Appendix — DeFabio v. East Hampton Union Free School District

APPENDIX A

United States District Court,

E.D. New York.

Daniel DeFABIO, Patricia DeFabio, and Michael Rusinsky,

Plaintiffs,

v.

EAST HAMPTON UNION FREE SCHOOL DIST., et al.,

Defendants.

No. 07-CV-1717 (JFB)(ARL).

Oct. 1, 2009.

Opinion, 2009 WL 3113111, amended and superseded.

*467 Raymond G. Kuntz, Esq., Leah L. Murphy, Esq., of

Kuntz, Spagnuolo & Murphy, P.C., Bedford Village, NY, for

Plaintiffs.

Jeltye DeJong, Esq., David H. Arsten, Esq., Kelly E. Wright,

Esq., of Devitt, Spellman, Barrett, LLP, Smithtown, NY, For

defendants.

AMENDED MEMORANDUM AND ORDER

JOSEPH F. BLANCO, District Judge:

Plaintiffs Daniel DeFabio (“Daniel” or “D.D.”), Patricia

DeFabio (“Ms. DeFabio”) and. Michael Rusinsky (“Mr.

Rusinsky”) (collectively, “plaintiffs’) bring this action,

pursuant to 42 U.S.C. § 1983, against the defendants, alleging

violation of Daniel's constitutional mghts under the First and

Fourteenth Amendments to the United States Constitution,

including freedom of speech, freedom of association, due

process and equal protection. Plaintiffs also claim the

defendants slandered and libeled Daniel under state law, and

committed other violations of state law. Plaintiff further

asserts that defendants’ actions caused Ms. DeFabio and Mr.

Rusinsky to suffer humiliation, embarrassment, depression,

mental anguish, anxiety, and other pain and suffering, and to

expend money on education, travel, medical and mental

health expenses in order to make themselves whole.

The claims relate to events at East Hampton High School on

April 26, 2004, while Daniel was a sophomore at the school,

and the school officials’ decisions on that day, and in the time

period that followed, with respect to Daniel. Specifically,

plaintiffs allege that, on April 26, 2004, a racially offensive

comment was falsely attributed to Daniel concerning the

death of a Hispanic student and that the school violated his

rights to freedom of speech and association by preventing

him from proclaiming his innocence at the school over the

public announcement system, at a school assembly, or by

some other mechanism. Plaintiffs further allege that school

officials' decision to expel Daniel from the school-allegedly

without notice, a proper hearing, or the ability to fairly

confront his accusers-violated his procedural and substantive

due process rights, as well as his equal protection nghts.

Defendants now move for summary judgment. For the

following reasons, defendants’ motion for summary judgment

is granted on the Section 1983 claims. The *468 Court

declines to exercise supplemental jurisdiction over any state

claims and, thus, dismisses those claims without prejudice.

I. Background

A. Facts

The facts descnbed below are taken from the parties’

depositions, affidavits, exhibits and the parties' Local Rule

56.1 statements of facts. Upon consideration of a motion for

summary judgment, the Court shall construe the facts in the

light most favorable to the non-moving party. See

Capobianco v. City of N.Y., 422 F.3d 47, 54-55 (2d

Cir.2005).

During the school year of 2003-2004, Daniel was a tenth

grade student at East Hampton High School. (Defendants'

[3a]

Local Rule 56.1 Statement of Facts (“Defs.' 56.1”) 9 1.) FN1

Ms. DeFabio is Daniel's mother. (Defs.' 56.1 4 2.) Mr.

Rusinsky 1s not Daniel's biological or adoptive father, and is

not married to Ms. DeFabio, but he resides in the family

home of Daniel and Ms. DeFabio, considers himself Daniel's

stepfather, and was a parental authority with whom the

school could communicate concerning Daniel. (Rusinsky

Dep. at 7, 13-19.)

FN1. Where only one party's Rule 56.1 statement is cited, the

opposing party does not dispute that fact or has offered no

evidence to controvert that fact.

On Apmil 24, 2004, a Hispanic student from East Hampton

High School was killed in a motorcycle accident. (Defs.' 56.1

4] 4.) The following Monday, April 26, 2004, was a day of

mourning in East Hampton High School. (Defs.' 56.i 4 4.)

That morning, Daniel asserts that, as he was walking 1n the

hall to his third period class, he heard a student say “one

down, 40,000 to go,” in an apparent reference to the student

who died. (Daniel Dep. at 24.) According to Daniel, he

(Daniel) then repeated this statement to another student, D.A.

(Defs.' 56.1 4] 6; Daniel Dep. At 33.) Specifically, Danicl

testified that he whispered “I just heard someone say ‘one

down, 40,000 to go’ ” to D.A. with his hand cupped around

D.A.'s ear.FN2 (Daniel Dep. at 34.) Throughout that day,

word spread through school that Daniel was the originator of

the “one down, 40,000 to go” comment. (Defs.’ 56.1 4 7.) For

example, Ralph Naglien, who was a guidance counselor and

was in the auditorium that had been designated for students

as an area where they could mourn, spoke with a student,

S.U, and, S.U. was very upset and speaking loudly about a

student in the cafetena who had made a comment about

Hispanic students. (Naglien Dep. at 8-10.) S.U. advised both

Naglieri and another school staff member that people were

very upset over the comment and pointed Daniel out as the

person who had made the comment. ( Id. at 10-11.)

FN2. As noted infra, D.A. disputes that Daniel qualified the

statement to him with “T just heard,” and believed Daniel was

the originator of the statement.

Also, during eighth penod that afternoon, while Daniel was

in the cafeteria celebrating a fricnd's birthday, a group of 4 or

5 Latino students came up to him yelling about a racist

comment. (Daniel Dep. at 39-41.) Daniel did not fully

understand what they were saying, but one of them threw

something at Daniel. ( Id. at 41) Daniel then told them that he

had done nothing wrong, and they walked away. ( Id.) Daniel

was scared and thought he was going to be beaten up. (Defs.'

56.1 4 9.) A few minutes after this confrontation, Naglien

approached Daniel's table and “physically grabbed” him and

told him, “come with me.” (Daniel Dep. at 45-46.) Daniel did

not resist because he was “pretty scared.” (Defs.' 56.1 4 10.)

*469 Mr. Naglien took Daniel to the nurse's office. Danicl

had a sense that these incidents had to do with the “one

down, 40,000 to go” comment. (Defs.' 56.1 4 12.) Mr.

Naglien asked Daniel about the comment, and Daniel denied

that he originated the remark. (Defs.' 56.1 4 13; Daniel Dep.

at 49-50.) Daniel explained to Mr. Naglieri that he overheard

the statement being made by someone else and that he merely

repeated it. (Defs.' 56.1 4 14.) An Assistant Principal then

came to the nurse's office and asked Daniel if he made the

statement. Daniel said no. (Defs.' 56.1 ¥ 15.)

Daniel was in the nurse's office for about twenty minutes.

(Daniel Dep. at 50, 54.) During this time, there were “a lot”

of Latino students looking into the office through a window,

which made Daniel uncomfortable and afraid. Daniel heard

people outside yelling that they were going to kill him.

(Defs.' 56.1 9] 16-17.) Principal Scott Farina called the police

to escort Daniel from school, and Daniel “ran” out with an

Assistant Principal and the police officer on either side of

him. (Defs.' 56.1 79 18-19; Daniel Dep. at 56-58.) As Daniel

left, the Latino students he saw outside the nurse's office

were still there, and some were yelling in Spanish. (Daniel

Dep. at 58-59.) People at school made threats that they would

kill Daniel and bomb his house, making him even more

frightened than before. (Defs.' 56.1 4 20.)

Ms. DeFabio was informed that Daniel was being sent home

from school because there were 150 students who wanted to

knock down his door and beat him up. (Defs.' 56.1 4] 21.)

That evening, Principal Farina did not tell Ms. DeFabio that

Daniel was suspended, but told her that he should stay home

for a few days because it was not safe for him to return to

school until the situation calmed. (Defs.' 56.1 9§] 22-24.)

The parties dispute whether Danicl was suspended as of

being sent home on Apmil 26, 2004. Defendants contend that

he was simply sent home for his safety at that point, and was

not suspended. (Farina Dep. at 20.) Plaintiffs, however,

contend that he was suspended, as he was removed from

school and not permitted to return. (Pls.' 56.1 4 24.) They

further contend that the situation had calmed down by the

time the police arrived at the school and, therefore, there was

no need to send Daniel home. (Farina Dep. at 40.)

On Tuesday, Apml 27, 2004, Daniel prepared a letter

proclaiming his innocence and asked Principal Farina if he

could read it over the loudspeaker. (Defs.' 56.1 4 25.)

Principal Farina denied this request, stating that he thought it

would make the students angner and would cause more

problems in the school. (Defs.' 56.1 4 25.) Daniel also

requested permission to read the statement at a school

assembly, but this was also denied. (Defs.' 56.1 4 26.)

The parties dispute whether an investigation into the issue

was conducted between Apmil 26, 2004 and April 30, 2004.

Defendants contend that Principal Farnna conducted an

[6a]

investigation, in which he interviewed Daniel and several

other students to get their recollections of what had occurred.

(Farina Dep. at 20-21.) Plaintiffs point to the findings of the

Commissioner of Education-namely, that “the principal

admitted that his investigation did not include any subsequent

interviews with D.D. after the day of the incident and there

were no written reports of any investigation to substantiate

the charges,” to support their contention that no investigation

was conducted. (Commissioner's Decision, dated August 7,

2006, at 5.)

On April 28, 2004, a meeting was held between Ms.

DeFabio, Mr. Rusinsky, Principal Farina, guidance counselor

Caryn *470 Lieber, and Assistant Principal Michael Burns.

Principal Farina advised that Daniel's continued absence was

necessary in order to calm the situation. (Defs.' 56.1 4 28.) At

that time, Daniel had mixed feelings about returning to

school-he wanted to in one respect, but he remained scared.

(Defs.' 56.1 4 29.)

On April 30, 2004, plaintiffs were advised that Daniel was

being suspended from school for 5 days and that a

Superintendent's hearing might be convened. (Defs.' 56.1 4

30.) Between April 26, 2004 and May 7, 2004, plaintiff

received a couple of threatening phone calls to his house and

cell phone. (Defs.' 56.1 § 31.) The voicemail left on his cell

phone was in Spanish. (Defs.' 56.1 § 31.) Pmncipal Farina

heard threats at the school that people were going to light

Daniel's house on fire. (Defs.' 56.1 4 32.) As a result, police

stayed in the vicinity of Daniel's house for about a week after

April 26, 2004. (Defs.' 56.1 § 32.)

On May 7, 2004, a Superintendent's Hearing was held. (Defs."'

56.1 | 33.) Two students, D.A. and N.C., testified against

Daniel at the hearing. (Defs.' 56.1 4] 34.) At the hearing, D.A.

attributed the offensive comment to Daniel and denied that

Daniel prefaced the comment by saying “I heard someone

say” and, thus, believed that Daniel was the originator of the

comment. (Commissioner's Decision, dated August 6, 2006,

at 5.) N.C. admitted that she did not hear the exchange

between Daniel and D.A. ( Id. at 6.) Daniel testified at the

hearing and admitted he made the comment to D.A., but

denied he was the originator of the comment; rather, he

maintained that he had overheard the comment in the hallway

and simply repeated it. ( Id. at 5.)

The Superintendent found Daniel guilty of making the racist

comment and suspended him from school for the remainder

of the school year. (Defs.' 56.1 4 35.) After the hearing,

Principal Farina escorted Daniel to a meeting with twelve

students representing the school's Latino community. (Defs.'

56.1 § 36.) Daniel explained his version of events at the

meeting and distributed a copy of the statement he had

wanted to read over the loudspeaker. (Defs.' 56.1 9 37-38.)

According to Daniel, most of the students appeared not to

believe Daniel's story and commented that the fact that

Daniel did not make a statement earlier and did not return to

school made it look like he was lying. (Daniel Dep. at 91.)

Principal Farina explained to the students that he had not

permitted Daniel to return to school and that he had denied

Daniel's request to disseminate a statement explaining his

version of events. (Defs.' 56.1 4 40.)

Daniel was home tutored for the remainder of the school

year. (Daniel Dep. at 100-101.) The parties dispute when the

tutoring began-defendants claim that Daniel was tutored

beginning around May 3, 2004 (Defs.' 56.1 §] 41), while

plaintiffs contend that tutoring began on May 10, 2004.

(Daniel Dep. at 101.)

According to Daniel, that summer, Daniel received threats

from various, unknown Latino individuals while he was

working. (Defs.' 56.1 4] 48.) One of them almost came onto

the boat Daniel was working on to fight him, but was stopped

[8a]

by the first mate. (Daniel Dep. at 97.) On a couple of other

occasions, when Daniel was in the car, people would curse

and yell at him and say they were going to kill him. (Defs.'

56.1 4 49.) On one occasion, a Latino student saw him at a

gas station and said Daniel was lucky he did not “pop” him.

(Defs.' 56.1 4] 50; Daniel Dep. at 105.) Daniel never reported

these incidents to the police. (Defs.' 56.1 951.)

During the summer of 2004, Ms. DeFabio and Mr. Rusinsky

met with Principal Farina to discuss Daniel's return to school.

*471 (Defs.' 56.1 § 46.) Plaintiffs did not feel that the school

was taking adequate measures to secure Daniel's safety, and,

therefore, decided that he would have to leave the state to be

safe. (Defs.’ 56.1 § 47; Pls.' 56.1 9 47.) The parties dispute

when the decision not to return to East Hampton High Schoo!

was made by plaintiffs. Plaintiffs contend that Ms. DeFabio

made the decision in August 2004. (Daniel Dep. at 107-08.)

Defendants contend that plaintiff never expected to return to

East Hampton High School during the summer of 2004.

(Defs.' 56.1 §] 52.) According to the plaintiffs, they made the

joint decision that Daniel should go to California to school

for his own safety, based on threats that had been made in-

person, over the phone and through third parties. (Defs.’ 56.1

q 53.)

Plaintiffs appealed the decision of the Superintendent to the

East Hampton Board of Education, but the appeal was

denied. (Defs.' 56.1 4] 42.) Plaintiffs then sought a reversal of

the suspension and expungement of Daniel's record before

the New York State Commissioner of Education. (Defs.' 56.1

4] 43.) The Commissioner sustained the appeal, overturned

the Superintendent's decision and ordered that the incident be

expunged from Daniel's student record. (Defs.' 56.1 4 44.)

The Commissioner explained that “the superintendent failed

to discuss any facts or testimony of the witnesses and his

decision does not demonstrate that he addressed or weighed

their credibility or demeanor.” (Commissioner's Decision,

dated August 7, 2006, at 5.) Thus, the Commissioner

concluded the following: “While I recognize the highly

charged emotional atmosphere surrounding this event, and do

not in any way condone the biased nature of the comment,

under the circumstances of this case and the record before

me, I am constrained to determine that the record does not

contain sufficient and- competent evidence that D.D.

generated the offensive comment and thus engaged in the

objectionable conduct as charged.” ( Id.)

B. Procedural History

Plaintiffs filed a complaint in this action on Apnl 25, 2007.

On May 30, 2007, defendants filed an answer to plaintiffs'

complaint. On November 10, 2008, defendants filed a motion

for summary judgment. Plaintiff filed his opposition on

January 7, 2009. Defendants filed a reply on January 20,

2009. Oral argument was held on May 28, 2009. The Court

has considered all of the parties’ submissions.

IJ. Summary Judgment Standard

The standards for summary judgment are well settled.

Pursuant to Federal Rule of Civil Procedure 56(c), a court

may not grant a motion for summary judgment unless “the

pleadings, depositions, answers to interrogatomes, and

admissions on file, together with affidavits, if any, show that

there is no genuine issue as to any material fact and that the

moving party is entitled to judgment as a matter of law.”

Fed.R.Civ.P. 56(c); Globecon Group, LLC v. Hartford Fire

Ins. Co., 434 F.3d 165, 170 (2d Cir.2006). The moving party

bears the burden of showing that he or she is entitled to

summary judgment. See Huminski v. Corsones, 396 F.3d 53,

69 (2d Cir.2004). The court “is not to weigh the evidence but

is instead required to view the evidence in the light most

favorable to the party opposing summary judgment, to draw

all reasonable inferences in favor of that party, and to eschew

credibility assessments.” Amnesty Am. v. Town of W.

Hartford, 361 F.3d 113, 122 (2d Cir.2004); see also Anderson

[10a]

v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91

L.Ed.2d 202 (1986) (summary judgment is unwarranted if

“the evidence is such that a reasonable jury could return a

verdict for the nonmoving party’).

Once the moving party has met its burden, the opposing party

“must do more *472 than simply show that there is some

metaphysical doubt as to the material facts ... [T]he

nonmoving party must come forward with specific facts

showing that there is a genuine issue for trial.” Caldarola v.

Calabrese, 298 F.3d 156, 160 (2d Cir.2002) (quoting

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.

574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). As the

Supreme Court stated in Anderson, “{i]f the evidence is

merely colorable, or is not significantly probative, summary

judgment may be granted.” 477 U.S. at 249-50, 106 S.Ct.

2505 (citations omitted). Indeed, “the mere existence of some

alleged factual dispute between the parties” alone will not

defeat a properly supported motion for summary judgment.

