Opposition Brief — S. G. v. Sayreville Board of Education

Supreme Court, U.S.

No. 03-441 — .

NOV 2 4 2003

|_ OFFICE OF THE CLERK

Jn The

Supreme Court of the Anited States

;

S.G., as Guardian Ad Litem of A.G..,

a minor, and S.G., Individually,

Petitioners,

V.

SAYREVILLE BOARD OF EDUCATION,

GEORGIA B. BAUMANN and WILLIAM L. BAUER, et al.,

Respondents.

¢

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Third Circuit

¢

BRIEF IN OPPOSITION

¢

SEAN X. KELLY

Counsel of Record

JACQUELINE V. MCDONALD

MARKS, O’NEILL, O’BRIEN & -

COURTNEY, P.C.

Cooper River West

6981 North Park Drive

Suite 300

Pennsauken, NJ 08109

(856) 663-4300

Counsel for Respondents

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

TABLE OF CONTENTS -

Page

COUNTERSTATEMENT OF THE CASE................. 1

REASONS FOR DENYING THE WRIT.................++ 6

I. THE QUESTIONS PRESENTED BY THE

PETITION ARE NOT THE ISSUES DE-

CIDED BY THE THIRD CIRCUIT ................ 6

II. THIS CASE DOES NOT INVOLVE ANY

NOVEL OR IMPORTANT QUESTIONS OF

CONSTITUTIONAL LAW...............cccccseeeeseeees 9

A. FIRST AMENDMENT..............:.:cccceeeeeees 10

B. PROCEDURAL DUE PROCESS ............. 19

HI. CONCLUSION. ..........c0scccccsessscscccnsssorcressscoees 21

li

TABLE OF AUTHORITIES

Page

CASES

Anderson v. Milbank School District, 197 F.R.D.

GOS CD SDD. DOD csssssivssicvnctasiarevseneverataneanimconnenees 12

Bethel School District No. 403 v. Fraser, 478 U.S.

675, 106 S.Ct. 3159, 92 L.Ed.2d 549 (1986).............::00+ 7

Board of Education, Island Trees Union Free School

District No. 26 v. Pico, 457 U.S. 853, 102.S.Ct.

2799, 73 L.Ed.2d 453 (1982) ..............ssccccccsserrrsesssvossoesens 9

Cohen v. California, 403 U.S. 15, 91 S.Ct. 1780, 29

1 Wak. Ba BOE (IGT) wvricesiciesccracvsncoimiarinememiananinnene 16

Fraser, 478 U.S. at 681, 106 S.Ct. 3159... ee passim

Ginsberg v. City of New York, 390 U.S. 629, 88 S.Ct.

1274, 20 L.Ed.2d 195 (1968) .............ccccesssrersssseenes 11, 14

Goss v. Lopez, 419 U.S. 565 (1975) .......ceeseseereeeees 7, 19, 20

Hazelwood School District v. Kuhlmeier, 484 U.S.

