CUFF EX REL. BC v. Valley Cent. School Dist.

10-2282-cv

Cuff v. Valley Central School District, et al

1 UNITED STATES COURT OF APPEALS

2 FOR THE SECOND CIRCUIT

3 August Term, 2010

4

5 (Argued: March 10, 2011 Decided: March 22, 2012)

6 Docket No. 10-2282-cv

7 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

8 WILLIAM CUFF, MARGARET CUFF, on behalf of their minor son,

9 B.C.,

10 Plaintiffs-Appellants,

11 v.

12 VALLEY CENTRAL SCHOOL DISTRICT, BARBARA KNECHT, sued in her

13 individual capacity,

14 Defendants-Appellees.

15 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

16 B e f o r e: WINTER, POOLER and HALL, Circuit Judges.

17 Appeal from a grant of summary judgment in the United

18 States District Court for the Southern District of New York

19 (Jed S. Rakoff, Judge) dismissing a complaint that alleged that

20 an elementary school student’s First Amendment rights were

21 violated when he was suspended for six days after expressing a

22 wish for violence to the school and teachers. We affirm.

23 Judge Pooler dissents in a separate opinion.

1

1

2 STEPHEN BERGSTEIN,

3 Bergstein & Ullrich, LLP

4 Chester, New York, for

5 Plaintiffs-Appellants.

6

7 ADAM I. KLEINBERG (Leo Dorfman,

8 on the brief), Sokoloff Stern LLP

9 Westbury, New York, for

10 Defendants-Appellees.

11

12 WINTER, Circuit Judge:

13 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.

19 BACKGROUND

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.

30

2

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.

25

3

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

4

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.

5

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.

17 DISCUSSION

18 “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).

21 a) Legal Standards

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

6

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) (quoting Tinker, 393

23 U.S. at 514) (alterations in original). This test does not

24 require school administrators to prove that actual disruption

25 occurred or that substantial disruption was inevitable.

7

1 Rather, the question is “whether school officials might

2 reasonably portend disruption from the student expression at

3 issue.” Doninger v. Niehoff, 527 F.3d 41, 51 (2d Cir. 2008)

4 (internal quotation marks omitted). As the district court in

5 Cuff III stated, “an actual disruption standard would be

6 absurd.” 714 F. Supp. 2d at 469.

7 The test is an objective one, focusing on the

8 reasonableness of the school administration’s response, not on

9 the intent of the student. See Tinker, 393 U.S. at 514

10 (holding that the objective reasonableness of the school

11 administrator’s response, not the student’s intentions, is

12 relevant); Wisniewski v. Bd. of Educ. of Weedsport Cent. Sch.

13 Dist., 494 F.3d 34, 40 (2d Cir. 2007) (holding that a student’s

14 generation and transmission of an internet “buddy icon” from

15 his parent’s home computer supports a reasonable probability of

16 substantial disruption at the school and permitting school

17 discipline “whether or not [the student] intended [the speech]

18 to be communicated to school authorities or, if communicated,

19 to cause a substantial disruption”); Ponce v. Socorro Indep.

20 Sch. Dist., 508 F.3d 765, 767, 772 (5th Cir. 2007) (holding

21 that a high-school student’s violent story depicting a school

22 shooting was not constitutionally protected, despite the

23 student’s claim that he meant it as a work of fiction and not a

24 threat); Boim v. Fulton Cnty. Sch. Dist., 494 F.3d 978, 981,

25 984-85 (11th Cir. 2007) (same).

8

1 Finally, in the context of student speech favoring violent

2 conduct, it is not for courts to determine how school officials

3 should respond. School administrators are in the best position

4 to assess the potential for harm and act accordingly. See

5 Wisniewski, 494 F.3d at 40 (“[W]e are mindful that ‘[i]t is not

6 the role of the federal courts to set aside decisions of school

7 administrators which the court may view as lacking a basis in

8 wisdom or compassion.’”) (quoting Wood v. Strickland, 420 U.S.

9 308, 326 (1975)); see also Bethel Sch. Dist. No. 403 v. Fraser,

10 478 U.S. 675, 683 (1986) (“[I]t is a highly appropriate

11 function of public school education to prohibit the use of

12 vulgar and offensive terms in public discourse” and “[t]he

13 determination of what manner of speech in the classroom . . .

14 is inappropriate properly rests with the school board.”).

15 b) Application

16 Applying these standards to B.C.’s conduct, we conclude

17 that his suspension must be upheld. In Cuff II, we remanded

18 because, inter alia, there were allegations that B.C. “did not

19 show the [astronaut drawing] to any classmates but rather

20 handed it directly to his teacher[,] and B.C. had no other

21 disciplinary history that would suggest a violent tendency.”

