15-3671

J ohnson v. Perry

1 UNI TED STATES COURT OF A PPEAL S 2 FOR THE SECOND CI RCUI T 3 - - - - - - 4 August Term, 2016 5 (Arg

ued: Octobe r 17, 2016 Dec ided: J une 8, 2017) 6 Docke t No. 15-3671 7

_________________________________________________________ 8 NORMAN JOHNSON, 9 Plaintif f-Appellee , 10 - v. - 11 STEPHEN D. PERRY, 12 Defendant- Appellant

. 13

_________________________________________________________ 14 Be fore : KEARSE, J ACOBS, and L OHI ER, Circuit Judges

. 15 Appea l from an interlocutory order of the United States District Court for the District 16 of Connecticut, Warren W. Eg inton, Judge , which principally denied defe ndant school principal' s 17 qualified-immunity -base d motion for summary judgme nt dismiss ing a claim that defe ndant violated 18 plaintiff' s First Amendment rig ht of fre edom of assembly in banning plaintiff from attending virtually 19 al l s chool events, on or off school proper ty , beca use of his opposition to defe ndant' s bully in g an d 20 hara ssing eff

orts to compel plaintiff' s daug hter to rema in a member of the school' s varsity g irls 21 basketba ll team. The district court denied defe ndant' s summary judgme nt motion on the g round that1 his entitlement to qualified immunit y could not be dete rmined without the resolution of g enuinely 2 disputed questions of fac t; the court also sua s p o n te revive d a previously dismiss ed claim that 3 defe ndant' s actions violated plaintiff' s rig ht t o d u e proce ss, and sua sponte ruled that there exis ted 4 gen u i n e i s s u es of materia l fac t to be tried with respe ct to that claim as well. On appea l, defe ndant 5 contends that as to both constitutional claims he was entitled to qualified immunit y as a matter of law, 6 even on the basis of the fac ts as plaintiff views them. As to the due proce ss claim, we conclude that 7 the district court' s ruling s are not within t h e s co pe of defe ndant' s notice of appea l. As to the First 8 Amendment claim, we conclude that defe ndant' s motion for summary judgme nt was proper ly denied 9 insofar a s plaintiff complains of being banned from events beyond school proper ty and from sports 10 contests on s chool prope rty to which the public is invited, but that defe ndant i s entitled to qualified 11 i m m u n i t y as a matter of law to the extent that plaintiff complains of being otherwise banned fro m 12 school proper

ty

. 13 Affir med in part a

nd reve rsed in par

t; appeal dismissed in part.

14 J OHN R. WI L L I AMS, New Ha ven, Connec ticut, for 15 Plaintif f-Appellee

.

16 L OR I A. M I Z ERAK, Offic e of Corporation Counsel for the City of 17 Har tford, Ha rtford, Connec ticut, for Defendant-Appe llant

.

18

21 KEARSE, Circuit Judge : 2 Def endant Stephen D. Perry , the principal of Capital Prepa ra t ory Mag net School 3 (" Capita l P re p ") i n Har tford, Connecticut, appea ls from an interlocutory order of the United States 4 District Court for the District of Connecticut, Warren W. Eg inton, Judge , denying Perry ' s qualified5 immunit y -base d motion to dismiss , by summary judgme nt, plaintiff Norman J ohnson' s claims that his 6 First Amendment rig ht of fre edom of assembly and his state-law rig ht to be fre e from the intentional 7 infliction of emotional distress wer e violated by Perry in banning J ohnson from attending virtually all 8 Capital Prep events, on or off school proper ty , beca use of his opp o s i tion to Perry ' s bully ing and 9 hara ssing ef

forts to compel J ohnson' s daug hter to rema in a member of the g irls varsity basketba ll 10 team. The district court denied Perry ' s summary judgme nt motion on the g round that his entitlement 11 to qualified im munity cannot be deter mined without the resolution of genuine ly disputed questio ns 12 of m ater ial fac t as t o motivation and re asonable ness; the cour t also sua sponte revive d a previously 13 dis m i s s ed claim that Perry ' s actions violated J ohnson' s rig ht to due proce ss, and it noted that there 14 exis t g enuine issues of m ater ial fac t to be tried with respe ct t o that claim as well. On appeal, P err y 15 challeng es the court' s decisions on the First Amendment and due proce ss claims, contending that he 16 is entitled to qualified immunity as a matter of law, even on the basis of t he facts as J ohnson views 17 them. 18 For the rea sons that follow we dismiss the appea l insofar as it perta ins to the claimed 19 due proce ss violation ( see Part I I .A.1. below). Insofar as the appea l perta ins to the First Amendment 20 claim, we conclude that Perry ' s motion for summary judgme nt was proper ly denied insofar as J ohnson 21 complains of being banned fr om events beyond school proper ty and from sports contests on school

31 proper

ty to which the public is invited, but that Perry is e ntitled to qualified immunit y as a matter of 2 law to the extent that he banne d J ohnson from school prope rty otherwise.

3 I . BA CKGROUND

4 As this is an appea l f rom the denial of summary judgme nt, we view the rec ord in the 5 light most fa

vorable to Johnson a s the party ag ainst whom summary judgme nt w as soug ht. And we 6 descr ibe the events g iving rise to this action as J ohnson contends they occur red, g iven Perry ' s asser

tion 7 of the rig ht to take this interlocutory appea l on the basis of "the plaintiff' s version of the fac ts" (Perr y 8 brief on a

ppeal a t 4, 9).

9 A. Johnson's Daughter W ithdraws From the Varsity Baske tball T eam 10 I n 2011-2013, J ohnson' s daug hter (to whom we ref er as "JD") was a student at Capital 11 Prep. Capital Prep required its students to participate in two sports. One of the s ports in which J D 12 participa

ted was basketba ll. I n her junior and senior y ear s, she was a m em b er o f both the junior 13 varsity

(" J V" ) and va

rsity teams; but on the varsity team she r ece ived ver

y littl e play

ing time. B oth 14 J ohnson and his wife Bonnie J ohnson (" Bonnie ") urg ed varsity basketba ll coac h Tammy Millsaps to 15 allow J D t o play more. J o hnson approa ched Mill saps at numerous practice s and game s; he said he 16 could work with J D and asked what he neede d to do to improve her play

. Millsaps responde d simply 17 that she would not g uara ntee anyone any amount of playing time. ( See , e.g. , Deposition of Norma n 18 J ohnson (" J ohnson Dep." ), at 23-25.)

41 J D, dissatisfied with her lack of playing time and with Millsaps's coac hing, told her 2 pare nts she felt she was being treated unfairly

. I n J anuary 2013, in her senior y ear , she no longe r 3 wanted to be a member of the varsity team and wanted to be only on the J V team, wher e she actua lly 4 g ot an opportunity to play the g ame. Her pare nts said they would sup p o rt h er decision whateve r it 5 was. 6 After a varsity basketba ll g ame on Saturday J anuar y 26, J ohnson attempted once ag ain 7 to speak with Millsaps about more playing time for his daug hter. When Millsaps responde d that she 8 didn't have time and would talk to him some other time, J ohnson told Millsaps that from that moment 9 on, J D would not be a me mber of the varsity team and w ould be playing only on the J V t eam. ( See 10 J ohnson Dep. 38; id

. at 71 (" I said, That' s okay

. You don' t have to w orry about it. She' s not pla ying 11 for y

ou no more. . . . She' ll just play J V." ).) 12 Prior to the end of that g ame, J ohnson and Bonnie had been discussing their intention 13 to speak to Millsaps about more play ing time f or JD. They wer e overhe ard by another Capital Prep 14 player' s mother, who chastised them for expecting J D to play in as "f ast pac ed [ a] gam e as this" 15 (January 31, 2013 email from Bonnie to Perry ) or in "a high profile g ame like this" (Johns on Dep. 70). 16 J ohnson told the other mother that he did not appre ciate her comment , b u t he did not g et into an 17 arg

ument with her. ( See id .) The parties dispersed without incide nt; but during the evening Bonnie 18 rec eived from the other mother "thr ea[ten]ing Instag ram messag es" (January 31, 20 1 3 em ai l from 19 Bonnie to Perry ) and te x ts to the effe ct that J D' s playing " sucked" (Johns on Dep. 70)

. 20 The J ohnsons, conce rned that J D and the other play er, when they next met, might g et 21 into a fig ht ( see , e.g. , id

. at 38), asked to meet with Millsaps, Perry , an d t h e school' s Direc tor of

51 Athletics, Chris Fulton. Bonnie and J D there aft er m et wi t h Millsaps and Fulton, but Perry did not 2 attend. The discussion cent er ed on J D' s desire to withdraw from the varsity team. Acc ording to 3 Bonnie ' s J anuar

y 31 email to Perry , Millsaps did not contribute to the discussion at that meeting ; but 4 afte r Bonnie depar ted, Millsaps met with J D alone, said she could not g uara ntee J D any playing time, 5 and said she vie wed the e ntire incident a s petty . Bonnie reque sted another meeting