260, 108 S.Ct. 562, 98 L.Ed.2d 592

CRI soviesenainciincncieesneenteenaenamaiaamnan 7, 12, 13, 14, 15

Muller v. Jefferson Lighthouse School, 98 F.3d 1530

(Ted CRE, FOG vvinesicessrienissavonsesconennnnnaannnianee 15, 16

Planned Parenthood of Central Missouri v. Dan-

forth, 428 U.S. 52, 96 S.Ct. 2831, 49 L.Ed.2d 788

(BP ikccsnintiaeenepemnaale suaahunieauehaniesameaaian lament 11

Poling v. Murphy, 872 F.2d 757 (6th Cir. 1989) .............+ 17

Prince v. Massachusetts, 321 U.S. 158, 64 S.Ct. 438,

BB L.Ed. G45 (196) ..0cscrccssserssaciseenennnicrenenmananrne 11

Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 150

Led. 3d S78 (2001) .ccvsiisscceinvcnerinioeenenseaeenee 8

iil

TABLE OF AUTHORITIES - Continued

Page

S.G. ex rel A.G. v. Sayreville Board of Education,

330 F.8d 417 (Srd Cir. 2008)..............000.s.scseveessnovees passim

Tinker v. Des Moines Independent Community

School District, 393 U.S. 503, 89 S.Ct. 733, 21

BF TOL CIGD) ..10sscssssevseovvsescsccocessevers 7, 12, 13, 14, 15

Vernonia School District 47J v. Acton, 515 U.S. 646,

115 S.Ct. 2386, 1382 L.Ed.2d 564 (1995).........::cceeseeeeees 16

West v. Derby United School District, 206 F.3d 1358

I ee BD va nevecensnvessvevscasnesonsrpnaserncvsovasenvennensenve 12,17

Wood v. Strickland, 420 U.S. 308, 95 S.Ct. 992, 43

(11D vvsavsessvessvesssenenccnenesneenanssveversennsnnnences 10

STATUTES

42 U.S.C.A. §19838 ...........sssssccccsccccccrererrresssrenenscesenssnsseenesess 9

1

COUNTERSTATEMENT OF THE CASE

On February 29, 2000, a six-year-old boy brought a

gun to his elementary school in Flint, Michigan. Later that

day, he shot and killed his six-year-old classmate while

their teacher and class watched.

On March 4, 2000, a student at the Wilson Elemen-

tary School in Sayreville, New Jersey told other children

in the morning playground line that he would “shoot the

freaking teacher.” The student was suspended for three

days, received a consultation with the school psychologist

and further conflict mediation with the school guidance

counselor was recommended. Pet. App. H1, 76. In addi-

tion, outside psychological counseling for the student was

recommended to his parents.

On the same date, a second student at Wilson Ele-

mentary told another child that he would put a gun in his

mouth and kill him. The student who made the threat was

suspended for three days, underwent a consultation with

the school psychologist and the police were informed of the

incident. Pet. App. H1, 97. In addition, psychological

counseling was recommended to his parents. A few days

later, on March 10, 2000, a third child at Wilson Elemen-

tary told another student that, “My Mommy lets me bring

guns to school in my backpack.” The student was sus-

pended for three days, but no additional punishment was

imposed. Pet. App. H2, 8.

After press coverage relating to one of the above-

described incidents, defendant Georgia Baumann, princi-

pal of Wilson Elementary School, sent home with students

2

a letter to parents.’ Pet. App. H2, 7 9. The letter, dated

March 10, 2000, acknowledged parental concerns regard-

ing the incident and attempted to reassure parents of the

school’s intent to take an “active stance” with regard to

matters involving threats or statements about guns and

violence in the school. In her letter, Principal Baumann

asked parents to discuss with their children the inappro-

priateness of statements in reference to violence and

weapons and the consequences resulting from making

them. Principal Baumann advised that immediate disci-

plinary action would be taken in response to such behav-

ior. Principal Baumann advised that she would be visiting

each of the classrooms under her supervision to discuss

the seriousness with which statements involving threats of

guns or violence would be treated at Wilson School. The

letter closed by assuring parents that their children’s

safety was of utmost importance, and that Wilson School

would be “ever vigilant with regard to inappropriate or

unsafe statements and behaviors.” Pet. App. H2, { 9.

There was no Board “zero telerance policy” contained in

the letter. It is undisputed that there never was any policy

issued by the Board establishing any “automatic” suspen-

sion or other “zero tolerance policy” relative to Petitioner’s

conduct.

As promised, Principal Baumann visited each class-

room in the Wilson School on March 10, 2000. Tailoring

her commentary to suit the age and grade level of the

Although Plaintiffs assert that the minor plaintiff was absent

from school on March 10, 2000 and that they did not receive a copy of

this letter, teachers were instructed to send the letter home to absent

students along with school assignments.

3

students, Principal Baumann discussed with the children

the seriousness of making threats or statements about

guns and violence, as well as the potential consequences

thereof. Pet. App. H3, 7 10. On March 15, 2000, the minor

plaintiff, A.G., was on the playground during his recess

period with three other kindergarten students, when they

began to make threats concerning weapons and shooting

each other. Pet. App. H3, 7 11, 7 12. Other kindergarten

children were frightened by the threats and reported them

to a teacher.’ Pet. App. H3, 13.

The kindergartner’s teacher, Ms. McKenna, brought

her class into the school after recess and then brought the

plaintiff and the other students who made the gun-related

threats to the principal's office. Pet. App. H3, 7 14. To do

so, Ms. McKenna was forced to suspend lessons and find

someone else to watch her class while she brought A.G.

and the other involved children to the principal’s office.

Hence, Petitioner’s assertion that there was no disruption

is simply untrue. Not only were students upset, but the

lessons in one class were suspended as a result of the

ordeal.

