United States Court of Appeals For the First Circuit

No. 19-2167

SHAEL NORRIS, on behalf of her minor child A.M.,

Plaintiff, Appellee,

v.

CAPE ELIZABETH SCHOOL DISTRICT; DONNA WOLFROM, Superintendent of Cape Elizabeth Schools; JEFFREY SHEDD, Principal of Cape Elizabeth High School; NATHAN CARPENTER, Vice Principal of Cape Elizabeth High School,

Defendants, Appellants.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE

[Hon. Lance E. Walker, U.S. District Judge]

Before

Lynch, Selya, and Barron, Circuit Judges.

Melissa A. Hewey, Bruce W. Smith, Amy K. Olfene, Jeana M. McCormick, and Drummond Woodsum on brief, for appellants. Emma E. Bond, Zachary L. Heiden, and the American Civil Liberties Union of Maine Foundation on brief, for appellee. Scott H. Harris, Christina M. Denbow, McLane Middleton, Professional Association, Nicole J. Ligon, H. Jefferson Powell, and Ian C. Kalish on brief for Ana Goble and First Amendment Clinic at Duke Law School, amicus curiae. James B. Haddow, Petruccelli, Martin & Haddow LLP, Jennifer Nelson, Gabriel Rottman, and The University of Virginia School of Law First Amendment Clinic on brief for the Maine Press Association, amicus curiae. Peter Mancuso, Andrew Schmidt Law PLLC, and Diane L. Rosenfeld on brief for the Gender Violence Legal Policy Workshop at Harvard Law School, amicus curiae.

August 6, 2020 LYNCH, Circuit Judge. The defendants in this case are

Maine's Cape Elizabeth School District and officials of Cape

Elizabeth High School. They appeal from the entry of a preliminary

injunction prohibiting them from suspending A.M., a sophomore

student at Cape Elizabeth High School at the time this suit was

filed. They seek to suspend A.M. because on September 16, 2019,

she anonymously posted a sticky note on a mirror in a Cape

Elizabeth High School girls' bathroom that stated "THERE'S A RAPIST

IN OUR SCHOOL AND YOU KNOW WHO IT IS." The defendants investigated

the note after another student brought it to them promptly and

they concluded that it constituted bullying under the school's

policies, which warranted imposing a three-day suspension on A.M.

A.M., through her mother Shael Norris, filed a complaint

requesting that the district court enjoin the defendants from

suspending her on the grounds that (1) the suspension violated her

"right to free expression under the First Amendment to the U.S.

Constitution, as applied to the states by the Fourteenth Amendment

and

"; and (2) the defendants violated Title IX of

the Education Amendments of 1972 by retaliating against her for

making a complaint. A.M. also moved for a preliminary injunction,

which the district court granted based on A.M.'s First Amendment

claim. A.M. ex rel. Norris v. Cape Elizabeth Sch. Dist.,

, 358 (D. Me. 2019).

- 3 - We do not endorse the district court's precise

reasoning, but for the reasons described below, we hold the

district court did not abuse its discretion in granting the

preliminary injunction.

I.

We describe the facts as alleged in the complaint and

supported by the evidence at the preliminary injunction hearing.

At the time this suit was filed, A.M. was a fifteen-year-old

sophomore at Cape Elizabeth High School ("Cape Elizabeth H.S." or

"the school"). The defendants are Cape Elizabeth School District,

Superintendent of Cape Elizabeth Schools Donna Wolfrom, Principal

of Cape Elizabeth H.S. Jeffrey Shedd, and Vice Principal of Cape

Elizabeth H.S. Nathan Carpenter.

A. Facts

On September 16, 2019, A.M. placed a sticky note on a

mirror in a second-floor Cape Elizabeth H.S. girls' bathroom that

read "THERE'S A RAPIST IN OUR SCHOOL AND YOU KNOW WHO IT IS." The

sticky note was unsigned. The note did not identify who committed

the "rape" or the gender of the "rapist." It also did not state

where or when the "rape" occurred. It did not identify who the

"YOU" was or the purported basis of the knowledge of that "YOU."1

1 Although this specific allegation had not been brought to the school administration, for more than a year prior to posting the sticky note, A.M. had been attempting "to raise [her] concerns about the school's [sexual assault] reporting procedures through

- 4 - Another student found the note a few minutes later and

arranged for a different student to bring it to the school

administration. That same day, two other female students posted

sticky notes in another bathroom at the school. One of the other

notes stated that the school should "kick out the rapist," and

another stated that the administration "is protecting him."2

Shedd and Carpenter initiated an investigation into all

of the sticky notes' allegations, not just the sticky note authored

official channels." On June 11, 2019, A.M. and two of her peers attended a Cape Elizabeth public school board meeting during which they raised concerns about the school's Title IX procedures and its inadequate handling of sexual violence. At least one of the students who accompanied A.M. is a survivor of sexual assault, and the school was aware of this because she had filed a Title IX complaint a year earlier which had been substantiated and had resulted in a finding that another student had violated school policy. At the school board meeting, A.M. specifically complained that the school district had no policy describing how to report sexual assault nor did it outline the rights of students regarding sexual assault reporting in the Student Handbook. She requested the school board work with her and her fellow students on a comprehensive policy that would better protect students. She further asked that the school board provide trainings to staff about the importance of mandatory reporting and do more to support students who report sexual assaults. The other students who spoke also complained about the school's treatment of students who report sexual assault and its failure to comply with mandatory reporting under Title IX. The administrators assert that after the meeting, a school committee "embarked on a comprehensive . . . review of [the school's] policies and procedures." The committee appointed a student representative but did not invite any of the students who had requested to be involved. 2 The record is not clear as to how many sticky notes in total were posted or what message was stated on each sticky note posted by these other female students. The parties both agree that A.M. only authored one sticky note.

- 5 - by A.M., as well as into the identities of the authors. They

treated the notes as complaints under Title IX. Over the course

of ten days, they interviewed forty-seven students about the notes,

including A.M., and reviewed security camera footage from inside

the school. The sticky notes caused "alarm" and "fear" among some

students at the school. In her first interview on September 16,

A.M. did not disclose that she was the author of the first note.

Through the investigation, the school authorities say

they came to believe that the sticky notes referenced a particular

male student, "Student 1." The investigation uncovered that there

had been earlier rumors among some members of the student body

that Student 1 had committed sexual assault. The most widespread

rumor centered around a video that had been circulated on social

media allegedly depicting Student 1 about to commit sexual

assault.3 The evidence shows that the video was made and circulated

months before A.M. posted the note and that the rumors were

circulating before A.M.'s note was posted. Some of the students

had only heard about the video and had not seen it themselves.

Some but not all of the students who had seen the video described

it as a joke. The school administrators eventually obtained a

copy of the video and viewed it. It did not depict Student 1 about

3 According to the rumors, the video depicted Student 1 dragging an intoxicated female by her hair into a bathroom where he later sexually assaulted her.

- 6 - to commit sexual assault, or sexual assault at all.4 The defendants

do not assert that A.M. was the source of the rumors, nor do they

assert that A.M. was responsible for the video.5

On September 17, 2019, Student 1 experienced ostracism

from his peers and stayed out of school for the following seven or

eight days. The school does not allege that A.M. was one of the

students who ostracized Student 1. Student 1's mother informed

the school that she believed Student 1's treatment at school had

been caused by the sticky notes and that this treatment constituted

bullying. She also expressed particular concern about learning

who captioned the video that had been circulated among the

students.

