On March 22, 2012, the United States Court of Appeals for the Second Circuit (whose rulings form binding precedent for the Federal District Court here in Connecticut) issued its decision in Cuff v. Valley Central School District, Docket No. 10-2282-cv. The decision stands as mute testimony to what can happen when school administrators react, rather than respond, and judges go after a gnat with a sledgehammer without regard to what else is smashed beneath their blow. At issue are the contours of a fifth-grade student’s First Amendment rights, and the regulation of his in-school speech. The decision and its stated rationale erode further those rights and need to be appreciated and understood by parents of children attending public school here in Connecticut.
The student involved (“B.C.”) was a ten year old fifth grader at Berea Elementary School in Montgomery, New York. On September 12, 2007, B.C.’s science teacher asked her students to fill in a picture of an astronaut and write various things in the body and appendages of the astronaut. The class was instructed to write a “wish” in the left leg of the astronaut. The teacher told the class that “you can write, like, anything you want . . . you can involve a missile . . . [y]ou can write about missiles.” Thereafter, B.C. wrote on the astronaut as his “wish”: “Blow up the school with the teachers in it.”
B.C. told his classmates seated nearby what he was going to write in the picture and the other students laughed in response. A neighboring female student walked over to look at B.C.’s picture and reportedly also laughed at it. She then approached the teacher—who perceived the female student to be “very worried”—and told the teacher about the drawing. The teacher asked B.C. if he meant what he had written, to which B.C. reportedly responded “with a blank and serious face.” The teacher then sent B.C. to the principal’s office.
B.C. told the principal that he did not mean what he had written. The principal called the school Superintendent for advice regarding B.C.’s punishment and the Superintendent stated that suspension was appropriate. Incredibly, at the end of the meeting, the principal asked B.C. to sign a document consisting of the principal’s notes as taken during the meeting. B.C. signed the document notwithstanding the fact that he could not read the principal’s handwriting (the opinion is silent on whether B.C. signed in crayon). Later that day, the principal met with B.C. and his parents where B.C. again stated that he did not mean what he had written and that he was only kidding.
Following that meeting, the principal imposed a five-day out-of-school suspension, and a one-day in-school suspension based upon the “wish.” Upon appeal, the District Board of Education upheld the suspension, and B.C.’s parents filed a federal lawsuit claiming that his suspension violated his First Amendment right to freedom of expression, and constituted an excessive punishment. The federal District Court granted summary judgment in favor of the school board from which B.C.’s parents appealed to the Court of Appeals.
The Court’s Analysis and Decision
The Second Circuit began its discussion with a review of the Tinker, Fraser, Hazelwood trilogy of Supreme Court cases, as informed by a recent decision of its own (Doninger) before restating the operative, objective test governing constitutional protection of B.C.’s “wish”: “whether school officials might reasonably portend disruption from the student expression at issue.” (Parenthetically, it should be noted that Tinker required the reasonable “forecast of substantial disruption of or material interference with school activities”—those qualifiers have meaning). The test does not require school administrators to prove that actual disruption occurred or that substantial disruption was inevitable. The relevant inquiry goes to the reasonableness of the administration’s response, as opposed to the intent of the student.
In upholding the suspension and thereby finding that it was reasonably foreseeable that the astronaut drawing could create a substantial disruption at the school, the Second Circuit relied upon the facts that (a) B.C. had prior disciplinary issues, (b) his prior drawings and writings also “embraced violence,” (c) the drawing was seen by other students in the class, and (d) the reporting female student was perceived as “very worried.” The first two factors seem to impermissibly shift the analysis from the “speech” to the “speaker,” where B.C.’s prior disciplinary issues were hardly atypical of a 10 year-old boy. (Query whether B.C.’s “wish” would have been protected First Amendment expression if it had been drawn by a student other than B.C., i.e., one with an unblemished disciplinary record?). The court also deemed irrelevant whether the “wish” was intended as a joke, and the fact that B.C. lacked the capacity to carry out the threat. Post Columbine, courts have displayed extraordinary deference to school officials where there is any portent of violence contained within student speech or expression.
