PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 20-2334

JONATHAN F. STARBUCK,

Plaintiff – Appellant,

v.

WILLIAMSBURG JAMES CITY COUNTY SCHOOL BOARD,

Defendant – Appellee.

Appeal from the United States District Court for the Eastern District of Virginia at Newport News. Mark S. Davis, Chief District Judge. (4:18-cv-00063-MSD-DEM)

Argued: January 27, 2022 Decided: March 15, 2022

Before GREGORY, Chief Judge, and MOTZ and WYNN, Circuit Judges.

Affirmed in part and reversed in part by published opinion. Judge Motz wrote the opinion, in which Chief Judge Gregory and Judge Wynn joined.

ARGUED: Benjamin Lerman, Jacob Larson, UNIVERSITY OF VIRGINIA SCHOOL OF LAW, Charlottesville, Virginia, for Appellant. Jeremy David Capps, HARMAN CLAYTOR CORRIGAN & WELLMAN, Glen Allen, Virginia, for Appellee. ON BRIEF: J. Scott Ballenger, Gregory Eng, Third Year Law Student, Appellate Litigation Clinic, UNIVERSITY OF VIRGINIA SCHOOL OF LAW, Charlottesville, Virginia, for Appellant. Blaire H. O’Brien, HARMAN CLAYTON CORRIGAN & WELLMAN, Glen Allen, Virginia, for Appellee. DIANA GRIBBON MOTZ, Circuit Judge:

Jonathan Starbuck brought this

action against the Williamsburg

James City County School Board (the “School Board”) asserting that his public high school

suspended him in violation of the First, Fifth, and Fourteenth Amendments. The district

court held that Monell v. Department of Social Services,

(1978), barred the

suit and so dismissed Starbuck’s complaint for failure to state a claim on which relief could

be granted. Because the School Board acted as the final policymaking authority in

approving Starbuck’s suspension, Monell does not bar the suit. Moreover, Starbuck’s

complaint plausibly alleges a First Amendment claim. Accordingly, we must reverse those

portions of the district court’s judgment holding to the contrary. But the district court

properly held that the complaint alleges no plausible Fifth or Fourteenth Amendment claim,

and so we affirm that portion of its judgment.

I.

On February 15, 2018, the day after the horrific mass shooting at Marjory Stoneman

Douglas High School in Parkland, Florida, Jonathan Starbuck engaged in a conversation

with his classmates about the shooting. Starbuck alleges that “[n]o student within the

conversation made any threat” and that the conversation was factual. 1 Starbuck “made

remarks questioning the intent of the shooter, stating that the shooter would be capable of

more harm had he wanted to, noting [the shooter’s] possession of explosives and

considering the time the shooter was left alone within the building unchallenged by local

1 Because the district court dismissed this case on a Rule 12(b)(6) motion, we relate the facts as set forth in Starbuck’s amended complaint. 2 law enforcement.” A teacher overheard the conversation and reported it to the local police

and school administration.

As a result, the school removed Starbuck from classes for the remainder of the

school day. During that time, which Starbuck refers to as an “in-school suspension,” he

alleges that various school officials “interrogat[ed]” him. The “[s]chool [p]olice officer .

. . investigated and cleared the [teacher’s] report as unfounded” because the officer

concluded “there was no threat made and no criminal offense . . . occurred.”

That evening, an assistant principal informed Starbuck’s parent that Starbuck faced

a two-day out-of-school suspension. Starbuck maintains that concerns for his “own safety”

constituted the reason given for the in-school suspension, and unspecified “[t]hreats”

constituted the reason given for the out-of-school suspension. The following week,

Starbuck, along with his brother and mother, attended a meeting with various school

officials including the assistant principal and a representative from the School Board.

Following this meeting and after receiving a formal notice of the out-of-school

suspension, Starbuck submitted a written notice of appeal to the School Board. Three

months later, in May 2018, after considering Starbuck’s arguments, the School Board

“found the suspension was proper” stating the reason for the suspension as “[c]lassroom

[d]isturbance.”

