Aela Mansmann REPLY To Response To Motion Re 3 MOTION TRO

Case 2:19-cv-00466-LEW Document 13 Filed 10/19/19 Page 1 of 14 PageID #: 157
IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE
A.M., a minor, by and through her mother, )

SHAEL NORRIS, )
)
Plaintiff, )
)
v. )
)
CAPE ELIZABETH SCHOOL )
) Civ. No. 19-cv-466-LEW
DEPARTMENT, et al.
)
)
Defendants. )
REPLY IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION
On October 9, 2019, Principal Shedd sent a letter to the Cape Elizabeth community in
which he said that A.M. and others who posted the sticky notes about rape in the school “were
well motivated, with good intentions.” Verified Compl. Att. C. It is unfounded and inexplicable
that he and the other Defendants, in their Opposition, have now characterized those notes as
race-based discrimination. Defendants have attempted to support the actions they took against
A.M. on the basis of new arguments, in violation of A.M.’s due process rights, because their
original explanation for the discipline did not make sense. On the merits, Defendants fail to rebut
that A.M.’s speech is protected by the First Amendment and does not qualify as bullying. Nor
can Defendants provide any content-neutral explanation for why they are suspending A.M. for
three days while ignoring other speech that contributed to much greater disruption. The only
explanation is that the school disfavored A.M.’s speech because it was critical of the school.
Finally, Defendants have repeatedly conceded that they treated the sticky notes as an anonymous
investigation under Title IX of the Education Amendments Act of 1972, yet they retaliated
against her for that note. Overall, the discipline imposed in this case is likely to suppress future
1
protected speech on the topic of sexual assault and is likely to chill future Title IX reporting—not
least because the punishment the school imposed on A.M. prohibits her from uttering such
political speech and making such Title IX reports in the future. We ask that the Court
preliminarily enjoin the discipline while the case is pending.
I. Defendants’ New Claims of Race Discrimination Are Wholly Unfounded
Targeting another student and creating a hostile educational environment based on race is
undeniably bullying. It is precisely the sort of conduct that Maine’s anti-bullying statute was
designed to address. See 20-A M.R.S. §6554(2). Bullying of all kinds, but especially bullying
against people of color, continues to be a serious and dramatically under-addressed problem in
Maine schools, and schools are obligated to take action against it by law.1 And in particular, the
false accusation of sexual violence leveled against men of color is one of the most dangerous,
pernicious, and durable myths in American culture,2 and it is incumbent upon all our institutions,
including or schools, to take whatever steps are possible to bring it to an end.
But A.M. did not do that. Instead, A.M. posted a single note highlighting the problem
with the school’s failure to sufficiently investigate sexual assault allegations.3 It was not directed
at any student, of any race, and the Principal knows that. Principal Shedd himself acknowledged
that he interpreted A.M.’s note as criticizing the administration’s handling of sexual assault
claims, stating that “the insinuation of the notes is pretty clear even though it doesn’t say the
1
See Emma Findlen LeBlanc, WE BELONG HERE: ELIMINATING INEQUITY IN EDUCATION FOR IMMIGRANTS AND
STUDENTS OF COLOR IN MAINE (2017) (available at https://www.aclumaine.org/en/publications/report-we-belong-
here) (last visited October 18, 2019).
2
See James Baldwin, BLUES FOR MR. CHARLIE (play based in the murder of Emmett Till) (1964); Harper Lee, TO
KILL A MOCKINGBIRD (novel) (1960); Ava Duvarnay, WHEN THEY SEE US (documentary film about the Central
Park 5) (2019); Jennifer Wriggins, Rape, Racism, and the Law, 6 Harv. Women's L.J. 103, 141 (1983); N. Jeremi
Duru, The Central Park Five, the Scottsboro Boys, and the Myth of the Bestial Black Man, 25 Cardozo L. Rev. 1315,
1324 (2004).
3
Notably, moreover, in the Title IX investigation, school administrators pressured A.M. to reveal the names of two
alleged perpetrators of sexual violence, one of whom was white.
2
administration isn’t doing anything and ‘you’ aren’t doing anything. That was my inference
absolutely.” Verified Compl. ¶ 54.
What’s more, the accusations against A.M. are not plausible. A.M. denies ever saying
that she was trying to “instill fear.” Compare Defs.’ Opp at 5 with A.M. Decl. ¶ 41. A.M. is an
anti-violence activist, who has publicly devoted much of her short life to combatting fear on
school campuses. She is a high school ambassador for a national organization dedicated to
addressing sexual violence in middle and high school, and an advisory board member for another
national organization dedicated to providing support youth who have experienced sexual
violence. Complaint, ¶19. She has been nationally recognized for her activism, and she has
organized and spoken at conferences on the need for more education on consent and sexual
violence in schools. Complaint, ¶20. The idea that she woke up one day in order to launch a
campaign to “instill fear” cannot be believed. See A.M. affidavit ¶ 41.
In short, the school suspended A.M. because of that sticky note, not for any alleged
rumor-spreading or racial discrimination. See Verified Compl. Att. B (Oct. 4 letter from
Principal Shedd and Vice Principal Carpenter). The sum total of the school’s accusation of
bullying against A.M. was contained in the first sentence of its October 4 letter: “As you know,
A.M. has admitted and accepted responsibility for her actions in the writing and posting of notes
[sic]4 that appeared in the second floor bathroom on Monday, September 16.” Id. There is no
mention of any of the “racially-motivated bullying” or “race-motivated bullying” that the
Defendants now attempt to level at A.M. See Defs.’ Opp. at 4. To the contrary, a few days later,
the principal sent a public letter to Cape Elizabeth parents stating that the three students who
posted the notes “were well motivated, with good intentions”—something that he certainly
4
A.M. only admitted and accepted responsibility for writing one such note.
3
would not have said if he believed A.M. had been targeting a student on the basis of race.