Upon arriving at the principal’s office, Ms. McKenna

advised Principal Baumann about the threats. Ms.

McKenna also advised that the other children were

? Petitioner’s assertion that only one child overheard the comments

is misleading. Principal Baumann testified during depositions that she

personally spoke with several children who overheard plaintiff’s gun-

related comments and were frightened and upset by them. In fact, one

child told his teacher that he felt he had been threatened by the minor

plaintiff.

4

frightened and upset by the words of A.G. and his friends.

Pet. App. H3-H4, 4 15.

Once he arrived at the Principal’s office, the minor

Petitioner was told why he was there and given an oppor-

tunity to give his side of the story. Principal Baumann

asked A.G. and the other students if they made the com-

ments as related by their teacher. Each of the boys, includ-

ing A.G., confirmed making the statements. Pet. App. H4,

{ 16. Principal Baumann also spoke with the children who

reported the incident to Ms. McKenna, and confirmed that

several children were upset and frightened by the threats.

Principal Baumann testified during her deposition that it

was clear to her that the plaintiff understood that he acted

wrongly and upset his teacher and fellow students. In

considering the appropriate punishment to be meted out

with regard to the incident, Principal Baumann corisulted

with Defendant Superintendent William Bauer and

Assistant Superintendent Dennis Fyffe. Pet. App. H4,

q 17. Principal Baumann took into consideration A.G.’s age

and abilities in deciding his punishment. Ultimately, A.G.

and the other students involved in the incident were

suspended for three days.’ Pet. App. H4, 9 17. There was

no “automatic” suspension. No other punishment was

imposed, such as referral to counseling or an outside

psychologist or involvement of the police as was done in

other similar cases.

* The only Board policies mentioned are 525 and 529, which simply

convey general disciplinary authority to administrators. Petitioners

have never challenged the constitutionality of these policies. Pet. App.

H4, 7 19.

ee ee

5

Although arguably not required to do so, principal

Baumann attempted to reach A.G.’s parents via telephone

at their places of business, but was unable to do so. Prin-

cipal Baumann also telephoned the Petitioner’s home

number, and spoke with A.G.’s grandmother, with whom

the Petitioners resided at the time of the incident. Princi-

pal Baumann left a detailed message for A.G.’s parents

with his grandmother, asking them to contact her as soon

as possible. Pet. App. H4-H5, { 20. Petitioner returned in

three days and finished the school year without incident.

The incident underlying this claim and the resultant

punishment were never made a part of A.G.’s permanent

record. Principal Baumann simply made a handwritten

note of the incident on a personal legal pad that she kept

in her desk.

Petitioners are incorrect in their recital of many facts

in the record. By way of example, Petitioners make re-

peated reference to the existence of a “zero tolerance

policy” of the Board. To the contrary, the Third Circuit

properly found that there simply was no such Board policy.

In fact, the Third Circuit specifically stated that Peti-

tioner’s claims below “ ... are not based upon any action

by the Board.” S.G. ex rel A.G. v. Sayreville Board of

Education, 333 F.3d 417, 425 n.4 (3rd Cir. 2003) Pet. App.

A15, n.4. Moreover, the Third Circuit properly held that

the existence of a zero tolerance policy would not overcome

qualified immunity in any event.

Similarly, Petitioners also claim that students were

somehow “automatically” suspended by school officials.

Petition at 3. This is not true and is not reflected in the

record.

6

Likewise, Petitioner’s reference to testimony by Dawn

Myatt merits clarification. Dawn Myatt is neither a

Defendant nor was she in any way involved in relevant

parts of this case. She is simply a mother of a Sayreville

student and a member of the P-T.A. Ms. Myatt testified

during her deposition that she was simply misquoted by a

reporter with regard to the comments cited by the Peti-

tioners.‘ In any event, Ms. Myatt’s comments regarding

her understanding of school “policy” are of no legal rele-

vance in this case. There is simply no Board policy at issue

in this case.

Finally, there is no factual basis for Petitioner’s bold

assertion that “suspensions of younger students has

become a more common place.” Petition at 13. This is a

clear attempt to give this case a gloss of significance where

none is warranted.

