Great Barrington — A motion to dismiss a civil rights lawsuit filed by a former W.E.B. Du Bois Middle School teacher over an investigation of her having a copy of the book “Gender Queer” in her classroom has been filed in the United States District Court. The motion was filed on September 12 by Boston attorney Jeffrey Trapani from Pierce Davis & Perritano LLP on behalf of the town, Police Chief Paul Storti, and Police Officer Joseph O’Brien.
In a December 2023 incident that made national headlines, the Great Barrington Police Department investigated Arantzazú Zuzene Galdós-Shapiro, an eighth grade ELA teacher at W.E.B. Du Bois Middle School at the time, in response to an anonymous complaint that she had a copy of “Gender Queer” in her classroom.
On May 14, Galdós-Shapiro, who eventually left the school district, filed a civil rights lawsuit in the United States District Court against the town, Chief Storti, Officer O’Brien, and Superintendent Dillon. The lawsuit was filed by Galdós-Shapiro’s attorney, Howard Cooper, a founding partner of Boston’s Todd & Weld LLP.
Defendants in the case were supposed to file their responses to the District Court on August 30. Instead, Galdós-Shapiro’s attorneys, Cooper, Maria Davis, and Shayne Lotito, filed an amended complaint with multiple new allegations against the defendants.
In response to the new allegations, Trapani filed a motion to dismiss the case “because the allegations of the complaint fail to state claims upon which relief may be granted.” In the motion to dismiss, Trapani goes through each of the charges Galdós-Shapiro makes in her amended lawsuit, starting with the charge that Officer O’Brien’s search violated Galdós-Shapiro’s First Amendment constitutional rights.
“The fact that an investigation occurred is not a violation of the plaintiff’s First Amendment rights,” Trapani writes. “The plaintiff has not alleged facts sufficient to state a claim. Cases have consistently held that issues of First Amendment rights in the classroom often fall within the discretion and judgment of local and state government officials. In Massachusetts, and relevant to this matter, there are statutes that define obscene materials and provide for protections when they appear in the educational environment. The amended complaint, however, is devoid of any facts that the response to the complainant’s allegations and the conduct of Chief Storti or Officer O’Brien were based on any constitutionally protected speech.”
Trapani argues that Officer O’Brien’s investigation “did not amount to any deprivation of the plaintiff’s First Amendment rights.” “There were allegations in addition to the presence of a book that necessitated and demanded some sort of further inquiry, especially where the school officials did not have an immediate response to the allegations of disseminating obscene or pornographic material to minors, allowing students to sit on the plaintiff’s lap and meeting with students in private and telling the students not to tell their parents about it,” Trapani writes. “The mere inquiry into the book, along with the inquiries into the other concerns, does not amount to any sort of a constitutional deprivation.”
Trapani further argues that “… the plaintiff has not set forth any facts that she suffered an adverse action, that the alleged protected conduct was a substantial or motivating factor or that the defendant would not have acted differently under the circumstances.”
“Again, this was a brief investigation into allegations involving children at a school,” Trapani writes. “The allegations from the complainant focused on the plaintiff and her classroom. The interaction between the plaintiff and Officer O’Brien was extremely short, and resulted in no other action by the [Great Barrington] defendants.”
Trapani also denies Galdós-Shapiro’s second count that her Fourth Amendment constitutional rights protecting her from “unreasonable searches and seizures” were violated. “There was a report of the potential distribution of obscene materials and inappropriate contact with a minor,” Trapani writes. “This was not by an anonymous source, but by a person who wanted to maintain confidentiality yet made his report directly and in person to the police. This certainly amounts to reasonable suspicion to make an inquiry, especially when viewing the scope of the inquiry involved here. Further, the plaintiff herself was not searched in any way. The focus of this claim is the search of the classroom. Any claim asserting that a search of the plaintiff’s classroom constitutes a deprivation of her constitutional rights should fail as a matter of law. Also, Principal Wheat had actual or apparent authority to consent to any search. The officer is working within the confines of the consent given to him by Principal Wheat, or the apparent consent given to the officer. A school principal, after all, is the person in charge of a school building. The amended complaint clearly states and infers that Wheat provided permission to Officer O’Brien to enter the classroom and speak with the plaintiff.”
In the third count, Galdós-Shapiro argues that her 14th Amendment constitutional rights were violated.
