Posts tagged with "suspension"

When ATVs are Driven on Public Highways, They Are “Motor Vehicles” for Purposes of State Suspension Laws

In a criminal law matter, the Supreme Court of Connecticut affirmed a trial court’s revocation of a defendant’s probation after he operated his all-terrain vehicle (ATV) on public roads while his driver’s license was suspended.

Case Background

In this case, the defendant pled guilty to driving under the influence as a third-time offender. He was sentenced to three years’ incarceration, execution suspended after one year, with three years’ probation. The following conditions of probation were imposed: a general condition prohibiting the violation of any state criminal statute, and a special condition prohibiting the operation of a motor vehicle with a suspended license.

The Department of Motor Vehicles permanently suspended the defendant’s driver’s license due to his history of suspensions. The defendant served the one unsuspended year in jail, then began his probation. Before the term expired, he received two criminal citations after he operated an ATV in the travel lanes of town roads. Therefore, he was subsequently charged with operating a motor vehicle with a suspended license in violation of CGS § 14-215, as well as violation of probation.

A probation revocation hearing was held, where the trial court determined that the defendant violated the general and special conditions. His probation was revoked, and he was ordered to serve the remaining two years of his suspended sentence. The defendant appealed, arguing that CGS § 14-215(c) was unconstitutionally vague with respect to application to ATV usage. As he emphasized, “a person of ordinary intelligence could not reasonably have been expected to know that the term ‘motor vehicle’ included an ATV.”

Unconstitutionally Vague Statute

Everyone is presumed to know the law, and ignorance is no excuse from criminal punishment. However, laws must be drafted so that “ordinary people understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.” So long as the meaning of the statute can be fairly ascertained, it won’t be struck down as void for vagueness. In this case, the burden rested with the defendant to “demonstrate beyond a reasonable doubt that [CGS § 14-215(c)], as applied to him, deprived him of adequate notice of what conduct the statute proscribed or that he fell victim to arbitrary and discriminatory enforcement.”

CGS § 14-215(c) makes it a crime for a person to operate a motor vehicle while their driver’s license is under suspension. This statute is located in Chapter 248, which defines “motor vehicle” as including “all vehicles used on public highways.” In CGS § 14-212(9), “vehicle” is synonymous with “motor vehicle,” so the Supreme Court opined that if an ATV qualifies as a vehicle, it is a motor vehicle for purposes of the suspension law. The Court considered the definitions of ATV under other statutes, which use the language “a self-propelled vehicle” and “motorized vehicle.” CGS §§ 14-379 and 23-26a. Thus, for purposes of CGS § 14-215(c), an ATV was a motor vehicle when used on a public highway.

The Court’s Decision

With this statutory framework in mind, the Supreme Court determined that the defendant failed to meet his burden. Rather, CGS § 14-215(c) “affords a person of ordinary intelligence with fair warning that he is prohibited from operating an ATV on a public highway while his license is suspended.” The Court found that the statute was not unconstitutionally vague, and the trial court did not err in revoking the defendant’s probation.

Written by Lindsay E. Raber, Esq.

When faced with a charge of operating a motor vehicle while intoxicated (a.k.a. driving under the influence) or operation under suspension, an individual is best served by consulting with an experienced criminal law practitioner. Should you have any questions regarding criminal defense, please do not hesitate to contact Attorney Joseph C. Maya in the firm’s Westport office in Fairfield County at 203-221-3100 or at JMaya@Mayalaw.com.

Mini-Motorcycles are “Motor Vehicles” For Purposes of Statute Prohibiting Operation Under Suspension

In a criminal law matter, the Superior Court of Connecticut, Judicial District of Fairfield, Geographical Area 2 at Bridgeport considered whether a mini-motorcycle was a motor vehicle for purposes of General Statutes § 14-215, the state’s operation under suspension law.

Case Background

This case arose from an incident that occurred on October 6, 2007. The defendant was previously convicted of operating a motor vehicle while under the influence (OMVUI) on March 20, 2007, and his license was suspended for one year. However, on the date in question, the defendant was driving a mini-motorcycle on a public highway in Fairfield. Because his license was still suspended, the defendant was charged with violating Chapter 248 § 14-215(c), which “prohibits a person whose license is under suspension from operating a motor vehicle.”

