Government Lies, Corruption and Mismanagement
Banning Public Speech, and People Who Voice Their Opinions,From School Board Meetings Is Unconstitutional
Throughout the US, school boards hold meetings once a month, more or less. Sometimes people from the community attend these meetings and tell the board members that they are not doing something right. Sometimes these same people are angry about how the board members are not handling a matter correctly, and say so. Sometimes the board votes to ban these outspoken taxpayers from their meetings for a short time or long term. These "Stay away" rules are, we believe unconstitutional, and should be stopped.
Local ACLU Issues Stong Statement in Opposition to "Stay Away" Ordinance
by ACLU Santa Cruz County (santacruzaclu.org)
Friday Oct 24th, 2014 1:14 PM
ACLU Board Questions Constitutionality of Ordinance
The Santa Cruz Chapter of the ACLU of Northern California strongly opposes the enactment of the proposed amendment to Ordinance No. 13.08.100 of the Municipal Code, which the Council will be considering again on October 28. We urge you to reject this proposed law, because it is an unconstitutional violation of both the First and Fourteenth Amendments of the United States Constitution. The blatant illegality of the proposed law seems to be inviting litigation.
The proposed ordinance would greatly expand the discretionary power of Park and Recreation employees and other city officers to issue stay-away orders for an enormously broad range of behavior (any violation of the Municipal Code or state law) in all property maintained by the Parks and Recreation Department (which are undoubtedly traditional public fora), and would vastly extend the duration of the stay-away orders from a maximum of 24 hours to a full year. Among other problems, these stay-away orders would be issued without any process at all, much less due process (no hearing, no opportunity to be heard, no appeal), and would bar cities and arrestees from exercising their First Amendment rights of assembly and free expression. As the Court found in Cyr v. Addison Rutland Supervisory Union, USDC (D. Vt.) Case No. 1:12-cv-105-jgm (9/30/14) (* see link below) , the stay-away orders authorized by this statute violate the First Amendment because they are "not narrowly tailored and do not leave open ample alternative channels of communication." Cyr involved ?"notices against trespass" (similar to the stay-away orders at issue here) issued by a school agency without court involvement, to prevent a troublesome person from attending school board meetings.
A short excerpt from the District Court's discussion of the First Amendment violation is instructive:
"First, a categorical ban on speech is not tailored at all, as it entirely forecloses a means of communication. Cf. Hill v. Colo., 530 U.S. 703, 726 (2000) (“when a content-neutral regulation does not entirely foreclose any means of communication, it may satisfy the tailoring requirement even though it is not the least restrictive or least intrusive means of serving the statutory goal”). In order to be narrowly tailored, a time, place, or manner restriction must not “burden substantially more speech than is necessary to further the government’s legitimate interests.” Ward, 491 U.S. at 799. Here, ostensibly in order to protect school staff, Mr. Cyr was banned not only from the Benson school grounds, but from all premises owned by the ARSU. He was not banned only during regular school hours, but at all hours, for two years.
Furthermore, the tailoring threshold here is even higher than in Ward, as a notice against trespass targeting an individual rather than the public generally is equivalent to an injunction against speech, and the Supreme Court has explained, “injunctions . . . carry greater risks of censorship and discriminatory application than do general ordinances.” Madsen v. Women's Health Ctr., 512 U.S. 16 764 (1994). Consequently, “when evaluating a content-neutral injunction, . . . standard time, place, and manner analysis is not sufficiently rigorous. We must ask instead whether the challenged provisions of the injunction burden no more speech than necessary to serve a significant government interest.” Id. at 765. In the case at hand, the ARSU’s categorical ban was not tailored to respond to the specific threat that Mr. Cyr potentially posed, a threat that was never articulated as anything more specific than “a potential risk of violence to Principal Doty, Director Benway or their staff.” (Doc. 49-1 at 3.) If the ARSU’s goal in issuing a notice against trespass to Mr. Cyr was to protect school staff, then it could have drafted a notice against trespass that was in effect only during school hours or posted a police officer at public meetings held on ARSU grounds.10 Also, the ARSU could have moved school board meetings to a neutral and secure location.
