Rebecca Hartzell is the mother of eight children. During the 2019-2020 academic year, five of her children attended Dove Mountain CSTEM K-8, a school within the Marana Unified School District in Arizona. Hartzell earned a master’s degree in special education and a doctorate focusing on applied behavioral analysis and autism. She worked as an associate professor of practice at the University of Arizona and served as the director of the master’s program in applied behavioral analysis.
Since 2008, Hartzell advocated for improved services in the District. She frequently raised concerns with District personnel about school policies, student safety, IEP procedures, and special education funding. Hartzell argued that District employees responded negatively to her advocacy. In 2011, a District employee wrote to Hartzell that she was “asking for the moon!!!” Hartzell claimed District employees barred her from volunteering at District schools because of her emails. In 2018, a District assistant superintendent told her she was not welcome at District schools unless her children were enrolled there. A teacher also told Hartzell that her criticisms made her “pissed,” and that she had “nicknames” for Hartzell, and called Hartzell her “first nasty parent.”
In 2019, as the District prepared to open Dove Mountain School, Hartzell directed her concerns to Principal Andrea Divijak. At one point, Hartzell offered to help at the school, but Divijak responded that Dove Mountain was “not interested in help.” Hartzell continued to email Divijak various complaints. On December 10, 2019, Hartzell complained to Divijak that a school event had scheduled her children to perform simultaneously in different locations, causing her to miss some of their performances.
On February 7, 2020, Dove Mountain hosted an event where students presented long-term projects. The school scheduled two of Hartzell’s children to present at the same time. Hartzell approached Principal Divijak in a classroom and sarcastically thanked her for “making [her] choose which kid [she was] going to support again today.” As Hartzell turned to leave, Divijak responded that Hartzell was “never happy.”
Hartzell turned back and continued speaking, but Divijak began walking away. According to Hartzell, she accidentally touched Divijak’s arm as she passed and said, “Stop, I’m talking to you.” Divijak loudly told Hartzell not to touch her.
A hall monitor ordered Hartzell to leave immediately, informed her police would be called if she did not comply, and escorted her out of the building. Outside, Marana Police Department Officer Jerry Ysaguirre informed Hartzell that the school had requested a trespass order against her. He said she could not enter school property and could be arrested for trespassing if she returned.
Divijak told Ysaguirre that as she tried to walk around Hartzell, Hartzell yelled “Damn it,” said the conversation was not over, and demanded she stop. Divijak said Hartzell then grabbed her left wrist and held on, forcing Divijak to pull her arm away. The alleged wrist grab was not visible on security footage, but Ysaguirre believed Divijak’s reaction in the security footage was more consistent with her version of events.
On February 24, 2020, Hartzell, her husband, and her attorney met with Superintendent Wilson and a District attorney. According to Hartzell, the District stated that the ban was final and would remain indefinitely, as lifting it would upset the assistant superintendent and principal. However, the District allowed Hartzell to enter school grounds to pick up her preschooler as long as she did not speak to anyone. In June 2023, the District’s counsel informed Hartzell that the ban had been lifted.
On March 30, 2020, the state filed misdemeanor assault charges against Hartzell. On September 22, 2020, the court dismissed the charges at the prosecutor’s request.
In October 2020, someone delivered a document to Hartzell’s employer. It included a docket sheet listing her criminal charges and a note stating, “[t]his occurred at 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.” In April 2021, an anonymous sender mailed another document to the University of Arizona’s Compliance Office. The note accused Hartzell of using her university email account to “harass, bully, intimidate, and threaten people.” It further stated, “[a] full audit of her account will verify these accusations. Additionally, I have great concern about her mental health.”
Hartzell sued the District and Divijak for First Amendment retaliation, arguing they banned her for her advocacy under an unconstitutional policy restricting “offensive or inappropriate” speech. She also sued the District and Divijak for procedural due process violations, alleging they violated her right to direct her children’s education by banning her without due process. Lastly, she sued Divijak for defamation, claiming she sent the anonymous notes to her employer.
The District denied retaliating against Hartzell and argued that it banned her because of her conduct, not her speech. The District also contended that Divijak was entitled to qualified immunity, shielding her from liability for the First Amendment and procedural due process claims. Divijak did not deny sending the notes to Hartzell’s employer but contended they were not defamatory. The District moved for summary judgment, asking the trial court to dismiss Hartzell’s claims.
The trial court largely agreed with the District and granted summary judgment on all claims except for part of Hartzell’s defamation claim. It ruled that Hartzell had no constitutional right to access school property, that Divijak was entitled to qualified immunity on the First Amendment retaliation claim, and that one of the allegedly defamatory documents contained non-actionable opinions. The jury ultimately ruled in Divijak’s favor on the remaining defamation claim. Hartzell appealed.
The Ninth Circuit ruled that the District’s policy prohibiting “offensive or inappropriate” speech was unconstitutional under the First Amendment. The District argued that the policy did not restrict free speech but instead prevented “harassment and disruption of the educational environment.” However, the Ninth Circuit pointed out that the policy broadly defined disruption to include “use of speech or language that is offensive or inappropriate to the limited forum of the public school educational environment.” The Ninth Circuit emphasized that “the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” The Ninth Circuit found a reasonable jury could conclude the District banned Hartzell based on the policy rather than her conduct.
However, the Ninth Circuit ruled that Divijak had qualified immunity on the First Amendment claim. Qualified immunity protects government officials from personal liability unless they violate clearly established constitutional rights. The Ninth Circuit ruled that Hartzell’s speech rights in the school context were not clearly established. It noted that Hartzell only identified one similar case arising in a public school context and it was not controlling. Without widespread legal guidance, it would be unreasonable to hold Divijak personally liable.
The Ninth Circuit affirmed the dismissal of Hartzell’s procedural due process claim. It held that she had no constitutional right to access school property and that the ban did not interfere with her right to direct her children’s education.
The Ninth Circuit ruled that a reasonable jury could find the docket sheet and attached note defamatory, since it could interpret the note as falsely accusing Hartzell of criminal conduct. However, the Ninth Circuit found that the second note, accusing Hartzell of harassment and questioning her mental health, contained statements that were non-actionable opinions.
The Ninth Circuit affirmed the trial court’s dismissal of Hartzell’s procedural due process claim and its ruling that Divijak had qualified immunity on the First Amendment claim. It reversed the dismissal of Hartzell’s First Amendment claim against the District and part of her defamation claim against Divijak, and remanded the case for further proceedings.
Hartzell v. Marana Unified Sch. Dist. (9th Cir. Mar. 5, 2025, No. 23-4310) 2025 U.S. App. LEXIS 5128.