A U.S. District Court judge sided with the Great Salt Bay School Committee, granting its motion to dismiss a complaint from a Newcastle mother for failure to state a claim in a decision on Friday, May 3.
In her complaint, Amber Lavigne, the parent of a 13-year-old who previously attended Great Salt Bay Community School, alleged her 14th Amendment rights had been violated as she had not been notified her child was using a different name and pronouns at school and had been given two chest binders by a social worker at the school.
In his order granting the school committee’s motion to dismiss for failure to state a claim, U.S. District Court judge Jon D. Levy said Lavigne’s complaint did not adequately plead facts that could plausibly support municipal liability under section 1983 of the U.S. Code, which deals with civil action for deprivation of rights.
“To establish that a municipality is liable under section 1983 for deprivation of constitutional rights, a plaintiff must show both ‘that (the) plaintiff’s harm was caused by a constitutional violation,’ and ‘that the (municipality is) responsible for that violation, an element which has its own components,” Levy wrote. “I first consider the second issue: whether the complaint adequately pleads facts that could plausibly support municipal liability under section 1983. Concluding it does not, I need not, and therefore do not, address the separate question of whether any of the alleged constitutional violations are adequately pleaded.”
In Lavigne’s complaint, which was filed April 4, 2023 and named the school committee, GSB social workers Samuel Roy and Jessica Berk, Principal Kim Schaff, and AOS 93 Superintendent Lynsey Johnston as defendants, she alleged her due process rights under the 14th Amendment were violated.
The 14th Amendment states, “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
Three counts of Lavigne’s complaint alleged the school committee and officials committed substantive due process violations by providing the chest binders and information about how to use them to her child – identified in the court filings as A.B. – without informing Lavigne; by using A.B.’s self-identified name and pronouns and withholding the information from Lavigne; and by adopting the transgender students guidelines that enable staff members to withhold information from parents.
Lavigne alleged in a fourth count that she was deprived of procedural due process as she was not afforded an opportunity to comment on school officials’ decisions to give A.B. chest binders or use the child’s self-identified name and pronouns.
In her filing, Lavigne said the defendants used a “policy, pattern, and practice” of withholding information about children’s’ development from parents under the guise of state law. She requested injunctive relief, declaratory judgment, and damages.
In their request for dismissal filed on June 2, 2023, the defendants denied “each and every allegation” from Lavigne. The defendants “admit that “Defendant Roy helped A.B. obtain a chest binder,” and also “affirmatively” stated school officials had been in discussion with Lavigne about A.B.’s request to use a different name and pronouns at school “for some time” and deny that Lavigne was not informed of the matter.
During oral arguments on Nov. 1, 2023, much of the discussion centered around the question of whether the defendants were liable under the Monell doctrine, which states a municipality can be liable for an employee’s violation of a plaintiff’s constitutional rights only if that violation resulted from an institutional policy, custom, or deliberate indifference.
Levy dismissed the individuals after hearing oral arguments, narrowing the complaint’s scope to the Great Salt Bay School Committee.
In his May 3 order, Levy said the municipal policy or custom that Lavigne challenged was “somewhat nebulous,” as she stated the transgender students guidelines were not the policy she was contesting.
In her filings, Lavigne said her alleged injuries were caused by “an unwritten withholding policy,” which she described “a systematic across-the-board practice which is not specified, but is hinted at, in the written ‘guidelines.’” She posed three possible theories of municipal liability: unwritten policy or custom, ratification by a final policymaker, and failure to train.
Levy wrote in his order that Lavigne’s complaint – “read as a whole and viewed in the light most favorable to the plaintiff” – did not plausibly establish an unwritten withholding policy was a settled practice or custom of the school or the school committee.
“At most, the complaint identifies one occasion where a school employee ‘actively withheld’ information from a parent,” Levy wrote. He referenced a portion of Lavigne’s complaint in which she said Roy told A.B. that he was not going to tell A.B.’s parents about the chest binder, and A.B. “need not do so either.”
Levy later wrote that Lavigne’s allegation Schaff and Johnston “expressed sympathy …. and concern” regarding information about A.B. that had been withheld and concealed from Lavigne undercut her assertion that withholding information from parents “was a custom so widespread as to have the force of law.”
“Because the complaint fails to allege facts that, if proven, would plausibly demonstrate that the challenged actions resulted from an unconstitutional unwritten custom, Lavigne’s municipal liability claims cannot proceed on that basis,” Levy wrote.
Regarding whether there was decision made by a “final policymaker,” Levy said the single alleged incident of a staff member “actively withholding” information paired with a statement from the school committee that it was unaware of a violation of policy or law – without identifying any particular decision of a subordinate – established municipal liability.
As for the third theory of failure to train, Levy wrote that Lavigne’s complaint “is devoid of alleged facts” that could have shown a pattern of constitutional violation by untrained staff members.
A municipality would be liable only if its failure to train constituted “deliberate indifference” to constitutional rights, Levy wrote, which would require the plaintiff to demonstrate proof a municipal official disregarded a known consequence of their actions.
“It is understandable that a parent, such as Lavigne, might expect school officials to keep her informed about how her child is navigating matters related to gender identity at school. Her complaint, however, fails to plead facts which would, if proven, establish municipal liability under Monell and its progeny based on an unwritten custom, ratification, ratification by a final policy maker, or failure to train,” Levy wrote in his conclusion.
Susan Weidner, of the law firm Drummond Woodsum, represented the school committee. Johnston and Samuel Belknap, the chair of the Great Salt Bay School Committee, did not respond to a request for comment regarding Levy’s dismissal of Lavigne’s complaint.
Lavigne was represented by attorney Brett Baber, of the Bangor-based Lanham Blackwell & Baber, and Adam Shelton, lead attorney from The Goldwater Institute, a national conservative policy nonprofit with headquarters in Arizona
“While we are disappointed in the court’s ruling, we remain undeterred in our defense of the rights of parents and children against the efforts of school officials to undermine fundamental constitutional principles,” Joe Setyon, a spokesperson for the Goldwater Institute, said in an emailed statement. “We are currently considering our next steps in the case.”
To read the full order on the motion to dismiss, go to shorturl.at/gOV49.
