PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 19-2157

HANNAH ROBERTSON, Individually and on Behalf of her Minor Child, R.R.S.,

Plaintiff - Appellant,

v.

ANDERSON MILL ELEMENTARY SCHOOL; SPARTANBURG COUNTY SCHOOL DISTRICT #6; ELIZABETH FOSTER, Individually and in Her Official Capacity as Principal,

Defendants - Appellees.

Appeal from the United States District Court for the District of South Carolina, at Spartanburg. Timothy M. Cain, District Judge. (7:19-cv-00668-TMC)

Argued: January 29, 2021 Decided: March 2, 2021

Before WILKINSON, NIEMEYER, and THACKER, Circuit Judges.

Affirmed by published opinion. Judge Thacker wrote the opinion, in which Judge Wilkinson and Judge Niemeyer joined.

Eric Chalmers Poston, CHALMERS POSTON LLC, Columbia, South Carolina, for Appellant. Jasmine Rogers Drain, Thomas Kennedy Barlow, HALLIGAN MAHONEY & WILLIAMS, Columbia, South Carolina, for Appellees. THACKER, Circuit Judge:

During the 2018–19 school year, the fourth grade class at Anderson Mill Elementary

School in Spartanburg County, South Carolina was given an assignment that required each

student to write an “essay to society” on any topic. The essays were to be compiled into a

booklet, and copies of that booklet were to be placed in the fourth grade classroom so that

students could read the essays throughout the remainder of the school year. Additionally,

copies of the essay booklet were to be sent home with the students for their families to read.

R.R.S., 1 an Anderson Mill Elementary School fourth grade student, wrote the essay

to society on the topic of LGBTQ 2 equality. Because Elizabeth Foster, the school’s

principal, determined that the subject matter of R.R.S.’s essay was not age-appropriate, she

instructed R.R.S.’s teacher to inform R.R.S. that the school was not going to include the

essay in the fourth grade class’s essay booklet. R.R.S.’s mother, Hannah Robertson

(“Appellant”), filed suit on behalf of herself and R.R.S., alleging that Principal Foster

infringed upon R.R.S.’s First Amendment right to free speech.

The district court held that Principal Foster’s conduct was a proper exercise of the

authority possessed by school officials to regulate school-sponsored student speech and

dismissed Appellant’s complaint. For the reasons detailed below, we agree, and affirm the

judgment of the district court.

1 Because R.R.S. is a minor, we use only initials to identify the student. 2 “LGBTQ” is an acronym that stands for lesbian, gay, bisexual, transgender, and queer or questioning.

2 I.

A.

R.R.S. was ten years old when the “essay to society” was assigned in the winter of

2019. According to the amended complaint, which is the operative complaint in this case,

R.R.S.’s maternal grandfather is a member of the LGBTQ community. Furthermore, the

amended complaint describes R.R.S. as a “proud advocate[] of LGBTQ rights.” J.A. 16. 3

For these reasons, R.R.S. decided to write about LGBTQ equality. Her essay, reprinted

here verbatim, stated the following:

To society,

I don’t know if you know this but peoples view on Tran’s genders is an issue. People think that men should not drees like a women, and saying mean things. They think that they are choosing the wrong thing in life. In the world people can choose who they want to be not being told that THEIR diction is wrong. I hope people understand that people can hurt themselves from others hurting their feelings. People need to think before they speak because one word can hurt someone’s feelings. We need to fix this because this is getting out of hand!

Id. at 16–17.

Principal Foster reviewed the essays submitted by the fourth grade class before they

were compiled into an essay booklet. Upon reviewing R.R.S.’s LGBTQ-themed essay,

Principal Foster instructed R.R.S.’s fourth grade teacher to inform R.R.S. that the essay

was not going to be included in the class’s essay booklet because, in Principal Foster’s

view, the essay’s topic “was not [] appropriate.” J.A. 17. R.R.S. then submitted a revised

3 Citations to the “J.A.” refer to the Joint Appendix filed by the parties in this appeal.

3 essay, which addressed bullying instead of LGBTQ issues. In the revised essay, R.R.S.

wrote, again verbatim:

To society,

I don’t know if you know this but peoples view on bullying is an issue. People think that saying mean things is ok and saying mean things. They think that they are choosing the wrong thing in life. In the world people can choose who they want to be not being told that THEIR diction is wrong. I hope people understand that people can hurt themselves from others hurting their feelings. People need to think before they speak because one word can hurt someone’s feelings. We need to fix this because this is getting out of hand!