22 341 F. App’x at 693.

23 The record now before us demonstrates that it was

24 reasonably foreseeable that the astronaut drawing could create

25 a substantial disruption at the school. When B.C. was

9

1 suspended, he had a history of disciplinary issues, and his

2 other earlier drawings and writings had also embraced violence.

3 Prior to the astronaut drawing incident, Malley discussed

4 B.C.’s other drawings and writings with Knecht, expressing a

5 “concern” for the student, and school psychologist Charette

6 testified that she had spoken with Knecht about B.C.’s

7 disciplinary issues and prior drawings. In addition, the

8 astronaut drawing was seen by other students in the class, and

9 caused C.P., who observed B.C. with the drawing, to leave her

10 seat and bring it to DeBold’s attention. DeBold perceived C.P.

11 to be “very worried” about the drawing.

12 Whether B.C. intended his “wish” as a joke or never

13 intended to carry out the threat is irrelevant. Nor does it

14 matter that B.C. lacked the capacity to carry out the threat

15 expressed in the drawing. See Wisniewski, 494 F.3d at 36, 40

16 (affirming summary judgment in favor of school administrators

17 for regulating student’s speech even though the student

18 protested that his creation of the “buddy icon” was only meant

19 as a joke); see also Doe v. Pulaski Cnty. Special Sch. Dist.,

20 306 F.3d 616 (8th Cir. 2002) (“In determining whether a

21 statement amounts to an unprotected threat [under the First

22 Amendment], there is no requirement that . . . the speaker was

23 capable of carrying out the purported threat of violence.”).

24 Courts have allowed wide leeway to school administrators

25 disciplining students for writings or other conduct threatening

10

1 violence. See, e.g., Boim, 494 F.3d at 981, 984 (finding that

2 school officials did not violate a student’s First Amendment

3 rights when they suspended her for writing a narrative

4 depicting her shooting her math teacher); Ponce, 508 F.3d at

5 772 (analyzing, under Morse v. Fredrick, 551 U.S. 393 (2007), a

6 student’s speech threatening a “Columbine shooting attack” on a

7 school, and finding that “such specific threatening speech to a

8 school or its population is unprotected by the First Amendment”

9 because “[s]chool administrators must be permitted to react

10 quickly and decisively to address a threat of physical violence

11 against their students, without worrying that they will have to

12 face years of litigation second-guessing their judgment as to

13 whether the threat posed a real risk of substantial

14 disturbance.”); Pulaski Cnty. Special Sch. Dist., 306 F.3d at

15 626 n.4 (finding it “untenable in the wake of Columbine and

16 Jonesboro that any reasonable school official who came into

17 possession of [the student’s letter in which he described how

18 he would rape and murder a classmate] would not have taken some

19 action based on its violent and disturbing content,” and

20 holding that the letter constituted a “true threat” under Watts

21 v. United States, 394 U.S. 705 (1969)); LaVine v. Blaine Sch.

22 Dist., 257 F.3d 981, 983, 987, 992 (9th Cir. 2001) (evaluating

23 “the recent spate of school shootings,” the “potential for

24 school violence,” and the “care when evaluating a student’s

25 First Amendment right of free expression against school

11

1 officials’ need to provide a safe school environment,” and

2 holding that the school did not violate a student’s First

3 Amendment’s rights when it expelled him for his poem filled

4 with imagery of violent death and suicide and shooting of

5 fellow students).

6 The threat of substantial disruption was aggravated by

7 B.C.’s sharing of his “wish” with fellow students, an act

8 reasonably perceived as an attention-grabbing device. School

9 administrators might reasonably fear that, if permitted, other

10 students might well be tempted to copy, or escalate, B.C.’s

11 conduct. This might then have led to a substantial decrease in

12 discipline, an increase in behavior distracting students and

13 teachers from the educational mission, and tendencies to

14 violent acts.1 Such a chain of events would be difficult to

15 control because the failure to discipline B.C. would give other

16 students engaging in such behavior an Equal Protection argument

17 to add to their First Amendment contentions.

18 School administrators also have to be concerned about the

19 confidence of parents in a school system’s ability to shield

20 their children from frightening behavior and to provide for the

21 safety of their children while in school. B.C.’s “wish,” being

1

As one Court of Appeals has already expressed, confronting a threat of

school violence may be appropriate given the recent wave of school shootings

that have tragically affected our nation: “[a]fter [all the] school

shootings, questions have been asked about how teachers and administrators

could have missed telltale ‘warning signs,’ why something was not done earlier

and what should be done to prevent such tragedies from happening again.”

