Court of Appeals upholds discipline in student speech case

Rejecting a First Amendment challenge, the Court of Appeals holds that a public school could discipline a 10 year-old student who joked in a class assignment that he wanted to blow up the school.

The case is Cuff v. Valley Central School District, decided on March 22. Bergstein & Ullrich, LLP, represents the plaintiffs. The issue was whether school officials reasonably believed the fifth grader's written statement would materially and substantially interfere with appropriate discipline at the school. A two-judge majority (Winter and Hall) said the district had the right to discipline the student by sending him home for five days. In a lengthy dissent, Judge Pooler disagreed and said the statement -- written in an "about me" assignment on an astronaut drawing -- did not disrupt school operations and was merely a clunky attempt at humor.

This case poses the question of how much a school district has to put up with when a student writes up a violent statement. Particularly since this is a 2-1 decision, I would say this case lies at the boundaries of what constitutes acceptable speech in public school. The boy did not mean any harm, and his classmates giggled at the drawing. Yet, the specter of Columbine arises anytime someone talks about violence in school, even if it's a joke. While the majority worries that the failure to discipline the boy would cause a discipline breakdown at the school, the dissent sees it differently:

While a young child’s call for the destruction of his school and the killing of his teachers may not seem to “justif[y] sounding the First Amendment bugle,” I believe that there are important, if subtle, free speech values at stake in this case.

B.C.’s teacher explicitly suggested that her students consider writing about missiles. While the concept of irony may seem well beyond the ken of an average ten-year-old, young children routinely experiment with the seeds of satire. They learn by fumbling their way to finding the boundaries between socially permissible, and even encouraged, forms of expression that employ exaggeration for rhetorical effect, and impermissible and offensive remarks that merely threaten and alienate those around them.

This young boy’s drawing was clearly not some subtle, ironic jab at his school or broader commentary about education. It was a crude joke. But the First Amendment should make us hesitate before silencing students who experiment with hyperbole for comic effect, however unknowing and unskillful that experimentation may be.

As counsel for plaintiffs, of course I cannot be objective here. So let me run the Associated Press article that tells it like it is:

Suspension upheld for NY boy over violent drawing

By LARRY NEUMEISTER
Associated Press

 NEW YORK (AP) -- Acknowledging school violence nationwide, a federal appeals court on Thursday upheld the suspension of a 10-year-old boy for a crayon drawing expressing a desire to blow up his school and its teachers.

But the 2nd U.S. Circuit Court of Appeals in Manhattan was not unanimous in rejecting the First Amendment claims of his parents. Judge Rosemary Pooler said the drawing by the fifth grader at a Montgomery, N.Y., elementary school in Orange County was obviously the work of a class clown.

"It was a crude joke," Pooler wrote. "But the First Amendment should make us hesitate before silencing students who experiment with hyperbole for comic effect, however unknowing and unskillful that experimentation may be."

The boy, identified in court papers only as "B.C.," was suspended for six days in September 2007 after he showed his drawing to classmates. Other students laughed, though one complained to his teacher.

Writing for the majority, two 2nd Circuit judges agreed that the boy deserved punishment for his response to an assignment to write about himself on a picture of an astronaut including a "wish." The teacher at one point told students they "can write about missiles," the court noted. It said it was in the "wish" spot that B.C. wrote: "Blow up the school with the teachers in it."

The teacher said she sent B.C. to the principal's office after a girl who seemed "very worried" told her about the drawing.

The 2nd Circuit said the discipline was appropriate particularly because the boy had a history of drawings and writings embracing violence.

"Whether B.C. intended his `wish' as a joke or never intended to carry out the threat is irrelevant," the opinion said. "Nor does it matter that B.C. lacked the capacity to carry out the threat expressed in the drawing."

The 2nd Circuit said school administrators must maintain parental confidence in their ability to shield children from frightening behavior and to protect safety. It said a failure to respond forcefully to the "wish" might have eroded parental confidence in school safety, forced the hiring of security workers or led to an enrollment decline.

The judges noted they sit on the bench of at least the second federal appeals court to acknowledge the need to confront school violence "given the recent wave of school shootings that have tragically affected our nation."

In her dissent, Pooler said the case must be considered in the context of "our justified fears of yet another horrific school shooting."

She said the case that was dismissed by a lower court judge belonged before a jury, which would learn the boy was portraying a paintball game rather than playing out a violent fantasy. She said the jury also would learn that the girl who complained about him had a history of sparring with him over rules and "seems to have taken it upon herself to ensure that B.C. was punished each and every time he did something that was even arguably inappropriate."

"In short, a jury could conclude that she was prim, not petrified," Pooler wrote. "The First Amendment's protection of free speech cannot hinge entirely on the reaction of a listener to a person's speech. If that were the case, the First Amendment would only be as strong as the weakest, or at least the most thin-skinned, listener in a crowd," she added.

Adam I. Kleinberg, a lawyer for the Valley Central School District, said the ruling "reaffirms that school officials should be afforded great deference in their decision making."

He added: "School officials should not be required to wait until after an incident occurred. They can't predict the future. They can only do their best to keep everyone safe."

Stephen Bergstein, an attorney for the parents, said he probably won't appeal.

"He's 10. It was just a little drawing. Nobody cared. That's what kids do," Bergstein said, noting that the boy had a paintball court in his backyard. "There are times when you're going to make references to violence and it doesn't mean the school's going to go into lockdown."

The boy, now 15, is in high school and doing fine, he said.

Bergstein recalled the day the boy showed up for the deposition with attorneys. "His feet didn't touch the ground. When he trotted out of the building you got the feeling he was going to walk around barefoot and go fishing," he said.