. 6 J ohnson, Bonnie, a nd J D then met with Fulton. Perry was a g ain invited, but did not 7 attend. The J ohnsons and Fulton amicably discussed J D' s desire to be only on the J V team, wher e she 8 could play , and not to be a member of the varsity team. At that meeting , "[e]very thing was settled," 9 meaning

that J D " was g oing to play J V, and that wa s it." (Johnson Dep. 27.) 10 Nonethele ss, Perry , who had declined the previous reque sts to attend meeting s with J D 11 and her pare nts, there afte r proce eded repe atedly to summon J D from her classes to meet with him in 12 his office in the absenc e of her pare nts. In a span of five school day s, Perry called J D to his office four 13 times. Wit h Fulton in attendanc e, Perry attempted to bully J D into rema ining a member of the varsity 14 team. J D--who rec orded Perry ' s statements--r eporte d to her pare nts that Perry "t old [J D] that she 15 better suit up and he didn't want to hear nothing about it no more, that she was g oing to play " varsity 16 basketba ll. (J ohnson Dep. 30-31.) 17 P er ry ' s actua l opinion, later acknow ledg ed at a meeting attended by Perry , J ohn s o n , 18 Bonnie , J D, and the president of Har tford' s Parent Tea cher Org anization (" PTO") , wa s t h at J D's 19 basketba l l s k i l l s, while g ood, wer e "not g ood enoug h [for] play at a varsity championship level" 20 (Johns on' s Answer to Perry I nterrog atory No. 2). But Perry neede d J D to rema in on the varsity roster 21 so that the team would be elig ible to c ompete for the state c hampionship ( seeJ ohnson Dep. 19-20);

61 hence , J D was be ing ha rasse d to stay

on the team while be ing told " y ou will be playing va rsity , and 2 I ' m not goingto gua rante e you any

playing time" ( id . at 72). 3 On t he night of Februa ry 6, the J ohnsons sent Perry an ema il protesting his conduc t, 4 reque sting a

meeting , and dema

nding that he end the " bully ing a nd hara ssment" of

J D: 5 Our names are Norman G. and Bonnie G. J ohnson pare nts of [J D] 6 J ohnson. I t is imperative that y ou acknow ledg e this correspondenc e so that 7 this bullying and hara ssment discontinue. On these dates y ou have pulled [J D] 8 out of class 1/31/13, 2/1/13, 2/5/13, an d 2 / 6 / 13 to discuss varsity basketba ll. 9 After we told y ou that she is no longe r a varsity basketba ll team play er, due to 10 her being targ eted and hara ssed by Coach Tammy Millsaps. All of which 11 knew [ sic ] or should have known about. Instead y ou ref use to acknow ledg e the 12 phone conver sations, the persona l visits and wr itten corr espondenc e made. 13 I nstead y ou have taken [J D] out of class and demand that she play varsity 14 basketba ll ignor ing the fac t that we told y ou she was not to play

. [J D] is on the 15 junior varsity team and ear ning the second sports cre dit that is require d of her. 16 We are fully awa re that [J D] is being pursued to sit on the bench on the varsity 17 team in or der to c omplete the roster. That is something she nor we desire for 18 her to do. 19 Please consider t his as a formal request to meet with all o f t h e ab o ve 20 immediately

. We do not expect any reta liation (mistaken g rade s) being g lare d 21 at and having to defe nd herse lf ag ainst 3 adults knowin g full well she is 22 unevenly matched. 23 (F ebrua

ry 6, 2013 Email from Johns on and B onnie to Perry .)

24 B. The February 7, 2013 M eeting 25 On Thursday Fe bruar y 7, Bonnie called Perry to reque st a meeting

. Perry then called 26 J ohnson t o s ay t h at Perry was "sic k and tired of hear ing of [Bonnie] reque sting

. . . meeting s." 27 (Johns on Dep. 32.) Howeve r, Perry yielded when J ohnson said they wer e on their way to the school 28 to see Perry

. At the school, J ohnson, Bonnie , and J D met with Perry and PTO president Milli e 29 Arc ineg as. 71 Bonnie beg an by complaining of Perry ' s bully ing of J D with his insistence that she 2 rema in on the varsity team and suit up despite her decision to leave the t eam because she never got 3 to pla

y . Perry responde d by "sa [y ing] that [t ha]t wa s not bullying. Milli e told him that y es, it wa s," 4 to which Perry "shr ug g ed his shoulders, like, Really ? " (Johns on Dep. 35.) For most of the rest of the 5 meeting , Perry

repe atedly

"ta lk[ ed] over" the ot her participants, "divert[ed]" the conve rsation when 6 asked questions, and "inter rupt[ed] " J ohnson repe atedly

. ( Id

. at 39.) Finally , J ohnson asked Perry to 7 answe r just one question: 8 I asked h i m i f it was true, if he made the following statement to my 9 daug hter: You better suit up; I don' t w ant to he ar no more about it. You will 10 play

. 11 He looked me dead in my fac e and said, She' s a liar and a manipulator. 12 And he looked at Mill ie and he said, You know who to be lieve. 13

. . . . 14 I , in turn, slammed my hand and s ai d , No, you are a liar and a 15 manipulator, and you are full of cr ap. 16 (

Id .; see also id

. at 73 (Johns on told Perry "that he was full of shit").) J ohnson testified that as he sat 17 there afte r makingthat statement, Perr y "jumped up" and we nt "c razy ": 18 I ' m sitting down just like this. I t was at a round table. H e jumped up 19 and starte d holleringat me and g oing c razy and whatnot, and he said that the 20 meetingwas ove r. 21 Q. Were you sitti ng the whole time during the meeting ? 22 A. Yes, I was. He t o l d me not to talk to him like that. I said, I t was 23 okay for you to talk to my

daug hter like that?

. . . . It w as all rig ht f or you to 24 manipulate my daug hter rig ht in front of us? 25 Q. So how wer e y ou fee ling at that meeting ? Were y ou mad, happy ? 26 What was g oing thr oug h y our mind at that meeting ?

81 A. I was like, I can' t believe this. He made a statement, and that' s 2 probably why he blew . . . . 3 (Johns on Dep. 40.)

4 C. Perry Bans J ohnson from Capit al Prep Eve nts--On or Off Campus 5 On the following Sunday , J ohnson rec eived an email from Perry stating that J ohnson 6 was " tres[pa]ssed from" Ca pital Prep: 7 This letter is to inform y ou that as of Fe brua ry 10, 2013, y ou are 8 tres[pa]ssed from the Capital Prepar atory Mag net School and its events, 9 (

including but not limited to sports both on and off campus) , with the exception 10 of commence ment exercises on May 31, 2013; afte r which the trespass will be 11 reinstated. Disreg arding this corr espondenc e by coming to school g rounds or 12 to an eve nt in which Capital Prep is a participant , will result in y our 13 immediate re moval. 14 Y o u r v e r b a l a lt e r c a ti o ns, phy sical intimi dation and direc t threats to s ta f f 15 have cre ated an unsafe environment for staff, stude n ts and other pare nts and 16 will no longer be tolerated. 17 A copy of t his letter is b eing s ent t o the Hartford Boar d of Education 18 and the Har tford Police Depa

rtment as well as other communities and venues 19 wher e the Capital Prepa ratory Mag net School' s activities may occur . 20 (F ebrua

ry 10, 2013 email from Per

ry to J ohnson (the " Trespa ss Notice" ) (e mphases adde d).) 21 The Trespass Notice did not bar J ohnson from contacting school staff, nor did it bar 22 him f

rom attending school board meeting s. After rec eiving the Trespa ss N otice, J ohnson contac ted 23 s everal school board officia ls to attempt to contest it, without succe ss--eve n though the Assistant 24 Superintendent of Har tford Schools, J onathan Swan, said his information was that no pare nt had ever 25 befor e bee n banned f rom the school. 26 As a result of the ban, J ohnson, when picking up his daug hter by car afte r school, was 27 not allowed to stop in front of the school but was require d to wait down the street, even in an

91 emer g ency . He was not allowed to attend J D's fi n al p rese ntation, during her last semester , of her 2 Senior Social J ustice P rojec t, on which she had worked hard for two y ear s. ( SeeJ ohnson' s Answer 3 to Perry

Interrog atory

No. 11.) 4 J ohnson was also not allowed to attend the F ebrua ry 11 "se nior nig ht" c elebr ation at 5 Capital Prep, an event that honored students on the school' s various teams. J D, no longe r on the 6 vars i t y t ea m but still a member of the J V team, was rele g ated to the audienc e, rathe r than being 7 honored. J ohnson attempted to attend the event, but befor e doing so, he consulted the Har tford Police 8 Depa

rtment (" HPD")

. He was informed that it had no knowledg e of t h e Trespa ss Notice or any 9 restraining order ag ainst him. HPD advised J ohnson to g o to Capital Prep and speak to a secur ity 10 guard. J ohnson proce eded to do that, but, while he was speaking with the g uard, Pe rr y "c[ a] me[] 11 running out of the g y m hollering , scre aming , acting like a lunatic." (Johns on Dep. 49.) J ohnson 12 attempted to explain that HPD had told him to speak to the secur ity g uard, but Perry said "[t]hat ain' t 13 g oing to ha

ppen. I want him out of here . Get out." ( Id .) Johns on left. 14 I n Marc h, the Capital Prep varsity g irls basketba ll team-- with J D no longe r a member-

- 15 played in the s tate championship g ame, held at Moheg an S un Casino. J ohnson attempted to attend 16 the g ame with his family

. Be fore doing so, he spoke to Assistant School Superintendent Swan, who 17 assure d him that Perry could not bar him from atten d i ng . Neve rtheless, afte r J ohnson was seate d, 18 Fulton arr ived and asked him to "just g et up and leave ," telling him that i f h e did not, Capital Prep 19 officia ls would "ha ve [hi m] taken out of here ." (Johns on Dep. 55.) J ohnson rema ined in place

. Then, 20 afte r one basketba ll g ame concluded, two Moheg an S un staff me mbers ins tructed J ohnson to come 21 with the m, inf

orming him that Perry "sa id that [J ohnson] was a threat to the community " and had to 22 leave

. (

Id

. at 56.) Those men ushere d J ohnson out of the are na, into a corr idor wher e there wer e

101 sever al additional secur ity g uards and a police office r with his hand on his g un, and took J ohnson out 2 of the stadium ar ea.

