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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 custody. The parents complied, and Raphael 4 was evaluated that evening.

5 After this incident, the parents home-schooled Raphael 6 for the rest of the year. The CFS investigation eventually 7 concluded Kolesar's concern was "unfounded." No further 8 state action was taken.

9 The parents filed a § 1983 suit against Kolesar and 10 Warwick in federal district court, alleging that Kolesar 11 violated Raphael's First Amendment speech rights by 12 disciplining him for his essay and that Kolesar violated the 13 parents' Fourteenth Amendment substantive due process right 14 to custody over Raphael by making an exaggerated or false 15 report to CFS. The district court granted summary judgment 16 to Kolesar and Warwick on both claims. The parents now 17 appeal.


20 We review de novo a district court's grant of summary 21 judgment. Costello v. City of Burlington, 632 F.3d 41, 45 22 (2d Cir. 2011). When considering a motion for summary 7 1 judgment, we view the facts in the light most favorable to 2 the non-moving party and draw all reasonable inferences in 3 that party's favor. Id. Summary judgment is appropriate 4 when the evidence is "so one-sided that one party must 5 prevail as a matter of law." Kulak v. City of New York, 88 6 F.3d 63, 70 (2d Cir. 1996) (internal quotation marks 7 omitted).

8 To state a § 1983 claim, a plaintiff must establish 9 that the defendant deprived him of a federal or 10 constitutional right while acting under the color of state 11 law. Haywood v. Drown, 129 S. Ct. 2108, 2111 (2009). 12 Kolesar concedes he was acting under the color of state law 13 when he placed Raphael in the ISS room and reported the 14 parents to CFS. The sole question on appeal is whether 15 these actions deprived Raphael or his parents of any federal 16 or constitutional right. The parents argue that Kolesar's 17 actions constituted retaliation against Raphael for his 18 Racing Time essay in violation of his First Amendment 19 rights, and that Kolesar's report to CFS violated their 20 Fourteenth Amendment substantive due process right to 21 custody of Raphael. We conclude that Kolesar did not 22 violate the rights of the child or of the parents.


2 To state a First Amendment retaliation claim, a 3 plaintiff must establish that: (1) his speech or conduct 4 was protected by the First Amendment; (2) the defendant took 5 an adverse action against him; and (3) there was a causal 6 connection between this adverse action and the protected 7 speech. Scott v. Coughlin, 344 F.3d 282, 287 (2d Cir. 8 2003); see also Kuck v. Danaher, 600 F.3d 159, 168 (2d Cir. 9 2010).

10 The parents argue that Raphael's Racing Time essay was 11 protected speech and that placing Raphael in the ISS Room 12 and calling CFS were adverse actions taken because of the 13 essay. Kolesar concedes that Raphael's Racing Time essay 14 was a substantial cause of his decision to put Raphael in 15 the ISS Room for an afternoon and report the parents to CFS; 16 Kolesar disputes that these actions constituted adverse 17 actions, and that Raphael's Racing Time essay was speech 18 protected by the First Amendment.

19 The district court concluded that there was "at least 20 material factual dispute as to whether Kolesar took an 21 adverse action against Raphael as a result of his speech," 22 but that summary judgment for Kolesar was appropriate on the 9 1 First Amendment claim because Raphael had no protected 2 speech right in his Racing Time essay as a matter of law. 3 Cox v. Warwick Valley Cent. School Dist., No. 7:07-CV-10682, 4 2010 WL 6501655, at *7-8 (S.D.N.Y. Aug. 16, 2010). We 5 affirm for different reasons.

7 A

8 "[S]tudents do not shed their constitutional rights to 9 freedom of speech or expression at the schoolhouse gate"; 10 however, "the constitutional rights of students in public 11 school are not automatically coextensive with the rights of 12 adults in other settings." Morse v. Frederick, 551 U.S. 13 393, 396-97 (2007) (internal quotation marks omitted). As a 14 general rule, student speech in school is protected under 15 the First Amendment unless it would "materially and 16 substantially interfere with the requirements of appropriate 17 discipline in the operation of the school." Tinker v. Des 18 Moines Indep. Cmty. School Dist., 393 U.S. 503, 509 (1969) 19 (internal quotation marks omitted).