Verified Compl. Att. C.
II. Defendants’ New Arguments Violate Due Process
Not surprisingly, Defendants have done all they can to deflect attention away from the
real issue in this case: that A.M. was suspended for posting an anonymous sticky note.
Complaint Exhibit 2 (October 4 letter suspending A.M. from school). That was it. This case is
about whether a sticky note that did not identify anyone and was not directed at anyone qualifies
as bullying that is not protected by the First Amendment. The school found that “the actions of
students writing or posting notes in our school bathroom did in fact constitute an act of bullying
within our school policy.” Id. Now, the Defendants have changed their story because their
original story was neither credible nor sustainable under the First Amendment.
To the extent Defendants now allege that A.M. engaged in race discrimination, they are
violating her right due process. “[D]ue process requires, in connection with a suspension of 10
days or less, that the student be given oral or written notice of the charges against him and, if he
denies them, an explanation of the evidence the authorities have and an opportunity to present his
side of the story.” Goss v. Lopez, 419 U.S. 565, 581 (1975). In this case, A.M. appealed the
sticky-note suspension to the Superintendent, Verified Compl. ¶ 74, and asked the school at that
appeal for the record upon which the suspension was based. Norris Decl. ¶ 19-20. The school
produced nothing related to racism or racially-motivated bullying on the part of A.M.
Nor is there any mention of racism by A.M. in the Superintendent’s October 11, 2019
letter rejecting that appeal and upholding the suspension. See Verified Compl. Att. D (October
11 letter from Superintendent Wolfrom). Only in response to this federal lawsuit did any school
official accuse A.M. of racially-motivated hostility. The only plausible interpretation of this
4
shifting narrative is that the Defendants realized how untenable their position was and
manufactured a new justification for suspending A.M. The due process clause does not allow
such bait and switch.
III. A.M.’s Sticky Note Is Protected Speech
A.M.’s sticky note is protected speech on an important social and political issue: the
crisis of sexual assault in public schools. Defendants claim that A.M.’s note is deprived of First
Amendment protection because it was “[l]ike a bomb threat or a false fire alarm.” Defs.’ Opp. at
10-11. But A.M. made no threat and instead made a statement designed to criticize the school’s
response to sexual assault and rape culture, and that she believed in good faith to be true of
numerous perpetrators in the school. A.M. Decl. ¶ 15, 43; see also Verified Compl. ¶ 4. That
statement is supported by the five (out of ten) substantiated Title IX investigations over the past
year, Verified Compl. ¶ 37, and by nationwide statistics on rape and sexual assault, in which one
in four girls and one in six boys will be sexually assaulted before they turn 18. Porter Decl. ¶ 9.
To the extent Defendants claim A.M.’s statement is disruptive within the meaning of
Tinker, they are wrong. Defs.’ Opp. at 10-11. As in Tinker, A.M.’s speech occurred outside the
classroom and was pure speech on an important social and political issue that was not disruptive.
Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 505 (1969). To the extent the
Defendants nonetheless contend that the ideas expressed by A.M.’s note were disruptive, the
same was true in Tinker, in which the school district faced an “explosive” situation over protests
about the Vietnam War and a former student who had been killed in the war.5 Nonetheless, the
Court held that black arm bands protesting the war were protected by the First Amendment. Id.
5
Response Brief, Tinker v. Des Moines, 1968 WL 94384 (U.S.), 13; Oral Arg. 47:15, Tinker v.
Des Moines, OYEZ, HTTPS://WWW.OYEZ.ORG/CASES/1968/21.
5
Finally, Defendants contend that this Court must focus on “the school’s reasonable
interpretation of a statement” when determining whether it is entitled to protection. Defs. Opp. at
11-12 (citing, e.g., Morse v. Frederick, 551 U.S. at 401). Yet the principal himself interpreted
A.M.’s note as criticizing the administration’s handling of sexual assault claims, stating that “the
insinuation of the notes is ‘pretty clear even though it doesn’t say the administration isn’t doing
anything and ‘you’ aren’t doing anything . . . . That was my inference absolutely.” Verified
Compl. ¶ 54. The Defendants nowhere dispute that the principal made this statement, or that they
interpreted the notes as criticizing the school. Accordingly, Defendants’ own reasonable
interpretation of the note supports the protection for A.M.’s speech, because speech critical of
the school and speaking out about sexual assault is inherently social and political speech entitled
to special protection under the First Amendment. B.H. ex rel. Hawk v. Easton Area Sch. Dist.,
725 F.3d 293, 298 (3d Cir. 2013).
Defendants also claim that A.M.’s speech is disruptive because “[a] reasonable student or
teacher . . . would be very alarmed and upset” by knowing that there is a rapist in the school.
Defs.’ Opp. at 12. The same fear and alarm, however, is merited by the statistics about sexual
assault, which also undeniably show that in a school of 550 students, there are students who have
committed sexual assault or rape. See Porter Decl. ¶¶ 9-11. It is the crisis of sexual assault in our
schools that is scary and alarming, and that is why A.M. has devoted much of her life so far to
combating it.
Defendants next contend that A.M.’s speech was in fact disruptive, because it prompted
school administrators to take the time to conduct a thorough investigation of the alleged sexual
6
assault in the school.6 The argument that a school investigation qualifies as “disruption” is a
novel claim. If true, then the claim of bullying in this case also qualifies as a disruption because
the school took a great deal of time (if not more) pursuing the alleged bullying claims against
A.M. See generally Investigation Report, ECF No. 9-4. Such a rule would render any complaint
or report of misconduct a potential basis for discipline itself. In short, what the school has
characterized as “disruption” is actually “investigating a Title IX complaint,” which can’t qualify
