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Don Filippo Scicchitano and Caterina Anna v. Mt. Carmel Area School District

September 27, 2011


The opinion of the court was delivered by: Judge Munley


Before the court for disposition is the plaintiffs' motion for post-trial relief pursuant to Rules 50, 59 and 60 of the Federal Rules of Civil Procedure. (Doc. 64). The motion has been briefed and is ripe for disposition.


The plaintiffs filed their complaint in this case on April 7, 2009 claiming a violation of their First Amendment rights, their rights to privacy, and their Equal Protection rights under the Fourteenth Amendment for their suspension and expulsion from school. (Compl. (Doc. 1)). No motion to dismiss or motion for summary judgment was filed.

Beginning on February 8, 2011, the court conducted a three-day trial, the Honorable Yvette Kane, Chief Judge for the United States District Court for the Middle District of Pennsylvania, presiding. Initially, the plaintiffs raised four legal claims under 42 U.S.C. § 1983: (1) a First Amendment retaliation claim; (2) a Fourteenth Amendment Equal Protection claim; (3) a Fourteenth Amendment Substantive Due Process claim; and (4) a claim for Monell liability against Defendant Mount Carmel Area School District. (Trial Briefs (Docs. 48, 49); N.T., 2/8/11, p. 16, 33-34 (Doc. 67)). The plaintiffs abandoned their Substantive Due Process claim during trial. (N.T., 2/9/11, p. 339 (Doc. 68)). The underlying factual question at trial was whether the defendants disciplined the plaintiffs for the plaintiffs' violation of a dress code or whether the discipline was in retaliation for the plaintiffs' protest of the code.

Plaintiffs Don Filippo Scicchitano ("Filipp") and Caterina Anna Scicchitano ("Catie") were students within Defendant Mount Carmel Area School District ("the District"). Defendant Richard Beierschmitt was the District's superintendent. (Defs.' Trial Brief (Doc. 49)). Defendant Cheryl Latorre was the District's assistant superintendent. (Id.) Defendant Mary John was the District's high school principal. (Id.) Defendant Mary Ann Krakowski was the District's elementary school principal. (Id.) Defendant Bart McCollum was Filipp's sixth grade teacher. (Id.) Defendant Elaine Bartol was a teacher's aide in the District. (Id.)*fn1

Catie and Filipp were in fifth and sixth grade, respectively, in 2000 when the District instituted a new dress code. (N.T., 2/8/11 p. 61, 75, 117-19 (Doc. 67)). The dress code mandated particular clothing styles and colors. (N.T., 2/8/11 p. 61, 117-19). The code read, in part: "Boys: Khaki, dark Navy slacks, no cargo or baggy style; khaki, dark Navy shorts at an approved length, no cargo or baggy style; red, white, Navy blue, long- or short-sleeved golf shirt, with or without approved logo; shoes, sneakers, and coordinated socks." (N.T., 2/8/11, p.119). Girls could also wear skirts of an approved length. (N.T., 2/8/11, p. 117). The only logo approved was the school logo-- a tornado. (N.T., 2/9/11, p.172). All students in the District were required to comply with the dress code and violations were punished progressively; students were given the option to change clothes and then faced detention, suspension, and finally expulsion for continued violations. (N.T., 2/8/11 p. 62, 207-08; N.T., 2/9/11 p. 230, 268-70 (Doc. 68)).

At the beginning of the 2000 school year, the plaintiffs decided to exercise their constitutional right to protest the dress code because they felt the dress code limited their ability to express their individuality. (N.T., 2/8/11 p. 64-66, 76). The plaintiffs also objected to the dress code because it prohibited some liturgical colors of religious importance to them. (N.T., 2/8/11 p. 105). The plaintiffs were granted a partial religious waiver of the code which allowed the plaintiffs to incorporate liturgical colors into their dress without punishment, so long as the clothing otherwise complied with the code. (N.T. 2/8/11, p. 124-25). The parties came to an agreement that permitted plaintiffs to wear logos protesting the dress code, so long as the clothing otherwise complied with the code. (N.T., 2/8/11, p. 135, 164-65, 172-73; N.T., 2/9/11, p. 262, 303, 306, 316).

Trial testimony showed a substantial disagreement between the parties as to what behavior constituted valid protest and what constituted mere nonconformity with the dress code. On many occasions, Filipp wore clothing with logos which the District interpreted as not protesting the dress code. (N.T., 2/8/11, p. 92 (shirt with word "logo"), p. 96 (shirt with picture of "Slinky dog," shirt with picture of "Squirtle" Pokemon character), 102, 140-43 (comedian Jeff Foxworthy T-shirt listing "top ten reasons you know you're a redneck"); N.T., 2/9/11, p. 237 ("Slinky dog" picture), 240 (leaning tower of Pisa), 243 (Secret Service emblem), 252-53 (State Department "Diplomat," "Nike"), 254-56 (Jeff Foxworthy T-shirt, Sylvester the cat, sheep with beer)). Often, the offending logo was on a nonconforming style of clothing, such as a T-shirt. (N.T., 2/9/11, p. 243 (Secret Service emblem on nonconforming denim shirt), 254 (Jeff Foxworthy message on nonconforming white T-shirt)). Filipp also wore outfits with logos which the District admitted were clearly in protest of the dress code, but the outfits did not otherwise comply with the dress code based on the clothing style or color. (N.T., 2/8/11, p. 89-93, 95, 106, 172-173, 185, 197, 214; N.T., 2/9/11, p. 235-36 (protest logo on nonconforming striped shirt), 238-239 (protest logo on nonconforming cream colored shirt), 243-246 (protest logos on nonconforming white T-shirts), 254).*fn2

