Aela Mansmann (ACLU School Speech Case) Opposition - Re - 3 - MOTION - For - TRO

Case 2:19-cv-00466-LEW Document 9 Filed 10/17/19 Page 1 of 24 PageID #: 67
UNITED STATES DISTRICT COURT

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

SHAEL NORRIS )
)
Plaintiff )
)
v. )
Case No. 2:19-cv-00466-LEW
)
)
CAPE ELIZABETH SCHOOL DISTRICT, et al. )
)
)
Defendants )
MEMORANDUM OF LAW IN OPPOSITION TO MOTION FOR TEMPORARY

RESTRAINING ORDER OF DEFENDANTS CAPE ELIZABETH SCHOOL
DEPARTMENT, DONNA WOLFROM, JEFFREY SHEDD AND NATHAN
CARPENTER
INTRODUCTION
Plaintiff Shael Norris has filed this suit on behalf of her daughter, A.M., a 15-year-old
student at Cape Elizabeth High School, claiming that the Defendants, the Cape Elizabeth School
Department1 (the “School Department”) and three individual administrators, Donna Wolfrom,
Jeffrey Shedd and Nathan Carpenter, violated A.M.’s right to free speech when they disciplined
her for posting and disseminating the following statement in school: “THERE’S A RAPIST IN
OUR SCHOOL, AND YOU KNOW WHO IT IS.” The statement was unfounded; extremely
disruptive and defamatory; and violated the rights of the student she falsely accused. It is
1
Plaintiff’s Complaint names the Cape Elizabeth School District as the Defendant. The entity, a municipal school
administration unit, operates under the name is Cape Elizabeth School Department.
therefore not protected speech under the First Amendment and Plaintiff’s motion for a temporary
restraining order must be denied.
FACTUAL BACKGROUND
1. The sexual violence allegation and investigation
On September 16, 2019, several sticky notes stating “THERE’S A RAPIST IN OUR
SCHOOL, AND YOU KNOW WHO IT IS” were discovered in a second floor girls’ bathrooms
at Cape Elizabeth High School (“CEHS”). Shedd Decl. ¶ 7; Carpenter Decl. ¶ 5. Within
minutes after the notes were posted, a concerned student brought them to the main office.
Carpenter Decl. ¶ 5. Approximately two hours later, several more notes referring to a rapist in
the school were posted in a different girls’ bathroom on the first floor of the school, and those
notes were also reported to school administration. Shedd Decl. ¶ 8; Carpenter Decl. ¶ 10.
Upon review of the notes, school administrators understood them to constitute an
accusation of rape against a specific individual. See Wolfrom Decl. ¶ 2; Stankard Decl. ¶ 9;
Shedd Decl. ¶ 9; Carpenter Decl. ¶ 6. Although the administrators did not at that point know the
identity of the individual, they believed that the author of the notes did know the identity of the
individual they were targeting as a “rapist.” Concerned about the safety of students in the
school, the administrators immediately began a thorough investigation to determine who posted
the notes, the identity of the alleged rapist and the factual basis for the accusation. Shedd Decl. ¶
10; Carpenter Decl. ¶¶ 7-9, 11; Stankard Decl. ¶ 7; Wolfrom Decl. ¶ 2.
Administrators interviewed dozens of students and very quickly learned that a number of
students interpreted the accusation as referring to a specific individual, an African-American
male student at the school (“Student 1”). Shedd Decl. ¶ 12; Stankard Decl. ¶ 12. One of the
students interviewed was Plaintiff A.M. Carpenter Decl. ¶¶ 8. In that interview, A.M. denied
2
knowing anything about the notes, but did state that she had heard rumors that there was a rapist
in the school. Shedd Decl. ¶ 13; Carpenter Decl. ¶¶ 8.
Administrators heard from other students who were interviewed that Student 1 was
rumored to have committed several sexual assaults. Shedd Decl. ¶ 14; Carpenter Decl. ¶ 12;
Stankard Decl. ¶ 12. Administrators were aware of one incident that occurred between Student 1
and another student outside of school the previous year that had been dealt with to the
satisfaction of both parties. See Carpenter Decl. ¶¶ 4, 7. In the interviews, however, they heard
several other accusations against Student 1 and they meticulously followed every lead they
received, Stankard Decl. ¶ 11; Carpenter Decl. ¶ 15. After speaking directly to an alleged victim,
reviewing video tapes and interviewing students, the administrators determined that the
accusations were false. See Shedd Decl. Ex. 3 at p.2. To the extent it could be established by this
very thorough investigation, the administration determined that here was no known rapist in the
school; there was no known ongoing threat to students of sexual violence; the school was safe.
Id.
2. The bullying investigation
As administrators were completing their investigation, they became aware that Student 1
was suffering the consequences of the false allegations. Shedd Decl. ¶¶ 16-20; Carpenter Decl.
¶¶ 20-21. Specifically, because of the widespread rumors sparked by the sticky notes accusing
Student 1 of being a rapist, he was being ostracized by his peers and was afraid to come to
school. Shedd Decl. ¶¶ 17-19. Student 1 and his parents complained that he was being bullied.
Shedd Decl. ¶ 20; Carpenter Decl. ¶ 21. School administration thus began a separate
investigation into Student 1’s bullying complaint under the School Board Bullying Policy) JICK
and JICK-R.) Shedd Decl. ¶¶ 21-22; Carpenter Decl. ¶ 21.
3
In conducting the bullying investigation, the administrators were of course aware that
Student 1 is African American, and Student 1 and his mother expressed concerns that he was
being targeted because of his race. Carpenter Decl. ¶ 22. A.M. herself, in discussions with other
students, contended that the school was giving A.M. favorable treatment because of his race.
Shedd Decl. ¶ 14; Carpenter Decl. ¶ 13. The bullying statute and school policy define bullying
to include expression or conduct that is based on a student’s race. 20-A M.R.S. § 6554(B)(3);
Shedd Decl. ¶ 3, Exhibit 1. While racially-motivated bullying is clearly illegal, proof of such a
motive is not necessary to a determination that bullying has occurred. Id. Whether motivated by
race or some other factor, behavior that interferes with the rights of a student by creating a
hostile educational environment or interferes with the student’s academic performance or ability
to participate in school is illegal. 20-A M.R.S. § 6554(B). While Student 1 and his parents did
not characterize their complaint as one of racial discrimination, the circumstances, including
A.M.’s references to his race, could support an inference of race-motivated bullying and also
evoke extremely egregious racial stereotypes.
The bullying investigation included consideration of material obtained in interviews in
the investigation into whether there was a rapist in the school, as well as review of video
surveillance tapes to try to determine who was responsible for posting the notes. See Shedd
Decl. Ex. 3. The administration determined who posted the notes in the first floor bathroom as
the two students who did so admitted what they had done and explained that they had posted the
notes in response to the notes that had been posted earlier in the second floor bathroom. See
Shedd. Decl. ¶ 27; Carpenter Decl. ¶ 26.
With respect to the notes posted in the second floor bathroom – the first notes that were
posted – several students reported to the administration that A.M. had told them that Student 1
4
was a rapist, and several others reported that A.M. had been discussing the notes and had even
displayed pictures of herself with the notes. Shedd Decl. ¶ 14; Carpenter Decl. ¶¶ 11-13, 15.
Students also reported that A.M. had expressed frustration because she felt that administration
was protecting Student 1 because of his race. Shedd Decl. ¶ 14; Carpenter Decl. ¶ 13. Review
of video footage of the entrance to the second floor bathroom showed that A.M. was the only
person to enter the bathroom between the time when students who used that bathroom reported
not seeing notes and the time when they were found. Carpenter Decl. ¶ 14.
Having learned this additional information, administrators interviewed A.M again.
Carpenter Decl. ¶ 14; Wolfrom Decl. ¶¶ 4-6; Stankard Decl. ¶ 12. In the second interview, she
falsely denied knowing anything about the notes as she had in her first interview. Carpenter
Decl. ¶ 14. After being informed that the school had video footage and statements from other
students, A.M. admitted that she had posted a note. Id. She disclosed that the person she
identified in the note as a “rapist” was Student 1. Stankard Decl. ¶ 15. She also expressed
frustration because she perceived that Student 1 was “idolized” by faculty at the school, in part
because of his race, even though she believed that there was a video of him committing a
horrendous act of sexual violence. Carpenter Decl. ¶ 14; Stankard Decl. ¶ 15. Finally, she said
the reason she posted the note was to “instill fear.” Carpenter Decl. ¶ 14; Stankard Decl. ¶ 17.
Administrators learned that in addition to posting the note in the bathroom, A.M. had taken and
disseminated a photo of the note2:
2
This is a copy of a photo posted online that was apparently furnished to the media by A.M.
5
Having determined who posted the notes in both bathrooms, and that the notes were
intended to refer to Student 1, CEHS Principal Jeffrey Shedd and Assistant Principal Nate
Carpenter met on Thursday, September 26, 2019 to discuss what, if any, discipline should be
imposed on the three students who ultimately admitted to posting the notes in the two bathrooms.
Shedd Decl. ¶¶ 28-29; Carpenter Decl. ¶¶23-24. They were very concerned that the spreading of
the false allegations against Student 1 had significantly interfered with his right to attend, fully
participate in and benefit from school. Shedd Decl. ¶ 34. Principal Shedd and Assistant
Principal Carpenter agreed that the three students who posted the sticky notes and targeted
Student 1 should be suspended, and that they should also attend an educational session on
responsibly reporting suspected school violence. Carpenter Decl. ¶ 24.That day, they discussed
suspending A.M. for five days, one of the other students who posted the copycat notes for two
days, and the other student who posted the copycat notes for one day. Shedd Decl. ¶ 24.
6
On Monday, September 30, 2019, Principal Shedd told Assistant Principal Carpenter and
Superintendent Donna Wolfrom that over the weekend he had thought more about the
suspensions and decided that a three-day suspension was appropriate for A.M., and the two day
and one day suspensions were appropriate for the other students. Shedd Decl. ¶¶ 29-30. The
varying lengths of the suspensions reflected each student’s level of involvement in posting the
notes and targeting Student 1. Carpenter Decl. ¶ 26; Shedd Decl. ¶29.
School Board procedure JICK-R requires that if bullying has been substantiated, the
building Principal will provide written notification to: “A. The parents/guardians of the targeted
student, including the measures being taken to ensure the student’s safety; and B. The
parents/guardians of the student found to have engaged in bullying, including the process for
appeal.” Upon making his decision as to the appropriate discipline for the three girls found to
have engaged in bullying behavior, Principal Shedd started trying to contact Student 1’s parents
to meet with them and discuss the results of the investigation. Shedd Decl. ¶ 31. After
attempting to reach them by telephone on October 1, 2019, he sent them an email on October 3,
2019 to communicate the results of the bullying investigation. Shedd Decl. ¶ 31 and Ex. 4. The
next day, October 4, 2019, Principal Shedd and Assistant Principal Carpenter met with the three
girls about their suspensions. Shedd Decl. Shedd Decl. ¶ 31 33; Carpenter Decl. Shedd Decl. ¶
3128. They met with the two other girls in the morning, and with A.M. and her mother in the
afternoon. The meeting with the girls took place after an article about A.M. appeared in the
press; however, the decision to suspend A.M. had been made on Thursday, September 26, 2019,
and the length of her suspension had been finalized on Monday, September 30, 2019, well in
advance of the publication of the article. Carpenter Decl. ¶ ¶ 24 – 28; Shedd Decl. ¶ 29-30; 32,
35.
7
ARGUMENT
I. THE STANDARD FOR INJUNCTIVE RELIEF
This Court analyzes a request for a temporary restraining order and a preliminary
injunction through application of four well-established factors:
(1) the likelihood of the movant’s success on the merits; (2) the anticipated incidence of
irreparable harm if the injunction is denied; (3) the balance of relevant equities (i.e., the
hardship that will befall the nonmovant if the injunction issues contrasted with the
hardship that will befall the movant if the injunction does not issue); and (4) the impact,
if any, of the court’s action on the public interest.
L.L. Bean, Inc. v. Bank of America, 630 F. Supp. 2d 83, 86 (D. Me. 2009) (citing Borinquen
Biscuit Corp. v. M V Trading Corp., 443 F.3d 112, 115 (1st Cir.2006)).
The party seeking the preliminary injunction bears the burden of establishing that these
four factors weigh in its favor. Id. (citing Esso Standard Oil Co. (Puerto Rico) v. Monroig-
Zayas, 445 F.3d 13, 18 (1st Cir. 2006)); Baldwin v. Bader, No. 07-46-P-H, 2008 WL 564642, at
*1 (D. Me. Feb. 28, 2008)). “This burden is a heavy one: ‘Because a preliminary injunction is an
extraordinary remedy, the right to relief must be clear and unequivocal.’” Id. (citing Friends of
Magurrewock, Inc. v. U.S. Army Corps of Engineers, 498 F.Supp.2d 365, 369 (D. Me. 2007)
(quoting Greater Yellowstone Coal. v. Flowers, 321 F.3d 1250, 1256 (10th Cir.2003)). See also
Baldwin, 2008 WL 564642, at *1 (“The court must ‘bear constantly in mind that an [i]njunction
is an equitable remedy which should not be lightly indulged in, but used sparingly and only in a
clear and plain case.’”) (quoting Saco Def Sys. Div. Maremont Corp. v. Weinberger, 606 F.
Supp. 446, 450 (D. Me. l985)).
This Court has further explained that “[t]he sine qua non of the four part test is likelihood
of success on the merits: if the moving party cannot demonstrate that it is likely to succeed in its
quest, the remaining factors become matters of idle curiosity.” L.L. Bean, Inc., 630 F. Supp. 2d
8
at 86 (citing Esso Standard Oil Co. (Puerto Rico), 445 F.3d at 18 (quoting New Comm Wireless
Servs., Inc. v. SprintCom, Inc., 287 F.3d 1, 9 (1st Cir. 2002)). See also McGuire v. Reilly, 260
F.3d 36, 42 (1st Cir. 200l) (stating that movant must show “a substantial likelihood of success on
the merits”). For the reasons set forth below, Plaintiff cannot satisfy the above standard in the
present case.
II. PLAINTIFF CANNOT SUCCEED ON THE MERITS OF HER FIRST