The defendant moved to dismiss the charge, arguing that a mini-motorcycle was not a “motor vehicle” for purposes of the statute. He claimed that because § 14-215 refers to Chapter 246 § 14-1, which under subsection 50 explicitly excludes mini-motorcycles from its definition of “motor vehicle,” he was not operating a motor vehicle under suspension.

The Court’s Findings

The court in State v. Knybel faced a nearly identical factual scenario and argument as those in the present case, and it engaged in a comprehensive discussion regarding competing definitions of “motor vehicle.” In essence, the Knybel court wrote that the definition used in Chapter 248 is broader so as to include all “vehicles” used within the various chapters of the General Statutes. Therefore, the Knybel court concluded “it is clear that the [more limited] definition of the term ‘motor vehicle’ in § 14-1,” which is found in a different chapter, does not apply to § 14-215(c).

With these principles in mind, the Superior Court rejected the defendant’s argument. The Court wrote that § 14-215 specifically defined “motor vehicle” to include “all vehicles used on the public highway.” Thus, the Court held that a mini-motorcycle is a motor vehicle for purposes of the operation under suspension statute, and denied the defendant’s motion to dismiss.

When faced with a charge of operating a motor vehicle while intoxicated (a.k.a. driving under the influence) or operation under suspension, an individual is best served by consulting with an experienced criminal law practitioner. Should you have any questions regarding criminal defense, please do not hesitate to contact Attorney Joseph C. Maya in the firm’s Westport office in Fairfield County at 203-221-3100 or at JMaya@Mayalaw.com.

Written by Lindsay E. Raber, Esq.

Todd Video Highlights Cyberbullying Epidemic

In the wake of Canadian teenager Amanda Todd’s heart wrenching YouTube video and subsequent suicide (reported on here), much has been written about social media’s impact on Todd’s plight. Since her death on October 10, users have continued to post hateful messages on a Facebook page, justifying their cruelty with “freedom of speech” claims.

Yesterday, a Canadian journalist wrote an article discussing Canadian New Democratic Party’s MP Dany Morin’s response to the Amanda Todd tragedy.[1] Speaking to Canada’s House of Commons yesterday, which had the opportunity to consider new legislation addressing cyberbullying, Morin stated: “Nowadays, with cyberbullying, with social media, it has gotten to a breaking point.”  Speaking of his own high school experience, Morin, who is gay, noted that though bullying existed, Facebook and other means of social media didn’t exist.  With social media, there is no break from the bullying – it’s 24/7.

Todd’s death, which made international headlines, highlights how cyberbullying has been exacerbated by social media.  As previously reported, school administrators have acted swiftly, hosting seminars and training sessions for parents, students, and faculty members, in an attempt to educate authority figures on how best to recognize and combat bullying.  State legislatures are enacting laws aimed exclusively at cyberbullying, or amending online harassment laws to encompass the specific area of cyberbullying.  But the law continues to remain murky, wrapped up in freedom of speech and First Amendment concerns.

It is important, if you have concerns about bullying against yourself or a loved one that can only be resolved through legal action, to consult with an attorney experienced in the complicated maze of education law.  If you do have questions, please contact Joseph C. Maya, Esq., in our Westport office, at 203-221-3100, or at JMaya@mayalaw.com.

 


[1] http://news.nationalpost.com/2012/10/15/cyber-bullying-on-social-media-is-at-a-breaking-point-says-ndp-mp-championing-private-members-bill/.

Categories of Student Misbehavior Qualifying for Suspension

Categorizing Misbehavior

When a student misbehaves at school, he or she may be punished with a suspension in one of three categories: the behavior

  1. violated a publicized school policy;
  2. seriously disrupted the educational process; or
  3. endangered persons or property.[1]

As a parent, it is important that you understand what conduct qualifies as prohibited conduct, and in some instances you may be able to contest the characterization.

Violation of Publicized School Policy

School boards have the statutory authority to draft disciplinary rules and policies that apply to student conduct within their district. To that end, they utilize student handbooks, which are distributed to each child at the beginning of the school year, that specifically list conduct that is prohibited. Therefore, if and when a student engages in that conduct, school administrators may issue a suspension.