20 There are exceptions. When students speak pursuant to 21 the school curriculum such that their speech may be 22 perceived as being endorsed or promoted by the school--e.g., 10 1 school newspapers, theatrical productions--school 2 administrators may exercise editorial control over that 3 speech "so long as their actions are reasonably related to 4 legitimate pedagogical concerns." Hazelwood School Dist. v. 5 Kuhlmeier, 484 U.S. 260, 271-73 (1988). Moreover, school 6 administrators may, as part of their responsibility to 7 "teach[] students the boundaries of socially appropriate 8 behavior," punish student speech that is vulgar, lewd, or 9 threatening, at least where that speech occurs publicly at 10 school or a school-related event. Bethel School Dist. No. 11 403 v. Fraser, 478 U.S. 675, 681 (1986); see also Morse, 551 12 U.S. at 404-06.

13 However, we need not reach the question whether 14 Raphael's speech was protected by the First Amendment 15 because we conclude that none of Kolesar's actions in 16 response to Raphael's speech constituted retaliation.

17 B

18 First Amendment student speech cases ordinarily involve 19 explicit censorship or avowedly disciplinary action by 20 school administrators. See e.g., Morse, 551 U.S. at 396 21 (student suspended for displaying drug-promoting banner at 22 school activity); Fraser, 478 U.S. at 678 (student suspended 11 1 for lewd speech at school event); Hazelwood, 484 U.S. at 2 263-4 (articles banned from student newspaper); Tinker, 393 3 U.S. at 504 (school ban on black armbands); Doninger, 642 4 F.3d at 340-42 (student prohibited from running for student 5 council for derogatory blog post about school event); 6 Wisniewski v. Bd. of Educ. of the Weedsport Cent. School 7 Dist., 494 F.3d 34, 35-36 (2d Cir. 2007) (student suspended 8 for violent drawing distributed electronically to other 9 students). There is therefore no clear definition of 10 "adverse action" in the school context.

11 Outside the school context, an adverse action in a 12 First Amendment retaliation case is "conduct that would 13 deter a similarly situated individual of ordinary firmness 14 from exercising his or her constitutional rights." Zelnick 15 v. Fashion Inst. of Tech., 464 F.3d 217, 225 (2d Cir. 2006) 16 (internal quotation marks omitted). Under this "objective" 17 standard, an adverse action must be more than "de minimis" 18 to support a First Amendment retaliation claim. Id. at 226. 19 Recognizing that this test is highly context-specific, id., 20 we apply it "in light of the special characteristics of the 21 school environment." Tinker, 393 U.S. at 506.

1 Teachers and school administrators have multiple 2 responsibilities: teaching, maintaining order, and 3 protecting troubled and neglected students. Cf. N.Y. Soc. 4 Serv. Law § 413(a) (making teachers and school 5 administrators "mandatory reporters" legally obligated to 6 report suspected child abuse and neglect to CFS). They are 7 part disciplinarian, and part protector. Id.

