Appeal from a grant of summary judgment in the United States District Court for the Southern District of New York (Jed S. Rakoff, Judge) dismissing a complaint that alleged that an elementary school student's First Amendment rights were violated when he was suspended for six days after expressing a wish for violence to the school and teachers.
The opinion of the court was delivered by: Winter, Circuit Judge:
Cuff v. Valley Central School District, et al
Before: WINTER, POOLER and HALL, Circuit Judges.
Judge Pooler dissents in a separate opinion.
William and Margaret Cuff appeal from Judge Rakoff's grant 14 of summary judgment dismissing their complaint brought on 15 behalf of their minor son B.C. Cuff ex rel. B.C. v. Valley 16 Cent. Sch. Dist., 714 F. Supp. 2d 462 (S.D.N.Y. 2010). Their 17 appeal concerns the contours of B.C.'s First Amendment rights 18 and the regulation of his speech in school. We affirm.
20 Because this is an appeal from a grant of summary 21 judgment, we view the facts in the light most favorable to 22 appellants and resolve all disputes of fact in their favor. 23 Mathirampuzha v. Potter, 548 F.3d 70, 72-73 (2d Cir. 2008).
24 Briefly stated, this litigation arises out of a crayon 25 drawing by B.C. in response to an in-class assignment. The 26 drawing depicted an astronaut and expressed a desire to "[b]low 27 up the school with the teachers in it." At the time, September 28 2007, B.C. was ten years old and a fifth-grade student at Berea 29 Elementary School in Montgomery, New York.
1 In January 2006, prior to creating the astronaut drawing, 2 B.C. had drawn another picture that was perceived by the school 3 staff as disturbing. The drawing depicted a person firing a 4 gun, and above it, B.C. had written: "One day I shot 4 people 5 each of them got fo[ur] blows they were dead. I wasted 20 6 bulits [sic] on them." B.C.'s teacher alerted the school 7 psychologist, Delaine Charette, to the drawing, and school 8 officials contacted B.C.'s parents. B.C. said that he was 9 portraying a game of paintball in the drawing.
10 In the spring of 2007, as part of a fourth grade in-class 11 assignment, B.C. wrote a story about "a big wind [that] 12 destroyed every school in America. . . . [And] every body ran 13 for there [sic] life and than [sic] all adults died and all the 14 kids were alive. Than [sic] all the kids died." This story 15 was also reported to Charette, although she did not speak with 16 B.C. about it.
17 Prior to September 2007, B.C. had also been disciplined by 18 teachers and school administrators for misbehavior in and 19 around school. B.C. testified that he had been to Principal 20 Knecht's office and Assistant Principal Malley's office on a 21 few occasions prior to the astronaut drawing incident. Knecht 22 and Malley also confirmed B.C.'s involvement in numerous 23 altercations during recess, pushing and shoving in the 24 hallways, and rough play at school.
1 The precise circumstances involving the creation of the 2 astronaut drawing are as follows. On September 12, 2007, 3 B.C.'s science teacher, Tara DeBold, asked her students to fill 4 in a picture of an astronaut and write various things in 5 various sections of the astronaut. The students were 6 instructed to write a "wish" in the left leg of the astronaut. 7 B.C. testified that DeBold told the students that "you can 8 write, like, anything you want . . . you can involve a missile 9 . . . [y]ou can write about missiles." In that spot, B.C. 10 wrote his "wish": "Blow up the school with the teachers in 11 it."
12 At this time, B.C. was seated at a block of six desks 13 pushed together. B.C. told his nearby classmates what he was 14 going to write in the picture, and the students laughed in 15 response. C.P., a female student who was sitting in a 16 neighboring group of desks, heard from another student about 17 what B.C. drew, and went to look at B.C.'s picture. B.C. said 18 that C.P. laughed at it. C.P. then approached DeBold -- who 19 perceived C.P. to be "very worried" -- and told the teacher 20 about the drawing. DeBold then approached B.C. and asked him 21 if he meant what he had written. B.C. looked at DeBold with a 22 blank and serious face. DeBold then sent B.C. to Principal 23 Knecht's office.