4 The video showed Student 1 picking up a female who did not attend Cape Elizabeth H.S. from a bed. The video had a caption that stated, "this is Student 1 raping bitches." School administrators interviewed the female in the video, who told them that Student 1 picked her up in order to convince her to go outside to her car to retrieve her vaping device. She told them that she, Student 1, another female, and two other male Cape Elizabeth H.S. students had been celebrating a birthday at a hotel room, which is where the video was filmed. She told the administrators that Student 1 did not rape her.

5 During the investigation, school administrators also interviewed a female Cape Elizabeth H.S. student who had a protection order in place against Student 1 stemming from an off- campus incident that occurred in the spring of 2019. The female student told them that she did not wish for any further action to be taken. We note that victims of any sexual assault crime under Maine statutory law may file a complaint for a protective order against the perpetrator, after which they must prove the allegation by a preponderance of the evidence at a hearing. Me. Rev. Stat. Ann. tit. 19-A, §§ 4005(1), 4006(1).

- 7 - Also on September 17, 2019, school administrators

interviewed A.M. for the second time. After being confronted with

video evidence of her entering the bathroom around the time the

first note was posted, A.M. admitted writing and posting the first

note. The statements made by A.M. and the defendants during this

interview are disputed. The defendants assert that during this

interview, A.M. stated that her purpose for posting the note was

to "instill[] fear in the school community and to alert the school

community because she felt the [s]chool was not taking allegations

of sexual assault seriously." They further state that A.M.

specifically identified Student 1 as her note's target, described

"incidents of alleged rape that [she] believed (without personal

knowledge) that he was involved in," and "complained [he] was

'idolized' by the High School faculty."

A.M. denies making these statements and denies that

Student 1 was her note's intended target. She states that the

administrators repeatedly asked her to disclose the names of any

perpetrators and victims of sexual assaults of which she was aware.

She responded by describing two different incidents. The first

one involved the video of Student 1, which she claims she only

learned of after posting the note. The second incident involved

a different student who had been accused of committing sexual

assault. That student had been involved in a Title IX

investigation conducted in the spring of 2019 which had

- 8 - substantiated the allegation of sexual assault. A.M. asserts the

administrators told her that they were aware of the incidents that

she had described and that they did not constitute "rape."

A.M. states that she "explained repeatedly" to the

administrators that she "posted the note to address the problem of

sexual assault in [the] school and because of concerns with the

school's handling of sexual assault claims." A.M. further states

that she did not intend to direct the term "rapist" in the note at

any specific person; rather, she believes there are multiple people

who have committed sexual assault at Cape Elizabeth H.S. She

denies even knowing about the video of Student 1 until after she

had posted the sticky note. A.M. asserts that the "YOU" in her

sticky note is a reference to the school administration, which she

believes has been inattentive to the needs of sexual assault

survivors at Cape Elizabeth H.S.

On September 20, 2019, Shedd sent an email to Cape

Elizabeth H.S. students and parents. The email contained a letter

from him describing the sticky notes and stating that the notes

"claimed adults in the school knew and implied that we would be

indifferent." The letter stated that the students who found the

notes "were concerned." It also stated that "[i]n the course of

our investigation . . . we uncovered much misinformation some of

which has been hurtful to a number of students and other people in

- 9 - our community," including rumors being spread between students "by

Snapchats, texts and Instagrams."

On September 24, 2019, school administrators again met

with A.M. A.M. asserts that Shedd told her that he understood the

"YOU" in her note to refer to the Cape Elizabeth H.S.

administration. Shedd asked A.M. to provide the names of the

students who wrote the other notes, but she refused to provide the

names of any other students she suspected of writing notes. On

September 26, one of the two other female students who posted notes

admitted to doing so. That same day, administrators spoke to a

student who disclosed that she was a victim of sexual assault and

who also reported knowing about three other assaults involving

Cape Elizabeth H.S. students, and they had spoken to another

student who had heard that five different students had been

sexually assaulted by two different Cape Elizabeth H.S. seniors.

On or before September 26, the defendants also identified a third

female student who had posted notes.

On September 26, 2019, Shedd and Carpenter completed

their investigation and concluded that all three students who

posted notes would be suspended and that A.M.'s note constituted

bullying of Student 1. Shedd and Carpenter decided on the lengths

of the suspensions on September 30, 2019. They decided that A.M.

would be suspended for three days, and the two other students would

- 10 - be suspended for two days and one day. This discipline was not

communicated to A.M. until October 4.

On October 4, 2019, the Portland Press Herald published

a story about the sticky notes, which included a statement made on

the record by A.M. that was critical of the school's response to

sexual assault. Shedd and Wolfrom also made comments on the record

in the article.6 That same day, Shedd and Carpenter met with A.M.

to inform her that after investigating the sticky notes, they had

concluded that her conduct "did in fact constitute an act of

bullying within [the school's] policy." They also gave her a

letter, which specified that her conduct

was part of a "pattern of . . . expression . . . directed at a student . . . that [created] an intimidating . . . educational environment . . . or [interfered] with the student's . . . ability to participate in or benefit from the services, activities, or privileges provided by the school."

The Maine statute that creates a right against bullying in public

schools itself defines "bullying" as involving conduct "directed

at a student or students," and the Cape Elizabeth H.S.'s anti-

6 The article also reported that the Cape Elizabeth School District had "conducted eight investigations into possible violations of Title IX last school year, seven of which concerned sexual harassment or assault." The investigations led to the conclusion that violations "more likely than not" occurred in four cases. In the verified complaint filed on behalf of A.M., she alleges that during the previous academic year, Cape Elizabeth H.S. had received at least ten Title IX complaints, five of which had been substantiated.

- 11 - bullying policy uses that same definition of bullying. Me. Rev.

Stat. Ann. tit. 20-A, § 6554(2)(B). The letter also stated that

A.M. would be suspended for three days and it warned that "any

future actions of this sort . . . may result in further and more

severe consequences up to and including suspension and possible

expulsion." The letter provided no other reasons for her

suspension.

On October 9, 2019, Shedd sent another letter to Cape

Elizabeth H.S. students and parents. He summarized the

investigation into the sticky notes, complained about the

attention the incident had brought to the school, and stated that

"[t]he students who posted the sticky notes made a bad choice even

though their intentions were good" and they "were well motivated."

He also confirmed in the letter that the school was aware of

previous student complaints of sexual assault, including one that

had resulted in legal proceedings the previous academic year, and

that the administration had uncovered rumors about another Cape

Elizabeth H.S. student as a result of its investigation into the

sticky notes.

Also on October 9, 2019, A.M. appealed her suspension to

Superintendent Wolfrom. A.M. made three arguments to Wolfrom:

that the suspension violated her First Amendment rights because

she was engaged in "core political speech," that her conduct did

not meet the definition of bullying under the school's policy, and

- 12 - that her punishment was harsher than those of students who

committed equal or greater offenses. A.M. emphasized that her

note did not target a specific individual but rather the "rape

culture" at Cape Elizabeth H.S.

Wolfrom denied the appeal in a letter dated October 11,

2019. As to A.M.'s First Amendment argument, Wolfrom rejected

A.M.'s claim that she was engaged in "core political speech"

because "not only [did] the language of the notes [A.M.] posted

indicate that [her] speech was directed at a specific individual,

but when [A.M.] [was] interviewed as part of the investigation,

[she] stated directly that [she] intended to target one student."

Further, Wolfrom rejected A.M.'s argument that her

conduct did not meet the definition of bullying under the school's

policy and concluded that the three-day suspension was reasonable.

Wolfrom's letter provided no other bases for affirming the

suspension. She told A.M. that her suspension would commence on

October 15, 2019.