AMENDMENT CLAIMS
Count I of the Complaint is a claim for violation of A.M.’s First Amendment rights.
Plaintiff makes two separate arguments: (1) that the statement for which she was suspended—
“THERE’S A RAPIST IN OUR SCHOOL, AND YOU KNOW WHO IT IS”—is protected
speech, and (2) that the suspension was retaliation for her subsequent comments to the press.
These arguments are discussed separately below.
A. The sticky note is not protected by the First Amendment.
In order to prevail on a First Amendment retaliation claim, “[a] plaintiff must first prove
that (1) he or she engaged in constitutionally protected conduct, (2) he or she was subjected to an
adverse action by the defendant, and (3) the protected conduct was a substantial or motivating
factor in the adverse action.” D.B. ex rel. Elizabeth B. v. Esposito, 675 F.3d 26, 43 (1st Cir.
2012).
Students have First Amendment free speech rights in school, but:
[T]he First Amendment rights of students in the public schools “are not automatically
coextensive with the rights of adults in other settings,” Bethel School District No. 403 v.
Fraser, 478 U. S. 675, 682 (1986), and must be “applied in light of the special
characteristics of the school environment.” Tinker, supra, at 393 U. S. 506; cf. New
Jersey v. T.L.O., 469 U. S. 325, 341-343 (1985). A school need not tolerate student
speech that is inconsistent with its “basic educational mission,” Fraser, supra, at 478 U.
S. 685, even though the government could not censor similar speech outside the school.
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Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 266 (1988). Thus the Supreme Court and
lower courts have identified a number of circumstances in which student speech in school is not
protected by the First Amendment. For purposes of this case, the relevant limitations on student
speech rights include:
 Speech that is likely to disrupt the school environment. Tinker v. Des Moines Indep.
Cmty. Sch. Dist., 393 U.S. 503, 509-510, 514 (assessing whether disruption was
reasonably forecast).
 Speech that does in fact disrupt the school environment. Id. at 513.
 Speech that is defamatory. See, e.g., Time, Inc. v. Firestone, 424 U.S. 448, 457 (1976)
(citing Gertz v. Robert Welch, Inc., 418 U.S. 323, 340 (1974)) (explaining that
inaccurate and defamatory reports of fact do not deserve First Amendment protection).
 Speech that interferes with the rights of other students. Tinker, 393 U.S. at 513.
Each of these limitations on student speech rights applies to A.M.’s dissemination of unfounded
accusations of rape against another student and, therefore, the behavior was not protected by the
First Amendment.
1. The Statement was inherently disruptive due to its extremely alarming nature.
Tinker and numerous cases following Tinker have held that student speech is not
protected if school officials reasonably forecast that it is likely to cause substantial disruption or
material interference with school activities. Tinker, 392 U.S. at 509-510, 514.
In this case, the statement itself, even without the substantial disruption that did in fact
occur, was incendiary and was inherently likely to disrupt the school environment. Like a bomb
threat or a false fire alarm, the assertion that a known rapist is walking the halls of the school
building is inherently alarming and very likely to cause disruption by instilling fear and anxiety
10
among students, staff and others in the school community. See, e.g., Boim v. Fulton Cty. Sch.
Dist., 494 F.3d 978, 983 (11th Cir. 2007) (holding that ten-day suspension of student who made
threats of violence directed at her teacher in a notebook that she shared with a classmate was
justified under Tinker as the threats were reasonably likely to cause a material and substantial
disruption to the school); Cuff ex rel. B.C. v. Valley Cent. School Dist., 677 F.3d 109, 111, 123
(holding disruption was reasonably forecast when student turned in an assignment stating “blow
up the school with the teachers in it” even though student did not have capacity to carry out the
threat and argued that the statement was a joke).
To avoid this conclusion, Plaintiff asks the Court to disregard the plain meaning of her
statement and to consider what she now claims were her motives and intent in disseminating it.
Her explanations and defense of her statement shifted from outright (false) denials that she made
the statement, Carpenter Dec. ¶¶ 8, 14, to an admission that she intended to instill fear in the
school, Carpender Decl. ¶14, Stankard Decl. ¶ 17, and finally to a tortured attempt by her
counsel to characterize the false accusation as a form of political advocacy. A.M. has no
credibility because she lied outright to administrators in two separate interviews when asked
about her role. This obstructed the administration in their investigations into the alleged
presence in school of a sexual offender and the bullying of Student 1. Whatever explanation we
choose to believe, however, they are all immaterial because what matters for purposes of
deciding whether the speech is protected is the plain meaning of the statement as understood by
others who read it or heard it.
The U.S. Supreme Court has made it absolutely clear that the school’s reasonable
interpretation of a statement – not the motive or intent of the speaker – is what determines
whether the speech is protected by the First Amendment. In Morse v. Frederick, the Court
11
decided that a student’s banner proclaiming “BONG HiTS 4 JESUS,” was not protected speech
because the principal reasonably interpreted it as a pro-drug message, even though the student
claimed it “was just nonsense meant to attract television cameras.” 551 U.S. at 401. The Court
explained: “The dissent mentions Frederick’s ‘credible and uncontradicted explanation for the
message—he just wanted to get on television.’ But that is a description of Frederick’s motive for
displaying the banner; it is not an interpretation of what the banner says.” Id. at 402 (emphasis
added) (internal citations omitted). “[W]hat matters under Tinker is the reasonableness of the
school administrators’ forecast of disruption—not the student’s subjective intent behind the
speech.” R.L. v. Cent. York Sch. Dist., 183 F. Supp. 3d 625, 635–36 (M.D. Pa. 2016)
In this case, unlike in Morse, the Court need not struggle with the meaning of the
student’s unambiguous statement: “There’s a rapist in our school, and you know who it is.” The
first clause is a plain statement (allegation) of fact: there is a person who has committed rape3
present in the school. The statement as a whole directly implies that the speaker knows who the
alleged rapist is, and the second clause directly implies that others know the identity of the
alleged rapist. A reasonable reader of this statement would interpret it to mean that a person
whose identity is known to the speaker and others has committed rape and is present in school.
A reasonable student or teacher reading or hearing the statement would be very alarmed and
upset by it. A reasonable administrator would be justified in forecasting that such a statement
was likely to disrupt the school community. For that reason alone, the statement is not protected
speech.
3
The Plaintiff’ attempts to argue that “rape” does not have its plain meaning but instead should be interpreted to
mean “a broad range of acts participating in, or contributing to, nonconsensual sexual activity.” Complaint ¶ 31.
Plaintiff is trying to defend her false and defamatory statement by reference to a political usage of the term by some
activists. While that notion may be gaining currency in some circles, the dictionary, and still prevailing, definition
of rape is an assailant’s nonconsensual penetration of the vagina or anus.
https://www.justice.gov/archives/opa/blog/updated-definition-rape
12
2. The statement was in fact disruptive
Tinker and dozens of lower court decisions have repeatedly held that speech that is
disruptive to the school environment is not protected. See, e.g., Tinker, 392 U.S. at 513; Riseman
v. Sch. Comm. of City of Quincy, 439 F.2d 148, 149 (1st Cir. 1971) (“We recognize the duty of
school authorities to punish student conduct which ‘materially disrupts classwork or involves
substantial disorder or invasion of the rights of others’”); DeFabio v. E. Hampton Union Free
Sch. Dist., 623 F.3d 71, 78 (2d Cir. 2010) (explaining that student “speech may be restricted if
the speech will ‘materially and substantially disrupt the work and discipline of the school.’”)
In this case, Plaintiff’s decision to post a sticky note in the second floor girls’ bathroom
unequivocally stating that “There’s is a rapist in the school” instilled fear and anxiety in
administrators and students. Carpenter Decl. ¶ 19. Within minutes of the notes being posted, a
very worried and concerned student brought the notes to Assistant Principal Carpenter, who in
turn was concerned about whether anyone in the school was in danger and whether there was in
fact a rapist roaming the halls of the school building. Carpenter Decl. ¶¶ 5- 6. He immediately
started talking with students to find out if they were in danger or if they knew anything about a
rapist being in the school. Carpenter Decl. ¶ ¶ 7-9.Without having any information other than
“There is a rapist in the school” and “you know who it is,” the administration conducted a
thorough investigation, which included interviewing 47 students; reviewing video footage of the
hallways; and reviewing video footage, in order to determine whether anyone was in danger and
whether there was in fact a rapist in school. The dissemination of the of the statement
interrupted the work of administrators for multiple hours over many days, interrupted the school
routines of the 47 students interviewed and spread fear in the student body. Indeed, a number of
13
students expressed genuine concern about whether the school was safe in light of the sticky
notes. Carpenter Decl. ¶ 19.
Furthermore, by targeting Student 1 with her sticky note, A.M. caused Student 1 to be
ostracized by his peers and made him feel unsafe going to school. Shedd Decl. ¶¶ 16 – 19;
Carpenter Decl. ¶¶ 2- 21.On Tuesday, September 17, 2019, the day after the notes were posted,
Student 1 went to the chorus room to eat his lunch as he ordinarily did. Shedd Decl. ¶ 17.
Within one minute of sitting down to eat his lunch, all of the other students in the chorus room
left. Student 1 also reported that while in chorus class that same afternoon, a classmate told him
that her mother had heard from other mothers that they did not want their daughters associating
with him. Later that day, another classmate of Student 1 told him that he did not have a future
and would not be able to get into college. Shedd Decl. ¶ 19. Thereafter, Student 1 missed eight
days of school. Shedd Dec. ¶ 39.
All of the consequences of A.M.’s dissemination of the statements amounted to
substantial disruption of the educational environment for her peers, teachers, and administrators,
as well as the target of her reckless accusations. Because her statement set the disruption in
motion it is not protected speech under Tinker.
3. The statement was defamatory.
It is well-established that defamatory speech is not protected by the First Amendment.
Time, Inc. v. Firestone, 424 U.S. 448, 457 (1976) (citing Gertz v. Robert Welch, Inc., 418 U.S.
323, 340 (1974)) (explaining that inaccurate and defamatory reports of facts do not deserve First
Amendment protection). See also, Pan Am Sys., Inc. v. Atl. Ne. Rails & Ports, Inc., 804 F.3d 59,
65 (1st Cir. 2015) (citing Milkovich v. Lorain Journal Co., 497 U.S. 1, 19 (1990)) (noting that
“[b]ecause they express the speaker’s subjective views (rather than implying that he possesses
14
objectively testable facts), they are First–Amendment protected—not so, obviously, if they imply
‘false assertion[s] of fact.’”).
While there is relatively little case law addressing defamatory speech by students in
school, one case (cited by Plaintiff) illustrates that malicious, defamatory statements by one
student about another are unprotected. In Kowalski v. Berkeley County Schools, 652 F.3d 565
(4th Cir. 2001), the student plaintiff had created a web page falsely claiming that another student
had genital herpes and was a “slut” and a “whore.” The Court ruled that these “defamatory
accusations” were not protected speech, explaining:
Given the targeted, defamatory nature of Kowalski's speech, aimed at a fellow classmate,
it created “actual or nascent” substantial disorder and disruption in the
school. See Tinker, 393 U.S. at 508, 513, 89 S.Ct. 733; Sypniewski v. Warren Hills Reg'l
Bd. of Educ., 307 F.3d 243, 257 (3d Cir.2002) (indicating that administrators may
regulate student speech any time they have a “particular and concrete basis” for
forecasting future substantial disruption). First, the creation of the “S.A.S.H.” group
forced Shay N. to miss school in order to avoid further abuse. Moreover, had the
school not intervened, the potential for continuing and more serious harassment of Shay
N. as well as other students was real. Experience suggests that unpunished misbehavior
can have a snowballing effect, in some cases resulting in “copycat” efforts by
other students or in retaliation for the initial harassment.
Kowalski v. Berkeley Cty. Sch., 652 F.3d 565, 574 (4th Cir. 2011). Calling Student 1 a “rapist”
with no factual basis no less damaging, and no less harmful, than the false allegations that the
student in Kowalski had a sexually transmitted disease and was a slut and a whore. As such, it is
not protected by the First Amendment.4 Plaintiff’s after-the-fact justifications are immaterial to
the legal issue.
4
See also, Levinsky's, Inc. v. Wal-Mart Stores, Inc., 127 F.3d 122, 131 (1st Cir. 1997) (explaining that the “court
must evaluate a speaker’s statement as it was given and must resist the temptation to replace what was actually said
with some more innocuous alternative.”).
15
4. The note is unprotected because it interfered with the rights of another student.
The Supreme Court identified a separate category of unprotected speech in Tinker: that
which collides with or interferes with the rights of other students. Tinker at 512-13, 514. The
Ninth Circuit relied on this language when it held in Harper v. Poway Unified Sch. Dist., 445
F.3d 1166, 1178 (9th Cir. 2006), cert. granted, judgment vacated sub nom. Harper ex rel.
Harper v. Poway Unified Sch. Dist., 549 U.S. 1262 (2007),5 that anti-gay slurs were not
protected speech because they did in fact interfere with the rights of gay and lesbian students.
A.M.’s unfounded statement interfered with Student 1’s reputational rights, as explained
above, and his right not to be bullied in school. Here, the school found that Plaintiff’s
dissemination of the allegation that Student 1 was a rapist constituted bullying in violation of
school policy and the law. Schools not only have an affirmative legal obligation to keep students
safe from sexual harassment and violence (A.M.’s concern), but also to keep them safe from
bullying. 20-A M.R.S. § 6554.6 The school has a compelling interest in preventing, remedying
and protecting students from bullying, and the school’s suspension of A.M. was necessary to
further that interest.
To defend her behavior, A.M. goes to great lengths in her memorandum to argue that her
conduct was not bullying. She notes that the definition of bullying in state law refers to conduct
“directed at a student or students,” and argues that her conduct was not bullying because her
statement was not “directed at a student or students.” The administration convincingly found,
however, that the statement was in fact directed at Student 1, and that he was the victim of her
5
Although the decision was vacated by the Supreme Court on the ground of mootness, its legal reasoning was not
questioned and remains compelling and persuasive.
6
The fact that in the predominantly white community of Cape Elizabeth, the alleged victim was an African
American boy who was being accused of raping white girls, made this a particularly sensitive situation for the
District.
16
bullying. She also claims that bullying must be “severe and pervasive” to constitute bullying,
and that her posting of the unfounded accusation on a single day was not “severe and
pervasive.”7 There is no requirement, however, in state law or board policy that a bully’s
conduct be “severe and pervasive” in order to constitute bullying. A single, severe act, such as a
baseless allegation of rape, is sufficient to constitute bullying just as, analogously, a single act of
sexual assault is sufficient to constitute sexual harassment.
Plaintiff’s argument egregiously minimizes the trauma she caused to Student 1. There is
no question here that Student 1 was recklessly accused of serious criminal conduct by A.M.,8 that
he was ostracized; and that he was unable to go to school as a result of A.M.’s accusation that
“there is a rapist in our school and you know who it is.” The one person who was seriously
harmed in this matter was Student 1. Any harm felt by A.M. was self-inflicted and resulted from
her reckless, misguided behavior, and it is unfortunate that she and her advocates so callously
dismiss the collateral damage her conduct has caused.
B. A.M.’s statements to the media were not the reason for the suspension.
A.M. also claims that the Defendants retaliated against her for speaking to the media as
reported in an article published in the Portland Press Herald on October 4, 2019. Whether or
not her statements to the media would be protected speech, this claim fails to satisfy the third
element of a First Amendment retaliation claim, which “necessitates proof of a causal connection
between the allegedly protected speech and the allegedly retaliatory response.” Gonzalez-Droz v.
7
The Maine Human Rights Commission’s view on the definition of bullying has no persuasive authority in this
case. In the first place, to the extent the Maine Human Rights Commission is involved in bullying cases at all, those
cases address that part of the definition pertaining to protected status found in 20-A M.R.S. § 6554(2)(B)(3), not the
section pertaining to creation of a hostile environment found in § 655(2)(B)(2). In any case, the question here is
how the term bullying is defined under Cape Elizabeth School Board policy, which is not an issue within the
purview of the Maine Human Rights Commission.
8
A.M. told administrators that Student 1 was depicted doing horrendous acts in a video even though that was not
true and she had never seen the video.
17
Gonzalez-Colon, 660 F.3d 1, 16 (1st Cir. 2011). Here, there can be no causal connection because
the decision to suspend A.M. was made before the Press Herald article was published on
October 4th.
In Gonzalez-Droz, the plaintiff argued that the licensing board’s decision to suspend his
medical license occurred after he engaged in two instances of protected speech and that the
temporal proximity between these two events supported a causal connection. Id. However, the
factual record showed that the licensing board made its decision to suspend the plaintiff’s license
on December 12, 2006, before he engaged in his first instance of protected speech on December
18, 2006. Id. The Court held that because the licensing board’s decision occurred before the
plaintiff engaged in his first instance of protected speech, the suspension could not plausibly be
viewed as retaliation. Id.
Likewise, in this case, Principal Shedd decided to suspend A.M. days before the October
4, 219 Press Herald article. Mr. Shedd and his fellow administrators concluded the bullying
investigation on September 26, 2019 and made a decision to suspend all three students who had
posted sticky notes. Shedd Declaration, ¶ 28. He informed the Superintendent and Assistant
Principal of his final decisions on the suspensions on September 30, 2019. Id., ¶ 30. He did not
immediately inform the students of the suspensions because he wished to inform Student 1 and
his family of the result of the investigations first, which he did on October 3, 2019 – before the
Press Herald article was published. Id., ¶ 31. He drafted the suspension letters, according to his
computer, by 9:47 am on October 3, 2019. Id., ¶ 32. In sum, the Principal had decided on the
suspension before A.M. spoke to the media, and therefore his decision was not and could not
have been motivated by her doing so.
18
Apart from the fact that the Principal was not aware of A.M.’s statements to the media
when he made the decision, he and the administration have been consistent and explicit in stating
that the reason for the suspension was A.M.’s false statement that “there’s a rapist in our school
and you know who it is.” Plaintiff has produced no evidence or credible allegation that her
statements to the media were the reason for the suspension. Therefore, her claim that the
Defendants retaliated against her for speaking to the media fails.
III. THE DEFENDANTS DID NOT RETALIATE AGAINST A.M. FOR MAKING A
TITLE IX COMPLAINT
In Count II of the Complaint, Plaintiff asserts a claim for Title IX retaliation. Title IX is
a federal spending clause statute that provides that “no person in the United States shall, on the
basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to
discrimination under any education program or activity receiving Federal financial assistance.”
A plaintiff may prevail on a claim for Title IX retaliation by establishing “that she engaged in
activity protected by Title IX, that the alleged retaliator knew of the protected activity, that the
alleged retaliator subsequently undertook some action disadvantageous to the actor, and that a
retaliatory motive played a substantial part in prompting the adverse action.” Frazier v.
Fairhaven Sch. Comm., 276 F.3d 52, 67 (1st Cir. 2002). The sin qua none of a Title IX
retaliation claim, therefore, is a complaint of a violation of Title IX and that is exactly what is
missing in this case.
Nowhere in her complaint filed in this case or her motion does Plaintiff allege that the
Cape Elizabeth School Department violated Title IX, nor does she articulate what Title IX
violation A.M. was complaining about.
In fact, the statement on the sticky note – “THERE’S A RAPIST IN OUR SCHOOL
AND YOU KNOW WHO IT IS,” cannot, by any stretch of the imagination, be considered a
19
Title IX complaint. There is nothing about that statement that suggests that the Cape Elizabeth
School Department has discriminated against anyone on the basis of sex. Rather, what the sticky
note charges is that there is a dangerous criminal present in the school.
Nor could posting an anonymous sticky note be a legitimate means to make a Title IX
complaint. The School’s Board’s discrimination and harassment policies and procedures specify
how a complaint of sex discrimination should be made: by reporting their concern to any staff
member. School Board Procedure ACAA-R. A.M., according to her own statements, was very
aware of the school policies. If A.M. actually had information that the School Department was
engaged in sex discrimination, she could have – and should have – communicated that
information to the school by telling any staff member. Yet she did not do that. Instead, she
chose to post an anonymous sticky note in a bathroom – where she knew it would be seen by
students, not staff, -- accusing a fellow student of being a rapist.
The Supreme Court has explained “[r]etaliation against a person because that person has
complained of sex discrimination is another form of intentional sex discrimination . . . retaliation
is discrimination ‘on the basis of sex’ because it is an intentional response to the nature of the
complaint: an allegation of sex discrimination.” Jackson v. Birmingham Bd. of Educ., 544 U.S.
167, 174 (2005). Here, as detailed above and in the declarations of the school administrators
involved, there is not one shred of evidence that A.M. was disciplined for complaining about sex
discrimination. Indeed, there is not one shred of evidence that anyone perceived that she
complained about sex discrimination. Rather, all of the evidence establishes that she was
disciplined because her unfounded accusations against a fellow student that so severely and
adversely affected him that he was unable to go to school. That is not Title IX retaliation; it is
responsible enforcement of the School Department’s bullying policy and its obligations to
20
protect all students. Plaintiff thus has no likelihood of succeeding on her Title IX retaliation
claim.
IV. PLAINTIFF HAS NOT ESTABLISHED THAT A.M. WOULD BE