LaVine, 257 F.3d at 987.

12

1 known by many students, could easily have become known to a

2 number of parents who could reasonably view it as something

3 other than a contribution to the marketplace of ideas. While

4 parents do not have the right to monitor student speech, they

5 could reasonably be concerned about the safety of their

6 children in the present circumstances. A failure of the

7 appellees to respond forcefully to the “wish” might have led to

8 a decline of parental confidence in school safety with many

9 negative effects, including, e.g., the need to hire security

10 personnel and even a decline in enrollment.

11 Thus, appellees could reasonably have concluded that

12 B.C.’s astronaut drawing would substantially disrupt the school

13 environment, and their resulting decision to suspend B.C. was

14 constitutional.

15 Appellants also argue that B.C.’s punishment was excessive

16 under the First Amendment. The appropriate degree of

17 punishment is of course a matter in which we show the greatest

18 deference to school authorities. Wood, 420 U.S. at 326. It

19 suffices to say that we see no merit to this argument.

20 CONCLUSION

21 For the foregoing reasons, we affirm.

22

13

POOLER, Circuit Judge, dissenting.

A ten-year-old child made a drawing in class that jokingly referred to blowing up his

school. His classmates chuckled. His teacher did not. The school suspended him for nearly a

week. The boy’s parents claim that the school violated their son’s right to free speech by

punishing him for his ill-advised joke.

The First Amendment does not require our nation’s teachers to tolerate every misguided

attempt at comedy in the classroom. In Tinker v. Des Moines Independent Community School

District, 393 U.S. 503 (1969), the Supreme Court held that a school may, without violating the

First Amendment, restrict student speech that threatens to cause a substantial disruption at

school. Id. at 513. As a result, a school may punish a student for making a joke involving

violent or threatening language, no matter how innocent the student’s intention, if the joke had

the potential to cause a substantial disruption at school, perhaps by sparking panic among

classmates who believed, even mistakenly, that they might be in danger.

However, I believe that a jury could conclude that this young child’s stab at humor barely

had the potential to cause a stir at school, let alone a substantial disruption. Few students even

saw the drawing given that the child’s teacher took it away in a matter of minutes. And the

students who did get a glimpse laughed. Clearly, not everyone at the school thought that the

drawing was funny, and for good reason. But I am convinced that a jury could conclude that this

young boy’s crude attempt at humor merely had the potential to cause mild amusement among

his classmates—not alarm. The majority refuses even to allow a jury to consider the question of

whether the drawing had the potential to disrupt the work of the school. But in affirming the

judgment of the district court, the majority has failed to “construe the facts in the light most

1

favorable to the non-moving party and [to] resolve all ambiguities and draw all reasonable

inferences against the movant.” Brod v. Omya, Inc., 653 F.3d 156, 164 (2d Cir. 2011) (internal

quotation marks omitted).1

Accordingly, I respectfully dissent.

I.

At the beginning of the school year in September 2007, Tara DeBold, a teacher at Berea

Elementary School in Montgomery, N.Y., gave her fifth-grade science class a routine

assignment. She handed out sheets of paper that contained a drawing of an astronaut, similar to

an outline one might find in a children’s coloring book. DeBold explained to her students that

they could write about anything they wanted on the astronaut, including “adjectives about

themselves, their birthday, things they want to be when they grow up, a wish that they have, [or]

a goal they have for the year.” J.A. 213.2 The purpose of the assignment was to allow DeBold to

“learn a little bit about” her students at the start of the school year. J.A. 213.

Some students were apparently daunted by the open-ended nature of the assignment.

They peppered their teacher with questions about what they were allowed to write. In a moment

of apparent frustration, DeBold said, “Don’t keep on coming up to me. When I mean anything

you want, anything. You can write about missiles.” J.A. 72 (internal quotation marks omitted).

1

Throughout this opinion, unless otherwise noted, I present the facts of the case “in the

light most favorable to the non-moving party and . . . resolve all ambiguities and draw all

reasonable inferences against the movant.” Brod, 653 F.3d at 164.

2

The abbreviation “J.A.” refers to the Joint Appendix filed by the parties.

2

One student, B.C., who was ten years old at the time, saw this as an opportunity to have

some fun. While DeBold was explaining the assignment to the class, B.C. told some of his

friends who were sitting near him what he planned to write on his drawing. The teacher’s

mention of missiles apparently had sparked an idea in the young boy’s mind: he wanted to write

a joke about blowing up his school.

