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

require an intent to harm or bunal or against cooperate others who

retaliate justice otherwise process 22 I. Dec. at cooperate.”

so & N. 892. deference, therefore, question

On the adopt approach

I would somewhere adopted by the two our sister

between Circuit, I

circuits. Unlike the Third believe on meaning

the statute is silent of 8 1101(a)(43)(S), §

U.S.C. and that we must

therefore defer to the BIA’s construction statute,

of the extent it is agency’s

within the domain of the special law,

expertise immigration long itas

is reasonable. Unlike the Fifth and Ninth

Circuits, however, I simply would not de- interpretation

fer to the BIA’s of the fed- statutes, justice

eral obstruction of over special expertise,

which the BIA has no

but rather review them de novo. CUFF, Margaret Cuff,

William on son, B.C.,

behalf of their minor

Plaintiffs-Appellants,

VALLEY CENTRAL SCHOOL DIS

TRICT, Knecht, Barbara sued in her capacity, Defendants-Ap

individual

pellees.

Docket No. 10-2282-cv. Appeals,

United States Court of

Second Circuit.

Argued: March 2011.

Decided: March Ullrich, Bergstein,

Stephen Bergstein & LLP, Chester, NY, for Plaintiffs-Appel- lants. (Leo Dorfman, Kleinberg

Adam I. on brief), LLP, Westbury, Sokoloff Stern NY, Defendants-Appellees. WINTER, Before: POOLER HALL, Judges. Circuit Judge separate POOLER dissents in a opinion.

WINTER, Judge: Circuit Margaret appeal William and Cuff Judge grant summary judg- Rakoffs dismissing ment complaint brought their on behalf of their minor son B.C. ex Cuff Valley rel. B.C. v. Cent. Sch. (S.D.N.Y.2010). F.Supp.2d ap- Their peal concerns the contours of B.C.’s First rights regulation Amendment and the in school. We affirm.

BACKGROUND appeal grant Because this is an from a summary judgment, we view the facts in light most favorable to appellants and disputes precise involving of fact their favor. circumstances resolve all Potter, Mathirampuzha creation of the astronaut are as Cir.2008). (2d 72-73 12, 2007, September follows. On teacher, DeBold, science Tara asked her stated, litigation arises out Briefly fill in a picture in to students to of an astronaut crayon drawing by response B.C. of a assignment. drawing de- an in-class in things and write various various sec- expressed an astronaut and a desire picted tions of the astronaut. The students were up to the school with the teachers “[b]low in leg instructed to write a “wish” the left time, September in it.” At the B.C. of the astronaut. testified that B.C. De- fifth-grade student years was ten old and a write, “you Bold told the students that can Elementary Montgom- at Berea School like, ... anything you you want can in- ery, New York. [y]ou ... can volve missile write about creating to January prior In spot, missiles.” B.C. wrote his drawing, B.C. had drawn anoth- astronaut up “wish”: “Blow the school with the picture perceived er that was the school teachers in it.” disturbing. drawing depicted staff as time, At this B.C. was seated at a block it, firing gun, and above B.C. person pushed of six desks together. B.C. told day people “One I shot 4 had written: nearby his classmates what he going + got of them blows were fo[ur] each picture, to write in the and the students on dead. I wasted bulits them.” [sic] C.P., laughed response. a female stu- psycholo- teacher alerted the school B.C.’s Charette, drawing, sitting dent who was in a gist, neighboring Delaine and parents. contacted desks, school officials B.C.’s group of heard from another stu- portraying game said that he was B.C. drew, dent about what B.C. and went to paintball drawing. look at picture. B.C.’s B.C. said that C.P. laughed at it. then approached C.P. De- spring part In the of a fourth perceived “very Bold—who C.P. be wor- grade assignment, in-class B.C. wrote a story destroyed told big about “a wind ried”—and the teacher about [that] every every school America.... drawing. approached [And] DeBold then B.C. body ran for there life and than [sic] [sic] him if and asked he meant what he had all adults died and all the kids were alive. written. B.C. at DeBold with a looked story Than all the kids died.” This [sic] blank and serious face. DeBold then sent Charette, reported although was also Principal B.C. Knecht’s office. speak she did not about it. B.C. Principal Principal Kneeht and Assistant September Prior to B.C. had also Malley asked B.C. he meant what he disciplined by been teachers and school drawing. had written in the B.C. testified administrators for misbehavior in and told, that he them that he did mean not around school. B.C. testified that he had what he had written. Kneeht then called Principal been to office and Knecht’s As- Superintendent Hooley for Richard advice Principal Malley’s sistant office on a few regarding punishment. Kneeht B.C.’s prior drawing occasions to the astronaut Hooley summarized for the events that Malley incident. Kneeht and also con- occurred, history had of misbehav- firmed B.C.’s involvement in numerous al- school, ior in and her concerns that B.C. recess, during pushing tercations and frightened Hooley C.P. stated that shoving hallways, rough play suspension school. was appropriate. meeting, summary