B. Procedural History

On October 13, 2019, A.M., by and through her mother

Norris, filed a verified complaint in federal court alleging the

two counts described earlier. A.M. also moved for a temporary

- 13 - restraining order and a preliminary injunction to prevent the

defendants from implementing the three-day suspension.7

On October 24, 2019, after briefing and oral argument,

the district court granted A.M.'s motion for a preliminary

injunction on her First Amendment claim. Cape Elizabeth Sch.

Dist., 422 F. Supp. 3d at 358. It did not reach her Title IX

claim. Id. at 358 n.2. The district court decision addressed the

four elements to be considered when assessing a motion for a

preliminary injunction: likelihood of success on the merits,

likelihood of irreparable harm absent interim relief, balance of

the equities, and service of the public interest. Id. at 358.

As to likelihood of success on the merits, the parties

agreed that A.M. had suffered an adverse action by the defendants

and that the allegedly protected conduct was a substantial or

motivating factor in the adverse action. Id. at 360-61. The

district court focused on the question of whether A.M.'s conduct

was constitutionally protected. Id. at 361. It reviewed the

Supreme Court's First Amendment precedents, focusing on Tinker v.

Des Moines Independent School District,

(1969), which

it said held that "school officials may not restrict student speech

without a reasonable forecast that the speech would either

(1) substantially interfere with the requirements of appropriate

7 The defendants agreed not to enforce the suspension until the district court's ruling on that motion.

- 14 - school discipline or (2) invade the rights of others." Cape

Elizabeth Sch. Dist., 422 F. Supp. 3d at 361.

The district court then described three Supreme Court

student speech cases decided after Tinker, which it characterized

as setting out "narrower" rules that allow the government to

restrict student speech without relying on one of the Tinker

justifications. Id. at 362-63. These cases are Bethel School

District No. 403 v. Fraser,

(1986), which held

that school officials may restrict lewd speech in schools;

Hazelwood School District v. Kuhlmeier,

(1988),

which held that school officials may restrict school-sponsored

speech if those restrictions are "reasonably related to legitimate

pedagogical concerns;" and Morse v. Frederick,

, 409-

10 (2007), which held that school officials may restrict speech

that can be reasonably interpreted as promoting illegal drug use.

The district court concluded that none of the holdings in these

three cases undercut A.M.'s First Amendment claim. Cape Elizabeth

Sch. Dist., 422 F. Supp. 3d at 362.

The district court then turned to whether A.M. had met

her burden of establishing a likelihood of success on her assertion

that her speech was constitutionally protected. Id. at 362-63.

Before assessing whether her speech was constitutionally

protected, the district court acknowledged that "it is important

that [school] administrators receive sufficient leeway to conduct

- 15 - their duties without unnecessary interference" but that it is

nevertheless "necessary from time to time that a court countermand

the action of a local school authority." Id. at 362; see also id.

at 362 n.5 ("[T]he education of the Nation's youth is primarily

the responsibility of parents, teachers, and state and local school

officials, and not of federal judges." (quoting Kuhlmeier,

)). The district court noted at the hearing that the

justification for the suspension given by the defendants in the

litigation went beyond the bullying rationale articulated to A.M.

and the school community for the suspension. The district court

did not otherwise discuss or consider any sort of deference to the

bullying determination made by the school administrators or the

other reasons proffered in the defense of the litigation.

The district court first rejected the defendants'

litigation argument that A.M.'s statement was defamatory as to

Student 1 and was not protected under the First Amendment at all.

. The district court stated that the "record is not

clear" as to whether A.M.'s note was "concerning" Student 1 and

made with "fault amounting at least to negligence."

The

district court highlighted the significant factual disputes in the

record regarding the good faith intentions of A.M.'s note and

whether she had admitted to targeting Student 1.

It stated

that "the evidence suggesting [A.M.'s] speech might have defamed

Student 1 is not enough to undermine a finding that she is

- 16 - otherwise likely to succeed on the merits of her First Amendment

claim."

(emphasis in original).

Instead, the district court reasoned that the record

more clearly supported the conclusion that A.M.'s sticky note was

political speech.

. The district court stated that it

would consider an "objectively reasonable interpretation of the

speech, not the speaker's motive."

(citing Morse,

). This inquiry, the district court stated, "may be informed

by context, including the identity of the speaker."

The

district court took note of A.M.'s statement of her reasons, which

was to comment on "the crisis of sexual assault in public schools

and the importance of appropriate school procedures to address

it."

The district court concluded that A.M.'s note "expresses

political advocacy on a question of significant public

consequence" -- how public schools handle sexual assault.

Given the heightened First Amendment protections for speech on

issues of public concern, the district court concluded that A.M.

had established a likelihood of success in showing that her speech

was constitutionally protected.

(citing First Nat'l Bank of

Bos. v. Bellotti,

(1978)).

The district court applied Tinker to determine if the

defendants had undermined A.M.'s likelihood of success by showing

that the suspension was justified. Id. at 364-65. It highlighted

the significant factual disputes that remained in the record. Id.

- 17 - at 365. As to the defendants' litigation arguments related to

substantial disruption of school activities, the district court

concluded that the defendants had failed to undermine A.M.'s

showing of likelihood of success on the merits. Id. at 365-66.

The district court stated that the defendants' litigation argument

that A.M.'s note was "inherently" disturbing because a reader

"might believe an active rapist was presently walking the halls of

the school building" was not reasonable. Id. at 365 (internal

quotation marks omitted). The district court also rejected the

defendants' contention that A.M.'s note in fact caused substantial

disruption, concluding that the "worr[y] and concern[]" of the

student who found A.M.'s sticky note in addition to the time spent

by administrators investigating the sticky notes and interviewing

forty-seven students caused less disruption than that deemed

insufficient in Tinker. Id. at 365-66. It noted that the cases

the defendants relied on all involved "actual threats of harm or

violence," whereas "there [was] no evidence that A.M.'s note

incited violent behavior . . . or even wrecked any part of the

academic schedule." Id. (internal quotation marks omitted).

The district court also concluded that the defendants

had failed to undermine A.M.'s showing of likelihood of success on

the merits by arguing that her speech invaded the rights of others.

Id. at 366-67. Because Maine law prohibits bullying in public

schools, demonstrated bullying would constitute an invasion of the

- 18 - rights of the bullied student. See Me. Rev. Stat. Ann. tit. 20-

A, § 6554(1), (3). The district court emphasized that "because

there are significant factual disputes regarding A.M.'s alleged

bullying and the attenuated causal relationship between her sticky

note and the harm suffered by Student 1, . . . Defendants have

failed to undermine Plaintiff's showing of likelihood of success

on her First Amendment claim." Cape Elizabeth Sch. Dist., 422 F.

Supp. 3d at 366. As to the defendants' argument that A.M. had

admitted she intended the note to target Student 1, the court noted

that A.M. denied making such a statement and this was a disputed

fact to be resolved in further proceedings.8 See id. at 366-67.

The district court emphasized that the note did not specifically

name anyone and concluded that "[w]ithout a clear factual

connection between A.M.'s note and Student 1, [the court] cannot

find that her sticky note 'invaded' Student 1's rights under

Tinker." Id. at 367.

The district court also highlighted another "troublesome

point of Defendants' argument; though Defendants hastily point out

8 The defendants claim that A.M. "admi[tted] that she intended to instill fear in the school by posting the note," while A.M. contends that "it was Principal Shedd who alleged that [she] was trying to instill fear . . . [and] [she] did not say that was [her] intent." Id. (first alteration in original) (internal quotation marks omitted). A.M. also asserts that she "ha[s] audio recordings of her meetings with administrators that refute Defendants' contention that she directed her note at Student 1." Id. A.M. did not introduce any such recordings into evidence during the preliminary injunction hearing.