as disruption under the First Amendment or Title IX.
Next, the statement was not defamatory. See Defs.’ Br. at 14. This case is a far cry from
the example from Kowalski cited in Defendants’ brief, in which a student created an entire
website “to direct verbal attacks towards classmate Shay N.,” and “contained comments accusing
Shay N. of having herpes and being a ‘slut’ as well as photographs reinforcing those defamatory
accusations . . . and labeling her portrait as that of a ‘whore.’” Kowalski v. Berkeley Cty. Sch.,
652 F.3d 565, 573 (4th Cir. 2011). In this case, by contrast, A.M. posted a sticky note in the
girl’s bathroom on a single occasion, naming nobody, including no personally identifying details,
and identifying a perpetrator solely based on the alleged offense.
Nor does A.M.’s statement satisfy the basic requirement of defamation that the
statements “were made ‘of and concerning’” the claimed target, N.Y. Times Co. v. Sullivan, 376
U.S. 254, 288 (1964), and “show specific reference” to the target in the challenged statements,
Rosenblatt v. Baer, 383 U.S. 75, 83 (1966). Absent those requirements, claims of bullying or
defamation could severely limit political speech and pure abstract advocacy. Cf. Rice v. Paladin
Enters., Inc., 128 F.3d 233, 249 (4th Cir. 1997) (“[T]he First Amendment might well
6
Vice Principal Carpenter’s concern that a rapist was “roaming the halls of the school building”
reinforces harmful myths that the only true rape is by serial rapists jumping out of bushes, and
reflects the need for more education on the topic. See Defs.’ Opp. at 13 (citing Carpenter Decl.
¶¶ 7-9; see also Porter Decl. ¶ 24.
7
circumscribe the power of the state to create and enforce a cause of action that would permit the
imposition of civil liability. . .for speech that would constitute pure abstract advocacy. . . .”).
Indeed, Defendants made no response to the hypothetical concern that they could rely on the
same arguments to allege bullying by even more general statements like “Rape happens at our
school” or “Students in our school commit sexual assault.”
The requirement for speech to make specific reference to a target exists to ensure that
members of the public, including students, are not discouraged from expressing “a kind of
statement which, though it can cause hurt to an individual,” is “important to the vigor and
openness of public discourse in a free society.” Blatty v. New York Times Co., 42 Cal. 3d 1033,
1044 (Cal. 1986). A.M. does not dispute that Principal Shedd and the other administrators were
hurt by what she implied about their lack of an adequate response to sexual violence in CEHS,
and she herself has been hurt by some of the responses. But “[i]t is far better for the public
welfare that some occasional consequential injury to an individual arising from general censure
of his profession, his party, or his sect” (including a broad group like people who do not do
enough to prevent sexual violence) “should go without remedy than that free discussion on the
great questions of politics, or morals, or faith” (including how the government can better support
people who experience or speak out against sexual violence) “should be checked by the dread of
embittered and boundless litigation.” Mich. United Conservation Clubs v. CBS News, 485 F.
Supp. 893, 900 (W.D. Mich. 1980). The same is true here. Allowing the Defendants to punish
A.M. for her speech would mean that a good-faith7 critic of powerful men, systems, and
institutions could face irreparable loss of freedom.
7
Principal Shedd, in criticizing A.M. for making “a really bad choice” acknowledged that
A.M.’s effort was “well motivated, with good intentions.” October 9, 2019 Letter from Principal
8
The final disruption claimed by Defendants was that A.M.’s speech allegedly made
another student feel unsafe going to school, Defs.’ Opp at 14, and “interfered with the rights of
another student,” id. at 16. Here, Defendants claim, without citation or explanation, that the
administration “convincingly found . . . that the statement was in fact directed at Student 1”
under Maine’s bullying statute. Defs.’ Opp. at 16. But just as defamation law cannot swallow
protection for otherwise general and abstract speech, the phrase “directed at” in Maine’s anti-
bullying statute prevents the bullying statute from encroaching on protected speech under the
First Amendment. A note that does not even name a particular individual, but rather a broader
problem, couldn’t possibly “creat[e] an intimidating or hostile educational environment” under
the statute. See 20-A M.R.S. § 6554. To hold otherwise would obstruct the First Amendment in
the same way as allowing speech not about any particular person to be sanctioned as defamation.
With regard to the bullying statute’s requirement for an intimidating or hostile school
environment, Defendants claim that there is no requirement for consequences that are “severe
and pervasive,” ignoring the consistent interpretation of this statutory phrase across case law
from many different areas. Pl.s’ Mot. at 12 n.12. While it is true that a single act (such as rape)
could support a finding of a hostile environment, the sticky note posted by A.M. is a far cry from
that type of conduct. Furthermore, in alleging harm from A.M.’s note, Defendants make no effort
to untangle the harm caused by a video circulated by other students (not A.M.). See Investigation
Report, ECF No. 9-4 at 3.
In our system, students “may not be confined to the expression of those sentiments that
are officially approved. In the absence of constitutionally valid reasons to regulate their speech,
students are entitled to free expression of their views.” Tinker, 393 U.S. at 511. By retaliating
Shedd. Plaintiff is unaware of any reported decision from any jurisdiction where a person
committed an act of well-motivated bullying with good intentions.
9
against A.M. for posting the sticky note, Defendants impermissibly retaliated against her right to
free speech.8
IV. Defendants Impermissibly Discriminated Based on the Content of A.M.’s Speech
The Defendants’ post hoc rationalization regarding A.M.’s suspension smacks of pretext.
The Defendants ably document the harms suffered by one student whom others believed had
committed acts of sexual assault, Defs’ Opp. at 3, but fail to address the most likely and