3 D. The Present Ac tion 4 I n September 2013, J ohnson broug ht the prese nt action under 42 U.S.C

. § 1 983 in 5 Connecticut state cour t

. T he complaint briefly descr ibed the above events and alleg ed that Perry' s 6 actions violated J ohnson' s First Amendment rig ht of assembly , his F ourtee nth A mendment rig hts to 7 du e p ro cess and equal protec tion, and his state-law rig ht to be fre e from intentional infliction o f 8 emotional distress (or "I I ED" ). Perry remove d the action to fede ral court and moved under Fed. R. 9 Civ. P . 12(b)( 6) to dismiss t he complaint for failure to state a c laim on which re lief ca n be g rante d. 10 T h e d i strict court g rante d the motion to dismiss the due proce ss claim ( but see P ar t 11 I I .A.1. below) and the equal protec tion claim. The court denied the motion t o d i s m i s s t he First 12 Amendment claim, conclud ing that the complaint plausibly alleg ed that Perry' s actions in barr ing 13 J ohnson from school eve nts were not rea sonable a nd viewpoint neutra l; and it denied the motion to 14 dismiss the I I ED claim, concluding that the complaint plausibly alleg ed fac ts from which a jury could 15 find the elements of that state-law claim proven. See Johnson v. Perry , No. 3:13-cv-01531, 2014 WL 16 4794532 (D. Conn. Sept. 25, 2014) (" Johnson I ")

. Although the court dismiss ed the due proce ss and 17 equal pr otection claims with leave to amend, Johnson di d not file an amended c omplaint. 18 Following completion of the pleading s an d d i s co very , Perry moved for summary 19 judgme nt dismiss ing J ohnson' s surviving First Amendment and I I ED claims. To the extent pertinent 20 to this appea l, P er ry ar gu ed that he was entitled to summary judgme nt dismiss ing the First 21 Amendment claim on the basis of his defe nse of qualified immunit y . Perry filed a statement, pursuant

111 to D. Conn. L ocal Rule 56.1, of ma terial fa cts as to which he contended ther e wa s no g enuine issue 2 to be tried (Perr

y ' s "Rule 56.1 Sta t em en t") , stating that J ohnson at t he Februa ry 7 meeting y elled at 3 Perry and told him he was "f ull of shit" (Rule 56.1 Statement ¶ 17) a nd that J ohnson had previously 4 had "c onfront[ations] " with Millsaps and a pare nt ( id

. ¶¶ 18, 19), and quoting the text of Perry' s 5 Trespa ss Notice ( see id

. ¶¶ 22, 3 3 ). The Rule 56.1 Statement did not, howeve r, contain a fac tual 6 asse rt i o n t h at J ohnson ever threa tened anyone. Perry' s inquiry at his deposition as to whom the 7 Trespa ss Notice claimed he had threa tened or intimi dated (see J ohnson Dep. 80) had g one unanswe red 8 (see ge nerallyPerry ' s Rule 56.1 Statement ¶ 32). 9 I n Johnson v. Perry , 140 F.Supp.3d 222 (D. Conn. 2015) (" Johnson I I ") , the di strict 10 court de nied Perry ' s summary judgme nt motion, s tating in pa rt as follows: 11 "T he rig ht of peac eable assembly is a rig ht cog nate to those of fre e 12 speec h and fre e press and is eq u al l y fu n damental." De Jonge v. State of 13 Oregon , 299 U.S. 353, 364, 57 S.C t. 255, 81 L .Ed. 278 (1937). 14 A school is g ener ally considere d a nonpublic forum, as it is a proper ty 15 that is not traditionally open to the p u b l i c for communication.

. . . "[T]he 16 g overnme nt e njoy s g reater latitude in restric ting speec h in a nonpublic forum 17 and may limit acc ess or content based on subject m atter and speake r i dentity 18 so long as the distinctions drawn are rea sonable in light of the purpose serve d 19 by the forum a

nd are viewpoint neutra l." Byrne v . Rutledge , 623 F.3d 46, 54 20 (2d Cir. 2010). Ho weve r, there is no cate g orica l rule that the interests of a 21 school in safe ty and order alway s outweig h constitutional rig hts.

. . . Whil e [i ]t 22 is clea r a publi c s ch o o l has a compelling interest in maintaining order and 23 ensuring safe ty on its g rounds

. . . restrictions on the First Ame ndment rights 24 of parents and other membe rs of the public

. . . must be reasonable

. . . . 25 Her e, defe ndant argues that the b an was rea sonable and viewpoint 26 neutra l beca use it was justified by defe ndant' s conce rn that plaintiff posed a 27 dang er to the staff and children at the school. Ho w ever, whether plaintif f 28 posed a danger to staff and children at the school is a disputed fact

. Equally 29 disputed is whether defendant banned plaintif f from school property based on 30 a disagreeme nt with the message plaintif f was conveying

. That plaintif f's 31 comme nts may have caused discomfort on the part of school staff, or may have 32 been the subject of disagreeme nt cannot justif y governm ental restriction or

121 suppression based on those comme nts

. See Tinker v. Des Moines Indepe ndent 2 Com muni ty School Dist. , 393 U.S. 503, 509, 89 S.Ct

. 733, 21 L .Ed.2d 731 3 (1969) (" I n order for the State in the person o f s chool officia ls to justify 4 prohibition of a particula r expression of opinion, it must be able to show that 5 it s ac t i o n was cause d by something more than a mere desire to avoid the 6 discomfort and unpleasa ntness that alway s accom p an y an unpopular 7 viewpoint.")

. 8 Def endant argues in the alternative that plaintiff has no First 9 Am e n d me nt r ight to attend school events. Although the First Amendment does 10 not g uara ntee unfetter ed acc ess to school g rounds, this argument cannot trump 11 the require ment that restric tions on assembly and speec h b e rea sonable and 12 viewpoint neutra l . . . . 13 Johnson II

, 140 F.Supp.3d at 226-27 ( other interna l quotation marks omitted (emphases our s)). 14 The court conclude d that if J ohnson' s version of the events wer e cre dited by the 15 fac tfinder, h i s Fi rst Amendment rig ht was sufficie ntly clea rly established that Perry would not be 16 entitled to qualified immunity : 17 Viewed in the light most favorable to plaintif f , a narr ow view of the fac ts also 18 establishes that plaintiff' s rig hts wer e define d with rea sonable specific ity under 19 exis ting law such that a rea sonable officia l would have understood that his acts 20 wer e unlawf ul. 21 Indee d, plaintif f's First Amendm ent rights would be violated if 22 defendant banned plaintif f from participation in his daughte r's public school 23 education mere ly because defendant disagreed with plaintif f's viewpoint or 24 because of a r b i t r ary bias

. . . . This is the story that plaintiff will tell. 25 Def endant will contend that, in his opinion, plaintiff' s i n t imidating behavior 26 was so threatening that defe ndan t 's d ecision to implement such a ban was 27 rea sonable[ and] viewpoint neutra l

. . . . As g enuinely disputed fac tual issues 28 materia l to the qualified immunit y defe nse exis t, qualified immunit y will be 29 denied. 30 Id . at 230-31 (e mphases adde d). 31 As discussed in g rea ter detail in P art I I .A.1. below, the district court, in addition to 32 ruling on Perry ' s summary judgme nt motion, revisited and resc inded its prior dismiss al of J ohnson' s

131 due proce ss claim. The court sua sponte reinstated that claim, concluding that a cause of action was 2 stated.