- 19 - that A.M. was adjudicated to have 'bullied' Student 1 under Cape

Elizabeth High School's bullying policy, they do not closely link

her protected speech to the actual harm he suffered." Id. The

court rejected the defendants' reliance on Kowalski v. Berkeley

County Schools,

(4th Cir. 2011), which

involved a student who specifically named the other student who

was the target of the verbal attacks and used photographs of the

targeted student to reinforce those attacks. It reasoned that,

unlike in Kowalski, the note here "stayed up for a matter of

minutes, did not specifically name an individual, did not use

photos, and arguably targeted the administration . . . rather than

the 'rapist.'" Cape Elizabeth Sch. Dist., 422 F. Supp. 3d at 367.

The district court concluded that "[b]ecause the record does not

speak with any clarity that A.M.'s note, in fact, caused

reputational and educational harm to Student 1, . . . Defendants

have failed to undermine Plaintiff's showing of likelihood of

success on her First Amendment claim by pointing to this [invasion

of rights] justification." Id.

The district court turned to the other preliminary

injunction elements and held that each weighed in favor of A.M.

It concluded that A.M. had shown irreparable harm, noting that the

Supreme Court has stated that "[t]he loss of First Amendment

freedoms, for even minimal periods of time, unquestionably

constitutes irreparable injury." Id. (alteration in original)

- 20 - (quoting Elrod v. Burns,

(1976)). As to the

balance of the equities, it stated that the only harm to the school

was a delay in punishing A.M., while A.M. "would miss three days

of school and, most significantly, her ability to speak on the

topic of sexual assault or serve as a victim advocate would be

chilled."

. The district court concluded that the

balance of the equities weighed in A.M.'s favor because she would

"suffer significant First Amendment harm if Defendants' punishment

chill[ed] her from engaging in otherwise constitutionally-

protected speech."

It determined that the public interest

weighed in her favor because her statement constituted non-

frivolous expression about the operation of her public school.

.

The defendants timely appealed.

II.

"We review the district court's decision to grant a

preliminary injunction for abuse of discretion." Doe v. Trs. of

Bos. Coll.,

(1st Cir. 2019). We review the

district court's findings of fact for clear error and conclusions

of law de novo.

When assessing a request for a preliminary injunction,

a district court must consider "(1) the movant's likelihood of

success on the merits; (2) the likelihood of the movant suffering

irreparable harm; (3) the balance of equities; and (4) whether

- 21 - granting the injunction is in the public interest." Shurtleff v.

City of Bos.,

(1st Cir. 2019). Likelihood of

success on the merits "is the most important of the four

preliminary injunction factors." Doe,

; see also

Arborjet, Inc. v. Rainbow Treecare Sci. Advancements, Inc.,

(1st Cir. 2015) ("In this circuit, proving likelihood

of success on the merits is the 'sine qua non' of a preliminary

injunction." (quoting New Comm Wireless Servs., Inc. v. SprintCom,

Inc.,

(1st Cir. 2002))).

"[A] party who appeals from the issuance . . . of a

preliminary injunction . . . bear[s] the considerable burden of

demonstrating that the trial court mishandled the fourpart

framework." Maine Educ. Ass'n Benefits Tr. v. Cioppa,

(1st Cir. 2012) (quoting Philip Morris, Inc. v.

Harshbarger,

(1st Cir. 1998)).

The defendants have not challenged the district court's

conclusions as to irreparable harm, balance of the equities, or

the public interest, so we accept them. They have also not argued

that the district court's factual findings constituted clear

error.9 Therefore, we focus our analysis on the district court's

9 Rather, the defendants advance three main legal challenges on appeal: (1) the district court "erroneously concluded that the sticky note A.M. posted in the bathroom at the High School was core political speech entitled to the highest level of protection under the First Amendment"; (2) it "erroneously failed to analyze this case under the framework developed by the

- 22 - conclusion that A.M. has shown a likelihood of success on the

merits of her First Amendment claim.

A. A.M. Has Established a Likelihood of Success in Demonstrating that Her Sticky Note was Constitutionally Protected Speech

The defendants first contend that the district court

abused its discretion by "erroneously conclud[ing] that [A.M.'s]

sticky note constituted core political speech." They argue that

as "non-political" speech, A.M.'s sticky note should have been

analyzed under Fraser, Kuhlmeier, and Morse, rather than Tinker.

In the defendants' view, Tinker is reserved only for political

student speech, while Fraser, Kuhlmeier, and Morse set out an

approach for all "non-political" student speech that is more

deferential toward school administrators than Tinker. A.M.

disagrees and characterizes Fraser, Kuhlmeier, and Morse as only

"narrow exceptions" to Tinker. She argues that the district court

properly concluded that these exceptions did not apply, that she

had shown that her speech was political, and that Tinker applied.

The Supreme Court has not expressly adopted either of the parties'

characterization of the student speech cases.10

Supreme Court in the student speech cases decided since Tinker"; and (3) it "erroneously concluded that the undisputed facts of this case did not meet the Tinker standard."

10 We note that several circuits have characterized Fraser, Kuhlmeier, and Morse as "exceptions" to the Tinker general rule. See Yeasin v. Durham,

, 851 (10th Cir. 2018) (unpublished); Hardwick ex rel. Hardwick v. Heyward,

(4th Cir. 2013); Cox v. Warwick Valley Cent. Sch. Dist., 654

- 23 - We do not read the First Amendment protections in Tinker

as being restricted to only core political speech. No Supreme

Court case has held that Tinker's protections are limited to only

core political speech. And we do not read the majority opinion or

Justice Alito's concurrence in Morse as articulating a limit on

Tinker's framework. See Morse,

;

(Alito, J., concurring) ("I join the opinion of the Court on

the understanding that . . . it provides no support for any

restriction of speech that can plausibly be interpreted as

commenting on any political or social issue . . . ."). While the

majority opinion and Justice Alito's concurrence both discuss the

political nature of the speech at issue in Tinker, that discussion

was simply to distinguish the speech at issue in Morse from speech

that is "at the heart of the First Amendment."

; see

also

(Alito, J., concurring). Those opinions do not go

further to state that only speech that can be reasonably

interpreted as political is protected in schools.

Instead, both make a point to emphasize that speech

advocating illicit drug use in schools poses unique and severe

dangers and implicates school officials' special role in

F.3d 267, 272-73 (2d Cir. 2011); J.S. ex rel. Snyder v. Blue Mountain Sch. Dist.,

(3d Cir. 2011); Morgan v. Swanson,

(5th Cir. 2011) (en banc). We need not delve into what is meant by that exception language.

- 24 - "protect[ing] those entrusted to their care from the dangers of

drug abuse."

; see also

(Alito, J.,

concurring) ("Speech advocating illegal drug use poses a threat to

student safety that is just as serious, if not always as

immediately obvious. As we have recognized in the past and as the

opinion of the Court today details, illegal drug use presents a

grave and in many ways unique threat to the physical safety of

students. I therefore conclude that the public schools may ban

speech advocating illegal drug use."). Had the speech in Morse

reasonably been interpreted as political or commenting on a matter

of public concern, the school would likely have had to justify the

speech restriction under the heightened burden of Tinker because

of the core First Amendment protection for such speech, but that

does not mean that all non-political speech is unprotected under

Tinker.

Furthermore, this circuit has cited Tinker in discussing

First Amendment protection for social events held on a public

university campus. See Gay Students Org. of Univ. of N.H. v.

Bonner,

(1st Cir. 1974) (citing Tinker

for the proposition that a public university could prohibit actions

which "materially and substantially disrupt the work and the

discipline of the school," but concluding that the university had

not shown any such improper conduct at the plaintiff's social

- 25 - events in order to prohibit those social activities on campus

(quoting Tinker,

)).