reasonable cause for that harm: a video produced and shared by the student’s “friends”
identifying Student 1 by name in a caption stating “this is Student 1 raping bitches.”
Investigation Report at 3, ECF No. 9-4.
Yet the school treated A.M. dramatically differently than the students who directly named
Student 1 and proliferated a video with an obscene caption naming Student 1.9 Investigation
Report at 3, ECF No. 9-4. The school did not find that these students had engaged in bullying at
all, and issued no discipline.10 Instead, they disciplined A.M., for sticking a post-it note on a
mirror that did not depict or describe anyone, that did not mention anyone by name, and that was
not directed at any individual. Verified Complaint, ¶72.
8
With regard to the claim that they decided to suspend A.M. before the press article was
published, Defs.’ Opp. at 17-18, Defendants do not explain why they would tell A.M. that “We
don’t have detentions in this building.” Verified Compl. ¶ 55.
9
This is even though even though the video was the one of the reasons the student’s mother
came to speak to the administration in the first place. Investigation Report at 3, ECF No. 9-4.
10
The principal appeared to be unconcerned by the caption, noting a student’s belief that the
caption was not “intended seriously.” Id. at 15. As explanation, the student cited that the term
“rape” “was frequently used non-literally in his friend group.” Id. at 10, 15. “For example, if they
were playing pickup basketball and one friend dunked over another, they would say the
defendant had been ‘raped.’” Id. at 15. In other words, “raping” someone means beating them, or
winning. According to the principal’s investigation, “[t]he group frequently shared with one
another videos that they meant to be funny.” See id.
10
The logical conclusion is that A.M. was suspended, not because her speech was
damaging to Student 1, but because her speech was critical of to the school—a case of textbook
discrimination based upon the content of A.M.’s speech. Rosenberger v. Rector & Visitors of
Univ. of Va., 515 U.S.819, 828 (1995) (citing Police Dept. of Chicago v. Mosley, 408 U.S. 92, 96
(1972)).
VI. Defendants Engaged in Retaliation Against A Report under Title IX
The Defendants now claim that “the statement on the sicky note—“THERE’S A RAPIST
IN OR SCHOOL AND YOU KNOW WHO IT IS,” cannot by any stretch of the imagination, be
considered a Title IX complaint. . . . Nor could posting an anonymous sticky note be a legitimate
means to make a Title IX complaint.” Defs.’ Opp. at 19-20. But Cathy Stankard, the Title IX
Coordinator for the Cape Elizabeth School Department, stated that she was involved in the
investigation “because it was an anonymous complaint of specific sexual violence at the school.”
Stankard Decl. ¶ 9. In other words, a “Title IX investigation.” Stankard Declaration, ¶ 20. And,
Ms. Stankard and Superintendent Wolfrom publicly appeared on “The Morning News With Ken
and Matt”—a talkradio show hosted on WGAN—on October 9, 2019, where she stated: “What I
can tell you is that we treated the post-it note as an anonymous complaint, and we investigated
that anonymous complaint as we would have investigated, as we investigate, all complaints that
come to us through other channels.” Consistent with these statements, when A.M. was brought in
for questioning by the administration, she believed that she was cooperating with a Title IX
investigation. A.M. Decl. ¶ 35.11
11
Nor are Defendants correct that AM needed to make a formal Title IX complaint. “Where the
retaliation occurs because the complainant speaks out about sex discrimination, the ‘on the basis
of sex’ requirement is satisfied.” Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 179 (2005).
Importantly, failure to address peer-on-peer sexual harassment is sex discrimination. See Porto v.
Town of Tewksbury, 488 F.3d 67, 72 (1st Cir. 2007) (“Under Title IX of the Education
11
V. The Remaining Equitable Factors Strongly Support Relief for A.M.
All equitable factors favor the Plaintiff. Defendants suffer no harm from allowing A.M.
to remain in school during the pendency of litigation. Yet denying the injunction would not only
force A.M. to serve a suspension, but would also impermissibly prevent A.M. from engaging in
further speech “of that sort.” Verified Compl. Att. B. Defendants point out that the only
prohibited speech is that “directed at” any student, Defs.’ Opp. at 22, but the fact that Defendants
believe that criteria to be satisfied here suggests that they would apply it broadly in the future as
well, subjecting A.M. to potential suspension or expulsion for continuing to speak out about
sexual assault. See Verified Compl. Att. B. It is in the public interest for students to speak out
about the crisis of sexual assault in public schools and Defendants articulate no workable rule
that would protect such speech while enabling them to punish A.M.’s speech.
Finally, there is no need for Plaintiff to submit a security to be eligible for injunctive
relief in this case. Defendants suffer no monetary harm from delaying the suspension and
allowing A.M. to speak out about sexual assault and engage in activism.
CONCLUSION
For these reasons, we respectfully request that the Court issue a preliminary injunction
prohibiting the school from enforcing its disciplinary decision against A.M. during the pendency
of this litigation.
Amendments of 1972, a recipient of funding from the United States Department of Education
may be liable for damages if ‘its deliberate indifference [to peer-on-peer sexual harassment]
‘subjects’ its students to harassment.’”) (citation omitted).
12
Respectfully Submitted,
/s/ Emma E. Bond
Emma E. Bond.
/s/ Zachary L. Heiden
Zachary L. Heiden
American Civil Liberties Union of Maine
Foundation
121 Middle Street, Suite 200
Portland, ME 04103
(207) 619-8687
ebond@aclumaine.org
(207) 619-6224
heiden@aclumaine.org
Counsel for Plaintiff
13
CERTIFICATE OF SERVICE
I hereby certify that on October 18, 2019, I electronically filed the foregoing REPLY IN
SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION using the CM/ECF system,
which will send electronic notifications of such filing(s) to the following:
Melissa A. Hewey
mhewey@dwmlaw.com
Jeana M. McCormick
jmccormick@dwmlaw.com
Drummond Woodsum
84 Marginal Way, #600
Portland, ME 04101
/s/ Emma E. Bond