In Starbuck’s pro se amended complaint, he asserts claims against the School Board

pursuant to

. He alleges that the School Board violated his right to free

speech under the First Amendment and his due process rights under the Fifth and

Fourteenth Amendments. The district court granted the School Board’s motion to dismiss

3 due to a purported lack of an identifiable “policy” sufficient to give rise to liability under

Monell. Starbuck then filed this appeal, principally arguing that the district court erred in

determining that only express preexisting policies could give rise to the School Board’s

liability under Monell. 2

We review a district court’s dismissal of a complaint for failure to state a claim de

novo. In conducting this review, we “accept the complaint’s factual allegations as true and

draw all reasonable inferences in favor of the plaintiff[].” Feminist Majority Found. v.

Hurley,

(4th Cir. 2018). We must “liberally construe[]” pro se

complaints, “however inartfully pleaded.” Erickson v. Pardus,

(2007) (per

curiam) (quoting Estelle v. Gamble,

(1976)).

II.

A.

For the purpose of determining liability under Monell, local school boards in

Virginia are treated as municipalities. See Riddick v. Sch. Bd. of Portsmouth,

, 522 n.3 (4th Cir. 2000). Monell permits suits against a municipality for a federal

constitutional deprivation only when the municipality undertook the allegedly

unconstitutional action pursuant to an “official policy” or “custom.” 436 U.S. at 690–91.

2 Our thanks to the student participants in the University of Virginia Appellate Litigation Clinic, under the leadership of Professor J. Scott Ballenger, who have provided Starbuck excellent representation on appeal. 4 The district court held that Monell limited municipal liability to occasions when the

municipality’s express policy allegedly violated a constitutional right. Although that may

be the most common basis for liability under Monell, it is not the only one. Rather,

[a] policy or custom for which a municipality may be held liable can arise in four ways: (1) through an express policy, such as a written ordinance or regulation; (2) through the decisions of a person with final policymaking authority; (3) through an omission, such as a failure to properly train officers, that “manifest[s] deliberate indifference to the rights of citizens”; or (4) through a practice that is so “persistent and widespread” as to constitute a “custom or usage with the force of law.”

Lytle v. Doyle,

(4th Cir. 2003) (alteration in original) (quoting Carter v.

Morris,

, 217–18 (4th Cir. 1999) (first citing Monell,

; then

citing Pembaur v. City of Cincinnati,

, 483–84 (1986); then citing City of

Canton v. Harris,

, 388–89 (1989); and then quoting Monell,

)); see also Los Angeles Cnty., v. Humphries,

, 36 (2010).

In Monell itself, the Supreme Court explained that “[l]ocal governing bodies . . .

can be sued directly under § 1983 . . . where . . . the action that is alleged to be

unconstitutional implements or executes a . . . decision officially adopted and promulgated

by that body’s officers.”

(footnote omitted). Even “a single decision taken

by the highest officials responsible for setting policy in that area of the government’s

business” can render a municipality subject to suit under Monell. City of St. Louis v.

Praprotnik,

(1988); see also Pembaur,

(“[W]here action

is directed by those who establish governmental policy, the municipality is equally

responsible whether that action is to be taken only once or to be taken repeatedly.”).

5 “[W]hether a particular official has final policymaking authority is a question of

state law.” Jett v. Dallas Indep. Sch. Dist.,

(1989) (cleaned up).

“Virginia vests control of the public school system in the local school boards” and

therefore, “the [School] Board retain[s] the final ‘say-so’” over student suspensions,

including short-term suspensions. Riddick, 238 F.3d at 523–24. 3 Thus, under Virginia

law, the School Board has final policymaking authority over short-term suspensions. This

means that the School Board’s actions regarding student suspensions can serve as

“policies” for the purpose of municipal liability under Monell.

Moreover, when a final policymaker has the authority to review the decision of a

subordinate, its approval of that allegedly unconstitutional decision can also give rise to

liability under Section 1983. See Hall v. Marion Sch. Dist. No. 2,

(4th

Cir. 1994) (quoting Praprotnik,

). Under this theory of liability, if the

School Board ratified the suspension of a student by subordinates, the School Board would

be liable for any deprivation of constitutional rights caused by that suspension.