Other circuits have held that Tinker's protections are

not limited to core political speech. See J.S. ex rel. Snyder,

("Although Tinker dealt with political speech, the

opinion has never been confined to such speech."); Pinard v.

Clatskanie Sch. Dist. 6J,

(9th Cir. 2006) ("In

striking the balance 'between the First Amendment rights of

students and preservation of the educational process,' neither

Tinker nor its progeny limited students' rights solely to the

exercise of political speech or speech that touches on a matter of

public concern." (quoting LaVine v. Blaine Sch. Dist.,

, 988 (9th Cir. 2006))); see also Kowalski,

(applying the Tinker framework to non-political speech). Instead,

Tinker provides the framework for justifying the restriction of

student speech that is otherwise protected. See, e.g., K.A. ex

rel. Ayers v. Pocono Mountain Sch. Dist.,

(3d

Cir. 2013).11

Whether or not this anonymous note containing an

accusation of criminal activity was core political speech, we hold

11 Because we conclude that Tinker is not limited to political speech, we need not decide if A.M.'s sticky note, understood in the context of her prior activities related to sexual assault activism including her statements to the Cape Elizabeth H.S. school board, was objectively viewed as political. We do not endorse the district court's reasoning on this point.

- 26 - that it is entitled to some First Amendment protection.12 See

McIntyre v. Ohio Elections Comm'n,

(1995)

(holding that anonymous speech is constitutionally protected);

Pinard,

(holding that high school student athletes'

petition requesting the resignation of their basketball coach was

protected speech under Tinker); Seamons v. Snow,

(10th Cir. 1996) (holding that a high school student

athlete's report of physical assault in the locker room as part of

a hazing ritual was protected speech under Tinker).

A.M.'s sticky note communicated its message in written

words and so it plainly constitutes "pure speech," which "is

entitled to comprehensive protection under the First Amendment."

Tinker,

. The defendants do not challenge the

district court's conclusion that A.M.'s note could not be

restricted as lewd under Fraser, school sponsored under Kuhlmeier,

or advocating illegal drug use under Morse. Nor could the

defendants succeed on such an argument. A.M.'s sticky note

contained no speech that could be viewed as "offensively lewd" or

"indecent," Fraser,

, nor did it reference any drug

use. Morse,

. Finally, a sticky note posted by a

12 We focus our analysis on A.M.'s sticky note, rather than her statements to the Portland Press Herald, because the school's position is that it punished A.M. for the note and A.M. focuses her arguments on the note as well.

- 27 - student in a student bathroom is not reasonably viewed as school

sponsored. Kuhlmeier,

.

Moreover, the defendants do not argue that A.M.'s speech

falls within any of the recognized categorical exceptions to First

Amendment protection.13 See, e.g., United States v. Alvarez,

(2012) (some types of false statements, including

defamation and fraud); New York v. Ferber,

(1982) (child pornography); Cent. Hudson Gas & Elec. Corp. v. Pub.

Serv. Comm'n of N.Y.,

(1980) (commercial

speech that is false, misleading, or proposes illegal

transactions); Miller v. California,

(1973)

(obscenity); Brandenburg v. Ohio,

(1969) (per

curiam) (incitement of imminent lawless action); Watts v. United

States,

(1969) (per curiam) (true threats);

Chaplinsky v. New Hampshire,

(1942) (fighting

words).

Because A.M. has established a likelihood of success on

the merits in demonstrating that her sticky note was protected

13 The defendants did argue in the district court that A.M.'s sticky note was defamatory and could be restricted on that basis. The district court rejected that claim in finding that A.M. had demonstrated a likelihood of success that her speech was protected, and the defendants do not challenge that aspect of the district court's ruling on appeal. See Cape Elizabeth Sch. Dist., 422 F. Supp. 3d at 363-64. We need not address that issue. See Portugués-Santana v. Rekomdiv Int'l Inc.,

, 23 n.4 (1st Cir. 2013).

- 28 - speech, we apply Tinker to determine if the school has demonstrated

that it was justified in restricting her speech.

B. The Defendants Have Failed to Demonstrate that They Can Meet Their Burden Under Tinker to Justify the Restriction of A.M.'s Speech

We acknowledge that the posting of an anonymous note by

a student accusing another person in the school of a crime or

crimes and suggesting knowledge of such criminal activity by

others, including school administrators, is a serious event and

legitimately of concern to school administrators. Tinker states

that school officials' restriction of student speech is justified

when: (1) actual "disturbances or disorders on the school premises

in fact occur[]"; (2) "the record . . . demonstrate[s] . . . facts

which might reasonably have led school authorities to forecast

substantial disruption of or material interference with school

activities"; or (3) the speech invades the rights of others.

. We conduct the Tinker inquiry objectively. See,

e.g., Bell v. Itawamba Cty. Sch. Bd.,

(5th Cir.

2015) (explaining that in applying Tinker, courts analyze "the

objective reasonableness . . . of a forecasted substantial

disruption" based on the facts in the record); Cuff ex rel. B.C.

v. Valley Cent. Sch. Dist.,

(2d Cir. 2012) ("The

test [under Tinker] is an objective one, focusing on the

reasonableness of the school administration's response, not on the

intent of the student.").

- 29 - "But . . . undifferentiated fear or apprehension of

disturbance is not enough to overcome the right to freedom of

expression." Tinker,

. Generally, the circuits

have concluded that Tinker places the burden on the school to

justify student speech restrictions. See B.H. ex rel. Hawk v.

Easton Area Sch. Dist.,

(3d Cir. 2013) (en banc);

see also Bell,

; Hardwick ex rel. Hardwick,

; Trachtman v. Anker,

(2d Cir.

1977). We agree with this conclusion. Thus, the defendants must

demonstrate a likelihood that the restrictions on A.M.'s speech

were justified.

1. The Defendants Must Rely Solely on Bullying as the Justification for the Speech Restrictions Because It Was the Only Justification Originally Provided to A.M.

As an initial matter, we will address what reasons the

defendants may rely on to justify the restrictions on A.M.'s

speech. The only justification the school administration

articulated to A.M. for her suspension in its October 4th letter

was that her sticky note "did in fact constitute an act of bullying

within [the school's] policy." We again recount the school's

actual description of A.M.'s conduct:

[It] was part of a "pattern of . . . expression . . . directed at a student . . . that [created] an intimidating . . . educational environment . . . or [interfered] with the student's . . . ability to participate in or

- 30 - benefit from the services, activities, or privileges provided by the school."

In Superintendent Wolfrom's October 11th letter to A.M., Wolfrom

rejected A.M.'s administrative appeal of her suspension, affirming

the school's determination that A.M. had violated its policy

against bullying. That letter mentioned no other reasons for

affirming the suspension.

The defendants may not rely on post hoc rationalizations

for the speech restrictions, but rather must rely only on the

reasons originally provided to A.M. for her suspension.14 In Tinker

and its progeny, the Supreme Court considered only those

justifications offered to the students when they were disciplined

in assessing the permissibility of the speech restrictions, not

reasons that were articulated only after litigation commenced.

See Tinker,

-10, 509 n.3 (focusing on the school's

14 The defendants assert that A.M.'s sticky note actually disrupted the school's activities because of the resulting Title IX investigation, and that a reasonable school administrator could plausibly have forecasted substantial disruption to the school's activities because of the incendiary language used in the note. However, neither of these reasons was provided to A.M. in the letter from the school administration justifying her suspension, nor were these reasons mentioned in the letter from Wolfrom affirming that punishment. It was not until after litigation commenced that the school administration raised these distinct justifications for the first time. The defendants also raised for the first time in the district court the litigation argument that A.M.'s sticky note was defamatory and could be restricted on that basis. As already discussed, we need not address that litigation argument which was not raised on appeal. See supra note 13.

