govinfo:USCOURTS-ksd-6_26-cv-01068-0

1 
 
In the United States District Court 
for the District of Kansas 
_____________ 
 

_____________ 
 
ALAN WAGNER, 
 
Plaintiff 
 
v. 
 
BOARD OF EDUCATION 
USD 227 HODGEMAN COUNTY, KANSAS, ET AL., 
 
Defendants 
_____________ 
 
MEMORANDUM AND ORDER 
 
Plaintiff Alan Wagner sued the USD 227 Board of Education and 
board members of the Hodgeman County, Kansas, school district for 
First Amendment retaliation. Doc. 5. He requests a preliminary injunc-
tion. Doc. 3. For the following reasons, that motion is granted. 
I 
A 
Federal Rule of Civil Procedure 65 permits a district court to enter 
a preliminary injunction pending resolution of a trial on the merits. It 
is an extraordinary remedy that should only be granted where the “right 
to relief is clear and unequivocal.” Nat’l Ass’n for Gun Rights v. Polis, 173 
F.4th 1317, 1331 (10th Cir. 2026) (quotation marks omitted) . Under 
Rule 65, the party seeking a preliminary injunction must show four 
things: a likelihood of success on the merits, a likely threat of irrepara-
ble harm, that the harm alleged by the movant outweighs any harm to 
the non-movant, and that an injunction is in the public interest. Id. 
Injunctions “that disrupt the status quo are disfavored and must 
be more closely scrutinized to assure that the exigencies of the case 
support the granting of a remedy that is extraordinary even in the nor-
mal course.” Beltronics USA, Inc. v. Midwest Inventory Distrib., LLC , 562 

2 
 
F.3d 1067, 1070–71 (10th Cir. 2009) (quotation marks omitted). This 
heightened standard requires the plaintiff to make “a strong showing 
both with regard to the likelihood of success on the merits and with 
regard to the balance of harms.” O Centro Espirita Beneficiente Uniao Do 
Vegetal v. Ashcroft, 389 F.3d 973, 976 (10th Cir. 2004). 
Where, as here, a plaintiff brings a First Amendment claim, likeli-
hood of success on the merits is practically dispositive. “In the First 
Amendment context, ‘the likelihood of success on the merits will often 
be the determinative factor’ because of the seminal importance of the 
interests at stake .” Verlo v. Martinez , 820 F.3d 1113, 1126 (10th Cir. 
2016) (quoting Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114, 1145 
(10th Cir. 2013)). If a violation has occurred, i rreparable harm is pre-
sumed. See Roman Cath. Diocese of Brooklyn v. Cuomo , 592 U.S. 14, 19 
(2020). That harm outweighs any harm to the defendants. See Ortega v. 
Grisham, 148 F.4th 1134, 1154 n.13 (10th Cir. 2025) ( quoting Free the 
Nipple-Fort Collins v. City of Fort Collins, Colo., 916 F.3d 792, 806 (10th 
Cir. 2019) ) ( “[W]hen a constitutional right hangs in the balance . . . 
‘even a temporary loss’ usually trumps any harm to the defendant.”) . 
And “it is always in the public interest to prevent the violation of a 
party’s constitutional rights.” Id. (quoting Awad v. Ziriax , 670 F.3d 
1111, 1132 (10th Cir. 2012)). 
B 
Plaintiff Alan Wagner lives in Hodgeman County with his wife , 
Jazmin Wagner, and their ten children.1 He works as a member of the 
Kansas Highway Patrol. 
The Wagners are involved in their community. Five of their chil-
dren and their nephew attend the USD 227 elementary school. Mrs. 
Wagner coaches the fifth grade girls basketball team and, in November 
2025, was elected to a seat on the Board. The dispute that gives rise to 
this lawsuit revolves around Mr. Wagner’s comments at a Board meet-
ing that occurred on December 1, 2025, after Mrs. Wagner’s election 
victory but before her term began. The following gives context to that 
meeting and the larger issues leading up to and surrounding the topics 
of discussion. 
 
1 The facts are found based on Mr. Wagner’s Amended Complaint and the 
witnesses’ testimony at the preliminary injunction hearing held on June 15, 
2026. 