*

v

REASONS FOR DENYING THE WRIT

I. THE QUESTIONS PRESENTED BY THE PETI-

TION ARE NOT THE ISSUES DECIDED BY

THE THIRD CIRCUIT

The Third Circuit did not issue the two holdings

which Petitioners seek to review. In an attempt to gain

this Honorable Court’s attention, Petitioners assert that

‘ Similarly, Petitioner’s repeated references to unsupported

newspaper clippings referencing a “zero tolerance policy” are of no

import. The Petitioner’s self-serving reference to media coverage which

they generated does not change the fact that discovery revealed that no

relevant Board policy ever existed.

a I NI Re

the Third Circuit created a “new standard” in First

Amendment jurisprudence. Petition at 4. Nothing could be

further from the truth. To the contrary, this Court simply

applied the standards established by this Court in Tinker

v. Des Moines Independent Community School District, 393

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

School District No. 403 v. Fraser, 478 U.S. 675, 106 S.Ct.

3159, 92 L.Ed.2d 549 (1986), and Hazelwood School

District v. Kuhlmeier, 484 U.S. 260, 108 S.Ct. 562, 98

L.Ed.2d 592 (1988), and reached the decision which is

entirely in accord with established and controlling law.

Similarly, in the realm of procedural due process,

Petitioners assert that this case has revealed a “critical

gap” in constitutional jurisprudence relating to short term

school suspensions. Petition at 4. To the contrary, the

Third Circuit simply applied the well-established prece-

dent applicable to short term suspensions established by

this Court in Goss v. Lopez, 419 U.S. 565, 95 S.Ct. 729, 42

L.Ed.2d 725 (1975).

What the Third Circuit did decide was simply that

Defendants Baumann and Bauer were entitled to qualified

immunity. S.G. ex rel A.G. v. Sayreville Board of Educa-

tion, 333 F.3d at 425 n.4 (8rd Cir. 2003) Pet. App. 15, n.4.

This holding, is not challenged by Petitioners.’ Hence,

there exists no valid basis for grant of the Petition.

To be sure, within the context of the two-pronged

qualified immunity analysis, the Third Circuit examined

* Similarly, the District Court and the Third Circuit Court dis-

missed Petitioner’s Equal Protection Claim. Petitioners have not sought

Writ consideration of this issue.

8

the threshold question of whether Petitioner’s averments

amounted to a violation of constitutional rights at all, and

properly decided that they did not. The court also found

that since there was no clearly established law, defendants

were nonetheless entitled to qualified immunity. Saucier v.

Katz, 533 U.S. 194, 121 S.Ct. 2151, 150 L.Ed.2d 272

(2001). In so doing, the Third Circuit followed the explicit

holdings of this Court. There is no conflict with the pre-

sent decision and any decisions of this Court or between

the holdings of the Circuit Courts of Appeal. There is

neither a gap in constitutional jurisprudence nor was a

“new standard” created with regard to the issues pre-

sented in this case.

It is also significant that petitioners have never

challenged below the constitutionality of any actual policy

of the Sayreville Board of Education. Much was made of

“zero tolerance policy” allegedly promulgated by the

Sayreville School Board. However, discovery revealed that

the Board simply had no such policy. The discipline of the

minors in this case was carried out by Principal Baumann

based on the totality of circumstances in this incident.

Indeed, the Third Circuit explicitly did not address such

an issue, holding “ ... [w]e need not address his claims

against the Board of Education. These claims are not based

upon any action by the Board ... ” S.G. ex rel A.G. v.

Sayreville Board of Education, 333 F.3d 417, 425 n.4 (3rd

Cir. 2003) Pet. App. A15, n.4. Hence, the only actionable

claims are those against Principal Baumann and Superin-

tendent Bauer for which the Third Circuit properly upheld

a grant of qualified immunity.

At the end of the day, the relief Petitioner sought was

to expunge a fictitious permanent record of A.G.’s punish-

ment. As the Third Circuit pointed out, there is simply no

9

official record to expunge. The only record retained by

anyone at the Sayreville Public School consists of some

personal handwritten notes on a yellow legal pad made by

Principal Baumann and kept in her top drawer. This

perhaps best highlights the utter lack of any far-reaching

constitutional implications arising from this matter.

Il. THIS CASE DOES NOT INVOLVE ANY NOVEL

OR IMPORTANT QUESTIONS OF CONSTITU-

TIONAL LAW

This case began with a typical situation, which is

repeated many times over on any given day in the nations

school system. To wit; a child committed an infraction on

the playground, admitted the behavior when questioned

about it, and was punished accordingly. The Court is faced

with no more and no less than that. This Court has long

acknowledged the broad discretion of local school boards in

the administration of school affairs. Board of Education,

Island Trees Union Free School District No. 26 v. Pico, 457

U.S. 853, 863, 102 S.Ct. 2799, 2806, 73 L.Ed.2d 453 (1982).

