The opinion of the court was delivered by: Jed S. Rakoff, U.S.D.J.
Plaintiffs William and Margaret Cuff bring this § 1983 action on behalf of their son, "B.C.," to challenge disciplinary measures taken by school administrators after B.C., in connection with a class assignment, made a drawing perceived to be threatening and violent. Plaintiffs allege that by suspending B.C. and thereafter refusing to expunge his disciplinary record, defendants Valley Central School District and Barbara Knecht, the principal of B.C.'s elementary school, violated B.C.'s First Amendment right to free expression. By Opinion and Order dated May 5, 2008, my late colleague, the Honorable William C. Conner, U.S.D.J., to whom the case was then assigned, granted defendants' motion to dismiss the complaint for failure to state a claim. Cuff ex rel. B.C. v. Valley Cent. Sch. Dist. ("Cuff I"), 559 F. Supp. 2d 415 (S.D.N.Y. 2008). Plaintiffs appealed, and the Second Circuit vacated that ruling, holding that the facts alleged in the complaint did not compel the conclusion that B.C.'s speech was unprotected by the First Amendment. Cuff ex rel. B.C. v. Valley Cent. Sch. Dist. ("Cuff II"), 341 F. App'x 692 (2d Cir. 2009) (summary order). After remand, and upon Judge Conner's untimely demise, the case was transferred to the undersigned. Following completion of discovery, defendants moved for summary judgment. The Court received briefing and held oral argument on February 4, 2010. Having carefully considered the parties' submissions, the Court now grants defendants' motion and awards summary judgment in defendants' favor.
The pertinent facts, undisputed or, where disputed, taken most favorably to the plaintiffs, are as follow:
At the time of the incident resulting in his suspension, B.C. was ten years old and in the fifth grade at Berea Elementary School in Montgomery, New York. Pls' Reply to Defs' Rule 56.1 Statement ("Pls' 56.1") ¶¶ 13-14.*fn1 Prior to the incident in question, B.C. had been disciplined by teachers and school administrators on a number of occasions for misbehavior on the school bus, during recess, in the hallway, and in the cafeteria. Id. ¶¶ 17-18. In connection with a March 2007 incident in which B.C. was believed to have shoved another student and given his bus driver the "middle finger," Assistant Principal Janet Malley gave B.C. four days of lunch recess detention and advised Mr. and Mrs. Cuff that further misbehavior could result in suspension of B.C.'s bus privileges. Id. ¶¶ 20-21. In connection with these and other incidents, B.C. had also been sent to the principal's and assistant principal's offices on several occasions. Id. ¶¶ 84, 86.
Furthermore, prior to making the drawing from which this litigation arises, B.C. had drawn a picture that was perceived by school staff as disturbing. This drawing, made by B.C. in January 2006 in response to a third-grade class assignment, depicted a person shooting bullets at a group of four people. Above this drawing, B.C. wrote: "One day I shot someone 4 people each of them got fo[u]r blows they were dead. I wasted 20 bulits [sic] on them." Declaration of Adam I. Kleinberg dated 12/9/09 ("Kleinberg Decl.") Ex. J, at 2.
B.C.'s teacher reported this incident to the school psychologist, Delaine Charette, and school officials called B.C.'s parents about the drawing. Pls' 56.1 ¶¶ 26, 31. At his deposition in this lawsuit, B.C. testified that this drawing was intended to depict a paintball game and that he thought he probably explained this to Charette, although Charette denies that B.C. ever informed her that he was portraying a game of paintball. Id. ¶¶ 29-30; Kleinberg Decl. Ex. D (Deposition of B.C., 11/11/09), at 62-63. Mrs. Cuff testified at her deposition that B.C. had played paintball "since he was a little boy," and Mr. Cuff testified that the Cuffs had a paintball course on their property. Kleinberg Decl. Ex. E (Deposition of Margaret Cuff, 11/2/09), at 33; id. Ex. F (Deposition of William Cuff, 11/2/09), at 17-18.
The record also includes evidence of still other writings involving themes of violence and death. B.C.'s authorship of some of these writings is disputed (and therefore cannot play a part in the determination of this matter except as it informs the context of defendants' response to the drawing here in issue), but in other cases the authorship is conceded. Among the disputed writings is one that surfaced in the spring of 2007, while B.C. was in fourth grade, and which led to psychologist Charette's being notified by B.C.'s teacher that B.C. had written a disturbing story about squirrels. Pls' 56.1 ¶ 36. This story, which defendants assert but plaintiffs dispute was written by B.C., is believed by defendants to have been part of a classroom assignment in which students rotated from computer to computer to complete each others' stories. (While B.C. denies writing this story, he admits to receiving this general sort of assignment involving switching computers. Id. ¶¶ 36, 39.) The story reads as follows:
Once upon time there was a squirrel named Fatbastard B['s name] he was really fat and everyone thought he was simple minded he got all the squralles in the world to kill humans. Then a week later they killed everyone except me I fought back and I killed a lot of squrels in the world but they know I'm stalking them then when the time is ready I'm gona kill al of them at once because I am killing each squle slow really slow. Soon there was one squirrel left, B['s name]!
Kleinberg Decl. Ex. J, at 3.
Among the writings that B.C. does not dispute were written by him was a story he wrote as part of a fourth grade classroom assignment that reads as follows:
All of a sudden a big wind blew my brother to Japan and I never saw him again. Then the big wind destroyed every school in America. Than every body ran for there life and than all adults died and all the kids were alive. Then all the kids died.
Kleinberg Decl. Ex. J, at 4. This story was also reported to Charette, although she did not speak with B.C. about it, and B.C. was not punished for it, although B.C. did attend a peer discussion group at a student assistance counselor's behest. M. Cuff Dep. at 39-40;
W. Cuff Dep. at 53-55; Pls' 56.1 ¶¶ 40-42.
The incident that launched this litigation ...