While his sense of humor may seem deficient, his audience of fifth-grade peers thought

otherwise. When he mentioned his idea to a few classmates who were sitting nearby, they

laughed. After the teacher finished describing the assignment and answering questions from

students, B.C. wrote on his astronaut drawing that he wanted to “blow up the school with all the

teachers in it.” J.A. 46; see also J.A. 219. He showed the drawing to some of his classmates.

They chuckled again. According to B.C., everyone understood that his drawing was a joke. “No

one was scared,” he said later. “Everybody was, like, laughing.” J.A. 75. As he explained, “I

was just joking around with it.” J.A. 73.

Of all the fifth graders in that classroom, only one even arguably showed the slightest

sign of taking B.C.’s threat seriously. A young girl named C.P. saw what B.C. had written and

reported him to their teacher. DeBold claimed that the girl “seemed very worried” by what B.C.

had written. J.A. 214. There is, however, ample evidence in the record to suggest that C.P. was

anything but scared. C.P. herself was seen laughing along with B.C.’s other classmates who had

seen his drawing. If anything, C.P. hardly seems to have been scarred by the incident. After

B.C. returned to school following his suspension, the two children would exchange greetings in

the hallway as if nothing had happened. See J.A. 89-90.

3

Indeed, C.P.’s decision to report B.C. to the teacher was arguably motivated more by

spite than fear. The two students had something of a rivalry at school. B.C. described her as “a

tattletale,” who had told on him in the past “if [he] did something silly or joking.” J.A. 75. For

example, C.P. would “tattle on” him “if [he] wasn’t doing [his] work” or “talking.” J.A. 75. She

certainly seems to have been a stickler for the rules, reminding B.C. whenever she had the

chance that he was not following them. See J.A. 75. On this particular occasion, when C.P.

reported B.C. to his teacher for making the astronaut drawing, he suspected that “[s]he probably

was just trying to get [him] in trouble.” J.A. 74. In short, there is sufficient evidence to suggest

that while B.C.’s joke was inappropriate, to put it mildly, not a single student took his threat

seriously.

Nonetheless, after C.P. reported B.C. to the teacher, and DeBold saw what B.C. had

written, DeBold took the drawing away and sent him to the principal’s office. The young boy

was eventually suspended from school for a total of six days as punishment. The boys’ parents

now claim that their son’s punishment violated the First Amendment.

II.

The First Amendment bars the federal and state governments from “abridging the

freedom of speech.” U.S. Const. amend. I; see Lovell v. City of Griffin, 303 U.S. 444, 450

(1938). Indeed, the First Amendment “protects the citizen against the State itself and all of its

creatures,” including public schools. Tinker, 393 U.S. at 507 (quoting W. Va. State Bd. of Educ.

v. Barnette, 319 U.S. 624, 637 (1943)); see also Tinker, 393 U.S. at 506 (“It can hardly be

argued that either students or teachers shed their constitutional rights to freedom of speech or

expression at the schoolhouse gate.”).

4

“[A]s a general matter, the First Amendment means that government has no power to

restrict expression because of its message, its ideas, its subject matter, or its content.” Ashcroft

v. Am. Civil Liberties Union, 535 U.S. 564, 573 (2002) (alteration in original) (internal quotation

marks omitted). Thus, speech or expression that involves violent content, no matter how

distasteful, does not necessarily forfeit all First Amendment protection. See Brown v. Entm’t

Merchants Ass’n, 131 S. Ct. 2729, 2738 (2011).

The Supreme Court, however, has made clear that entire categories of speech and

expression do not merit protection under the First Amendment. See Chaplinsky v. New

Hampshire, 315 U.S. 568, 571-72 (1942). Among these “well-defined and narrowly limited

classes of speech, the prevention and punishment of which has never been thought to raise any

Constitutional problem,” are “the lewd and obscene, the profane, the libelous, and the insulting

or ‘fighting’ words—those which by their very utterance inflict injury or tend to incite an

immediate breach of the peace.” Id.

There is no doubt that a public school may suppress student speech that falls within one

of these categories that the Supreme Court has identified as entirely unprotected by the First

Amendment. Indeed, despite the expansion of school-specific exceptions to the First

Amendment’s general prohibition against government restrictions on speech, see, e.g., Tinker,

393 U.S. 503, certain well-settled rules apply to adults and adolescents alike. A true threat under

Watts v. United States, 394 U.S. 705 (1969) (per curiam), for instance, is as unprotected when

uttered in school as it is on the street.

But even an empty threat in the classroom might do just as much harm as a true one made

outside the schoolhouse gate. Indeed, we have made clear “that school officials have

5

significantly broader authority to sanction student speech than the Watts standard allows.”

