W. Mich. Band Instruments v. Coopersville Area Pub. Sch. ( 2019 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 19a0026n.06
No. 18-1583
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
WEST MICHIGAN BAND INSTRUMENTS, LLC, ) Jan 16, 2019
) DEBORAH S. HUNT, Clerk
Plaintiff-Appellant, )
) ON APPEAL FROM THE
v.
) UNITED STATES DISTRICT
COOPERSVILLE AREA PUBLIC SCHOOLS; ) COURT FOR THE WESTERN
RONALD VELDMAN; LISA BORST, ) DISTRICT OF MICHIGAN
)
Defendants-Appellees. )
BEFORE: BOGGS, KETHLEDGE, and STRANCH, Circuit Judges.
BOGGS, Circuit Judge. This is a free-speech case brought under the First and Fourteenth
Amendment, challenging a public school’s preferred-vendor policy on grounds of viewpoint-based
discrimination. For the reasons set forth below, we affirm the district court.
I
West Michigan Band Instruments, LLC (WMBI) sells and rents band instruments to
students in public-school districts throughout Western Michigan, including Coopersville Area
Public Schools (CAPS). CAPS offers a fine-arts program to its students, which includes a middle-
school band and a high-school marching band, concert band, jazz band, and pep band. Like many
school districts, CAPS requires band students and their parents to participate in an annual meeting
known as “Band Night.” The purpose of Band Night is to provide information to students and
parents about the opportunities and responsibilities of the band program, information about renting
No. 18-1583, W. Mich. Band Instruments v. Coopersville Area Pub. Sch., et al.
or purchasing band instruments, and advice about the type and size of instrument each student
should use, a process known as fitting students to their instruments.
CAPS had traditionally invited various instrument vendors, including WMBI, to attend
Band Night so that they could provide students and parents with information about their products
and services and directly supply them with instrument purchase and rental agreements. In April
2017, CAPS issued an invitation to bid (“ITB”) to vendors to serve as the school district’s
instrument-repair vendor and to become the exclusive vendor at Band Night. WMBI submitted a
bid, but also sent a letter to the CAPS superintendent objecting to the exclusive-vendor policy as
unlawful. CAPS refused to change the ITB. In June 2017, WMBI lost to its competitor, Meyer
Music, which became the only vendor allowed to attend Band Night at the beginning of the 2017
school year. WMBI filed suit against CAPS1 claiming it engaged in viewpoint discrimination by
only permitting Meyer Music to participate in Band Night. Defendants filed a Fed. R. Civ. P.
12(b)(6) motion to dismiss, which was granted by the district court on grounds that WMBI failed
to state a constitutional claim against defendants. WMBI filed this appeal.
II
The district court’s decision to grant a motion to dismiss for failure to state a claim pursuant
to Fed. R. Civ. P 12(b)(6) is reviewed de novo. Jones v. City of Cincinnati, 521 F.3d 555, 559 (6th
Cir. 2008). This court must construe the complaint in the light most favorable to the plaintiff,
accept its factual allegations as true, and draw all reasonable inferences in favor of the plaintiff.
Ibid. A court need not accept as true legal conclusions where recitals of the elements of a cause
1
WMBI also filed suit against Superintendent Ronald Veldman and band director Lisa Borst in their official capacities.
The district court dismissed those claims, citing redundancy of official-capacity claims against individuals in a suit
against the governmental entity itself. WMBI does not contest that dismissal.
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of action are supported by mere conclusory statements. Ashcroft v. Iqbal, 556 U.S. 662, 679
(2009). Likewise, a legal conclusion couched as a factual allegation need not be accepted as true.
Handy-Clay v. City of Memphis, 695 F.3d 531, 539 (6th Cir. 2012).
At issue here is whether school districts can influence commercial transactions between
students and parents and a private vendor by creating an exclusive forum for a preferred vendor
and excluding non-preferred vendors from access to that forum. WMBI argues that CAPS’s
exclusive-vendor policy results in viewpoint-based discrimination in violation of the First and
Fourteenth Amendments.
CAPS, as a public-school district, is a governmental entity operating on government-owned
property. To determine the constitutionality of a governmental restriction of speech on publicly
owned property, a court must consider 1) whether the speech is protected under the First
Amendment, 2) what type of forum is at issue, and 3) whether the restriction on speech satisfies
the constitutional standard of the forum. Miller v. City of Cincinnati, 622 F.3d 524, 533 (6th Cir.
2010). The district court held, and it is not disputed on appeal, that WMBI is engaged in protected
commercial speech and that Band Night is either a limited public forum or a nonpublic forum, both
of which require only that a government restriction on speech must be viewpoint neutral and
reasonable in light of the purpose served by the forum. Id. at 534-35.