Id. at 247-48, 106 S.Ct. 2505. Thus, the nonmoving party

may not rest upon mere conclusory allegations or denials, but

must set forth “concrete particulars” showing that a trial is

needed. R.G. Group, Inc. v. Horn & Hardart Co., 751 F.2d

69, 77 (2d Cir.1984) (internal quotations omitted); Tufariello

v. Long Island R.R., 364 F.Supp.2d 252, 256

(E.D.N.Y.2005). Accordingly, it is insufficient for a party

opposing summary judgment “merely to assert a conclusion

without supplying supporting arguments or facts.” BellSouth

Telecomms., Inc. v. W.R. Grace & Co., 77 F.3d 603, 615 (2d

Cir.1996) (internal quotations omitted).

III. Discussion FN3

FN3. As a threshold matter, although both Daniel and

Patricia DeFabio have standing to sue, defendants challenge

Michael Rusinksy's standing to sue in this action on the basis

that he “has no legally recognized relationship with Daniel

DeFabio.” (Defendants' Memorandum of Law, at 8.)

Plaintiffs contend that Mr. Rusinsky has standing because he

has regularly resided in Daniel's household and, therefore, is

considered “immediate family” under New York law.

(Plaintiffs' Memorandum of Law, at 21.) However, it is

undisputed that Mr. Rusinsky is neither a biological or an

adoptive parent, nor is he married to Daniel's mother, and Mr.

Rusinsky is not regarded as a step-parent by virtue of his

relationship. See Eckhardt v. Eckhardt, 37 A.D.2d 629, 323

N.Y.S.2d 611 (N.Y.App.Div.1971). Thus, the Court agrees

with defendants and concludes that mere residence in a

household is insufficient to confer standing on Mr. Rusinsky

to assert claims here. In any event, even assuming arguendo

Mr. Rusinsky also had standing to sue, his claims would not

survive summary judgment on the merits for the same

reasons as the other plaintiffs, for the reasons discussed infra.

A. The Underlying Section 1983 Claims

[1] 4 (2) [3] MTo prevail on a claim under 42 U.S.C. §

1983, a plaintiff must show: (1) the deprivation of any nghts,

privileges, or immunities secured by the Constitution and

laws; (2) by a person acting under the color of state law. 42

U.S.C. § 1983. “Section 1983 itself creates no substantive

rights; it provides only a procedure for redress for the

deprivation of rights established elsewhere.” Sykes v. James,

13 F.3d 515, 519 (2d Cir.1993). Plaintiffs contend that

defendants violated Daniel's constitutional rights to free

speech, freedom of association, due process and equal

protection. Defendants now move for summary judgment on

the grounds that, based on the evidence in the record, no

reasonable juror could find that defendants violated any of

Daniel's constitutional mghts. The Court will address each

issue in turn.

1. Freedom of Speech Claim

Plaintiffs contend that defendants violated Daniel's First

Amendment nghts by denying him an opportunity to

communicate his prepared statement to the student body in a

[12a]

number of ways. Specifically, plaintiffs contend that

defendants should have allowed Daniel's statement about the

April 26, 2004 events: (1) to be read over the school intercom

system; (2) to be read at an all-school assembly in the

auditorium;*473 or (3) to be distributed to the students.

[4] 15] A Defendants contend that because such speech

required “the pulpit of the school's PA system and/or

auditorium” or distribution by school administration it would

be “school-sponsored speech” and, therefore, may be

censored “so long as censorship is reasonably related to

legitimate pedagogical concerns”-in this case, a concern that

such speech would “further incite an already tense situation”

and “could foreseeably disrupt the student body and wreak

havoc in the school.” (Defendant's Memorandum of Law, at

11-12 (citing Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S.

260, 108 S.Ct. 562, 98 L.Ed.2d 592 (1988)).) They note that

plaintiff was not prevented from communicating with his

peers via telephone, e-mail, or any other ordinary channel;

“rather he sought for the school to provide him with the

means and medium to communicate by either public address

system or a_ school-wide assembly.” (Defendant's

Memorandum of Law, at 11.) Plaintiffs, however, contend

that the appropriate standard to apply here is the one set forth

in Tinker v. Des Moines Independent Community School

District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969),

which states that student expression may be restricted where

it “would substantially interfere with the work of the school,”

or would cause “material and substantial interference with

schoolwork or discipline.” Tinker, 393 U.S. at 511, 513, 89

S.Ct. 733. As set forth below, although plaintiffs made a

number of requests that would constitute school-sponsored

speech and be analyzed under Hazelwood, they also allege

that (prior to any suspension) Daniel was prevented from

returning to school and speaking to students without any

assistance from the school. Thus, the school's decision is

properly analyzed under the Tinker standard, rather than

[13a]

Hazelwood, and the undisputed facts demonstrate that

defendants are entitled to summary judgment on this claim

under Tinker.

a. Applicable Level of Constitutional Scrutiny

[6] Wit is axiomatic that “[f]reedom to speak on government

property is largely dependent on the nature of the forum in

which the speech is delivered.” Bronx Household of Faith v.

Cmty. Sch. Dist. No. 10, 127 F.3d 207, 211 (2d Cir.1997).

Thus, when determining the level of constitutional scrutiny to

be applied to state actions regulating speech, the court should

first consider the threshold issue regarding the type of forum.

See Peck ex rel. Peck v. Baldwinsville Cent. Sch. Dist., 426

F.3d 617, 625 (2d Cir.2005) ( “Because the level of judicial

scrutiny that must be applied to state actions inhibiting

speech varies with the nature of the forum in which the

speech occurs, we must first consider what sort of forum had

been created....”’).

{7] 48} 4 (9) 410) A There are “four categories [of fora

for expression] that, correspondingly, fall along a spectrum of

constitutional protection.” Id. The categories from highest

protection to lowest are the traditional public forum, the

designated public forum, the limited public forum, and the

non-public forum. See Make the Road by Walking, Inc. v.

Turner, 378 F.3d 133, 142-43 (2d Cir.2004). A school is

generally a non-public forum, a place in which the

government “does no more than reserve eligibility for access

to the forum to a particular class of speakers, whose members

must then, as individuals, obtain permission to use it.” Ark.

Educ. Television Comm'n v. Forbes, 523 U.S. 666, 679, 118

S.Ct. 1633, 140 L.Ed.2d 875 (1998) (citation and internal

quotation marks omitted); see also M.B. v. Liverpool Cent.

Sch. Dist., 487 F.Supp.2d 117, 133 (N.D.N.Y.2007)

(Generally, school facilities are nonpublic forums.”).

“School facilities may be deemed *474 to be public forums

only if school authorities have by policy or practice opened

those facilities for indiscriminate use by the general public, or

by some segment of the public.... If the facilities have instead

been reserved for other intended purposes, communicative or

otherwise, then no public forum has been created....”

Hazelwood, 484 U.S. at 267, 108 S.Ct. 562 (internal citations

and quotation marks omitted). “A ‘designated public forum’

is a place not traditionally open to public assembly and

debate-a public school, for example-that the government has

taken affirmative steps to open for general public discourse.”

Peck, 426 F.3d at 626. A limited public forum is created

when the state “opens a non-public forum but limits the

expressive activity of certain kinds of speakers or to the

discussion of certain subjects.” Hotel Employees & Rest.

Employees Union, Local 100 v. City of N.Y. Dep't of Parks

& Recreation, 311 F.3d 534, 545 (2d Cir.2002).

[11] A The forum determines the type of constitutional

scrutiny that applies to the restriction of speech. Speech in a

public forum may only be restricted on the basis of content if

“necessary to serve a compelling state interest and

narrowly drawn to achieve that end.” Make the Road by

Walking, 378 F.3d at 142. “Rules governing the content of

speech in a limited public forum must be reasonable and

viewpoint-neutral.” M.B., 487 F.Supp.2d at 132. Courts will

“uphold a governmental restriction on speech in a nonpublic

forum as long as the restriction is reasonable and viewpoint-

neutral.” Perry v. McDonald, 280 F.3d 159, 169 (2d

Cir.2001).

Here, there is no question that the high school Was a non-

public forum. There is absolutely no evidence that the

defendants, as it related to the events at issue in this case,

opened the school facilities to use and expression by the

public or some segment of the public. In fact, plaintiff does

not even make such an assertion. Thus, the school 1s a non-

public forum in which content can be regulated in a

[1 Sa]

reasonable manner. See, e.g., Peck, 426 F.3d at 626-27

(holding that school was a non-public forum).

(12) 413] ‘A However, further analysis is required in this

case because the Supreme Court has also established specific

standards for analyzing the level of constitutional expression

afforded to students in the schoo! environment, focusing on

the nature of the speech, whether the speech is sponsored by

the school, and the reasons for regulating it. Although

students do not “shed their constitutional rights to freedom of

speech or expression at the schoolhouse gate,” Tinker, 393

U.S. at 506, 89 S.Ct. 733, their constitutional nghts “are not

automatically coextensive with the nghts of adults in other

settings,” Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675,

682, 106 S.Ct. 3159, 92 L.Ed.2d 549 (1986). Thus, the First

Amendment standards need to be “applied in light of the

special characteristics of the school environment.”

Hazelwood, 484 U.S. at 266, 108 S.Ct. 562 (citation and

internal quotation marks omitted). In particular, the Supreme

Court has analyzed different categories of schoo! speech and

applied separate standards of review to each category: (1)

schools may prohibit student speech that is vulgar, lewd,

indecent, or plainly offensive because “it is a highly

appropriate function of public school education to prohibit

the use of vulgar and offensive terms in public discourse,”

Bethel Sch. Dist. No. 403, 478 U.S. at 683-85, 106 S.Ct

3159; (2) schools may exercise editonal control over speech

that is school-sponsored “so long as their actions are

reasonably related to legitimate pedagogical concerns,”

Hazelwood, 484 U.S. at 273, 108 S.Ct. 562; (3) schools may

“restrict student speech at a school event, when that speech 1s

reasonably *475 viewed as promoting illegal drug use,”

Morse v. Frederick, 551 U.S. 393, 403, 127 S.Ct. 2618, 168

L.Ed.2d 290 (2007); (4) as to all other speech, the school

cannot suppress based on content unless the school official

reasonably concludes that the speech will “materially and

substantially disrupt the work and discipline of the school,”

[16a]

linker, 393 U.S. at 513, 89 S.Ct. 733. See also Guiles ex rel.

Guiles v. Marineau, 46] F.3d 320, 325 (2d Cuir.2006)

(summarizing First Amendment junsprudence involving

school speech).

[14] Min the instant case, there is no assertion that the

speech at issue was offensive, nor was it related to drug use.

Thus, none of the circumstances presented in Bethel or Morse

are at issuc here. Howcver, in order to determine which

standard applies, the Court must analyze whether the speech

that plaintiff alleged was prohibited was school-sponsored

speech. “The question whether the First Amendment requires

a school to tolerate particular specch ... is different from the

question whether the First Amendment requires a school

affirmatively to promote particular student speech.”

Hazelwood, 484 U.S. at 270, 108 S.Ct. 562 (emphasis

added). Whether speech is deemed “school-sponsored” such

that the Hazelwood standard applies, relies on a

determination of whether the speech “ ‘might reasonably

have been perceived to bear the imprimatur of the school.’ ”

Romano v. Harmngton, 725 F.Supp. 687, 690

(E.D.N.Y.1989) (quoting Hazelwood, 108 S.Ct. at 569). This

includes “activities [that] may fairly be characterized as part

of the school curnculum, whether or not they occur in a

traditional classroom setting, so long as they are supervised

by faculty members and designed to impart particular

knowledge or skills to student participants and audiences.”

Hazelwood, 484 U.S. at 270-71, 108 S.Ct. 562.

Here, plaintiffs assert that, after an article about the incident

appeared in the East Hampton Star on April 29, 2004, Daniel

requested an opportunity to respond to the rumors by

speaking to the students in one or more of the following

manners: (1) have Daniel read his statement at a school

assembly called in the auditonum; (2) have Daniel read his

statement at the school to all students over the school's public

announcement system; (3) have the school circulate a copy of

[17a]

Daniel's statement throughout the school to all students; or

(4) allow Daniel to return to school and distnbute his

statement to students on his own (without school assistance)

and/or speak to them about it during non-instructional time.

Plaintiffs allege that defendants refused to allow him to

return to the school to give the statement in any of these

manners, including on his own without any school assistance.

The Court will analyze each one of these issues in turn.

First, asking the school administration to call students into

the auditorium to listen to Daniel read his statement at a

school assembly dunng school hours on school property

might reasonably have been “perceiv[ed] to bear the

imprimatur of the school.” Hazelwood, 484 U.S. at 281, 108

S.Ct. $62. Therefore, such speech constitutes school-

sponsored speech. See, e.g., Poling v. Murphy, 872 F.2d 757,

762 (6th Cir.1989) (finding an election assembly to be

“school-sponsored” where the school scheduled the assembly

during school-hours on school property, and “made

attendance compulsory’’).

To the extent that plaintiffs contend that Daniel merely

wanted to use the auditorium with no assistance from the

school administration, the school auditorium was a non-

public forum to which Daniel had no nght to access on that

basis. Plaintiffs have pointed to no evidence that the school

had previously allowed the use of a school assembly

indiscriminately by the general *476 public, or even by

individual students or student groups. Plaintiffs suggest that

some type of public forum was created by the school! because

they had a grieving session in the school auditorium on April

26, 2004 regarding the student's death (at which students

spoke about the racially charged comment attributed to

Daniel) and, thus, Daniel was entitled to his own student

assembly to respond. In particular, plaintiffs contend that:

[o]n Apnl 26, 2004, school officials sanctioned the open

forum in the school's auditorium for the purpose of

eulogizing the student who had died. After the incident, that

same forum was admittedly used by students to express their

emotions and feelings about the racially charged comment

attributed to Daniel. (Kuntz. Aff. § 14.) School officials

testified that many students would come up to the mike and

“express their thoughts about the student that passed away ...

and why did this student say these things.” (Kuntz. Aff. J 14.)

Daniel was not provided with the same opportunity despite

the fact that the school had created a forum that very same

week for speech it found acceptable.

(Plaintiffs’ Memorandum of Law, at 13.) To the extent that

plaintiffs contend that this assembly was sufficient to convert

the auditorium into a public forum, such that the school

administration could not deny Daniel an opportunity to hold

an assembly there on a topic of his choosing, the Court finds

such argument unpersuasive. It is undisputed that (1) the

assembly was a school-sponsored assembly designed to aid

students in coping with loss and sadness from a student's

death; and (2) the assembly was scheduled prior to the

making of the comment at issue and was not intended to

encompass the reactions to that comment. The school opened

the auditonum for a narrow period of time to discuss the

narrow topic of a student's death. Therefore, it was analogous

to class time in that the school was holding the event for a

particular pedagogical aim. The fact that the assembly was

opened to students to make comments does not change the

nature of the forum. Nor does the fact that students may have

made comments about Daniel and the alleged statement

during that assembly turn the auditorium into a public forum

for use by any student. There is no indication that students

wishing to speak in support of Daniel were prevented from

doing so during the assembly on Apnl 26th. Moreover,

Daniel did not prepare his letter and make the request to give

his statement to students until Apnl 27th. Under these

circumstances, there is no basis for requiring the school to

hold another assembly specifically to create an opportunity

for Daniel to respond to prior, spontaneous statements by

other students. See Hazelwood, 484 U.S. at 267, 108 S.Ct.

562 (“School facilities may be deemed to be public forums

only if school authorities have by policy or practice opened

those facilities for indiscriminate use by the general public or

by some segment of the public.... If the facilities have instead

been reserved for other intended purposes, communicative or

otherwise, then no public forum has been created ....””); see

also Corder v. Lewis Palmer Sch. Dist. No. 38, 566 F.3d

1219, 1227 (10th Cuir.2009) (“school boards have the

authority to determine ‘what manner of speech in the

classroom or in school assembly is inappropriate’ ”’) (quoting

Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 683, 106

S.Ct. 3159, 92 L.Ed.2d 549 (1986)). In short, the fact that

students used a grieving session in the auditorium to voice

objections to the offensive comment attributed to Daniel

about the student's death did not convert the auditonum into a

public forum such that Daniel had a mght to speak at a

separate school assembly to respond.

Second, the use of the school's public announcement system

would also turn *477 Daniel's pnvate statement into school-

sponsored speech. See, e.g., Santa Fe Indep. Sch. Dist. v.

Doe, 530 U.S. 290, 309-10, 120 S.Ct. 2266, 147 L.Ed.2d 295

(2000) (“The delivery of [a religious] message-over the

school's public address system, by a speaker representing the

student body, under the supervision of school faculty, and

pursuant to a school policy that explicitly and implicitly

encourages public prayer-is not properly charactenzed as

‘private’ speech.”).

Third, the distnbution of a statement by the school also

would constitute school-sponsored speech as it may be

perceived as a school publication bearing the impnmatur of

the school. Any communication which uses the resources or

distribution system of the school for dissemination of speech

may be reasonably seen as school-sponsored. See, e.g., Busch

v. Marple Newtown Sch. Dist., 567 F.3d 89, 98 (3d Cir.2009)

(courts have found that show and tell presentations could “

‘appear to bear the school's seal of approval’ ”) (citation

omitted).