- 31 - official statement regarding the students' suspension to determine

the reasons for the speech restrictions on an independent review

of the record); see also Morse,

; Kuhlmeier,

; Fraser,

.

The Supreme Court has never stated that school

administrators can rely on new rationales for student speech

restrictions formulated only after litigation has begun. The Court

in Tinker emphasized that "students . . . [do not] shed their

constitutional rights to freedom of speech or expression at the

schoolhouse gate,"

, and school administrators

generally may not restrict student speech unless it is or is

reasonably forecasted to be substantially disruptive or it invades

the rights of others.

. If school administrators

are permitted to use shifting rationales for student speech

restrictions that were not articulated at the time their decision

was made, there is a risk that those post hoc rationalizations

would not have been true bases for their decision. Such shifting

rationales may provide convenient litigating positions for the

school administrators in defending their decision, but they are

too easily susceptible to abuse by obfuscating illegitimate

reasons for speech restrictions. Indeed, a school cannot suppress

speech simply because it is unpopular with or critical of the

school administrators. See, e.g.,

.

- 32 - The Supreme Court has held that state actors may not

rely on shifting rationales to justify speech restrictions in a

different First Amendment context. See City of Lakewood v. Plain

Dealer Publ'g Co.,

(1988) (stating that in the

context of standardless licensing programs for newsracks,

"[w]ithout . . . guideposts, post hoc rationalizations by the

licensing official and the use of shifting or illegitimate criteria

are far too easy, making it difficult for courts to determine in

any particular case whether the licensor is permitting favorable,

and suppressing unfavorable, expression" (emphasis in original)

(collecting cases)).

We and other circuits have applied that rule. See Van

Wagner Bos., LLC v. Davey,

(1st Cir. 2014)

(discussing City of Lakewood and the "concerns undergird[ing] the

Court's conceptualization of injury"); OSU Student All. v. Ray,

(9th Cir. 2012) (explaining that "[b]ecause

defendants offered the explanations only after the confiscation

[of the student newspaper], in an effort to justify the

University's application of an unannounced and unenforced policy,

the explanations cannot be distinguished from post hoc

rationalizations" (emphasis in original) (citing City of Lakewood,

)); Pittsburgh League of Young Voters Educ. Fund v.

Port Auth. of Allegheny Cty.,

(3d Cir. 2011)

("Because the Port Authority did not mention this basis [for

- 33 - rejecting the plaintiff's commercial speech under the Port

Authority's advertising policy] until after the lawsuit had been

filed, the District Court permissibly found that it was not a real

basis for rejecting the ad but was, instead, a post hoc

rationalization."); Bourgeois v. Peters,

(11th Cir. 2004) ("[T]he City merely invites us to engage in post

hoc rationalizations of its policy, which is precisely one of the

dangers that attaches to the sort of uncabined, impulsive

policymaking practice at issue in this case." (emphasis in

original) (citing City of Lakewood,

)); Summum v.

City of Ogden,

(10th Cir. 2002) (recognizing

"the caselaw's particular concern for post hoc rationalizations in

the Free Speech Clause context").15

In addition, such after-the-fact attempts to justify

government actions on newly found justifications are disfavored in

other areas of the law. For example, due process requires that,

at a minimum, a student be given notice of the charges against her

and an opportunity to be heard as to those charges in connection

with a suspension of ten days or fewer to prevent arbitrary

exclusion from school. Goss v. Lopez,

, 581

15See also Safelite Grp., Inc. v. Jepsen,

(2d Cir. 2014) ("As an initial matter, in light of the record evidence that the legislation at issue was designed to benefit Safelite's competitors, we are skeptical that the government's asserted consumer protection interests are genuine and not merely post-hoc rationalizations." (citation omitted)).

- 34 - (1975); Zell v. Ricci,

(1st Cir. 2020); Donovan v.

Ritchie,

(1st Cir. 1995) (finding adequate notice

where the principal sent a letter to the student elaborating on

and specifying the bases for suspension and referring to the

relevant school policy). Indeed, "[n]otice and an opportunity to

be heard have traditionally and consistently been held to be the

essential requisites of procedural due process." Gorman v. Univ.

of R.I.,

(1st Cir. 1988) (collecting cases); see

also Cleveland Bd. of Educ. v. Loudermill,

(1985); Kercado-Melendez v. Aponte-Roque,

(1st

Cir. 1987).16

In the administrative law context, "[i]t is a

'foundational principle . . . ' that judicial review of agency

action is limited to 'the grounds that the agency invoked when it

took the action'" and a reviewing court may not uphold agency

action "on the basis of impermissible 'post hoc rationalization.'"

16 While the plaintiff did not allege a due process violation in her verified complaint, nor raise such a claim on appeal, the district court at the preliminary injunction hearing inquired as to whether considering the school's new justifications for the speech restrictions would violate A.M.'s right to due process. Plaintiff's counsel responded in the affirmative and argued that the district court should therefore not consider the school's new justifications for the speech restrictions. Defendants' counsel never addressed the district court's due process question, and the district court ultimately did not discuss the due process issue in its order granting the preliminary injunction. It is clear, however, that both parties were aware of the issue of later articulated rationales.

- 35 - Dep't of Homeland Sec. v. Regents of the Univ. of Cal.,

(2020) (emphasis in original) (first quoting

Michigan v. EPA,

(2015); and then quoting

Citizens to Pres. Overton Park, Inc. v. Volpe,

(1971)); see also Dep't of Commerce v. New York,

(2019) (explaining that the requirement of reasoned

explanation for agency action means that there cannot be a

disconnect between the agency's decision and its explanation for

that decision). As the Supreme Court has explained, the rule

against considering post hoc rationalizations is not merely a

formality, but rather it serves important administrative law

values of promoting "agency accountability," ensuring that the

reasons given for agency action are not merely "convenient

litigating position[s]," and facilitating judicial review of

agency action. Dep't of Homeland Sec.,

(alteration in original) (first quoting Bowen v. Am. Hosp. Ass'n,

(1986); and then quoting Christopher v.

SmithKline Beecham Corp.,

(2012)).17

17Those values are relevant here. Requiring the school administration to stick to the reasons it initially provided for the speech restrictions promotes accountability for school officials by ensuring that students and their parents "can respond fully and in a timely manner to [the state's] exercise of authority."

A.M. was not able to respond at the time of her suspension to the school's new contentions that her speech substantially disrupted or was reasonably likely to disrupt school activities. And as discussed above, considering only those reasons given at the time of the school's decision prevents the use of

- 36 - At least on the record here, we hold that the defendants

may rely only on the justification originally provided to A.M. for

their decision. Therefore, if the restriction on speech here is

to be justified at all, the defendants must justify it on the basis

that A.M.'s speech constituted bullying in violation of the

school's policy.

2. The Facts in the Record Support the District Court's Determination that the Defendants Failed to Demonstrate a Causal Connection Between the Note and the Alleged Harm

On the preliminary injunction record, the district court

concluded as a matter of fact that the school had not shown that

the sticky note caused or led to the bullying of Student 1. See

Cape Elizabeth Sch. Dist., 422 F. Supp. 3d at 366-67. We see no

clear error in that factual conclusion. While we disagree with

one aspect of the district court's legal analysis, that

disagreement does not lead to the conclusion that there was an

abuse of discretion in granting the preliminary injunction. See

I.P. Lund Trading ApS v. Kohler Co.,

(1st

Cir. 1998) (affirming the district court's denial of a preliminary

injunction, even though it applied an incorrect legal analysis,

"shifting or illegitimate criteria" that did not form the true bases for the school's decision but which now present convenient litigating positions. City of Lakewood,

; see also Dep't of Homeland Sec.,

.