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 ... school students do have

substantive and procedural rights while at

school. But §1983 does not extend the right to re-

litigate 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 judgement of school administrators and

school board members and §1983 was not in-

tended to be a vehicle for federal court correction

ee

10

of errors in the exercise of that discretion which

do not rise to the level of violations of specific

constitutional guarantees.

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

992, 43 L.Ed.2d 214 (1975) (citations omitted).

Ignoring the words of this Court, Petitioners are

seeking nothing less but to substitute their judgment or

this Court’s judgment for the judgment of the people who

are charged with the day-to-day operation of the Sayreville

Public Schools. The Petitioners simply wish to reverse a

- school discipline decision with which they disagree. While

parents may often feel that in school, sport or life, their

child was not treated fairly, § 1983 is not the intended

vehicle for their dissatisfaction.

A. FIRST AMENDMENT

A group of five year_olds were punished by their

Principal for misbehaving.’ This case presents nothing

more. The decision by the Third Circuit is neither so novel

nor so compelling as to warrant this Court’s review. To the

contrary, the decision is well-grounded in the established

First Amendment precedent of this Honorable Court and

is not in conflict with any decisions.

* As referenced earlier, the punishment was issued by principal

Baumann after consulting with colleagues Fyffe and Bauer. There was

no Board policy mandating an automatic suspension. However, the

Third Circuit pointed out that, even assuming that the conduct of

Baumann is viewed as a “policy” of the school, qualified immunity still

applied, since there was no clearly established law prohibiting punish-

ment of such threats.

ee -

11

In the first instance, the petition is fatally flawed

since it is based on the false premise that this playground

incident is one involving “expressive” speech, ideas, or

viewpoints. Petition at 14, 15. This fallacy is a readily

transparent effort to gain this Honorable Court’s attention

and should be rejected. The Third Circuit examined the

record and recognized that this case simply does not

involve “expressive speech.” Rather, the children made

threats to shoot each other. Indeed, one would be hard-

pressed to present an example of less expressive speech

from a First Amendment perspective than the conduct in

this case. Indeed, it is inconsistent for Petitioners to argue

that these children were involved in some sort of expres-

sive speech, yet, in the context of their procedural due

process argument, state that the children had no compre-

hension of the meaning of their conduct.

The parameters of First Amendment rights in the

setting of the nation’s public schools are well-defined by

this Court and were properly applied by the Third Circuit

in affirming the District Court’s grant of Summary Judg-

ment. Although minors enjoy the protections of the United

States Constitution, the United States Supreme Court has

recognized “that the State has somewhat broader author-

ity to regulate the activity of children than of adults.”

Planned Parenthood of Central Missouri v. Danforth, 428

U.S. 52, 75, 96 S.Ct. 2831, 2844, 49 L.Ed.2d 788 (1976)

(citing Prince v. Massachusetts, 321 U.S. 158, 170, 64 S.Ct.

438, 444, 88 L.Ed. 645 (1944); Ginsberg v. City of New

York, 390 U.S. 629, 88 S.Ct. 1274, 20 L.Ed.2d 195 (1968).

That the constitutional rights of minors are not coexistent

with those of adults is illustrated particularly well within

the context of the nation’s public schools. This Court

has “repeatedly emphasized the need for affirming the

12

comprehensive authority of the States and of school

officials, consistent with fundamental constitutional

safeguards, to prescribe and control conduct in the

schools.” Tinker, 393 U.S. at 507.

The constitutional rights of public school stu-

dents are not automatically coextensive with the

rights of adults in other settings, and a school

need not tolerate speech that is inconsistent with

its pedagogical mission, even though the gov-

ernment could not suppress the speech outside of

the schoolhouse.

Anderson v. Milbank School District, 197 F.R.D. 682, 686

(D.S.D. 2000) (quoting Fraser, 478 U.S. at 682).

Hence, it is similarly well established that “the First

Amendment Rights of students in public schools ... must

be applied in light of the special characteristics or the

school environment.” Hazelwood, 484 U.S. at 266. In

accordance with these principles, “where school authori-

ties reasonably believe that a student’s uncontrolled

exercise of expression might substantially interfere with

the work of the school or impinge upon the rights of other

students, they may forbid such expression.” West v. Derby

United School District, 206 F.3d 1358 (10th Cir. 2000)

(quoting Tinker, 393 U.S. at 509).