Therefore, if plaintiffs were only alleging that Daniel was

denied access to give the statement at a school assembly,

over the public address system, or through a mass distribution

of the statement by the school, the school's conduct would be

analyzed under the Hazelwood standard for the regulation of

school-sponsored speech. However, plaintiffs assert more

than that. Plaintiffs assert that Daniel was prohibited from

retuming to the school at all to distribute his wnitten

statement without assistance from the school and/or speak to

other students about it during noninstructional hours. FN4

Given plaintiffs’ assertion that Daniel also was prohibited

from returning to school to disseminate his statement in a

manner not sponsored by the school, the Court must analyze

the school's conduct under the more stringent Tinker

standard, rather than the Hazelwood standard.FN5

FN4. The Court notes that the focus of plaintiffs’ complaint,

as well as the testimony at the depositions and oral argument,

was the school's refusal to give Daniel access to the school's

public address system and/or a school assembly. As noted

above, such speech would clearly be school-sponsored and

would be analyzed under Hazelwood. However, the Court

liberally construes the complaint to include a _ general

allegation that Daniel was also denied the ability and option

to retum to the school and convey his speech without any

assistance from the school.

FNS. Tne Court notes that a school can place certain

restrictions on handbilling at schools even if such speech is

not school-sponsored. School “hallways constitute nonpublic

forums.” M.A.L. v. Kinsland, 543 F.3d 841, 846 (6th

[21a]

Cir.2008). As such, schools have the ability to regulate the

time, place, and manner of distributions in the hallways.

“Prohibiting handbilling in the hallway between classes is ...

reasonable to avoid congestion, confusion, and tardiness, to

say nothing of the inevitable clutter caused when the

recipient indiscriminately discards the handout.” Muller ex

rel. Muller v. Jefferson Lighthouse Sch., 98 F.3d 1530, 1543

(7th Cuir.1996) (“When, where, and how children can

distribute literature in a school is for educators, not judges, to

decide provided [such choices] are not arbitrary or

whimsical. [Requiring] the student and principal to determine

cooperatively an appropnate time and place for the

distribution .... permits flexibility so that the unique needs of

the school and the student can be accommodated. There is

nothing a priori unreasonable about that.”). Plaintiffs have

not identified any other student or organization who was

permitted to distribute literature in the hallway. Therefore,

plaintiffs have produced no evidence that defendants have

opened the hallway up to student distribution of leaflets. See,

e.g., M.A.L. v. Kinsland, 543 F.3d 841, 847 (6th Cir.2008)

(“Jefferson school authonties have done nothing to indicate

that the Jefferson Middle School hallways have been opened

for indiscriminate use by the public, and the hallways

therefore constitute a nonpublic forum. The school district

accordingly is entitled to put time, place, and manner

restrictions on hallway speech so long as the restrictions are

viewpoint neutral and reasonable 1n light of the school's

interest in the effectiveness of the forum's intended

purpose.”’). However, as noted above, because plaintiffs

assert that the prohibition by the defendants went beyond

restrictions on when, where and how he did it, but rather

extended to completely prohibiting him from communicating

his statement in any manner at the school (including by not

letting him into the school), Tinker is the applicable standard.

*478 b. Analysis under Tinker

As a threshold matter, the Court notes that, with respect to

the First Amendment claim, the period of time that is at issue

is from Apmil 26, 2004, which its the date of the events at the

school regarding the alleged comments, and Apmnil 30, 2004,

which is the date on which the school suspended Daniel for 5

days. Once the 5-day suspension took place on Apmil 30,

2004, and once Daniel was suspended for the remainder of

the school year after a Superintendent's Hearing on May 7,

2004, the First Amendment claim became moot because

Daniel was no longer permitted to be at the school. Although

there could be potential separate claims for such decisions by

the school (which are discussed infra ) under the Due Process

or Equal Protection Clauses, the existence of any such claims

is independent of the First Amendment issue. Therefore, the

critical question for the First Amendment claim is _ the

following: whether, between April 26, 2004 and Apmil 30,

2004, school officials reasonably concluded that the speech at

issue-Daniel's request to provide a written or oral statement

to the students regarding the rumored comment-would

“materially and substantially disrupt the work and discipline

of the school.” Tinker, 393 U.S. at 513, 89 S.Ct. 733.

Defendants argue that the principal denied Daniel's request to

return to school to address other students regarding the

rumored comment because he feared that such an event

would lead to even greater hostility toward Daniel and would

create disruption in the school and an unsafe environment for

Daniel and the student body. Plaintiffs contend that there was

no basis for such a conclusion. As set forth below, the Court

agrees with defendants and concludes that summary

judgment is warranted on the First Amendment claim

because, based upon the undisputed facts, no rational jury

could find that the defendants, in prohibiting Daniel's return

to the school and speech regarding the incident, did not

reasonably conclude that such speech would materially and

substantially disrupt the work and discipline of the school.

The undisputed facts demonstrate that both on the day of the

rumored comment by Daniel, as well as the weeks that

followed, there was overwhelming basis for concern about

Daniel's safety if he were to return to school for any reason

(including to engage in some type of speech to the students).

In particular, plaintiffs did not controvert the following facts

from the events of Apml 26, 2004 regarding threats to

Daniel's safety at the school: (1) after the rumor spread

through the school that Daniel was the originator of the “one

down, 40,000 to go” comment, Daniel was confronted by 4

or 5 Latino students in the cafeteria, who were yelling about a

racist comment and threw something at him (Defs.' 56.1 {| 8;

Daniel Dep. at 40); (2) Daniel was scared and thought he was

going to get beat up (Defs.' 56.1 4 9; Daniel Dep. at 44); (3)

Daniel did not resist the guidance counselor's attempt to

remove Daniel from the cafeteria and Daniel was “pretty

scared” at that time (Defs.' 56.1 4 11; Damiel Dep. at 46); (4)

while Daniel was in the nurse's office, Daniel heard people

outside the office yelling that they were going to “kill” him

and Daniel could see a lot of Latino students looking through

a window, which made plaintiff very uncomfortable and very

afraid (Defs.' *479 56.1 YJ 16-17; Daniel Dep. at 53-54); (5)

Daniel ran out of the school with a police officer and an

Assistant Pnncipal on each side of him (Defs.' 56.1 4 18;

Daniel Dep. at 57-58); and (6) as he left the school, some

Latino students were still watching him at a window, and

some were yelling at him in Spanish as he passed by (Defs.'

56.1 § 19; Daniel Dep. at 58-59). As Daniel testified at his

deposition, even after he returned home, he remained scared

because of threats he had heard at the school by other

students to kill him or bomb his house:

Q. Were you still frightened at that time [i.e., when he arrived

home]?

A. Very. More than before.

Q. What, specifically, was frightening you at that time?

A. People saying they were going to kill me, saying they

were going to bomb my house.

Q. Those were things you heard while you were in school? A.

Yeah.

(Daniel Dep. at 62-63).

However, the threats did not end when Daniel left the school

that day. In particular, there is undisputed evidence that the

threats to Daniel and concerns about his safety continued in

the days and weeks after the incident, including the

following: (1) between April 26, 2004 and May 7, 2004,

Daniel received a couple of threatening phone calls to his

house and cell phone (Defs.' 56.1 § 31; Daniel Dep. at 95-

96); (2) the police stayed in the vicinity of his house for about

one week after April 26, 2004 because the principal was

hearing threats in the school that people were going to light

Daniel's house on fire (Defs.' 56.1 §] 32; Daniel Dep. at 105-

06). Danie! testified that his mother expressed concerns to

him that someone was going to come to the house and kill

Daniel. (Daniel Dep. at 77). Daniel also testified that,

although he wanted to return to school in one respect, he did

not want to in another respect because he was “pretty

scared.” (Daniel Dep. at. 75-76). In fact, Daniel did not leave

his home from April 26, 2004 until May 7, 2004, when he

had a meeting with Latino students. (Daniel Dep. at 95).

Based upon this record, it is undisputed that there were

threats to Daniel's personal safety not only on the date of the

rumored incident, but in the days and weeks that followed.

Given those facts, it was reasonable for the school to

conclude that Daniel's presence at the school-even if to

engage in some type of speech to proclaim his innocence-

posed a threat to his personal safety and the safety of other

students because of the real possibility that violence could

erupt in the school due to his presence and/or speech, and no

rational jury could find otherwise. Plaintiffs suggest that such

fears were ill-founded because, once Daniel gave his

explanation and professed his innocence to the students, the

threats and safety issues would have been eliminated. That

argument ignores two key problems confronted by the

school. First, Daniel's mere presence at the school, even to

attempt to engage in speech, could have resulted in a violent

incident involving Daniel and/or others, given the volatile

circumstances. Second, the school officials had no way of

predicting whether the response to Daniel's speech by other

students would have been positive. In other words, the school

faced the reasonable possibility that other students would not

have believed his proclamation of innocence and that his

speech would escalate an already volatile, emotional situation

at the school and result in violence to Daniel and/or others at

the school. FN6

FN6. Further, with respect to any assembly and/or use of the

PA system, the Superintendent was concerned that, even if

the statement as written was not likely to be disruptive, once

a student had access to the PA system, his message might

change. (Superintendent's Dep. at 45-47 (“My experience is

that you don't give the students a live microphone with the

student body as the audience.... During the time that I've been

there, we have not given permission for a student to address

the entire school over the intercom system.”).) This concern

highlights the volatile and unpredictable nature of the

situation that confronted the school at that time under

extraordinary circumstance.

*480 To the extent that plaintiffs may suggest that the school,

even if they did not allow Daniel to return to the school to

engage in the speech dunng this period, should have

distributed his written statements to al] students. As a

threshold matter, the Court notes that any distribution of his

statement by the school under these circumstances would

constitute school-sponsored speech because, among other

things, the school's involvement in any way in _ the

distribution of this statement might reasonably have been

perceived to bear the impnmatur of the school. The school's

refusal to sponsor such speech is not only justifiable under

Hazelwood, but also satisfies the more stringent Tinker

standard for the same reasons articulated above-namely,

concerns about the disruption to the school that such speech

could cause, including violence or other disruptions by angry

and emotional students who may not believe Daniel's

statement and are outraged by his false exculpatory

statement, by the school's willingness to give him a forum to

make it, and by his potential return to the school]. In other

words, while the distribution of his speech at the school in his

absence would eliminate any potential harm to Daniel at the

school, it would not eliminate the potential harm and

disruption to the school that could reasonably result from the

response of students to his speech even in his absence.

[15] An this context, it is well settled that school officials

do not have to wait for actual disruption from the speech

before they act; instead, school officials have an affirmative

duty to prevent the disruption to the schoo! environment from

occurring in the first place. See, e.g., Doninger v. Niehoff,

527 F.3d 41, 51 (2d Cir.2008) (“(plaintiff's] argument is

misguided insofar as it implies that Tinker requires a showing

of actual disruption to justify a restraint on student speech’’);

see also Lowery v. Euverard, 497 F.3d 584, 596 (6th

Cir.2007) (“[s]chool officials have an affirmative duty to not

only ameliorate the harmful effects of disruptions, but to

prevent them from happening in the first place’); LaVine v.

Blaine Sch. Dist., 257 F.3d 981, 989(9th Cir.2001) (“ Tinker

does not require school officials to wait until disruption

actually occurs before they may act.”). To hold otherwise

would be to preclude school officials from preventing harm

to students, including violence, even where the substantial

disruption is reasonably foreseeable. Nothing in the First

‘

Amendment, or the Supreme Court jurisprudence interpreting

the First Amendment, requires such an absurd rule. As the

Sixth Circuit has explained, if school officials had to wait for

an actual disruption to satisfy the Tinker test,

school officials would be between the proverbial rock and the

hard place: either they allow disruption to occur, or they are

guilty of a constitutional violation. Such a rule is not required

by Tinker and would be disastrous public policy: requiring

school officials to wait until disruption actually occurred

before investigating would cmpple the officials’ ability to

maintain order.

Lowery, 497 F.3d at 596; see also Melton v. Young, 465 F.2d

1332, 1335 (6th Cir.1972) (“Surely those charged with

providing a place and atmosphere for educating young

Americans should not have to fashion their disciplinary rules

only after good order has been at least once demolished.’’).

*481 [16] M Not only are school officials free to act before

the actual disruption occurs, they are not required to predict

disruption with absolute certainty to satisfy the Tinker

standard. Although plaintiffs seek to second-guess with

hindsight the judgment of school administrators, that is not

the role of the courts. If the school's decision satisfies the

constitutional standard in Tinker, then it is irrelevant that a

litigant or court believes the situation could have been

handled better. See Wood v. Strickland, 420 U.S. 308, 326,

95 S.Ct. 992, 43 L.Ed.2d 214 (1975) (“It is not the role of the

federal courts to set aside decision of school administrators

which the court may view as lacking a basis in wisdom or

compassion.”). As the Supreme Court has emphasized in

Morse, “[s]chool principals have a difficult job, and a vitally

important one.” 551 U.S. at 409-10, 127 S.Ct. 2618.

Moreover, “[florecasting disruption is unmistakably difficult

to do.” LaVine, 257 F.3d at 989. Thus, rather than requiring

certainty of disruption, Tinker allows school officials to act

and prevent the speech where they “ ‘might reasonably

portend disruption’ from the student expression at issue.”

Doninger, 527 F.3d at 51 (quoting LaVine, 257 F.3d at 989);

see also Nuxoll ex rel. Nuxoll v. Indian Prairie Sch. Dist. #

204, 523 F.3d 668, 673 (7th Cir.2008) (“Taking the case law

as a whole we don't think a school is required to prove that

unless the speech at issue is forbidden serious consequences

will in fact ensue. That could rarely be proved.... It is enough

for the school to present facts which might reasonably lead

school officials to forecast substantial disruption.’’)

(quotations and citations omitted); LaVine, 257 F.3d at 990

(“[B]jecause of the special circumstances of the school

environment, the level of disturbance required to justify

official intervention is lower inside a public school than it is

outside the school.”). Moreover, in assessing the

reasonableness of the decision regarding potential disruption,

courts must keep in mind that school officials also are

entitled to rely upon their expertise and experience in making

these often difficult judgments in _— extraordinary

circumstances. As one court has noted,

The First Amendment does not deprive school administrators

of the ability to rely upon their own considerable experience,

expertise, and judgment in recognizing and diffusing the

potential for disruption and violence in public schools.

Indeed, they are duty-bound to do just that. That duty is

particularly acute when threats of physical violence have

already been made and actual violence could well erupt if the

hostile situation is not promptly and emphatically controlled.

Governor Wentworth Regional School Dist. v. Hendrickson,

421 F.Supp.2d 410, 423-24 (D.New Hamp.2006).

[17] A The Court recognizes that the issue of reasonable

foreseeability is often a fact-specific question for a jury to

decide. However, where the undisputed facts demonstrate the

existence of a reasonably foreseeable msk of substantial

disruption, and no reasonable jury could conclude otherwise,

then the school officials are entitled to summary judgment.

See, e.g., Wisniewski v. Bd. of Educ. of Weedsport Cent.

Sch. Dist., 494 F.3d 34, 40 (2d Cir.2007) (affirming summary

judgment in favor of school officials because “[w]hether

these aspects of reasonable foreseeability are considered

issues of law or issues of fact as to which, on this record, no

reasonable jury could disagree, foreseeability of both

communication to school authorities, including the teacher,

and the risk of substantial disruption is not only reasonable,

but clear’). That is precisely the situation here. The

undisputed facts-including the threats to Daniel on the day of

the incident and the days following the incident-demonstrate

*482 that school officials could reasonably conclude any

attempt by Daniel to engage in speech at the school during

this emotional and volatile time pernod, even if to explain his

version of events with respect to the comment at issue-would

“materially and substantially disrupt the work and discipline

of the school.” Tinker, 393 U.S. at 513, 89 S.Ct. 733. The

school's concerns had absolutely nothing to do with the

discomfort and unpleasantness which generally accompanies

an unpopular viewpoint as described 1n Tinker; rather, given

the escalating hostility towards Daniel at the school on Apnil

26th and in the days that followed, as well as the high

emotion over the loss of a classmate and the anger about the

racially inflammatory comment that was attnbuted to Daniel,

the school officials made the reasonable judgment that

Daniel's attempted explanation could be rejected by the

students and lead to a potentially disruptive and/or violent

reaction that could place Daniel and/or other students and

teachers in danger.FN7 See, e.g., Hendrickson, 421

F.Supp.2d at 423 (“School authorities were not required to

put their heads 1n the sand and allow further escalation of that

hostility, and concomiiant disruption to the school

environment, simply because [plaintiff] cloaked his

[symbolic speech] in a laudable First Amendment

justification.”’). Although plaintiffs disagree with that

judgment, the undisputed facts do not provide a basis for

[30a]

finding a constitutional violation of Daniel's free speech nght

under the First Amendment.

FN7. Although the speech at issue is different, these are the

same types of safety concerns that have led several circuit

courts to uphold under Tinker a school's decision to prohibit

students from displaying the Confederate flag. See D.B. ex

rel. Brogdon v. Lafon, 217 Fed.Appx. 518, 523 (6th

Cir.2007) (upholding ban on students displaying Confederate

flags because “school officials could reasonably surmise that

such displays posed a substantial risk of provoking problems

in the incendiary atmosphere then existing’); accord Scott v.

School Bd. of Alachua County, 324 F.3d 1246, 1249 (11th

Cir.2003); West v. Derby Unified School Dist., 206 F.3d

1358. 1366 (10th Cir.2000).