3 
 
At some point in October 2025, the Wagners became concerned 
with how the school handled an incident involving their daughter’s 
fifth grade teacher. The teacher had been arrested for domestic vio-
lence. The school told the kids about the arrest and said that the 
teacher was innocent, but it did not notify the parents. The Wagners 
learned of the issue and met with the school’s superintendent to dis-
cuss their concerns and ask why they had not been notified. After the 
meeting, the superintendent emailed the parents whose children were 
in the teacher’s class . A few days later, the superintendent emailed 
again explaining that the teacher was back in school after police had 
dropped the charges. 
The Wagners—for the first time ever—attended a Board meeting 
in early November. Mr. Wagner spoke at the meeting to voice his con-
cerns about the situation with the teacher and to critique the Board’s 
handling of the situation. And, as noted below, he made mental notes 
about the layout of the room in which the Board meets. 
After the November meeting, another incident occurred with the 
teacher. The teacher became angry with a student in her class who hap-
pened to sit next to the Wagner’s daughter . The teacher yelled at the 
student, spat on his face, and slammed his hands on the desk. 2 The 
student’s parents filed a police report. Later that day, local law enforce-
ment officers arrived at the Wagners’ to speak to their daughter about 
the incident. She recalled what she saw, which matched what the stu-
dent had reported to police. After the incident, the school temporarily 
removed the teacher from her post. 
At some point before December 1, the Wagners evidently also pur-
sued or raised questions about active-shooter training in and around 
the community. The pleadings and testimony did not illuminate the 
details of these efforts, but the point is that both Wagners advocated 
in their community for public safety in the school system against the 
threat that active shooters may present to the students, educators, and 
all connected with the local educational system. In particular, the Wag-
ners evidently encouraged local law enforcement officers to attend the 
upcoming December 1 Board meeting to amplify the concerns about 
 
2 The record is not clear as to whether the teacher physically slammed the 
student’s hands on the student’s desk or whether the teacher slammed her 
hands on the student’s desk. That uncertainty is not germane as the record 
establishes the encounter was suff iciently concerning that law enforcement 
was called about the situation. 

4 
 
both the Board’s handling of the incidents involving their daughter’s 
teacher and threats posed by active shooters.3 
The Wagners then attended a Board meeting on December 1, 
2025, and were given five minutes to speak . Mrs. Wagner, who had 
been elected to the Board but her term had not yet begun, spoke for 
three minutes and Mr. Wagner for two. He reiterated his critical con-
cerns regarding the teacher’s conduct. In addition, Mr. Wagner shared 
his concerns about the safety of the Board room where the meeting 
was being held—which his wife would soon occupy —by noting that 
many of the Board members were sitting with their backs turned to the 
room’s only (and unsecured) entrance. He noted that these Board 
members were unsafe because a disgruntled parent could walk in the 
room and physically attack them. He further stated that a disgruntled 
parent could use an assault rifle and shoot at Board members through 
the windows. 
There is a factual dispute about what, if anything, Mr. Wagner said 
next. The Wagners both credibly testified that he finished speaking and 
simply left, walking out holding hands with his wife. Several members 
of the Board now contend—after Mr. Wagner filed suit —that at the 
end of his remarks he said: “I am a disgruntled parent.” 
A week after the meeting, the Wagners were both at the school in 
the evening while Mrs. Wagner coached basketball and Mr. Wagner 
transported several of their children to and from the school. They no-
ticed Board members arriving at the school dressed in attire that indi-
cated there was a Board meeting. Mrs. Wagner became concerned be-
cause she, a soon-to-be Board member, had not been notified of any 
meeting yet was entitled to notice as a member -elect. A Board mem-
ber’s child then approached Mrs. Wagner and aske d her why she was 
not attending the Board meeting. 
The next day, law enforcement served Mr. Wagner with a no-tres-
pass letter from the school. See Doc. 5-5. The letter noted that Mr. 
Wagner was banned from all school property for one year because of 
 
3 Mr. Wagner’s concern was exacerbated given how the school had handled 
active shooter trainings in the past. The school had held an active s hooter 
training that did not involve Mr. Wagner. Both he and Mrs. Wagner—but 
evidently no one else in the community, including local law enforcement 
and/or the Board—felt that he should have been involved given his law en-
forcement experience and the fact that he lived close to the school. 