Id. at 17–18.

Appellant alleges that shortly before the filing of the original complaint on March

6, 2019, Principal Foster “defended her decision” to not include R.R.S.’s LGBTQ-themed

essay in the fourth grade class’s essay booklet through “a series of increasingly abusive,

harassing, emotionally distressful and/or clearly unwarranted communications with”

Appellant. J.A. 18. Appellant further alleges that during these communications, Principal

Foster provided the following justifications for her decision: “the original paper would

make other parents upset”; the original paper “would create a [sic] undesirable situation at

the school”; the original paper “was not acceptable”; “it was not age-appropriate to discuss

transgenders, lesbians, and drag queens outside of the home”; and “due to the type of school

this is, the people that work here and the students and families of the students that go here,

the topic would be disagreeable.” Id. (internal quotation marks omitted).

However, in a letter dated March 15, 2019, Principal Foster informed Appellant that

she had reversed course and decided that “both of [] R.R.S.’s papers would be published”

4 in the fourth grade class’s essay booklet. J.A. 19. But by this point, Appellant, citing

concerns about R.R.S.’s privacy, no longer wanted the original essay to be included in the

essay booklet. Eventually, both of R.R.S.’s essays were removed from the essay booklet

at the request of Appellant.

B.

On March 20, 2019, Appellant filed the amended complaint 4 at issue against

Anderson Mill Elementary School, Spartanburg County School District #6 (the “School

District”), and Elizabeth Foster, individually and in her official capacity as principal 5

(collectively, “Appellees”). The amended complaint contains a federal constitutional

claim, brought pursuant to

, as well as claims brought under South

Carolina law. Specifically, the constitutional claim alleges that Principal Foster violated

R.R.S.’s First Amendment right to free speech “by forcing [] R.R.S. to change the topic of

[the] paper.” J.A. 20. As for the state law claims, the amended complaint alleges causes

of action for both intentional infliction of emotional distress and negligent infliction of

4 The original complaint and the amended complaint name the same defendants and allege identical causes of action. The primary difference between the two complaints is the amended complaint alleges that Principal Foster improperly communicated with Appellant after the filing of the original complaint. 5 The Supreme Court has explained that filing an action against a government official in her official capacity is merely “another way of pleading an action against [the] entity of which [the] officer is an agent,” and that “[s]uits against state officials in their official capacity therefore should be treated as suits against the State.” Hafer v. Melo,

(1991). Accordingly, we will refer to Appellant’s claim against the School District and Principal Foster in her official capacity as a claim against the School District.

5 emotional distress. Appellant seeks relief in the form of, inter alia, “actual damages,

punitive damages, declaratory and injunctive relief[,] and nominal damages.”

.

On April 3, 2019, Appellees filed a motion to dismiss most, but not all, of the

amended complaint. Appellees moved the district court to dismiss all claims against

Anderson Mill Elementary School, the constitutional claim brought against Principal

Foster in her individual capacity, Appellant’s claim for injunctive relief, and the state law

claims with respect to all named defendants.

On April 24, 2019, Appellant filed a motion for leave to file a second amended

complaint. According to Appellant, the proposed second amended complaint would not

name any new defendants or alter the causes of actions alleged in the first amended

complaint, but rather would “account[] for significant, relevant factual developments that

ha[d] occurred since the Amended Complaint was filed” and would be relevant to

Appellant’s state law claims. J.A. 75.

In an order issued on October 15, 2019, the district court dismissed Appellant’s

amended complaint in its entirety and denied as moot Appellant’s motion for leave to file

a second amended complaint. First, the district court granted Appellees’ motion to dismiss

all claims against Anderson Mill Elementary School because the school is not a legal entity

separate and distinct from the School District. Second, the district court granted, on

qualified immunity grounds, Appellees’ motion to dismiss the constitutional claim brought

against Principal Foster in her individual capacity. Third, the district court sua sponte

dismissed the constitutional claim brought against the School District because Appellant

failed to “allege[] any constitutional violation based on an official policy or custom.” J.A.