Emma E. Bond
121 Middle St., Suite 200
Portland, ME 04101
(207) 774-5444
ebond@aclumaine.org
14
Case 2:19-cv-00466-LEW Document 13-1 Filed 10/19/19 Page 1 of 5 PageID #: 171


SHAEL NORRIS, )
)
Plaintiff, )
)
v. )
)
DISTRICT; DONNA WOLFROM,
)
Superintendent of Cape Elizabeth Schools, )
)
JEFFREY SHEDD, Principal of Cape
)
Elizabeth High School; and NATHAN )
)
CARPENTER, Vice Principal of Cape
)
Elizabeth High School, )
)
Defendants.
DECLARATION OF SHAEL NORRIS
Pursuant to 28 U.S.C § 1746, I, Shael Norris, declare as follows:
1. I write this affidavit in response to the allegations made by the Defendants in this case.
2. This affidavit incorporates by reference the facts in the Verified Complaint, which are
true and correct to the best of my knowledge. See Verified Compl., ECF No. 1, October
13, 2019.
3. I am the mother of A.M. and am proud of her advocacy on behalf of student survivors of
sexual assault.
4. I have dedicated my career to ending sexual violence and am passionate about
empowering young people to be change agents in preventing violence. I was a founding
1
staffer of V-Day, overseeing the College and Community Campaigns for 19 years, during
which we raised over 100 million dollars toward direct services.
5. My career in anti-violence work began in 1999, as I became a founding staff member at
the global organization V-Day. Our mission was to end violence against women and
girls. My fellow colleagues crossed every intersection of race, gender, sexual identity,
class, country, and age. My work has been at the forefront of ending sexual violence for
over 20 years.
6. I have helped to build safe houses in the Congo, Haiti, Egypt and in Indian Country in the
US. SafeBAE has continued in the same vein. Our seed money and initial support came
directly from V-Day, among other supporters and has always been directly influenced by
their model. Our co-founders are male, female, black, white, straight, gay, affluent, from
poverty, based in all regions of the US and very broadly versed in how their experiences
shape our work. A.M. met each of these founders when she was in 6th grade. She
learned their stories and she looked to them as mentors. She has learned extensively from
each of them and from all of my former colleagues at V-Day.
7. After decades of work focused on college sexual assault, I sought a grant to establish
SafeBAE to focus specifically on younger students. My three children and dedication to
making schools a safer place were the driving forces that lead to the creation SafeBAE.
8. The goals of SafeBAE are to:
a. raise awareness about sexual assault in middle and high schools;
b. provide information on student rights to be free from sexual violence under Title
IX;
2
c. Provide education around consent, bystander intervention, and safe relationships
in all secondary schools;
d. Engage all students to be a part of the solution using art, activism and social
media;
e. Provide students/survivors who have experienced violence with information on
their rights, options for justice, and resources for healing.
f. Outreach to school boards across the country to ensure their understanding of
obligations under Title IX and provide them best practices for student codes of
conduct and department responses;
g. Promote consent education legislation in every state.
9. We work to ensure that students of all identities have the tools they need to shift of the
problem of rape culture in their lives and in their schools to a culture of consent.
10. With colleagues from South Africa, the Philippines, India, Mexico, the Democratic
Republic of Congo, and countless other countries, A.M. has been exposed to a very broad
understanding of sexual violence as it intersects with not only race, but class, gender, age,
and sexuality.
11. Both A.M. and I are well schooled in our country’s historical bias toward Black men in
being accused of rape.
12. A.M. has been clear both before and after her suspension that her goal in writing the
sticky note was to criticize the school’s handling of investigations into sexual assault.
13. I was present at the September 17, September 26, and October 4 meetings with A.M. and
school administrators.
3
14. Title IX Coordinator Cathy Stankard states that, in the September 17 meeting, A.M.
identified Student 1 as the reason for writing the notes. Stankard Decl. ¶ 15, ECF No. 9-8
(Oct. 17, 2019). This is incorrect.
15. Over the course of a two hour interrogation, A.M. repeatedly asked school administrators
about their policies for reporting sexual assault when victims were under the influence of
alcohol, encouraging the school to adopt a model policy of not punishing students who
report when drugs or alcohol were involved.
16. There was a period of time when A.M. and I went into a private room in the middle of the
meeting. While we were in the room, A.M. disclosed to me that, after writing the sticky
note, another student told her about the videos allegedly depicting sexual assault by
Student 1. She did not know about this video at the time she posted the sticky note.
Nevertheless, because the school administrators were pressing A.M. to provide names of
potential alleged perpetrators and victims, A.M. agreed to share the names of perpetrators
only and shared this rumor, clarifying that she had not seen the video and had only heard
a rumor about it.
17. At the same meeting, A.M. also disclosed the name of a white student who was an
alleged perpetrator of sexual assault. At the same meeting, I also referred to this student’s
case when asking the school about whether it had checked in recently with a victim who
had participated in a substantiated Title IX investigation and who had shared that she was
not feeling supported by the school because she had come directly to my house seeking
support and advice about her issues with the school. I met with this student personally,
for over 4 hours just the week before.
4
18. Finally, at no point in any of the meetings did school administrators bring up any
question of A.M. targeting a student on the basis of his race, and the school’s new
allegations to that effect are completely untrue.
19. At no point in the appeal process did the school administrators share these new
allegations, even though ACLU Executive Director Alison Beyea, who represented us in
the appeal, explicitly requested the records supporting the suspension.
20. These new and ugly allegations feel like the school’s way of retaliating against A.M. for
daring to challenge their decision in Federal court.
I declare under penalty of perjury under the laws of the United States that the foregoing is true
and correct.
Dated: October 18, 2019 ___/S/ Shael Norris________