Additionally, the Second Circuit has found that a categorical ban on expressive speech singling out an individual does not even satisfy the lower threshold of reasonableness review. See Huminski v. Corsones, 396 F.3d 53, 92 (2d Cir. 2004). In Huminski, the court observed that notices against trespass which barred the plaintiff from all state courthouses in Rutland due to a perceived danger “in effect prohibit(ed) indefinitely any and all expressive activity in which (plaintiff) might want to engage in and around Rutland state courthouses.” Id. “The defendants’ singling out of [plaintiff] for exclusion, thereby permitting all others to engage in similar activity in and around the courts, suggests to us that the trespass notices are not reasonable.” Id. The ARSU imposed a similar restriction on Mr. Cyr here by singling him out and categorically banning him from all Union property. See id. at 93-94 (when a notice against trespass was issued with “virtually no ‘tailoring’ at all,” the efforts of government officials to safeguard the Vermont courts “from whatever threat they may have reasonably feared from (plaintiff) were wildly disproportionate to the perceived threat”)."
In granting plaintiff's summary judgment on the due process claim, the Cyr court concluded: "Because the notices against trespass were not issued pursuant to any protocol, the notices did not set out a process for contesting the notices, and Mr. Cyr had no meaningful opportunity to contest the notices, the notices posed a high risk of erroneously depriving Mr. Cyr of his First Amendment right to freedom of expression."
Of course, there is a great deal of additional law on these topics. We urge you to consult the law and reject this amendment.
Chair, Santa Cruz Chapter
ACLU Northern California
?955 F.Supp.2d 290 (2013)
Marcel CYR, Plaintiff,
ADDISON RUTLAND SUPERVISORY UNION, Defendant.
United States District Court, D. Vermont.
July 2, 2013.
Dan Barrett, American Civil Liberties Union of Vermont, Montpelier, VT, Edwin 291*291 L. Hobson, Jr., Burlington, VT, for Plaintiff.
Pietro J. Lynn, Esq., Lynn, Lynn & Blackman, P.C., Burlington, VT, for Defendant.
MEMORANDUM AND ORDER
J. GARVAN MURTHA, District Judge.
The defendant in this civil rights action, the Addison Rutland Supervisory Union ("ARSU"), has filed a partial motion to dismiss. (Doc. 25.) The ARSU seeks to dismiss the claims of the plaintiff, Marcel Cyr, on the grounds that: (1) he possesses no First Amendment rights with respect to school property; (2) he possesses no liberty or property interest in accessing school property under the Fourteenth Amendment; and (3) the remainder of his Fourteenth Amendment claim duplicates his First Amendment claim. Id. at 1-2. Mr. Cyr has opposed this relief. (Doc. 30.) The ARSU has filed a reply. (Doc. 31.) As set forth below, the ARSU's motion to dismiss is granted in part and denied in part.
II. Factual Background
At this procedural stage, the Court takes the allegations in the Amended Complaint as true and outlines the relevant facts accordingly.
Mr. Cyr and his spouse ("the Cyrs") have a son and a daughter, who have both attended the Benson Village School ("BVS"). (Doc. 22 at ¶¶ 9, 11.) The Cyrs' children have suffered assaults and harassment on BVS property. Id. at ¶¶ 9-11. Their son also has a significant learning disability. Id. at ¶ 9. The Cyrs have complained to school officials, as well as the Vermont State Police, about these challenges. Id. at ¶¶ 10-11. They have also criticized the special education and student harassment policies and practices at the BVS and advocated for changes to them. Id. at ¶ 12. The BVS is part of the Addison Rutland Supervisory Union ("ARSU"). Id. at ¶ 5.
In addition to complaining to school officials, the Cyrs have offered their views to elected officials at school board meetings. Id. at ¶¶ 10, 13. These meetings also allow them to stay informed about school business. Id. at ¶ 13. As part of these advocacy efforts, Mr. Cyr has spoken during the public comment portion of school board meetings; distributed printed material critical of school policies and educational test results; emailed his views to friends and acquaintances; displayed yard signs advocating for the defeat of the school budget; and posted public comments critical of the school principal during a school strike. Id. at ¶ 15.