IRREPARABLY HARMED IF A RESTRAINING ORDER IS NOT ISSUED
This Court has explained that “a showing of irreparable harm must be ‘grounded on
something more than conjecture, surmise, or a party's unsubstantiated fears of what the future
may have in store.’” Maine Educ. Ass'n Benefits Tr. v. Cioppa, 842 F. Supp. 2d 386, 387–88 (D.
Me.), aff'd, 695 F.3d 145 (1st Cir. 2012) (quoting Charlesbank Equity Fund II v. Blinds to Go,
370 F.3d 151, 162 (1st Cir.2004)). “Thus, a preliminary injunction will not be issued simply to
prevent the possibility of some remote future injury. A presently existing actual threat must be
shown.” Grounds for Granting or Denying a Preliminary Injunction—Irreparable Harm, 11A
Fed. Prac. & Proc. Civ. § 2948.1 (3d ed.).
In her motion, Plaintiff identifies the alleged harm to A.M. if an injunction is not granted
as (1) an imminent suspension starting October 15, 2019,9 and (2) remaining under a school
warning “that any future actions of this sort . . . may result in further and more severe
consequences up to and including suspension and possible expulsion.” Pl. Br. at 18. Plaintiff
argues that absent injunctive relief, she will lose her First Amendment freedoms, which will have
a chilling effect for A.M. and other students. Id. In fact, there is nothing irreparable about a
suspension. If this Court were to determine, after full consideration of the merits of Plaintiff’s
claim, that A.M. should not have been suspended, the suspension could be expunged from her
record. With respect to the second harm, Plaintiff does not accurately describe the school’s
9
The effective date of the suspension was delayed by agreement of the parties until after this Court has had a chance
to rule on Plaintiff’s motion.
21
warning, because she omits a significant portion—“She is hereby warned that any future actions
of this sort, directed to the student who was targeted in this instance or any other student,
may result in further and more severe consequences up to an including suspension and possible
expulsion.” Complaint Exhibit B (emphasis added). Thus, while the school’s warning prohibits
A.M. from targeting Student 1 or other students in the future in violation of the school’s bullying
policy, it in no way prohibits her from engaging in protected speech. Plaintiff therefore cannot
establish that she will suffer irreparable harm if a restraining order is not issued and her motion
should be denied for that reason as well.
V. THE BALANCE OF HARMS AND PUBLIC INTEREST WEIGH AGAINST

INJUNCTIVE RELIEF
In Epperson v. Arkansas, 393 U.S. 97, 104 (1968), the United States Supreme Court
warned that:
Judicial interposition in the operation of the public school system of the Nation raises
problems requiring care and restraint. . . . By and large, public education in our Nation
is committed to the control of state and local authorities.
Plaintiff not only comes to the Court asking for judicial intervention in the operation of the Cape
Elizabeth School Department, her request is directly contrary to the public policy of the State of
Maine. That public policy with regard to bullying has been established by the Maine legislature
as follows:
All students have the right to attend public schools that are safe, secure and peaceful
environments. The Legislature finds that bullying and cyberbullying have a negative
effect on the school environment and student learning and well being. These behaviors
must be addressed to ensure student safety and an inclusive learning environment.
20-A M.R.S. §6554(1). In this case, the experienced school administrators who undertook a
careful investigation determined that A.M. bullied Student 1 and that as a result Student 1 could
not come to school. As Maine’s bullying law requires, they took appropriate remedial action and
22
now Plaintiff’s motion for a temporary restraining order requests that this Court rescind that
action before a full consideration of this case on the merits. Taking such action on an interim
basis would be contrary to the public policy established by the Maine legislature, and would
interfere with the ability of school officials to protect students from bullying.
VI. PLAINTIFF SHOULD BE REQUIRED TO POST SECURITY
Rule 65(c) of the federal Rules of Civil Procedure states that “the court may issue a
preliminary injunction or a temporary restring order only if the movant gives security in an
amount that the court considers proper to pay the costs and damages sustained by the party found
to have been wrongfully enjoined or restrained. Plaintiff has not offered to post a bond but the
Court should order her to do so if it grants injunctive relief in this case
CONCLUSION
For all of the foregoing reasons, Plaintiff’s motion for a temporary restraining order
should be denied.
Dated: October 17, 2018.
/s/ Melissa A. Hewey