6 120. Fourth, the district court denied Appellant’s requests for declaratory and injunctive

relief, primarily because it found that Principal Foster did not violate R.R.S.’s

constitutional rights. Fifth, having already dismissed Appellant’s federal claims, the

district court declined to exercise supplemental jurisdiction over Appellant’s state law

claims, and dismissed those claims without prejudice. Sixth, the district court denied as

moot Appellant’s motion for leave to file a second amended complaint because the

proposed amendments pertained solely to Appellant’s state law claims, over which the

court had already declined to exercise supplemental jurisdiction.

Appellant filed the instant appeal on October 16, 2019. She challenges only two

parts of the district court’s October 15 order: (1) the grant of Appellees’ motion to dismiss

the constitutional claim against Principal Foster in her individual capacity; and (2) the sua

sponte dismissal of the constitutional claim brought against the School District. We reject

both of Appellant’s challenges and affirm the district court in full.

II.

We review a district court’s grant of a motion to dismiss de novo. See Lucero v.

Early,

(4th Cir. 2017). “To survive a motion to dismiss, a complaint

must contain sufficient factual matter, accepted as true, to state a claim to relief that is

plausible on its face.” Ashcroft v. Iqbal,

(2009) (internal quotation marks

omitted). At this stage of review, we must draw “all reasonable inferences in favor of”

Appellant, the plaintiff below. Carey v. Throwe,

(4th Cir. 2020).

7 III.

A.

Constitutional Claim Against Principal Foster in Her Individual Capacity

Appellant claims the district court erred by granting, on qualified immunity grounds,

Appellees’ motion to dismiss the constitutional claim against Principal Foster in her

individual capacity. Qualified immunity is a defense that “shields government officials

from personal liability when their conduct does not violate clearly established rights of

which a reasonable person would have known.” Brickey v. Hall,

(4th

Cir. 2016) (ellipsis and internal quotation marks omitted). In other words, “in gray areas,

where the law is unsettled or murky, qualified immunity affords protection to” government

officials who take “action[s] that [are] not clearly forbidden.” Occupy Columbia v. Haley,

(4th Cir. 2013). Government officials who are sued in their individual

capacities are protected under this doctrine “unless (1) the allegations underlying the claim,

if true, substantiate [a] violation of a federal statutory or constitutional right; and (2) this

violation was of a clearly established right of which a reasonable person would have

known.” Brickey,

(alteration in original) (internal quotation marks

omitted).

It is left to the discretion of federal district and appellate courts to decide “which of

the two prongs of the qualified immunity analysis should be addressed first in light of the

circumstances in the particular case at hand.” Pearson v. Callahan,

(2009). In this case, we will start with the first inquiry and need not proceed any further

8 because the allegations underlying Appellant’s amended complaint, even if true, do not

substantiate a violation of R.R.S.’s constitutional rights.

Our assessment of whether Principal Foster violated R.R.S.’s First Amendment

rights by initially refusing to include R.R.S.’s LGBTQ-themed essay in the fourth grade

class’s essay booklet is guided by Hazelwood School District v. Kuhlmeier,

(1988). 6 In that case, a group of high school students claimed their school district violated

their First Amendment rights by refusing to publish articles about divorce and teenage

pregnancy that the students had written for their school newspaper. See

at 263–64. The

Supreme Court held that no constitutional violation had occurred, and in the process

established the governing test for First Amendment cases stemming from school officials

restricting school-sponsored student speech. Pursuant to this test, school officials “do not

offend the First Amendment by exercising editorial control over the style and content of

student speech in school-sponsored expressive activities so long as their actions are

reasonably related to legitimate pedagogical concerns.”

.

This case falls neatly within the Hazelwood framework. The test articulated in

Hazelwood applies to “student speech that is disseminated under [the] auspices” of a school

-- i.e., speech that is contained in “school-sponsored publications, theatrical productions,

and other expressive activities that students, parents, and members of the public might

6 Appellant’s briefing repeatedly acknowledges Hazelwood’s controlling status. See, e.g., Appellant’s Br. 8 (describing Hazelwood as “the current legal standard”). Nonetheless, at oral argument, Appellant’s counsel inexplicably disavowed the application of Hazelwood.

9 reasonably perceive to bear the imprimatur of [a] school.” Hazelwood, 484 U.S. at 271–

72. It also applies to expressive activities that “may fairly be characterized as part of the

school curriculum” and “are supervised by faculty members and designed to impart

particular knowledge or skills to student participants.”