Finally, to the extent that plaintiffs suggest that the school's

actions completely foreclosed any ability he had on his own

to proclaim his innocence with respect to the comment and

defuse the situation, that assertion is simply not supported by

the record. First, on May 7, 2004, the principal accompanied

Daniel to a meeting with 12 student leaders from the Latino

community at East Hampton High School at which Daniel

explained that he was not the onginator of the comment and

distributed a copy of the statement he wanted to read over the

loudspeaker. (Daniel Dep. at 90-91). Second, the school

posted the statement in the faculty lounge for faculty

members to see. (Farina Dep. at 56-57.) Third, at no time did

the school ever limit Danicl's speech off school grounds. In

other words, Daniel was not prevented from distributing his

statement outside of school grounds or otherwise

communicating his position to fellow students on his own via

telephone, email, or any other channel available to him.

Daniel could have invited students to a location off the

school's premises to make his statement. In fact, he could

even have stood outside the school gates communicating his

message to students as they left. Counsel for defendants, at

[31a]

oral argument, noted that they never sought to foreclose any

such speech outside of school by Daniel.

In sum, for the reasons discussed supra, the Court holds that

the school administration's decision to deny Daniel access to

the school's non-public fora to engage in speech regarding the

rumored statement by him-including at a school assembly,

via the public announcement system, or any other distribution

system at the *483 school, or by Daniel on school grounds

without assistance from the school-did not violate his First

Amendment nights to free speech as a matter of law given the

undisputed facts in this case.

c. Qualified Immunity

[18} M119] M4 (20) IM Defendants argue that, even assuming

arguendo that a First Amendment violation occurred, the

individual defendants should be entitled to qualified

immunity under the facts of this case. The Court agrees. It is

well settled that “[t]he initial question with respect to

qualified immunity is whether, viewing the facts alleged in

the light most favorable to the plaintiff, there was a

constitutional violation.” Fierro v. City of N.Y., No. 08-3952-

cv, 341 Fed.Appx. 696, 698, 2009 WL 2223067, at *1 (2d

Cir.2009) (summary order) (citing Clubside, Inc. v. Valentin,

468 F.3d 144, 152 (2d Cir.2006)). “If the answer to that

question is yes, then the Court must determine if that nght

was clearly established at the time the challenged decision

was made, and whether the defendants' actions were

objectively unreasonable.” Fierro, 341 Fed.Appx. at 698,

2009 WL 2223067, at *1 (citing Harhay v. Town of Ellington

Bd. of Educ., 323 F.3d 206, 211 (2d Cir.2003)). As the

Supreme Court has explained, “[q]ualified immunity shields

an Official from suit when she makes a decision that, even if

constitutionally deficient, reasonably misapprehends the law

goveming the circumstances she confronted.’ Brosseau v.

Haugen, 543 U.S. 194, 198, 125 S.Ct. 596, 160 L.Ed.2d 583

(2004). Although there is no question that the Tinker rule is

clearly established, the application of that test to the

particular circumstances here leaves room for _ school

officials, at a minimum, to reasonably disagree as to whether

the return of Daniel to the school (and his proposed speech at

the school) in the days following the incident would lead to

substantial disruption. As one court noted,

Even if [the defendant] did violate [the plaintiff's] First

Amendment night to free speech, summary judgment would

still be appropriate because she is entitled to a qualified

immunity defense as a matter of law. Tinker established a

right for students to exercise non-disruptive expression

anywhere on school grounds. At some point, however,

expressive speech crosses the line into “disruptive” and thus

gives way to school officials' ability to maintain order and

discipline in an educational environment. The clearly

established right is that students may not be punished or

stopped from engaging in non-disruptive speech. Where that

expression may be fairly characterized as “disruptive,”

however, it crosses into a constitutional gray area in which

school officials are reasonable in their belief that they are

acting lawfully to put a stop to the disruptive student

behavior.

Acevedo v. Sklarz, 553 F.Supp.2d 164, 170 (D.Conn.2008);

see also Hosty v. Carter, 412 F.3d 731, 739 (7th Cir.2005)

(“Public officials need not predict, at their financial peml,

how constitutional uncertainties will be resolved.”); Litman

v. George Mason Univ., 5 F.Supp.2d 366 (E.D.Va.1998) (

“Part of the qualified immunity test is whether a reasonable

person in the defendant's position would have known that his

actions violated the plaintiff's First Amendment rnghts.

Defendants in this case could reasonably have viewed

[plaintiffs] actions of sending numerous e-mails and other

writings to professors regarding her claims of sexual

harassment as highly disruptive of the professors’ work, and

thus are entitled to qualified immunity....’’).

Accordingly, even assuming arguendo that there was a First

Amendment violation as to Daniel's freedom of speech

(which there was not), the individual school *484 officials

are entitled to summary judgment under the doctrine of

qualified immunity.FN&

FN8. Similarly, the school distnct and school board are

entitled to summary judgment because of the absence of any

evidence of a policy or custom that form the basis of liability

against these municipal entities under Monell v. Department

of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d

611 (1978). In any event, as noted infra, because there is no

basis for an underlying constitutional violation by the

individual school officials, no claims can exist against the

school distnct or the school board under Monell.

2. Freedom of Association Claim

Plaintiffs also contend that the school's decision to prohibit

Daniel from engaging in speech at the school unlawfully

infringed on his right to freedom of association protected by

the First and Fourteenth Amendments. As set forth below,

because this claim is entirely duplicative of the free speech

claim (which the Court has concluded cannot survive

summary judgment), summary judgment in defendants' favor

on the freedom of association claim is also warranted.

{21 ] (22) As the Second Circuit has explained, “(t]he

Supreme Court has recognized a nght of association with two

distinct components-an individual's mght to associate with

others in intimate relationships and a nght to associate with

others for purposes of engaging in activities traditionally

protected by the First Amendment, such as speech and other

expressive conduct.” Adler v. Pataki, 185 F.3d 35, 42 (2d

Cir.1999) (citing Roberts v. U.S. Jaycees, 468 U.S. 609, 617-

18, 104 S.Ct. 3244, 82 L.Ed.2d 462 (1984)). In the instant

case, it is clear that plaintiff is attempting to assert a violation

of the latter mght of association-often referred to as

“expressive association.” In other words, plaintiff argues that

the school officials' refusal to allow the speech interfered

with Daniel's nght of association by prohibiting him from

communicating his message to his fellow students in

violation of his free speech rights. ( See Plaintiff's Opposition

Memorandum, at 14 (“The First Amendment protects not

only a citizen's right to speak freely but also his or her night

to associate freely with other speakers of similar or opposing

opinions. District officials intended to interfere with Daniel's

comments on a subject they wanted to erase. Attempt to

silence Daniel on a subject which made the school officials

uncomfortable.”) (citation omiutted).) FN9 Under such

circumstances, the free association claim is_ entirely

duplicative of the free speech claim. Thus, because the Court

has already concluded as a matter of law that the defendants

did not violate Daniel's free speech rights by refusing to

allow him to communicate his message to the students

regarding the rumored comment, the officials’ conduct in that

regard did not infringe upon any nght by Daniel to associate

with others for purposes of engaging in activities traditionally

protected by the First Amendment. Accordingly, summary

judgment on the freedom of association claim is warranted

for the same reason as the free speech claim.FN10 See, e.g.,

*485 Illiano v. Mineola Union Free Sch. Dist., 585 F.Supp.2d

341, 355 (E.D.N.Y.2008) (“Here, the Plaintiff's freedom of

association claim is duplicative of her inviable freedom of

speech claim. Accordingly, defendants' motions to dismiss

plaintiff's freedom of association claim under § 1983 are

granted.”); Birmingham v. Ogden, 70 F.Supp.2d 353, 369

(S.D.N.Y.1999) (dismissing right of association claim as

duplicative of free speech claim); see also Henley v.

Tullahoma City Sch. Sys., 84 Fed.Appx. 534, 544 (6th

Cir.2003) (“dismissal of Plaintiffs’ freedom of association

claims was warranted because they were merely duplicative

of their meritless retaliation claims’).

[35a]

FN9. The conclusory and duplicative nature of this claim is

further illustrated by the fact that, in the opposition to the

motion, plaintiffs bref this issue in the same section as the

free speech claim and, as noted above, only bnefly mention

the nght of association in conjunction with the free speech

claim.

FN10. The Court notes that, even assuming plaintiffs were

trying to assert a free association claim based upon an

“intimate association” theory, such a claim also would not

survive summary judgment. As a threshold matter, although

the right of intimate association has been found to extend to

“child rearing and education,” Bd. of Dirs. of Rotary Int'l v.

Rotary Club of Duarte, 481 U.S. 537, 545, 107 S.Ct. 1940, 95

L.Ed.2d 474 (1987), the precise contours of that mght in the

school context, as it relates to the protection of relationships

between parents and students or among students, are not

well-defined. See Angstadt v. MiddWest School Dist., 377

F.3d 338, 343-45 (3d Cir.2004) (discussing mght of

association in school context); Pi Lambda Phi Fraternity,

Inc., 58 F.Supp.2d 619, 623-26 (W.D.Pa.1999) (same); see

also Henley v. Tullahoma City Sch. Sys., 84 Fed.Appx. 534,

543-44 (6th Cir.2003) (same). In any event, assuming

arguendo that this type of claim could be asserted based upon

Daniel's inability to associate with classmates, such claim

could not survive summary judgment where the undisputed

facts (discussed supra in connection with the free speech

claim) demonstrate that the refusal to allow Daniel to return

to the school to communicate his message was based upon a

reasonable belief by school administrators that such speech

could disrupt the school environment and pose a threat to

school safety. See generally Jackson v. Franklin County Sch.

Bd., 765 F.2d 535, 538 (Sth Cir.1985) (“{T]he public schools

unquestionably retain their authonty to remove any student ...

who disrupts the educational process or poses a threat to a

safe school environment.”).

Accordingly, the Court grants defendants' motion for

summary judgment on plaintiffs' freedom of association

claim.

3. Substantive Due Process Claim

Plaintiffs also assert a substantive due process claim based

upon the school officials' decision to suspend Daniel, first for

5 days and then for the remainder of the school year. As set

forth below, plaintiffs have failed to present evidence to

create a genuine issue of material fact on the substantive due

process claim; rather, the undisputed facts demonstrate that

this claim fails as a matter of law.

[23] Wy24] A[25] AtThe Due Process Clause of the

Fourteenth Amendment protects persons against deprivations

of “life, liberty, or property.” U.S. Const. amend. XIV, § 1.

The Fourteenth Amendment “does not provide a

comprehensive scheme for determining the propriety of

official conduct or render all official misconduct actionable.”

Pena v. DePrisco, 432 F.3d 98, 112 (2d Cir.2005). Instead,

the scope of substantive due process is very limited. See

Washington v. Glucksberg, 521 U.S. 702, 117 S.Ct. 2258,

138 L.Ed.2d 772 (1997). The Supreme Court has said that it

is “reluctant to expand the concept of substantive due process

because guideposts for responsible decisionmaking in this

unchartered area are scarce and open-ended.” Collins v.

Harker Heights, 503 U.S. 115, 125, 112 S.Ct. 1061, 117

L.Ed.2d 261 (1992). Substantive due process is a means of

“protection of the individual against arbitrary action of

government.” Wolff v. McDonnell, 418 U.S. 539, 558, 94

S.Ct. 2963, 41 L.Ed.2d 935 (1974); Glucksberg. “In order to

establish a violation of a nght to substantive due process, a

plaintiff must demonstrate not only government action but

also that the government action was ‘so egregious, so

outrageous, that it may fairly be said to shock the

contemporary conscience.” ” Id. (quoting County of

Sacramento v. Lewis, 523 U.S. 833, 847 n. 8, 118 S.Ct. 1708,

[37a]

140 L.Ed.2d 1043 (1998)). To satisfy this standard, a plaintiff

must show that the government decision it challenges “was

arbitrary or urational or motivated by bad faith.” Rosa R. v.

Connelly, 889 F.2d 435, 439 (2d Cir.1989). As set forth

below, the undisputed facts demonstrate that no reasonable

jury could find *486 that standard to be satisfied and

plaintiffs have failed to raise a genuine issue of material fact

on this claim that survives summary judgment.

[26] [27] AA school administration's decision to suspend

a student will provide a basis for a substantive due process

claim only in the very “rare case” when there is “no rational

relationship between the punishment and the offense.” Rosa

R. v. Connelly, 889 F.2d 435, 439 (2d Cir.1989); see also Bd.

of Educ. v. McCluskey, 458 U.S. 966, 970, 102 S.Ct. 3469,

73 L.Ed.2d 1273 (1982) (finding no due process violation

where a school board's interpretation of its rules is

reasonable); Wood v. Strickland, 420 U.S. 308, 326, 95 S.Ct.

992, 43 L.Ed.2d 214 (1975) (“It is not the role of the federal

courts to set aside decisions of school administrators which

the court may view as lacking a basis in wisdom or

compassion. Public high school students do have substantive

and procedural rights while at school. But § 1983 does not

extend the nght to relitigate in federal court evidentiary

questions arising in school disciplinary proceedings or the

proper construction of school regulations. The system of

public education that has evolved in this Nation relies

necessarily upon the discretion and judgment of school

administrators and school board members, and § 1983 was

not intended to be a vehicle for federal-court corrections of

errors in the exercise of that discretion which do not nse to

the level of violations of specific constitutional guarantees.”’)

(internal citations omitted); Tun v. Whitticker, 398 F.3d 899,

904 (7th Cir.2005) (finding that a student's expulsion for

‘“horsing around in the boys’ locker room” was a “regrettable”

“overreaction by the defendants, including an overly broad

reading of the district's behavior code,” but did not constitute

a violation of the student's substantive due process nghts);

Butler v. Rio Rancho Pub. Schs. Bd. of Educ., 341 F.3d

1197, 1200-01 (10th Cir.2003) (“Absent certain factors not

present here, we will uphold a school's decision to suspend a

student in the face of a substantive due process challenge if

the decision is not arbitrary, lacking a rational basis, or

shocking to the conscience of federal judges.”); Seal v.

Morgan, 229 F.3d 567, 575 (6th Cir.2000).

Plaintiffs have presented no evidence that the defendants’

actions were arbitrary, irrational or motivated by bad faith.

As discussed in detail in connection with the free speech

claim, it is undisputed that there were threats to Daniel's

safety on the day of the incident and in the days that followed

and that there was an emotional and volatile situation at the

school because of the tragic death of the Latino student and

the offensive comment attributed to Daniel. Thus, the record

is clear that the school first kept Daniel out of school out of

concern for his safety and “[t]here is no doubt [that schools]

ha [ve] a legitimate interest in providing a safe environment

for students and staff.” Butler, 341 F.3d at 1201. Therefore,

sending Daniel home for his safety and keeping him out of

the school in the days following the incident was rationally

related to that legitimate interest and no reasonable jury could

find that such a decision, given the undisputed facts,

constituted a violation of his substantive due process nghts.

Similarly, with respect to the suspension, plaintiffs do not

argue that, if Daniel had made the offensive comment, that

the punishment would have been unwarranted. Instead, they

contend that there was an insufficient factual basis for the

school to conclude that he had made the statement and cite

the Commissioner's decision overturning the suspension to

support that assertion. However, it is undisputed that a fellow

student testified at the Superintendent's hearing that he heard

Daniel make the offensive comment in question, without

qualification. Thus, even though the Commissioner

eventually overturned the suspension*487 because the

Superintendent failed to make individual credibility findings

in his decision, the Commissioner's decision does not provide

a sufficient basis for a reasonable jury to conclude that the

Superintendent's determination and the decision to suspend

Daniel for the remainder of the year was arbitrary, lacking a

rational basis, or lacking a relationship between the

punishment and the offense.

In sum, plaintiffs have presented no evidence from which a

reasonable jury could find that the school administration's

actions with respect to Daniel in the aftermath of the Apnml

26th events-including his removal from the school and

subsequent suspension for the school year-were arbitrary,

irrational or motivated by bad faith. Accordingly, the Court

grants defendants’ motion for summary judgment on

plaintiffs’ substantive due process claims.

4. Procedural Due Process Claim

[28] (29) Ain order to assert a violation of procedural due

process rights, a plaintiff must “first identify a property night,

second show that the [government] has deprived him of that

right, and third show that the depnvation was effected

without due process.” Local 342, Long Island Pub. Serv.

Employees, UMD, ILA, AFL-CIO v. Town Bd. of

Huntington, 31 F.3d 1191, 1194 (2d Cuir.1994) (citation

omitted) (emphasis in original). Daniel had a constitutionally

protected nght to a public education. Property interests derive

from state law. Bd. of Regents v. Roth, 408 U.S. 564, 577, 92

S.Ct. 2701, 33 L.Ed.2d 548 (1972). New York's Constitution

and education laws provide a nght to elementary and

secondary education for children up to the age of eighteen.

N.Y. Const. Art. 8 § 1; N.Y. Educ. L. § 3202(1). It is

undisputed that Daniel was suspended from school for a

portion of the school year at issue. This constitutes a

deprivation even if it were only for a relatively short period

of time. See Goss v. Lopez, 419 U.S. 565, 576, 95 S.Ct. 729,

42 L.Ed.2d 725 (1975) (“Appellees were excluded from

school only temporarily, it 1s true, but the length and

consequent severity of a deprivation, while another factor to

weigh in determining the appropriate form of hearing, is not

decisive of the basic right to a hearing of some kind. The

Court's view has been that as long as a property deprivation is

not de minimis, its gravity is irrelevant to the question

whether account must be taken of the Due Process Clause.”’)