Melissa A. Hewey
Attorney for Defendants
DRUMMOND WOODSUM
84 Marginal Way, Suite 600
Portland, ME 04101
(207) 772-1941
mhewey@dwmlaw.com
23
CERTIFICATE OF SERVICE
I, Melissa A. Hewey, hereby certify that on October 17, 2019 I electronically filed the
above Memorandum of Law in Opposition to Motion for Temporary Restraining Order
with the Clerk of Court using the CM/ECF system which will send notifications of this
filing to all parties of record.
/s/ Melissa A. Hewey

Melissa A. Hewey
Attorney for Defendants
24
Case 2:19-cv-00466-LEW Document 9-3 Filed 10/17/19 Page 1 of 2 PageID #: 110
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ACAA - HARASSMENT AND SEXUAL HARASSMENT OF

STUDENTS
icie tia-foundations-and-basic-commi ments190-acaa-harassment-
and-sexual-harassment-of-students
Harassment of students because of race, color, sex, sexual orientation, religion, ancestry or national origin,
or disability is prohibited. Such conduct is a violation of Board policy and may constitute illegal
discrimination under state and federal laws.
Harassment
Harassment includes but is not limited to verbal abuse based on race, color, sex, sexual orientation, religion,
ancestry or national origin, or disability. Harassment that rises to the level of physical assault, battery and/or
a buse and bullying behavior are also addressed in the Board policy JICIA — Weapons, Violence & School
Safttty
Sexual Harassment
Sexual harassment includes but is not limited to unwelcome sexual advances, requests for sexual favors or
pressure to engage in sexual activity, physical contact of a sexual i lature, gestures, comments, or other
physical, written or verbal conduct that is gel ioar-based wait interrere with a student's education. School
employees, fellow students, volunteers and visitors to the school, and other persons with whom students
may interact in order to pursue school activities are required to refrain from such conduct.
Harassment/sexual harassment of students by school employees is considered grounds for disciplinary

action, up to and including discharge. Harassrnent/sexual harassment of students by other students is
considered grounds for disciplinary action, up to and including expulsion. The Superintendent will determine
appropriate sanctions for harassment of students by persons other than school employees and students.
The Superintendent or the employee designated as the Title IX Coordinator wil l investigate complaints of
harassment in accordance with the Student Harassment Complaint Procedure. School employees,
students, and parents shall be informed of this policy/procedure through handbooks and/or other means
selected by the school administration.
Legal Reference: Title IX of the Education Amendments of 1972(20 USC § 1681 , et seq.)
Title VI of the Civil Rights Act of 1964 (42 USC § 2000(d))
5 MRSA §§4602; 4681 et seq.
20-A MRSA § 6553
Cross Reference:
ADOPTED: September 14, 1999

REVISED: May 13, 2003
REVISED: October 12, 2004
R EVIEWED: August 2006
http://app.printfriendly.com/print?url_s—uGGCP/025dN3/025cS%256FpuBByoBnEqmpn... 3/28/2017
PrintFriendly.com: Print & PDF Page 2 of 2
R EVISED: February 12. 2008

R EVISED: August 28, 2012
http://app.printfriendly.com/print?url_s=uGGCF%25dN%25cS%25cSFpuBByoBriEqmpn... 3/28/2017
Record of Reported Bullying Incident
Report by: Student 1
Reported to: Jeffrey Shedd/Cathy Stankard
Date Reported: September 19, 2019 and September 23, 2019 (to Jeffrey Shedd and Nate Carpenter)
Background to Bullying Report:
On Monday, September 16, sticky notes were pasted in two girls’ bathrooms roughly two hours
apart. The notes asserted a belief that there was “a rapist” in CEHS. Some of the notes concluded
“And you know who it is.” Others suggested that school officials “kick out the rapist.” One note in
the first floor bathroom asserted that administration “is protecting him” (the rapist).
Both sets of notes were brought to the attention of administration by concerned CEHS students
within minutes of their posting. With regard to the second floor notes, where there was more
thorough camera coverage, we know that the notes were brought to the attention of the
administration by the very next student who entered the bathroom after the notes were posted. First
floor camera coverage is more limited. We believe those notes were brought to the attention of
administration within minutes of their posting.
There ensued immediately a comprehensive investigation designed to answer three questions. The
first two questions were paramount in the first week of the investigation:
 Was there a rapist in the school?