“Preliminarily, because the plaintiff alleges a violation of her rights under the First and Fourth Amendments, she cannot also maintain a claim under the equal protection clause to the extent there is overlap between this claim and the other two bases,” Trapani writes in response. “Regardless of her theory of liability, the plaintiff fails to state a claim for a violation of her constitutional right to equal protection against either Officer O’Brien or Chief Storti because she has failed to identify any other person who was similarly situated to her and was treated differently by either of these defendants regardless of the standard of inquiry accorded to the protected class. Further, as shown in the video, the allegation that the officer singled out the plaintiff is contradicted by the video. In the video, the officer is heard inquiring about who else may know the book’s location and if the plaintiff knows what teacher may have the book. The plaintiff also could not identify who had signed out the book.The amended complaint is simply devoid of any facts that would support a claim based on a violation of the plaintiff’s Fourteenth Amendment rights.”
Trapani goes on to argue that Chief Storti and Officer O’Brien are “entitled to qualified immunity” under United States Code 1983 Civil Action for Deprivation of Rights:
In this instance, the complainant came to the police station and reported that a teacher was showing obscene materials to minors and engaging in potentially inappropriate touching and also telling the children not to inform their parents. A police department is bound to investigate allegations of criminal conduct, especially involving children. Officer O’Brien reported the allegations to Chief Storti, who then came into the station and had multiple calls with Dr. Dillon. At no point did the school officials inform Officer O’Brien or Chief Storti that they were aware of the alleged book or any other allegations relating to this teacher, nor did they inform Officer O’Brien or Chief Storti not to investigate the allegations. To the contrary, the school officials agreed to have Officer O’Brien go to the school, meet with Principal Wheat and speak to the teacher – the plaintiff – and try to locate the book. No official standing in the shoes of Chief Storti or Officer O’Brien would have understood that the actions taken were a violation of any of the plaintiff’s rights identified in this Amended Complaint or that in this particular factual context of this case, that they would have understood that their conduct was violating this plaintiff’s rights.
This is also not a case where the plaintiff was arrested or charged in any way. The plaintiff’s claim is based on the fact that there was a police investigation, however brief, into the Complainant’s allegations. The response of Chief Storti and Officer O’Brien was extremely measured: they engaged with the school officials immediately; they consulted with the District Attorney’s Office; they did not make any arrests; they did not apply for any charges; and ultimately, they facilitated communications between the school and the District Attorney’s Office. These acts do not constitute any sort of constitutional deprivation, and they should certainly be protected by qualified immunity.
Trapani also argues that the town is immune from her claim that her 14th Amendment rights were violated:
In order to prevail under Section 1983 against the town, the plaintiff must demonstrate that her harm was caused by a constitutional violation and that the town was responsible for such violation. To support a claim of municipal liability against the town in this case, the plaintiff must show that the town adopted an unconstitutional policy and that such policy resulted in her harm. Alternatively, in the absence of formal government action, municipal liability may be imposed if the plaintiff’s rights were violated by the existence of a widespread custom or practice that, although not authorized by law or express government policy.
Galdós-Shapiro claims that her rights under general state law, under the Civil Rights Act Section 11H and Section 11I, were violated.
“In applying this law, Massachusetts courts employ an objective, reasonable person standard in determining whether a defendant’s conduct amounts to ‘threats, intimidation, or coercion.’” Trapani writes. “A claim under the MCRA [Massachusetts Civil Rights Act] is properly dismissed when the allegations in the complaint fail to satisfy this standard. To the extent that the allegations simply allege a direct deprivation of rights, such claims do not support one under the MCRA.”
Trapani argues that Galdós-Shapiro “failed to allege any deprivation of rights, threats, intimidation, or coercion.” “Without greater clarity [of Galdós-Shapiro’s claims], this kitchen-sink pleading leaves the parties guessing as to what rights are alleged to have been directly deprived by the Great Barrington defendants versus what rights the plaintiff alleges that she was deprived of by way of threats, intimidation or coercion,” Trapani writes. “More specifically, the plaintiff’s claims are based on Articles I and XIV of the Declaration of Rights and the First, Fourth and Fourteenth Amendments. The plaintiff has failed to articulate what each defendant did in order to cause the plaintiff to give up which right. Civil rights deprivations and threats must be distinguished from civil rights deprivations caused by threats, intimidate or coercion. Only the latter will support recovery under MCRA.”
In a separate filing made by Dillon’s attorney, David Lawless from the Springfield law firm Robinson Donovan, P.C., Dillon requested from the court a deadline extension of October 25 in order to respond to Galdós-Shapiro’s amended complaint.
Click here for a copy of Galdós-Shapiro’s amended complaint.
Click here for a copy of the motion to dismiss filed by attorney Trapani.
Click here for Dillon’s request for extension as made by attorney Lawless.
