The opinion of the court was delivered by: William C. Conner, Sr. D.J.
This case arises out of the suspension of an elementary-school student, B.C., for what his teacher and school principal viewed as a written threat delivered to the teacher during the school day. Plaintiffs William and Margaret Cuff are B.C.'s parents. Defendants are Valley Central School District (the "District"), the district in which B.C.'s school is located, and Barbara Knecht ("Knecht"), the principal of B.C.'s school; Knecht is sued in her individual capacity. Plaintiffs argue that the suspension and defendants' subsequent refusal to expunge the event from B.C.'s record violated B.C.'s First Amendment rights. Defendants now move to dismiss pursuant to FED. R. CIV. P. 12(b)(6). For the following reasons, the motion is granted.
The following facts are taken from the Complaint and are assumed to be true for purposes of this decision.
At the time relevant to this action, B.C. was ten years old and a fifth-grade student at Berea Elementary School. (Complt. ¶ 7.) On September 12, 2007, B.C.'s science teacher asked her students to fill in a picture of an astronaut with statements about their personalities; this was an in-class exercise. (Id. ¶ 8.) B.C. listed his birthday, his teacher's name, and his favorite sports. (Id. ¶ 9.) He also wrote "blow up the school with all the teachers in it." (Id.) B.C. then turned the assignment in to his teacher without showing it to any of his classmates. (Id. ¶ 10.)
After reviewing B.C.'s writing, the teacher notified defendant Knecht. (Id. ¶ 11.) That same day, Knecht informed plaintiffs that, "as a result of his 'written violent threat against Berea Elementary School and its occupants,'" B.C. would be suspended from school for five days and would also serve one day of internal suspension. (Id. ¶ 12.) After B.C. served the suspension, plaintiffs requested, through counsel, that the Board of Education expunge this incident from B.C.'s record. (Id. ¶ 14.) The Board refused to do so, and this litigation followed. (Id.)
On a motion to dismiss pursuant to Rule 12(b)(6), a court must accept as true all of the well-pleaded facts and consider those facts in the light most favorable to the plaintiff. See Scheuer v. Rhodes, 416 U.S. 232, 236, (1974), overruled on other grounds, Davis v. Scherer, 468 U.S. 183, (1984); Nechis v. Oxford Health Plans, Inc., 421 F.3d 96, 100 (2d Cir. 2005). "The plaintiff's factual allegations must be enough to give the defendant fair notice of what the claim is and the grounds upon which it rests." Port Dock & Stone Corp. v. Oldcastle Northeast, Inc., 507 F.3d 117, 121 (2d Cir. 2007) (citing Bell Atl. Corp. v. Twombly, - U.S. -, 127 S.Ct. 1955, 1964-65 (2007)). Allegations that are so conclusory that they fail to give notice of the basic events and circumstances of which the plaintiff complains are insufficient as a matter of law. See Martin v. N.Y. State Dep't of Mental Hygiene, 588 F.2d 371, 372 (2d Cir. 1978). The Court may consider the facts alleged in the complaint as well as any document attached as an exhibit to the complaint or incorporated by reference. SeeFED. R. CIV. P. 10(c); Dangler v. N.Y. City Off Track Betting Corp., 193 F.3d 130, 138 (2d Cir. 1999); De Jesus v. Sears, Roebuck & Co., 87 F.3d 65, 69 (2d Cir. 1996).
II. Whether B.C.'s Writing is Protected Speech
It is well established that "students do not 'shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.'" Morse v. Frederick, - U.S. -, 127 S.Ct. 2618, 2622 (2007) (quoting Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506 (1969)). But it is also clear that students in public schools enjoy a more limited form of First Amendment protection than do adults in society at large. See Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 682 (1986) ("[T]he constitutional rights of students in public school are not automatically coextensive with the rights of adults in other settings."). The Second Circuit recently provided a succinct summary of the key principles in this area:
(1) schools have wide discretion to prohibit speech that is less than obscene -- to wit, vulgar, lewd, indecent or plainly offensive speech, Fraser, 478 U.S. at 683-85; Hazelwood, 484 U.S. at 272 n. 4;
(2) if the speech at issue is "school-sponsored," educators may censor student speech so long as the censorship is "reasonably related to legitimate pedagogical concerns," Hazelwood, 484 U.S. at 273; and
(3) for all other speech, meaning speech that is neither vulgar, lewd, indecent or plainly offensive under Fraser, nor school-sponsored under Hazelwood, the rule of Tinker applies. Schools may not regulate such student speech unless it would materially and substantially disrupt classwork and discipline in the school. See Tinker, 393 U.S. at 513.
Guiles ex rel. Guiles v. Marineau, 461 F.3d 320, 325 (2d Cir. 2006) (citing Fraser, 478 U.S. at 683-85; Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 272-73 & n.4 (1988); Tinker, 393 U.S. at 513). After the Second Circuit decided Guiles, the Supreme Court held, in Morse, that schools may prohibit student speech that appears to advocate the use of illegal drugs. Morse, 127 S.Ct. at 2621.
In cases involving threats by students, the Second Circuit has instructed district courts to apply the rule of Tinker, which the Supreme Court recently reaffirmed in Morse: "'student expression may not be suppressed unless school officials reasonably conclude that it will "materially and substantially disrupt the work and discipline of the school."'"*fn1 Wisniewski v. Bd. of Educ., 494 F.3d 34, 38 (2d Cir. 2007), cert. denied, 2008 ...