The BVS issued a notice against trespass barring Mr. Cyr from school property in September 2011. Id. at ¶ 19. The notice contained no information about why the BVS had banned him. Id. at ¶ 20. Nor did it provide any information about how Mr. Cyr could contest the ban. Id. at ¶ 21. Following an investigation by Vermont Legal Aid, Mr. Cyr learned the BVS had issued the notice because he had honked his car horn in the school parking lot. Id. at ¶ 18. He did so in an attempt to attract the attention of one of his children's favorite staff members. Id. at ¶ 22. The BVS rescinded the notice about two weeks after its issuance. Id. at ¶ 23.
292*292 The ARSU served Mr. Cyr with a second notice against trespass in March 2012. Id. at ¶ 24. The notice bars Mr. Cyr from any school property in the entire supervisory union for two years. Id. at ¶ 25. The ARSU served the notice during a series of meetings to evaluate an educational plan for Mr. Cyr's son. Id. at ¶ 24. According to the BVS, Mr. Cyr had not sufficiently complied with its demands during these meetings. Id. Just as with the September 2011 notice, the March 2012 notice provides no information about either the basis for the ban or opportunities to contest it. Id. at ¶ 27; Doc. 22-1 at 1. The ARSU issued the trespass notice pursuant to 13 V.S.A. § 3705(a), which makes it a crime to enter property in violation of a notice against trespass. Doc. 22 at ¶ 26.
When Mr. Cyr contacted the ARSU about the March 2012 notice, the ARSU informed him it had received a tip he posed a danger to the schools. Id. at ¶ 28. The ARSU refused to disclose the basis for the tip. Id. at ¶ 29. Mr. Cyr made multiple attempts to contest the notice against trespass. Id. at ¶ 30. The ARSU refused to provide him with an opportunity to contest the notice unless he agreed to undergo a psychiatric evaluation, with the results furnished to the ARSU. Id. at ¶ 31.
In search of more information about the ban, Mr. Cyr submitted a public records request to the ARSU. Id. at ¶ 33. Instead of complying with this request, the ARSU sued Mr. Cyr in Vermont Superior Court, seeking a declaration that it need not disclose the information. Id. at ¶ 35. As a counterclaim, Mr. Cyr asserted a violation of the public records act in Vermont. Id. He ultimately prevailed on his counterclaim and obtained the records. Id. at ¶ 36. Mr. Cyr learned the ARSU based its trespass ban on a letter written by a psychologist. Id. She had never met Mr. Cyr, wrote the letter at the ARSU's request, and relied on discussions with school employees. Id.
Mr. Cyr asserts First and Fourteenth Amendment violations in the Amended Complaint. His first count claims the trespass ban "impermissibly burdened his ability to express himself, obtain information, and participate in the political process" in violation of the First Amendment. Id. at ¶ 38. His second count alleges a violation of the Fourteenth Amendment's guarantee of procedural due process. Id. at ¶ 39. It claims the ARSU issued trespass notices "in a way that creates a high risk of the erroneous deprivation of rights" and that one of these notices deprived him of "his rights without notice or a meaningful opportunity to be heard." Id. Mr. Cyr seeks a declaration that the ARSU has violated his constitutional rights and damages for these violations. Id. at ¶ 40. He also seeks to enjoin the ARSU from enforcing the March 2012 notice against trespass and from issuing future notices without sufficient process. Id.
1. Standard of Review
A motion to dismiss tests the legal rather than the factual sufficiency of a complaint. See, e.g., Sims v. Artuz, 230 F.3d 14, 20 (2d Cir.2000). A court should grant a motion to dismiss only if the pleader fails to show a "plausible entitlement to relief." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 559, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). A court accepts the facts alleged in the pleading as true, draws all reasonable inferences in favor of the pleader, and dismisses only "if the facts as alleged are insufficient to raise a right to relief above the speculative level." Price v. N.Y. State Bd. of Elections, 540 F.3d 101, 107 (2d Cir.2008) (internal quotations omitted). A complaint must state a plausible—not just possible—claim for relief to 293*293 survive a motion to dismiss. Ashcroft v. Iqbal, 556 U.S. 662, 678-79, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). Determining whether a complaint survives a motion to dismiss requires the court to make a "context-specific" analysis and "draw on its judicial experience and common sense." Id. at 679, 129 S.Ct. 1937.