Imposing liability on a municipality for its ratification of the acts of subordinates

accords with the purpose of municipal liability under Section 1983. That is, it holds

municipalities accountable for the “action[s] for which the municipality is actually

3 In Virginia, short-term suspensions are appealable to the School Board unless School Board regulations provide to the contrary.

. They do not do so here. In Riddick, we held that the School Board had not delegated final policymaking authority over employment decisions to the superintendent or other school officials. Rather, “all final personnel decisions in the . . . school system . . . are subject to final review by the Board.” 238 F.3d at 523 (emphasis omitted). For this reason, in Riddick, as here, it was the decisions of the School Board (not those of the superintendent or the principal) that could serve as a proper source of Monell liability. Id at 523–24. 6 responsible.” Riddick, 238 F.3d at 523 (quoting Pembaur,

); see also Love-

Lane v. Martin,

(4th Cir. 2004) (“[T]he Board is only liable for acts that

it has ‘officially sanctioned or ordered.’” (quoting Pembaur,

)).

Thus, ratification liability critically differs from respondeat superior liability, the

latter of which is impermissible under Monell. See Jett,

. Ratification

liability does not hold a municipality liable for the actions of subordinate officials; rather,

it holds the municipality liable for its own decision to uphold the actions of subordinates.

With these principles in mind, we turn to their application to the facts of the case at

hand.

B.

The School Board concedes, as it must, that an affirmative decision by a final

policymaker can serve as a “policy” under Monell. Br. of Appellee at 12. But the Board

asserts three arguments in support of its view that Monell bars Starbuck’s claim against the

School Board.

First, the Board contends that Starbuck failed to raise this theory of municipal

liability in his complaint and that he cannot do so for the first time on appeal.

at 10–

11. But we “must not dismiss [a civil rights] complaint, unless it appears to a certainty that

the plaintiff would not be entitled to relief under any legal theory which might plausibly be

suggested by the facts alleged.” Edwards v. City of Goldsboro,

(4th Cir.

1999) (emphasis, internal quotation marks, and citation omitted); see also Booker v. S.C.

Dep’t of Corr.,

, 540 n.4 (4th Cir. 2017) (explaining that we “liberally

construe[] complaints even where pro se plaintiffs do not reference any source of law”).

7 Examination of Starbuck’s pro se complaint reveals that he sufficiently set forth the facts

that provided the basis for the legal theory he asserts against the School Board. See Am.

Compl. ¶ 1 (“The School suspended Jonathan with approval from the School Board.”); id.

¶ 28 (“When the Defendant [School Board] responded to the written appeal in May of

2018, the Defendant[] [School Board] found the suspension was proper. . . .”).

Second, the School Board argues that Starbuck cannot rely on the Board’s

ratification of subordinate officials’ conduct to hold the Board liable here because the

Board “did not simply ‘ratify’ the actions of the school employees who suspended” him,

rather the School Board’s decision to approve the suspension “was the independent act of

a policymaker.” Br. of Appellee at 13. This argument gains the Board nothing because

just as ratification of subordinate officials’ actions is one means of holding a final

policymaker liable under Monell, the independent act of the final policymaker provides

another. See Hall,

(holding that the Board’s ratification of a subordinate’s

unconstitutional actions as well as its own independent decision to fire Hall were both

reasons “the District [could] be held liable for the act of the Board in dismissing Hall.”).

If, as the School Board seems to contend, the Board did not ratify the subordinate school

officials’ conduct but acted independently, then this independent act was still that of the

final policymaking authority. Whether it ratified the suspension or independently imposed

it, the Board’s act was sufficient to hold the School Board liable for constitutional

violations resulting from that act.

The School Board’s third argument, that its act ratifying Starbuck’s suspension does

not constitute “the moving force” behind the constitutional violation, fares no better. Br.

8 of Appellee at 14. Starbuck has sufficiently alleged that the School Board’s approval was

in fact the “moving force” behind the constitutional violation. Riddick, 238 F.3d at 524

(quoting Bd. of Cnty. Comm’rs v. Brown,

(1997)). Contrary to the

School Board’s argument, being the “moving force” does not necessitate that a plaintiff

allege that the Board have knowledge of, or involvement in, the alleged constitutional

violation from the outset. See Br. of Appellee at 14–15. Of course, sometimes officials

with final policymaking authority participate in the initial constitutional violation

perpetrated by subordinates. See, e.g., Pembaur,

; Hall,

.