The court concluded its opinion with an extended syllogism that has to be read to be appreciated. Suffice it to say that the Court of Appeals begins with B.C.’s “wish” and constructs a chain of reasonably foreseeable consequences ending with a decline in parental confidence in school safety, the need to hire security personnel, and even a decline in enrollment. As a result, the court held B.C.’s suspension to be constitutional. This would appear to be a “zero tolerance” case that was decided to B.C.’s detriment solely because nobody wanted to be held retroactively responsible for whatever B.C. might do in the future.
The Second Circuit decision was decided by a three-judge panel, on a 2-1 basis. One judge wrote a lengthy dissent. Therein he stated his belief that a jury could conclude that B.C.’s “stab at humor” could barely cause a stir at school, much less a substantial disruption. Few students saw the drawing and those that did laughed as a result. Not a single student understood B.C.’s “wish” to be a serious threat.
The law does not have a “litmus test” whereby speech or expression that involves violent content automatically forfeits all First Amendment protection. The lewd and obscene, the profane, the libelous, and a true threat, are devoid of constitutional protection, whether uttered in school or on the street. The Supreme Court, however, has made it clear that school officials have broader authority to sanction student speech that might otherwise be protected if made by an adult in another context. This is a common sense reflection of the special characteristics inherent in the school environment and society’s interest in teaching students the boundaries of socially appropriate behavior. None of those pedagogical concerns were present in B.C.’s case.
It was B.C.’s teacher who suggested writing about military hardware. As the dissenting judge succinctly states, with regard to the reporting female student, “a jury could conclude that she was prim, not petrified.” B.C.’s drawing, viewed briefly and by only a few, did cause brief and minimal disruption in his classroom; some children laughed and a classmate reported him to his teacher. This is not the “substantial disruption” that Tinker found sufficient to displace a student’s First Amendment rights.
Significantly, the dissenting judge lamented what he saw as the absence of a causal relationship between the speech sought to be suppressed and the harmful effects that justify its suppression. Stated differently, the pertinent issue is whether school authorities correctly forecast that B.C‘s “wish” had the potential to cause a substantial disruption, or whether, instead, they improperly used it to try to forecast future conduct of B.C., himself. While school officials may investigate and detain a student who uses violent or even ambiguous language in order to determine whether he poses a genuine threat to himself or others, there is a huge difference between precaution and protection, on the one hand, and punishment, on the other.
Finally, natural fear of another Columbine should not blindly and blithely insulate the actions of school officials against constitutional scrutiny. In the words of Justice Alito in another case, “[i]n their various roles, school administrators must distinguish empty boasts from serious threats, rough-housing from bullying, and an active imagination from a dangerous impulse.” That was clearly not done in B.C.’s case. It is one thing for courts to defer to school officials who have thoughtfully applied their background, education, and experience to conclude that a particular form of student speech could result in a substantial disruption at the school. It is quite another for reviewing judges to reflexively “rubber stamp” the abrogation of student freedom of speech in the name of “political correctness.”
The Takeaway for Parents
We here at Maya Murphy, P.C. published “Advocating on Your Child’s Behalf: A Parent’s Guide to Connecticut School Law” that contained a section devoted to students’ First Amendment rights in the digital age. That section contained an in-depth discussion of the Doninger case relied upon by the court in B.C.’s case, and concluded with the warning: “the unsettled status of the law affords school administrators wide latitude in deciding when a student communication can be reasonably seen to create a foreseeable risk of academic disruption.” Unfortunately, while B.C.’s case may render the law more “settled,” it also leaves parents and students more at risk as a result of a casual utterance or expression at school. For the time being, it must be assumed that any spoken or written reference to, or depiction of, weaponry, violence, property damage or bodily injury, may form the basis for student discipline. Students (and their First Amendment rights) will be sacrificed on the altar of “zero tolerance” that sometimes seems also to worship “zero common sense.”
If you have any questions regarding your child’s education, or any education law matter, contact Joseph Maya at 203-221-3100 or by email at JMaya@MayaLaw.com.