Far from conflicting with this Honorable Court’s prior

decisions regarding students’ free speech rights, the Third

Circuit specifically evaluated the facts herein within the

context of Tinker, Fraser and Hazelwood. After so doing,

the Circuit Court concluded that there was no threshold

showing of a violation of A.G.’s First Amendment rights.

S.G. ex rel A.G., 330 F.3d at 422. In so concluding, the

Third Circuit held that “the school’s prohibition of speech

13

threatening violence and the use of firearms was a legiti-

mate decision related to reasonable pedagogical concerns

and therefore did not violate A.G.’s First Amendment

rights.” S.G. ex rel A.G., 330 F.3d at 423.

The Tinker Court expressly distinguished the regula-

tion of “direct, primary First Amendment rights akin to

‘pure speech’” from the regulation of issues of deportment

and aggressive, disruptive actions by students. Tinker, 393

U.S. at 506-08. These issues were also addressed in Fraser

and Hazelwood, as noted in the decision of the Third

Circuit.

The Supreme Court has recognized that a bal-

ance must be struck between the student’s rights

and the school’s role in fostering what the Court

in Fraser termed “socially appropriate behavior.”

Fraser, 478 U.S. at 681, 106 S.Ct. 3159. Here,

where the school officials determined that

threats of violence and simulated firearm use

were unacceptable, even on the playground, the

balance tilts in favor of the school’s discretionary

decision-making.

S.G. ex rel A.G., 330 F.3d at 422.

The Court below simply followed the dictates of Fraser and

held that it need not decide

whether or if, under what circumstances, a

school may violate an elementary school stu-

dent’s right to freedom of speech. For our pur-

poses it is enough to recognize that a school’s

authority to control student speech in an elemen-

tary school setting is undoubtedly greater than

in a high school setting.

Id. at 423.

14

The decision below is consistent with the opinions of

this Court and the Circuit Courts of Appeals that have

addressed the issue of First Amendment rights in the

nation’s public schools insofar as the age of the student is

concerned. This Court has recognized that the maturity

level of the target audience in cases involving student

speech will play a factor in the consideration of school

official’s regulation of it. That the maturity of the student

audience might prove important in First Amendment

analysis was first hinted in Tinker, where Justice Stewart,

concurring in the result, reiterated sentiments expressed

in a prior opinion that a state could determine that “a

child ... is not possessed of that full capacity for individ-

ual choice which is the presupposition of First Amendment

guarantees.” Tinker, 393 U.S. at 515 (Stewart, J., concur-

ring) (citing Ginsberg v. New York, 390 U.S. 629, 649-50,

88 S.Ct. 1274, 1285-86, 20 L.Ed.2d 195 (Stewart, J.,

concurring)).

The reference to audience maturity contained in

Justice Stewart’s concurring opinion in Tinker was made

more explicit in the majority opinions in Fraser and

Hazelwood. Confronted by a high school student’s sexually

charged speech made to an audience composed of fellow

pupils, the maturity level of that audience was central to

the reasoning of the Fraser Court. The Court specifically

noted that the speech at issue “could well be seriously

damaging to its less mature audience, many of whom were

only 14 years old at the time and on the threshold of

awareness of human sexuality,” and held that the disci-

pline imposed on the speaker was constitutional. Fraser,

478 USS. at 633.

The Hazelwood Court, in upholding a school’s decision

to excise certain material from a student-published school

newspaper, expressly stated that regulation of school

15

sponsored speech was acceptable to ensure that “readers

or listeners are not exposed to material that may be

inappropriate for their level of maturity.” Hazelwood, 484

U.S. at 271 (emphasis added).