Wisniewski v. Bd. of Educ. of Weedsport Cent. Sch. Dist., 494 F.3d 34, 38 (2d Cir. 2007). A

public school may regulate and indeed punish speech by a student that would otherwise be

protected if made by an adult in another context. See Tinker, 393 U.S. at 506 (concluding that

“First Amendment rights” must be “applied in light of the special characteristics of the school

environment”); see also Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 682 (1986) (“[T]he

constitutional rights of students in public school are not automatically coextensive with the rights

of adults in other settings.”).

The Supreme Court has made clear that certain types of speech are considered

unprotected when made by students in the school setting. In Tinker, the Supreme Court held that

a school may suppress student speech without violating the First Amendment if the speech has

the potential to “materially and substantially disrupt the work and discipline of the school.”

Tinker, 393 U.S. at 513. Next, in Fraser, the Court held that a school may punish a student for

“his offensively lewd and indecent speech.” Fraser, 478 U.S. at 685. Fraser explained what

every parent already knows. Schools must be allowed to police their students because of

“society’s countervailing interest in teaching students the boundaries of socially appropriate

behavior.” Id. at 681. But while the thrust of Fraser’s language may have been broad, the

case’s holding—aimed squarely at “offensively lewd and indecent speech,” id. at 685—was

narrow. Shortly after Fraser, the Court held in Hazelwood School District v. Kuhlmeier, 484

U.S. 260 (1988), “that educators do not offend the First Amendment by exercising editorial

control over the style and content of student speech in school-sponsored activities so long as

their actions are reasonably related to legitimate pedagogical concerns.” Id. at 273. Finally, and

6

most recently, the Court held in Morse v. Frederick, 551 U.S. 393 (2007), that a school “may . . .

restrict student speech at a school event, when that speech is reasonably viewed as promoting

illegal drug use.” Id. at 403.

The majority concludes that Tinker requires that we affirm the district court’s grant of

summary judgment. I disagree.

III.

The question under Tinker is whether a reasonable jury, drawing every inference in favor

of the plaintiffs, could conclude that the school did not reasonably believe that B.C.’s drawing

could itself cause a “substantial disruption” at school. Tinker, 393 U.S. at 514.

Here, DeBold herself came up with the idea to write about weaponry. See J.A. 72

(“Don’t keep on coming up to me. When I mean anything you want, anything. You can write

about missiles.” (internal quotation marks omitted)). When B.C. told his friends about what he

wanted to write, they laughed and were unconcerned by what they knew was a joke. They were

amused rather than alarmed precisely because his drawing was something of a riff on their

teacher’s own suggestion to write about missiles, which undoubtedly, at least for some fifth-

graders, conjure up images of explosions and mayhem.

The only hint of concern among his classmates came from C.P., who brought B.C.’s

drawing to the attention of his teacher. But it seems that even she laughed about the drawing.

At his deposition, B.C. testified:

Q. Do you think C. P. was scared when she read what you wrote?

A. No. No one was scared. Everybody was, like, laughing.

Q. Everybody was laughing?

A. Not like laughing hysterically. Just like a giggle or something.

J.A. 75.

7

While DeBold claims that C.P. “seemed very worried” as a result of seeing what B.C.

had written, J.A. 214, any conflict between competing accounts of whether C.P. was in fact

frightened by the drawing—and thus whether DeBold’s perception of C.P.’s reaction was

reasonable—must be resolved in favor of the student, not the school. See United States v. Rem,

38 F.3d 634, 644 (2d Cir. 1994) (“Resolutions of credibility conflicts and choices between

conflicting versions of the facts are matters for the jury, not for the court on summary

judgment.”).

The majority simply ignores B.C.’s claim that C.P. laughed along with others when she

saw the drawing. Indeed, the majority notes that their teacher “perceived C.P. to be ‘very

worried,’” Majority Op. at 10, but utterly fails to acknowledge B.C.’s claim to the contrary. In

reviewing a district court’s grant of summary judgment, “[t]he role of the court is not to resolve

disputed issues of fact but to assess whether there are any factual issues to be tried.” Brod, 653

F.3d at 164 (quoting Wilson v. Nw. Mut. Ins. Co., 625 F.3d 54, 60 (2d Cir. 2010)). The majority

casts aside this foundational principle by deciding rather than identifying disputed questions of

fact.

Furthermore, a jury might readily conclude that C.P. reported B.C. not because she took

his threat seriously or was even slightly scared, but rather because she resented him for pushing

the boundaries of acceptable conduct in class and getting away with it. The two certainly had a

history of sparring over the rules. And C.P. seems to have taken it upon herself to ensure that

B.C. was punished each and every time he did something that was even arguably inappropriate.