3 I I . DI SCUS SI ON

4 On appe al, Perry pursues his arguments, made in the district c ourt, that he is entitled 5 to summary judgme nt on the basis of qualified immunit y with respe ct to J ohnson' s First Amendment 6 claim. He contends (a) that banning J ohnson from Capital Prep events did not violate J ohnson' s First 7 Amendment rig ht of assembly , or (b) that if it did, that rig ht was not clea rly established at the time the 8 ban was imposed. I n addition, he contends that excluding Johns on from school e vents without any 9 hearing did not violate J ohnson' s liberty interest in direc ting his daug hter' s education and that a pare nt 10 had no cle arly

established liberty

interest in havingacc ess to school proper ty

. 11 For the rea sons that f ollow, w e conclude that Perry ' s challeng es to the district c ourt' s 12 decision to r einstate and enter tain J ohnson' s due proce ss c laim a re not pr operly befor e us. As to the 13 challeng es to J ohnson' s First Amendment claim, we conclude that Perry was not entitled to summary 14 judgme nt for barr ing J ohnson from attending Capital Prep events held beyond school proper ty or 15 attending sports contests on school proper ty to whi ch t h e public was invited, but was entitled to 16 qualified immunity for ba nning Johnson from school proper ty otherwise.

17 A. The Issues Addressable on thePresent Appe al 18 The issues to be addre ssed in this appea l are cabine d by three sets of principles: those 19 g overning (1) the require d contents of the notice of appea l, (2) the require d contents of the appellant' s

141 brief, and (3) the applicability of the final judgme nt rule, see 28 U.S.C. § 1291, to denials of qualified2 immunit y -base d motions for summary judgme nt.

3 1. The Due Proc ess Claim and Perry's Noti ce of Appe al 4 The Fe dera l Rules of Appellate Procedur e (" FRAP Rules") provide that the appellant' s 5 "notice of appea l must

. . . desig nate the judgme nt, order , or part th er eo f b ei n g ap p eale d." Fe d. R. 6 App. P. 3(c) (1)( B)

. This "r equire ment for specific ity in a notice of appea l ref ers to the relief g rante d 7 or denied" by the district court, Mt. McKinley Insurance Co. v

. Corning Inc

. , 399 F.3d 436, 445 (2d 8 Cir. 2005), an d t h e co n t en ts of the notice of appea l define the scope of the appellate court' s 9 jurisdiction, see , e.g. , Sheng v. M & TBank Corp. , 848 F.3d 78, 88 ( 2d Cir. 2017) (" Sheng ") ; Kovaco 10 v. Rock

bestos-Surprenant Cable Corp. , 834 F.3d 128, 134 (2d Cir. 2016) (" Kovaco ") ; New Phone Co. 11 v. City of New York , 498 F.3d 127, 130 (2d Cir. 2007); Kowsh v. Board of E lections , 99 F.3d 78, 80 12 (2d Cir. 1996) (" Kowsh ")

. 13 I n Kovaco , the notice of appea l stated that the plaintiff appea led from an order g ranting 14 summary judgme nt on his claims of discrimination under three statutes that wer e listed in the notice. 15 We con cl u ded that we did not have jurisdiction to revie w the dismiss al of a claim the plaintiff had 16 brought u n d er a fourth, unmentioned, statute. See 834 F.3d at 134-35. In Sheng , which involved 17 fede ral and state-law claims of disability discrimination, the district court, afte r the close of evidenc e 18 at trial, had dismiss ed as a matter of law the claim broug ht under the New York State Human Rights 19 L aw (" NYSHR L ")

. Af t er the jury found in favor of the defe ndant on the rema ining claims, the 20 plaintiff appea led, filing a notice of appea l stating that the appea l was taken "' from the jury verdic t 21 enter ed in th[e] action,' " 848 F .3d at 88 (e mphasis in Sheng ). We conc luded that the appe al did not

151 encompa ss the court' s dismiss al of the NYSHRL claim. See id

. In Kowsh , the notice of appea l stated 2 th at the pl aintiffs appealed from "the Memorandum and J udg ment" of the di strict court "re versing " 3 the mag istrate judg e' s "[r]ecommendation . . . that an injunction be issued placing J ulio C. Ramirez 4 on the ballot f

or the November 5, 1996 Gene ral Elections." 99 F.3d at 80 ( internal quotation ma rks 5 omitted). When the plaintiffs soug ht to argue on appea l not only that the injunction should have been 6 g rante d, but also that the voter plaintiffs should be allowed to vote in a cer tain elec tion district and that 7 Ramirez's claim for damag es should not have been dismiss ed, we conclude d that "only so much of the 8 district court' s judgme nt as denied an injunction placing Ramirez's name on the ballot [wa]s proper ly 9 befor e us." Id

. 10 I n the prese nt case , as indicated in Part I .D. above, J ohnson' s complaint asser ted four 11 claims: violations of his First Amendment rig ht of assembly , his Four teenth Amendment rig ht to due 12 proce ss, and his Four teenth Amendment rig ht to equal protection, and his state-law I I ED cla i m . In 13 2014 in Johnson I , the district court, pursuant to Rule 12(b)( 6), dismiss ed J ohnson' s equal protec tion 14 and due pr ocess c laims. 15 Perry subsequently moved for summary judgme nt, noting that since the equal 16 protec tion and due proce ss claims had been dismiss ed, his "motion fo r s u m m ar y judgme nt is thus 17 direc ted to the rema ining counts of the co mplaint: Count One, which alleg es First Amendment 18 violations (pe ace ful assembly ), and Count F our, which sounds in intentional inf liction of emotional 19 distress." (De fenda nt's Memorandum of L aw in Support of M o t ion for Summary J udg ment at 2 20 (" Perry ' s SJ Memorandum" ).) In 2015, the district court denied the summary judgme nt motion. See 21 Johnson II

, 140 F.Supp.3d at 226-28, 229- 30.

161 I n addition, the court re instated J ohnson' s due proc ess claim sua sponte : 2 The Court dismiss ed plaintiff' s due proce ss claim without prejudice to 3 amend his complaint to add alleg ations that attendanc e at school events is a 4 rig ht pr otected by law. Plaintiff declined to a mend, but the Court now holds, 5 sua sponte , that plaintiff' s complaint, which alleg es t h at d efendant banned 6 plaintiff from all school events, except commence ment, implicated the 7 fundame ntal rig ht of a pare nt to make decisions conce rning the car e, custody , 8 and contr ol of his child. 9 Id . at 228; see id . at 229 (" Although the State has authority to restrict school a cce ss to ensure a safe 10 and productive environment, it may not so signific antly prohibit an individual pare nt from normal 11 school acc ess without aff ordi n g t h e p arent a fundame ntally fair opportunity to contest the State' s 12 assert ed re as ons for doing so.")

. The court stated that "[t]he parties may submit a revised case 13 manag ement schedule within 14 day s to allow for further discovery or additional dispositi ve motion 14 prac tice on the due proce ss count." Id . at 231. 15 Perry there afte r filed a

timely notice of a

ppeal that state d as follows: 16 Notice is here by g iven t h at S t ephen D. Perry , the defe ndant in the 17 above- named case , here by appea ls to the Court of Appea ls for the S ec o n d 18 Circuit from the Memorandum of Dec ision deny i n g defendant' s motion for 19 summary judgment (Doc

. No. 24) issued by J udg e Warren W. Eg inton enter ed 20 in this action on the 21st day of Oc tober, 2015. 21 (Emphasis added.) As this notice neither stated that Perry wished to challeng e all parts of the district 22 court' s order nor m entioned the court' s revival a nd continuation of Johns on' s due process claim sua 23 sponte , but instead expressly ref err ed to the denial of Perry ' s motion for summary judgme nt, we cannot 24 infer that the notice encompa ssed any ruling by the district court other than that denying his summary 25 judgme nt motion. 26 We note that Perry subsequently indicated as part o f h i s "Fo rm C" Pre-Ar g ument 27 documents in this Court that he would ask us to consider the due proce ss claim. We would deem that

171 document to be a further , amende d, notice of appea l if it had been filed within the 30 day s allowed by 2 Fe d. R. App. P. 4(a) (1)( A) for the filing of a notice of appea l, see generally Smith v. Barry , 502 U.S. 3 244, 248-49 (1992) (" I f a document filed within the time specifie d by Rule 4 g ives the notice require d 4 by Rule 3, it is eff ective as a notice of appea l.")

. Howeve r, Perry ' s For m C was filed beyond the Rule 5 4 deadline. FRAP Rule 4 "e stablishes mandatory time limit s for filing a notice of appea l," Gonzalez 6 v. Thaler , 565 U.S. 134, 147 (2012), a nd "time limits for filing a notice of a

ppeal ha ve bee n treated 7 as jurisdictional in Ame rica n law for well over a centur y ," Bowles v. Russell , 551 U.S. 205, 209 n.2 8 (2007). 9 We conclude that the di strict court' s treatment of J ohnson' s due process cl ai m is not 10 within the scope of Per ry ' s notice of a

ppeal, a nd we thus lac k jurisdiction to review that de cision.