Circuit Courts of Appeals have followed suit with this

Honorable Court’s decisions evaluating First Amendment

challenges within the nation’s schools in light of the

maturity of the student population. The interplay of

Tinker, Hazelwood, and Fraser as to the relevance of age

in the consideration of the First Amendment rights of

studeuts was considered by the Seventh Circuit Court of

Appeals in Muller v. Jefferson Lighthouse School, 98 F.3d

1530 (7th Cir. 1996). In weighing an elementary student’s

challenge to school restrictions placed on the student’s

ability to disseminate invitations to a religious meeting,

the Muller Court acknowledged that the Supreme Court

has not expressly extended to grade school children the

free expression rights first announced in Tinker. Id. at

1538. Following precedent established by this Court, the

Muller Court explained

Age is an important factor in student speech

cases... . If a high school can suppress speech to

protect 14-year-olds from sexual innuendo at a

voluntary school assembly (Fraser), and if it can

delete entire pages from a school newspaper be-

cause they touch on ‘sensitive topics’ (Hazelwood,

484 U.S. at 272, 108 S.Ct. at 570) it follows that

a public elementary school can shield its five

through thirteen-year-olds from topics and view-

points that could harm their emotional, moral,

social, and intellectual development. The ‘mar-

ketplace of ideas,’ an important theme in the

high school student expression cases, is a less

appropriate description of an elementary school,

where children are just beginning to acquire the

16

means of expression. Grammar schools are more

about learning, including learning to sit still and

be polite, than about robust debate.

Muller, 98 F.3d at 1538.

The rationale of the Muller Court recalls that of

Fraser, wherein the Supreme Court found the mission of

the public schools to instill socially appropriate behavior

and moral standards central to its ruling. That elementary

school students’ First Amendment rights are more amena-

ble to regulation than those of their older counterparts

makes sense on this level as well. Students who are still

learning the basic concepts of behavior and social interac-

tion should be subject to discipline in a way that will

ensure that this mission is achieved. As noted by the

Muller Court

the “verbal cacophony of a public forum, can be

antithetical to the delicate “custedial and tute-

lary” environment of an elementary school. The

cultivation of the “habits and manners of civility”

that Fraser held “essential to a democratic soci-

ety,” can require a level of parentlike guidance

that has no place in a public forum. Declaring

the elementary school classroom, hallway, or

playground forums for unfettered student com-

munication would require either a severe incur-

sion into the critical educational mission of the

elementary school or a substantial contraction of

the First Amendment protections afforded speech

in a public forum.

Muller, 98 F.3d at 1539 (quoting Cohen v. California, 403

U.S. 15, 25, 91 S.Ct. 1780, 1788, 29 L.Ed.2d 284 (1971);

Vernonia School District 47J v. Acton, 515 U.S. 646, 655,

115 S.Ct. 2386, 2392, 1382 L.Ed.2d 564 (1995); Fraser, 478

U.S. at 681)

17

Other Circuit Courts considering student speech have

been consistent with this notion. See, e.g., Poling v. Mur-

phy, 872 F.2d 757, 762 (6th Cir. 1989) (“schools must teach

by example the shared values of a civilized social order.”

Fraser, 478 U.S. at 683; West v. Derby Unified School

District No. 260, 206 F.3d 1358 (10th Cir. 2000).

Hence, even if this case dealt with political viewpoints

or opinions, which it does not, the Third Circuit properly

invoked the guidance of this Honorable Court in Fraser,

when it held that “The First Amendment guarantees wide

freedom in matters of adult public discourse,” but cau-

tioned that “it does not follow, however, that simply

because the use of an offensive form of expression may not

be prohibited to adults making what the speaker considers

a political point, the same latitude must be permitted to

children in a public school.” Fraser, 748 U.S. at 682. The

holding of Fraser has even greater applicability here

where we are dealing with 5 year old children.

In an additional attempt to convert the mundane to

the extraordinary, Petitioners attempt to raise the alarm

that schools are now heading down the slippery slope of

pressing “an agenda of pacifism at a time when American

soldiers are being killed in far away lands.” Petition at 15.

Following this logic, Petitioner would have this Court hold

, that kindergarten teachers should likewise refrain from

| requiring children to sit quietly in their seats, avoid

shooting spitballs, or calling each other names at the risk

of indoctrinating pacifism or be subject to lengthy litiga-

tion.

Petitioner seems to contend that it is a novel concept

that the educators of very young children have, as one of

their missions, the goal of fostering “socially appropriate

:

} |

18

behevior”. To the contrary, this Court in Fraser recognized

“ _.. society's countervailing interest in teaching students

the boundaries of socially acceptable behavior” Fraser, 478

U.S. at 681. In the case at hand, the Defendants were

faced with the nationally publicized murder of a first

grader by another first-grader in Michigan and, in Defen-

dant’s very own school, three other recent incidents involv-

ing threats made by students regarding the use of guns

and violence. It is misguided to suggest that a case of

constitutional proportions is raised when a fourth group of

children is punished for frightening others by stating “I

am going to shoot you”. This is not a case involving “core”,

“political” speech or “viewpoints”. This is a case about

children threatening to shoot each other on a playground

which understandably frightened other children given the

tragic events that had occurred in the preceding weeks.

