IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF TEXAS 

FORT WORTH DIVISION 

MITCHELL RYAN ) 

 Plaintiff, ) 

v. ) 

 ) Case No.: 4:21-cv-01075-P 

GRAPEVINE COLLEYVILLE 

INDEPENDENT SCHOOL 

DISTRICT and JORGE RODRIGUEZ 

in his official capacity as GCISD 

School Board President

) 

) 

) 

) 

 Defendants. ) 

DEFENDANTS’ RULE 12(b)(5) OBJECTION, 

MOTION FOR CONTINUANCE AND RESPONSE TO PLAINTIFF’S 

MOTION FOR TEMPORARY RESTRAINING ORDER AND BRIEF 

Joseph F. Cleveland, Jr. 

State Bar No. 04378900 

jcleveland@belaw.com 

Sarah S. Flournoy 

State Bar No. 24036575 

sflournoy@belaw.com 

BRACKETT & ELLIS P.C. 

100 Main Street 

Fort Worth, Texas 76102-3090 

Telephone: (817) 338-1700 

Facsimile: (817) 870-2265 

ATTORNEYS FOR DEFENDANTS 

GRAPEVINE COLLEYVILLE 

INDEPENDENT SCHOOL DISTRICT and 

JORGE RODRIGUEZ in his official 

capacity as School Board President

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TABLE OF CONTENTS

 

I. INTRODUCTION ............................................................................................... 1

II. SUMMARY OF THE RELEVANT FACTS ................................................... 2

III. RULE 12(b)(5) OBJECTION AND MOTION FOR CONTINUANCE ......... 4

IV. ARGUMENT AND AUTHORITIES .............................................................. 4

A. Plaintiff will not prevail on the merits. .................................................................. 5

B. There is no substantial threat of irreparable harm if the injunction is 

not granted. ................................................................................................................... 8

C. The harm to the District outweighs the alleged injury. ...................................... 9

D. Granting the preliminary injunction will disserve the public interest. ......... 10

E. The requested injunction does not preserve the status quo. ............................ 10

V. CONCLUSION .............................................................................................. 11

 

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TABLE OF AUTHORITIES

Cases 

Clark v. Prichard, 

812 F.2d 991, 993 (5th Cir. 1987) ........................................................................ 4 

Exhibitors Poster Exch., Inc. v. Nat’l Screen Serv. Corp., 

441 F.2d 560 (5th Cir. 1971) ................................................................................ 8 

Fairchild v. Liberty Indp. Sch. Dist., 

597 F.3d 747 (2010) .................................................................................. 4, 5, 6, 8 

Pavlov v. Parsons, 

574 F.Supp. 393 (S.D.Tex. 1983) ......................................................................... 3 

Robinson v. Hunt County, Texas, 

921 F.3d 440 (5th Cir. 2019) ................................................................................ 4 

Tinsely v. Comm’r of I.R.S., 

3:96-CV-1969-P, 1998 WL 59481 (N.D.Tex. Feb. 9, 2998) ............................... 3 

Statutes 

Tex. Educ. Code Chapter 21 ...................................................................................... 7 

Tex. Educ. Code §11.1511(b) .................................................................................... 7 

Tex. Educ. Code §21.207(a) ...................................................................................... 7 

Tex. Educ. Code §21.355 ........................................................................................... 8 

Tex. Gov. Code §551.074 .......................................................................................... 8 

Other Authorities 

Fed. R. Civ. P. 4 ......................................................................................................... 3 

Fed. R. Civ. P. 12(b)(5) .............................................................................................. 3 

Fed. R. Civ. P. 65 ................................................................................................... 4, 8 

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Defendants Grapevine-Colleyville Independent School District (GCISD or 

District) and Jorge Rodriguez (collectively Defendants) file this Rule 12(b)(5) 

objection, motion for continuance and response to the Motion for Temporary 

Restraining Order and Preliminary Injunction filed by Plaintiff Mitchell Ryan 

(Plaintiff) and in support would show as follows:

I. INTRODUCTION 

To prevail on a request for preliminary injunction, Plaintiff must demonstrate 

a likelihood of success, immediate irreparable harm, that his harm outweighs the 

potential harm to the defendant and that the injunction will not disserve the public 

interest. Rather than establishing these elements, Plaintiff makes expansive 

allegations that his First Amendment rights have been violated improperly 

suggesting that the Court utilize a strict scrutiny standard. Plaintiff’s argument 

ignores established Fifth Circuit precedent which holds public comment during 

school board meetings is a limited public forum where the government may impose 

reasonable restrictions on speech and that the prohibition of complaints against 

district employees is one such reasonable restriction. Thus, Plaintiff is unlikely to 

prevail on the very first required element for a preliminary injunction. Further, 

Plaintiff will not suffer harm if the injunction is denied because he can present 

complaints regarding employees through the District’s robust grievance process. 

Since there is no harm, the District’s loss of public confidential as a neutral arbiter 

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is the more persuasive concern. Texas law also establishes a clear preference for 

preserving the privacy of individual employees, which would be disserved by the 

granting of Plaintiff’s request for preliminary injunction. And finally, preliminary 

injunctions are intended to maintain the status quo, not alter it as Plaintiff requests 

here. Therefore, Plaintiff’s motion for temporary restraining order and preliminary 

injunction should be denied. 

II. SUMMARY OF THE RELEVANT FACTS

1. As early as July 21, 2008, GCISD Board Policy BED(LOCAL) directed 

personal complaints and concerns to the three grievance procedures established 

under the District’s Board Policies. The appropriate policy depends on the 

complainant’s role within the District as either: 

a. an employee = Board Policy DGBA, 

b. a student or parent = Board Policy FNG, or 

c. a member of the public = Board Policy GF. 

Ex. A-2 (Affidavit of Paula Barbaroux, GCISD’s Chief Operating Officer)1

. 

2. GCISD Board Policy BED(LOCAL) currently in place was adopted on 

November 5, 2019 and contains substantially the same language as was present in 

the version adopted July 21, 2008. Ex. A-3. 

1

 Please see Defendants’ appendix contemporaneously filed with this response. 

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3. Since at least 2018, the Board has required individuals desiring to speak 

during the public comment section of board meetings to complete a Requests to 

Speak During Open Forum Form, which included the following statement: 

This is not the forum that the district has provided to raise 

and resolve complaints about individual employees or 

students, and we request that persons speaking in open 

forum refrain from raising complaints against such 

individuals or personally identifying them in any way in 

their remarks. If your purpose in speaking in open forum 

is to raise a complaint about a specific employee or 

student, then I direct your attention to the Board’s adopted 

complaint process. 

Ex. A-8 (emphasis in original). 

4. The current Requests to Speak during Open Forum Form in place for 

the August 23, 2021 Board meeting provides: 

Persons speaking in open forum may not raise complaints 

against individual employees or students or personally 

identify them in any way in their remarks. This is not the 

forum provided by the Board for those complaints. 

Instead, please utilize the District’s grievance procedures 

provided in Board Policies DGBA, FNG, and GF. 

Ex. A-7 (emphasis in original). 

5. On August 23, 2021, Plaintiff completed the Requests to Speak during 

Open Forum form and signed it acknowledging he had read and agreed to follow the 

rules listed on the form for speaking in open forum. Ex. A-7. 

6. On the Requests to Speak form, Plaintiff listed his topic as “LEAD 2.0.” 

Ex. A-7. 

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7. When called to the podium, Plaintiff choose to violate these rules and 

spoke about a particular employee, Dr. James Whitfield. Ex. A, ¶¶ 15-16. 

8. Approximately forty second into his sixty second presentation, Plaintiff 

was reminded by the presiding officer of the instructions he received and agreed to 

abide by. Ex. A, ¶16. 