 Were there victims of a rapist in school who needed our support?
Answering the first two questions was the purpose of a Title IX investigation conducted by Title IX
coordinator Cathy Stankard, Principal Jeffrey Shedd, Assistant Principal Nathan Carpenter,
Superintendent Donna Wolfrom, and School Resource Officer David Galvan.
In the course of that investigation, it became evident that the unnamed “rapist” who was the target
of the bathroom messages was Student 1.
Last spring, the police began investigating a report concerning an incident between Student 1 and a
junior female, Student 2. A protection order has been in place from last spring until now. That
protection order was reviewed last spring in separate meetings with each student, Mr. Shedd, and a
Cape Elizabeth police officer. The order is still in place and is scheduled to expire at the end of the
current school year. However, at the request of the female student and her family, that police
investigation and case is otherwise not active. The family wishes no further steps taken. During the
course of our investigation, we met multiple times with the female student. She reports feeling safe,
feeling heard, and feeling supported by school staff. She wishes no further action taken on the
school’s part.
1
That case, which has been known about since last spring, was one basis for the assertion that there
was a “rapist” in school. However, as is clear from the summary above, that case is not a fair basis
for that assertion.
In the course of the investigation, we learned of rumors that upwards of “four,” “five,” “six,” or
“eight” additional females had come forward to report rape allegations against Student 1. We heard
from multiple sources that a 10th grade female student was rumored to be “building a case” against
Student 1 We interviewed many students to attempt to ascertain the source of those rumors,
including that 10th grade female.
After many interviews, it was apparent that there were only two identifiable incidents that
supposedly formed the basis for the “rapist” assertions.
The first of those incidents allegedly took place following last year’s prom. The 10th grade female
who was the subject of those rumors concerning the prom met twice with Jeffrey Shedd and Cathy
Stankard. She very clearly denied that any rape had occurred, let alone any sexual activity at all. She
indicated that the young man in question expressed a wish for sex. She said “no.” He stopped.
The second of those incidents allegedly was the subject of a video that multiple students reported,
based on rumors, showed Student 1 dragging a female by the hair into a bathroom, where she was
raped behind a locked bathroom door. Through the investigation we were able to locate those
videos (two videos, ten seconds apiece). One of the videos depicted only a student turning off a
light. The other showed Student 1 picking up a girl from a bed and putting her on the floor, while
another female voice is heard laughing in the background. Neither video showed anybody being
dragged into a bathroom by the hair. We were able to contact the two girls who had been in the
hotel room. Neither ever attended CEHS. Both have already graduated from high school. Both say
that no rape occurred. Indeed, they reported that no sex occurred. There was an incident of Student
1 inappropriately reaching into one girl’s pants. He ultimately stopped when told to do so. What one
of the videos depict was Student 1 picking up one of the girls from a bed to encourage her to go to
her car to retrieve her vaping device.
After four days of nearly non-stop investigations and following up every source of rumor about a
“rapist” in school, we were able to conclude that there is and never was any factual basis for any
such claim against Student 1.
The Bullying Report
On September 19, Cathy Stankard and Jeffrey Shedd met with Student 1 and his mother. We met in
the Jordan Conference room in Town Hall because Student 1 was not comfortable in school in light
of the events that happened in school on Monday, September 16 and their aftermath. Student 1
remained out of school a total of seven days while we continued our investigation. He did not feel
safe returning. He finally returned to school on Friday, September 27.
In our initial meeting, Student 1 reported that he did not hear about the messages in the two girls’
bathrooms until he received an Instagram message from a girl who had been a friend. She asked if
2
he was OK and then clarified for him why she was asking. She expressed hope that the rumors
about him were not true.
Student 1 was in school on Tuesday September 17. Attached is a document he prepared that showed
why he felt uncomfortable and unwelcome in school. Specifically, he went to the chorus room to eat
lunch on Tuesday, as was his custom. As soon as he arrived, the other students in the room, whom
he had previously viewed as friends, left. During chorus, a female singer near him told him that her
mom had talked to other “Cape moms” and they were advising their students not to associate with
Student 1. In another incident on Tuesday, Student 1 went to hold a door open for a female with
whom he previously had a close friendship. That female accosted him with the rumors and said he
would never get into college if the rumors were true. Her tone seemed hostile.
At the meeting with Student 1 and his mother on September 19, he expressed that the only group he
then felt comfortable with was the football team. He asked for and was granted permission to attend
practices and games with the team even though he was not yet back to school.
On September 23, Jeffrey Shedd and Nathan Carpenter met with Student 1 and his mother, again at
the Jordan Conference room because of Student 1’s continuing discomfort at returning to school.
During that meeting, the group reviewed the school’s bullying policy. Student 1’s mother expressed
a particular concern to have school officials track back, if possible, who may have posted on the
video a derogatory caption stating “this is Student 1 raping bitches.” Student 1 asked the officials to
talk to two female students with whom he has had a good relationship in the past. Carpenter
explained that we had coincidentally just spoken with one of the two girls—the one who accosted
Student 1 personally while he was attempting to hold open the door. Carpenter explained that she
was not intending to be hostile, but she was being very direct in her way about what would happen if
the rumors were true. She did not personally hope the rumors were true and was relieved to hear
from Shedd and Carpenter that they were not true.
On September 24 and 25, Mr. Shedd and Mr. Carpenter focused efforts on tracing back the source
of the video caption.
On Thursday September 26, Shedd and Student 1’s mother spoke in Shedd’s office about what had
been learned. As far as could be determined, the caption had been on the video as early as August 8,
2018—one day after the incident in the hotel that it depicted. It could not be definitely determined
who added the caption. The most likely explanation is that the caption was place on the video by
one of two young men who were taking videos that night. In other words, it was not a caption that
had recently been added with any hostile intent towards Student 1. At that meeting, Shedd also
shared that we had spoken to the other girl that Student 1 wished us to speak to and conveyed that
she was visibly relieved to learn that the “rapist” allegations had no fair factual basis. Finally, Shedd
conveyed the additional work that had been done through many follow-up witness interviews to
defuse the rumors that gave rise to the assertion that there was a “rapist” in school.
The next day, Friday, September 27, Student 1 attended school for the first time since the post-it
notes appeared in the girls’ bathrooms.
3
Attach any pertinent documentation (emails, texts, photos, etc.)
See the following:
1. A timeline with photos of students entering the second floor girls’ bathroom in the half hour
leading up to the reporting of the notes posted in that bathroom.
2. Photos of the notes posted in the second floor girls bathroom (note: one note was found on
the full-length mirror; a student ripped it up and then reported it to the main office; the
ripped-up remnants are in the investigation file)
3. Photos of the notes as they appeared in the first floor girls’ bathroom
4. Photos of the first floor bathroom notes
5. There are also two ten-second videos from the early morning of August 7, 2018 that are on
Mr. Shedd’s computer.
6. Statement from Student about events of Tuesday, September 17 and ensuing days
Investigative Summary
Witness: Student 3
Interviewed by: Jeffrey Shedd, Nate Carpenter
Place/Date: Mr. Shedd’s office, September 16
She heard last week from Student 4 that Student 4 had heard about issues involving sexual assault by
Student 1 that members of the girls’ volleyball team know about.
Witness: Student 2
Interviewed by: Jeffrey Shedd Shedd, Nate Carpenter Carpenter
Student 2 says she’s all right. She has had no issue with Student 1 since the protection order was put
in place. She has heard nothing about any new situation. She knows we are here to support her. She
will come to us if she hears anything. She does not know anything about sticky notes.
4
Later, Student 2 came back to Mr. Carpenter to say that Student 14, Student 34, and Student 6 were
talking in period 3 study hall about the stick notes.
Witness: Student 4
Interviewed by: Nate Carpenter, David Galvan
Place/Date: Mr. Carpenter’s office, September 16
Student 4 said she had heard about the “rapist in the building” rumors. She said she did not know
anything about the sticky notes in the girls’ bathroom or a plan to put the sticky notes up.
Witness: Student 38
Student 38 came to the office to be sure that we had received the sticky notes from the second floor
girls bathroom. Student 38 was the student who discovered them on the mirror and gave them to
Student 39 to bring them to the main office. Mr. Carpenter assured Student 38 that Student 39 had
brought the notes to the office.
Witness: Student 14
During period 3 study hall, Student 14 was part of a conversation with Student 34 and Student 6.
Student 6 had earlier been shown a picture of one of the second floor notes by Student 4.
Witness: Student 34
Student 34 was part of a period 3 conversation with Student 14 and Student 6 about a picture that
Student 4 had shown Student 6 on Student 4’s phone showing one of the notes in the second floor
bathroom.
5
Witness: Student 5
Interviewed by: Jeffrey Shedd
Student 5 did go into the second floor girl’s bathroom. She first went into the third floor bathroom
to check how she looked in the mirror but she thought she was making another girl in there nervous
so she went to the second floor. She used the mirror. There was nothing on the mirror. There were
no post-it notes.
Student 5 did not write any messages. She did not post any messages in the bathroom.
She said that Student 6 said she saw a picture of a note in the second floor bathroom that Student 4
showed her on her phone.
Witness: Student 40
Interviewed by: Nathan Carpenter, David Galvan
Date/Place: September 16, Mr. Carpenter’s Office
During Achievement Period, Student 40, Student 4, Student 37, and Student 6 were discussing the
note that Student 4 had a picture of on her phone. Student 4 sent that picture to Student 37.
Witness: Student 37
Interviewed by: Nathan Carpenter, David Galvan
Date/Place: September 16, Mr. Carpenter’s office
Student 37 was part of a conversation during AP with Student 40, Student 6, and Student 4
concerning the notes in the second floor bathroom. Student 4 texted Student 37 a picture of a note,
which Student 37 then shared with Mr. Carpenter
Witness: Student 6
Interviewed by: Nathan Carpenter, Jeffrey Shedd, David Galvan
Date/Place: Mr. Carpenter’s office, September 16
6
Student 6 said that Student 4 showed her a picture of a note on a mirror in one of the bathrooms
during period 3. During period 3, Student 6, Student 34 and Student 14 talked about what Student 6
had seen on Student 4’s phone.
Witness: Student 3
Interviewed by: Nathan Carpenter, Jeffrey Shedd
Student 3 has heard that six other girls have come forward to say that Student 1 has raped them. She
heard that from Student 7. She heard that there is a video showing Student 1 dragging a drunk girl
into a bathroom and that he raped her in the bathroom. Student 3 has not seen the video. Student 7
has seen it.
She says Student 7 told her that Student 8 has the video. Student 7 first saw it last spring.
Witness: Student 9
Date/Place: Mr. Shedd’s Office, September 17
On Monday, she did go into the second floor girl’s bathroom. She did use the mirror. She saw no
notes.
She did not write or place any notes.
Witness: Student 10
Interviewer: Jeffrey Shedd
Date/Place: Mr. Shedd’s office/September 17
Student 10 was shown the hotel video by Student 8 last spring. She recalled being told by Student 8
and Student 11 that what happened after the video scene was that the girl shown was dragged into
the bathroom and sexually assaulted. She said she recalled the video showing a girl being dragged
into the bathroom, screaming.
Student 10 has heard that Student 4 is helping one girl anonymously, but a different girl than is
shown in the video.
7
Witness: Student 11
Place/Date: September 17, Mr. Carpenter’s office
Student 11 said he received the video in a group chat on May 7. He says he thinks Student 12 may
have sent the video but he’s not certain. He thinks Student 12 was taking the video because of the
way part of his face appears in the screen. Student 11 said he was with Student 13 and a couple of
others at Buffalo Wild Wings last night, and he sent the video to Student 13. Student 14 told him in
a Snapchat conversation that five or six more girls are coming forward to say they have been raped
by Student 1. He does not know where that rumor comes from.
Witness: Student 8
Inteviewed by: Jeffrey Shedd, Nate Carpenter, David Galvan
Place/Date: September 17, Mr. Carpenter’s office
Student 8 does not have any inappropriate videos except maybe one involving [name deleted,
separate issue.]
Witness: Student 14
Interviewed by: Jeffrey Shedd, Nathan Carpenter, David Galvan
Student 14 Snapchatted Student 11 on September 17. She said: “Are you friends with Student 1?”
He said, “Yeah, why?” She responded “You’ll find out.” Then Student 14 referred to five other girls
who have made reports against Student 1. Student 14 heard this from Student 15 who is working
with Student 4’s mom. Student 14 also heard of five others from Student 4, who told Student 14
she’s been “working a case” on Student 1 for the last couple of months. This was a topic of
conversation after volleyball practice involving Student 2, Student 14, and Student 15. Student 15
said she doesn’t know the names of the other girls, but Student 4 asked her to let Student 2 know.
Student 15 said the other girls may be from other schools.
Student 14 heard from Student 10 that there’s a video showing a girl wearing only a shirt. The girl is
screaming for Student 1 to stop. Student 14 heard this yesterday during a fire drill from Student 10.
Witness: Student 15
Interviewed by: Jeffrey Shedd, Nate Carpenter, Donna Wolfrom, Cathy Stankard, David Galvan
Date/Place: Small Conference room, September 17
8
Student 15 was driving home yesterday with some volleyball players. Student 2 was driving. Student
15 told the girls that Student 4 was “pushing a case” with a couple of other girls concerning Student
1. Student 15 is not certain who the girls are, but one might be Student 16. Student 4 and Student 17
were working on this together. Student 15 doesn’t know who is the source of the rumor that five or
six girls have come forward. She said that she heard from Student 4 that two other girls had come
forward about Student 1 last year.
Witness: Student 8
Interviewed by: Jeffrey Shedd, Nate Carpenter, David Galvan
Date/Place: Mr. Shedd’s office, September 17
After being prompted about a video in a hotel room concerning Student 1, Student 8 said he did
have a copy of that video. He shared it with us and deleted it from his phone. Student 8 said he
believed it took place at the Hilton Doubletree near the mall.
Witness: Student 4 (mother also present)
Interviewed by: Nate Carpenter, Donna Wolfrom, David Galvan, Cathy Stankard
Date/Place: Small conference room, September 17
After an explanation of Title IX and the importance of coming forward, she explained that she had
heard about a video showing a girl wearing only a shirt being dragged into a bathroom by Student 1.
She has not seen the video.
Initially, she claimed that did not see or know of the sticky notes. That was the same information
she had provided to Mr. Carpenter in an earlier interview with him the previous day.
When confronted by information about the video evidence of students entering and leaving the
bathroom and by information from other students to the effect that Student 4 had been showing
pictures of at least one sticky note on her phone very shortly after the note appeared in the second
floor bathroom, Student 4 admitted that she had put up one sticky note, though she suggested that
might have been in another bathroom.
When she entered the second floor bathroom, Student 4 said the notes were already there.
Student 4 says she knows of three girls who went to guidance office to share their stories of sexual
assault. Nothing happened until Student 4 went to the police station. No investigation was begun
until Student 17 and Student 4 went to Mr. Shedd.
What was Student 4’s motivation for posting the note? Student 4 said it was to create fear. She also
said that she believed teachers “idolize” Student 1 and even gave him a model citizen award last year.
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Witness: Student 12
Place/Date: September 17, Mr. Shedd’s office (parents also present)
Interviewer: Jeffrey Shedd
The boys in the hotel room were Student 18, Student 1, and Student 12. The girls were Student 19
and Student 20. Student 12 gave Mr. Shedd contact information for both girls.
According to Student 12’s recollection, the girls wanted to have sex with the boys, but nobody had
sex. Nobody was intoxicated. The girls became angry at the boys because the boys were being very
loud and not allowing them to go to sleep.
After watching the video of Student 1 lifting Student 20 out of the bed, Student 12 said that Student
1 wanted her to go outside for some reason, but he wasn’t sure why. The girl wished to sleep and
not go outside. Student 12’s best recollection was that the incident took place sometime in the
summer of 2017.
Student 12 said he and Student 18 were taking videos. He said he did not put on the caption. He
said that back then this friend group used the term “rape” to mean different things that had nothing
to do with the real definition of the term.
Witnesses (include name, grade, date of meeting): Student 20 and Student 19
Interviewer: Jeffrey Shedd (with Student 12 and his two parents present)
Place/Date: Mr. Shedd’s office, September 17 (approximately 5:00 pm)
Interviewed by: Jeffrey Shedd (with Student 12, Student 1’s older brother, and both his parents
present)
The two girls had secured a hotel room for the evening of August 6, 2018 for a fun evening in
honor of Student 19’s birthday. Somehow a connection was made to one of three boys who were
also present in the room—Student 12, Student, and Student 18. The girls arrived at the room at
approximately 1:00 am. The boys arrived somewhere between 1:00 and 2:00. There was no drinking.
All involved smoked from a hookah pipe. At one point, Student 1 put his hands down Student 20’s
pants. He clearly wanted sex with her. She did not want to have sex. He did stop. Ultimaely, the two
girls went into the bathroom to sleep because of the sexual approaches by both brothers and
because they boys were being loud. The girls just wanted to sleep. They remained in the bathtub
until the older brother came in to apologize and invited the girls to sleep in one of the beds. For the
rest of the night, the girls slept in one bed, the boys in the other.
After reviewing the video where Student 1 is shown picking up Student 20, Student 20 explained
what it was showing. Student 1 was attempting to cajole Student 20 to get up and get her Juul vaping
device from her car. She just wanted to sleep. Student 1 picked her up, but she climbed back into the
bed after the scene shown in the video. She was never dragged to the bathroom. She was not raped.
10
Nobody had sex that night. The girls left the room shortly after 5:00 in the morning because they
had to get ready to go to work.
Student 19 confirmed Student 20’s account.
Witness: Student 2
Interviewed by: Jeffrey Shedd, Cathy Stankard
Date/Place: September 18, Mr. Shedd’s office
Ms. Stankard inquired of Student 2 whether she understood the protection order was still in force or
not. She said she thought so.
Ms. Stankard wanted to be sure that Student 2 and Student 1 were in no classes together. She said
they were not.
When asked if there was any other help the school could be providing Student 2, she said no, she
does see Ms. Nadeau, and she feels supported.
Student 2 reported she is trying to stay out of the rumor mill.
Witness: Student 16
When asked by Ms. Stankard whether Student 16 has ever felt pressured or taken advantage of for
anything sexual, Student 16 said yes, but never by a student in school. When Ms. Stankard said there
was a rumor about something happening prom night with Student 1, Student 16 said, “Most of that
was a rumor…there was some verbal pressure but nothing physical.” Student 16 said she said “no”
to the verbal pressure and that was the end of it. Ms. Stankard asked if she had any guesses why that
might have gotten into rumor mill. Student 16 said maybe because of his reputation, which she only
heard about afterwards. Now she’s not certain what to believe about Student 1, and she has heard
him tell conflicting stories from him about a video she’s heard about but hasn’t seen. At first,
Student 1 said he was good friends with the girls and there only one or two other friends there, but
then he said he wasn’t friends with them and there were five or six others there. He’s said conflicting
things about his relationship with Student 2, too.
After Student 16 heard about the post-it notes in the bathrooms, she texted him to ask, “Are you
safe?” Since then she hasn’t had much contact with Student 1. She hopes the rumors are not true.
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Witness (include name, grade, date of meeting): Student 1
Date/Place of Interview: Thursday, September 19, Jordan Conference room, 4:30 pm
Interviewers: Jeffrey Shedd, Cathy Stankard
After viewing the videos, Student 1 said the first one showed him picking up one of the girls to coax
her to get her vaping device. He thought both videos were taken by Student 18. He said that none of
the students in the hotel room had been drinking. He said the girl he was picking up was fully
conscious. He acknowledged he wanted to have sex with her and put his hand down her pants at
one point. When she indicated she did not want to have sex with him, he stopped. The scene in the
video had nothing to do with his efforts to have sex; it was about trying to get her to get her Juul
device, which was outside in her car.
Student 1 reported not hearing about the sticky notes in the girls’ bathrooms until after he came
home from football practice Monday afternoon. At that point he saw a text from Student 16 asking
if he was OK. He looked on his Snapchat account and saw a message from Student 21 that she had
heard a rumor that four girls in four different schools had come forward to say he had sexually
attacked them.
Student 1 went to school on Tuesday. At some point he saw an Instagram message from Student 41,
a friend of his, saying that she had overheard two boys talking, saying that they wanted to see
Student 1 in jail.
Also that day, Student 22, for whom he was trying to hold open a door, told him with hostility that
he might have been able to finesse one charge (Student 2) but he wouldn’t be able to this time
because four girls had come forward to accuse him. She sarcastically wished him good luck with
college.
Late that day, Student 1 went to eat lunch in the chorus room, which was part of his routine. Within
one minute of his arrival, the other students in the room at the time left.
The only person that seemed to still be his friend was Student 23.
Sometime Tuesday, Student 16 also sent a screenshop of an online conversation she had with
Student 24 that day in which Student 24 indicated that she knew Student 16 had been raped on
prom night. Student 16 told Student 24 that was not true.
Student 1 also recalled his confrontation with Student 25 last spring after the protection order
concerning the Student 2 matter. Student 25 told him he was slime. She said similar things more
than once. He reported that to Mr. Shedd.
Witness: Student 25
Interviewed by: Nate Carpenter, Jeffrey Shedd
12
Student 25 said she heard about the notes in the second floor bathroom that morning. She said she
was quite amused by them. She said, “I hate that kid. I want him out of here.” When asked why, she
said because she was friends with Student 2. Student 25 denied having anything to do with the notes.
Witness: Student 7
Interviewed by: Jeffrey Shedd, Nathan Carpenter
Regarding the Snapchat post that Student 7 sent with an assertion that six other girls had come
forward with allegations of rape, Student 7 had heard that but was not aware of any specific
individuals. We explained to Student 7 what we had learned, particularly about a video and another
rumor. Student 7 had no specific information to add. Her Snapchat was based on unspecific things
she had heard.
Witness: Student 22
Student 22 said she had been close to Student 2 when they were younger, but they no longer hung
out. She said she had been friends with Student 1 since Middle School.
Student 22 explained that she had confronted Student 1 on Tuesday, September 16 because she
wanted to know if the rumors she was hearing about multiple people coming forward to accuse
Student 1 or rape or sexual assault were true. She had heard about five other girls coming forward.
She told him that if it were true, then he’d be in trouble and probably wouldn’t get into college. If
the rumors were not true, then he would need help.
Student 22 said that Student 16 told her that Student 16 was concerned about Student 1 committing
suicide. As far as she knew, this worry was based solely on speculation by Student 16.
When told by Mr. Carpenter and Mr. Shedd that there were no new cases at all except for the
Student 2 case that was in the hands of the police and Student 2’s family, Student 22 said she looked
at Student 1 “like a brother.” She said she would welcome him back to school.
Witness: Student 26
13
Student 26 was one of a group of four girls—Student 26, Student 27, Student 28, and Student 29—
who reported the first floor bathroom notes to the main office. Mr. Shedd asked Ms. Thomas to go
down with the girls, take pictures of those notes, and retrieve them and then look in the other
bathrooms for other notes.
Student 26 believed that Student 30 was the first person to find the second floor bathroom notes.
Witness: Student 29
Student 15 explained that she was the first person to find the first floor bathroom notes. She was
going to use the bathroom. There was nobody else in there at the time. She spoke to Student 26,
Student 27, and Student 28 and they went to the main office together to report these notes.
Witness: Student
Interviewed by: Jeffrey Shedd, Nate Carpenter (with Student 1’s mother present)
Date/Place: Jordan Conference room, September 23 late afternoon
Student 1 reported that football practice and the game went well last week. In response to a question
from Mr. Shedd concerning the bullying policy, Student 1 reported that he believes that his status as
one of a small number of African-American students at the school may be a factor in his being
targeted as a rapist or for the spreading of the rumor mill. He recalled a concern the year before
regarding another African-American student. Mr. Carpenter inquired about details of that incident,
but Student 1 did not recall beyond the name of the student.
Student 1 said he had been friends with Student 22 and described the confrontation with her.
He says that Student 23 is the only student he currently trusts.
Student 1 related the incident the previous Tuesday in which within one minute of his sitting down
in the chorus room for lunch, other students who had been there left, leaving him alone in the
room. He also described the incident in which Student 15 told him during chorus that “Cape moms”
were warning one another not to have their students associate with Student 1. He knew that Ms. Lee
did not hear the comment, although other students nearby did.
Student 1 suspected Student 25 might have been involved in posting the post-it notes, but just based
on his past problems with her, not based on any knowledge. He repeated that Student 25 had made
repeated comments to him last spring. The comments continued until he brought them to the
attention of Mr. Shedd, and then they stopped.
14
Student 1 asked Mr. Shedd and Mr. Carpenter to follow up with Student 16 and Student 22 and to
do what we could to set them straight on the rumors. We told him we had just talked to Student 22
that morning but would follow up with Student 16.
Student 1’s mother expressed concern about the source of the caption and requested us to track it
back as much as we could to determine when and by whom it was added to the video.
Witness: Student 31
Date/Place of Interview: September 24, Mr. Shedd’s office
Student 31 said he had seen the videos but never had a copy of them. He had first seen the videos
two weeks ago. When asked how he took the caption when he saw the video, he said he took it as a
joke, even though he knew some might question his friend group’s use of language that way.
Witness: Student 11
Student 11 had a copy of the video until Mr. Shedd and Mr. Carpenter asked him to send them the
video and then delete it from his phone. He had received the video in a group Snapchat on May 7,
2019. He said he did not know who added the caption, but he would assume it was on the video
from the beginning. If it was added later, the caption would have been sharper than the video image.
He did not believe the caption was intended seriously. That term was frequently used non-literally in
his friend group. For example, if they were playing pickup basketball and one friend dunked over
another, they would say the defender had been “raped.” The group frequently shared with one
another videos that they meant to be funny.
Witness: Student 8
Date/Place of Interview: Mr. Shedd’s office, September 24
Student 8 recalled first seeing the videos at Student 18’s house the day after the events in the hotel
room. He guesses Student 12 put the caption on because he appeared to be the person who took the
videos. He recalls seeing the caption on the videos the first time he saw them. Student 8 received
the videos through a Snapchat group message. He believes that happened last April (2019). Student
8 recalls showing the videos to Student 10 and Student 32 last spring.
15
Witness: Student 30
Date/Place of Interview: Mr. Carpenter’s office, September 24
Student 30 heard from Student 33 that there was a note on the long mirror in the girl’s second floor
bathroom. This was apparently after the other second floor notes had been reported to the office.
The long mirror one apparently got missed. At first Student 30 did not see it even though Student
33 had told here where it was. After consulting with a friend of hers, Student 30 tore up the note but
shortly thereafter reported it to the main office.
Witness: Student 16
This was the second interview with Student 16. Ms. Stankard asked how Student 16 was feeling at
that time about the post-it notes and Student 1 situation. Student 16 said that she he’d heard so
much information that her attitude was that he was innocent until proven guilty. She had heard that
4 people, 6 people, and 8 people had come forward with accusations of sexual assault against
Student 1.
She was greatly relieved after hearing from Mr. Shedd and Ms. Stankard the truth about the hotel
video and that there was no other substance to any of the rumors, putting aside the Student 2 issue,
which was in the hands of the police and which the family no longer wished to have pursued.
Witness: Student 10
Mr. Shedd explained what the investigation had revealed about the video since the first time he
spoke with Student 10. He asked if Student 10 had heard anything else. She said she heard that
Student 4’s mom had been contacted by multiple girls, but she is supporting them anonymously. Mr.
Shedd said he was pretty sure that was not the case given all the information revealed in the
investigation.
16
Witness: Student 15
Interviewed by: Jeffrey Shedd, Nate Carpenter, David Galvan, Donna Wolfrom
Date/Place: Small conference room, September 26
Student 15 said it slipped her mouth when she was talking to Student 1 in chorus about what her
mother had heard from other mothers. Sometimes she doesn’t think before she speaks.
Student 15 has heard from a couple of people that they think the school is protecting Student 1
because he is charming. Yesterday Student 4 told her she thought it would look really bad for the
school if they had to punish Student 1 because he was a really good athlete, because he was well
liked, and because he is African-American.
Witness: Student 34
Date/Place: September 26, Small Conference room
Student 34 has heard from Student 4 that Student 4 believes the school is protecting Student 1
because he is African-American.
Witness: Student 2
Date/Place: September 26, Small conference room
Student 2 says Student 4 has asked her more than once to talk to a newspaper reporter. Student 2
says she does not want to. She does not want to get sucked into this. She thinks the school is
handling this very well and taking the concerns seriously.
Student 2 feels safe.
Witness: Student 5
Student 5 did not see a note when she was in the second floor bathroom. She was using the mirrors.
17
Student 5 did not write the notes, but she knows who did. She said that Student 35 told her that
Student 25 and Student 2 wrote the notes. Student 35 told her the same day Mr. Shedd spoke to her
the first time that Student 35 had been in the bathroom with Student 2 and Student 25. According to
Student 35, they were writing the notes in the first floor bathroom.
Witness: Student 35
Data/Place: September 26, Small conference room
Student 35 did not write any of the notes. She does not know who did.
Witness: Student 9
Student 9 had gone into the second floor bathroom to blow her nose. She stood in front of the
mirrors. She saw no notes. She did not write or post any notes.
Witness: Student 35
Student 35 was in the same advisory as Student 2 and Student 25 in Ms. O’Brien’s room. She saw
Student 2 and Student 25 writing notes—about ten notes in pencil. Later, on her way to the band
room, she saw the notes in the bathroom.
Student 14 was also in the advisory, and Student 36 was, too. They were not writing notes.
Witness: Student 36
Date/Location: Small conference room, September 26
Student 36 saw notes being written during advisory in Ms. O’Brien’s room. She saw Student 2 and
Student 25 writing notes. She saw the notes. They said there’s a rapist in our school. She has heard
of three assaults involving two Cape students—1 boy and 1 girl, but does not know who they are.
18
Student 36 has been a victim. Would be willing to see Ms. Nadeau to talk about it. Right now, she
wants to return to class. Does not want to share name of other Cape student involved. Promises to
reach out to Ms. Nadeau today. Mr. Shedd says he will alert Ms. Nadeau to expect to hear from her.
Witness: Student 14
Date/Location: Small conference room, September 26
Student 14 saw Student 25 and Student 35 writing the notes in Ms. O’Brien’s advisory. Student 2 did
not write any notes. Student 25 was 100% writing notes. Believes Student 35 was.
Student 14 and Student 2 were told by Student 4 in library conversation that she knows of five
different people assaulted by two different seniors in the high school. She has a good idea about one
or two other people.
Witness: Student 25
Date/Place: Small Conference room, September 26
Student 25 admits writing several notes that she later put in the first floor girls bathroom. She says
she was angry because she’s friends with Student 2. Student 2 did not write any notes. Student 35 did
write a couple of notes. She had heard the rumors. Her intention was to bring attention to the issue.
She did not write the message, “the school is protecting him.” She does not know who did.
Says they were hyped up by the notes on the second floor and wanted to make sure the word got
out.
Student 25 doesn’t feel good about what she did. She believes us now that we’ve corrected all the
rumors.
Witness: Student 2
Date/Location: September 26, Small Conference room
She knows that Student 35 wrote post-it notes. Student 2 had told them about the second floor
notes. Student 4 had approached her to encourage her to speak to a reporter. Student 2 had no
interest in that.
19
Student 2 did not write any notes.
Witness: Student 15
Date/Location: September 26, Small conference room
Student 15 had heard about hotel room rape video. She did not know about the notes until later.
Last year Student 4 and Student 17 were investigating about another student, not sure who.
Witness: Student 4
Interviewed by: Jeffrey Shedd, Nate Carpenter, David Galvan, Donna Wolfrom (mother also
present)
Date/Location: September 26, Small conference room
Student 4’s hope was to cause fear. Student 4 wrote and posted one of the notes in the second floor
bathroom. Another student wrote and posted the other notes, but it was Student 4’s idea. She does
not want to say who that other person is, because she does not have supportive parents. Student 4
will talk to that other student to see if she is willing to come forward.
Conclusions of Administrator:
A. The Bullying Policy
“Bullying” is defined in policy JICK is defined as
including but not limited to a pattern of written, oral or electronic expression….directed at a student….that:
B. Interferes with the rights of a student by:
1. Creating an intimidating or hostile educational environment for the student; or
2. Intefering with the student’s academic performance or ability to participate in or benefit from the
services, activities or privileges provided by the school; or
C. Is based on:
a. A student’s actual or perceived characteristics…including race….and that has the effect described in
subparagraph A or B above.
20
B. Factual Conclusions
1. The notes written and posted in the second floor bathroom were the responsibility of
Student 4. She has admitted her responsibility, though she claims to have written and posted
only one of the five second floor notes.
2. Given the video evidence, it is more likely than not that Student 4 posted at least four of the
notes in the second floor bathroom, possibly excluding the note later noticed by two other
girls on the full length mirror. The basis for this conclusion is the video evidence of the
comings and goings into and out of the second floor bathroom. The timeline is such that the
two girls who enter the bathroom before Student 4 both used the mirror. Neither noticed
any notes that would have been very obvious. Then Student 4 enters the bathroom. She is in
the bathroom alone for a few minutes. The first girl to enter the bathroom after Student 4
leaves is the girl who notices and arranges for the notes to be reported to the main office.
3. Student 4’s self-described intention was to instill fear in the school community and to alert
the school community because she does not believe the school’s administrators, counselors
or social workers take the issue of sexual assault seriously.
4. Student 4 may have believed the rumors she heard about unreported sexual assaults by
Student. That is not clear. But she had no factual basis for believing them, and she never
brought any of those rumors to the attention of any school staff member before posting
notes accusing a student of being a rapist despite sharing with a number of students that she
was aware of claims of sexual assault by Student by other unnamed and undisclosed
students.
5. The posting of the notes and passing along of the rumors constitute a pattern of oral and
written communications under policy JICK.
6. That behavior constituting a pattern of oral and written communications was compounded
by Student 4’s assertion to multiple people that Student was being protected by the school
administration because he is African-American, among other things. This statement is wholly
unfounded and suggests that all African-American students at CEHS are held to a lower
standard of behavior than their non-African-American peers.
7. Although Student 4 was not directly involved in the posting of notes in the first floor
bathroom, those notes would not have been posted but for the second floor bathroom notes
for which Student 4 is responsible.
8. The posting of the notes has caused Student to feel unsafe in and to miss seven days of
school. He has been ostracized and had friendships put at risk as a direct result of Student
4’s actions. This impact both created an intimidating and hostile environment and deprived
him totally of access to an education for seven days, during which he felt uncomfortable and
unsafe returning to school.
21
9. Student 4’s actions have caused harm to survivors of sexual assault who have been
repeatedly been called in to answer questions connected with this investigation.
10. The actions of Student 25 and Student 35 have similarly put at risk another student’s
reputation, solely based on unfounded rumors; have undermined or threatened trusting
relationships between school officials and students; and have triggered survivors of sexual
assault.
11. Student 25 and Student 35 have both evidenced genuine remorse for their actions.
Discussion with student bullied/options reviewed/tentative plan for next step (include date of
meeting) to address safety concerns:
Mr. Shedd met with Student 1 on three occasions since his return to school to check on the
student’s safety and comfort in school. The student reported that school is going well and he feels
comfortable. Mr. Shedd reiterated that we are her to support him and our doors are open. We
encouraged him to come forward if he experiences any issues and he promised he would do that.
Summary of contact with parent of student bullied before administrative action taken (indicate
parent name, relationship, and date of contact):
Mr. Shedd met with Student 1 and his mother on October 4 after an exchange of emails and phone
calls regarding next steps. Mr. Shedd shared a letter summarizing the steps we have taken and will
continue to take to protect his safety and the safety of all students. Mr. Shedd shared that three
students will be held accountable through disciplinary and educational consequences for their
actions summarized in this document.
Summary of action taken (date of meeting with student engaged in bullying behavior)
Mr. Shedd and Mr. Carpenter met with Students 4, 25, and 35 regarding disciplinary and educational
consequences that are detailed in three letters attached to this report. In the case of Students 25 and
35, parents of those students were contacted by phone and invited to attend these meetings. They
declined, and a copy of the letter has been emailed to each parent after a phone conversation
regarding the consequences.
Mr. Shedd and Mr. Carpenter and Officer Galvan met with Student 4 and her mother. We reviewed
the letter regarding consequences and answered questions they raised.
22
Follow-up action
We will be checking in with students 1, 4, 25, and 35 to be aware of how transitions back to school
are going. We will be organizing the educational session referred to in the consequences letters sent
to students 4, 25, and 35.
Date and nature of planned follow-up:
We will meet speak at least once next week with each of these students and offer any needed
support.
Superintendent contact summary (include date):
On October 4, Mr. Shedd spoke with the Superintendent to inform her of the meetings with
Students 4, 25, and 35.
Follow-up notes:
Administrator Signature: Date:
23