Shael Norris
5


SHAEL NORRIS, )
)
Plaintiff, )
)
v. )
)
DISTRICT; DONNA WOLFROM,
)
Superintendent of Cape Elizabeth Schools; )
)
JEFFREY SHEDD, Principal of Cape
)
Elizabeth High School; and NATHAN )
)
CARPENTER, Vice Principal of Cape
)
Elizabeth High School, )
)
Defendants.
DECLARATION OF A.M.
Pursuant to 28 U.S.C § 1746, I, A.M., declare as follows:
1. I write this affidavit in response to the allegations made by the Defendants in this case.
2. This affidavit incorporates by reference the facts in the Verified Complaint, which are
true and correct to the best of my knowledge. See Verified Compl., ECF No. 1, October
13, 2019.
3. I strongly believe that education about enthusiastic and affirmative consent is crucial to
ending the crisis of sexual violence in our schools. The absence of consistent and
effective education on this topic fails all youth in our society, victims and perpetrators
alike.
1
4. I also believe that adequate and supportive reporting procedures are key to supporting
students who are victims of sexual assault.
History of Attempts to Change School Policy
5. For over a year now, I have been trying to raise my concerns about the school’s reporting
procedures through official channels.
6. For example, I attended a school board meeting in June 2019, along with two other peers,
to raise concerns with the school’s Title IX procedures, inadequate mandated reporting,
and the absence of any specific policy about sexual assault. See Verified Compl. ¶¶ 25-
27.
7. The school board never followed up with me about working with me or other students at
the school board meeting to improve school policies. Not only that, but they convened a
committee to advise on the creation of a policy and did not invite any of the people who
asked to be involved.
8. Instead, when I returned to school in the fall of 2019, the high school counselors refused
to see one of the survivors who came to the school board meeting with me, on the
grounds that they didn’t feel comfortable because she had named them directly at the
school board meeting, even though she had a Title IX case the year before which had
been substantiated and the accused student found in violation of school policy. The
school told this student that she could go to the middle school if she wanted counseling
support. I viewed this as another example of the school failing to support victims of
sexual assault and punishing them for reporting to the school board.
9. The school states that, after my peers and I spoke out at the school board meeting, they
“embarked on a comprehensive a [sic] review of its policies and procedures.” Shedd
2
Decl. at ¶ 6, but again they did not include any student or parents who requested to be
involved.
Allegations of Racism
10. From July 29th through July 31st 2019, I attended a March For Our Lives Summit In
Houston Texas. During the summit, we had a full day of workshops solely based on
educating the attendees on the power of privilege with specific regards to race. It is clear
that one can’t learn everything you need to know about the intersections of race and
privilege, but I can confidently say that I learned about the deep routed history of racism
in the United States and how that still effects racial minority groups today. I was a part of
conversations that discussed at length how you can acknowledge historical and current
instances regarding racism in the United States, but that doesn’t excuse the individual
actions of our citizens.
11. I understand that there is an ugly history in this country of targeting Black men as
perpetrators of sexual assault and rape.
12. I understand that racial bias is pervasive, pernicious, often unconscious, and can be
incredibly damaging.
13. The school did not tell me that they were conducting a bullying investigation into the
sticky note until the day they suspended me on October 4. In the October 4 suspension
letter, the only conduct they alleged as bullying was the posting of the sticky note.
Verified Compl. Att. B. The only other conduct mentioned at the meeting was showing
other students photos of the sticky note on my phone.
3
14. Yesterday (September 17, 2019), when the Defendants filed their legal arguments in this
Court, was the first time I have ever heard the school’s allegations that I was targeting a
student on the basis of race. These allegations are false.
15. In the October 17th meeting the administrators present did ask me whether I was targeting
Student 1 by spreading rumors about him, and I categorically denied this and pointed out
that there have been multiple people accused and found in violation of Title IX. And that
I have been working with survivors of multiple perpetrators this entire time. I have never
started rumors about Student 1, although I am aware of rumors being spread by others
about Student 1. The most explosive of these was the rumor of a video depicting Student
1 sexually assaulting someone. I have since learned from school administrators who have
watched that the video that it does not depict that. I did not even know the rumors about
this video at the time I posted the sticky note.
16. Vice Principal Carpenter states that two students told him that I believed the school was
protecting Student 1 based on his race. Carpenter Decl. ¶ 13. I did not say that, and was
given no opportunity to rebut that allegation in the “bullying investigation.” No one ever
told me that such charges were being made against me. The only thing school
administrators mentioned in the meeting or the letter or the appeal was the sticky note.
17. As I have explained repeatedly, I posted the note to address the problem of sexual assault
in our school and because of concerns with the school’s handling of sexual assault
claims. The note did not identify anyone at all, and I certainly did not target anyone on
the basis of race. In my second meeting with administrators (September 17), they
themselves identified the targets of the sticky notes to be referring to them and not a
student.
4
18. In the past year, I have spoken publicly about the need for better school procedures in
schools and the problems with targeting students who try to speak out about sexual
assault.
19. By contrast, in a public letter dated October 11, 2019, the principal sent a public letter to
parents detailing a great deal of private information about Student 1’s history and
accusations against him. The letter also directly stated my punishment for posting the
sticky notes, a violation of my FERPA privacy rights.
20. I have tried to do whatever I can to direct conversations about the crisis of sexual assault
in our schools and the best ways to educate and support students to the big picture. I do
not believe that it is in anybody’s best interest to gossip or spread rumors about
individuals, whether they are alleged victims or perpetrators and there is absolutely no
historical basis for accusing me of doing so, despite my having knowledge of these
perpetrators for almost a year.
21. I find it very troubling that school officials in my district have repeatedly made the issue
personal by referencing specific students by name or by identifiable characteristics. See
Verified Compl. Att. C. In Court, the school has inserted a great deal of private
information that may be embarrassing and harmful to other students mentioned in the
filings who had nothing to do with me and my decision to post a sticky note on a mirror
in the 2nd floor bathroom. See, e..g, Investigation Report, ECF No. 9-4 (Oct. 17, 2019).
Meetings
22. Title IX Coordinator Cathy Stankard states that she met with other students who told her
that I was “pushing a case” against Student 1. This is not true. It is exactly the type of
rumor that the school has decried in this case. See Att. A (Oct 9 letter stating “[W]e live
5
in a society where too many adult authority figures are quick to spread rumors and gossip
and innuendo through social media. . . . It is not surprising that our young people pick up
on that modeled adult behavior”). I am a high school student and an advocate for victims
and survivors of sexual assault. I do not “push” cases against other students.
23. I was present at the meetings dated September 17, September 26, and October 4, and the
declarations by the school administrators do not accurately relay what happened in those
meetings.
24. The September 17 meeting was the day after I posted the sticky note when the school
administrators were pursuing an anonymous Title IX investigation. The September 26
meeting is what the school now identifies as a bullying investigation, though they did not
inform me that it was a bullying investigation at the time. And the October 4 meeting was
the date the school issued the suspension.
25. At each of these meetings, I was worried that the school administration would try to
retaliate against me for speaking out about their policies. That is the reason that I initially
did not own up to posting the sticky note, and is also the reason why I used my phone to
