Ninth Circuit Reinforces First Amendment Protections of Parent Banned from School District in Response to Speech the District Found Offensive

07.23.2025

The U.S. Court of Appeals for the Ninth Circuit recently issued a decision in a case involving a school district’s indefinite ban prohibiting a parent from coming onto school district property.  The parent alleged the ban was implemented, in part, due to speech by the parent that the school district found offensive and contrary to its policies. (Hartzell v. Marana Unified School District (9th Cir., Mar. 5, 2025, No. 23-4310) 2025 WL 700173.)

In Hartzell, Rebecca Hartzell (“Hartzell”) was the parent of several children who attended Marana Unified School District (“District”) in Arizona. For years, Hartzell advocated on issues including treatment of students with disabilities, special education funding, individualized education program (“IEP”) team meeting procedures, school event scheduling, and the availability of books in the school libraries. Hartzell testified that the District retaliated against her for her advocacy (i.e. engaging in free speech) by banning her from volunteering at school sites. Hartzell’s struggles with the District eventually culminated in an incident (described below) after which the District permanently banned Hartzell from coming onto District property.

On February 7, 2020, Hartzell attended student presentations at Dove Mountain K-CSTEM school where two of her children were scheduled to present in different rooms, simultaneously. Hartzell spoke with the Dove Mountain K-CSTEM School Principal, and Hartzell sarcastically thanked the Principal for making her choose which child she was going to support. The Principal responded that Hartzell was “just never happy,” and walked away. As the Principal walked away, Hartzell allegedly grabbed the Principal’s wrist and said, “Stop, I’m talking to you.” As a result of what the Principal termed an assault, [1] Hartzell was told to leave District property permanently. Eventually the District permitted Hartzell to enter school grounds to retrieve her preschool child as long as she did not speak with anyone.

Hartzell sued the District and the Principal alleging, in part, a First Amendment retaliation claim related to her history of advocating against the policies of the District and a procedural due process claim related to her right to access the physical property of a school attended by her children. Following an adverse decision from the District Court, Hartzell appealed her case to the Ninth Circuit.

First Amendment Retaliation Claim

The Ninth Circuit found that, if the District banned Hartzell due to her criticism of the Principal and practices of the school site or District, then the District’s policy of barring “speech . . . that is offensive or inappropriate” was unconstitutional. Further, the Ninth Circuit found that the District Court erred in making a judgment on the First Amendment retaliation claim without a jury because a reasonable jury could conclude that Hartzell was banned pursuant to the District’s “expressly adopted official policy” rather than the perceived assault, as alleged by the Principal. The Ninth Circuit relied on established First Amendment principles from the U.S. Supreme Court, including that “the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” (Snyder v. Phelps (2011) 562 U.S. 443, 458.) Because the District’s policy allowed it to prohibit speech that it found “offensive or inappropriate,” the District’s policy potentially permitted violations of its constituents’ constitutional rights.

Although, there are recognized exceptions to this constitutional right depending on the nature of the speech being regulated, the Ninth Circuit found them inapplicable to the facts. First, the District failed to prove that Hartzell’s speech would “materially and substantially interfere with the requirements of appropriate discipline in the operation of the school.” (Tinker v. Des Moines Indep. Cmty. Sch. Dist. (1969) 393 U.S. 503, 509.) Furthermore, barring Hartzell from entering District property did not advance an interest in disciplining or protecting students. (Mahanoy Area Sch. Dist. V. B.L. ex rel. Levy (2021) 594 U.S. 180, 187.) Finally, Hartzell’s speech, although critical and sarcastic, was not “vulgar” or “lewd” speech that the District had a significant interest in protecting minor students from. (Bethel Sch. Dist. No. 403 v. Fraser (1986) 478 U.S. 675, 684.) Accordingly, the Ninth Circuit held that if the District barred Hartzell from entering District property based on her statements to the Principal, they violated her constitutional right to free speech. This issue was remanded for further proceedings in the District Court. 

However, the Ninth Circuit held that the Principal was entitled to qualified immunity on Hartzell’s First Amendment claim against the Principal as an individual. Qualified immunity protects government agents from civil liability if “their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” (Harlow v. Fitzgerald (1982) 457 U.S. 800, 818.) This analysis centers around whether: 1) the Principal violated a constitutional right; and 2) whether the right was clearly established at the time of the incident. (Id.) The Ninth Circuit determined that although the Principal may have violated a constitutional right, she enjoyed qualified immunity because there was no consensus of case authority on this topic when she acted. (Wilson v. Layne (1999) 526 U.S. 603, 617.) We note that this analysis may reach a different conclusion as more established case law evolves in this area.

Procedural Due Process Claim

The Ninth Circuit noted that Hartzell was only “banned from accessing school property” and that “does not implicate Hartzell’s right to direct her children’s education.” The Ninth Circuit, relying on prior precedent, stated that a parent’s right to direct their child’s education “establishes [] the right of parents to be free from state interference with their choice of the educational forum itself.” (Citations omitted.) The Ninth Circuit stated that Hartzell had not properly alleged the right to choose where her children attended school was affected, and therefore, she had not properly alleged a procedural due process claim.

Impact on California School Districts

Local educational agencies should be cognizant of potential First Amendment violations when acting in a manner that affects the exercise of a protected right. Special education advocates as well as parents and members of the public are protected in their speech, even if their speech is critical of a school district. Policies that provide the ability to regulate speech on school grounds that is merely offensive, inappropriate, or intrusive may be deemed unconstitutional if applied incorrectly. As discussed in Hartzell, the offensive or inappropriate speech must cause or reasonably be likely to cause a substantial disruption or material interference with school activities.

We recommend local education agencies act cautiously when engaging in acts that could be viewed as retaliation for the exercise of a protected right. Because this area of law requires fact-specific analysis, we recommend consulting with legal counsel as appropriate. Should you have any questions concerning the topic of this alert, please do not hesitate to contact the authors or your usual counsel at AALRR for clarification and guidance.

[1] Hartzell was criminally charged with misdemeanor assault charges, but charges were later dismissed.

This AALRR publication is intended for informational purposes only and should not be relied upon in reaching a conclusion in a particular area of law. Applicability of the legal principles discussed may differ substantially in individual situations. Receipt of this or any other AALRR publication does not create an attorney-client relationship. The Firm is not responsible for inadvertent errors that may occur in the publishing process.

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