11 2. The IIED Claim and Perry's Brief 12 I n contra st, Perry ' s notice of appea l does encompa ss the denial of his motion to dismiss 13 J ohnson' s state-law claim for intentional infliction of emotional distress, since that was one of the two 14 claims as to which Perry moved for summary judgme nt. Howeve r, the FRAP Rules provide that with 15 respe ct to eac h issue on which appellate relief is soug ht, the appellant' s brief on appea l must set out, 16 inter alia , the appe llant's c ontentions and his rea sons, along with citations to the authorities and the 17 parts of the rec ord on which the appellant r elies. SeeFe d. R. App. P. 28(a)(8)

. 18 I n his brief on this appea l, Perry prese nts only argum en ts "w ith respe ct to the 19 C o n s t i t u t ional claims" (Perr y brief on appea l at 5), and none with respe ct t o the I I ED claim. Thus , 20 even if the denial of Perry ' s motion for summary judgme nt dismissing the I I ED claim--a motion not 21 b a s e d on qualified immunit y --we re immediately appea lable, any challeng e to the district c o u r t' s f a ilu r e

181 to dismiss that claim has been abandone d, see generally Otero v. Bridgeport Housing Authority , 297 2 F.3d 142, 144 (2d Cir. 2002); Day v. Morgenthau , 909 F.2d 75, 76 (2d C i r. 1 9 9 0 ); Fed. R. App. 3 28(a) (8).

4 3. The First Amendment Claim and the Proper Sc ope of Rev iew 5 Ordinar ily , the denial of a motion for summar y ju d gme nt is n o t immediately appea lable 6 b ec ause such a decision is not a final judgme nt, see 28 U.S.C. § 1291. Under the collat er al o rd er 7 doctrine , howeve r, the denial of a qualified-immunity -base d motion for summary judgme nt is 8 immediately appea lable to the extent that the merits of the defe nse can be decide d as a matter of law, 9 althoug h not to the extent that the defe nse will depend on the resolution of questions of fac t. See , e.g. , 10 Behrens v. Pell et i er , 516 U.S. 299, 313 (1996); Johnson v. Jones , 515 U.S. 304, 313-18 (1995); 11 Mitchell v. Forsyth , 472 U.S. 511, 530 (1985); O'Bert ex rel. Estate of O'Bert v. Vargo , 331 F.3d 29, 12 38 (2d Cir. 2003) (" O'Bert ") ; Martinez v. Simonetti , 202 F.3d 625, 632 (2d Cir. 2000). "[W] here the 13 district court has denied a qualified-immunity -base d motion for summary judgme nt on the g round that 14 there are triable i s sues as to which party ' s version of the fac ts is to be acc epted, a defe ndant may 15 pursue an immediate appea l if he adopts the plaintiff' s version of the fac ts, c ontending that the fac ts 16 asser

ted by the plaintiff ' entitle [t he defe ndant] to the defe nse of qualified immunit y as a m at ter of 17 law.' " O'Bert , 331 F.3d at 38 (quoting Salim v. Proulx , 93 F.3d 86, 91 ( 2d Cir. 1996)). 18 As descr ibed in Part I .D. above, the district court in the prese nt case found that Perry' s 19 entitlement to qualified immunity will depend on which ve rsion of the facts t he jury acc epts. Perry 20 pursues thi s appea l on the pre mise that he is entitled to qualified im munity even on J ohnson' s view 21 of t he facts. I t is only on that basis-- i.e. , that J ohnson' s version of the facts is corr ect- -that we have

191 jurisdiction over Perry ' s challeng e to the denial of summary judgme nt on J ohnson' s First Amendment 2 claim. We proce ed on that basis. And, a s usual, in review ing the denial of summary judgme nt, we 3 will resolve all ambig uities and draw all rea sonable fac tual infere nce s in favor of the party ag ainst 4 whom summary judgme nt w as soug ht, see , e.g. , Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 255 5 (1986).

6 B. Qualified Immunity Principles 7 The doc trin e of "[q]ualified immunit y shields g overnme nt officia ls from civil damag es 8 liability unless t h e o ff i cial viol ated a statutory or constitutional rig ht that was clearly established at 9 the time of the challeng ed conduct." Reichle v. Howards , 566 U. S

. 658, 664 (2012); see , e.g. , 10 Anderson v. Creighton , 483 U.S. 635, 639 (1987); Rogoz v. City of H artford , 796 F.3d 236, 247 (2d 11 Cir. 2015) (" Rogoz ")

. 12 [W ]hen a defe ndant officia l invokes qualified immunit y as a defe nse in or der 13 to supp o rt a motion for summary judgme nt, a court must consider two 14 questions: (1) whether the evidenc e, viewed in the light most favor able to the 15 p l ai n t i ff, makes out a violation of a statutory or constitutional rig ht, and (2) 16 whether that rig ht w as clea rly established at the time of the alleg ed violation. 17 Tracy v. Freshwater , 623 F.3d 90, 96 (2d Cir. 2010) (" Tracy ") ; see , e.g. , Saucier v. Katz , 533 U.S. 18 194, 201 (2001), modified by Pearson v. Callahan , 555 U.S. 223 (2009). We are entitled to "' exercise 19 [our] sound discretion in deciding which of the two prong s of the qualified immunit y analy sis should 20 be addr essed f

irst.'" Tracy , 623 F.3d at 96 (quoting Pearson , 555 U.S. at 236). 21 The second prong of the standard means that officia ls are "en t i t l ed t o qualified 22 immunit y

[when] t heir decision was rea sonable, even if mistaken," Hunter v. Bryant , 502 U.S. 224, 23 229 (1991), which "pr otect[s] ' all but the plainly incompetent or t h o s e wh o knowing ly violate the

201 law,' " id

. (quoting Malley v. Briggs , 475 U.S. 335, 343, 341 (1986))

. Ag ainst a background of clea rly 2 established law, the availability of qualified immunit y "g ener ally turns on the [defendant' s conduct' s] 3 ' objective leg al rea sonablen es s . '" A n derson v. Creighton , 483 U.S. at 639 (quoting Harlow v. 4 Fitzgerald , 457 U.S. 800, 819 (1982)). 5 Qualified immunity is an aff irmative def

ense on which the defe ndant has the bur den 6 of proof

, either at trial or on a motion for summary judgme nt. See , e.g. , Gomez v. Toledo , 446 U.S. 7 635, 640 (1980); Rogoz , 796 F.3d at 247. Summary judgme nt on this basis is available if, with the 8 fac ts taken in the lig ht most favorable to the plaintiff, the allege d constitutional rig ht either wa s not 9 violated or was not clea rly established at the time of the alleg ed viol at i on. See , e.g. , Anderson v. 10 Creighton , 483 U.S. at 639-40; Rogoz , 796 F.3d at 247; Tracy , 623 F.3d at 96. 11 The operation of the "c lear ly established" standard "de pends substantially upon the 12 level of g ener ality at which the r eleva

nt 'le g al rule' is to be identified." Anderson v. Creighton , 483 13 U.S. at 639. "T he contours of the rig ht must b e sufficie ntly clea r that a rea sonable officia l would 14 understand tha

t what he is doingviolates that rig ht." Id . at 640. Howe ver, 15 [t ]hi s is not to say that an officia l action is protec ted by qualified immunit y 16 unless the ver y action in questi on has previously been held unlawful, . . . but 17 it is t o s ay that in the light of pre- exis ting law the unlawfulne ss must be 18 appar ent. 19 Id . Thus, 20 [t ]he unconstitutionalit y of outrag eous conduct obviously will be 21 unconstitutional, this being the rea son, as J udg e Posner has said, that "[t]he 22 easie st case s don' t even arise." K.H. v. Morg a n , 9 1 4 F.2d 846, 851 (CA7 23 1990). But even as to action l es s t han an outrag e, officia ls can still be on 24 notice that their conduct violates established l aw . . . in novel fac tual 25 circ umstances. 26 Safford Unified School District No. 1 v. Redding , 5 5 7 U. S

. 364, 377-78 (2009) (other internal 27 quotation marks omitted).

211 C. First Amendment Principles 2 T h e F ir s t Ame n d me nt p r o h ib it s th e g o vernme nt from "a bridg ing the fre edom o f s p e e c h , 3 or of the press," and g uara ntees "the rig ht of the people peac eably to assemble." U.S. Const. amend. 4 I

. "T h e ri gh t o f p eac eable assembly is a rig ht cog nate to those of fre e speec h and fre e press and is 5 equally fundame ntal." De Jonge v. Oregon , 299 U.S. 353, 364 (1937). "[O]f all constitutional rig hts, 6 the fre edoms of speec h and of assembly are the most perishable , y et the most vital to the prese rvation 7 of Americ an democr acy ." W olff v. Selec tive Servic e Local Board No. 16 , 372 F.2d 817, 822 (2d Cir. 8 1967); see , e.g. , Thomas v. Colli ns , 323 U.S. 516, 530 (1945) (" I t was not by acc ident or coincidenc e 9 that the rig hts to fre edom in speec h and press wer e coupled in a single g uara nty with the rig hts of the 10 people peac eably to assemble and to petition for redr ess of g rieva nces. All these, though not identical, 11 are insepara

ble." ). 12 "[G]overnment officia ls may stop or disperse public demonstrations or protests wher e 13 ' clear and present danger of riot, disorder, inter fer ence with traff ic upon the public stree ts, or other 14 immediate threat to p u b l i c safety, peace , or order , appea

rs.' " Papineau v. Parmley , 465 F.3d 46, 15 56-57 (2d Cir. 2006) (" Papi n eau ") (quoting Cantwell v. Connecticut , 310 U.S. 296, 308 (1940) 16 (empha ses ours)). Howeve r, " [f] ear of serious injury cannot alone justify suppression of fre e speec h 17 and assembly

. . . . To justify suppression of fre e speec h there must be reasonable ground to fear that 18 serious evil will result if f r ee s p ee ch is practiced ." United States v. National Treasury Employe es 19 Union , 513 U.S. 454, 475 (1995) (interna l quotation marks omitted (empha ses ours)). "T he First and 20 Four

teenth Amendments do not permit a State to make criminal the exercise of the rig ht of assembly 21 simply beca

use its exercise may be annoying to some people." Coates v. City of Cincinnati , 402 U.S. 22 611, 615 (1971) ( internal quotation marks omitted).