(internal quotations and citations omitted). Therefore, the

question 1s whether Daniel was depnved of education without

due process. See Goss, 419 U.S. at 574, 95 S.Ct. 729 (1975)

(“The authority possessed by the State to prescnbe and

enforce standards of conduct in its schools although

concededly very broad, must be exercised consistently with

constitutional safeguards. Among other things, the State is

constrained to recognize a student's legitimate entitlement to

a public education as a property interest which is protected by

the Due Process Clause and which may not be taken away for

misconduct without adherence to the minimum procedures

required by that Clause.”’)

[30] 4 “Once it is determined that due process applies, the

qucstion remains what process is due.” Morrissey v. Brewer,

408 U.S. 471, 481, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972).

The Supreme Court has stated that “[a]t the very minimum, ...

students facing suspension and the consequent interference

with a protected property interest must be given some kind of

notice and afforded some kind of hearing.” Goss, 419 US. at

579, 95 S.Ct. 729. Courts must weigh the various interests at

issue in determining what level of process 1s required. Id. As

the Supreme Court has stated:

The student's interest is to avoid unfair or mistaken exclusion

from the educational*488 process, with all of its unfortunate

consequences. The Due Process Clause will not shield him

from suspensions properly imposed, but it disserves both his

interest and the interest of the State if his suspension 1s 1n fact

[41a]

unwarranted. The concern would be mostly academic if the

disciplinary process were a totally accurate, unerring process,

never mistaken and never unfair. Unfortunately, that is not

the case, and no one suggests that it is. Disciplinarnans,

although proceeding in utmost good faith, frequently act on

the reports and advice of others; and the controlling facts and

the nature of the conduct under challenge are often disputed.

The risk of error is not at all trivial, and it should be guarded

against if that may be done without prohibitive cost or

interference with the educational process.

The difficulty is that our schools are vast and complex. Some

modicum of discipline and order is essential if the

educational function is to be performed. Events calling for

discipline are frequent occurrences and sometimes require

immediate, effective action. Suspension is considered not

only to be a necessary tool to maintain order but a valuable

educational device. The prospect of imposing elaborate

hearing requirements in every suspension case is viewed with

great concern, and many school authorities may well prefer

the untrammeled power to act unilaterally, unhampered by

rules about notice and hearing. But it would be a strange

disciplinary system in an educational institution if no

communication was sought by the disciplinarian with the

student in an effort to inform him of his dereliction and to let

him tell his side of the story in order to make sure that an

injustice is not done. “[Fairness] can rarely be obtained by

secret, one-sided determination of facts decisive of nghts....

Secrecy is not congenial to truth-seeking and self-

righteousness gives too slender an assurance of nghtness. No

better instrument has been devised for arriving at truth than to

give a person in jeopardy of serious loss notice of the case

against him and opportunity to meet it.” Anti-Fascist

Committee v. McGrath, supra, at 170, 171-172, 71 S.Ct. 624

(Frankfurter, J., concurring).

Goss, 419 U.S. at 579-80, 95 S.Ct. 729.

[42a]

[31] Min an effort to balance these interests, the Supreme

Court in Goss v. Lopez set forth minimal due process

requirements as it relates to suspensions of ten days or less.

Specifically, the Court held that “[s]tudents facing temporary

suspension have interests qualifying for protection of the Due

Process Clause, and due process requires, in connection with

a suspension of 10 days or less, that the student be given oral

or written notice of the charges against him and, if he denies

them, an explanation of the evidence the authorities have and

an opportunity to present his side of the story.” Goss, 419

U.S. at 581, 95 S.Ct. 729.FN11 But “[a] formal *489 hearing

is unnecessary” for suspensions of ten days or less. Rosenfeld

v. Ketter, 820 F.2d 38, 40 (2d Cir. 1987).

FN11. New York state law provides greater protection for

students facing suspension of over five days. Specifically,

state law provides that:

school days unless such pupil and the person in parental

relation to such pupil shall have had an opportunity for a fair

hearing, upon reasonable notice, at which such pupil shall

have the nght of representation by counsel, with the right to

question witnesses against such pupil and to present

witnesses and other evidence on his behalf. Where a pupil

has been suspended in accordance with this subdivision by a

superintendent of schools, district superintendent of schools,

or community superintendent, the superintendent shall

personally hear and determine the proceeding or may, in his

discretion, designate a hearing officer to conduct the hearing.

N.Y. C.L.S. Educ. § 3214.

Where a longer suspension is at issue, greater process may be

required. See, e.g., Barnett v. Tipton County Bd. of Educ.,

601 F.Supp.2d 980, 985 (W.D.Tenn.2009) (“A student's mght

to procedural due process requires formal procedures for

student disciplinary hearings involving expulsion or

suspensions of more than ten days. School officials must

[43a]

tailor disciplinary hearing procedures to avoid ‘unfair or

mistaken findings of misconduct and arbitrary exclusions

from school.’ School board disciplinary hearings satisfy due

process when the student is given the opportunity to refute

and explain the allegations against him.”) (quoting Goss, 419

U.S. at 581, 95 S.Ct. 729).

[32] Ain the instant case, there are no disputed facts

regarding the process afforded to Daniel. Thus, the question

is whether the process was sufficient to satisfy the

constitutional requirements of due process. As set forth

below, the Court concludes, based upon the undisputed facts,

that sufficient procedure was afforded to Daniel, both in

connection with the initial 5-day suspension and the

subsequent suspension for the remainder of the school year,

to satisfy due process.

As a threshold matter, although plaintiffs suggest that Daniel

was suspended from Apmnl 27-29, 2004, there is no

evidentiary basis to support that conclusion. Plaintiffs admit

that there was a hostile environment toward Daniel on April

26, 2004, that “[p]leople at school made threats that they

would kill plaintiff and bomb his house, making him even

more frightened” (Defs' 56.1 4 20), and that “Dr. Farina

advised Mrs. DeFabio that Daniel was being sent home from

school because there were 150 students who wanted to knock

down his door and beat up Daniel” and that “it wasn't safe for

Danny to come back to school and Danny should stay home a

few days until the situation calmed.” (Defs' 56.1 99 21-22.)

Although plaintiffs now suggest in a conclusory fashion that

Daniel was being disciplined from April 27-29, 2004, they

point to no evidence from which a reasonable juror could find

that Dr. Farina was motivated by something other than

concern for Daniel's safety or that Dr. Farina had suspended

Daniel prior to April 30, 2004.FN12 In any event, even

assuming arguendo that Daniel was being disciplined as of

Apnil 27, 2004, his initial suspension pnor to the hearing was

[44a]

still for less than ten school days (from Apmil 27, 2004 until

May 8, 2004) and, therefore, need only satisfy the standard

established in Goss.

FN12. The Court also notes that the Commissioner also

concluded that Daniel was not suspended when he was sent

home on April 26, 2004 but rather was suspended on Apmil

30, 2004. ( See Commissioner's Decision dated August 7,

2006, at 3 (“The record before me does not indicate that D.D.

was suspended at that time [ 1.e, Apml 26, 2004].’’).)

With respect to the initial suspension for five days, it 1s

undisputed that plaintiffs were advised in wniting of that

suspension by the pnncipal on Apmnil 30, 2004 and that the

letter provided the basis for that suspension. In particular, the

letter provided:

Pursuant to Education law 3214, your son, Daniel, is being

suspended from East Hampton High School for five days.

This suspension will begin on Monday, May 3rd and go

through Fnday May 8, 2004. He may retum to school on

Monday, May 11th. During this period of suspension, Daniel

is not to be on school grounds or attend any school functions.

[This action is taken as the result of our investigation into

circumstances surrounding the incident on Monday, April

*490 26th. It has been found that Daniel was in violation of

East Hampton High School's Code of Conduct. Specifically,

he is in violation of Class C behavior for making the

statement “one [* * * *] down, forty thousand to go.” As per

our phone conversation on Monday April 26th and meeting

on Thursday, April 29th, it was in the interest of Daniel's

safety that he remain home pending the results of the

investigation.

(Ex. M.) The letter also advised Ms. DeFabio that she had a

right to an informal hearing and that a Superintendent's

[45a]

hearing might be convened. ( Id.) It is also undisputed that,

prior to this decision, Daniel had been given an opportunity

to tell his side of the story before he was sent home on Apmil

26, 2004, and he was aware of the conduct at issue.

Specifically, in the nurse's office on the day of the incident,

Daniel was asked about the comment, denied being the

originator, and provided his version of the events to both a

guidance counselor and an Assistant Principal. (Defs.' 56.1

13-15.) To the extent that plaintiffs suggest there need be

some delay after suspension notice is given, the Supreme

Court has explicitly reyected such a contention and noted that

the student's explanation of the events often occurs within

minutes of the alleged misconduct.FN13 See Goss, 419 U.S.

at 582, 95 S.Ct. 729 (“[t]here need be no delay between the

time ‘notice’ is given and the time of the hearing. In the great

majority of cases the disciplinarian may informally discuss

the alleged misconduct with the student minutes after it has

occurred.”); see also Rosenfeld, 820 F.2d at 40 (holding that

“discussions [after the incident] afforded [plaintiff] the

opportunity required by Goss to characterize his conduct’).

As the Supreme Court explained in Goss:

FN13. Daniel also provided his version of the events 1n the

letter he prepared proclaiming his innocence on April 27,

2004, which he provided to the school, discussed supra.

Students whose presence poses a continuing danger to

persons or property or an ongoing threat of disrupting the

academic process may be immediately removed from school.

In such cases, the necessary notice and rudimentary hearing

should follow as soon as practicable, as the District Court

indicated.

Goss, 419 U.S. at 582-83, 95 S.Ct. 729.

In short, because it is undisputed that Dantel was given

written notice of the charges against him, an explanation of

the evidence against him in the written charge, and an

opportunity to deny the allegation and explain his side, Goss

is satisfied and any procedural due process claim arising from

the initial 5-day suspension must fail as a matter of law.FN14

FN14. The Court notes that, although not required by Goss,

additional process was afforded to Daniel prior to the

suspension in that, on April 28, 2004, Ms. DeFabio and Mr.

Rusinksy met with Pnncipal Fanna and others to discuss the

situation. The Court notes that, even under New York law, no

additional process is required prior to a 5-day suspension.

See, e.g., Turner v. Kowalski, 80 Misc.2d 597, 364 N.Y.S.2d

91 (N.Y.App.Div.1975) (“Since no hearing is required pnor

to suspension of student for period not exceeding five days,

school officials are not required to advise parents of any right

to an informal conference prior to suspension of student for

five days or less.””), modified on other grounds by 49 A.D.2d

943, 374 N.Y.S.2d 133 (1975).

With respect to the long-term suspension for the remainder of

the school year, the undisputed facts again demonstrate that

due process requirements were satisfied. First, plaintiffs

received a letter a few days after the initial 5-day suspension

notifying them that a Superintendent's hearing was to be held

on Friday, May 7, 2004-the fifth day of Daniel's suspension.

(Defs' 56.1 4] 33; DeFabio Dep. at 54.) This time frame was in

compliance with *491 Goss and state law. See 2000 Op.

Comm. Ed. No. 14,419 (“At end of 5th day of suspension,

student must be readmitted to school unless hearing

sustaining longer period of suspension was held within initial

5-day suspension penod, or unless adjournment was

requested by student or parent.”) Moreover, it is undisputed

that, on May 7, 2004, a full hearing was held before the

Superintendent and, at the hearing, plaintiffs had counsel who

presented their version of the facts, including Daniel's

testimony, and questioned the complaining witnesses. The

hearing was held on a Friday and Daniel was told to stay

home from school until a decision was made by the

Superintendent. (DeFabio Dep. at 71.) A decision was made

[47a]

the next Monday. Specifically, the Superintendent found that

Daniel was guilty of the offense and suspended him for the

remainder of the school year, during which time he received

home tutoring. ( Id. at 72) Therefore, Daniel was given ample

notice of the pending charge against him and a full

opportunity to present his case at a formal hearing prior to the

decision to suspend him for the remainder of the school year.

Daniel was also provided with procedures to challenge that

decision. In particular, after being suspended for the

remainder of the school year, plaintiffs were entitled to

appeal that decision. Plaintiffs, in fact, utilized that

procedure. First, plaintiffs appealed the Superintendent's

decision to the Board of Education of the East Hampton

Union Free School District and “[b]y letter dated May 27,

2004, the superintendent notified petitioner that on May 18,

2004, respondent had reviewed the record of the

superintendent's heanng and had upheld his determination

and penalty.” (Plaintiffs' Ex. C, at 2.) Plaintiffs then appealed

to the New York State Commissioner of Education, who

issued a decision on August 7, 2006, in plaintiffs’ favor.

Although plaintiffs also could have resorted to an Article 78

proceeding, such recourse was unnecessary because they

were able to have the Commissioner overtum the suspension

and have Daniel's record expunged, with all references to the

situation removed from his permanent record at East

Hampton. In short, because Daniel was provided with a full

hearing before his long-term suspension and the ability to

challenge that suspension on appeal, the Court concludes that

no procedural due process claim can exist as a matter of law

for the long-term suspension.

This Court's conclusion on this issue is consistent with the

dismissal of procedural due process claims by other courts

under analogous circumstances. See, e.g., Bogle-Assegai v.

Bloomfield Bd. of Educ., 467 F.Supp.2d 236, 243

(D.Conn.2006) (granting summary judgment on due process

claim based on a 180-day expulsion because “[p]laintiffs

were provided notice of the expulsion hearing, given the

opportunity to be represented by counsel (which they were),

and given a full-blown hearing including the presentation of

opening arguments, summations, and_ evidence, the

introduction of which was governed by the federal rules of

evidence” and the opportunity to cross-examine witnesses

and present their own evidence), aff'd, 312 Fed.Appx. 435

(2d Cir.2009) (summary order); Rosa R., 889 F.2d at 438-39

(affirming grant of summary judgment on due process claim

based on 180-day expulsion where student and his mother

received notice, were given “ample opportunity to present

their views” at a hearing, and had “recourse to appeal the

Board's decision to the state board of education before the

allegedly unconstitutional deprivation took effect”); Cohn v.

New Paltz Cent. Sch. Dist., 363 F.Supp.2d 421, 433

(N.D.N.Y.2005) (dismissing procedural due process claim on

180-day expulsion where plaintiff received notice of charges,

disciplinary hearing was held, and appellate review of *492

decision was available), aff'd, 204 Fed.Appx. 56 (2d

Cir.2006) (summary order).

Although plaintiffs assert several arguments to attempt to

avoid summary judgment on these claims, the Court finds

those arguments unpersuasive. First, plaintiffs contend that

this process was not valid because the school officials

allegedly had made up their mind before providing such

process. However, plaintiffs provide no evidence to support

this conclusory assertion of bias. Thus, the Court concludes

that plaintiffs' subjective belief that the decision-makers were

not sufficiently open-minded about their position is

insufficient to create an issue of fact on a procedural due

process claim. See, e.g., Hill v. Board of Trustees of

Michigan State Univ., 182 F.Supp.2d 621 (W.D.Mich.2001)

(“[Plaintiff] has failed to raise a genuine issue as to the

Student Faculty Judiciary's impartiality. He has not proffered

any evidence of actual bias. Therefore, in this Court's

judgment, [plaintiff] has failed to raise any genuine issue of

material fact regarding his suspension after April 21, 1999.”);

Remer v. Burlington Area School Dist., 149 F.Supp.2d 665,

(E.D.Wisc.2001) (“There is a ‘strong presumption’ that

administrative decisionmakers are impartial. [Plaintiff] has

not overcome this presumption. In fact, she has presented no

evidence at all that the school board members who voted to

expel her son were biased against M.R. in any way. Absent

such evidence, [plaintiff] may not proceed to trial on this

point.”); see also McDonald ex rel. McDonald v. Sweetman,

No. 02-CV-1040 (MRK), 2004 WL 717166, at *4 (D.Conn.

Mar. 24, 2004) (‘While [plaintiff] may nghtly feel that she

was tried, convicted, and sentenced by school officials who

had already made up their minds, the fact remains that before

she was suspended, [plaintiff] was given oral notice of the

charges against her, an opportunity to prevent her version of

the facts, and an explanation, however feeble, of the evidence

against her. That is all the process that is required under the

Constitution.’’)

Plaintiffs’ additional argument, that the failure by defendants

to fully comply with New York Education Law Section 3214

can provide a basis for a due process claim, is similarly

flawed. Plaintiffs correctly note that the Commissioner, in

overturning the suspensions, found that the school officials

failed to fully comply with state law. Specifically, although

the Commissioner found that the initial absence from school

was not a suspension, the Commissioner concluded: (1) that

the subsequent five-day suspension was annulled because the

Apnil 30 letter did not inform plaintiffs that they could

request an opportunity to question complaining witnesses (a

requirement under state law, but not under Goss ); and (2)

that, with respect to the long-term suspension, “the record

does not contain sufficient and competent evidence that

[Daniel] generated the offensive comment and thus engaged

in the objectionable conduct as charged” to support that

suspension. (Plaintiffs’ Ex. C.) Contrary to plaintiffs’

contention, however, the fact that the New York State

Commissioner of Education reversed the school's decision

under state Jaw does not indicate that there was a deprivation

of due process under federal constitutional law. In other

words, a failure to comply with N.Y. C.L.S. Educ. § 3214

does not necessarily constitute a violation of due process.