8 The state's interest in encouraging teachers to protect 9 students is so powerful that New York confers immunity from 10 civil and criminal liability whenever they report suspected 11 abuse in good faith, and it exposes them to criminal and 12 civil liability whenever they willfully fail to do so. See 13 id. § 419 (providing immunity from criminal and civil 14 liability when mandatory reporters report suspected child 15 abuse in good faith and creating a presumption that all 16 reports of suspected abuse are made in good faith); id. 17 § 420 (subjecting mandatory reporters to criminal and civil 18 liability for willful and knowing failure to report 19 suspected abuse and neglect); Sclar v. Fayetteville-Manlius 20 School Dist., 753 N.Y.S.2d 636, 637 (App. Div., 4th Dep't, 21 2002) (recognizing immunity for good faith compliance with 13 1 the mandatory reporting requirements and the need for 2 plaintiffs to allege actual malice in making the reports). 3 In their various roles, school administrators must 4 distinguish empty boasts from serious threats, rough-housing 5 from bullying, and an active imagination from a dangerous 6 impulse. Making such distinctions often requires an 7 investigation, and the investigation may result in 8 discipline, but the investigation itself is not 9 disciplinary--it is precautionary and protective. This is 10 so even when a student is separated, interviewed, or 11 temporarily sequestered to defuse a potentially volatile or 12 dangerous situation. See Kolesar Dep. at 45:6-9 ("Students 13 that could potentially receive out-of-school suspension in 14 our Code of Conduct are to be supervised in an in-school 15 suspension room until a decision is made."). As in this 16 case, a school administrator must be able to react to 17 ambiguous student speech by temporarily removing the student 18 from potential danger (to himself and others) until it can 19 be determined whether the speech represents a real threat to 20 school safety and student learning. Such acts deserve 21 "unusual deference" from the judiciary. See Kia P. v. 22 McIntyre, 235 F.3d 749, 758-59 (2d Cir. 2000) (recognizing 14 1 that mandatory reporters face the dilemma that aggressive 2 action to protect children can expose them to civil 3 liability for due process violations while inadequate action 4 to protect children can expose them to § 1983 liability and 5 concluding that courts must give mandatory reporters 6 "unusual deference" in this context). Without more, the 7 temporary removal of a student from regular school 8 activities in response to speech exhibiting violent, 9 disruptive, lewd, or otherwise harmful ideations is not an 10 adverse action for purposes of the First Amendment absent a 11 clear showing of intent to chill speech or punish it. 12 Although a student and his parents might perceive such 13 removal as "disciplinary" or "retaliatory," its objective 14 purpose is protective. It affords the administrator time to 15 make an inquiry, to figure out if there is danger, and to 16 determine the proper response: discipline, a benign 17 intervention, or something else. A school cannot function 18 without affording teachers and administrator fair latitude 19 to make these inquiries.

20 Under this standard, Kolesar's decision to remove 21 Raphael from class for an afternoon cannot support a First 22 Amendment retaliation claim, regardless of how Raphael or 15 1 his parents may have perceived Kolesar's actions. Kolesar 2 took a precautionary measure to ensure that ambiguous 3 student expression did not portend disruption or violence. 4 We owe this decision "unusual deference," and absent a clear 5 showing of retaliatory or punitive intent, it cannot be 6 considered "adverse" or "retaliatory." 7 For the same reason, Kolesar's decision to report 8 Raphael's parents to CFS, without any evidence of 9 retaliatory or punitive intent as to the child, is not an 10 adverse action against Raphael as a matter of law. By its 11 nature, the call was a protective-- not disciplinary--act, 12 and was therefore not an "adverse action" for purposes of 13 Raphael's First Amendment retaliation claim. Any other 14 conclusion would place school administrators in an 15 impossible bind. Abuse, neglect, and impairment are often 16 disclosed or suggested by a child's words or acts, and 17 school administrators have a legal obligation to report 18 suspected abuse and neglect to CFS. If such reports-- 19 inevitably based in part on the student's speech or 20 conduct--could result in § 1983 liability, administrators 21 would be exposed to civil liability no matter what they did. 22 Cf. id. at 758-59 (recognizing that mandatory reporters are 16 1 obliged to choose "between difficult alternatives in the 2 context of suspected child abuse. If they err in 3 interrupting parental custody, they may be accused of 4 infringing the parents' constitutional rights. If they err 5 in [not doing so], they risk injury to the child and may be 6 accused of infringing the child's rights."). Their only 7 choice would be whether to suffer 42 U.S.C. § 1983 liability 8 for reporting or N.Y. Soc. Serv. Law § 420 liability for not 9 doing so. Kolesar had a legal obligation to report 10 suspected child neglect to CFS, an obligation arising 11 precisely from his responsibility to keep his students safe. 12 Allowing such reports to generally constitute retaliation 13 against the children would seriously undermine school 14 administrators' ability to protect the children entrusted to 15 them.

16 Because neither of Kolesar's actions in response to 17 Raphael's essay was adverse, we affirm the district court's 18 grant of summary judgment to Kolesar on the First Amendment 19 retaliation claim. We need not reach the question whether 20 Kolesar would be entitled to qualified immunity.


