U.S. Ninth Circuit Court of Appeals weighs in on Marana Unified School District First Amendment policy

- Levi Bevis, Secular AZ Legal Intern

April 18, 2025

The First Amendment has long been a contentious area of law, especially when it comes to its application in public schools. While discussions over the inclusion of religious topics and materials, use of public property for religious purposes, or student and teacher speech may come to mind, today’s discussions are increasingly focused on school district policies that were developed to prevent harassment of teachers, administrators, and others by community members and parents.

On March 5, 2025, the U.S. Ninth Circuit Court of Appeals weighed in on one such matter that arose from the Marana Unified School District (MUSD) in Hartzell v. Marana Unified School District. In this case, Rebecca Hartzell, whose children are enrolled at Dove Mountain K-8 CSTEM school, was banned from the school grounds after she allegedly assaulted the school principal, Andrea Divijak. Hartzell has previously sought opportunities to get involved in volunteering at Dove Mountain, and she claimed that she was banned in retaliation for protected speech in which she repeatedly criticized the school district, Dove Mountain school, and school administrator. Divijak and MUSD argued that Hartzell was banned because of her conduct that violated school policy, namely that she assaulted Divijak.

The incident at the center of the case occurred on February 7, 2020, when Dove Mountain held an event where students gave presentations on projects to parents. Hartzell’s two children were scheduled to present in different rooms at the same time, and upset at this situation, Hartzell began making remarks about the situation to Divijak. The two disagreed on the matter and tensions rose. Divijak claims that, as she was walking away from the conversation, Hartzell grabbed her wrist and attempted to stop her from walking out of the room. Hartzell denies doing this, although she did acknowledge that “she accidentally touched” Divijak’s arm.

Following the incident, Divijak asked the Marana Police Department to remove Hartzell from the school premises and issue an exclusion order that prevented Hartzell from returning to school property while her children attended the school. Divijak cited District Policy KFA, which prohibits conduct that seeks to “obstruct, disrupt, or interfere with” a school’s operation, “physical or verbal abuse or threats of harm to any person” on MUSD property, and “use of speech or language that is offensive or inappropriate to the limited forum of the public school.” Violators of this policy may be instructed to leave school property, and failure to adhere to this directive may result in criminal charges of trespassing under Arizona law.

Hartzell brought four claims in her suit: 1) First Amendment retaliation claims against both the MUSD and Divijak, 2) a procedural due process claim against MUSD, and 3) a defamation claim against Divijak for allegedly sending two anonymous letters to Hartzell’s employer, the University of Arizona, discussing the alleged assault.

The U.S. District Court for the District of Arizona initially held in favor of MUSD, ruling that 1) Hartzell did not have a protected liberty interest in accessing school property, 2) that Divijak was entitled to qualified immunity in her capacity as a school administrator on the First Amendment retaliation claim, and 3) holding partially in favor of Divijak on the defamation claim since the information provided in the two documents was either factually accurate or unactionable while allowing the claim to proceed.

However, the Ninth Circuit reversed most of these holdings; for instance, the Court found that Hartzell’s First Amendment claim of retaliation was valid because a reasonable jury could find the MUSD Policy KFA banning “offensive or inappropriate” speech was used against Hartzell based on previous criticism Hartzell directed at Divijak. The Court explained that District Policy KFA is unconstitutional because a school district cannot prohibit speech it deems “offensive or disagreeable” or “disruptive or intrusive,” and since the action was directed at a parent instead of a student, limited First Amendment protections on school property does not apply.

The Ninth Circuit affirmed the lower court’s finding that Divijak was entitled to qualified immunity based on this First Amendment retaliation claim, and as such, Hartzell’s retaliation claim against Divijak fails. However, the retaliation claim was held as viable against MUSD because of District Policy KFA. The Court also affirmed that Hartzell’s claim of a violation of her right to direct her children’s education was not valid because that right only applies to a parent’s ability to select the school of choice for their children. Since that right is not impacted here, the Ninth Circuit held that the claim was correctly dismissed.

However, on the final defamation claim, the Ninth Circuit ruled that the District Court incorrectly found in favor of Divijak. The Court of Appeals found that a reasonable jury could find the first one of the documents to be defamatory, but not the second document. The first document in question was a print out of a court docket sheet reflecting the criminal charges against Hartzell with the handwritten statement “This occurred in a K-8 school in front of young children. Doesn’t seem like this is the kind of person that should be training teachers let alone working with kids” on it. The second document was a typed, unsigned single paragraph stating that Hartzell had used her university email account to “harass, bully, intimidate, and threaten people.”

This case calls into question similar school district policies that seek to protect faculty, staff, and administrators from parents and community members who may engage in harassing, bullying, and even threatening behavior. While future legal action may expound on which school policies in this vein may stand, school administrators and districts will likely have to tread lightly in the future to prevent additional lawsuits over First Amendment claims. This approach will only leave more teachers and school administrators with fewer protections against harassment from parents and community members.