.

Here, the fourth grade class’s essay booklet satisfies both definitions of school-

sponsored student speech. To begin, it was school officials -- most notably, R.R.S.’s fourth

grade teacher -- who decided to compile the fourth grade students’ essays into a booklet

and send copies of that booklet home with the students for their families to read. It would

be reasonable, then, for the students’ families to view the essay booklet as bearing the

imprimatur of Anderson Mill Elementary School and the School District. Additionally,

R.R.S. wrote the LGBTQ-themed essay to society pursuant to a school assignment that was

supervised by both the fourth grade teacher and Principal Foster. Clearly, the essays were

part of the Anderson Mill Elementary School fourth grade curriculum.

The question, then, is whether Principal Foster’s regulation of R.R.S.’s speech was

“reasonably related to legitimate pedagogical concerns.” Hazelwood,

. We

conclude that it was, because, as Appellant acknowledges in the amended complaint,

Principal Foster’s initial refusal to include R.R.S.’s essay in the fourth grade class’s essay

booklet was actuated at least in part by her concern that the essay’s topic was “not age-

appropriate” for fourth graders. J.A. 18.

Given that a copy of the essay booklet was to be placed in the classroom for students

to read and discuss, Principal Foster’s concern about the age-appropriateness of the essays

contained in the fourth grade class’s essay booklet was pertinent. Furthermore, while

10 reasonable minds could debate the pedagogical efficacy of shielding fourth graders from

topics like sexuality and gender identity, it cannot be denied that maintaining the age-

appropriateness of school-sponsored expressive activities is a pedagogical concern that

passes muster under Hazelwood. Indeed, Hazelwood itself elucidates that schools “must

be able to take into account the emotional maturity of the intended audience in determining

whether to disseminate student speech on potentially sensitive topics.”

.

Similarly, this court has recognized that “it is not a court’s obligation to determine which

messages of social or moral values are appropriate in a classroom. Instead, it is the school

board, whose responsibility includes the well-being of the students, that must make such

determinations.” Lee v. York Cnty. Sch. Div.,

, 700 (4th Cir. 2007).

Appellant submits that we should reject the district court’s conclusion that Principal

Foster did not violate R.R.S.’s constitutional rights because “[t]he district court provided

no adequate explanation for holding that R.R.S.’s essay had no valid legitimate educational

purpose.” Appellant’s Br. 10. This argument, like most of the arguments advanced by

Appellant, completely misses the point. As noted, under Hazelwood, school officials may

constitutionally restrict school-sponsored student speech -- even student speech that serves

a “valid legitimate educational purpose” -- so long as the restriction is reasonably related

to legitimate pedagogical concerns. Therefore, Appellant’s argument about any purported

educational purpose served by R.R.S.’s LGBTQ-themed essay is irrelevant.

For these reasons, Appellant has not plausibly established that Principal Foster

infringed upon R.R.S.’s constitutional rights. Because there was no constitutional violation

in the first instance, we affirm the district court’s holding that Principal Foster was entitled

11 to qualified immunity without needing to consider the “clearly established” prong of the

qualified immunity analysis.

Appellant also argues that Principal Foster’s initial refusal to include the LGBTQ-

themed essay in the fourth grade class’s essay booklet was impermissible “viewpoint-based

discrimination.” Appellant’s Br. 10. Viewpoint-based discrimination occurs when a

government official “targets not subject matter, but particular views taken by speakers on

a subject.” Rosenberger v. Rector & Visitors of Univ. of Va.,

(1995).

Neither the Supreme Court nor this court has decided whether restrictions on school-

sponsored student speech must be viewpoint neutral under Hazelwood, and other circuits

are split on this question. Compare, e.g., Peck ex rel. Peck v. Baldwinsville Cent. Sch.

Dist.,

, 633 (2d Cir. 2005) (declining to abandon the requirement of viewpoint

neutrality, “even in the limited context of school-sponsored student speech,” absent “clear

direction from the Supreme Court”), with Fleming v. Jefferson Cnty. Sch. Dist. R-1,

, 926 (10th Cir. 2002) (“[W]e conclude that Hazelwood allows educators to make

viewpoint-based decisions about school-sponsored speech.”).