The rules and guidelines found in student handbooks must be clear and understandable so as to give students and parents reasonable notice of prohibited conduct.[2] Furthermore, the rules must not be completely arbitrary: rather, there must be some relationship between the rules and their intended purposes. Admittedly, this is not a difficult standard to meet.

If you are a parent and your child is suspended under this category, you should first review the school handbook to establish whether or not your child actually violated an articulated disciplinary rule. “You will likely be able to make a stronger case for your child during suspension hearings… if you can show that his or her conduct is neither prohibited by the school nor violates any school rules.”[3]

Serious Disruption of the Educational Process

To qualify for this category, a student’s behavior must interfere with the operation of a class, study hall, library, or any meeting that involves student or staff.[4] Even non-serious disruptions that are recurrent or cumulative qualify, though administrators will consider the frequency, number, and severity of these occurrences.[5]

Endangerment of Persons or Property

Finally, “endangerment of persons or property” constitutes conduct that exposes a student to injury, risk, or a harmful situation.[6] A number of student behaviors would fall under this category, including but not limited to:

  • Fighting and bullying
  • Possession of firearms or controlled substances
  • Damage to personal or school property

Written by Lindsay E. Raber, Esq.

Because of the potentially adverse and significant impact a suspension or expulsion can have on a student’s future, it is imperative to seek the advice of an experienced school law practitioner. The lawyers at Maya Murphy, P.C., assist clients in Bridgeport, Darien, Fairfield, Greenwich, New Canaan, Norwalk, Stamford, and Westport. Should you have any questions regarding school discipline or other education law matters, please do not hesitate to contact Attorney Joseph C. Maya, Esq. He may be reached at Maya Murphy, P.C., 266 Post Road East, Westport, Connecticut (located in Fairfield County), by telephone at (203) 221-3100, or by email at JMaya@mayalaw.com.

 


[1] Connecticut General Statutes § 10-233c.

[2] Crossen v. Fatsi, 309 F. Supp. 114 (D. Conn. 1970).

[3] “Advocating on Your Child’s Behalf: A Parent’s Guide to Connecticut School Law,” by Joseph C. Maya, Esq., at pp.42.

[4] “Guidelines for In-School and Out-of-School Suspensions,” by the Connecticut State Department of Education, at pp.9. http://www.sde.ct.gov/sde/lib/sde/pdf/pressroom/In_School_Suspension_Guidance.pdf

[5] Id.

[6] Id. at 10.

Suspensions as Disciplinary Tools for Student Misbehavior

Punishing Student Misbehavior 

Under Connecticut law, school administration may punish student misbehavior by issuing suspensions, or excluding a student from school privileges and transportation for up to ten (10) days.[1] This punishment is permitted only when the student’s behavior:

  • Violates a publicized school policy;
  • Seriously disrupts the educational process; or
  • Endangers persons or property.[2]

A showing of only one of these three elements is required if the behavior occurred on school grounds or at a school-sponsored activity. If, however, the conduct occurred off school grounds, suspension is allowed “only if the misbehavior violates publicized policy and seriously disrupts the educational process.”[3] (Emphasis added.)

In-School vs. Out-of-School Suspensions

The Connecticut legislature has shown a preference for in-school suspensions as a disciplinary tool, noting “data showing that out-of-school suspensions actually perpetuated misbehavior and increased the likelihood that students would end up in the juvenile justice system.”[4] Thus, all suspensions must be in-school unless one of two situations arises:

  • The student should not be in school because he or she poses a danger to persons or property or a serious disruption to the educational process.
  • School administrators previously attempted to address the student’s past disciplinary problems and behavior by alternative methods (other than suspensions and expulsions).[5]
Pursuing an Out-of-School Suspension

In addition, the State Department of Education has emphasized mitigating factors that school administrators should take into account before electing to pursue an out-of-school suspension. These include:

  • The age, grade, and developmental stage of the student;
  • The student’s reason(s) for engaging in the misbehavior;
  • The student’s past disciplinary problems and/or likelihood of recurrence;
  • The risk of loss of instruction;
  • Cultural considerations;
  • Extent of support from parents and/or guardians in addressing the misbehavior.

