MEMORANDUM, DECISION and ORDER*fn1
The following facts are taken from Plaintiff's Complaint (Dkt. No. 1) and, for purposes of this motion, are assumed to be true. The infant Plaintiff, Jane Doe, is a twelve year old student at the Mont Pleasant Middle School located within the Schenectady Central School District (the "School District"), Schenectady, New York. Complaint (Dkt. No. 1) at ¶ 9. In early January 2005, Plaintiff began wearing to school a red, white, and blue beaded necklace that she made. Id. at ¶ 10. According to Plaintiff, she wore the necklace to show her support for the soldiers serving in Iraq (including certain members of her family) and to demonstrate her love of country. Id. at ¶ 11. On January 4, 2005, Defendants informed Plaintiff that she could not wear the necklace because it could be considered to be gang related. Id. at ¶ 17. School policy prohibits the wearing of gang related items. Id. at ¶ 15. Plaintiff was advised that if she did not comply with school policy, she would be subjected to discipline. Id. at ¶ 17.
Plaintiff then commenced the instant action asserting that Defendants' policy, and its enforcement as to her, violates her rights under the First Amendment. Currently before the Court is Defendants' motion to dismiss pursuant to Federal Rule of Civil Procedure 12(c) on the grounds that: (1) the School District is entitled to Eleventh Amendment immunity; (2) the individual defendants are entitled to qualified immunity because (a) Plaintiff does not possess any First Amendment rights; (b) the wearing of the beaded necklace does not convey a particularized message; and (c) there is not a great likelihood that the message will be understood by those viewing it; and (3) the dress code policy of the School District is neither overbroad nor vague. Motion to Dismiss (Dkt. No. 5).
Because this matter is before the Court on a motion made pursuant to Federal Rule of Civil Procedure (12)(c), "'[t]he court may not dismiss [the] complaint unless it appears beyond doubt, even when the complaint is liberally construed, that the plaintiff can prove no set of facts which would entitle [her] to relief.'" DeMuria v. Hawkes, 328 F.3d 704, 706 (2d Cir. 2003) (quoting Jaghory v. New York State Dep't of Educ., 131 F.3d 326, 329 (2d Cir. 1997)). "Because the complaint must allege facts which confer a cognizable right of action, the issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." DeMuria, 328 F.3d at 706 (internal quotation, citation and alterations omitted). In reviewing the pending motion, the Court has disregarded all materials that have been submitted outside the pleadings.
a. Eleventh Amendment Immunity
Defendants move to dismiss on the ground that a school district is an arm of the state that is entitled to Eleventh Amendment immunity. This Court recently considered and rejected such arguments in Cohn v. New Paltz Central Sch. Dist., 363 F. Supp. 2d 421 (N.D.N.Y. 2005). Defendants have proffered no evidence or legal arguments warranting a different result. Accordingly, this argument is rejected.
b. Whether Plaintiff Has First Amendment Rights
Defendants next argue that, considering Plaintiff's relatively young age, she does not enjoy the full panoply of First Amendment rights. While "the constitutional rights of students in public school are not automatically coextensive with the rights of adults in other settings," Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 682 (1986), it is clear that middle-school-aged students do have a constitutionally protected right to engage in non-disruptive, non-violent, silent speech to express views disapproving of war. Tinker v. Des Moines Independent Central Sch. Dist., 393 U.S. 503 (1969) (students of ages thirteen, fifteen, and sixteen had a protected First Amendment right to wear black arm bands expressing their views concerning the hostilities in Vietnam).*fn2 In this case, Defendant has presented no argument that Plaintiff was disruptive or that she engaged in any conduct other than quietly wearing her necklace.*fn3 Accordingly, neither Plaintiff's age nor the particular manner of her conduct precludes her from asserting First Amendment rights. This is not to say, however, that Plaintiff was engaging in conduct protected by the First Amendment. That is the subject of the ensuing discussion.
Plaintiff alleges that the School District's policy prohibiting her from wearing the red, white and blue beaded necklace is a violation of her right to free expression under the First Amendment. Complaint (Dkt. No. 1) at ¶¶ 23-27. Defendants respond that Plaintiff's necklace does not constitute expressive conduct, and that the School District's policy does not impermissibly deny Plaintiff any First Amendment freedoms she may possess. Def. Memo. of Law (Dkt. No. 5) at 6.
"The First Amendment inquiry contains two parts: (1) whether [Plaintiff's] action constitute 'expressive conduct' entitled to protection under the First Amendment, as incorporated by the Fourteenth; and if so, (2) whether the [School District's policy] . . . impermissibly denies her such protection." Zalewska v. County of Sullivan, New York, 316 F.3d 314, 319 (2d Cir. 2003) (citing Texas v. Johnson, 491 U.S. 397, 403 (1989)). As the Second Circuit explained in Zalewska:
[T]he fact that something is in some way communicative does not automatically afford it constitutional protection. For purposes of the First Amendment, the Supreme Court has repeatedly rejected the view that "an apparently limitless variety of conduct can be labeled 'speech' whenever the person engaging in the conduct intends thereby to express an idea." United States v. O'Brien, 391 U.S. 367, 376 (1968). We echoed this view in East Hartford Educ. Ass'n v. Bd. of Educ. of the Town of East Hartford, 562 F.2d 838 (2d Cir. 1977), where we recognized that acknowledging the symbolic speech-like qualities of a course of conduct is "only the beginning, and not the end, of constitutional inquiry." 562 F.3d at 857.
To determine whether conduct is expressive and entitled to constitutional protection requires an inquiry into whether the activity is "sufficiently imbued with the elements of communication to fall within the scope of the First and Fourteenth Amendments," Johnson, 491 U.S. at 404, for not all conduct may be viewed as speech simply because by her conduct the actor intends to express an idea. See Spence v. Washington, 418 U.S. 405, 409 (1974). To be sufficiently imbued with communicative elements, an activity need not necessarily embody "a narrow, succinctly articulable message," Hurley v. Irish American Gay, Lesbiand and Bisexual Group of Boston, 515 U.S. 557, 569 (1995), but the reviewing court must find, at the very least, ...