9. Shortly after being reminded, Plaintiff’s time expired. Ex. A, ¶17. 

III. RULE 12(b)(5) OBJECTION AND MOTION FOR CONTINUANCE 

Plaintiff has not properly served either Defendant in this matter. Defendant’s 

therefore object to the hearing on Plaintiff’s motion for temporary order as premature 

and request a continuance until Plaintiff can effectuate service in accordance with 

the Federal Rules of Civil Procedure. Federal Rules of Civil Procedure 12(b)(5) 

permits challenges to the method of service attempted by plaintiff or the lack of 

delivery of summons and complaint. Tinsely v. Comm’r of I.R.S., 3:96-CV-1969-P, 

1998 WL 59481, at *3 (N.D.Tex. Feb. 9, 2998). A federal court is without personal 

jurisdiction over a defendant unless defendant has been served with process in 

accordance with Rule 4 of the Federal Rules of Civil Procedure. Pavlov v. Parsons, 

574 F.Supp. 393, 399 (S.D.Tex. 1983). 

IV. ARGUMENT AND AUTHORITIES 

To secure a temporary restraining order, Plaintiff must demonstrate: (1) there 

is a substantial likelihood that the movant will prevail on the merits; (2) there is a 

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substantial threat that irreparable harm will result if the injunction is not granted; (3) 

the threatened injury outweighs the threatened harm to the defendant; and (4) the 

granting of the preliminary injunction will not disserve the public interest. Robinson 

v. Hunt County, Texas, 921 F.3d 440, 451 (5th Cir. 2019); Clark v. Prichard, 812 

F.2d 991, 993 (5th Cir. 1987); Fed. R. Civ. P. 65. Plaintiff’s argument fails on all 

four grounds as discussed below. 

A. Plaintiff will not prevail on the merits. 

The Fifth Circuit has made clear that public comment during school board 

meetings is a limited public forum. Fairchild v. Liberty Indp. Sch. Dist., 597 F.3d 

747 (2010). In Fairchild, the Fifth Circuit concluded that unlike the regulation of 

speech in traditional or designated public forums, which must pass strict scrutiny, 

“the government may restrict speech in these limited public forums, as long as the 

regulation (1) does not discriminate against speech on the basis of viewpoint and (2) 

is reasonable in light of the purpose served by the forum.” Id. at 758 (internal 

quotations removed). Plaintiff has presented no evidence the school board 

discriminates based on the topic or identity of the speaker. Instead, the reasonable 

restriction is designed to divert personal disagreements with employees through an 

alternative process where they will either be resolved or sharpened for Board 

resolution while preserving the integrity of the Board’s ultimate decision-making 

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authority regarding possible termination of an employee as well as the privacy of 

employees and students. 

GCISD Board Policy BED(LOCAL), which provides for public comment at 

school board meetings, was adopted in its current incarnation on or about November 

5, 2019—long before Plaintiff’s August 23, 2021 address to the Board during public 

comment. Ex. A-3. The policy does not prohibit speech based on viewpoint but 

does limit the board’s response to public comment: “specific factual information or 

recitation of existing policy may be furnished in response to inquiries.” See Ex. A-3 

at 1 of 2. In the presiding officer’s discretion, the speaker can be redirected to seek 

resolution through the grievance policy appropriate to their concern. Id at 1of 2. 

As an extension of this policy, the Board adopted GCISD Board Operating 

Procedures, which provides “Complaints against employees or students should be 

pursued under appropriate District grievance policies. Public comment on such 

matters will not be allowed unless pursuant to those policies.” The GCISD Board 

revises their Board Operating Procedures annually, with the latest update on August 

19, 2021; however, this provision has remained constant for at least the previous five 

years. Again, long before Plaintiff’s August 23, 2021 address to the Board during 

public comment. 

