pp. 18 -19). Mrs. Mercer said she thought Johnson ought to be punished for making the statement and that if he claimed he was joking, or making a joke, he should not be allowed to escape punishment because, "kids nowadays try to get out of everything." (Docket entry no. 35-6, depo. p. 28-29).

The parties agree that after hearing Johnson's response, Mrs. Mercer "just looked at the two of them," did not try to prevent Johnson from backing out of the library and walking down the hall, nor did she call down the hall after him, but rather, she (at least momentarily) went about her normal business. (Docket entry no. 35-6, depo. pp. 12, 22). However, within minutes of hearing the Columbine comment, Mrs. Mercer telephoned administration to "get assistance," and when her call went unanswered, she sent an e-mail to principal Kasparek and assistant principal Passarelli. (Docket entry no. 35-6, depo. pp. 12, 22). In this email, Mrs. Mercer stated:

Just thought you would want to know...Cory Johnson just walked into the library. Someone said, "go to class, Osama." He said, "someone calls me that again, I'm going to do a Columbine on this school." He may have been kidding, but he does seem very angry. I just do not think that it is something to joke about. Traci (Docket entry no. 35-8, p. 4).

After typing the email, Mrs. Mercer asked her intern to stay with the students in the library and went to look for assistant principal Passarelli. (Docket entry no. 35-6, depo. p. 12). She and Passarelli returned to the library and together they questioned two students as to what they heard Johnson say. (Docket entry no. 35-6, depo. pp. 15, 30). Both students refused to repeat it and refused to write down their recollection of Johnson's statement. (Docket entry no. 35-6, depo. p. 150).

Assistant principal Passarelli went to look for principal Kasparek, and after making him aware of the situation involving Johnson, Kasparek asked Passarelli to do more investigation to determine if Johnson had actually made the statement, which would constitute a threat, or not. (Docket entry no. 35-4, depo. p. 25). Assistant principal Passarelli called Johnson out of his classroom to discuss the library incident, and although Johnson admitted he made a comment about Columbine, he said he did not mean it and was only joking around. (Docket entry nos. 34 & 36, ¶25).

Assistant principal Passarelli told principal Kasparek that Johnson admitted to making the statement, and Kasparek directed him to inform New Brighton School District Superintendent, John Osheka, of the situation. (Docket entry no. 35-4, depo. p. 29). Upon his return from talking with superintendent Osheka, Passarelli told Kasparek that Osheka had recommended a 10-day suspension. (Id., p. 40-41).

Principal Kasparek then met with Johnson who admitted that he had made a statement referencing Columbine, but again, explained that he intended the remark as a joke. (Docket entry nos. 34 & 36, ¶26). Kasparek admitted that during the time he talked to Johnson, he was aware that Johnson had been involved with a prior incident in "town" involving a handgun. (Docket entry no. 35-4, depo. pp. 35, 60). During this conversation with Johnson, he told Johnson he was suspended, and precluded him from attending the senior prom. (Docket entry nos. 34 & 36, ¶28). He left Johnson in his conference room with a security guard in order to call Johnson's parents and to call the police to report that a threat had been made. (Docket entry no. 35-4, depo. p. 45). By the time he completed the telephone calls, the police officer was in the hallway. (Id., p. 49). The police officer did not question Johnson, did not search his locker, nor conduct any sort of investigation. (Id., p. 50).

Superintendent Osheka testified that since Johnson had no prior record relating to any school offense, had "decent grades," and the school officials had no desire to "ruin his future" considering he would graduate within a few days, it was determined that a ten-day suspension was sufficient punishment and school officials opted not to expel him. (Docket entry no. 35-7, depo. p. 18). Although superintendent Osheka admitted he knew that Johnson had been arrested for possession of a firearm and assaulting another individual in town, he explained that the ten-day suspension was warranted because the Columbine statement constituted "a terroristic threat," and Johnson's words alone formed the basis for the ten-day suspension. (Id. at pp. 18, 31.)

Based on these facts, both parties moved for summary judgment and rely primarily on Supreme Court case law in support of their respective positions.

II. Analysis

A. Standard of Review

Under F.R.Civ.P. 56, summary judgment shall be rendered if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. F.R.Civ.P. 56(c) (2008). An issue of material fact is genuine only if the evidence is such that a reasonable jury could return a verdict for ...

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