2 The parents allege that Kolesar's call to CFS violated 3 their substantive due process rights under the Fourteenth 4 amendment by interfering with their custody of Raphael. 5 "Choices about marriage, family life, and the 6 upbringing of children" are "of basic importance in our 7 society." M.L.B. v. S.L.J., 519 U.S. 102, 116 (1996) 8 (internal quotation marks omitted). The interest of natural 9 parents "in the care, custody, and management of their 10 child" is a "fundamental liberty interest protected by the 11 Fourteenth Amendment." Santosky v. Kramer, 455 U.S. 745, 12 753 (1982). "[F]amily members have, in general terms, a 13 substantive right under the Due Process Clause to remain 14 together without the coercive interference of the awesome 15 power of the state." Anthony v. City of New York, 339 F.3d 16 129, 142 (2d. Cir. 2003) (internal quotation marks omitted). 17 This right is amplified by the more general substantive due 18 process right of all people to be free of government action 19 that is "arbitrary, conscience-shocking, or oppressive in a 20 constitutional sense." Kaluczky v. City of White Plains, 57 21 F.3d 202, 211 (2d Cir. 1995).

1 To state a claim for a violation of this substantive 2 due process right of custody, a plaintiff must demonstrate 3 that the state action depriving him of custody was "so 4 shocking, arbitrary, and egregious that the Due Process 5 Clause would not countenance it even were it accompanied by 6 full procedural protection." Tenenbaum v. Williams, 193 7 F.3d 581, 600 (2d Cir. 1999). It is not enough that the 8 government act be "incorrect or ill-advised"; it must be 9 "conscience-shocking." Kaluczky, 57 F.3d at 211. "Only the 10 most egregious official conduct can be said to be arbitrary 11 in the constitutional sense and therefore unconstitutional." 12 Tenenbaum, 193 F.3d at 600 (internal quotation marks 13 omitted).

14 Absent truly extraordinary circumstances, a brief 15 deprivation of custody is insufficient to state a 16 substantive due process custody claim. Nicholson v. 17 Scoppetta, 344 F.3d 154, 172 (2d Cir. 2003); see also 18 Anthony, 339 F.3d at 143; Tenenbaum, 193 F.3d at 601. Such 19 temporary deprivations do "not result in the parents' 20 wholesale relinquishment of their right to rear their 21 children," so they are not constitutionally outrageous or 19 1 conscience-shocking. Nicholson, 344 F.3d at 172 (brackets 2 and internal quotation marks in original omitted). 3 Kolesar's call to CFS and the resulting demands and 4 threats from CFS to the parents may have been stressful or 5 even infuriating, but they did not result in even a 6 temporary loss of custody, let alone a "wholesale 7 relinquishment of rights." The parents maintained custody 8 over Raphael during his entire (concededly coerced) 9 psychiatric evaluation. Where there is no actual loss of 10 custody, no substantive due process claim can lie. 11 Nicholson, 344 F.3d at 172; Anthony, 339 F.3d at 143; 12 Tenenbaum, 193 F.3d at 601.

13 Moreover, no reasonable jury could conclude that 14 Kolesar's report to CFS, or the resulting requirement that 15 Raphael be psychiatrically evaluated, was even remotely 16 "outrageous" or "conscience-shocking." Common negligence is 17 categorically insufficient to shock the conscience, so the 18 parents must raise an inference that Kolesar acted 19 maliciously before his call to CFS can even begin to support 20 a violation of substantive due process. Cnty. of Sacramento 21 v. Lewis, 523 U.S. 833, 848-49 (1998) ("We have accordingly 22 rejected the lowest common denominator of customary tort 20 1 liability as any mark of sufficiently shocking conduct, and 2 have held that the Constitution does not guarantee due care 3 on the part of state officials; liability for negligently 4 inflicted harm is categorically beneath the threshold of 5 constitutional due process."). The parents allege that 6 Kolesar's report to CFS was exaggerated and misleading, but 7 even in the light most favorable to them, nothing in the 8 report was materially false: Raphael wrote violent journal 9 entries, misbehaved in school, and expressed suicidal 10 thoughts, albeit in a hypothetical, creative, imagined way.

11 Furthermore, Kolesar's actions were expressly aimed at 12 protecting Raphael, and Kolesar had a legal obligation to 13 report suspected neglect. There is no evidence that Kolesar 14 acted with the type of malice needed to shock the 15 conscience. 16 We therefore affirm the district court's grant of 17 summary judgment in favor of Kolesar and Warwick on this 18 claim. We need not reach the question of qualified 19 immunity.


For the reasons stated above, the judgment of the district court is AFFIRMED.

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