5 
 
his unspecified behavior at the December 1 meeting. Law enforcement 
explained that the Board had voted on the letter at a meeting the pre-
vious day. The letter contained no appeal process. Mr. Wagner re-
ceived no notice that the Board had met to discuss banning him from 
the school. 
Based on these facts, Mr. Wagner filed suit in federal court. Doc. 
5. Relevant here, he requests a preliminary injunction ordering the 
Board to rescind the no-trespass letter. Specifically, Mr. Wagner argues 
that the Board retaliated against him in violation of the First Amend-
ment. The Board admits it took action motivated by Mr. Wagner’s 
speech, but argues that Mr. Wagner’s speech was not constitutionally 
protected because it was a true threat. A hearing was held on June 15, 
2026. 
II 
Mr. Wagner has shown that he is substantially likely to succeed on 
the merits. The other preliminary injunction factors are also in his fa-
vor. Accordingly, his motion is granted. 
A 
Mr. Wagner brings a First Amendment retaliation claim.4 The First 
Amendment provides that “Congress shall make no law . . . abridging 
the freedom of speech.” U.S. Const. amend. I. It is applicable to the 
States through the Due Process Clause of the Fourteenth Amendment. 
Taylor v. Roswell Indep. Sch. Dist. , 713 F.3d 25, 35 (10th Cir. 2013) . The 
Amendment prevents governmental entities from retaliating against an 
individual for engaging in protected speech. Smith v. Albany Cnty. Sch. 
Dist. No. 1 Bd. of Trs., 174 F.4th 1235, 1246 (10th Cir. 2026). 
To sustain a claim for First Amendment retaliation , the plaintiff 
must establish three elements: T he plaintiff was engaged in constitu-
tionally protected activity, the defendants caused the plaintiff to suffer 
an injury that would chill a person of ordinary firmness from continu-
ing to engage in that activity , and the defendants’ actions were 
 
4 Although Mr. Wagner’s Amended Complaint brings claims for violations 
of the First Amendment and procedural due process, Doc. 5 at 22, 27, his 
motion for a preliminary injunction makes no mention of those counts. See 
generally Doc. 4. Thus, only his claim of First Amendment retaliation is con-
sidered. 

6 
 
motivated by the plaintiff’s protected activity. Smith, 174 F.4th at 1246. 
“Any form of official retaliation for exercising one ’s freedom of 
speech, including prosecution, threatened prosecution, bad faith inves-
tigation, and legal harassment, constitutes an infringement of that free-
dom.” Smith v. Plati, 258 F.3d 1167, 1176 (10th Cir. 2001). 
Only the first element is at issue here. The Board issued the no -
trespass order “[b]ecause of” Mr. Wagner’s comments at the Decem-
ber 1, 2025, meeting. Doc. 5-5. And the order threatened Mr. Wagner 
with arrest and civil litigation. The Board does not dispute that “[b]an-
ning a parent from school grounds and all school activities after the 
parent [complained about the school] would chill an ordinary person 
from continuing to complain to school officials .” Czaplinski v. Ballard, 
No. 25-2057, 2025 WL 2986832, at *4 (D. Kan. Oct. 23, 2025) (col-
lecting cases and noting that the threat of litigation along with a ban 
would chill an ordinary person). 
The Board focuses its argument on the discrete issue of whether 
Mr. Wagner’s speech was constitutionally protected. It makes no argu-
ment on the other two elements. 
B 
The undisputed evidence establishes that Mr. Wagner engaged in 
what the Tenth Circuit has described as pure speech . See Smith, 174 
F.4th at 1249 n.5 (“Pure speech is words or conduct limited in form to 
what is necessary to convey an idea. Because pure speech implicates 
core F irst Amendment considerations, it is rigorously protected re-
gardless of meaning.”) (brackets, citations, and quotation marks omit-
ted); 303 Creative LLC v. Elenis, 600 U.S. 570, 587 (2023) (“All manner 
of speech—from pictures, films, paintings, drawings, and engravings, 
to oral utterance and the printed word—qualify for the First Amend-
ment’s protections.”) (brackets and quotation marks omitted). He ap-
peared at the public school board meeting where his children attend 
and his wife was recently elected to serve as a member of the Board. 
And he spoke about the school’s operations and his safety concerns, 
including the Board room’s layout. This is the type of speech that the 
Supreme Court “has frequently reaffirmed . . . occupies the highest 
rung of the heirarchy of First Amendment values, and is entitled to 
special protection.” Connick v. Myers, 461 U.S. 138, 145 (1983) (quota-
tion marks omitted). 
The Board concedes that most of Mr. Wagner’s statements were 
conduct that the First Amendment protects . In other words, there is 