2. Access to School Property Generally
A. First Amendment Right to Access
The ARSU has moved to dismiss the Amended Complaint "to the extent it suggests that the notice against trespass violates Mr. Cyr's First and Fourteenth Amendment rights relative to school property generally and asks the Court to declare the notice against trespass a nullity and enjoin enforcement of the notice in its entirety." (Doc. 25 at 1.) The ARSU does not dispute that Mr. Cyr has a First Amendment right to attend public meetings on school property, including the school board meetings at issue here. Id. at 5, 12. Nor does it dispute that he might possess a liberty or property interest under the Fourteenth Amendment in attending such meetings. See id. at 1-2, 10-11. The ARSU seeks instead to establish that Mr. Cyr is not entitled to "unfettered access" to school property, thereby narrowing his lawsuit to claims concerning his attendance at public meetings only. Id. at 3.
Mr. Cyr responds that the ARSU has infringed his First Amendment rights to free expression and to receive information. (Doc. 30 at 4-5.) He asserts the notice against trespass created a "First-Amendment-Free Zone," applicable only to him, as it forbids his attendance at public meetings and expression on school grounds, including parking lots. Id. at 4-5, 11-12. Mr. Cyr contends the trespass notice violated his First Amendment rights and, further, that these rights constitute liberty interests for procedural due process purposes. Id. at 4-5, 12-13. Significantly, Mr. Cyr has not asserted a general right to access school property in his opposition. His claims rest on allegations the ARSU restricted his First Amendment rights through the notice against trespass. Mr. Cyr states in his opposition that he makes no claim the ARSU should provide him access to his children's classrooms. Id. at 11.
"The Constitution does not guarantee unlimited freedom to speak on government property." Bronx Household of Faith v. Bd. of Educ. of N.Y., 492 F.3d 89, 97 (2d Cir.2007). The level of scrutiny applied to speech restrictions on government property depends on the nature of the forum in which it occurs. Id. The Supreme Court has established four categories of fora for expression "that, correspondingly, fall along a spectrum of constitutional protection." Id. (internal quotations omitted).
Traditional public fora lie at one end of this spectrum. Id. The government cannot exclude speakers from "traditional public fora—streets, parks, and places that `by long tradition ... have been devoted to assembly and debate'"—unless the exclusion is narrowly tailored to serve a compelling state interest. Id. (quoting Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45-46, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983)). This same level of scrutiny applies to a "designated public forum," which the government intentionally designates as "a place or means of communication as a public forum." Id. (internal quotations omitted). The government creates a limited public forum by designating "a place or channel of communication for use by the public at large for assembly and speech, for use by certain speakers, or for the discussion of certain subjects." Id. (internal quotations omitted). 294*294 Reasonable, viewpoint-neutral rules may govern the content of speech in a limited public forum. Id. Lastly, at the other end of the spectrum, lie nonpublic fora. Id. The government may exclude speech in a nonpublic forum—one that neither tradition nor designation opens to the public for communication—through "reasonable content-based restrictions so long as these do not suppress expression merely because public officials oppose the speaker's view." Id. (internal quotations omitted).