221 Nonet h el ess, "[n]othi ng in the Constit ution require s the Gover nment fre ely to g rant 2 acc ess to all who wish to exercise their rig ht to fre e speec h on ever y ty pe of Gover n m en t proper ty 3 without reg ard to the nature of the proper ty or to the disruption that might be cause d by the speake r' s 4 activities." Cornelius v. NAACP Legal Defense & Educational Fund, Inc. , 473 U.S. 788, 799-800 5 (1985). Where there is no clea r and prese nt dang er, "spe ech restric tions imposed on [persons on] 6 g overnme nt-owned proper ty are analy

zed under a ' forum-ba sed' approa ch that divides go v er n m ent 7 proper

ty into thre e [principal] cate g ories-- the traditional public forum, the desig nated public forum, 8 and the nonpublic forum," Byrne v. Rutledge , 623 F.3d 46, 53 (2d Cir. 2010), along with "a subset of 9 the desig nated public forum," ref err ed to as the "limited public forum," id

. at 54 n.8 (interna l quotation 10 marks omi tted); see , e.g. , Pec k ex r el. Peck v. Baldwinsvill e Central School Dis trict , 426 F.3d 617, 11 625-26 (2d Cir. 2005) (" Pec k ") , cert. denied , 547 U.S. 1097 (2006); Make the Road by W alking, Inc. 12 v. Turner , 378 F.3d 133, 142-43 (2d Cir. 2004) (" Make the Road ") ). "[T]he level of judicial scrutiny 13 that must be applied to state actions inhibiti ng speec h varie s with the nature of the forum in which the 14 speec h occur s," Pec k, 426 F.3d at 625, and the sa me ana ly tical fra mework a pplies whether the First 15 Amendment rig ht being exercised is speec h, as in Pec k, or other "e x pre s s i v e ac t ivity " such as 16 assembly , see , e.g. , Travis v. Owego-Apalac hin School Distr i ct , 9 2 7 F.2d 688, 692 (2d Cir. 1991) 17 (" Travis ")

. 18 Traditiona l p u b l ic forums include area s such as "stre ets[ and] parks .

. . ' which have 19 immemorially been held in trust for the use of the publ ic and, time out of m ind, have be en used f or 20 purposes of assembly ' "; as to a traditional public forum, t h e s t ate may not enac t "' [c] ontent-base d 21 restric tions'" unless "' they are nece ssary to serve a compelling state interest.' " Pec k, 426 F.3d at 625-26 22 (quoting Makethe Road , 378 F.3d at 142).

231 A "de signated public forum" is a place that, althoug h not traditionally open for public 2 assembly and d eb ate, "the g overnme nt has taken aff irmative steps to open for g ener al public 3 discourse." Pec k, 426 F.3d at 626 (interna l quota tion mar ks omitted); see , e.g. , Cornelius , 473 U.S. 4 at 802 (" The g overnme nt does not cre ate a public forum by inaction or by permitting limit ed discourse, 5 but only by intentionally opening a nontraditional forum for public discourse."). "S p ee ch in a 6 desig nated public forum is entitled to the same constitutional protec tion as that extended to expression 7 in a traditional public forum, so long as the state continues to desig nate the forum for such use." Pec k, 8 426 F.3d at 626. Howeve r, "the g overnme nt may decide to close a desig nated public forum." Make 9 the Road, 378 F.3d at 143. 10 A limit ed public forum is "c rea ted when the State opens a non-public forum but limit s 11 the expressive activity to cer tain kinds of speake rs or to the discussion of cer tain subjects." Pec k, 426 12 F.3d at 626 (interna l quotation marks omitted). In a limit ed public forum, regulations g overning the 13 content of spe ech a re a llowed, so long as they are "r easona

ble" and " viewpoint-neutra l." Id

. 14 A nonpubl ic forum is one that "is neither traditionally

open to publ ic ex pression nor 15 desig nated for s uch expression by the S tate" ; in such a forum, as in a li mited public forum, content 16 reg

ulations are allowed if they are "r easona ble and viewpoint-neutra l." Id

. (interna l quotation marks 17 omitted); see , e.g. , Lamb's Chapel v. Center Moriches Union F r ee S ch o o l District , 508 U.S. 384, 18 392-93 (1993) (" ' [C ]ont rol over acc ess to a nonpublic forum can be bas ed o n s u b j ec t matter and 19 speake r identity so long as the distinctions drawn are rea sonable in light of the purpose serve d by the 20 forum and are viewpoint neutra l.'" (quoting Cornelius , 473 U.S. at 806)); Travi s , 9 2 7 F.2d at 692 21 (g overnme nt " may not suppr ess expression me rely beca use it oppose s the speake r' s point of view" ).

241 D. Johnson's Multi-Faceted First Ame ndment Claim 2 Although J ohnson' s complaint alleg es deprivation of h i s Fi rst Amendment rig ht of 3 peac eable assembly in a single cause of action, his claim has multipl e aspec ts: J ohnson complains that 4 Perry barr ed him (1) from non-s p o rts events (except May 31, 2013 commence ment exercises) on 5 school proper

ty , (2) from sport s events on school proper ty , and (3) from all school events beyond 6 school proper

ty . Eac h aspec t warr ants particula rized analy sis.

7 1. Acc ess to School Property in Ge neral 8 Whil e it has long been established that pare nts have a liberty interest in direc ting their 9 children' s education without unrea sonable interfe renc e by the states, see , e.g. , Mey er v. Nebraska , 262 10 U.S. 390, 400 (1923); Pierce v. Socie ty of Sisters , 268 U.S. 510, 518-19 (1925); see also W isconsin 11 v. Y

oder , 406 U.S. 205, 232-33 (1972) (upholding parents' rig ht, under the First Amendment's Fre e 12 Ex erc ise Clause, to de cline to send children to sc hool pa st e ighth g rade ), prec edents as to whether a 13 pare nt has a First Amendment rig ht of acc ess to school proper ty are scar ce. I f such a rig ht exis ts--and 14 we c onclude that in some c ircumstance s it does ( seePart I I .D.2. below) --it is not lim itless. 15 I n the context of the "spe cial char acte ristics of the school environment,"

. . . the 16 g overnme nt [has the power ] to prohibit

. . . . actio n s wh i ch "materially and 17 substantially disrupt the work and discipline of th e s ch o o l."

. . . . 18 Associational activities need not be tolerate d wher e they infring e rea sonable 19 campus rules, interrupt classes, or substantially interfe re with the opportunity 20 of other stude nts to obtain an educa tion. 21 Healy v. Jame

s , 408 U.S. 169, 189 (1972) (quoting Tinker v. Des Moines Indepen den t Co mm unity 22 School District , 393 U.S. 503, 513 (1969) (f ootnote omitted)). 23 [N] o mandate in our Constit ution leave s States and g overnme ntal units 24 power less to

. . . protect the public from the kind of boisterous and threatening 25 conduct that disturbs the tranquilit y of

. . . . buildings that require peace and

251 quiet to carry out their functions , such as courts, libraries, schools , and 2 hospitals. 3 Carey v. Brown , 447 U.S. 455, 470-71 (1980) (interna l quotat ion marks omitted (empha ses ours)). 4 Thus, a school principal has "the authority

. . . and responsibili ty for assuring that pare nts and thi rd 5 parties con d u ct themselves appropr iately while on school proper ty " and that they do not eng ag e in 6 disruptive or "thr eate ning conduct that disturbs the tranquility of schools." Lovern v. Edwards , 190 7 F.3d 648, 655 ( 4th Cir. 1999) (" Lovern ")

. 8 Two appellate decisions, Lovern and McCook v. Springer School District , 44 F. App' x 9 896, 910-11 (10th Cir. 2002) (" McCook ") , have, in various factual circumstance s, co n cl u d ed that a 10 p ar en t d oes not have a First Amendment rig ht of unlimit ed acc ess to public school proper ty