SHAEL NORRIS )
)
Plaintiff )
)
v. )
)
)
)
)
Defendants )
DECLARATION OF NATHAN CARPENTER
Pursuant to 28 U.S.C. § 1746, I, Nathan Carpenter, declare as follows:
1. I am the Assistant Principal at Cape Elizabeth High School (“CEHS”), which is part of
the Cape Elizabeth School Department (“School Department”) in Cape Elizabeth, Maine.
2. I have been the Assistant Principal at CEHS since 2014.
3. In my position as Assistant Principal, I have assisted the School Department’s Title IX
Coordinator, Cathy Stankard, with Title IX investigations and I have assisted the CEHS
Principal, Jeffrey Shedd, with bullying investigations.
4. While serving as Assistant Principal, my colleagues and I have always taken sexual
assault, sexual harassment and sexual discrimination seriously. In addition to working to
raise our school community’s awareness of these issues, we have worked hard to address
specific incidents that have been brought to our attention. Last year, I was directly
involved in addressing two incidents of unwanted sexual activity that were brought to our
attention by two different students. Since these incidents were brought to our attention
the Principal and I have had regular contact with the two students who raised the specific
incidents to ensure that they were each feeling safe and supported in school.
5. On September 16, 2019, a very worried student brought sticky notes from the second
floor girls’ bathroom to me. The sticky notes stated “There’s a rapist in our school, and
you know who it is.”
6. I was immediately concerned about whether anyone in our school was in danger and
whether there was in fact a rapist in the school.
7. Within minutes of receiving the notes, I separately spoke with both of the students who
had brought the incidents from last year to our attention, and asked each of them if they
or anyone else was in danger and if they knew anything about the notes. Neither student
believed she was in danger. The first student did not know anything about the notes but
the second student said that I should talk with A.M., who might know something about
the notes.
8. After the second student said I should talk with A.M., the School Resource Officer,
David Galvan, and I met with her. She denied any knowledge of the sticky notes, but she
was aware of the rumor of a rapist being in the building.
9. When SRO Galvan and I met with A.M., I asked her if she knew of anyone who was in
danger, if there was anyone that she was worried about, and if there was a rapist in the
school. She said she knew of students who had been assaulted, but she refused to share
any names. She said that would direct them to other channels for support.
10. I later learned that within a couple of hours of the student reporting the notes from the
second floor girls’ bathroom, other students reported copycat notes in the first floor girls’
bathroom stating something to the effect of “kick out the rapist.”
2
11. After I interviewed A.M., the first student I had talked with came back to my office and
told me that I should talk with three girls in her study hall who were talking about the
sticky notes. I talked with the three girls and one of them reported that A.M. had shown
her a picture of a sticky note with the statement about a “rapist” being in the school.
12. Throughout the remainder of the day, A.M. shared the picture of herself with a sticky
note with other students in class and in the hallways, and told students that another
student in the school had raped his prom date and that there was video of the same
student dragging an unconscious young woman into a bathroom, locking the door, and
raping her.
13. During our interviews with students, two different students told us that A.M. shared with
them her view not only that Student 1 was a rapist but also that he was being protected by
administration because of his race. Student 1 is African American.
14. On September 17, 2019, Superintendent Donna Wolfrom, Ms. Stankard, SRO Galvan and
I interviewed A.M. A.M.’s mother was also in attendance. While A.M. continued to
deny any knowledge of who posted the sticky notes, the video footage of the entrance to
the second floor bathroom showed that A.M. was the only person to enter the bathroom
between the time when students reported not seeing notes and when they were found.
After I told her that we had the video footage and statements from other students
indicating that she had posted the notes in the second floor girls’ bathroom, she admitted
to posting one of the notes. I then asked her why she wrote the notes and she said
because there is a rapist in the school and that he should not be in school here. It was
very clear to me that she was referring to one particular student (“Student 1”) when she
made these statements because she spoke at some length about him and about how she
3
thought it was wrong that he was idolized by faculty at the school. She also went on to
say that she wanted to create a culture of fear and then force a discussion about this issue.
15. As part of the investigation, we interviewed 47 students about the sticky notes, pictures of
the sticky notes, and allegations being spread about Student 1 raping his prom date and
another young woman at a hotel.
16. At no time during my interviews with A.M. or with other students did anyone’s name
other than Student 1 come up.
17. This incident caused significant disruption to our school not only as a result of genuine
fear felt by some of our students that there was a rapist in the school, but also by students
who had been involved in or were aware of others, such as family members, who had
been impacted by sexual assault.
18. The first student I spoke with did not want to share her personal experience and her
mother was concerned about the impact that this situation was having on her in school.
On the day of the planned walkout, the student’s mother requested that she be excused
from school out of concern about how it would affect her daughter. They made it very
clear that they had no concerns they wanted the school to address.
19. In the days and weeks that followed A.M.’s posting of the sticky notes, picture sharing,
and accusations, I had a number of students come to me expressing that they were upset,
scared, and wanted to know that the school was safe.
20. Student 1 stopped going to school on September 18, 2019—two days after the notes were
posted.
21. On September 23, 2019, Mr. Shedd and I met with Student 1 and his mother at the Town
Hall because he did not feel safe going to the school building. Student 1’s mother made a
4
report that her son was being bullied in violation of our school’s bullying policy.
Pursuant to policy JICK-R, Mr. Shedd, SRO Galvan and I conducted a bullying
investigation.
22. At that meeting, Student 1 expressed concern that his race could have been a factor in
how he was being treated.
23. On September 26, 2019, Superintendent Wolfrom, SRO Galvan, Mr. Shedd and I
interviewed A.M. It was clear that she had posted at least one of the notes in the second
floor girls’ bathroom and that she was referring to one particular student in the sticky
note.
24. That same day, Mr. Shedd and I determined that A.M. and the two other students who
had posted sticky notes on the first floor girls’ bathroom had violated our bullying policy
JICK. We discussed consequences to these students under policy JICK-R and agreed that
they would each be suspended and would be required to attend an educational session on
how to responsibly address concerns about sexual assault and support sexual assault
victims.
25. I know that this conversation occurred on September 26, 2019 because I remember that I
left town to visit my son at his college on the following day and I went to see him on
September 27, 2019.
26. When I returned on Monday, September 30, 2019, Mr. Shedd told me that although he
was initially thinking that A.M. should be suspended for five days, over the weekend he
decided that three days was appropriate for her, two days for one of the other students,
and one day for the third student. The lesser suspensions for the other two students was
5
because they were copying what A.M. had done and we had no reason to think that they
would have posted the notes if A.M. had not first done so.
27. Before informing the three students of their respective suspensions, we wanted to inform
the targeted student and his parents of the results of our investigation. Although Mr.
Shedd reached out to them on October 1, 2019, he was unable to connect with them until
October 3, 2019.
28. The next day, October 4, 2019, Mr. Shedd and I met with A.M. and the other two
students and informed them of their respective suspensions. We had decided the
discipline and planned the meetings before the article was published in the Portland Press
Herald.
I declare under penalty of perjury under the laws of the United States that the foregoing is true
and correct.
Executed: October 17, 2019 /s/ Nathan Carpenter