Instead of applying this framework to the public school property at issue here, the ARSU contends members of the public lack any constitutionally protected interest or right in accessing school property generally. (Doc. 25 at 1.) The ARSU cites to numerous decisions in support of this blanket rule. Id. at 5-9; Doc. 31 at 2-3. It is clear a public school has a compelling interest in maintaining order and ensuring safety on its grounds. Lovern v. Edwards, 190 F.3d 648, 655-56 (4th Cir.1999). These interests, in turn, may justify constitutional infringements, including restrictions on the First Amendment rights of parents and other members of the public. Id. (father's history of aggressive conduct towards school employees justified trespass ban); Cunningham v. Lenape Reg'l High Dist. Bd. of Educ., 492 F.Supp.2d 439, 450-51 (D.N.J.2007) (father "cannot hide behind the protections of the First Amendment to harass and bully the faculty and staff"). Indeed, "school officials have broad discretion in restricting visitors on school property to protect the safety and welfare of the school children." Embry v. Lewis, 215 F.3d 884, 889 (8th Cir.2000). But there is no categorical rule that the interests of a school in safety and order always outweigh constitutional rights. See id. Members of the public retain First Amendment rights with respect to school property, but only to a limited extent. See Travis v. Owego-Apalachin Sch. Dist., 927 F.2d 688, 691-93 (2d Cir.1991). As discussed below, however, they do not possess a liberty or property interest in accessing school property for procedural due process purposes.
The Court declines the ARSU's invitation to carve out public school property from the public forum framework. As this case proceeds forward, the need for safety and order on school grounds will by no means be irrelevant. In fact, the ARSU justifies the notice against trespass on the grounds that it received "an unsolicited warning from an independent psychologist that, in her professional opinion, Mr. Cyr's conduct ... presented a high risk of danger." (Doc. 31 at 1 n. 1.) Mr. Cyr's conduct may ultimately provide a sufficient justification for issuing the trespass notice under the public forum framework. See Bronx Household of Faith, 492 F.3d at 97. To the extent Mr. Cyr alleges interference with his speech rights on school property, including school parking lots, the motion to dismiss is denied. See Grattan v. Bd. of Sch. Comm'rs of Baltimore City, 805 F.2d 1160, 1162-63 (4th Cir.1986) (applying 295*295 framework to union solicitation activities in public school parking lot). The motion to dismiss is granted, as to access to school classrooms, in light of Mr. Cyr's statement that he makes no claim about access to them. (Doc. 30 at 11.)
B. Liberty Interest in Access
The ARSU has moved to dismiss Mr. Cyr's procedural due process claim to the extent it relies on a liberty or property interest in accessing school property generally. A procedural due process claim requires proof of two elements: "(1) the existence of a property or liberty interest that was deprived and (2) deprivation of that interest without due process." Bryant v. N.Y. State Educ. Dept., 692 F.3d 202, 218 (2d Cir.2012). These elements derive from the Due Process Clause of the Fourteenth Amendment, which prohibits the deprivation of "life, liberty, or property, without due process of law." U.S. Const. amend. XIV, § 1.
Mr. Cyr does not contend the ARSU deprived him of a property interest. (Doc. 30 at 13.) Rather, he contends the ARSU deprived him of a liberty interest— his First Amendment rights of free expression and to receive information. Id. The ARSU has not challenged whether procedural due process protects such a broad liberty interest. (Doc. 31 at 2-3.) Nor has it challenged whether speech at a school board meeting also enjoys procedural protections. Id. The ARSU instead challenges whether Mr. Cyr has stated a liberty interest in accessing school property generally. (Doc. 25 at 7.) The ARSU is correct that Mr. Cyr lacks such an interest.
The range of liberty interests protected by procedural due process is not infinite. Bd. of Regents v. Roth, 408 U.S. 564, 570, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). A liberty interest may arise from two sources: "(1) the Constitution itself, by reason of guarantees implicit in the word `liberty,' or ... (2) an expectation or interest created by state laws or policies." Wilkinson v. Austin, 545 U.S. 209, 221, 125 S.Ct. 2384, 162 L.Ed.2d 174 (2005) (numerals added). Mr. Cyr has not identified a Vermont state law or policy that provides him with a liberty interest in accessing school property. As the ARSU points out, many courts have ruled parents and other third-parties lack a constitutionally protected interest in such access. See Hannemann v. S. Door Cnty. Sch. Dist., 673 F.3d 746, 755-56 (7th Cir.2012); Silano v. Sag Harbor Union Free Sch. Dist. Bd. of Educ., 42 F.3d 719, 724 (2d Cir. 1994) (school board member lacked "unrestricted right to enter the school classrooms or hallways during school hours"); Ritchie v. Coldwater Cmty. Sch., No. 1:11-cv-530, 2012 WL 2862037, at *16 (W.D.Mich. July 11, 2012); Justice v. Farley, No. 5:11-cv-99, 2012 WL 83945, at *3 (E.D.N.C. Jan. 11, 2012); Martin v. Clark, 3:10-cv-1500, 2010 WL 4256030, at *2 (N.D.Ohio Oct. 21, 2010); Cwik v. Dillon, No. 1:09-cv-669, 2010 WL 5691404, at *6 (S.D.Ohio Sept. 20, 2010); Pearlman, 2003 WL 23723827 at *3. The Court finds these decisions persuasive. Indeed, while they possess a constitutional right to direct the education of their children, parents do not possess a liberty interest in unfettered access to school property. Justice, 2012 WL 83945 at *3.