. In 11 Lovern , t h e Fo u rt h Circuit aff irmed the dismiss al of a First Amendment claim, asser ted by a high 12 school JV b a s k e tb a ll play er' s non-custodial fathe r, of the rig ht to "boundle ss acc ess to school proper ty " 13 on the g round that the claim was "pla inly insubstantial and entirely frivolous," Lovern , 190 F.3d 14 at 656. L overn had begun by contac ting the school' s principal to insist that the school challeng e, and 15 ref

use to comply with, officia l sanctions that had been imposed on the J V coac h; when the principal 16 declined, L overn contac ted the school superintende nt's office , "where the handling of his complaints 17 consumed a substantial amount of the employ ees' time," id

. at 650. There afte r, when his son was not 18 selec ted for the varsity basketba ll team, L overn complained of the decision by telephoning the varsity 19 head coac h at s chool and at hi s home, by callingthe principa l's of

fice a number

of t imes, and, at an 20 evening basketba ll prac tice, by confr onting the coac hes for some 25 minutes. See id

. As a result, the 21 pri ncipal wrote L overn a letter pointing out that the student' s mother, his custodial pare nt, had 22 reque sted notice and an opportunity to attend any

school discussions a

bout he r children, and stating 23 that any such discussions by L overn must thus be schedule d in advanc e. The letter stated that L overn

261 was barr ed from "H igh School proper ty during school hours without [t he principal' s] express consent 2 and authorization ex ce p t t o a t tend schedule d activities open to the public ." Id

. at 651 n.3 (interna l 3 quotation marks omitted (emphasis ours))

. 4 After rec eiving this letter, L overn " telephoned the principal, lea rned the name of the 5 employ ee who draf ted the letter, and then phoned her, both at her office and at her home, complaining 6 about the letter ' s contents." Lovern , 190 F.3d at 651. The principal wrote L overn ag ain, explaining 7 that the limit ations stated in his prior letter wer e not meant to limit L overn 's acc ess to information 8 about his children' s education but were intende d to "maintain[] an orderly school atmosphere ," id

. 9 L overn then proce eded for months to contac t the school superintende nt and other 10 county school supervisory officia ls, and to attend county school board meeting s, and acc used school 11 officia ls of various illega lities, corr uption, and cover -ups. The school superintende nt barr ed L overn 12 from all county school proper ty or office s beca

use of his "c ontinued pattern o f v erbal abuse and 13 threa

tening behavior towards school officia ls, including staff and School Boa rd members." Id

. at 652 14 n.7 (interna l quotation marks omitted). Then, L overn, a non-attorne y who ra n a private litigation 15 corpor ation (and who "d[id] not dispute that his conduct towards school personne l w as perc eived as 16 verba lly ab u s ive and threatening ," id

. at 656 n.13), soug ht, unsucce ssfully , to have school board 17 officia ls hire his company to assist in t he investig ation of his corr uption alleg ations. 18 Fo l l o wi ng L overn' s commence ment of suit alleg ing violation of his "c onstitut ional 19 rig hts of fre e speec h, rig ht of petition, and pare ntal rig hts," Lovern , 190 F.3d at 653 (interna l quotation 20 marks omitted), and a n evidentiar

y hear ing on his reque st for a pr eliminary injunction to allow him 21 acc ess to school proper ty , the district court had found that L overn was completely lacking in candor 22 and that he was "r eally try ing to advanc e the interests of his company " rathe r than pursuing "c oncer n

271 about the welfa re of his children," id

. at 653-54 n.9 (interna l quotation marks omitted). The court of 2 appea ls affirme d the district court' s dismis sal of the c ase f or lac k of a substantial fe dera l question. 3 I n Mc Co o k v. Springer School Dis trict , 44 F. App'x 896, 910-11 (10th Cir. 2002), a 4 somewhat more substantial constitutional claim was prese nted by pare nts who we re m o re clearly 5 attempting to pursue the educational interests of their son. The son had been g iven a five-da y 6 suspension from school, and from all school activities, for downloading on the school' s computer 7 materia l that contained obscenities and sexually e xp li c it languag e. His fathe r nonetheless broug ht him 8 t o t h e s ch ool the nex t day so that he could attend a pep rally

. When the s chool s uperintende nt s aw 9 them and asked them to leave , in light of the suspension, a phy sical confr ontation ensued betwee n the 10 superintende nt and the father. The alterc ation had ende d by the time the police a

rrived. 11 The superintende nt there afte r sent Mr. and Mrs. McCook (" the McCooks") a letter on 12 the day thei r s o n 's s u s p ension had ended, i nforming them that it had ended, but stating that the s on 13 might fa ce additional conseque nces in lig ht of the alterc ation and that Mr. Cook w as " not permitted 14 on campus at any time for an y reason until further notice." 44 F. App' x at 900 (interna l quotation 15 marks omi tted (empha sis ours)). The McCooks sued, alleging , inter a l i a , deprivation of t heir First 16 Amendment fre edoms of association and assembly

. The district court dismiss ed, without discussion, 17 their complaints about being ba nned fr om all events on school prope rty , "[p]resumably . . . beca use 18 the M cCooks prese nted no authority establishing a consti tutional rig ht to g o onto school proper ty ," 19 id . at 910. The Te nth Circuit affirme d without further discussion. 20 J ohnson has not called to our attention any case in which a pare nt has been held to have 21 a First Amendment right t o unlimit ed acce ss to school proper ty . Given the r esponsibility of school 22 officia ls to preve nt " the kind of boisterous and threatening conduct" that would interrupt the " peac e

281 an d quiet" and "disturb[] the tranquility " require d for the aca demic aspec ts of a school' s functions, 2 Carey , 447 U.S. at 470- 71 (interna l quotation mar ks omitted), we c annot conc lude that a pa rent ha s 3 a g ener al and unlimit ed First Amendment rig ht of acc ess to school proper ty

. To the extent that Perry 4 banned J ohnson from Capital Prep proper ty for purposes other than attendanc e at sporting events, we 5 conclude that Perry should have been g rante d summary judgme nt on the basis of qualified immunit y 6 for that a spect of Johnson's F irst Amendment claim.

7 2. Acc ess to School Property for Sports Competitions 8 To the extent that J ohnson' s First Amendment claim focuse s on his exclusion from the 9 audienc e at Capital Prep basketba ll g ames, howeve r, it stands on a differ ent footing , beca use for such 10 g ames the school i n vites the attendanc e of members of the public. And althoug h Carey included 11 schools in i t s example of instit utions for whose benef it speec h and assembly restric tions may 12 permissibly be im posed because the ir operations require tranquility --" courts, li brar ies, schools, and 13 hospitals," 447 U.S. at 471 (interna l quotation marks omitted)--c ourts, libraries, and hospitals, unlike 14 schools, do not normally stag e events at which the audienc e is encour ag ed not to be quiet but instead 15 to eng ag e in rauc ous and sust ained noise. Peace , quiet, and tranquilit y are not char acte ristics of, or 16 normally

associate d with, sports contests. 17 Wit h respe ct to interschool basketba ll g ames, we think it clea r that the C ap ital Prep 18 gy

m n as i u m during such game s was a limit ed publi c forum. ( See , e.g. , Perry' s Rule 56.1 Statement 19 ¶ 18 (re fer

ring to Capital Prep "ba sketbal l gam es" play ed "in front of

. . . pare nts, student[s ], and 20 specta

tors") .) Whil e the invitation to pare nts a nd other specta

tors to a ttend basketba ll g ames would 21 not constitute an invitation to anyone to disrupt the g ame or intermissions with speec hes about his or

291 her views on school policy g ener ally , or political issues, or other subjects not r elated to the sporting 2 event, persons attending the g ame are expected to eng ag e in expressive activity , chanting and chee ring 3 for whicheve r team they favor

. I ndeed, they are encour ag ed to do so; many schools even have at the 4 g ames gro u p s o f students whose function is to lead the audienc e in boisterous expressions of 5 encour ag ement and pa rtisanship. 6 As indicated in Part I I .C. above, unless there is a clea r and presen t d anger of 7 disruptions such as disorder, riot, obstruction of t h e event, or immediate t hrea t to public safe ty , the 8 school may regulate ac cess to its g y mnasium when it is being used as a limit ed public forum only if 9 its restric tions are rea sonable and viewpoint-neutra l. The version of the events proff ere d by J ohnson, 10 with the rec ord taken in the light most fa v o ra b l e to him, would permit a rational juror to find that 11 Perry' s ban of J ohnson from Capital Prep bask et b al l g ames was neither viewpoint-neutra l nor 12 rea sonable. The jury could permiss i b l y fi n d t hat Perry had repe atedly bullied J D, that Perry had 13 falsely denied bully ing her and maligne d her, and that J ohnson had veheme ntly complained of the 14 bullying and the falsehoods. The jury could further infer that J o hnson prese nted no threat of 15 disruption or o f h ar m to anyone-- nor even any specte r of intimi dation, his daug hter having alre ady 16 withdrawn from the varsity team befor e imposit ion of the ban

-- an d t h at Perry ' s motive in banning 17 J ohnson from the Capital Prep limit ed public forum was to punish him for having expressed his views 18 that Perry

had eng ag ed in bullying a nd falsification. 19 Lovern , heavily relied on by Perry , is not to the contra ry . Although the Four

th Circuit 20 in Lovern conclude d that the fathe r' s First Amendment claim to a rig ht of "boundle ss acc ess to school 21 proper

ty " was wholly insubstantial, the ban there had been a g a inst his enter ing school proper ty "dur ing 22 school hours," and it had expressly "e x cept[ed]" from the ban his "a ttend[ance at] schedule d activities

301 open to the public." Lovern , 190 F.3d at 651 n.3 (interna l quotation marks omitted). In contra st, Perry 2 rec og nizes that J ohnson complains in part of be ing " barr ed . . . fr om public athletic eve nts" (Per ry ' s 3 Rule 56.1 Statement ¶ 34 (interna l quotation marks omitted)), and Perry ' s Trespa ss Notic e emphasized 4 that the ban a g ainst J ohnson included " sports" e vents " both on and off c ampus." 5 We also conclude , in light of the authorities discussed in Part I I .C. above, that the rig ht 6 not t o b e ex cluded, based on viewpoint differ ence s or beca use of possible annoy ance , from sports 7 events to which the public was invited was clea rly established. Perry' s motion for summary judgme nt 8 was prope rly

denied a s to this aspect of Johnson's First Ame ndment claim.