- 37 - because there was adequate evidence in the record to support its

determination as to likelihood of success).

We use the rule well recognized in this Circuit that

"[a] trial court's findings of fact, made in connection with one

legal theory, may often be treated as fungible in connection with

another." Wine & Spirits Retailers, Inc. v. Rhode Island,

(1st Cir. 2007). We have employed this reasoning to

uphold a factual determination made by a district court even though

that determination was made in connection with a misapprehension

of law. See Societe Des Produits Nestle, S.A. v. Casa Helvetia,

Inc.,

(1st Cir. 1992) ("Although this

determination is tainted by a misunderstanding of the applicable

legal principles, the court's subsidiary findings are,

nonetheless, reasonably explicit and subject to reuse."); see also

C.G. ex rel. A.S. v. Five Town Cmty. Sch. Dist.,

(1st Cir. 2008) (explaining that "where the evidence supports a

district court's findings of fact, we may realign those findings

under a different legal matrix and decide the case on that basis").

We agree with the school that bullying is the type of

conduct that implicates the governmental interest in protecting

against the invasion of the rights of others, as described in

Tinker. See Kowalski,

; see also C.R. v. Eugene

Sch. Dist. 4J,

(9th Cir. 2016). Thus,

schools may restrict such speech even if it does not necessarily

- 38 - cause substantial disruption to the school community more broadly.

However, for a school to rely on that basis for restricting student

speech, there must be a reasonable basis for the administration to

have determined both that the student speech targeted a specific

student and that it invaded that student's rights.18

The district court recognized the general principles

that school administrators should be given discretion in how they

operate their schools and that federal courts are not in the

business of educating students. See Cape Elizabeth Sch. Dist.,

422 F. Supp. 3d at 362, 362 n.5. Despite this, however, the

district court did not discuss or consider what deference, if any,

was owed to the defendants' stated justification for the speech

restrictions.

18 We need not delineate the precise boundaries of what speech constitutes "bullying" such that it falls within the "invasion of the rights of others" framework of Tinker. Neither party engaged the question of whether, under this aspect of Tinker, a school can punish a student for publicly posting an accusation that targets another student, no matter how fleeting or vague the statement. It is clear, however, that speech that is merely offensive to the listener is not enough. See Tinker,

; Wynar v. Douglas Cty. Sch. Dist.,

(9th Cir. 2013); Saxe v. State Coll. Area Sch. Dist.,

, 217 (3d Cir. 2001). And school administrators must be permitted to exercise discretion in determining when certain speech crosses the line from merely offensive to more severe or pervasive bullying or harassment. See Cox, 654 F.3d at 274; Zamecnik v. Indian Prairie Sch. Dist. No. 204,

(7th Cir. 2011); see also DeJohn v. Temple Univ.,

(3d Cir. 2008); Saxe, 240 F.3d at 217.

- 39 - The Supreme Court has repeatedly emphasized the

necessary discretion school officials must exercise and the

attendant deference owed to many of their decisions. See Christian

Legal Soc'y Chapter of the Univ. of Cal., Hastings Coll. of the

Law v. Martinez,

(2010) ("Cognizant that judges

lack the on-the-ground expertise and experience of school

administrators, however, we have cautioned courts in various

contexts to resist 'substitut[ing] their own notions of sound

educational policy for those of the school authorities which they

review.'" (alteration in original) (quoting Bd. of Educ. of

Hendrick Hudson Cent. Sch. Dist., Westchester Cty. v. Rowley,

(1982))); Morse,

; Kuhlmeier,

; Fraser,

; Bd. of Educ., Island Trees

Union Free Sch. Dist. No. 26 v. Pico,

(1982);

Wood v. Strickland,

(1975) ("The system of public

education that has evolved in this Nation relies necessarily upon

the discretion and judgment of school administrators and school

board members and § 1983 was not intended to be a vehicle for

federal-court correction of errors in the exercise of that

discretion which do not rise to the level of violations of specific

constitutional guarantees." (collecting cases)), overruled in part

on other grounds by Harlow v. Fitzgerald,

(1982).

Courts generally defer to school administrators'

decisions regarding student speech so long as their judgment is

- 40 - reasonable. See Bell,

("[I]n deference to the

judgment of the school boards, we refer ad hoc resolution of . . .

issues [such as this one] to the neutral corner of

'reasonableness.'" (alterations in original) (quoting Shanley v.

Ne. Indep. Sch. Dist., Bexar Cty., Tex.,

(5th

Cir. 1972))); B.H. ex rel. Hawk, 725 F.3d at 317 (adopting an

approach of deferring to school administrators' reasonable

judgment in interpreting speech that is ambiguously lewd, vulgar,

profane, or offensive); Hardwick ex rel. Hardwick,

("As long as school officials reasonably forecast a substantial

disruption, they may act to prevent that disruption without

violating a student's constitutional rights, and we will not second

guess their reasonable decisions." (citing Tinker,

)); J.S. ex rel. Snyder,

(declining to

defer to the school's conclusion as to potential for substantial

disruption where the facts did not support a reasonable forecast

of substantial disruption); Pinard,

("[O]ur

deference to school officials in regulating student speech does

not diminish our duty to ensure that they do not infringe students'

First Amendment rights under Tinker."); Planned Parenthood of S.

Nev., Inc. v. Clark Cty. Sch. Dist.,

, 829 (9th Cir.

1991); Trachtman,

; see also Christian Legal Soc'y,

, 687 n.16 (noting that while "determinations of

what constitutes sound educational policy . . . fall within the

- 41 - discretion of school administrators and educators," the ultimate

"question whether a [school] has exceeded constitutional

constraints" rests with the courts and courts "owe no deference to

[schools] when [they] consider that question" (citing Rowley,

and Pell v. Procunier,

(1974))).

We first address the subsidiary issue of the appropriate

timeframe by which to assess the administration's interpretation

of the note as bullying Student 1. The defendants contend that

the administration's interpretation of the speech must be assessed

at the time the note was first posted, based only on the content

of the note itself and what was known by school officials at that

time. The plaintiff submits, however, that A.M.'s speech must be

assessed at the time her punishment was ultimately imposed, in the

context of what was then known to administrators after the ten-

day investigation.

It appears that courts applying Tinker generally

consider all relevant facts known to the school administrators at

the time they disciplined the student or decided to restrict the

speech. See, e.g., Tinker,

; J.S. ex rel.

Snyder,

; Doninger v. Niehoff,

, 50-

51 (2d Cir. 2008); Lowery v. Euverard,

(6th Cir.

2007); LaVine, 257 F.3d at 989-90 ("When the school officials made

their decision . . . , they were aware of a substantial number of

facts that in isolation would probably not have warranted their

- 42 - response, but in combination gave them a reasonable basis for their

actions."). Given that we have already determined that the

defendants here cannot rely on the actual or forecasted substantial

disruption justifications, we analyze A.M.'s speech at the time

that the suspension decision was made. That is because the school

determined that her sticky note constituted bullying only after

their ten-day investigation revealed further information about the

note and rumors circulating throughout the school community.