Here, because the constitutional due process requirements

were met, the failure to comply with certain provisions under

state education law (that are not required by the United States

Constitution) cannot give nse to a federal due process claim

under Section 1983. See, e.g., Mac Ineirghe v. Bd. of Educ.

of East Islip Union Free Sch. Dist., 05-cv-4324 (JFB)(AKT),

2007 WL 2445152, at *19 (E.D.N.Y.2007) (“Based on the

undisputed facts, the Court finds that plaintiffs' due process

rights were not violated*493 as a matter of law. Although

plaintiffs were not afforded the process described under N.Y.

Educ. Law § 3214, plaintiffs were afforded the process due

under the Constitution.”); see also Cohn, 363 F.Supp.2d at

432 (noting, in connection with New York Educational law,

that “a violation of state law is not a recognizable claim

under 42 U.S.C. § 1983”).

Finally, to the extent plaintiffs argue that the post-deprivation

procedures (although successful) violated due process

because they took too long to get the suspension overturned,

the Court disagrees. As one court has noted, “[iJt is well

established in the context of disciplinary proceedings that

post-discipline due process provides sufficient due process to

satisfy the requirements of the Fourteenth Amendment.”

Cohn, 363 F.Supp.2d at 433; see also Giglio v. Dunn, 732

F.2d 1133, 1135 (2d Cir.1984) (post-deprivation Article 78

proceeding satisfies due process); accord Gudema v. Nassau

County, 163 F.3d 717, 724 (2d Cir.1998). Of course, a factor

in assessing the adequacy of the post-deprivation procedures

is how soon the procedures occur following the deprivation.

See, e.g., Butler v. Oak Creek-Franklin Schoo! Dist., 116

F.Supp.2d 1038, 1052 (E.D.Wisc.2000) (“A third factor to

consider in determining the adequacy of a post-deprivation

hearing is how soon it occurs after the deprivation.”). As a

threshold matter, plaintiffs received immediate post-

deprivation process following the hearing and _ the

Superintendent's decision to suspend Daniel for the

remainder of the school year on May 10, 2004. In particular,

plaintiffs appealed that decision to the East Hampton Board

of Education and, by letter dated May 27, 2004, plaintiffs’

counsel was advised that the Board had reviewed the record

of the hearing and had upheld the Superintendent's

determination and penalty.FN15 ( See Plaintiffs' Ex. P.) In

short, that appeal process took only 17 days and, thus, the

defendants provided plaintiffs with a timely post-deprivation

review procedure. Although plaintiffs complain about the

two-year delay in the subsequent decision by the New York

State Commissioner of Education, there are several problems

with that argument. First, plaintiffs acknowledge that they did

not appeal the Board's May 27, 2004 decision to the

Commissioner until June 28, 2004 ( see Compl. { 88), in a

time irame when the school year and suspension had come to

an end, and Daniei was free to return to the school in the fall

of 2005. Second, although the desire to have the suspension

annulled and expunged from the record was stil] at issue,

there is nothing in the record to suggest that plaintiffs sought

expedited review with the State Commissioner or suffered

any effects from the delay. Finally, there is nothing in the

record to suggest that the defendants had any control as to the

timing of the New York State Commissioner's decision and,

thus, cannot be held accountable for any such delay. In sum,

there is no evidence in the record to support plaintiffs'

assertion that the post-depnivation procedures provided by the

defendants were untimely; rather, the undisputed facts show

that the East Hampton Board of Education's review and

decision occurred in a prompt manner.

FN15. The Complaint alleges that the Board had heard the

appeal on May 18, 2004. See Compl. § 84.

In sum, the Court holds that the undisputed procedures

afforded plaintiffs in connection with the initial and long-

term suspension satisfied Daniel's due process rights under

the U.S. Constitution and, accordingly, grants defendants’

motion for *494 summary judgment on the procedural due

process claims.

5. Equal Protection

[33] p34) Arne Equal Protection Clause of the

Fourteenth Amendment is “essentially a direction that all

persons similarly situated be treated alike.” LaTrieste Rest. v.

Vill. of Port Chester, 188 F.3d 65, 69 (2d Cir.1999) (quoting

City of Cleburne v. Clebume Living Ctr., Inc., 473 U.S. 432,

439, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985)). An individual

not alleging invidious discrimination on the basis of

membership in some group, may nevertheless prevail on an

equal protection claim under the “class of one” theory

recognized by the Supreme Court in Willowbrook v. Olech,

528 U.S. 562, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000).

Under a “class of one”’ equal protection claim, a plaintiff

must show that (1) “f{he] has been intentionally treated

differently from others similarly situated and” (2) “there is no

rational basis for the difference in treatment.” Willowbrook,

528 U.S. at 564, 120 S.Ct. 1073; see also Giordano v. City of

N.Y., 274 F.3d 740, 743 (2d Cir.2001).

a. The Engquist Decision

[35] M As a threshold matter, this Court concludes that the

Supreme Court's decision in Engquist v. Oregon Department

of Agriculture, --- U.S. ----, 128 S.Ct. 2146, 170 L.Ed.2d 975

(2008) would foreclose a “class of one” claim by plaintiffs in

connection with the discretionary decision by school

administrators in this case as to whether Daniel should have

been removed from the school and disciplined. As discussed

below, although Engquist dealt with discretionary decisions

in the public employment context, its analysis and rationale

clearly applies to discretionary determination by decision-

makers in other contexts, such as the one in the instant case.

In Engquist, the Supreme Court addressed “class of one”

claims and declined to apply this doctrine in the context of

public employment. The Engquist Court reasoned that “[if]

plaintiffs need not claim discrimination on the basis of

membership in some class or group, but rather may argue

only that they were treated by their employers worse than

other employees similarly situated, any personnel action in

which a wronged employee can conjure up a claim of

differential treatment will suddenly hecome the basis for a

federal constitutional claim.” Id. at 2156. Although the

Engquist decision was applied in the context of public

employment, the analysis by the Supreme Court suggests that

“class of one” challenges can only be made to non-

discretionary decisions even in the non-employment context.

For example, Engquist uses the illustration of a traffic ticket

as a situation where the subjective, individualized decision

does not lend itself to a class-of-one claim. See Engquist, 128

S.Ct. at 2154. Thus, although the Supreme Court noted that

“{t]his principle applies most clearly in the employment

context,” the Court's analysis does not limit its findings to

purely employment cases.

In fact, the situation in the instant case is closely analogous to

the situation outlined by the Engquist Court in the traffic

ticket hypothetical. In other words, the decision by

defendants in this case as to which comments are so

disruptive and/or inappropriate as to necessitate discipline or

other action is “subjective and _ individualized.” Id.

Defendants are charged with “custodial and _tutelary

responsibility for children.” Vernonia Sch. Dist. 47J v.

Acton, 515 U.S. 646, 656, 115 S.Ct. 2386, 132 L.Ed.2d 564

(1995). Decisions that defendants make on a day-to-day basis

to ensure the safety and welfare of the students under their

care are necessarily discretionary ones. Because defendants

ae 66

acted within their discretionary powers, plaintiffs

one” equal protection claim must fail. Moreover, unlike an

allegation that *495 the decision was based on an

impermissible classification such as race or gender, plaintiffs'

“class of one” claim here does not invoke the fear of

improper classification. Instead, as noted in Engquist, it

simply “challenges the legitimacy of the underlying action

itself’-namely, the school's decision to discipline Daniel

under these circumstances. Accordingly, the analysis in

Engquist appears to foreclose as a matter of law a “class of

one” claim to the discretionary decisions at issue in the

instant case. See, e.g., United States v. Moore, 543 F.3d 891,

901 (7th Cir.2008) (applying Engquist to challenges to

decisions of prosecutorial discretion and noting “a class-of-

one equal protection challenge, at least where premised

solely on arbitrariness/irrationality, is just as much a ‘poor

fit? in the prosecutorial discretion context as in the public

employment context’); Bissessur v. Ind. Univ. Bd. of

Trustees, No. 1:07 civ 1290(SEB)(WTL), 2008 WL 427445],

at *9 (S.D.Ind. Sept. 10, 2008) (applying Engquist to class-

of-one claim challenging the school's decision to expel

plaintiff and noting “[t]he Supreme Court's rationale in

Engquist effectively forecloses his claim’’).

class of

However, because the Second Circuit has yet to decide the

reach of Engquist outside the public employment context,

this Court proceeds to analyze the merits of plaintiffs' “class

of one” claim and concludes, in any event, that it cannot

survive summary judgment.

b. Similarly Situated Requirement

{36] Min order to prevail on a class of one claim, the

plaintiff “must demonstrate that [he was] treated differently

than someone who is pnma facie identical in all relevant

respects.” Neilson v. D'Angelis, 409 F.3d 100, 104 (2d

Cir.2005) (quoting Purze v. Vill. of Winthrop Harbor, 286

F.3d 452, 455 (7th Cir.2002)). This requires a showing that

[55a]

the level of similarity between the plaintiff and the person(s)

with whom he compares himself is “extremely high’”-so high

(1) that “no rational person could regard the circumstances of

the plaintiff to differ from those of a comparator to a degree

that would justify the differential treatment on the basis of a

legitimate government policy,” and (2) that “the similanty in

circumstances and difference in treatment are sufficient to

exclude the possibility that the defendant acted on the basis

of a mistake.” Neilson, 409 F.3d at 104-05; Prestopnik v.

Whelan, 249 Fed.Appx. 210, 213 (2d Cir.2007); see also

Doninger v. Niehoff, 527 F.3d 41, 53 (2d Cir.2008) (“[A]

class-of-one plaintiff must show ... an ‘extremely high degree

of similarity between [himself] and the persons to whom [he]

compare[s] [himself]’ in order to succeed on an equal

protection claim.”) (quoting Clubside, Inc. v. Valentin, 468

F.3d 144, 159 (2d Cir.2006)); King v. N.Y. State Div. of

Parole, 260 Fed.Appx. 375, 379-80 (2d Cir.2008) (explaining

that, subsequent to Olech, the Second Circuit has “held that

‘the level of similarity between [class of one] plaintiffs and

the persons with whom they compare themselves must be

extremely high.’ ”) (quoting Neilson, 409 F.3d at 104);

Clubside, Inc., 468 F.3d at 159 (“We have held that class-of-

one plaintiffs must show an extremely high degree of

similarity between themselves and the persons to whom they

compare themselves. This showing is more stringent than that

used at the summary judgment stage in the employment

discrimination context.) (citation omitted); Pina v. Lantz,

495 F.Supp.2d 290, 304 (D.Conn.2007) (“[T]he Second

Circuit has left no doubt that a [class of one] plaintiff must

meet a high threshold to move beyond summary judgment.

Specifically, for a plaintiff to demonstrate that he or she was

treated differently from similarly situated individuals in an

irrational manner, in violation of the Fourteenth Amendment,

the plaintiff must demonstrate that he or *496 she is prima

facie identical to the comparators.”’) (citation and quotation

marks omitted). Further, “[gljenerally, whether two

[individuals] are similarly situated is a factual issue that

should be submitted to the jury.” Cine SK8, Inc. v. Town of

Henrietta, 507 F.3d 778, 790-91 (2d Cir.2007) (noting that

“rule is not absolute and a court can properly grant summary

judgment where it is clear that no reasonable jury could find

the similarly situated prong met”) (citations and quotation

marks omitted); Clubside, Inc., 468 F.3d at 159 (explaining

that, “[gjenerally, whether parties are similarly situated is a

fact-intensive inquiry,” although “a court may grant summary

judgment in a defendant's favor on the basis of lack of

similarity of situation ... where no reasonable jury could find

that the persons to whom the plaintiff compares itself are

similarly situated”’).

Plaintiffs point to D.A., N.C. and the allegedly unknown

originator of the comment as similarly situated individuals

against whom the defendants declined to take disciplinary

action. Plaintiffs have failed to create a genuine issue of

material fact as to whether any of these three individuals 1s

similarly situated. As to the unidentified originator of the

comment, plaintiffs have not provided the name of such

individual, nor have they provided any evidence that

defendants were aware of the identity of that individual.

Therefore, defendants could not have disciplined the alleged

Originator of the comment and such individual was clearly

not similarly situated to Daniel. As to N.C. and D.A.,

plaintiffs have put forth no evidence that anyone alleged

either of those students to have been the originator of the

comment. The record is clear that these students only

repeated Daniel's statement, whereas there was an allegation

that Daniel onginated the comment, rather than merely

repeating it. Therefore, plaintiffs have not put forth any

evidence from which a reasonable juror could find that these

students were similarly situated to Daniel. For these reasons,

defendants’ motion for summary judgment on plaintiffs’ equal

protection claim is granted.

c. Irrational and Arbitrary Basis

Assuming arguendo that plaintiff had put forth evidence that

the other students were similarly situated to Daniel, the Court

will analyze whether the record includes evidence from

which a reasonable juror could find “that the defendant

intentionally treated [Daniel] differently, with no rational

basis.” Prestopnik, 249 Fed.Appx. 210, 213; see also Price v.

City of New York, 264 Fed.Appx. 66, 68 (2d Cir.2008) (“To

prevail on a ‘class of one’ selective treatment claim without

asserting membership in a protected class, Pnce must

demonstrate, inter alia, that the defendants intentionally

treated him differently from others similarly situated without

any rational basis.) (emphasis in original); Siao-Pao v.

Connolly, 564 F.Supp.2d 232, 245 (S.D.N.Y.2008) (“This

Court has interpreted the Olech standard to require that

differential treatment be both intentional and irrational to

satisfy the class of one standard.”’). For the reasons set forth

infra, the Court finds that plaintiffs have not raised a genuine

issue of material fact as to this element either.

As discussed above, the plaintiffs have put forth no evidence

that defendants were aware of the identity of the alleged

onginator of the comment or that there were ever any

allegations that N.C. or D.A. were the onginator of the

comment. Therefore, there is no basis for finding that

defendants acted arbitranly and irrationally in_ not

disciplining an individual whose identity was not known or

individuals not alleged to have participated in any

inappropriate conduct. Therefore, even assuming arguendo

that plaintiffs’ equal protection claim fell within Engquist and

satisfied the similarly situated prong, this *497 Court grants

defendants’ motion for summary judgment on this “class of

one” claim because no reasonable jury could find that the

defendants treated Daniel differently, with no rational basis.

B. Ms. DeFabio and Mr. Rusinsky's Derivative Claims

{37} M Defendants contend that the derivative claims

asserted in this action by plaintiffs Rusinsky and Ms.

DeFabio are not available under Section 1983. Although the

Second Circuit has not decided this question, the courts that

have addressed it agree with defendants. See, e.g., Johnson v.

City of N.Y., No. 07 Civ. 01991(PKC), 2008 WL 2971772,

at *1 n. 1 (S.D.N.Y.2008) (“It 1s doubtful that ... a derivative

-laim [under Section 1983] would state a claim for relief.”’):

Harrison v. Harlem Hosp., No. 05 Civ. 8271(WHP), 2007

WL 2822231, at *4, 2007 U.S. Dist. LEXIS 71908, at *11

(S.D.N.Y. Sept. 28, 2007) (“While the Second Circuit has not

addressed whether a plaintiff may bring a loss of consortium

claim pursuant to federal civil nghts statutes, the weight of

authority holds they may not.) (collecting cases); Kreutzberg

v. County of Suffolk, No. 04-CV-3835 (JS)(WDW), 2006

WL 3370351, at *4 (E.D.N.Y. Nov. 20, 2006) (“{T]he

Second Circuit has not ruled on whether a claim for loss of

consortium can be brought under Section 1983; however, all

four Second Circuit district courts and the Sixth Circuit have

found that a loss of consortium claim is a derivative claim

that is not cognizable under Section 1983.”).

In any case, the Court need not resolve this issue because the

derivative claims cannot stand without the underlying Section

1983 claims and the Court has granted defendants’ summary

judgment motion on those claims. Therefore, defendants'

motion for summary judgment as to the derivative claims is

also granted.

C. Municipal Liability

The Court has separately examined whether the School

District or the School Board itself can be held hable for the

alleged violations of the individual defendants. For the

reasons set forth below, the Court concludes that summary

judgment as to these entities 1s also warranted.

[38] 4 [39] A Municipalities, including school boards,

cannot be held vicariously liable for the actions of an

employee under § 1983. Monell v. Dep't of Soc. Servs., 436

U.S. 658, 691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) (“[A]

municipality cannot be held liable solely because it employs

a tortfeasor-or, in other words, a municipality cannot be held

liable under § 1983 on a respondeat superior theory.”’). Thus,

“{a] municipality will not be held hable under Section 1983

unless the plaintiff can demonstrate that the allegedly

unconstitutional action of an individual law enforcement

official was taken pursuant to a policy or custom ‘officially

adopted and promulgated by that [municipality's] officers.’ ”

Abreu v. City of N.Y., No. 04-CV-1721 (JBW), 2006 WL

401651, at *4, 2006 U.S. Dist. LEXIS 6505, at *11

(E.D.N.Y. Feb. 22, 2006) (quoting Monell, 436 U.S. at 690,

98 S.Ct. 2018) (alteration in original). “[MJunicipal liability

under § 1983 attaches where-and only where-a deliberate

choice to follow a course of action is made from among

various alternatives” by city policymakers. City of Canton v.