Written by Lindsay E. Raber, Esq.

Because of the potentially adverse and significant impact a suspension or expulsion can have on a student’s future, it is imperative to seek the advice of an experienced school law practitioner. The lawyers at Maya Murphy, P.C., assist clients in Bridgeport, Darien, Fairfield, Greenwich, New Canaan, Norwalk, Stamford, and Westport. Should you have any questions regarding school discipline or other education law matters, please do not hesitate to contact Attorney Joseph C. Maya, Esq. He may be reached at Maya Murphy, P.C., 266 Post Road East, Westport, Connecticut (located in Fairfield County), by telephone at (203) 221-3100, or by email at JMaya@mayalaw.com.

 


[1] Connecticut General Statutes § 10-233a(a).

[2] Connecticut General Statutes § 10-233c.

[3] Id.

[4] “Advocating on Your Child’s Behalf: A Parent’s Guide to Connecticut School Law,” by Joseph C. Maya, Esq., at pp.44.

[5] Connecticut General Statutes § 10-233e.

Special Education Discipline and Interim Educational Settings

Children that require special education and related services must comply with a school district’s student code of conduct. That being said, the disciplinary procedures that apply are somewhat distinct from those used with non-special education students. In an article posted yesterday, I described the expulsion process for special education students in more general terms – today, let’s narrow that focus.

Special Education Discipline Process

If your special education child faces disciplinary action, his or her planning and placement team (PPT), of which you may be a member, will schedule a meeting to conduct a “manifestation determination.” In other words, the PPT will figure out whether “your child’s behavior was caused by or had a direct and substantial relationship to his or her disability.”[1] The PPT will also figure out whether the school district failed to implement your child’s individualized education program (IEP), thus prompting the misbehavior. The manifest determination must be conducted no later than ten (10) days after a decision to change your child’s placement.[2]

If the PPT concludes that your child’s behavior did not result from his or her disability, he or she will be disciplined consistent with that received by any other student who behaved in the same way. However, if the PPT establishes either that the behavior “was a manifestation of his or her disability or was due to a failure to implement his or her IEP,”[3] the PPT must perform a functional behavioral assessment (assessment) as well as create and implement a behavioral intervention plan (plan).[4]

The assessment is used to gather information that may shed light on why your child acted the way he or she did, as well as “identify strategies to address your child’s behavior.”[5] In turn, the plan should be designed in a way so as to teach your child how to properly behave, as well as deter and eliminate negative behaviors.

Long-Term Placement in an IES

It is important to keep in mind, however, that your child could be removed from his or her current placement and into an interim educational setting (IES). In most instances, this alternative placement must not exceed ten (10) days and is determined by your child’s IEP. In limited situations, however, your school district may decide to place your child in an IES for upwards of forty-five (45) days. This is without regard to the results of the PPT’s manifestation determination. The three circumstances where this may occur are as follows:

  • Your child carried or possessed a weapon to school or to a school-sponsored activity.
  • Your child knowingly possessed or used an illegal drug, or sold or solicited the sale of a controlled substance on school grounds or at a school-sponsored activity.
  • Your child inflicted serious bodily injury upon a fellow student, staff member, or any other person while on school grounds or at a school-sponsored activity.
What if I disagree with my child’s placement?

If you, as a parent, disagree with any decision relating to the above, you have the right to file for a due process hearing.[6] Unless you and the school district agree to otherwise, your child will remain in the IES until either the placement expires or a post-hearing decision is rendered.[7] Your local education agency must hold the hearing within twenty (20) days of the filing, and the hearing officer must render a decision within ten (10) days after the hearing.[8] Furthermore, the hearing officer has authority to your child’s regular placement if he or she “determines that removal was not valid or your child’s behavior was a manifestation of his or her disability.”[9]

Written by Lindsay E. Raber, Esq.