But the entire concept of ratification liability presupposes that the initial complained-of

conduct precedes involvement by the final policymaking authority. Accordingly, neither

the Supreme Court nor this Court has ever held that initial involvement is required to hold

officials with final policymaking authority liable as the “moving force” for ratification of

the decisions of subordinates. 4

4 Moreover, contrary to the Board’s suggestion, the final policymaker’s potential liability does not hinge upon whether it had contemporary knowledge of subordinates’ allegedly unconstitutional decision. While contemporary knowledge of the initial constitutional violation may support holding a final policymaker liable under Monell, it is not necessary. See Hall,

. A municipality can be held liable under the ratification theory regardless of any contemporary knowledge or active participation in the initial unconstitutional actions of subordinate officials. See Praprotnik,

(explaining what municipal liability based on ratification requires with no suggestion that contemporary knowledge is necessary — “when a subordinate's decision is subject to review by the municipality's authorized policymakers, they have retained the authority to measure the official's conduct for conformance with their policies. If the authorized policymakers approve a subordinate's decision and the basis for it, their ratification would be chargeable to the municipality because their decision is final.”). 9 Here it is clear that the School Board’s act did constitute the moving force behind

the asserted constitutional violation — the alleged punishment of protected speech. For

Starbuck alleges that only because the School Board upheld the suspension does it remain

on his permanent record. This is a result that, as the Supreme Court has recognized, “could

seriously damage the students’ standing with their fellow pupils and their teachers as well

as interfere with later opportunities for higher education and employment.” Goss v. Lopez,

(1975). Accordingly, because Starbuck alleges facts supporting his

contention that the School Board ratified his suspension for uttering protected speech, the

Schools Board’s action was indeed the “moving force” behind the constitutional violation,

just as Starbuck alleged in his complaint. See Am. Compl. ¶¶ 34, 39. 5

The School Board’s approval of a suspension allegedly imposed to punish assertedly

protected speech is a decision of a body with final policymaking authority. Monell teaches

that such a decision gives rise to the School Board’s potential liability under

.

III.

We turn to the sufficiency of Starbuck’s allegations of constitutional violations.

5 At oral argument, counsel for the School Board conceded that only the School Board (or its representative) could remove the suspension from Starbuck’s permanent record. Oral Argument at 19:57, Starbuck v. Williamsburg James City Cnty. Sch. Bd. (4th Cir. Jan. 27, 2022) (No. 20-2334), https://www.ca4.uscourts.gov/OAarchive/mp3/20- 2334-20220127.mp3. In doing so, counsel acknowledged that the alleged ongoing constitutional violation lies entirely within the School Board’s prerogative to remedy. 10 A.

In interpreting the First Amendment, the Supreme Court has long held that students

do not “shed their constitutional rights to freedom of speech or expression at the

schoolhouse gate.” Tinker v. Des Moines Indep. Cmty. Sch. Dist.,

(1969). Student speech falls within the protection of the First Amendment unless it

“materially disrupts classwork or involves substantial disorder or invasion of the rights of

others,”

, or (at least as applied to on-campus speech) is “indecent,” “lewd,” or

“vulgar,” “promotes illegal drug use,” or is communicated through a school-sponsored

activity, Mahanoy Area Sch. Dist. v. B.L. ex rel. Levy,

, 2045 (2021)

(internal quotation marks and citations omitted). Starbuck’s speech does not fall within

any of these categories.

According to his complaint, Starbuck only engaged in a factual conversation with

his peers about a current event that is uniquely salient to the lives of American teenagers,

a school shooting. Schools cannot silence such student speech on the basis that it

communicates controversial or upsetting ideas. To do so would be incompatible with the

very purpose of public education. Cf. W. Va. State Bd. of Educ. v. Barnette,

(1943) (“That [boards of education] are educating the young for citizenship is reason

for scrupulous protection of Constitutional freedoms of the individual, if we are not to

strangle the free mind at its source. . . .”); Tinker,

(noting that “personal

intercommunication among the students” is “an important part of the educational process”).