record the interviews.
26. I have phone recordings of the first hour of the September 17 meeting (until the moment
when I had to stop the recording in order to show a photo to the school administrators, at
which time the recording cut out), the complete September 26 meeting, and the complete
October 4 meeting.
27. I refer to the recordings now only to rebut allegations made by school officials regarding
alleged statements that I did not make.
6
28. Title IX Coordinator Cathy Stankard states that, in the September 17 meeting, I identified
Student 1 as the reason for writing the notes. Stankard Decl. ¶ 15, ECF No. 9-8 (Oct. 17,
2019). This is incorrect.
29. In the September 17 meeting, school administrators asked me repeatedly for names of
alleged perpetrators and victims. I began by asking whether students who reported sexual
assault could be disciplined if it came out that they had been drinking at the time.
30. The school would not provide a yes or no answer to that question, but instead asked me
whether that could play a role in students’ decisions whether to report. I answered yes. I
also told the school they should have a model policy that does not punish people who are
assaulted when drugs/alcohol are involved because otherwise students are not going to
feel safe making reports to administrators.
31. I repeatedly stated that I wanted to remain a safe person for students to report to, so did
not want to share victims’ names without their consent.
32. Over the course of a two-hour meeting, the school administrators continued to press me
to disclose the identities of specific alleged perpetrators and victims.
33. It is important to emphasize that, at the time I posted the sticky note, I did not even know
about the alleged videos, something my mom relayed to the school administrators in the
September 17 meeting. Specifically, my mom told school administrators what I had
previously relayed to her: that I learned about the alleged videos later (on September 16),
after posting the notes.
34. By the time of the September 17 meeting, however, I had heard rumors about a video
depicting a sexual assault. I have never seen this video, though the school administrators
say that it does not in fact depict an assault. I mentioned the concerning rumors about the
7
video when the school asked me for names of potential perpetrators. I emphasized that I
did not have first-hand knowledge about the assault and that I was just sharing what I had
heard, which is what they asked me to do.
35. The school has repeatedly stated that this investigation was a Title IX investigation into
the note. Consistent with that understanding, I disclosed the name of this alleged
perpetrator in what I believed to be a Title IX investigation into sexual assault portrayed
in that video specifically.
36. At the September 17 meeting, I also disclosed the name of a white student who is the
alleged perpetrator of sexual assault. I learned about this alleged assault from the victim
and helped her to report it to the Cape Elizabeth Police Department, although she chose
not to pursue official charges. This alleged perpetrator was part of a Title IX investigation
that the school conducted in the Spring of 2019, and those allegations were substantiated.
Even though I disclosed this student, and even though the student had been substantiated
in a Title IX investigation, the school did not conduct any additional investigation into
this student, but instead focused their investigation on Student 1. This survivor is the
same survivor who came to my house the week before I posted the sticky notes, seeking
help and support from my mother, as an advocate for her rights in school
37. I do not know why the school was focused on Student 1 instead of the other alleged
perpetrator that I named.
38. I do not know why, after completing a Title IX investigation into Student 1, the school
failed to continue to investigate other potential allegations of sexual assault in the school.
See Stankard Decl. ¶ 20.
8
39. I do not know why Vice Principal Carpenter stated that no other students’ names came up
in the interviews with me or other students. Carpenter Decl. ¶ 16. This is a blatant
falsehood, as we spoke directly of the white perpetrator and survivor who were the
subjects of the other Title IX investigation.
40. Vice Principal Carpenter further stated that in the meeting on September 26, 2019, “it
was clear” that my note “was referring to one particular student.” Carpenter Decl. ¶ 23.
Vice Principal Carpenter does not say how he gleaned that from the conversation, and I
said no such thing. I have an audio recording of the September 26, 2019 meeting that I
took on my phone. In fact, the only person to mention any alleged perpetrators in the
September 26, 2019 meeting was when Principal Shedd referenced the legal process and
other issues involving Student 1. In other words, Principal Shedd referenced Student 1 in
the September 26 meeting. I did not. All of this is further contradicting statements
recorded in the September 17th meeting where the administrators present clearly stated
that I was targeting them specifically.
41. Title IX Coordinator Cathy Stankard also states that, in posting the notes, I intended to
create a climate of fear in the school. Stankard Decl. ¶ 17; see also Wolfrom Decl. ¶ 6.
That is also incorrect. I wanted to foster awareness of the serious problems of sexual
assault in our high school, and in most high schools across America. Fear is the opposite
of what I am trying to create with my advocacy. Instead, in the September 26, meeting, it
was Principal Shedd who alleged that I was trying to instill fear. I did not say that was my
intent.
42. Superintendent Donna Wolfrom states that I “made it clear” that Student 1 was the person
I was referring to when I wrote the sticky note. Wolfrom Decl. ¶ 6. That is not correct. In
9
the September 17, 2019, meeting, I repeatedly stated that numerous victims had come
forward to me, and I disclosed the name of a white student in addition to Student 1.
43. I never suggested that I believed these two students are the only perpetrators in the
building. To the contrary, sexual assault is common and underreported. Based on the
general prevalence of sexual assault and my conversations with victims, I believe there
may be numerous additional perpetrators in the building. And since posting the note, I
have had an additional 8 other students disclose assaults to me. Because I do not have
permission of victims to share this information, my priority is to remain a safe person for
students to talk to about these experiences.
44. It makes no sense for Principal Shedd and the administration to claim that there is no
rape in Cape Elizabeth High School and “everyone is safe” as they did in their September
20th district wide letter. Rape is not the same as gun violence, where there might be a
solitary armed figure who infiltrates the school and harms students. At every high school
across the globe, students are having sex with one another, Cape Elizabeth students
included. In specific instances, some intimate encounters involving alcohol and/or drugs,
leave a student or the students involved, unable to give consent. In reference to the Brock
Turner case back in 2015, we learn that consent is not about the un-coerced and sober
existence of a “no,” but the lack of a “yes.” Without a freely given “yes” from both
parties, the actions taking place are legally titled as Gross Sexual Assault (In Maine). In
other words, that is rape, and if the administration does not know that, they are never
going to be able to proactively prevent and address it.
10
Press Coverage
45. The Portland Press Herald reporter first reached out to me about the notes and the
concerns with sexual assault at Cape Elizabeth High School on September 17.
46. I understand that the Press Herald also reached out to the Cape Elizabeth school
administrators in advance of the article being released on October 4. I believe this to be
true because the Portland Press Herald article published a quote from Superintendent
Wolfrom in the article. See Rachel Ohm, Cape Elizabeth students fault school system’s
handling of sexual assault allegations, Portland Press Herald (Oct. 4, 2019).
47. Based on the timing, it appears likely that the Portland Press Herald had already reached
out to the school administrators by September 26, 2019, when they allegedly made the
decision to suspend me. See Wolfrom Decl. ¶ 10-11; Carpenter Decl. ¶ 25-27.
48. If the school administrators made the decision to suspend me on September 26, 2019, I
do not understand why they stated at the same meeting: “We don’t even have detentions
in this building. It’s about conversations and how do we move forward.” Verified
Compl. ¶ 55.
I declare under penalty of perjury under the laws of the United States of America, the foregoing
is true and correct.
Dated: October 18, 2019 _/S/ A.M._______