9 3. Acc ess to Sporting Events Bey ond School Property 10 Finally , we can see no basis for Perry' s claim of qualified immunit y with respe ct to his 11 ban ag ainst J ohnson' s attendanc e at s ch ool sports events held beyond school proper ty

. First, the 12 distinction betwee n school regulations applicable on school proper t y and those targ eting events 13 beyond school proper ty is one that other Circuits, in assessing whether school authorities' restric tions 14 violated First Amendment rig hts, had found important, and indeed disp o s i t i v e. In Lovern , for 15 example, the Four th Circuit, pointing out that the school officia ls "did not seek to aff ect L overn' s 16 conduct ex cept on [ the county' s school] property ," 190 F.3d at 656, and ins tead left L overn "fr ee to 17 speak and publicize his complaints about school officia ls' ' corr uption,' so long as he was not on school 18 proper

ty ," id

. at 656 n.13, noted that "' [t ]he differ ence ' " betwee n regulating acc ess to school proper ty 19 and regulating conduct beyond school proper ty was "' decisive,' " Lovern , 190 F.3d at 655-56 (quoting 20 Bystrom v. Fridley High School , 822 F.2d 747, 751 ( 8th Cir. 1987) (" Bystrom ") ).

311 Bystr o m i t s elf had dealt with the authority of high school officia ls to regulate or 2 prohibit the distribution of written materia l, authore d by students or others, on school proper ty

. The 3 Eig hth Circuit, in upholdi ng most of the school' s g uidelines on that topic, stated, 4 [w] e beg in with a word about the leg al context in which this case arises. 5 Only distribut ion " on school p r o p ert y ," J .A.3, is at issue here

. The school 6 district asserts no authority to g overn or punish what students say , writ e, or 7 publish to ea ch o t h er or to the public at any location outside the school 8 buildings and grounds

. If school authoriti es were to claim such a power, quite 9 different issues would be raised, and t h e b u rden of the authoriti es to justif y 10 their policy under the First Amendm ent would be much greater, perhaps eve n 11 insurmountable

. See , e.g. , Thomas v. Board of Educ., Granville Cent. School 12 Dist. , 607 F.2d 1043 (2d Cir. 1979), cert. denied , 444 U.S. 1081, 1 0 0 S.Ct

. 13 1034, 62 L .Ed.2d 765 (1980). 14 Bystrom , 822 F.2d at 750 (emphase s ours). 15 Second, the state championship basketba ll g ame from which Perry had J ohnson 16 remove d was he ld not only off Capital Prep proper ty but in a stadium at the Moheg an Sun casino, a 17 venue that was privately owned. Persons attending sport s ev en ts there are invitees of the owner . 18 "F irst Amendment protec tions

. . . are espec ially strong wher e an individual eng ag es in speec h activity 19 from his or her own private proper ty ," Papineau , 465 F.3d at 56, or on private proper ty on which the 20 individual is an invit ee. 21 I n Papineau , acc epting the plaintiffs' view of the events, which the defe ndants--like 22 Perry her e - - a d o p te d in o r d e r to make the denial of their qualified-immunity -base d motion for summary 23 judgme nt immedia tely appea lable, we noted that the plaintiffs wer e "invitee s" of the owner of the 24 proper

ty on which they wer e arr ested, id

. at 54. The plaintiffs had "g ather ed on [t hat] private proper ty 25 to exercise their speec h rig hts peac eably "; they "pose d no ' clea r and prese nt dang er' of immediate harm 26 or violence" ; they display ed no wea pons; "the y made no threats of phy sical harm to police or members 27 of t h e public, [and] did not incite violence or disorder." Id

. at 58. We held that, in those

321 circ umstances, law enfor ceme nt office rs who arr ested the plaintiffs beca use of their demonstration of 2 their views ha d no entitlement to qualified immunity

. 3 Her e, J ohnson and his family boug ht tickets to the Capital Prep g ame at the Moheg an 4 Sun. They wer e invi tees lawfully on the premises. The school's At h l et i cs Direc tor Fulton came t o 5 their seats and asked J ohnson to "g et up and leave ," telling him that if he did not, school officia ls 6 would "ha

ve [hi m] t aken out of [t ]here." (Johns on Dep. 55.) When J ohnson declined to leave 7 voluntarily , Moheg an Sun staff me mbers usher ed him out of the stadium. 8 Contrary t o t h e ab ove principles, Perry has argued, in the district court and in this 9 Court, that J ohnson had no First Amendment rig ht to attend the Capital Prep baske tball ga me " held 10 at the Moheg an Sun Casino" pr ecise ly beca use " [s] aid ca sino is a pr ivate establishment" (Perr y ' s SJ 11 Memorandum at 6; see also Perry reply brief on a

ppeal a t 12 n.5). But the only appellate decisions 12 cited by Perry in support of that proposition, Lloyd Corp. v. T anner , 407 U.S. 551 (1972), and 13 Hudgens v. NLRB , 424 U.S. 507 (1976), are cases in which the plaint i ff as s er t ed First Amendment 14 claims ag ainst the private proper ty owner s. J ohnson' s claim is ag ainst Perry , not ag ainst the Moheg an 15 Sun. We need not d ecide whether Papineau clea rly g overns a situation in which a private actor 16 remove s a person mere ly on the advice of a g overnme nt of ficial rathe r than as, in e ffe ct, an ag ent of 17 that officia l. Perry does not even attempt to distinguish Papineau on this basis. Instead, h e ar gues 18 only that the Fir st Amendment did not protect Johnson from being banned from off- campus events. 19 Her e, a rational juror could conclude that the Moheg an Sun staff acte d as Perry ' s ag ents. Indeed, the 20 rec ord indicates that the Moheg an Sun employ ees remove d J ohnson from it s b as k et b all are na only 21 beca

use they wer e instructed to do so by Perry

. In removing J ohnson from the stadium, they told him 22 that Perry "sa id that [J ohnson] was a threat to the community " (Johns on Dep. 56)-- an acc usation that

331 they clea rly did not acc ept at fac e value, since they told J ohnson that, althoug h he "c ould not be in the 2 are na," he " did not have to leave the ca sino" ( id . at 57-58). 3 As discussed in Part I I .D.2. above, on the prese nt rec ord, vi ewed in the light most 4 favor able to J ohnson, Perry had no basis for acc using J ohnson of being a threat to the community , and 5 the jury could infer that Perry ' s actions wer e neither viewpoint-neutra l nor rea sonable. On this rec ord, 6 Perry' s causing J ohnson' s remova l from the Moheg an Sun stadium violated J o h nson' s First 7 Amendment rig hts, and there was no objectively re as o n ab l e basis for a school officia l to believe 8 otherwise. We conclude that the district court corr ectly denied Perry' s motion for summary judgme nt 9 to the extent that J ohnson' s First Amendment claim is based on Perry ' s having him remove d from the 10 are na at the Mohe g an Sun casino.

11 CONCL USI ON

12 We have considere d all of the par ti e s ' a rguments in support of their respe ctive positions 13 on this a

ppeal and, except to the extent indicated above, have found them to be without merit. Wit h 14 respe ct t o Perry ' s asser tion of t he qualified immunit y defe nse t o J ohnson' s First Amendment claim, 15 we conclude (1) that Perry should ha ve been g rante d summary judgme nt to the extent that he barr ed 16 J ohnson from enter ing school proper ty for purposes other than attending s p o r ts c o ntests, g iven the lack 17 of an established First Amendment rig ht of g ener al acc ess to school proper ty ; and (2) that the district 18 court proper ly denied Perry summary judgme nt to the extent that he (a) barr ed J ohnson from enter ing 19 school proper

ty to attend spec tator sports contests to which the public w as invited, and (b) cause d

341 J ohnson' s remova l f rom a non-school, privately owned stadium at which J ohnson was pre sent as an 2 invitee of the owner. 3 Acc ording ly , the order of the district court is, to the above extent, reve rsed in part and 4 aff

irmed in part. The rema inder of the appea l is dism issed for lac k of appe llate jurisdiction.

35