No First Amendment retaliation claim for student's suicide essay

The rules governing the free speech of public students are clear: students can say what they want to long as the speech does not materially and substantially disrupt the work and discipline of the school. But the rules governing when district officials can be sued for retaliation are not clear at all. The Second Circuit has now clarified the test of when the district's response constitutes an "adverse action."

The case is Cox v. Warwick Valley Central School District, decided on August 17. Cox was a middle school student. His class assignment asked what he would do if he had only 24 hours to live. The district is really asking for it when it hands out assignments like this. What the district got was Cox's essay stating that he would use the time "getting drunk, smoking, doing drugs, and breaking the law. It ends with Raphael taking cyanide and shooting himself in the head in front of his friends at the end of the 24 hours."

Is this free speech? The Second Circuit (Jacobs, Livingston and Rakoff [D.J.]) does not say. It instead resolves the case on the issue of whether the district's response to Cox's essay was retaliatory. When district officials became aware of the essay, they sent the boy to "in-school suspension" for two hours while they decided whether he was a danger to himself or others. (He was not a danger so they let him go). District officials also referred Cox's parents to Child and Family Services out of concern that they were neglecting their son for refusing to send him to a psychiatric evaluation. As background, the Court of Appeals tells us that Cox had other disciplinary problems on his record.

Strangely, the Court of Appeals has never decided when a school district's response to student speech is an adverse action. It uses the general constitutional test for this: whether the response would deter a reasonable person from speaking out again. Under that test, this is not retaliation. The ISS placement was brief, and district officials are obligated by law to refer any parent to Child and Family Services if they reasonably believe the parents are neglectful, and they are immune from liability for these referrals. In reaching this holding, the Court of Appeals is highly deferential to the obligations of school district officials to maintain order and generally run the school. The Court writes:

In their various roles, school administrators must distinguish empty boasts from serious threats, rough-housing from bullying, and an active imagination from a dangerous impulse. Making such distinctions often requires an investigation, and the investigation may result in discipline, but the investigation itself is not disciplinary--it is precautionary and protective. This is so even when a student is separated, interviewed, or temporarily sequestered to defuse a potentially volatile or dangerous situation. As in this case, a school administrator must be able to react to ambiguous student speech by temporarily removing the student from potential danger (to himself and others) until it can be determined whether the speech represents a real threat to school safety and student learning. Such acts deserve “unusual deference” from the judiciary.