Accordingly, a jury might conclude that she was well aware that B.C.’s drawing was a joke, but

nonetheless reported him to their teacher simply to see him punished. In short, a jury could

conclude that she was prim, not petrified.

8

B.C.’s drawing clearly caused at least some disruption in his classroom. By his own

account, children laughed and one of his classmates reported him to his teacher. But this

momentary interruption hardly constitutes a substantial disruption as contemplated by Tinker. If

anything, B.C.’s drawing merely diverted students briefly from their schoolwork.

I note only that some disruptions—and perhaps some far more substantial than the one at

issue in this case—must no doubt be tolerated, lest the slightest flicker of frustration or fear in a

classmate could justify sanctioning a student’s speech. Some amount of nominal discord and

discomfort is the cost of our “hazardous freedom.” Tinker, 393 U.S. at 508; see also Holloman

ex rel. Holloman v. Harland, 370 F.3d 1252, 1271-72 (11th Cir. 2004) (“[I]n assessing the

reasonableness of regulations that tread upon expression, we cannot simply defer to the specter

of disruption or the mere theoretical possibility of discord, or even some de minimis,

insubstantial impact on classroom decorum. . . . [S]tudent expression may not be suppressed

simply because it gives rise to some slight, easily overlooked disruption, including but not

limited to ‘a showing of mild curiosity’ by other students, ‘discussion and comment’ among

students, or even some ‘hostile remarks’ or ‘discussion outside of the classrooms’ by other

students.” (citations omitted)).

The First Amendment’s protection of free speech cannot hinge entirely on the reaction of

a listener to a person’s speech. If that were the case, the First Amendment would only be as

strong as the weakest, or at least the most thin-skinned, listener in a crowd. See Brown v.

Louisiana, 383 U.S. 131, 133 n.1 (1966) (“Participants in an orderly demonstration in a public

place are not chargeable with the danger, unprovoked except by the fact of the constitutionally

protected demonstration itself, that their critics might react with disorder or violence.”).

9

In addition, I note that the minor disruption at issue in this case is a far cry from the one

we faced in Wisniewski, in which an image that could have been interpreted as a violent threat

against a teacher circulated for three weeks among students before it came to the attention of

school officials. See Wisniewski, 494 F.3d at 36. During those weeks, there was ample potential

for students who had no information regarding the context in which the violent image was

created to interpret it as a truly violent threat against a teacher. Consequently, the image in that

case had every chance of terrifying both students and teachers alike.

By contrast, B.C.’s astronaut drawing circulated for a matter of minutes before the

teacher took it away and made sure that no one else would see it. And each of the children who

did see the drawing knew it was a joke and laughed about it. As a result, I believe that a

reasonable jury could conclude that there was no chance that B.C.’s drawing would create

anything approaching a substantial disruption.

Indeed, the school’s principal explained to B.C.’s parents that “[t]here was zero

tolerance” for the type of expression that B.C. used. J.A. 105. As a result, a jury could find that

B.C. was punished because the school did not tolerate any language or expression that involved a

violent threat, even if the student’s threat was not a true threat under Watts, see Virginia v. Black,

538 U.S. 343, 359 (2003) (“‘True threats’ encompass those statements where the speaker means

to communicate a serious expression of an intent to commit an act of unlawful violence to a

particular individual or group of individuals.”), and even if the threat had no potential to cause a

substantial disruption under Tinker.

10

IV.

The majority discusses extensively B.C.’s prior behavioral issues that school officials

claim were cause for concern. For example, the majority writes that “[w]hen B.C. was

suspended, he had a history of disciplinary issues, and his other earlier drawings and writings

had also embraced violence.” Majority Op. at 10.

But even if B.C.’s past behavioral issues affected the analysis of whether the astronaut

drawing had the potential to cause a substantial disruption under Tinker, see infra note 3, the

majority has displaced the role of the jury by finding facts where genuine disputes exist. For

example, the majority writes: “In January 2006, prior to creating the astronaut drawing, B.C. had

drawn another picture that was perceived by the school staff as disturbing. The drawing depicted

a person firing a gun, and above it, B.C. had written: ‘One day I shot 4 people each of them got

fo[ur] blows + they were dead. I wasted 20 bulits [sic] on them.’” Majority Op. at 3 (alterations

in original) (citations omitted). While the majority notes that “B.C. said that he was portraying a

game of paintball in the drawing,” Majority Op. at 3, the simply concludes that the “picture . . .

was perceived by the school staff as disturbing.” Majority Op. at 3.

