United States District Court, D. Kansas
MEMORANDUM AND ORDER
L. TEETER UNITED STATES DISTRICT JUDGE.
Gene Hirt and Eric Clark filed this case under 42 U.S.C.
§ 1983 alleging constitutional violations under the
First, Fifth, and Fourteenth Amendments, along with state
claims under the Kansas Open Meetings Act
(“KOMA”) and Kansas Open Records Act
(“KORA”). The defendants in the case are the
Unified School District 287 (“USD 287”) and
Superintendent Jerry Turner, named in his individual
capacity. Doc. 49. The allegations stem from a July 13, 2015
letter to Hirt that banned him from school district property.
sides seek summary judgment-Plaintiffs on some claims and
Defendants on all. Doc. 142; Doc. 147. Factual disputes
prevent summary judgment on the issue of whether the
categorical ban of Hirt violated his First Amendment rights.
But because the law on the First Amendment issue is not
clearly established, Turner is entitled to qualified immunity
on all claims against him individually. Defendants are also
entitled to summary judgment on Hirt's due-process claim,
Clark's First Amendment claim, and on Plaintiffs'
claims under both KOMA and KORA.
School Board Meeting Exclusion
holds school board meetings once a month to address school
matters. At board meetings, members of the public are allowed
three minutes to address the board during the “patron
forum.” Doc. 149 at 3-4; Doc. 154 at 3.
Hirt nor Clark have any children or family members who attend
USD 287 schools. Doc. 155 at 2-3. Defendants assert that
neither Hirt nor Clark do any business with USD 287, but
Plaintiffs dispute that, claiming that attending school board
meetings, submitting open records requests during office
hours, and attending sporting events constitute lawful
business. Doc. 149 at 3; Doc. 155 at 2-3; Doc. 156 at 1.
February 2015 through June 2015, witnesses observed Hirt
driving through school parking lots during school hours at
least sixteen times, though no one from the school ever
advised him that doing so was a violation of any school
district policy. Doc. 154 at 3; Doc. 149 at 3; Doc. 155 at
12. On March 25, 2015, school staff told Turner that Hirt had
come to a school during school hours with a photographer to
take pictures. When staff denied him entry, they reported he
became angry. Doc. 154 at 3; Doc. 156 at 1-2. On April 2,
2015, school staff told Turner that Hirt again tried to enter
a school building during school hours but was denied access.
School staff reported that Hirt made them afraid for their
safety. Doc. 149 at 3; Doc. 155 at 3; Doc. 154 at 3; Doc. 156
the June 8, 2015 school board meeting, Hirt called Turner a
“dork.” Doc. 149 at 4; Doc. 155 at 4. Hirt also
called board members names while in the audience at school
board meetings, including calling board members “sons
of bitches.” Doc. 149 at 4. Hirt also spoke up outside
the context of the patron forum without permission and was
reprimanded by the school board president. Doc. 149 at 4. But
USD 287 never restricted or reprimanded Hirt for any of his
comments during the patron forum. Doc. 154 at 3; Doc. 149 at
July 2015, Hirt was never asked to leave any school premises
or any of the school board meetings he attended
(approximately 40 meetings between 2012 and 2015). Doc. 155
at 9-10. Hirt also observed numerous people at numerous
school board meetings talking outside of the patron forum,
including commenting and mumbling, without being reprimanded.
Doc. 155 at 10.
July 13, 2015, Turner, after consultation with school
district attorneys, and pursuant to his authority under
district policies KGDA and KGD, sent a letter to Hirt stating
that he was no longer allowed on USD 287 property. Doc. 143
at 1-2; Doc. 154 at 2; Doc. 149 at 2, 4. Those policies give
the superintendent authority to deny access to people with no
lawful business with a school or those who are disruptive or
disturbing towards normal educational functions. Doc. 154 at
3; Doc. 149 at 4-5.
14, 2017-after this case was filed-Defendants notified Hirt
that he was no longer excluded from entering USD 287 property
to attend board meetings or public events. Doc. 154 at
6. The parties dispute why Defendants
banned Hirt from school property. Defendants claim it was
because of Hirt's increasingly rude and disruptive
behavior and comments at school board meetings, his numerous
unauthorized trips onto school property that made school
staff uncomfortable, and his “threatening”
behavior towards Turner following the June 8, 2015 school
board meeting. Doc. 154 at 3; Doc. 149 at 4. Hirt contends
that those reasons are a “ruse” and that it was
because he called board members “SOBs.” Doc. 155
at 4-6; Doc. 156 at 2-4. Between July 13, 2015 (the date of
the exclusion letter), and June 14, 2017 (when Hirt's
exclusion was lifted), there were approximately twenty-four
USD 287 school board meetings. Doc. 143 at 1. Hirt would have
attended all USD 287 sporting events during that time, but
for the July 13 exclusion letter. Doc. 155 at 9.