Nathan Carpenter
6


SHAEL NORRIS )
)
Plaintiff )
)
v. )
)
)
)
)
Defendants )
DECLARATION OF CATHY STANKARD
Pursuant to 28 U.S.C. § 1746, I, Cathy Stankard, declare as follows:
1. I am the Director of Teaching and Learning at the Cape Elizabeth School Department
(“School Department”) in Cape Elizabeth, Maine. In addition, I hold the positions of
Affirmative Action Officer, McKinney-Vento Liaison and Title IX Coordinator.
2. I have been the Title IX Coordinator for the School Department since August 15, 2016.
3. In my role as Affirmative Action Officer and Title IX Coordinator, I have been intimately
involved matters relating to gender-based discrimination, sexual harassment, and sexual
violence within the Cape Elizabeth School Department community.
4. As a district, we seek to be proactive in ensuring the physical, social, and emotional
safety of our students and staff while they are in our schools. We do that through
continuous review and revision when necessary, of our policies and procedures, by
providing education and training to staff and students at all grade levels, including
partnering with community resources to provide workshops; by thoroughly investigating

incidents of alleged sexual discrimination and harassment; and taking interim protective
measures during the investigation and effective remedial actions when we conclude that
there has been a violation of policy.
5. We encourage student involvement in our efforts. For example, since the summer we
have had a stakeholder group, including students, reviewing an improving investigative
procedures to make it as easy as possible for students who believe they have been victims
of harassment or discrimination to report their experiences so we can provide them with
the help they need.
6. In the past year, we received ten complaints, including an anonymous complaint,
regarding possible violations of Policy ACAA in our schools. Nine of the ten complaints
concerned sexual harassment and ranged from words, gestures, and photos to unwanted
sexual contact. Some of the alleged harassment occurred on campus during school hours;
in other cases, it occurred in students’ homes or hotels, on weekends or during school
breaks. We investigated all of the complaints because regardless of where and when they
occurred, it is our duty and desire to make sure our students feel safe at school. In five of
the ten cases, we determined that it was “more likely than not” that harassment had
occurred and we imposed disciplinary measures, including, in one case, the maximum
penalty contained in our policy.
7. On September 16, 2019, I went to Cape Elizabeth High School (“CEHS”) to attend a
previously scheduled meeting with building administration and others. When I arrived, I
learned that the meeting would be cancelled because Principal Jeffrey Shedd and
Assistant Principal Nathan Carpenter were beginning an investigation into the situation
around several sticky notes that were posted in two bathrooms at CEHS.
2
8. I spoke with Messrs. Shedd and Carpenter and they both agreed that I should be involved
in the investigation because it appeared to be an anonymous complaint of specific sexual
violence at the school.
9. I joined the investigation which initially centered around trying to figure out who was
being referred to in the notes and what that person had done.
10. During the course of interviews with students, it very quickly became clear that the notes
referred to one student who will be referred to herein as Student 1. Student 1 is male and
he is one of a small percentage of minority students who attend CEHS.
11. My role in the investigation included sitting in on interviews of some but not all of the
students who were spoken with, reviewing two videos which we had been told depicted
Student 1 raping a female (but did not), and meeting with the Principal, Assistant
Principal, School Resource Officer David Galvan, and Superintendent as we came to
conclusions.
12. I sat in on an interview of A.M. on September 17. This was the second time that A.M.
had been interviewed in this investigation. We wanted to speak with her again because
although she had denied knowing anything about the notes in her first interview with Mr.
Carpenter and Officer Galvan, we had been hearing from students that A.M. knew about
the notes, had told several people that Student 1 was a rapist, and had specific
information as to what Student 1 had done, and was “pushing a case” against him.
13. At this point, our primary focus in the investigation was to determine if, in fact, someone
in our school had committed a sexual assault as alleged in the anonymous complaint.
3
14. At that meeting, after initially denying being involved with posting any notes, A.M.
admitted that she had posted a note in the second floor girls’ bathroom that stated
“There’s a rapist in our school, and you know who it is.”
15. During the interview, we asked A.M. what she had in mind when she wrote the note. In
response, she named Student 1 and said that he was on her mind because of what he had
done to a friend of hers last spring. She said that Student 1 was also on her mind because
she had heard about a “horrifying and graphic” video that purported to show Student 1
dragging a girl into a bathroom, locking the door, and raping her, and because everyone
knew that he had been sexually assaulted his prom date the prior year. A.M. state that the
said that Student 1 was also on her mind because he had sexually assaulted or raped a
friend of hers and because everyone knew that he had sexually assaulted his prom date
the prior year. A.M. stated that school did not do enough to help her friend because not
only did Student 1 not get punished but he was idolized by faculty and received a model
citizenship award.
16. The incident A.M. referenced involving her friend had been addressed last year (and
continues to be addressed this year) to the mutual satisfaction of the female and Student
1.
17. When we asked about her motivations for writing, posting, and sharing the note, A.M.
stated that she wanted to force the School Department to have conversations about sexual
assault to “deal with” this particular student (by punishing him and not rewarding him,
e.g., model citizenship award), and to create climate of fear in the school
18. The only student A.M. mentioned during the meeting as a rapist was Student 1.
4
19. Following our discussion with A.M., it was clear to me not only that Student 1 was the
person referred to in the sticky notes, but also that A.M. had no new information
indicating that Student 1 had sexually assaulted anyone. I knew this because I had
watched the videos and spoken with the alleged victim of the other incident mentioned by
A.M.
20. My conclusion as a result of the Title IX investigation was that Student 1 was not guilty
as alleged. I therefore took no further action.
and correct.
Executed: October 16, 2019 /s/ Cathy Stankard
Cathy Stankard
5