Because of the potentially adverse and significant impact a suspension or expulsion can have on a student’s future, it is imperative to seek the advice of an experienced school law practitioner. The lawyers at Maya Murphy, P.C., assist clients in Bridgeport, Darien, Fairfield, Greenwich, New Canaan, Norwalk, Stamford, and Westport. Should you have any questions regarding school discipline, special education, or other education law matters, please do not hesitate to contact Attorney Joseph C. Maya, Esq. He may be reached at Maya Murphy, P.C., 266 Post Road East, Westport, Connecticut (located in Fairfield County), by telephone at (203) 221-3100, or by email at JMaya@mayalaw.com.

 


[1] “Advocating on Your Child’s Behalf: A Parent’s Guide to Connecticut School Law,” by Joseph C. Maya, Esq.,, pp.31.

[2] 34 C.F.R. § 300.530(e).

[3] See Footnote 1.

[4] 34 C.F.R. § 300.530(f)(1)(i)-(ii).

[5] See Footnote 1.

[6] 34 C.F.R. § 300.532(a).

[7] 34 C.F.R. § 300.533.

[8] 34 C.F.R. § 300.532(c)(2).

[9] See Footnote 1.

What is the Process for Expelling a Special Education Student?

Expulsion Process in Special Education

If you are the parent of a child that qualifies for special education under the Individuals with Disabilities Education Act (IDEA), it is imperative that you understand that an entirely different set of rules applies.

“Connecticut school districts are obligated to provide special education and related services to children five years of age or older until the earlier of either high school graduation or the end of the school year in which your child turns twenty-one years of age.”[1] A special education child’s misconduct does not obviate the school district’s statutory duty. Therefore, before an expulsion hearing occurs, the child’s planning and placement team (PPT), which includes the parent(s), will schedule a meeting to determine whether or not the child’s misbehavior was caused by his or her disability. How the question is answered will impact the PPT’s course of action.

If the answer is “yes,” expulsion will not be pursued. Rather, the PPT will reevaluate the child and potentially modify his individualized education program (IEP) “to address the misconduct and to ensure the safety of other children and staff in the school.”[2] If, instead, the answer is “no,” the standard expulsion procedures[3] are followed. However, an AEP that is consistent with the child’s special educational needs must be provided by the school for the duration of the expulsion.[4]

Written by Lindsay E. Raber, Esq.

Because of the potentially adverse and significant impact a suspension or expulsion can have on a student’s future, it is imperative to seek the advice of an experienced school law practitioner. The lawyers at Maya Murphy, P.C., assist clients in Bridgeport, Darien, Fairfield, Greenwich, New Canaan, Norwalk, Stamford, and Westport. Should you have any questions regarding school discipline or other education law matters, please do not hesitate to contact Attorney Joseph C. Maya, Esq. He may be reached at Maya Murphy, P.C., 266 Post Road East, Westport, Connecticut (located in Fairfield County), by telephone at (203) 221-3100, or by email at JMaya@mayalaw.com.

 


[1] “Advocating on Your Child’s Behalf: A Parent’s Guide to Connecticut School Law,” by Joseph C. Maya, Esq., at pp.8-9.

[2] Connecticut General Statutes § 10-233d(i).

[3] See Connecticut General Statutes § 10-233d(a).

[4] Connecticut General Statutes § 10-233d(i).

Alternative Educational Programs for Expelled Students

Expulsions in Connecticut Schools

The Connecticut legislature has authorized the expulsion of a student if his or her conduct, be it committed on or off school grounds, violates a publicized board of education rule, seriously disrupts the educational process, or places into danger other persons or property.[1] The expulsion may last from anywhere between ten (10) days to one calendar year,[2] which no doubt leaves parents concerned that their child may fall behind his or her peers. However, barring specific exceptions, schools must provide an alternative education program (AEP) to an expelled student.

Constituting and Implementing an AEP

There is very little guidance as to what constitutes an AEP. One statute states, “Such alternative may include, but shall not be limited to, the placement of a pupil who is at least sixteen years of age in an adult education program.”[3] One State Department of Education regulation focuses on home tutoring obligations.[4] That being said, boards of education have wide discretion in deciding what qualifies as an AEP and may provide one even where they are not obligated to do so.[5]

However, the circumstances under which AEPs are granted are clear-cut and fall into three age-based categories. If the student is less than sixteen (16) years of age, the school has a duty to provide an AEP at no cost to the parents.