But whether or not school officials were reasonably concerned by this young boy’s

drawing is a question for jurors, not judges. B.C. said that when the school psychologist had

asked him about the drawing, he explained that he was simply portraying a paintball game, not

playing out some violent fantasy. See J.A. 85. As a result, the matter seems to have been

promptly dropped. No one other than the school psychologist even spoke to B.C. about the

drawing. A jury could conclude that school officials—far from finding the drawing “disturbing,”

as the majority concludes, Majority Op. at 3—simply decided that the drawing was a boy’s

harmless portrayal of a game he loved to play.

11

The majority also notes: “As part of a fourth grade in-class assignment, B.C. wrote a

story about ‘a big wind [that] destroyed every school in America. . . . [And] every body ran for

there [sic] life and than [sic] all adults died and the kids were alive. Than [sic] all the kids

died.’” Majority Op. at 3 (alterations in original). But the majority fails to acknowledge that

B.C. explained that he had written the story “around [the time of] a big hurricane or something

like that, like a tsunami.” J.A. 87. Consequently, a jury might conclude that school officials

were aware that B.C. had written the story in response to a natural disaster that merely prompted

a young boy to wonder—and perhaps worry—about the danger such disasters pose.

In addition, the majority cites “B.C.’s involvement in numerous altercations during

recess, pushing and shoving in the hallways, and rough play at school.” Majority Op. at 3-4. In

March 2007, for instance, B.C. was cited for “push[ing] his seat mate out into the aisle” while

they were riding the school bus. J.A. 161. But a jury could conclude that B.C.’s disciplinary

history was hardly unusual for a young child who occasionally misbehaved.

Furthermore, I do not believe that B.C.’s prior disciplinary history, and indeed any past

behavioral problems, are directly relevant under Tinker.3 Indeed, the question under Tinker is

whether this boy’s speech itself had the potential to cause a disruption at school, not whether the

drawing might have predicted that B.C. was planning an attack.

3

I note that in certain situations, in evaluating a student’s threat under Tinker, it may be

appropriate, and even necessary, to assess the student’s prior disciplinary history as part of an

inquiry into whether or not school officials reasonably believed that the threat might cause a

substantial disruption. For instance, if a student who makes a threat had a history of aggressive

and violent behavior—and his or her classmates were aware of that history—then they might be

more likely to take such a threat seriously. As a result, such a threat might reasonably be

expected to cause a substantial disruption by frightening members of the school community,

even if the same threat, when made by another student, might not. In this case, however, I

believe that a jury could conclude that B.C.’s drawing, even in light of any prior problems he

may have had, still did not have the potential to cause such fear.

12

In Tinker, the issue was whether the First Amendment protected students who wore black

armbands in school to signal their opposition to the Vietnam War. The school banned the

armbands because of the school’s “wish to avoid the controversy which might result from the

expression.” Tinker, 393 U.S. at 510 (emphasis added). The concern was that the expression

itself— that is, the symbolic act of wearing an armband—would cause a disruption among the

students, one that, given the undoubtedly strong feelings held by many students about the war,

“might evolve into something which would be difficult to control.” Tinker, 393 U.S. at 509 n.3

(internal quotation mark omitted); see also Wisniewski, 494 F.3d at 38 (describing Tinker as

holding “that student expression may not be suppressed unless school officials reasonably

conclude that it”—that is, the expression itself—“will ‘materially and substantially disrupt the

work and discipline of the school’” (emphasis added)).

The school in Tinker was not worried that the armbands might signal a desire on the part

of the students wearing them to lash out violently against their classmates, but rather just the

opposite—that other students might lash out at them. See Tinker, 393 U.S. at 508 (“Any word

spoken, in class, in the lunchroom, or on the campus, that deviates from the views of another

person may start an argument or cause a disturbance.”). Put simply, Tinker held that a school

may restrict speech that itself has the potential to cause a substantial disruption. In other words,

Tinker requires a causal link between the speech that school officials want to suppress and the

substantial disruption that they wish to avoid.

The Supreme Court has made clear that even though the First Amendment may permit

restrictions on certain speech in order to avoid the harmful effects of such expression, there must

be, at a minimum, a causal relationship between the speech that the government wants to

suppress and the harmful effects that justify the suppression. In Ashcroft v. Free Speech

13

Coalition, 535 U.S. 234 (2002), the Court rejected an attempt to restrict expression in part

because “the causal link” between the expression that the government sought to restrict and the

harm it wanted to prevent was “contingent and indirect.” Id. at 250. The Ashcroft Court wrote:

“The harm does not necessarily follow from the speech, but depends upon some unquantified

potential for subsequent criminal acts.” Id.; see also Morse, 551 U.S. at 410 (“It was reasonable

for [the school’s principal] to conclude that the banner promoted illegal drug use—in violation of

established school policy—and that failing to act would send a powerful message to the students

in her charge . . . about how serious the school was about the dangers of illegal drug use. The

First Amendment does not require schools to tolerate at school events student expression that

contributes to those dangers.” (emphasis added)).