We need not pick a side in this debate today. Even assuming, without deciding, that

school officials’ restrictions on school-sponsored student speech must be viewpoint

neutral, Appellant has not plausibly alleged that Principal Foster’s restriction on R.R.S.’s

speech violated that principle. None of the justifications that Appellant attributes to

Principal Foster’s initial refusal to include R.R.S.’s LGBTQ-themed essay in the fourth

grade class’s essay booklet -- i.e., her concern about the age-appropriateness of the essay

and her fear that the essay’s subject matter would anger the families of fourth grade

12 students -- suggest that the restriction had anything to do with the content of R.R.S.’s essay.

On the contrary, these justifications illustrate that Principal Foster was averse to the subject

of LGBTQ rights appearing in the essay booklet.

B.

Constitutional Claim Against the School District

Appellant also claims the district court erred by sua sponte dismissing her

constitutional claim against the School District. Appellant argues that the district court’s

sua sponte dismissal runs afoul of Federal Rule of Civil Procedure 41, which, she

proclaims, “is the sole Rule governing dismissal of actions in a federal district court.”

Appellant’s Br. 1 n.3, 5 n.18. That contention is incorrect. First of all, Rule 12(b)(6), not

Rule 41, is the applicable Federal Rule of Civil Procedure in this case. A complaint may

be dismissed pursuant to Rule 12(b)(6) if it “fail[s] to state a claim upon which relief can

be granted.”

And, as our sister circuits have recognized, there are instances in which “sua sponte

dismissals of complaints under Rule 12(b)(6) are appropriate.” Chute v. Walker,

(1st Cir. 2002) (italics supplied) (internal ellipsis omitted); see also, e.g., Hager

v. DBG Partners, Inc.,

(5th Cir. 2018); Smithrud v. City of St. Paul,

(8th Cir. 2014); 5B Charles Alan Wright & Arthur R. Miller, Federal Practice

and Procedure § 1357 (3d ed. Oct. 2020 update) (“Even if a party does not make a formal

motion under Rule 12(b)(6), the district court judge on his or her own initiative may note

the inadequacy of the complaint and dismiss it for failure to state a claim . . . .”). This

procedure is the appropriate route. See, e.g., Jensen v. Conrad,

, 99–100

13 (D.S.C. 1983), aff’d,

(4th Cir. 1984), abrogated on other grounds by

DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs.,

(1989).

Importantly, district courts may only exercise their authority to sua sponte dismiss

inadequate complaints if “the procedure employed is fair to the parties.” 5B Wright &

Miller, Federal Practice and Procedure § 1357. Namely, the party whose complaint stands

to be dismissed must be “afforded notice and an opportunity to amend the complaint or

otherwise respond.” Chute,

; see also Hager,

(“[F]airness

in this context requires both notice of the court’s intention and an opportunity to respond.”

(alteration in original)).

Here, the district court did not comply with these requirements before sua sponte

dismissing Appellant’s constitutional claim against the School District. Nonetheless, the

district court’s failure to accord Appellant these procedural protections does not necessitate

reversal in this case because Appellant was not prejudiced as a result. See Chute,

(explaining that not “every sua sponte dismissal entered without prior notice to the

plaintiff automatically must be reversed” (italics supplied)). To state a viable constitutional

claim against the School District, Appellant must establish that Principal Foster infringed

upon R.R.S.’s First Amendment rights by initially refusing to include R.R.S.’s LGBTQ-

themed essay in the fourth grade class’s essay booklet. Even without notice of the district

court’s intent to sua sponte dismiss her constitutional claim against the School District,

Appellant had every incentive to argue this point fully, as establishing a violation of

R.R.S.’s constitutional rights is also required to state a viable constitutional claim against

Principal Foster in her individual capacity. Indeed, a bulk of Appellant’s brief is dedicated

14 to this very purpose. See Appellant’s Br. 6–15 (section of brief labeled “Principal Foster

violated R.R.S.’s clearly established First Amendment free speech rights”). As a result,

Appellant cannot plausibly demonstrate that a constitutional violation occurred. Advance

notice of the district court’s intent to sua sponte dismiss her constitutional claim against

the School District would not have altered this reality.

IV.

For the reasons set forth herein, the judgment of the district court is

AFFIRMED.

15