An AEP must also be provided to students aged sixteen (16) and seventeen (17), unless 1) the student was previously expelled; 2) the expulsion was for possession of a firearm, deadly weapon, dangerous instrument, or martial arts weapon while on school grounds or at a school-sponsored activity; or 3) the expulsion was for the sale or distribution of a controlled substance on school grounds or at a school-sponsored activity. Finally, if the student is above age eighteen (18), the school has no duty to provide an AEP unless he or she is a special education student.

Written by Lindsay E. Raber, Esq.

Because of the potentially adverse and significant impact a suspension or expulsion can have on a student’s future, it is imperative to seek the advice of an experienced school law practitioner. The attorneys at Maya Murphy, P.C., assist clients in Bridgeport, Darien, Fairfield, Greenwich, New Canaan, Norwalk, Stamford, and Westport. Should you have any questions regarding school discipline or other education law matters, please do not hesitate to contact Attorney Joseph C. Maya, Esq. He may be reached at Maya Murphy, P.C., 266 Post Road East, Westport, Connecticut (located in Fairfield County), by telephone at (203) 221-3100, or by email at JMaya@mayalaw.com.


[1] Connecticut General Statutes § 10-233d.

[2] Rosa R. v. Connelly, 889 F.2d 435 (2d Cir. 1989).

[3] Connecticut General Statutes § 10-233d(d).

[4] Connecticut State Regulations § 10-76d-15.

[5] Connecticut General Statutes § 10-233d(d).

On The Authority of Schools to Expel Students

It’s that time of year: Summer vacation is over. Labor Day has come and gone. Children now find themselves back into the daily routine of waking up early, getting ready for school, and attending classes. Each year, Boards of Education provide its students with booklets covering their code of conduct, and of notable interest is understanding how one’s conduct off school grounds can adversely impact in-school opportunities. That is, what authority does a school district have to expel students for out-of-school behavior?

Expulsion of Students in Connecticut Schools

Connecticut’s statutory scheme governing children (both generally and in the context of education) is particularly comprehensive, and an important section in the context of school discipline concerns expulsion. The General Statutes require expulsion for conduct not committed during school hours or on school grounds in two situations:

  1. The student carried (without a permit) a statutorily-enumerated weapon, or used one to commit a crime. Weapons covered include firearms, deadly weapons, dangerous instruments, and martial arts weapons.
  2. The student sold or distributed illegal drugs or attempted to do so.

Connecticut General Statutes § 10-223d(2).

State law permits expulsion of students if the out-of-school conduct violates school policy and is seriously disruptive of the educational process. This standard was discussed in the Connecticut Supreme Court’s decision in Packer v. Board of Education of the Town of Thompson, 256 Conn. 89 (1998), which involved a student in possession of marijuana and drug paraphernalia in his car while not at school. When a school board needs to determine whether this threshold has been met, it considers numerous factors:

  1. Whether the incident occurred within close proximity of a school
  2. Whether other students from the school were involved or whether there was any gang involvement
  3. Whether the conduct involved violence, threats of violence or the unlawful use of a weapon, … and whether any injuries occurred
  4. Whether the conduct involved the use of alcohol

Connecticut General Statutes § 10-223d(1).

Written by Lindsay E. Raber, Esq.

Depending on the nature of the conduct, the punishment imposed can be severe and particularly detrimental to a child’s educational and recreational opportunities. If your child is facing suspension or expulsion for conduct committed on or off of school grounds, it is imperative that you seek counsel from an experienced education law practitioner. If you have any questions regarding education legal matters, please do not hesitate to contact Attorney Joseph C. Maya at the Maya Murphy, P.C. Westport location in Fairfield County at (203) 221-3100 or at JMaya@mayalaw.com.

 

When You Wish Upon a Star You May, Instead, Be Granted a School Suspension!

On March 22, 2012, the United States Court of Appeals for the Second Circuit (whose rulings form a 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.

Facts of the Case

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.

The Punishment

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

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’s Decision

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 Dissent

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.

Potential for a Substantial Disruption

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.