A.M. (a minor)
11

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Case 2:19-cv-00466-LEW Document 13 Filed 10/19/19 Page 1 of 14 PageID #: 157

IN THE UNITED STATES DISTRICT COURT

A.M., a minor, by and through her mother, )

REPLY IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION

preliminarily enjoin the discipline while the case is pending.

I. Defendants’ New Claims of Race Discrimination Are Wholly Unfounded

against people of color, continues to be a serious and dramatically under-addressed problem in

including or schools, to take whatever steps are possible to bring it to an end.

absolutely.” Verified Compl. ¶ 54.

campaign to “instill fear” cannot be believed. See A.M. affidavit ¶ 41.

mention of any of the “racially-motivated bullying” or “race-motivated bullying” that the

Verified Compl. Att. C.

II. Defendants’ New Arguments Violate Due Process

produced nothing related to racism or racially-motivated bullying on the part of A.M.

such bait and switch.

III. A.M.’s Sticky Note Is Protected Speech

interpretation of a statement” when determining whether it is entitled to protection. Defs. Opp. at

725 F.3d 293, 298 (3d Cir. 2013).

characterized as “disruption” is actually “investigating a Title IX complaint,” which can’t qualify

as disruption under the First Amendment or Title IX.

and identifying a perpetrator solely based on the alleged offense.

school” or “Students in our school commit sexual assault.”

institutions could face irreparable loss of freedom.

problem, couldn’t possibly “creat[e] an intimidating or hostile educational environment” under

Report, ECF No. 9-4 at 3.

IV. Defendants Impermissibly Discriminated Based on the Content of A.M.’s Speech

identifying Student 1 by name in a caption stating “this is Student 1 raping bitches.”

Investigation Report at 3, ECF No. 9-4.

not directed at any individual. Verified Complaint, ¶72.

VI. Defendants Engaged in Retaliation Against A Report under Title IX

investigation. A.M. Decl. ¶ 35.11

V. The Remaining Equitable Factors Strongly Support Relief for A.M.

Counsel for Plaintiff

/s/ Emma E. Bond

IN THE UNITED STATES DISTRICT COURT

A.M., a minor, by and through her mother, )

DECLARATION OF SHAEL NORRIS

Pursuant to 28 U.S.C § 1746, I, Shael Norris, declare as follows:

4. I have dedicated my career to ending sexual violence and am passionate about

empowering young people to be change agents in preventing violence. I was a founding

which we raised over 100 million dollars toward direct services.

5. My career in anti-violence work began in 1999, as I became a founding staff member at

each of them and from all of my former colleagues at V-Day.

SafeBAE to focus specifically on younger students. My three children and dedication to

8. The goals of SafeBAE are to:

a. raise awareness about sexual assault in middle and high schools;

c. Provide education around consent, bystander intervention, and safe relationships

in all secondary schools;

e. Provide students/survivors who have experienced violence with information on

their rights, options for justice, and resources for healing.

f. Outreach to school boards across the country to ensure their understanding of

conduct and department responses;

g. Promote consent education legislation in every state.

being accused of rape.

(Oct. 17, 2019). This is incorrect.

report when drugs or alcohol were involved.

a rumor about it.

for over 4 hours just the week before.

allegations to that effect are completely untrue.

the appeal, explicitly requested the records supporting the suspension.

daring to challenge their decision in Federal court.

Dated: October 18, 2019 ___/S/ Shael Norris________

IN THE UNITED STATES DISTRICT COURT

Dated: October 18, 2019 _/S/ Shael Norris______