III
A (Viewpoint Neutral)
WMBI alleges that CAPS’s exclusive-vendor policy is a “viewpoint-based restriction on
commercial speech,” and a “paternalistic government policy” designed to steer the public toward
the government’s preferred vendor by restricting the free flow of commercial information and the
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ability of band students and parents to make informed decisions about where to purchase or rent
their instruments. On appeal, WMBI argues that CAPS’s exclusion policy prevented WMBI from
expressing its viewpoint that it, not Meyer Music, is the superior vendor for CAPS’s band students
and parents. WMBI argues that it was deprived of its First Amendment right to use expressive
actions to legitimize itself and establish its worth in the eyes of band students and their parents at
Band Night. In short, WMBI’s viewpoint is that it is the best instrument vendor for band students
and parents. The problem for WMBI is that it failed to plead this or any other viewpoint in its
First Amended Complaint. The closest WMBI comes to articulating a viewpoint is alleging that
one of the purposes of Band Night is to “provide the students and parents with information about
purchasing and renting band instruments.” Nowhere does WMBI allege any viewpoint that is
discriminated against by CAPS preferred-vendor policy.
Even assuming that WMBI had properly alleged a viewpoint, WMBI fails to distinguish
CAPS preferred-vendor policy from other acceptable governmental contracts. In many school
contracts, the school directly purchases a service or product from the vendor, e.g., contracts for
textbooks, school buses, school security, or printing supplies. Schools also act as facilitators
between third parties and students and parents, e.g., schools select vendors to take student photos,
Foto USA, Inc. v. Bd. of Regents of Univ. Sys. of Fla., 141 F.3d 1032 (11th Cir. 1998); schools
select vendors for students to purchase class rings; schools select vendors for athletes to purchase
equipment or uniforms not directly provided by the school; schools select vendors for students to
purchase school uniforms; schools select vendors to sell concessions at athletic events; schools
select books (and sometimes publishers) on a reading list. CAPS is acting as a facilitator, providing
one instrument company exclusive access in a limited time and space to potential non-
governmental customers, i.e., students and parents who purchase or rent instruments.
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We hold that WMBI is a vendor who was excluded from a school forum, not because of
its viewpoint, but because of its status as a non-preferred vendor who lost to Meyer Music in the
bidding process. See Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 49 (1983).
As noted by the district court, this type of “discrimination” occurs every time a governmental entity
chooses a private company after a competitive bidding process. Every contract is a burden on
commercial speech, as “[a]ll contracts are by their nature exclusionary.” Foto USA, 141 F.3d at1037–38. WMBI syllogistically argues that its status as a non-preferred vendor is by definition
viewpoint based, and therefore discriminating on the basis of status is viewpoint-discrimination.
No authority is cited to support this assertion. We hold that CAPS’s preferred-vendor policy is
viewpoint neutral.
B (Limiting attendance is reasonable in light of purpose of forum)
In addition to being neutral, the preferred-vendor policy must also be reasonable.
Government entities can limit speakers based on identity (status) or subject matter (content) in a
limited public forum or a nonpublic forum as long as the restrictions are reasonable in light of the
purpose served by the forum. Helms v. Zubaty, 495 F.3d 252, 256 (6th Cir. 2007). As held by the
district court, Band Night “is not intended as a purely capitalistic free-for-all for the area[’s] band
vendors to compete for the attention of the students for profit.” Band Night’s purpose is to educate
band students and their parents about the band program and to assist students in selecting and
getting properly fitted to their instruments. According to CAPS, restricting vendor attendance
minimizes competition for the attention of parents and students that could detract from the ability
to provide information about the band program itself. An exclusive bidding process also reduces
crowding and ensures that the vendor present at the meeting meets CAPS’s standards. In that
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context, the district court held that allowing only a single vendor at Band Night, after a competitive
bid process, to be “eminently reasonable.” We agree.
In Pagan v. Fruchey, 492 F.3d 766 (6th Cir. 2007) (en banc), this court considered whether
a local traffic ordinance prohibiting the placement of a “For Sale” sign on a vehicle parked on a
public street was an unconstitutional restriction on commercial speech in violation of the First
Amendment. Restrictions on commercial speech are subject to a form of intermediate scrutiny
that requires the government to justify its form of regulation on commercial speech. Pagan,
492 F.3d at 770–71; see Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of N.Y., 447 U.S.
557, 564-66 (1980). The government must demonstrate that the restriction on commercial speech
directly and materially advances a substantial governmental interest, and “even common-sense
decisions require some justification.” Pagan, 492 F.3d at 777. In Pagan, the restriction on “For
Sale” signs on cars was supported only by a police chief’s simple conjecture that something might
occur if people stopped to look at a “For Sale” sign on a parked vehicle. Id. at 772-73. Pagan
held that such speculation was not a justification and that there was a complete absence of evidence
that any harm would be addressed by the ordinance. Ibid. Unlike Pagan, as set forth above, CAPS
does provide several common-sense reasons for its preferred-vendor policy. In so doing. CAPS’s
policy is reasonable and withstands intermediate scrutiny.2
For the reasons set forth above, we AFFIRM the district court’s dismissal of this case under
Fed. R. Civ. P. 12(b)6.
2
In its reply brief, WMBI raises a new argument that CAPS’s exclusive-vendor policy was not reasonable because it
arguably violated Mich. Comp. Laws § 380.1805, which prohibits school officers and teachers, as individuals, from
acting as agents of “an author, publisher, or seller of schoolbooks or school apparatus.” This argument has been
forfeited because it was not raised in its initial brief. Marks v. Newcourt Credit Grp., Inc., 342 F.3d 444, 462 (6th Cir.
2003). Further, CAPS’s alleged violation of the Michigan school code does not go to the question of whether CAPS
violated WMBI’s free-speech rights under the First and Fourteenth Amendments.
6