Further, contrary to Plaintiff’s assertion, the policy does not prohibit Plaintiff 

from addressing the Board regarding a particular topic. Instead, Plaintiff was 

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referred to the District’s robust grievance process which offer Plaintiff a hearing 

before the Board, at a properly called meeting, where the Board can hear the 

complaint, consider the complaint, and given notice of its decision regarding the 

complaint. Ex. A-5. As the Fifth Circuit found in Fairchild, “[t]his leaves the public 

ample opportunity to be heard.” Fairchild, 597 F.3d at 761. 

Like the policy in Fairchild, the District’s policy of routing complaints against 

individual employees out of its limited public forum to its robust grievance process 

does not discriminate against speech on the basis of viewpoint. Id. 

In addition, the policy is reasonable in light of the purpose served by the 

limited public forum. Board Policy BED(LEGAL) provides: “A board shall allow 

each member of the public who desires to address the board regarding an item on an 

agenda for an open meeting of the board to address the board regarding the item at 

the meeting before or during the board’s consideration of the item.” See Ex. A-1 at 

1 of 2. At regular meetings of the Board, GCISD expands this limited public forum 

to “permit public comment, regardless of whether the topic is an item on the agenda 

posted with notice of the meeting.” See Ex. A-3 at 1 of 2. However, the Board may 

not deliberate or decide any subject that is not included on the agenda posted with 

notice of the meeting. Id. Like Fairchild, “the Board did not open the comment 

session of its agenda to create a dispute resolution forum, anticipating that issues 

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that do arise can be channeled into and heard at one of the Board’s robust grievance 

processes.” Fairchild, 597 F.3d at 761. 

The limited public forum created by Board Policy BED(LOCAL) can include 

restrictions on speech. Those restrictions do not have to meet the rigors of strict 

scrutiny, but instead must not discriminate on the basis of viewpoint and be 

reasonable for the purpose of the forum. As the Fifth Circuit found, prohibiting 

complaints against employees during the public comment period of a board meeting 

“does not infringe a ‘substantial’ amount of protected speech.” Id. For these 

reasons, Plaintiff will not prevail on the merits of his claim. 

B. There is no substantial threat of irreparable harm if the injunction is 

not granted. 

If the Court properly refuses to sign an injunction, Plaintiff remains able to 

present his complaints regarding a specific employee to the school board through the 

District’s grievance process. If he is a parent of a student in the District, Board 

Policy FNG(LOCAL) is available to him. If he is not a parent or employee in the 

District, he can utilize Board Policy GF(LOCAL). Ex. A-3. Both FNG(LOCAL) 

and GF(LOCAL) provide for a three-tiered grievance process with the Board making 

final determination at a schedule board meeting and based on the full record 

developed during the three-tiered grievance process. Ex. A-5. 

Further, Plaintiff remains able to address the Board during the public 

comment portion of board meetings on any topic of his choosing provided he is not 

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leveling a complaint against a specific employee or student. As previously stated, 

the Board has provided a different forum for receiving those types of complaints. 

There is no substantial threat of harm to Plaintiff’s First Amendment right of 

free speech. 

C. The harm to the District outweighs the alleged injury. 

The School Board is the final decisionmaker regarding grievances and 

personnel matters for a school district. See Board Policy BAA(LEGAL); Tex. Educ. 

Code §11.1511(b). To perform its duty competently and with public confidence, 

school boards must be a fair arbiter of the disputes presented to them. Allowing 

complaints regarding employees to be presented during public forum, leaves the 

board, as an adjudicative body, open to challenges of bias and without the benefit of 

hearing from the accused employee. It is, in essence, an ex parte communication. 