Petitioners have raised hypothetical situations seek-

ing to avoid the undisputed facts at hand. By way of

example, Petitioners query as to the appropriate school

reaction if a student were to espouse his “views” on killing

Osama Bin Laden or the acceptability of deer hunting.

Petitioners are creating these hypothetical “viewpoints”

simply because there are no viewpoints at issue in the

actual case before this Court. Indeed, the Third Circuit

specifically held that it need not decide the broader ques-

tion of whether, if and under what circumstances a school

may violate an elementary student’s right to freedom of

speech. S.G. ex rel A.G., 333 F.3d at 423. Pet. App. A11,

Al2. To the contrary, the Court simply held that under

Fraser, the Defendants were upholding a reasonable

pedagogical concern when acting in response to speech

threatening violence and the use of firearms by these

students, particularly in the context of the prior weeks of

19

threats and violence. Moreover, the Court pointed out that

qualified immunity undoubtedly applied in that there was

certainly no clearly established law prohibiting the defen-

dants’ actions.

Petitioners seek nothing less than to render it uncon-

stitutional for a teacher or administrator to punish chil-

dren for simple misbehavior. This is a dubious goal and it

most certainly is contrary to the holdings of this Honor-

able Court. Petitioner suggests that this Court should :

abandon its well-established precedent and adopt a new

standard, which would take even a modicum of control

away from school administrators and place it in the hands

of five-year-olds. Rowdiness, threats, and the general

whims of these children of tender years would need to be

tolerated lest school administrators run the risk of defend-

ing lawsuits such as this, instead of teaching our children.

B. PROCEDURAL DUE PROCESS

Contrary to petitioner’s assertion, the procedure to be

followed in cases of “short term” school suspensions of ten

days or less is plainly set forth by this Court in Goss v.

Lopez, 419 U.S. 565 (1975). This precedent was explicitly

followed here by the Third Circuit Court of Appeals. There

is no “gap” in jurisprudence as asserted by Petitioners.

The law is clear and was properly applied. In cases of

suspensions of ten days duration or less, due process

requires 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 v. Lopez,

419 U.S. at 581.

as Sane

20

Petitioners seem to rest their entire argument in favor

of a new standard on a false premise — that A.G. did not

“comprehend what happened”. Petition at 7. As the Third

Circuit pointed out, the record in no way supports Peti-

tioner’s contention in that regard. S.G. ex rel A.G., 333

F.3d at 424. To the contrary, the record shows that this

was not a very complicated situation: the boys were

brought to the Principal’s office, asked for there side of the

story, admitted and understood what they did, and were

given a minor punishment.

Here, we are dealing with the shortest of short-term

suspensions. Lesser procedures than those used here have

been found sufficient for suspensions three times as long

under the standard set forth in Goss. Here, for example,

the Principal made phone calls to the parents and spoke

with A.G.’s grandmother — steps arguably not even re-

quired under the Goss standard.

Petitioners do not even allege any conflict or inconsis-

tency between opinions of this Court and any Circuit

Court in seeking review of this matter. Instead, Petitioners

seek to ignore Goss. Hence, their Petition should be denied

outright. Moreover, the proposition put forth by Petition-

ers would turn on its head the day to day ability of our

schools to monitor and sanction minor infractions. Indeed,

Petitioner would have this Honorable Court set up minia-

ture tribunals before disciplining kindergarten students.

This purported result is not only ludicrous, but inimical to

established precedent.

21

Ill. CONCLUSION

This case does not implicate any important constitu-

tional issues or conflicts. The Court of Appeals for the

Third Circuit simply held that, in this case, under these

particular facts, Principal Baumann and Superintendent

Bauer did not violate any constitutional rights of this

kindergarten student and were entitled to qualified

immunity. The Petition for a Writ of Certiorari should be

denied.

Respectfully submitted,

SEAN X. KELLY

Counsel of Record

JACQUELINE V. MCDONALD

MARKS, O’NEILL, O’BRIEN &

COURTNEY, P.C.

Cooper River West

6981 North Park Drive

Suite 300

Pennsauken, NJ 08109

(856) 663-4300