To the extent Mr. Cyr asserts a liberty interest in accessing school property generally, his procedural due process claim is dismissed. This ruling narrows his procedural 296*296 due process claim. It is not dismissed in its entirety. Mr. Cyr may continue to assert the ARSU, by issuing the notice against trespass, deprived him of First Amendment rights without sufficient process. However, he cannot assert he possesses a liberty interest—independent of the First Amendment—in accessing school property.
3. Adequacy of Process
The ARSU contends the notice against trespass provided Mr. Cyr with adequate process for due process purposes. (Doc. 25 at 9-10.) The Amended Complaint alleges the ARSU received a tip from a psychologist that Mr. Cyr posed a danger to the schools; the ARSU issued a trespass notice in response; and any opportunity to contest the notice required Mr. Cyr to first undergo a psychiatric evaluation, with the results provided to the ARSU. Relying on its communications regarding the psychiatric evaluation, the ARSU contends Mr. Cyr "cannot claim that he did not have notice of why [the notice of trespass] was issued or an opportunity to challenge [it]." (Doc. 25 at 10.) This argument is not especially developed. It also appears only to address the March 2012 trespass notice and not the September 2011 notice. See id.
To determine whether the ARSU afforded Mr. Cyr adequate process, "it is necessary to ask what process the [ARSU] provided, and whether it was constitutionally adequate." Rivera-Powell v. N.Y. City Bd. of Elections, 470 F.3d 458, 465 (2d Cir.2006). As part of this analysis, "the Supreme Court has distinguished between (a) claims based on established state procedures and (b) claims based on random, unauthorized acts by state employees." Id. (internal quotations omitted). A meaningful post-deprivation remedy automatically satisfies deprivations caused by random, unauthorized acts. Id. at 465-66. This rule recognizes that state and local governments cannot predict when such deprivations will occur. Id. at 465. For deprivations based on established state procedures, a court must balance the three factors identified in Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), to determine the process due.
First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.
Id. at 335, 96 S.Ct. 893. To be sure, application of the Mathews test may only require a meaningful, post-deprivation remedy. See Nnebe v. Daus, 644 F.3d 147, 158-59 (2d Cir.2011) (no pre-deprivation hearing necessary to suspend taxi driver following arrest). A post-deprivation remedy is just not adequate ipso facto. See Rivera-Powell, 470 F.3d at 465.