24 Principal Knecht and Assistant Principal Malley asked B.C. 25 if he meant what he had written in the drawing. B.C. testified 1 that he told them that he did not mean what he had written.
2 Knecht then called Superintendent Richard Hooley for advice 3 regarding B.C.'s punishment. Knecht summarized for Hooley the 4 events that had occurred, B.C.'s history of misbehavior in 5 school, and her concerns that B.C. had frightened C.P. Hooley 6 stated that suspension was appropriate.
7 At the end of the meeting, Knecht and Malley asked B.C. to 8 sign a document consisting of Knecht's notes transcribed during 9 the meeting. Although B.C. testified that he could not read 10 the script handwriting, he signed the document. Later that 11 afternoon, Knecht met with B.C. and his parents. During the 12 meeting, B.C. stated that he did not mean what he had written 13 in the astronaut drawing and that he was only kidding.
14 Following the meeting with B.C.'s parents, Knecht 15 confirmed in writing that B.C. was to be suspended for five 16 days out of school and one day in school based on the "wish."
17 Appellants appealed the suspension to the District's Board 18 of Education. The Board upheld the suspension, and the Cuffs 19 did not appeal to the New York State Commissioner of Education. 20 Appellants then brought the present Section 1983 action on 21 behalf of B.C., alleging that by suspending B.C., the District 22 and Knecht violated B.C.'s First Amendment right to freedom of 23 expression. Appellants also alleged that appellees imposed an 24 excessive punishment in disciplining B.C. as a result of the 25 astronaut drawing.
1 The late Judge Conner, to whom this case was first 2 assigned, granted appellees' motion to dismiss for failure to 3 state a claim. Cuff ex rel. B.C. v. Valley Cent. Sch. Dist. 4 ("Cuff I"), 559 F. Supp. 2d 415, 424 (S.D.N.Y. 2008).
5 Appellants appealed, and we vacated and remanded, holding that, 6 without some context, the facts alleged in the complaint did 7 not dictate a Fed. R. Civ. P. 12(b)(6) dismissal. Cuff ex rel. 8 B.C. v. Valley Cent. Sch. Dist. ("Cuff II"), 341 F. App'x 692, 9 693 (2d Cir. 2009.) We noted, in particular, that the facts, 10 as alleged, indicated that only the teacher saw B.C.'s "wish" 11 and that B.C. had no disciplinary history. Id. On remand, the 12 parties completed discovery, and appellees moved for summary 13 judgment. Judge Rakoff, to whom the case was reassigned 14 following the death of Judge Conner, granted the motion. Cuff 15 ex rel. B.C. v. Valley Cent. Sch. Dist. ("Cuff III"), 714 F. 16 Supp. 2d 462, 463 (S.D.N.Y. 2010). We affirm.
"We review a district court's grant of summary judgment de 19 novo." See Beyer v. Cnty. of Nassau, 524 F.3d 160, 163 (2d 20 Cir. 2008).
22 Public school students are protected by the First 23 Amendment and do not "shed their constitutional rights to 24 freedom of speech or expression at the schoolhouse gate."
25 Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506 1 (1969). Nonetheless, "the First Amendment rights of students 2 in the public schools are not automatically coextensive with 3 the rights of adults in other settings, and must be applied in 4 light of the special characteristics of the school 5 environment." Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 6 266 (1988) (internal quotation marks and citation omitted).
7 Student speech may be curtailed if the speech will "materially 8 and substantially interfere with the requirements of 9 appropriate discipline in the operation of the school."
10 Tinker, 393 U.S. at 509 (internal quotation marks omitted). 11 School authorities may suppress student speech to prevent 12 material disruption in the schools, when they have more than an 13 "undifferentiated fear or apprehension of disturbance" and can 14 show that their action "was caused by something more than a 15 mere desire to avoid the discomfort and unpleasantness that 16 always accompany an unpopular viewpoint." Id. at 508, 509. 17 In applying Tinker, we have held that "the relevant 18 inquiry is whether 'the record . . . demonstrate[s] . . 19 facts which might reasonably have led school authorities to 20 forecast substantial disruption of or material interference 21 with school activities.'" DeFabio v. E. Hampton Union Free 22 Sch. Dist., 623 F.3d 71, 78 (2d Cir. 2010) ...