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Everett W. Cox Iii and Nan Ping Peng v. Warwick Valley Central School District

August 17, 2011


The opinion of the court was delivered by: Dennis Jacobs, Chief Judge:


Cox v. Warwick Valley Cent. School Dist.

Argued: May 31, 2011

25 Before: DENNIS JACOBS, Chief Judge, 26 DEBRA ANN LIVINGSTON, Circuit Judge, 27 JED S. RAKOFF, District Judge.*fn2

1 Plaintiffs appeal from a judgment of the United States 2 District Court for the Southern District of New York (Gwin, 3 J., sitting by designation) granting summary judgment in 4 favor of a school district and principal on § 1983 claims 5 arising out of the treatment of their son, a middle school 6 student. Plaintiffs appeal the dismissal of a First 7 Amendment retaliation claim brought on behalf of their son, 8 and the dismissal of their own Fourteenth Amendment 9 substantive due process claim. Affirmed.

24 Everett Cox III and Nan Ping Peng, parents of a middle 25 school student, appeal from a judgment of the United States 26 District Court for the Southern District of New York (Gwin, 27 J., sitting by designation) dismissing on summary judgment 28 their § 1983 complaint against Warwick Valley Central School 29 District and Principal John Kolesar. Cox and Peng appeal 2 1 the dismissal of: [1] a First Amendment claim brought on 2 behalf of their son, alleging that Kolesar retaliated 3 against the boy for his school essay by temporarily placing 4 him in the school's suspension room and by reporting the 5 parents to the state's Department of Child and Family 6 Services for suspected abuse or neglect; and [2] the 7 parents' Fourteenth Amendment substantive due process claim, 8 alleging that the same report to Child and Family Services 9 infringed their right to custody of their son. We affirm.


12 John Kolesar is the Principal of Warwick Valley Middle 13 School ("Warwick"), which was attended by Raphael Cox, the 14 plaintiffs' son. During his time at Warwick, Raphael 15 exhibited a pattern of misbehavior: He threw objects at 16 classmates, interrupted class instruction, fought with other 17 students, and brought contraband to school (fireworks, 18 lighters, and alcohol). Kolesar suspended Raphael on 19 multiple occasions for these infractions. At a meeting with 20 Kolesar in late 2006, Raphael and his parents signed a 21 "behavioral contract" that placed Raphael on probation and 3 1 specified that further misconduct would result in more 2 severe discipline, possibly including expulsion. 3 Raphael continued to misbehave, fighting with other 4 students and vandalizing school property. He also continued 5 to display violent tendencies and ideations: He made an 6 inappropriate comment in class about flying a plane into a 7 building, he was overheard by a teacher talking about 8 blowing up things, and he brought to school what 9 administrators perceived to be a makeshift metal weapon. As 10 a result, Kolesar requested another meeting with the 11 parents.

12 In February 2007, the parents met with several Warwick 13 school administrators, including Kolesar and the school 14 psychologist. The administrators requested that Raphael 15 undergo a psychiatric evaluation. The parents resisted, but 16 agreed to have Raphael seen by a psychologist. After 17 Raphael met with the psychologist, the parents gave Kolesar 18 a copy of the evaluation.

19 In March 2007, Raphael's English teacher assigned 20 Raphael to write an essay on what he would do if he had only 21 24 hours to live.*fn3 Raphael's essay, titled "Racing Time," 1 described getting drunk, smoking, doing drugs, and breaking 2 the law. It ended with Raphael taking cyanide and shooting 3 himself in the head in front of his friends at the end of 4 the 24 hours. Raphael submitted the essay to his teacher, 5 but never presented it to his class or shared it with his 6 fellow students.

7 Concerned about its casual description of illegal 8 activity, violence, and suicide, Raphael's teacher showed 9 Racing Time to Kolesar. Kolesar immediately took Raphael 10 out of class to discuss it. Raphael explained that the 11 essay was fictional and that he did not intend harm to 12 himself or others. Kolesar then sequestered Raphael in the 13 in-school suspension room ("ISS Room") for the rest of the 14 afternoon while he considered whether Raphael posed an 15 imminent threat to himself or others, and whether he should 16 be disciplined for his essay. Kolesar concluded that there 17 was no immediate threat and that discipline was not 18 appropriate. Raphael was sent home at the end of the day. 19 Before school the next morning, Kolesar met the school 1 emotional health and Kolesar's perception that the parents 2 were insufficiently concerned about Raphael's misbehavior 3 and emotional well-being. After the meeting, Kolesar 4 reported to the district Superintendent, who reminded 5 Kolesar of his legal obligation to report suspected abuse or 6 neglect to the state department of Child and Family Services 7 ("CFS").

8 Kolesar then called CFS and reported his concern that 9 the parents were neglecting Raphael. The CFS narrative on 10 Kolesar's call stated:

11 Narrative: 13 yr old Rafael has been repeatedly 12 writing in his journal violent homicidal and 13 suicidal imagery while in school. He has also 14 participated in acts of vandalism and brought 15 dangerous objects into school such as fireworks 16 and pieces of metal. Rafael recently expressed 17 suicidal thoughts and had a very descriptive plan 18 for doing it in that he would take his favorite 19 weapon, a ruger place it in his mouth with a 20 cyanide pill and shoot himself and everyone would 21 party for a week. The school recommended to the 22 parents that they seek a psychiatric evaluation 23 for their son but they have refused to do so. The 24 parents are minimizing the child's thoughts and 25 behaviors and state that this is just fiction and 26 all a misunderstanding. It is believed the child 27 is a danger to himself and other[s] at this point. 28 The parents are failing to provide a minimal 29 degree of care to their son.

30 That afternoon, a CFS worker told the parents to meet 31 her at Warwick. When they arrived, the CFS worker insisted 6 1 that they take Raphael to the hospital immediately to 2 undergo a psychiatric evaluation, and warned that otherwise 3 they could lose ...

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