School District Can’t “Prohibit All [Parents’] Speech on School Property That It Finds ‘Offensive or Inappropriate'”

An excerpt from the 11,000-word opinion in Hartzell v. Marana Unified School Dist., decided today by Ninth Circuit Judge Milan Smith, joined by Judges Wallace Tashima and Bridget Bade:

Following an incident on February 7, 2020, at Dove Mountain K-CSTEM school (Dove Mountain), Plaintiff-Appellant Rebecca Hartzell was banned from the school premises. Hartzell claims that she was banned from the school in retaliation for her protected speech. Defendants-Appellees, the Marana Unified School District (the District) and Andrea Divijak, the principal at Dove Mountain, assert that Hartzell was banned because of her conduct; specifically, they allege that Hartzell assaulted Divijak….

Hartzell is the parent of eight school-aged children, five of whom attended Dove Mountain during the 2019–20 school year. Divijak was serving as the principal of Dove Mountain at that time. In August 2019, the District opened Dove Mountain, a new kindergarten through eighth grade school. Dove Mountain is a part of and run by the District….

Hartzell has a master’s degree in special education and a doctorate focusing on applied behavioral analysis and autism. She also became an associate professor of practice at the University of Arizona, and a director of the master’s program in applied behavioral analysis at that institution….

On February 7, 2020, Dove Mountain hosted an event where students presented projects they had been working on for a few months. Two of Hartzell’s children were scheduled to present in different rooms simultaneously. While attending the event, Hartzell saw Divijak in a classroom and approached her. Hartzell was accompanied by one of her children, who attended preschool at Dove Mountain. No other children were present.

Hartzell “sarcastically” thanked Divijak for “making [her] choose which kid [she was] going to support again today.” Hartzell testified that she began to walk away, but Divijak responded that she was “sorry that [Hartzell was] just never happy.” Hartzell testified that she turned back around and explained her proposed solution to the scheduling conflicts.

According to Hartzell, Divijak refused to speak with her further and began to walk away while Hartzell was speaking. Hartzell says she responded that it seemed she and Divijak were never able to have a conversation. However, Hartzell denies doing anything to stop Divijak from walking away and specifically denies grabbing Divijak’s wrist. Even so, Hartzell acknowledges that she accidentally touched Divijak’s arm as she walked by and that she said “stop,

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