Harris, 489 U.S. 378, 389, 109 S.Ct. 1197, 103 L.Ed.2d 412

(1989) (quoting Pembaur v. Cincinnati, 475 U.S. 469, 483-

84, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986)). Thus, an

individual's misconduct will not result in respondeat superior

liability for his supervisors absent specific allegations that he

acted pursuant to an official policy or custom. Ricciuti v.

N.Y.C. Transit Auth., 941 F.2d 119, 123 (2d Cir.1991).

However, “[a] court may draw the inference of the existence

of a policy or custom ‘when a *498 plaintiff presents

evidence that a municipality so failed to train its employees

as to display a deliberate indifference to the constitutional

rights of those within its junsdiction.’ ”’ Caidor v. M & T

Bank, No. 05-CV-297 (FSJ), 2006 WL 839547, at *9, 2006

U.S. Dist. LEXIS 22980, at *35-36 (N.D.N.Y. Mar. 27,

2006) (quoting Griffin-Nolan v. Providence Wash. Ins. Co.,

No. 04-CV-1453 (FJS), 2005 WL 1460424, at *3, 2005 U.S.

Dist. LEXIS 12902, at *10 (N.D.N.Y. June 20, 2005)

(quotation omitted)). But, “ ‘the mere assertion ... that a

municipality has such a custom or policy is insufficient in the

absence of allegations of fact tending to support, at least

circumstantially, such an inference.” ” Zahra v. Town of

Southold, 48 F.3d 674, 685 (2d Cir.1995) (quoting Dwares v.

City of N.Y., 985 F.2d 94, 100 (2d Cir.1993)).

{40} Ain the instant case, as the Court finds as a matter of

law on summary judgment that no constitutional violation

was committed against plaintiff by the individual defendants,

see supra, no Monell claim can lie against the District or

School Board pursuant to § 1983.FN16 See, e.g., Segal v.

City of N.Y., 459 F.3d 207, 219 (2d Cir.2006) (“Because the

district court properly found no underlying constitutional

violation, its decision not to address the municipal

defendants’ liability under Monell was entirely correct.”);

accord Vippolis v. Haverstraw, 768 F.2d 40, 44 (2d Cir.1985)

(“A plaintiff who seeks to hold a municipality liable in

damages under section 1983 must prove that the municipality

was, in the language of the statute, the ‘person who

subjected, or cause[dj{[him] to be subjected,’ to the

deprivation of his constitutional rights.””) (citing 42 U.S.C. §

1983); see also Ewolski v. City of Brunswick, 287 F.3d 492,

516 (6th Cir.2002) (“Having concluded that the Appellant

has not shown a genuine issue of material fact as to any of

the asserted constitutional claims, we therefore conclude that

the district court correctly dismissed the Appellant's

municipal liability claims.”) Therefore, to the extent plaintiff

is attempting to assert a Monell claim against the District of

School Board, the Court grants defendants' motion for

summary judgment as to such claim.FN17

FN16. In any event, summary judgment would also be

warranted in favor of the Schoo] District and School Board

because plaintiffs have failed to proffer any evidence of a

policy, custom, or failure to train, that led to any alleged

constitutional violation.

FN17. Likewise, with regard to the individual defendants, to

the extent that they are being sued in their official capacities,

the claims against them are duplicative of the Monell claim

against the School District and School Board. Tsotesi v. Bd.

of Educ., 258 F.Supp.2d 336, 338 n. 10 (S.D.N.Y.2003)

(citing Kentucky v. Graham, 473 U.S. 159, 165-66, 105 S.Ct.

3099, 87 L.Ed.2d 114 (1985)); see also Monell, 436 U.S. at

691, 98 S.Ct. 2018 (holding that “official-capacity suits

generally represent only another way of pleading an action

against an entity of which an officer is an agent”). Therefore,

the Monell claims against the individual defendants in their

official capacities also do not survive summary judgment.

D. State Law Claims

[41] M Having granted summary judgment dismissing

plaintiffs' federal claims under Section 1983, the only

remaining claims are those arsing under state law,

specifically, for false impmsonment, unlawful arrest,

intentional infliction of emotional distress, and violation of

the Mental Hygiene Law. Under 28 U.S.C. § 1367(c)(3), the

Court must consider whether it should continue to exercise

jurisdiction over these remaining claims. In determining

whether to continue to retain junsdiction, district courts

consider factors such as judicial economy, convenience,

faimess and comity. See Nowak v. Ironworkers Local 6

Pension Fund, 81 F.3d 1182, 1191 (2d Cir.1996). Although a

court possesses*499 the discretion to retain jurisdiction, “in

the usual case in which all federal-law claims are eliminated

before trial, the balance of factors to be considered under the

pendent junsdiction doctrine-judicial economy, convenience,

fairness, and comity-will point toward declining to exercise

jurisdiction over the remaining state law claims.” Valencia ex

rel. Franco v. Lee, 316 F.3d 299, 305 (2d Cir.2003) (citing

Carmnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n. 7, 108

S.Ct. 614, 98 L.Ed.2d 720 (1988)); Baylis v. Marriott Corp.,

843 F.2d 658, 665 (2d Cir.1988) (“When all bases for federal

jurisdiction have been eliminated from a case so that only

pendent state claims remain, the federal court should

ordinarily dismiss the state claims.”) (quoting Mine Workers

v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 16 L.Ed.2d 218

(1966)).

[42] ¥ Accordingly, pursuant to 28 U.S.C. § 1367(c)(3), the

Court, in its discretion, declines to retain jurisdiction over the

remaining state law claims given the absence of any federal

claims that survive summary judgment, and dismisses such

state claims without prejudice.

IV. Conclusion FN18

FN18. As the Court has granted defendants' motion for

summary judgment on all federal claims for the reasons

discussed herein, the Court has not addressed the additional

alternative grounds argued by the defendants in their papers,

such as qualified immunity on the other claims, in addition to

the freedom of speech claim.

For the reasons set forth above, defendants’ motion for

summary judgment is granted on the Section 1983 claims.

Because the Court declines to exercise supplemental

jurisdiction over plaintiffs' pendent state claims, they are

dismissed without prejudice. The Clerk of the Court shall

enter judgment accordingly and close this case.

SO ORDERED.

658 F.Supp.2d 461, 251 Ed. Law’ Rep. 690

APPENDIX B

United States Court of Appeals,

Second Circuit.

Daniel DeFabio, Patricia DeFabio, Plaintiffs-

Appellants,

Michael Rusinsky, Plaintiff,

v.

EAST HAMPTON UNION FREE SCHOOL

DISTRICT, et. al.

Docket No. 09-4407-cv.

Argued: July 13, 2010.

Decided: Oct. 13, 2010.

*73 Raymond G. Kuntz, (Leah L. Murphy, on the

brief), Kuntz, Spagnuolo & Murphy, P.C., Bedford

Village, NY, appearing for Plaintiffs-Appellants.

Diane K. Farrell (Jeltje deJong, David H. Arntsen, on

the brief), Devitt Spellman Barrett, LLP, Smithtown,

NY, appearing for Defendants-Appellees.

*74 Present: LEVAL, B.D. PARKER, HALL, Circuit

Judges.

PER CURIAM:

Plaintiffs Damiel and Patricia DeFabio appeal

from a September 30, 2009, judgment of the United

States District Court for the Eastern District of New

York (Bianco, J.), granting defendants' motion for

summary judgment on plaintiffs' claims brought

pursuant to 42 U.S.C. § 1983 alleging violations of

Daniel's rights to freedom of speech, freedom of

association, due process and equal protection under

the First and Fourteenth Amendments, as well as

related state law claims. We hold that in a case

involving a student's assertion of a First Amendment

right to return to school and make a statement

disavowing a racial slur attributed to him, the school

officials alleged to have violated the student's rights

were entitled to qualified immunity from such claims

where the record demonstrates a_ significant

probability that the student would be assaulted were

he permitted to return to school and deliver his

message.

I. The Facts

Drawing all reasonable factual inferences in the

light most favorable to the Appellants, as we must

when reviewing a district court's grant of summary

; judgment, see, e.g., D'Amico v. City of N.Y., 132 F.3d

145, 149 (2d Cir.1998), the events that follow took

place in the spring and summer of 2004 in East

Hampton, New York. On Friday, April 24, 2004,

Andres Felipe Osorio-Diez, a Hispanic student at

East Hampton High School, was killed in a

motorcycle accident. The following Monday, April 26,

2004, was a day of mourning in the school. Remorse

among Osorio-Diez's friends turned to outrage when

a rumor spread through the school that Daniel

DeFabio, a tenth grader at the _ school, had

commented to a friend in reference to Osorio-Diez's

ethnic background: “one down, forty thousand to go.”

Students were openly hostile toward Daniel

throughout the day, some threatening to kill him and

bomb his house. In the cafeteria during eighth period

a group of four or five Hispanic students confronted

Daniel and yelled that he was a racist. One of the

students threw something at him. Ralph Naglieri, a

[65a]

school psychiatrist, physically removed Daniel from

the cafeteria after hearing from a distraught student

a report of the comment attributed to Daniel and the

resulting commotion. Daniel did not resist being

removed from the lunch room.

Naglieri took Daniel to the nurse's office. Soon

thereafter a crowd of agitated students assembled

outside, yelling at Daniel and threatening to kill him.

Daniel was uncomfortable and afraid. The school

principal, Scott Farina, arrived in the nurse's office,

asked Daniel what had transpired that day, and

called the police to assist in escorting Daniel out of

school. A police officer arrived in the nurse's office,

Daniel put on his backpack, and, flanked by the

police officer and one school administrator, Daniel

ran out of the school. As Daniel departed, students

yelled at him in Spanish. Farina informed Daniel's

mother, Patricia DeFabio, that Daniel was being sent

home for his own protection and that Daniel should

stay home for a few days until the atmosphere in the

school had calmed down.

The following day Daniel's mother asked Principal

Farina to read over the school's public address

system a letter from Daniel declaring his innocence.

She requested, in the alternative, that the school

permit Daniel to read the statement during a school

assembly or that the school distribute the statement

to the students in written form. Principal Farina

denied all of these requests, citing the risk that any

*75 statement could further afgravate tensions in

the school. In the days following April 26, Daniel

received a number of threatening phone calls at his

house as well as a threatening message in Spanish

on his cell phone. In light of threats heard by Farina

that students were planning to burn Daniel's house,

police were assigned to patrol outside of the DeFabio

household for the remainder of the week.

On April 29, 2004, Patricia DeFabio and her

partner, Michael Rusinsky (“Daniel's parents”), met

with Farina, assistant principal Michael Burns, and

guidance counselor Caryn Lieber to discuss the

events of the past days. Farina advised Daniel's

parents that Daniel could not immediately return to

school in light of concerns for his safety. Daniel's

parents disagreed and argued strenuously that the

best course of action would be to allow Daniel to

return to school to “address the rumor.” Farina

denied their request citing the need to preserve order

and calm in the school. Daniel wanted in some way

to return to school, but was also “pretty scared.”

Daniel's parents acknowledged during this meeting

that they felt intimidated in their home.

The next morning, April 30, an attorney hired by

Daniel's parents contacted the school to inguire when

Daniel would be readmitted to school. That afternoon

Daniel received a_hand-delivered letter from

Principal Farina informing him that he would be

suspended for five days, that Daniel was entitled to

an informal hearing and that he had twenty-four

hours to inform Farina if he wanted a hearing. The

letter also noted that, because of the seriousness of

the infraction, a Superintendent's Meeting might be

held, and that if so, Daniel would receive notice from

the Superintendent's office.

A week later a Superintendent's Meeting was

held. Daniel attended the meeting, venturing out of

his house for the first time since the day of the

incident. Two students testified against Daniel.

Superintendent Raymond Gualtieri found that

Daniel had made the comment alleged and

suspended Daniel for the remainder of the 2003-2004

school year. Daniel received home tutoring for that

time period.

Following the meeting, Principal Farina

accompanied Daniel to a meeting with twelve

student representatives of the Latin American

community in East Hampton High School. At the

meeting, Daniel told the students that he did not

originate the offending statement but that he had

merely repeated the comment to a friend, stating

preliminarily that “you would not believe the terrible

thing that I just heard someone say in the hallway.”

At this meeting with the twelve students, Daniel also

distributed the written statement that he had earlier

requested the school to read or _ otherwise

distribute.*N! Most of the students told Daniel that

they did not believe him. Their conclusion was

informed in part by Daniel's failure to return to

school following the incident-they found his absence

and silence consistent with guilt. *76 Farina

informed the students that he had not allowed

Daniel back in school and had denied Daniel's

request to distribute his statement.

FN1. The letter stated that Daniel heard a “horrible

comment ... in the hall way,” and that “[i]Jn disbelief

[he] repeated it to a friend adding ‘I can't believe

someone could say something that terrible. ” The

letter explained that when Daniel moved to East

Hampton a number of years ago as an “up island

urban kid” he felt himself an outsider and therefore

he could identify with “kids coming from different

[68a]

countries because they too were considered

different.” The letter also stated that Daniel knew

and liked the recently deceased student, that he

mourned his loss and how sorry he was “about the ...

misunderstanding about a comment I would never

say.” Daniel asserted that the message contained in

his letter represented the substance of the message

that he would have delivered to his classmates had

he been’ permitted back into’ the © school.

On May 18, 2004, Daniel appealed Superintendent

Gualtieri's adverse decision to the Board of

Education, which upheld the decision. Daniel further

appealed to the New York Commissioner of

Education. The Commissioner of Education annulled

Daniel's suspension and overturned the

Superintendent's finding. The incident was expunged

from Daniel's record. The Commissioner found that

the record contained insufficient evidence that

Daniel had been the originator of the offending

comment.

During the summer of 2004, various individuals of

Hispanic background threatened Daniel at the

marina where he worked. One of them attempted to

get onto a boat where Daniel was working to fight

him but was stopped by the first mate. On two or

three occasions while Daniel was riding in a car

various individuals cursed at him and threatened his

life. Once while at a gas station a Hispanic individual

confronted Daniel and told Daniel that he was lucky

he “didn't [get] pop{ped].” In August of 2004, Daniel

and his family decided that for Daniel's safety he

would attend school in California the following year.

Daniel never returned to East Hampton High School.

[69a]

II. Procedural History

In April 2007 Daniel and Patricia DeFabio filed a

42 U.S.C. § 1983 civil rights action against Kast

Hampton Union Free School District (the “District”),

and Principal Farina, Superintendent Gualtieri, and

the members of the East Hampton Union Free School

District Board of Education in their individual and

official capacities (the “Individual Defendants’). The

complaint alleged that the District and the

Individual Defendants had violated Daniel's rights to

freedom of speech and freedom of association under

the First Amendment, and to due process and equal

protection under the Fourteenth Amendment.

Appellants also asserted claims under New York

state law. Following discovery, the District and the

Individual Defendants (the “Defendants”) moved for

summary judgment. The district court granted the

Defendants' motion.

The district court addressed Daniel's’ First

Amendment claims on the merits and concluded that

they were unavailing in hght of controlling Supreme

Court and Second Circuit precedent. The court held

in the alternative that even if Daniel had shown that.

his free speech rights were violated, the District

could not be found lable because the plaintiffs had

adduced no evidence of a “policy or custom” resulting

in any putative violation. See Monell v. Dep't of Soc.

Servus., 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d

611 (1978) (holding that municipalities may not be

held lable under 42 U.S.C. § 1983 for the

constitutional torts of employees under a theory of

respondeat superior, but may be found hable when

employees act pursuant to a “policy or custom”

established by the municipality). The court also held

the Individual Defendants were sheltered from

liability by the doctrine of qualified immunity. See

Harlow vo. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct.

2727, 73 1..Ed.2d 396 (1982) (holding that

“government officials performing discretionary

functions[ }] generally are shielded from liability for

civil damages insofar as their conduct does not

violate clearly established statutory or constitutional

rights of which a reasonable person would have

known’). Insofar as Daniel claimed that his rights to

freedom of association, equal protection and due

process were violated, the district court considered

the merits of these claims and *77 found them

unpersuasive. Having determined that) Daniel's

federal claims were without merit, the court declined

to exercise supplemental jurisdiction over Daniel's

state law claims.

Iii. Daniel's Claims Against the District

To the extent Appellants maintain their claims

under § 1983 asserting constitutional violations

against the District on appeal, they have failed to

address the district court's rationale that any alleged

violation of Daniel's rights did not occur pursuant to

a “policy or custom” established by the District.

Monell, 436 U.S. at 694, 98 S.Ct. 2018. We find the

district court's reasoning on this point to be

persuasive. Appellants have thus waived any appeal

from the district court's decision dismissing the

claims against the District on that basis. See Norton

v. Sam's Club, 145 F.3d 114, 117 (2d Cir.1998)

(‘Issues not sufficiently argued in the briefs are

considered waived and normally will not be

addressed on appeal.”). Furthermore, nothing in the

record suggests that the District has in place any

[71a]

policy or custom that would have subverted Daniel's

constitutional rights.

IV. Daniel's Claims Against the Individual

Defendants

In light of the record in this case, we hold that the

Individual Defendants have qualified immunity with

respect to Appellants' First Amendment claims.