7 
 
no meaningful dispute that Mr. Wagner is substantially likely to suc-
ceed on the merits , which entitles him to the extraordinary relief he 
seeks. See Verlo, 820 F.3d at 1126. 
The Board ’s sole argument to the contrary is that Mr. Wagner 
made a statement at the end of his speech that its members—who were 
the subject of Mr. Wagner’s criticism —construed to be a true threat. 
A true threat is a historically unprotected communication. Counterman 
v. Colorado, 600 U.S. 66, 74 (2023) (citing Virginia v. Black, 538 U.S. 343, 
359 (2003)). It is a statement “where the speaker means to communi-
cate a serious expression of an intent to commit an act of unlawful 
violence to a particular individual or group of individuals.” United States 
v. Dillard, 795 F.3d 1191, 1199 (10th Cir. 2015) (quoting Black, 538 U.S. 
at 359). “To fall outside of the First Amendment’s protections, a threat 
must ‘according to its language and context convey a gravity of pur-
pose and likelihood of execution so as to constitute speech beyond the 
pale of protected vehement, caustic, unpleasantly sharp attacks on gov-
ernment and public officials. ’” Id. (quoting United States v. Crews, 781 
F.2d 826, 832 (10th Cir.1986)). Although the speaker need not subjec-
tively intend to act upon the threat, the threat must nonetheless “in-
clude ‘a serious expression of an intent to commit an act of unlawful 
violence.’” Id. (quoting Black, 538 U.S. at 359). 
The Board’s argument fails for two reasons. First, it bears the bur-
den of establishing that Mr. Wagner’s otherwise protected political dis-
course became unprotected because it was a true threat.5 See Illinois, ex 
rel. Madigan v. Telemarketing Assocs., Inc., 538 U.S. 600, 620 (2003) (“The 
Court has long cautioned that, to avoid chilling protected speech, the 
government must bear the burden of proving that the speech it seeks 
to prohibit is unprotected.”); United States v. Playboy Ent. Grp., Inc., 529 
U.S. 803, 816 (2000) ( “When the Government restricts speech, the 
 
5 The Board argues in supplemental briefing that it is Mr. Wagner’s burden 
to show he did not make a true threat. Doc. 23 at 1 –3. Not so. Mr. Wagner 
must show that he is substantially likely to succeed on the merits of his First 
Amendment claim, and he has done so by showing that he engaged in pure 
speech. The Board, as the governmental entity that seeks to restrict Mr. Wag-
ner’s speech, “bears the burden of proving the constitutionality of its ac-
tions.” Playboy, 529 U.S. at 816; accord Madigan, 538 U.S. at 620; Philadelphia 
Newspapers, 475 U.S. at 777. Not only has the Board failed to offer legal sup-
port for its position, but its position is counterintuitive to the concept of free 
speech: The Board’s rule would authorize government officials to proactively 
restrict speech under the guise of a “true threat” any time they disagree with 
a message and force the speaker to file suit to prove there was no true threat. 

8 
 
Government bears the burden of proving the constitutionality of its 
actions.”); Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 777 (1986) 
(“In the context of governmental restriction of speech, it has long been 
established that the government cannot limit speech protected by the 
First Amendment without bearing the burden of showing that its re-
striction is justified.”). And it has not done so based on the evidence 
presented. Even viewed in the light most favorable to the Board, the 
evidence is in equipoise. While there was testimony that a jury might 
credit to the effect that Mr. Wagner said he was a disgruntled parent, 
there was also credible testimony that he did not make that statement 
at all. Indeed, the first time the Wagners learned of the Board’s con-
tention that he uttered a true threat was when the Board filed its op-
position to his request for a preliminary injunction. This state of affairs 
leads to the conclusion that the Board has failed to establish that Mr. 
Wagner made the statement the Board now contends was a true threat. 
See United States v. Hanson, 534 F.3d 1315, 1318 (10th Cir. 2008) (“Evi-
dence which does not preponderate or is in equipoise simply fails to 
meet the required burden of proof.”). 
Second, even assuming Mr. Wagner said on December 1 that he was 
a disgruntled parent, that is not a true threat. That is because the 
Board’s evidence fails to establish that the statement contained “a se-
rious expression of an intent to commit an act of unlawful violence.” 
Dillard, 795 F.3d at 1199 (emphasis added). As the Board concedes, 
Mr. Wagner illustrated his concerns by “describ[ing] what a ‘disgrun-
tled parent’ could do to the School Board . . . .” Doc. 14 at 5. But he 
never expressed a serious intent to commit violence. Even if he had 
been more direct and stated that he could commit violence against the 
Board, the statement’s context —Wagner’s law enforcement experi-
ence, his wife’s future Board position , and their advocacy for safety 
within and beyond the classroom, including active shooters in the com-
munity—merely highlighted the danger posed to the Board given the 
ease with which a disgruntled parent could access the Board. See 
Dillard, 795 F.3d at 1201 (quoting Planned Parenthood of Colum-
bia/Willamette, Inc. v. Am. Coal. of Life Activists, 290 F.3d 1058, 1078 (9th 
Cir. 2002)) (“In determining whether a communication conveys a true 
threat, ‘context is critical [ ] and history can give meaning to the mes-
sage.’”). 
This conclusion is further underscored by the Board’s reaction to 
the alleged true threat . As the Tenth Circuit has noted, “t he ‘reaction 
of the recipient of the alleged threat’ is relevant in determining whether 
a reasonable person would interpret a statement to be a threat.” United 