On September 20, 2021, by a vote of seven to zero and in accordance with the 

Texas Education Code Chapter 21, the GCISD Board determined to notify Dr. James 

Whitfield of the proposed nonrenewal of his term contract. That vote was not 

dispositive. Dr. Whitfield now has fifteen days to notify the GCISD Board that he 

desires a hearing. See Tex. Educ. Code §21.207(a). Whether he requests a hearing 

or not, the GCISD Board must consider and “take appropriate action to renew or not 

renew” Dr. Whitfield’s contract. Therefore, a second vote by the Board is pending. 

Plaintiff’s request for a temporary restraining order would harm the District’s ability 

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to carefully balance the rights of the accused and accuser and disrupt the orderly and 

robust grievance process for handling these types of complaints. 

D. Granting the preliminary injunction will disserve the public interest. 

The Texas Legislatures has clearly identified matters of government 

employment as confidential. The Texas Open Meeting Acts “does not require a 

governmental body to conduct an open meeting: (1) to deliberate the appointment, 

employment, evaluation, reassignment, duties, discipline, or dismissal of a public 

officer or employee; or (2) to hear a complaint or charge against an officer or 

employee.” Tex. Gov. Code §551.074 (emphasis added). “A document evaluating 

the performance of a teacher or administrator is confidential and is not subject to 

disclosure under Chapter 552 (public information), Government Code.” Tex. Educ. 

Code §21.355. “The Board has a legitimate interest, if not state-law duty, to protect 

student and teacher privacy and avoid naming or shaming as potential frustration of 

its conduct of business.” Fairchild, 597 F.3d at 761. 

E. The requested injunction does not preserve the status quo. 

“The purpose of a preliminary injunction is to preserve the status quo.” 

Exhibitors Poster Exch., Inc. v. Nat’l Screen Serv. Corp., 441 F.2d 560, 561 (5th Cir. 

1971). Plaintiff is not asking the Court to preserve that status quo, but to change it 

by disallowing a policy that has been in place for more than five years. “[W]hen a 

plaintiff applies for a mandatory preliminary injunction, such relief ‘should not be 

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granted except in rare instances in which the facts and law are clearly in favor of the 

moving party.’” Exhibitors Poster Exch., Inc., 441 F.2d at 561. Here, Plaintiff has 

utterly failed to meet this extraordinary burden for its requested relief from this 

Court. 

Furthermore, under Fed. R. Civ. P. 65, a Court may issue a preliminary 

injunction “only if [Plaintiff] gives security in an amount that the court considers 

proper to pay the costs and damages sustained by [GCISD] found to have been 

wrongfully enjoined or restrained.” If the Court decides to enter a preliminary 

injunction, GCISD requests a bond in the amount of no less than $25,000 for 

attorney’s fees, costs and damages likely to result from the District being unlawfully 

ordered to abandon its long-held policy. 

V. CONCLUSION 

For the reasons stated Defendants request that the Court deny Plaintiff’s 

motion for temporary restraining order and preliminary injunction. In the 

alternative, Defendants request that the Court continue the hearing until such time 

the Defendants are properly served. 

 

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Dated September 23, 2021. 

Respectfully submitted, 

/s/ Joseph F. Cleveland, Jr. 

Joseph F. Cleveland, Jr. 

State Bar No. 04378900 

Sarah S. Flournoy 

State Bar No. 24036575 

BRACKETT & ELLIS P.C. 

100 Main Street 

Fort Worth, Texas 76102-3090 

Telephone: (817) 338-1700 

Facsimile: (817) 870-2265 

ATTORNEYS FOR DEFENDANTS 

 

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CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing document was 

forwarded this 23rd day of September, 2021, by United States mail, postage prepaid 

via certified mail, return receipt requested, to all counsel of record as shown below 

pursuant to the Federal Rules of Civil Procedure: 

Tony McDonald Via: Email 

tony@tonymcdonald.com

1501 Leander Dr., Ste. B2 

Leander, TX 78641 

/s/ Joseph F. Cleveland, Jr. 

Joseph F. Cleveland, Jr. 

1281948-v2/7613-024000 

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