Quahfied immunity is available to the Individual

Defendants with respect to the limitations on

Daniel's speech and his removal from school “if either

(1) their conduct did not violate clearly established

rights of which a reasonable person would have

known, or (2) it was objectively reasonable to believe

that [their] acts did not violate these clearly

established rights.” Young v. County of Fulton, 160

F.3d 899, 903 (2d Cir.1998). Assuming arguendo that

Daniel had a “clearly established” right under the

First Amendment to return to school following April

26, or to be permitted to address his classmates on

school property regarding the events of that day,

although we doubt that such a right existed under

the circumstances presented here, it was “objectively

reasonable for [the Individual Defendants] to believe

that they [were] acting within constitutional and

statutory bounds,” Wilkinson v. Russell, 182 F.3d 89,

97 (2d Cir.1999) (internal quotation marks and

alterations omitted), in prohibiting Daniel's return to

East Hampton High School in light of repeated and

serious threats to Daniel's physical safety.

a. Student Speech

The maxim that students do not “shed their

constitutional rights to freedom of speech = or

expression at the schoolhouse gate,” Tinker v. Des

Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506, 89

[72a]

S.Ct. 733, 21 L.Ed.2d 731 (1969), 1s long-established

and well-worn with limitations. Speech that can

“reasonably be regarded as encouraging illegal drug

use” may be restricted by school administrators.

Morse v. Frederick, 551 U.S. 393, 397, 127 S.Ct. 2618,

168 L.Ed.2d 290 (2007). Schools may impose

sanctions upon students for vulgar and lewd speech

that serves to “undermine the _ school's — basic

educational mission.” Bethel Sch. Dist. v. Fraser, 478

U.S. 675, 685, 106 S.Ct. 3159, 92 L.Ed.2d 549 (1986).

Speech that could be perceived as affirmatively

promoted by the school, as opposed to merely

tolerated, may be further restricted so long as the

school's limitation is “reasonably related — to

legitimate pedagogical concerns.” Hazelwood Sch.

Dist. v. Kuhlmeter, 484 U.S. 260, 273, 108 S.Ct. 562,

98 L.Ed.2d 592 (1988). Student speech that does not.

fall within any of the above exceptions remains

governed by the standard announced in *78 Tinker:

if may be restricted if the speech will “materially and

substantially disrupt the work and discipline of the

school.” Tinker, 393 U.S. at 513, 89 S.Ct. 733. To the

extent that a school is in most instances a non-public

forum, the school's limitations on student speech

need only be “reasonable and viewpoint neutral.”

Make the Rd. by Walking, Inc. v. Turner, 378 F.3d

133, 143 (2d Cir.2004).FN2

FN2. Appellants assert that a limited public forum

was created in East Hampton High School in the

form of an assembly held in the auditorium to mourn

the loss of Osorio-Diez, during which students were

permitted to discuss the comment attributed to

Daniel. Assuming arguendo that the school did

create a limited public forum, Appellants have made

no showing that any person wishing to speak on

[73a]

behalf of Daniel during the assembly was prohibited

from doing so. See Husain v. Springer, 494 F.3d 108,

127 (2d Cir.2007) (explaining that “once a_ state

institution opens a limited forum to speech on a

particular topic, it may not act against a speaker in

that forum on the basis of views they express on that

topic”). Appellants have cited no authority to support

their contention that the school, by allegedly creating

a single-day limited public forum for the purposes of

mourning QOsorio-Diez, was thereby obligated to

organize a separate and distinct assembly for the

defense of Daniel. Thus, even assuming that a court.

would ultimately conclude that Danicl had such a

right, it was reasonable for Appellants to believe that

their actions did not violate any of Daniel's clearly

established constitutional rights.

b. Daniel's Individual Speech

With respect to the statement that) Daniel wished

to make on his own, without the assistance of the

school, it did not involve drugs, was not lewd or

vulgar, and could not have been perceived to be

school-sponsored. The rule announced in Tirker,

therefore, delineates our review of the Individual

Defendants' alleged violation of Daniel's’ First

Amendment rights. Applying Tinker, the relevant

inquiry is whether “the record ... demonstrate[s] ...

facts which might reasonably have led_ school

authorities to forecast substantial disruption of or

material interference with school activities.” 7inker,

393 U.S. at 514, 89 S.Ct. 733.

Appellants assert that there was nothing on the

face of Daniel's message which could “lead to a

determination that its dissemination would risk a

material disruption at the school,” and that the

district court erred in focusing on “the atmosphere at

school, not the speech being prohibited.” Appellants'

Br. at 37, 49. Appellants misread Tinker. The Court's

focus in Tinker was not on the contours of the specific

message the petitioners sought to convey by wearing

black arm bands-the message itself was simple and

self-evident: opposition to the war in Vietnam.

Tinker, 393 U.S. at 504, 89 S.Ct. 733. The Court's

focus was on the extent to which the speech would be

accompanied by “disorder or disturbance on the part

of the petitioners.” Jd. at 508-14, 89 S.Ct. 733. In

contradistinction to the facts presented in Tinker, the

Supreme Court cited Blackwell v. Issaquena County

Board of Education, 363 F.2d 749 (5th Cuir.1966),

where the Fifth Circuit upheld the erforcement of a

similar ban because “the students wearing freedom

buttons harassed students who did not wear them

and created much disturbance.” Tinker, 393 U.S. at

505 n. 1, 89 S.Ct. 733. The Court explained that in

order for a school to suppress student speech on the

grounds of preventing material disruption in the

school, administrators must have more than an

“undifferentiated fear or apprehension of

disturbance” and must be able to show that its action

“was caused by something more than a mere desire

to avoid the discomfort and unpleasantness that

alvays accompany an unpopular viewpoint.” Jd. at

508, 509, 89 S.Ct. 733.

*79 Appellants also cite Governor Wentworth

Regional School District v. Hendrickson, 421

F.Supp.2d 410 (D.N.H.2006) in support of their

argument that the district court was required to

undergo an in-depth review of the context of Daniel's

speech. The court in Hendrickson confronted a

[75a]

school's prohibition on students wearing an anti-Nazi

patch and struggled with the question of “how (and

where) to draw the line between a reasonable (and

legally sufficient) fear of disturbance, and one that. is

merely ‘undifferentiated. ” Hendrickson, 421

F.Supp.2d at 421. Here, however, we do not face any

difficulty in line drawing. There is no question that

Daniel's mere presence in the school, with or without

his speech, would lhkely result in violence or the

threat of violence and would therefore “materially

and substantially interfere with the requirements of

appropriate discipline in the operation of the school.”

Tinker, 393 U.S. at 509, 89 S.Ct. 733; see Guiles v.

Marineau, 461 F.3d 320, 326 (2d = Cir.2006)

(explaining that while Tinker was not entirely clear

as to what constitutes “substantial interference,”

violence or the threat of violence would undoubtedly

qualify). The record shows, tnter alia, that police

were assigned to protect the DeFabio home, Daniel's

parents felt intimidated in their home, Daniel

received death threats, and he admitted he was

scared to return to school. The fact that hostility

towards Daniel continued throughout the summer of

2004 also speaks to the danger that Daniel faced

were he to return to school in the months following

the incident.

In Doninger v. Niehoff, 527 F.3d 41 (2d Cir.2008),

we explained that “ ‘[s]chool officials have an

affirmative duty to not only ameliorate the harmful

effects of disruptions, but to prevent them from

happening in the first place’ ” and that “[t]he

question is not whether there has been actual

disruption, but whether school officials ‘might

reasonably portend disruption’ from the student

expression at issue.” /d. at 51 (quoting Lowery v.

| 76a}

Euverard, 497 F.3d 584, 596 (6th Cuir.2007)

(alteration in original) and LaVine v. Blaine Sch.

Dist., 257 F.3d 981, 989 (9th Cir.2001)). Here the

school had already experienced “actual disruption,”

and in light of, inter alia, threats heard in school that

students were planning to bomb Daniel's house, the

Individual Defendants could also “reasonably

portend disruption” were Daniel readmitted to East

Hampton High School. LaVine, 257 F.3d at 989.

Under the circumstances, therefore, it was

reasonable for the Individual Defendants “to forecast

substantial disruption of or material interference

with school activities,” Tinker, 393 U.S. at 514, 89

S.Ct. 733, were Daniel permitted to return to school

to speak with his classmates about his version of

what transpired on April 26. Because “it was

objectively reasonable [for the Individual

Defendants] to beheve that their acts did not violate

[Daniel's] clearly established rights,’ they were

entitled to qualified immunity with respect to

Daniel's asserted right to return to school and

communicate his explanation. Young, 160 F.3d at

903.

c. School Sponsored Speech

With respect to the school's refusal to deliver

Daniel's message to the student body in his absence-

either over the public address system, during an

assembly or in written form-in each instance the

district court found that the message could be

perceived to bear the imprimatur of the school and

was thus subject to the standard announced in

Hazelwood. The court found in the alternative that

the school's refusal to distribute Daniel's statement

was also permissible under the more demanding

[77a]

Tinker standard “for the same reasons articulated

above-namely, concerns*8@ about the disruption to

the school that such speech could cause, including

violence or other disruptions by angry and emotional

students.”

Even applying the more demanding Tinker

standard, Appellants have failed to show it was

unreasonable for the Individual Defendants to have

refused to publish Daniel's statement to his

classmates in school. “Here, given the circumstances

surrounding the [DeFabio] dispute, [Daniel's

proffered statement] posed a substantial risk that

[East Hampton High School] administrators and

teachers would be further diverted from their core

educational responsibilities by the need to dissipate

.. anger or confusion over” the veracity and sincerity

of Daniel's statement, as well as ancillary questions

concerning the extent to which the school endorsed

the statement by assisting Daniel in its publication.

Doninger, 527 F.3d at 51-52. For these reasons, the

Individual Defendants are entitled to qualified

immunity with respect to this aspect of Appellants'

First Amendment claim.

V. Appellants' Remaining Claims

a. Procedural Due Process

To the extent Appellants challenge the District's

failure to provide an informal conference pursuant to

New York Education Law § 3214(3)(b)(1) where

Daniel could challenge the allegations of the

complaining witness in the presence of school

authorities as well as the District's alleged failure to

provide him notice of the charges against him and

the opportunity to explain his account of the facts,

see Goss v. Lopez, 419 U.S. 565, 581, 95 S.Ct. 729, 42

[78a]

L.Ed.2d 725 (1975), these claims are not preserved

for appellate review, as Appellants raised them for

the first time in their reply brief. See, e.g., Knipe uv.

Skinner, 999 F.2d 708, 711 (2d = Cir.1993)

(‘Arguments may not be made for the first time in a

reply brief.”). Upon review of the record, furthermore,

we have identified no “unusual circumstances” such

that “manifest injustice” would result from failing to

consider these claims. Frank v. United States, 78

F.3d 815, 833 (2d Cir.1996), vacated on other

grounds, 521 U.S. 1114, 117 S.Ct. 2501, 138 L.Ed.2d

1007 (1997). To the contrary, the record provides

abundant support for the district court's finding that

“the undisputed procedures afforded [Appellants] in

connection with the initial and long-term suspension

satisfied Daniel's due process rights under the U.S.

Constitution.” *N3. DeFabio v. E. Hampton Union

Free Sch. Dist., 658 F.Supp.2d 461, 493-94

(E.D.N.Y.2009). Accordingly, we find no error in the

district court's grant of summary judgment for the

Defendants on Appellants' procedural due process

claim.

FN3. To the extent Appellants assert that the school

did not afford Daniel adequate process under New

York state law, the district court did not err in

determining that “the failure to comply with certain

provisions under state education law (that are not

required by the United States Constitution) cannot

give rise to a federal due process claim under section

1983.” DeFabio v. E. Hampton Union Free Sch. Dist.,

658 F.Supp.2d 461, 492 (E.D.N.Y.2009); see, e.g.,

Pollnow v. Glennon, 757 F.2d 496, 501 (2d Cir.1985)

(‘Absent a violation of clearly established

constitutional or federal statutory rights of which a

reasonable person would have known, a_ school

[79a]

official cannot be held accountable for damages

under § 1983.” (internal citation and quotation

marks omitted)).

b. Substantive Due Process

(1) Appellants argue that the process that Daniel

received was a_ pretextual farce, masking the

District's true intent to subvert Daniel's First

Amendment rights. Appellants argue that the

district court erred by not crediting, on summary

judgment, Appellants' factual assertion that Daniel

was expelled from school in an effort*8/ to prevent

him from asserting his “constitutional right to attend

school, associate with his peers and_ speak,”

Appellants' Br. at 30, in light of their showing that (i)

Daniel was not disciplined immediately following the

events of April 26, 2004, (ii) his parents made

repeated requests that he be readmitted to the

school, (iii) the length of his suspension was

“excessive,” (iv) he was only expelled after his

attorney contacted the school regarding his

readmission, and (v) the District failed to include in

its code of conduct and form letter informing Daniel

of his five-day suspension that he had a right to

confront the complaining witness. When deciding a

summary judgment motion in a civil case, all factual

ambiguities must be resolved in the non-moving

party's favor and the court may not weigh the

evidence, but rather must only determine whether a

genuine issue of fact exists for trial. See Cioffi v.

Averill Park Cent. Sch. Dist. Bd. of Educ., 444 F.3d

158, 162 (2d Cir.2006).

In considering a motion for summary judgment,

however, “the mere possibility that a factual dispute

[80a]

may exist, without more, is not sufficient to overcome

a convincing presentation by the moving party.”

Quinn v. Syracuse Model Neighborhood Corp., 613

F.2d 438, 445 (2d Cir.1980). “To defeat summary

judgment ... nonmoving parties ‘must do more than

simply show that there is some metaphysical doubt

as to the material facts,’ ... and they ‘may not rely on

conclusory allegations or unsubstantiated

speculation.’ ” Jeffreys v. City of N.Y., 426 F.3d 549,

554 (2d Cir.2005). (quoting Matsushita Elec. Indus.

Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106

S.Ct. 1348, 89 L.Ed.2d 538 (1986) and Fujitsu Ltd. v.

Fed. Express Corp., 247 F.3d 423, 428 (2d Cir.2001)).

“Such an issue is not created by a mere allegation in

the pleadings, nor by surmise or conjecture on the

part of the litigants.” United States v. Potamkin

Cadillac Corp., 689 F.2d 379, 381 (2d Cuir.1982)

(internal citations omitted). But see Brown uv.

Henderson, 257 F.3d 246, 251 (2d Cir.2001)

(explaining that summary judgment should be used

sparingly when the defendant's state of mind is at

issue “because of juries' special advantages over

judges in this area”).

Even assuming that part of the District's

motivation for suspending Daniel might have been to

maintain tranquility at the school, as opposed to

disciplining Daniel (as the District alleges), there is

no evidence from which a rational trier of fact could

conclude that the school's intent was to prevent

Daniel from communicating his message to his fellow

classmates. The record demonstrates that the

school's intent in suspending Daniel was either to

discipline him, after the investigation conducted by

the school showed him to be the originator of the

incendiary racial slur, or to avoid the patent

[8la]

likelihood of violence if Daniel returned (confirmed

by numerous threats he received and the fact that he

did not leave his house for almost two weeks

following the incident). While it is true that the

school's action prevented Daniel from communicating

with the student body in the particular manner he

requested, a jury could not reasonably find that the

school's motivation in suspending Daniel was to

prevent him from communicating his point of view.

The school made no effort to prevent him from

communicating with the student body in other

fashions that were easily available to _ him.

Accordingly, no raticnal trier of fact could conclude

that the District's decision to expel him from school

for the remainder of the school year was intended to

suppress Daniel's constitutional rights rather than

address legitimate education concerns.

(2) Appellants claimed below that Daniel's

substantive due process *82 rights under the

Fourteenth Amendment were violated when Daniel

was suspended for five days on April 30, 2004, and

thereafter for the remainder of the school year. “It is

not the role of the federal courts to set aside decisions

of school administrators which the court may view as

lacking a basis in wisdom or compassion.” Wood uv.

Strickland, 420 U.S. 308, 326, 95 S.Ct. 992, 43

L.Ed.2d 214 (1975). We will only find error

implicating a student's substantive due process

rights upon a showing that an administrator's

decision to expel the student was “arbitrary or

irrational or motivated by bad faith.” Rosa R. v.

Connelly, 889 F.2d 435, 439 (2d Cir.1989).

In light of the nature of the statement attributed

to Daniel, the number and diverse nature of the

[82a]

students affected by the statement, related concerns

regarding Daniel's safety, and the Appellants' failure

to adduce reasonable evidence of bad faith, the court

did not err in concluding that the District's decision

to expel Daniel for the remainder of the school year

was not arbitrary or irrational. See id. at 439 (noting

that “review and revision of a school suspension on

substantive due process grounds would only be

available in a rare case where there was no ‘rational!

relationship between the punishment and _ the

offense’ ” (quoting Brewer v. Austin Indep. Sch. Dist.,

779 F.2d 260, 264 (5th Cir.1985))).

c. Freedom of Association

In re-asserting their freedom of association claim

before this Court, Appellants argue that the district

court “granted defendants summary judgment on

[Appellants'] freedom of association claim for the

same [invalid] reason as the [Appellants'] free speech

claims.” Appellants' Br. at 55. As Appellants have

identified no error in the dismissal of either the free

speech claim or the free association claim, we affirm

the latter ruling for the reasons explained above.

VI. Conclusion

Finding the remainder of the Appellants'

arguments without merit, we affirm the judgment of

the district court.

C.A.2(N.Y.),2010.

DeFabio v. East Hampton Union Free School

Dist.623 F.3d 71, 261 Ed. Law Rep. 515