Additionally, on August 19, 2015, Hirt and Clark attended an
Open House event at Williamsburg Elementary School. A
sheriff's deputy asked Hirt to leave, which he
did. Doc. 155 at 9; Doc. 159 at 2.
attended and spoke at school board meetings on April 13,
2015, May 11, 2015, and August 12, 2015. Doc. 149 at 7; Doc.
155 at 11; Doc.159 at 3. Specifically, Clark spoke during the
patron forum at the August 12, 2015 meeting and used the
terms “ninnies” and “nincompoops, ”
though the parties dispute whether Clark was referring to
school officials or whether he was just speaking in
hypothetical terms. Doc. 149 at 7; Doc. 155 at 8. Regardless,
Clark has never been specifically excluded from any school
district property or had any action taken against him by USD
287. Doc. 149 at 7. Clark claims he has self-censored himself
since Hirt was excluded out of fear that the same action
would be taken against him. Doc. 155 at 11.
Kansas Open Records Act Requests
sent a letter to Turner, who is custodian of records for USD
287, on July 21, 2015. The letter was in response to the July
13 exclusion letter, but the parties dispute whether the July
21 letter was also a KORA request requiring a response. Doc.
143 at 1; Doc. 154 at 2, 4; Doc. 156 at 4-5; Doc. 149 at 5;
Doc. 155 at 6-7. Specifically, the July 21 letter from Hirt
largely addresses the July 13 exclusion letter and asks for
clarifications about it. In addition to asking Turner to
clarify and define certain words used in the July 13
exclusion letter and to cite to the evidence relied on to
exclude Hirt, Hirt also asked Turner to “please provide
the policy and/or procedure which was used for determining
sanctions or penalties and when they are to be applied by the
district.” Doc. 149-17 at 3. The parties dispute
whether this language constitutes a KORA request. Doc. 154 at
4; Doc. 156 at 4.
separately sent two open records requests that are relevant
to this case. He sent the first on July 21, 2015, and it
requested records “indicating any type of disciplinary
action concerning Gene Hirt, ” and “containing
any reference to Gene Hirt in official memoranda of the
District Superintendent.” Doc. 154 at 4. Defendants
denied the request, citing a KORA exemption. Doc. 154 at 4;
Doc. 149 at 6. Clark disputed the exemption and filed a
lawsuit in Franklin County District Court, which upheld the
claimed exemption as to the July 13 exclusion letter to Hirt.
Doc. 154 at 4; Doc. 149 at 6. The Kansas Court of Appeals
later reversed that decision and ruled that the July 13
exclusion letter to Hirt should be disclosed under KORA. Doc.
154 at 5; Doc. 149 at 6. USD 287 then provided a copy of the
July 13 exclusion letter to Clark in November 2018. Doc. 154
at 5; Doc. 149 at 7.
March 24, 2017, Clark made another KORA request for
“any correspondence, ” “any communication,
” or any record constituting a “notice of any
action, policy or determination relating to any regulatory,
supervisory or enforcement responsibility of USD 287.”
Doc. 154 at 5; Doc. 143 at 1; Doc. 149 at 7. Turner and Clark
wrote back-and-forth attempting to clarify Clark's
request. Doc. 154 at 5; Doc. 149 at 7-8. Turner eventually
informed Clark that there were no other responsive documents,
other than the July 13 exclusion letter to Hirt-which, at
that time, had been ruled exempt under KORA by the Franklin
County District Court. Doc. 154 at 4-6; Doc. 149 at
8. Clark acknowledged this, stating that
the “obligation concerning my request has been
discharged except concerning that
one letter . . . .” Doc. 154 at 6; Doc. 149 at 8
(emphasis in original).
parties now move for summary judgment on some or all claims.
Doc. 142; Doc. 147.
judgment is appropriate if “the record, including
depositions, documents, . . . affidavits or declarations,
stipulations . . ., admissions, interrogatory answers, or
other materials” establishes that there is “no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed.R.Civ.P.