SHAEL NORRIS )
)
Plaintiff )
)
v. )
)
)
)
)
Defendants )
DECLARATION OF DONNA WOLFROM
Pursuant to 28 U.S.C. § 1746, I, Donna Wolfrom, declare as follows:
1. I am the Superintendent of Schools for the Cape Elizabeth School Department, a
job I have held since July 1, 2018.
2. On September 16, 2019, I was informed that several sticky notes were found in
two girls’ bathrooms at Cape Elizabeth High School (“CEHS”). Our first concern was for the
safety of our students given the information that a rapist was in the school. Building
administration, together with the School Department’s Title IX Coordinator Cathy Stankard,
immediately started a Title IX investigation to determine if there was a known rapist at CEHS.
3. I was kept informed as the investigation proceeded and I sat in on some but not all
of the more than 40 student interviews that administration conducted.
4. One interview that I sat in on was an interview of A.M and her mother, Plaintiff
Shael Norris on September 17, 2019. It was a lengthy interview during the course of which
A.M. went from denying that she knew anything about the sticky notes to admitting that she had
written and posted at least one in the second floor bathroom.
5. At this point in the process, administration was still trying to determine if there
was a particular individual in the school who proposed an immediate risk to our students so
during the interview, A.M. was asked for any information she had about the presence of a rapist
in CEHS. In response, she described three separate instances of sexual assault that she claimed
one particular male student at the high school whom she identified by name and I will refer to
herein as “Student 1” had been involved in.
6. Student 1 was the only alleged rapist that A.M. identified during the interview and
she made it clear that he was the person she was referring to when she wrote the sticky note. She
disclosed that he was the person she had in mind when she wrote the note. She told us that she
resented the fact that he was “idolized” (her word) by faculty at the school and noted that he got
a citizenship award from the school, which she felt, was undeserved. She said that school
administrators did not address the sexual assault he had engaged in and argued that he should not
be in the school. She also stated that her purpose in writing the notes was to instill fear.
7. At around the time that the administrators performing the Title IX claim were
coming to the conclusion that this was not a Title IX issue and that the rumors they had been told
about Student 1 were not true, I was told by CEHS Principal Jeffrey Shedd that Student 1 and
his mother were alleging that Student 1 had been bullied as a result of the notes and their
aftermath. When he received this complaint, Principal Shedd began a bullying investigation with
the help of Assistant Principal Carpenter.
8. Messrs. Shedd and Carpenter kept me informed as the bullying investigation was
proceeding and I participated in interviews of several students including another interview of

A.M. Prior to the second meeting with a.M., we reviewed Policy JICK and JICK-R to see if we
had to inform A.M. that we were conducting a bullying investigation before interviewing her.
Our policy did not require that. However, both Mr. Shedd and Mr. Carpenter made it clear
during the interview that the notes had caused substantial disruption in the school and suggested
that there would be discipline as a result.
9. During that interview, A.M. continued to admit posting a note and claimed that
other students had done so as well. She was unwilling to disclose the names of those other
students.
10. By September 26, 2019, the bullying investigation was completed and Mr. Shedd
and Mr. Carpenter discussed with me their intention to suspend all three girls who they
determined posted sticky notes, one for one day, one for two days and A.M. for five days. I
concurred with their analysis. However, on the following Monday, September 30, 2019, Mr.
Shedd called me to say that he had changed his mind and was only going to suspend A.M. for
three days. He told me that he planned to meet with Student 1 and his parents to tell them the
results of the investigation first and then he would meet with the three girls and their parents.
11. On October 4, 2019, an article was published in the Portland Press Herald in
which A.M. was featured. This article was published after Mr. Shedd told me his decision to
suspend A.M. for three days. After reading the article, we were concerned that suspending A.M.
would appear to be in retaliation for what she said to the newspaper. However, we knew that
was incorrect and decided that it was important to follow our policy and address the serious
incident of bullying that Principal Shedd had determined occurred.
12. After Mr. Shedd communicated his discipline decision to A.M. and her mother,
they filed an appeal of that decision to me.

13. We met on October 9, 2019 for the purpose of hearing the appeal. During their
presentation, A.M. claimed that the sticky note was not directed at any person, a statement I
knew of my own personal knowledge was at odds with what she had said before. A.M.’s mother
also expressed disappointment that A.M. had not been appointed to a School Committee group
appointed to study our policies.
14. I considered what A.M. said during our meeting as well as a written submission
and an audio tape of one of our meetings. Thereafter, I decided to deny A.M.’s appeal. I set
forth my reasons for the denial of the appeal in a letter dated October 11, 2019, a copy of which
is attached as Exhibit 1. The letter accurately sets forth the reasons for my decision to deny
A.M.’s appeal.
and correct.
Executed: October 16, 2019 /s/ Donna Wolfrom

Donna Wolfrom
Cape Schools Open Minds

and Open Doors
Community• Ac.1dc~1cs •Passion• Eth1 s
Marcia Abbott Weeks Del Peavey

CAPEELIZABETHSCHOOLS
Business Manager Director of Special Services
320 Ocean House Road
Catherine A. Stankard P.O. Box 6267
Director of Teaching and Learning Cape Elizabeth, Maine 04107 Donna H. Wolfrom Ed,D.
Phone: (207) 799-2217 Fax: (207) 799-2914 Superintendent of Schools
dwolfrom@CapeElizabethSchools.org
October 11, 2019
Dear Ms. Norris, and :
On October 9, 2019, we met pursuant to Cape Elizabeth School Department Administrative Procedure
JICK-R to give you an opportunity to present your appeal of the three-day suspension imposed upon
you by Principal Shedd by letter dated October 4. You were represented at that meeting by Attorney
Emma Bond of the of the Maine Chapter of the American Civil Liberties Union. Your mother and
Alison Beyea, of the MCLU, as well as Melissa Hewey, counsel to the School Department, were also
present. I write now to provide you with my decision.
At our meeting, you and Attorney Bond presented three principal bases for your appeal:
you claimed that the discipline imposed upon you violated your First Amendment right to freedom of
speech; you asserted that the conduct you engaged in that resulted in your suspension did not meet the
definition of bullying because it focused on conduct that occurred on a single day and accordingly was
not severe and pervasive; and you argued that a three-day suspension was unjustified because it was
harsher than suspensions imposed on other students for equal or greater offenses.
First, with respect to your First Amendment claim, let me assure you that the Cape Elizabeth School
Department supports the right of all of our students, our staff and the community to speak out on
matters of public concern. However, we also have an obligation, under state law and our School
Department policy to address bullying behavior, which is not protected speech, among students when it
occurs. Your attorney correctly pointed out that Maine's bullying law attempts to strike a balance
between these two important values by defining bullying to be conduct that is directed at a specific
student or students. During the presentation of your appeal, you stated that in posting the sticky notes
you were not targeting a specific individual but rather were targeting what you characterized as a "rape
culture" present in our school. However, not only does the language of the notes you posted indicate
that your speech was directed at a specific individual, but when you were interviewed as part of the
investigation, you stated directly that you intended to target one student. In the interviews, you named
that student, you described incidents of alleged rape that you believed (without personal knowledge)
that he was involved in, and you expressed frustration that he was, in your view, supported by faculty
at the school. You also said that your intention in posting the notes was to instill fear in the school
community. Based on your own statements during the investigation, I conclude that you were not
engaged in "core political speech" as your attorney claimed during her presentation, but rather you
engaged in written expression directed at a student that was made for the purpose of creating a hostile
educational environment for that student.
Second, I also reject your contention that your conduct was not "severe and pervasive" and therefore
does not meet the definition of bullying. In fact, neither the statute nor the Cape Elizabeth School
Department policy use that phrase. Rather, bullying is defined as conduct that "[i]nterferes with the
rights of a student by: (a) creating an intimidating or hostile educational environment for the student;
or (b) interfering with the student's academic performance or ability to participate in or benefit from
the services, activities or privileges provided by a school." In this case, the investigation revealed that
as a result of your actions, the student you targeted was ostracized by his peers and was unable to come
to school as a result. Therefore, I concur with Principal Shedd's conclusion that you engaged in
bullying in this instance.
Third, given the harm that you have caused to this student and to others, I do not think that a
suspension of three days is unreasonable. You provided me with one example of a situation you had
heard about but clearly have no personal knowledge of. In fact, every student disciplinary matter is
unique and I have confidence that Principal Shedd, in his discretion, decided on appropriate remedial
action in this case.
Finally, during our meeting, your attorney suggested that the timing of your suspension being imposed
shortly after you gave an interview to the press suggests that the discipline could have been imposed in
retaliation for that interview. I am aware, however, that the suspension decision was made before the
article in the press was published and there is, therefore, no basis for such a claim.
In conclusion, I hope that you have learned from this experience that while advocacy of ideas is critical
to our democratic society, spreading rumors about particular individuals is destructive and cannot be
tolerated. I encourage you to continue to advocate for issues you feel passionate about but to do so in
an appropriate manner.
Your appeal is denied and your suspension will start on October 15, 2019 and run through October 17,
2019.
~ ,~!Yf\ a .. .)
Donna H. Wolfrom - - -

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Case 2:19-cv-00466-LEW Document 9 Filed 10/17/19 Page 1 of 24 PageID #: 67

UNITED STATES DISTRICT COURT

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

MEMORANDUM OF LAW IN OPPOSITION TO MOTION FOR TEMPORARY

restraining order must be denied.

1. The sexual violence allegation and investigation

Upon review of the notes, school administrators understood them to constitute an

10; Carpenter Decl. ¶¶ 7-9, 11; Stankard Decl. ¶ 7; Wolfrom Decl. ¶ 2.

students interpreted the accusation as referring to a specific individual, an African-American

in the school. Shedd Decl. ¶ 13; Carpenter Decl. ¶¶ 8.

2. The bullying investigation

and JICK-R.) Shedd Decl. ¶¶ 21-22; Carpenter Decl. ¶ 21.

evoke extremely egregious racial stereotypes.

The bullying investigation included consideration of material obtained in interviews in

Shedd. Decl. ¶ 27; Carpenter Decl. ¶ 26.

Having learned this additional information, administrators interviewed A.M again.

disseminated a photo of the note2:

I. THE STANDARD FOR INJUNCTIVE RELIEF

injunction through application of four well-established factors:

Supp. 446, 450 (D. Me. l985)).

II. PLAINTIFF CANNOT SUCCEED ON THE MERITS OF HER FIRST

These arguments are discussed separately below.

A. The sticky note is not protected by the First Amendment.

Students have First Amendment free speech rights in school, but:

speech rights include:

threat and argued that the statement was a joke).

others who read it or heard it.

2. The statement was in fact disruptive

notes. Carpenter Decl. ¶ 19.

days of school. Shedd Dec. ¶ 39.

All of the consequences of A.M.’s dissemination of the statements amounted to

motion it is not protected speech under Tinker.

3. The statement was defamatory.

It is well-established that defamatory speech is not protected by the First Amendment.

‘false assertion[s] of fact.’”).

accusations” were not protected speech, explaining:

the legal issue.

further that interest.

sexual assault is sufficient to constitute sexual harassment.

dismiss the collateral damage her conduct has caused.

viewed as retaliation. Id.

have been motivated by her doing so.

Defendants retaliated against her for speaking to the media fails.

missing in this case.

violation A.M. was complaining about.

note charges is that there is a dangerous criminal present in the school.

students, not staff, -- accusing a fellow student of being a rapist.

complained of sex discrimination is another form of intentional sex discrimination . . . retaliation

IV. PLAINTIFF HAS NOT ESTABLISHED THAT A.M. WOULD BE

shown.” Grounds for Granting or Denying a Preliminary Injunction—Irreparable Harm, 11A

Fed. Prac. & Proc. Civ. § 2948.1 (3d ed.).

should be denied for that reason as well.

V. THE BALANCE OF HARMS AND PUBLIC INTEREST WEIGH AGAINST

VI. PLAINTIFF SHOULD BE REQUIRED TO POST SECURITY

Court should order her to do so if it grants injunctive relief in this case

Dated: October 17, 2018.

/s/ Melissa A. Hewey

/s/ Melissa A. Hewey

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ACAA - HARASSMENT AND SEXUAL HARASSMENT OF

Harassment/sexual harassment of students by school employees is considered grounds for disciplinary

ADOPTED: September 14, 1999

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