Subjectively, Filipp believed that any clothing deviating from the dress code necessarily constituted protest of the dress code. (N.T., 2/8/11, p. 89-90 (blue shirt with nonconforming stripes "was in protest of the policy, so thus it was not in compliance," "it would be a protest, as we were not allowed to have stripes"). Filipp explained how each nonconforming logo or form of dress constituted a protest of the dress code and why he chose the logos and styles. (N.T., 2/8/11, p. 77 (Filipp and Catie planned each logo and article of clothing), 78, 141 (explaining message intended by "Squirtle" Pokemon logo), 140 (explaining message intended by "Slinky dog"), 141-43 (explaining message intended by Jeff Foxworthy T-shirts), 92 (explaining message intended by Italy shirt), 93 (explaining message intended by "logo" logo)).*fn3

Filipp was not disciplined when he wore protest logos on compliant clothing. (N.T., 2/8/11, p. 172, 197; N.T., 2/9/11 p. 249-50, 262, 298). However, on occasions where Filipp wore (1) logos the District did not consider to be protest logos, that is, disputed logos, (2) protest logos on nonconforming clothing styles or colors, or (3) liturgical colors on nonconforming clothing styles Filipp was progressively disciplined; he was sent to the student support room fifteen times for in-school suspension and ultimately expelled from school in two consecutive school years. (N.T., 2/8/11, p. 77, 190; N.T., 2/9/11, p. 233-34, 247-48).

Like Filipp, Catie wore logos that the District did not consider to be protest logos. (N.T., 2/8/11 63 (snowflakes), 70 (flowers), N.T., 2/9/11 p. 297 (Disney characters, flowers)). Catie also wore protest logos on nonconforming clothing. (N.T., 2/8/11, p. 62-65 (First and Fourteenth Amendment language on nonconforming pink turtleneck)). Catie was disciplined for dress code violations; she was sent to the student support room ten times for in-school suspension and she ultimately withdrew from school voluntarily. (N.T., 2/8/11, p. 66-67, 190).

On February 9, 2011, the plaintiffs rested their case and moved for a directed verdict. (N.T., 2/9/11, p. 273). In support of their motion, the plaintiffs argued that all of plaintiffs' conduct was protest speech. (N.T., 2/9/11, p. 273). Counsel for plaintiffs argued that nonconforming clothing must be considered protest speech along with protest logos and liturgical colors:

[T]he fact that they wore clothing that was out of compliance with the dress code as part of their protests certainly should be considered part of the protest in the context of what these kids were doing.

One day they come with a protest logo, the next day they come with a shirt out of compliance and a protest logo, and then the next day they come with just a shirt out of compliance. It's clear what they were doing. It was clear that they were being punished for what they were doing. They were aware of the consequences of their actions, and they were moving forward with their actions because it was protests.

I think the reasonable inference, Your Honor, is that all of their conduct was protests, and because it did not disrupt the educational process, I think it's protected, all of it is protected under the First Amendment. (N.T., 2/9/11, p. 277-78).

The defendants also moved for judgment as a matter of law at the close of the plaintiffs' case. (N.T., 2/9/11, p. 278). The court ruled that Defendants Cheryl Latore, Mary Ann Krakowski, Bart McCollum, and Elaine Bartol were entitled to qualified immunity after "finding that there was not a clearly established constitutional right at the time of the actions in question." (N.T., 2/9/11, p. 338). The plaintiffs objected to this ruling on qualified immunity. (N.T., 2/9/11, p. 339).

On February 9, 2011, the court also decided that "the jury will be instructed, at plaintiffs' request, that there is a First Amendment protected speech right for the wearing of logos protesting the school uniform, and the wearing of liturgical colors, and that the Court will decide, as a matter of law, should the jury find a retaliation based on non-conforming clothing as a form of protest, whether or not that activity is entitled to any First Amendment protection." (N.T., 2/9/11, p. 339). Plaintiffs and Defendants had no objections to this proposed instruction or the verdict sheet. (N.T., 2/9/11, p. 339). Testimony concluded on February 9, 2011.

On February 10, 2011, at sidebar before instructing the jury, the court ruled as a matter of law that plaintiffs' wearing of nonconforming clothing was not a protected activity. (N.T., 2/10/11, p. 358, 363). The court then instructed the jury as follows:

The second element of plaintiffs' [Section 1983 claim] is that defendants deprived them of their federal constitutional rights. In this case, there are two constitutional rights involved: the First Amendment right to free speech and the Fourteenth Amendment right to equal protection. I will discuss these separately.

First, the First Amendment claim. The First Amendment to the United States Constitution gives persons a right to free speech, association, and the right to petition the government for redress of their grievances. Here, Plaintiffs Don Filippo and Caterina Anna Scicchitano claim that they engaged in constitutionally protected speech by wearing certain clothing to school that was in violation of the school district's dress code which Plaintiffs claim was a substantial or motivating factor in defendants' actions in disciplining them.

What speech or expression is protected under the First Amendment is a question of law for this Court to answer. I am instructing you that the following activities by plaintiffs constituted protected speech or expression under the First Amendment: Wearing logos protesting the school uniform policy and wearing liturgical colors. (N.T., 2/10/11, p. 397-98).

The plaintiffs had no objections to the jury instructions. (N.T., 2/10/11, p. 372-73, 408 (Doc. 69)). The plaintiffs also had no objections to the ...

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