56; see also Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 247 (1986). The moving party bears the initial
burden of establishing the absence of a genuine issue of
fact. Celotex v. Catrett, 477 U.S. 317, 323 (1986).
The burden then shifts to the nonmovant to demonstrate that
genuine issues remain for trial. Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986).
To carry this burden, the nonmovant “may not rely
merely on . . . its own pleadings.” Nahno-Lopez v.
Houser, 625 F.3d 1279, 1283 (10th Cir. 2010) (internal
quotations and citations omitted). “Rather, it must
come forward with facts supported by competent
evidence.” Id. The inquiry turns on
“whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is
so one-sided that one party must prevail as a matter of
law.” Liberty Lobby, 477 U.S. at 251-52. In
applying this standard, courts must view the evidence and all
reasonable inferences from it in the light most favorable to
the nonmovant. Matsushita, 475 U.S. at 587.
preliminary matter, the Court notes that the parties have
famed the issues in their dueling summary-judgment motions in
a way that fails to clearly track the Third Amended Complaint
or the Pretrial Order. This has made resolution of these
motions considerably more difficult than it needed
seek partial summary judgment on five claims:
1. A statutory violation of KOMA as to Hirt (Count III).
2. A statutory violation of KORA as to Hirt (Count IV).
3. A statutory violation of KORA as to Clark (Count VII).
4. A challenge to the constitutionality of USD 287 policy
KGDA (Count I).
5. Retaliation for protected speech as to Hirt (Count I).
Doc. 143 at 3.
move for summary judgment on all of Plaintiffs' claims.
Doc. 147. The arguments in Defendants' motion are:
1. The private letter to Hirt did not create a policy.
2. Defendants did not violate Hirt's First Amendment
3. Hirt was not subjected to retaliation for exercise of
First Amendment rights.
4. The July 13 letter was not an unjustified prior restraint
on Hirt's speech.
5. Clark lacks standing to assert a personal claim of a First
6. Hirt does not have a substantive due process claim.
7. Hirt was not entitled to procedural due process.
8. Superintendent Turner is entitled to qualified immunity.
9. Hirt does not have a statutory right to attend open
10. Hirt's July 21, 2015, letter was not a request for a
11. Clark's KORA claim is barred by res judicata and
Doc. 149 at 1-2.
Third Amended Complaint contains eleven counts, most of which
are alternative theories based on apparently known versus
“unknown” school district policies. Doc. 93 at
23-26. Ultimately, the Third Amended Complaint contains
counts for First Amendment violations as to both Hirt and
Clark (Counts I, V, IX, and XI), a due-process violation as
to Hirt (Counts II and X), KOMA and KORA claims for both Hirt
and Clark (Counts III, IV, VI, and VII), and an Equal
Protection violation as to Hirt (Count VIII).
Pretrial Order reflects a more narrowed set of claims: that
the July 13 exclusion letter “is unconstitutional
facially and as-applied, concerning due process, right of
free speech, right to receive information, and right to
assemble;” that it chilled both Plaintiffs' First
Amendment rights; that it violated Hirt's statutory right
to attend open meetings; that Turner, as custodian of
records, violated both Plaintiffs' statutory right to
obtain open records; and that Turner retaliated against Hirt
based on his protected speech. Doc. 138 at 9.
VIII (Equal Protection) and Count VI (Clark's KOMA claim)
were omitted from the Pretrial Order. Accordingly, those
claims are waived and no longer part of this case. Koch
v. Koch Indus., Inc., 179 F.R.D. 591, 596 (D. Kan.
1998). The remaining claims are addressed below.
Defendants did not violate KOMA by excluding Hirt from school
board meetings (Count III).
asserts that he was denied a statutory right under KOMA,
K.S.A. §§ 75-4317, et seq., when he was
barred from school property, and he requests declaratory and
injunctive relief. Doc. 143 at 5-6. KOMA states that
“meetings for the conduct of governmental
affairs” are to be open to the public. K.S.A. §
75-4317(a). KOMA does not guarantee attendance for every
individual. See K.S.A. § 75-4318(g)(4)
(providing exceptions to the open meetings law, including
“if otherwise provided by state or federal law”).
In determining whether KOMA has been violated, the Kansas
Court of Appeals has instructed courts to “overlook
mere technical violations where the public body has made a
good faith effort to comply and is in ...