To be sure, the Supreme Court used the word “forecast” in Tinker, concluding that “the

record does not demonstrate any facts which might reasonably have led school authorities to

forecast substantial disruption of or material interference with school activities.” Tinker, 393

U.S. at 514 (emphasis added); see also Doninger v. Niehoff, 527 F.3d 41, 51 (2d Cir. 2008)

(“The question is not whether there has been actual disruption, but whether school officials

“might reasonably portend disruption” from the student expression at issue.” (emphasis added)

(quoting LaVine v. Blaine Sch. Dist., 257 F.3d 981, 989 (9th Cir. 2001))). But the facts of

Tinker—which involved political speech that itself had the potential to provoke a violent reaction

from other students—clearly indicate that the Court was merely contemplating that school

authorities might correctly forecast that the speech at issue had the potential to cause a

disruption, not that the speech might somehow forecast or predict the actions of a particular

student.

14

The majority follows the lead of other courts by relying on our justified fears of yet

another horrific school shooting in an effort to innoculate the school’s actions against

constitutional scrutiny. See Majority Op. at 11 (“Courts have allowed wide leeway to school

administrators disciplining students for writings or other conduct threatening violence.”);

Majority Op. at 10 (“When B.C. was suspended, he had a history of disciplinary issues, and his

other earlier drawings and writings had also embraced violence.”); see also Ponce v. Socorro

Indep. Sch. Dist., 508 F.3d 765, 772 (5th Cir. 2007) (“School administrators must be permitted to

react quickly and decisively to address a threat of physical violence against their students,

without worrying that they will have to face years of litigation second-guessing their judgment as

to whether the threat posed a real risk of substantial disturbance.”); Boim v. Fulton Cnty. Sch.

Dist., 494 F.3d 978, 984 (11th Cir. 2007) (“We can only imagine what would have happened if

the school officials, after learning of Rachel’s writing, did nothing about it and the next day

Rachel did in fact come to school with a gun and shoot and kill her math teacher.”).

But there is absolutely no question that a school, upon reading a student’s journal entry

or overhearing a comment made in class, can investigate—and even detain—that student in order

to determine whether he poses a threat to himself or others at the school. As we concluded in

Cox v. Warwick Valley Cent. Sch. Dist., 654 F.3d 267 (2d Cir. 2011), “a school administrator

must be able to react to ambiguous student speech by temporarily removing the student from

potential danger (to himself and others) until it can be determined whether the speech represents

a real threat to school safety and student learning.” Id. at 274. As a result, there is no doubt that

a school may respond to a student’s use of violent language in order to determine whether the

student poses “a real threat,” id., and thus take protective action in order to ensure school safety,

15

see id. (“In their various roles, school administrators must distinguish empty boasts from serious

threats, rough-housing from bullying, and an active imagination from a dangerous impulse.

Making such distinctions often requires an investigation, and the investigation may result in

discipline, but the investigation itself is not disciplinary—it is precautionary and protective.”).

Indeed, a school certainly need not wait for a disruption to occur in order “to step in before

actual violence erupts.” Morse, 551 U.S. at 425 (Alito, J., concurring).

V.

While a young child’s call for the destruction of his school and the killing of his teachers

may not seem to “justif[y] sounding the First Amendment bugle,” Morse, 551 U.S. at 409, I

believe that there are important, if subtle, free speech values at stake in this case.

B.C.’s teacher explicitly suggested that her students consider writing about missiles.

While the concept of irony may seem well beyond the ken of an average ten-year-old, young

children routinely experiment with the seeds of satire. They learn by fumbling their way to

finding the boundaries between socially permissible, and even encouraged, forms of expression

that employ exaggeration for rhetorical effect, and impermissible and offensive remarks that

merely threaten and alienate those around them.

This young boy’s drawing was clearly not some subtle, ironic jab at his school or broader

commentary about education. It was a crude joke. But the First Amendment should make us

hesitate before silencing students who experiment with hyperbole for comic effect, however

unknowing and unskillful that experimentation may be. See Yankee Publ’g Inc. v. News Am.

16

Publ’g Inc., 809 F. Supp. 267, 280 (S.D.N.Y. 1992) (“First Amendment protections do not apply

only to those who speak clearly, whose jokes are funny, and whose parodies succeed.”).

For the foregoing reasons, I respectfully dissent.

17