Mr. Cyr applies the Mathews test in his opposition, and the ARSU has not objected to its application in its reply. At least for now, the Court will assume its applicability. Taking the facts in the Amended Complaint as true, the Mathews test weighs in favor of Mr. Cyr. The Court is mindful that his interest in exercising his First Amendment rights on school grounds is not particularly strong. He is still free to express his opinions, just in different forums. See Int'l Caucus of Labor Comm. v. Maryland Dep't of Transp., Motor Vehicle Admin., 745 F.Supp. 323, 329-30 (D.Md.1990). He has a stronger interest in attending school boarding meetings. For both interests, however, the 297*297 process afforded him is minimal, at best. The March 2012 trespass notice did not inform Mr. Cyr of any procedure for contesting its issuance. Rather, in response to inquiries from Mr. Cyr, the ARSU informed him that he could not contest the notice unless he underwent a psychiatric evaluation. Cf. Catron v. City of St. Petersburg, 658 F.3d 1260, 1268-69 (11th Cir. 2011) (trespass ordinance that lacked an appeal process is procedurally inadequate). Process contingent on such an intrusion creates a substantial risk Mr. Cyr will decline to contest the notice. That the notice did not notify Mr. Cyr of any procedure for contesting it further compounds this risk. A significant governmental interest must therefore justify the trespass ban. But the only governmental interest identified in the Amended Complaint is a tip from a psychologist who had never met Mr. Cyr. The basis for the psychologist's belief that Mr. Cyr "posed a danger to the schools" is unsubstantiated. (Doc. 22 at ¶ 28.) Weighing the three Mathews factors—"the private interest, the risk of erroneous deprivation, and the government's interest"—the Court is unable to conclude the ARSU provided Mr. Cyr with adequate process. Nnebe, 644 F.3d at 158.
The ARSU also asserts it complied with 13 V.S.A. § 3705, which does not require property owners to list the reason for the issuance of the notice or to provide for an appeal process. Absent a separate right under the statute, the ARSU contends Mr. Cyr is not entitled to additional notice or process. This argument is unavailing. Because the amount of process due is a constitutional determination, state law does not define its parameters. See Mathews, 424 U.S. at 334-35, 96 S.Ct. 893.
In addition, the ARSU contends property owners need not provide a hearing because a notice against trespass does not invite a factual dispute. Relying on Pietrangelo, II v. Alvas Corp., 5:09-cv-68, 2010 WL 3323701 (D.Vt. May 19, 2010), aff'd sub nom., 487 Fed.Appx. 629 (2d Cir.2012), the ARSU asserts "[p]roperty owners may bar others from their properties without stating a reason or even having one, and a notice against trespass is simply one form of informing an individual that he or she is not welcome." Doc. 25 at 9 (quoting Pietrangelo, II, 2010 WL 3323701 at *4). The trespass notice in Pietrangelo, II barred the plaintiff from entering a privately-owned delicatessen. The notice contrasts with the one here, which barred Mr. Cyr from accessing public property. The Constitution requires a different analysis with respect to public property. See Catron, 658 F.3d at 1268-69.
4. Graham Rule
The ARSU has moved to dismiss Mr. Cyr's Fourteenth Amendment claim as duplicative of his claims under the First Amendment. (Doc. 25 at 10.) Although recognizing he states a First Amendment claim based on his exclusion from the school board meetings, the ARSU contends Mr. Cyr cannot premise his First and Fourteenth Amendment claims on the same conduct. Id. at 11-12. Mr. Cyr responds that the ARSU has confused procedural due process with substantive due process. (Doc. 30 at 13-14.) He acknowledges that a civil rights claimant cannot sustain a substantive due process claim where another constitutional provision affords 298*298 explicit protection. Id. at 13-14. For procedural due process claims, however, Mr. Cyr contends this rule is inapplicable. Id. The courts have referred to this rule as the "Graham rule."
Mr. Cyr may allege free speech and procedural due process claims. He is correct that the Graham rule only applies to substantive due process claims. Although substantive and procedural due process both derive from the Due Process Clause of the Fourteenth Amendment, these concepts protect different, yet related, constitutional guarantees. Substantive due process "bars certain arbitrary, wrongful government actions regardless of the fairness of the procedures used to implement them." Zinermon v. Burch, 494 U.S. 113, 125, 110 S.Ct. 975, 108 L.Ed.2d 100 (1990) (internal quotations omitted). It is also the basis for protecting fundamental rights or liberty interests not explicitly enumerated in the Constitution. Washington v. Glucksberg, 521 U.S. 702, 719-20, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997). A procedural due process claim, in contrast, challenges the fairness of the procedure by which government action denies a constitutionally protected interest in life, liberty, or property. Zinermon, 494 U.S. at 125, 110 S.Ct. 975. "[T]he deprivation by state action ... is not in itself unconstitutional [for procedural due process purposes]; what is unconstitutional is the deprivation of such an interest without due process of law." Id.
The Supreme Court has "always