The School Board relies on cases in which courts have “agreed that language

reasonably perceived as threatening school violence is not constitutionally protected.” Br.

11 of Appellee at 22. We do not disagree. But Starbuck’s remarks, as described in his

complaint (which we must view in the light most favorable to him), were non-threatening

statements about the tragedy that any student could have uttered in response to the news.

For “school officials to justify prohibition of a particular expression of opinion, [they] must

be able to show that [their] action was caused by something more than a mere desire to

avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint.”

Mahanoy, 141 S. Ct. at 2048 (quoting Tinker,

).

The First Amendment does not permit schools to prohibit students from engaging

in the factual, nonthreatening speech alleged here. Starbuck’s amended complaint states a

First Amendment claim against the School Board.

B.

While Starbuck’s First Amendment claim survives the School Board’s motion to

dismiss, his Fifth and Fourteenth Amendment claims do not, as the district court correctly

held.

i.

The Fifth Amendment’s Due Process Clause does not apply to municipalities, but

only to federal actors. Moreover, to the extent that Starbuck seeks to invoke the protections

of the Fifth Amendment’s Self-Incrimination Clause, he has not alleged that school

officials “compelled [him] in those proceedings to furnish testimonial evidence that might

incriminate [him] in later criminal proceedings.” Baxter v. Palmigiano,

(1976). And to the extent Starbuck invokes the Fifth Amendment’s Double Jeopardy

Clause, that clause applies to criminal cases, not school discipline proceedings. See

12 Starbuck v. Williamsburg James City Cnty. Sch. Bd., No. 18 Civ. 63,

,

at *8–9 (E.D. Va. Nov. 20, 2020).

ii.

Although Starbuck alleged several Fourteenth Amendment due process violations

in the district court, he pursues only one on appeal. He argues that the School Board’s shift

in its description of the reason for his suspension (from self-protection and threats to the

prevention of classroom disturbance) violated his Fourteenth Amendment right to due

process. Br. of Appellant at 31–34.

We disagree. To be sure, accusing a student of one act and then suspending him

because he committed another could well violate the Due Process Clause if the student

never had any opportunity to respond to the ultimate reason for the suspension. Cf. Norris

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

, 26–28 (1st Cir. 2020) (holding that

school officials cannot rely on post-hoc rationalizations asserted only after the start of

litigation to defeat a student’s First Amendment claim). But that is not what happened

here. The School Board did not even attempt to change the factual basis for the suspension

— it just used slightly different words to describe that basis. There is no unconstitutional

bait-and-switch here because both parties always understood what particular speech

constituted the basis for Starbuck’s short-term suspension. Starbuck presents no case

holding that in these circumstances merely changing the description of the reason for

suspension constitutes a due process violation, and we have found none.

The School Board never mischaracterized the “basis of the accusation,” Goss,

, i.e., the facts underlying the suspension. Moreover, just as Goss requires, the

13 Board gave Starbuck “an opportunity to explain his version of the facts” and “to

characterize his conduct and put it in what he deem[ed] the proper context.”

. Starbuck’s arguments to the contrary incorrectly blur the line between labels and

substance. Here, the record makes clear that Starbuck had multiple opportunities “to

characterize his conduct” throughout the process of disputing his suspension and appealing

it to the School Board. Id.; Bd. of Curators of Univ. of Mo. v. Horowitz,

, 85–

86 (1978) (quoting Goss,

). From the beginning, Starbuck had notice of

the facts giving rise to his discipline and an opportunity to respond — exactly what due

process requires.

Courts, for good reason, impose minimal due process requirements on the kinds of

routine school discipline matters that school administrators confront every day. See, e.g.,

Wofford v. Evans,

, 323–24 (4th Cir. 2004). The only constitutional

infirmity alleged in Starbuck’s complaint is the punishment of protected speech itself.

IV.

For the foregoing reasons, we reverse the district court’s dismissal of Starbuck’s

First Amendment claim and affirm its dismissal of his Fifth and Fourteenth Amendment

claims. The judgment of the district court is

AFFIRMED IN PART AND REVERSED IN PART.

14