9 
 
States v. Wheeler , 776 F.3d 736, 743 (10th Cir. 2015) ( quoting United 
States v. Magleby, 241 F.3d 1306, 1311 (10th Cir. 2001)). Neither the 
Board nor other participants in the meeting exhibited any negative re-
action to or concern regarding Mr. Wagner’s comments. And when the 
Board was meeting a week later to consider the no -trespass order 
against Mr. Wagner, both he and his wife were present at the school 
without any apparent concern from the Board members who allegedly 
heard his statement . Indeed, the evidence suggests that the Board 
called their attorney after the December 1 meeting instead of law en-
forcement. Although there was evidence that some Board members 
made notes of the encounter at some point after the meeting —some 
allegedly later that night and others a day or more later —describing 
Mr. Wagner as disgruntled , none of the Board members ( nor anyone 
else present) expressed any contemporaneous concern as to Mr. Wag-
ner’s comments or took actions suggesting that they perceived Mr. 
Wagner’s comments as threatening. As a result, the evidence suggests 
that Mr. Wagner’s exclusion from the school grounds for one year was 
attributable to the political discourse and not a true threat. 
* * * 
The evidence confirms that Mr. Wagner is substantially likely to 
succeed on the merits of his First Amendment claim and the Board’s 
efforts to restrict his appearance as evidenced by the no-trespass letter 
are unconstitutional. The Board’s efforts to justify its conduct by in-
voking the true threat doctrine also fail on the facts and the law. 
C 
That Mr. Wagner has shown a likelihood of success on the merits 
means that he is entitled to a preliminary injunction. His First Amend-
ment injury is presumed to be irreparable. See Roman Cath. Diocese of 
Brooklyn, 592 U.S. at 19. And that injury outweighs any harm to the 
Board. See Ortega, 148 F.4th at 1154 n.13. Finally, it is in the public 
interest to restore Mr. Wagner his First Amendment rights , not to 
mention his right to access the school to help care for his children. See 
id. 
Granting Mr. Wagner an injunction would restore the status quo 
ante. Injunctions that disrupt the status quo are disfavored, and “[a]n 
injunction disrupts the status quo when it changes the last peaceable 
uncontested status existing between the parties before the dispute de-
veloped.” Beltronics, 562 F.3d at 1070–71 (quotation marks omitted) . 
Conversely, “[t]raditional equity practice held that the sole purpose of a 

10 
 
preliminary injunction was to preserve the status quo during the pen-
dency of litigation.” O Centro, 389 F.3d at 1012 (emphasis in original). 
The last peaceable status between the parties was before the Board 
issued the no-trespass letter on December 8, when Mr. Wagner could 
access the school like any other parent. An injunction preventing the 
Board from enforcing that restriction would restore the parties to that 
status. See id. at 1013 (“[C]ourts of equity have long issued preliminary 
injunctions requiring parties to restore the status quo ante.”) (emphasis 
in original). As a result, Mr. Wagner’s injunction is granted to the ex-
tent that the Board is precluded from enforcing the no-trespass letter. 
III 
For the foregoing reasons, Mr. Wagner’s motion for a preliminary 
injunction, Doc. 3, is GRANTED. Defendants are ORDERED not to 
enforce the no-trespass letter. 
It is so ordered. 
 
Date: June 18, 2026 s/ Toby Crouse 
 Toby Crouse 
United States District Judge 

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