The district court gave no deference to the school's

determination that A.M. intentionally targeted Student 1 through

her note. Rather, the court emphasized the conflicting evidence

with respect to that issue but did not explain why the evidence

tipped in her favor in the context of the preliminary injunction

standard. See Cape Elizabeth Sch. Dist., 422 F. Supp. 3d at 366-

67. If the evidence establishes that it is equally likely that

A.M.'s note targeted Student 1 or did not, we could not say that

the school was objectively unreasonable in determining that the

note targeted Student 1.

That does not mean, however, that we must reverse the

district court's decision. As the district court stated, the

defendants' evidence did not establish a link between A.M.'s

protected speech and the harm Student 1 suffered. Id. at 367.

The district court concluded that this failure meant the defendants

had not provided a justification sufficient to undermine her

- 43 - likelihood of success. Id. Even if a school administrator

arguably could have reasonably concluded that the unnamed "rapist"

in the note referred to Student 1, there is a different question

as to whether the note caused the bullying harm as the school

system alleged. The district court's conclusion that the

defendants failed to show the note caused the harm Student 1

suffered was not, on this record, clear error.

The problems with defendants' proof as to the causal

link between the note and the bullying exist at several levels, of

which we identify a few. Any bullying of Student 1 is regrettable.

That does not mean A.M.'s note resulted in the bullying.

Information about Student 1 already known in the Cape

Elizabeth H.S. community significantly weakens the theory that a

causal connection existed between A.M.'s note and the bullying of

Student 1. During its investigation, the school administration

uncovered rumors that had already been in circulation within the

school community prior to the posting of the sticky note. Some of

those allegations of sexual misconduct centered on Student 1.

Importantly, a video had been circulating within the student body

for months before A.M. posted her note which explicitly bore the

caption "this is Student 1 raping bitches." School officials, and

no doubt students, were also aware of a student complaint from the

previous academic year regarding an incident off of school grounds

which had resulted in legal proceedings and a court protection

- 44 - order against Student 1. The defendants do not assert that A.M.

directly participated in the bullying of Student 1 at school, or

that she was responsible for the video or any of the rumors being

circulated about Student 1. Indeed, they make no attempt to

disentangle the harm caused by the video and rumors circulated by

other students.19 This makes it difficult to show it was the note

and not some other factors which caused any bullying.

At the time of the posting of the note and at the

conclusion of the investigation, both the other students at Cape

Elizabeth H.S., and importantly, the administration, knew of

several other complaints of sexual assault by different student

perpetrators. The administration knew that several female student

complainants continued to pursue the issue. Before punishing her,

the school administrators determined that A.M. was the author of

the initial note. The school was well aware of A.M.'s prior

advocacy against sexual assault. A.M. posted the note only three

months after she and other students raised their dissatisfaction

with the school's handling of sexual assault to the school board.

19 The defendants' reliance on Kowalski v. Berkeley County Schools is misplaced. In Kowalski, the plaintiff-student created a webpage that served "as a platform for [the plaintiff] and her friends to direct verbal attacks towards [a] classmate."

. The classmate was explicitly targeted by name and through photographs posted on the website.

The Fourth Circuit concluded that the school could suspend her for this speech under Tinker.

. A.M.'s note, in contrast, did not identify anyone specifically.

- 45 - One of the students who had accompanied A.M. to the school board

meeting was a known sexual assault survivor who had a Title IX

complaint substantiated the previous academic year. Overall, Cape

Elizabeth H.S. had received at least eight Title IX complaints

during the previous academic year, at least four of which had been

substantiated. The investigation into the notes reinforced that

students other than Student 1 were thought to be perpetrators.

A.M. alleges that during the course of the investigation, she told

the administrators about a different student who had been accused

of sexual assault the previous spring and who had been involved in

a Title IX investigation. Other allegations of sexual assault

involving various students and not naming Student 1 were also

raised during the school's investigation.

The school's recent history with sexual assault

complaints, together with A.M.'s status as a sexual assault

advocate and confidant for victims, reinforces the school's own

interpretation in its September 20th email that the note was, at

least in part, directed at the school administration. This

understanding of the note undercuts the defendants' claim that the

note caused the bullying of Student 1. And the school is not

permitted to punish a student merely because her speech causes

argument on a controversial topic. See, e.g., Tinker,

.

- 46 - The text of the note and the circumstances of its

discovery also undermine the notion that it caused the bullying of

Student 1. The sticky note was not widely distributed to or viewed

by members of the school community nor did it specifically name or

otherwise describe a particular individual. Rather, it was only

up in a girls' bathroom for a few minutes and was seen only by the

one student who found it and one other student who actually brought

the note to the administration. The note also contains a number

of ambiguities which further undercut a close causal link between

it and the bullying of Student 1. It is not clear from A.M.'s

note whether the "rapist" is a student or teacher or school

employee, nor does it identify the gender of the "rapist." A.M.'s

note did not identify where or when the "rape" occurred, including

whether it occurred at the school or even if it occurred recently.

We also note that there are different understandings of what the

term "rape" means. The term can be used broadly to encompass not

only the traditional definition of rape, but also other lesser

degrees of sexual assault or other sexual activity. Maine's law

on sexual assault illustrates these different understandings.20

20 In 1989, the Maine legislature revised its criminal statutes to eliminate the term "rape" and replaced it with a catalog of various sexual assault crimes. See Me. Rev. Stat. Ann. tit. 17-A, § 252 (repealed 1989); id. § 253; id. § 254; id. § 255- A; id. § 260. Among these sexual assault crimes is "sexual abuse of a minor," which is committed when the perpetrator is at least twenty-one and engages in a sexual act with a student who is sixteen or seventeen and is "enrolled in a . . . public . . .

- 47 - Ambiguity as to who the "YOU" in A.M.'s sticky note

refers also weakens the causal link between it and Student 1's

bullying. The "YOU" could be understood as referring to other

students using the girls' bathroom. But it also could be read as

referring to the school administration. On this latter view, the

sticky note is a statement speaking out against the Cape Elizabeth

H.S. administration's perceived inadequate handling of sexual

assault claims. This view is not unsupported by the record: the

administration itself accepted this interpretation of A.M.'s note

in its September 20th email to Cape Elizabeth H.S. students and

parents.

Based on the record at this preliminary stage, we agree

with the district court's determination that the defendants have

not shown an apparent causal connection between A.M.'s sticky note

and the bullying of Student 1.21 The district court thus did not

secondary . . . school . . . [where] the actor is a teacher, employee or other official in the school district." Id. § 254(1)(C). This crime is also committed when the victim is fourteen or fifteen years old and the perpetrator is at least five years older. Id. § 254(1)(A). Cape Elizabeth H.S. covers grades nine through twelve and so there are some students who are fourteen, fifteen, sixteen, or seventeen years old. The ages of the students implicate this statutory provision and demonstrate the ambiguity in whether the "rapist" was a student or school employee.

21 The defendants do not argue that, even if the note itself did not cause any harm to Student 1, it nevertheless invaded his rights. Rather, the defendants' arguments as to the invasion of the rights of another focus on the harm suffered by Student 1 as a result of his ostracization by students other than A.M.

- 48 - abuse its discretion in determining that the defendants had not

shown it was A.M.'s note which caused any invasion of Student 1's

rights sufficient to justify the punishment imposed on A.M. for

her protected speech.22

III.

Posting the sticky note was far from the best way for

A.M. to express her concerns about student-on-student sexual

assault and Cape Elizabeth H.S.'s handling of sexual assault

claims. The issue before us, however, is whether the district

court abused its discretion in issuing the preliminary injunction.

We hold that it did not.

Affirmed. Costs are awarded to A.M.

22 The parties did not engage the question of whether a preexisting school policy forbidding the public posting of notes containing accusations against another student would affect the analysis under Tinker. Because the parties did not raise the issue, we need not address it.

- 49 -