At the end of the Knecht and moved judgment. Judge Ra- koff, Malley sign asked B.C. to a document to whom the case was reassigned consisting of Knecht’s notes Conner, transcribed following the death of Judge during meeting. Although B.C. testi- granted the motion. ex rel. B.C. v. Cuff script fied that he could not read the III”), hand- Valley (“Cuff Cent. Sch. Dist. writing, signed the (S.D.N.Y.2010). he document. Later F.Supp.2d We afternoon, Knecht met with B.C. affirm. During meeting, parents. that he did not mean what he had stated DISCUSSION written in the astronaut and that only kidding. he was “We review a district grant -court’s of summary judgment Beyer de novo.” See Following meeting par- the with B.C.’s Nassau, (2d 160, Cnty. v. 524 F.3d 163 of ents, Knecht in writing confirmed that Cir.2008). suspended days B.C. was to be for five out of school day and one school based on a) Legal

the “wish.” Standards Appellants appealed suspension the Public pro school students are the District’s Board of Education. The by tected the First Amendment and do not upheld suspension, Board and the “shed their constitutional rights to free appeal Cuffs did not to the New York speech expression dom of or at the school Appel- State Commissioner of Education. gate.” house Tinker v. Indep. Des Moines brought present lants then Section Dist., Cmty. 503, 506, Sch. 393 U.S. 89 B.C., action alleging 1983 on behalf of 733, (1969). S.Ct. 21 L.Ed.2d 731 None B.C., suspending the District and theless, “the First rights Amendment of Knecht violated B.C.’s First Amendment students in public schools are not auto right to freedom expression. Appel- of matically rights coextensive with the alleged appellees lants also imposed settings, adults ap and must be an punishment excessive in disciplining plied in light special of the characteristics B.C. as a result of the astronaut drawing. of the school environment.” Hazelwood Conner, Judge Kuhlmeier,

The late 260, to whom 266, this Sch. Dist. v. 484 U.S. assigned, 562, (1988) (inter case was first granted appellees’ 108 S.Ct. 98 L.Ed.2d 592 omitted). motion to dismiss for quotation failure to state a nal marks and citation claim. Valley ex rel. speech B.C. Cent. Student may be curtailed if the Cuff I”), (“Cuff Sch. Dist. F.Supp.2d 559 speech “materially will substantially (S.D.N.Y.2008). Appellants appealed, interfere with the requirements appro remanded, and we vacated and holding priate discipline in operation of the that, context, Tinker, without some al- facts school.” 393 U.S. at (internal leged omitted). in the complaint did not quotation dictate marks 12(b)(6) Fed.R.Civ.P. dismissal. may ex School authorities suppress student Cuff rel. Valley B.C. v. (“Cuff Cent. Sch. Dist. prevent disruption material II”), (2d Cir.2009) 341 Fed.Appx. schools, when have more than an noted, facts, We in particular, that “undifferentiated fear apprehension or alleged, only indicated that the teacher disturbance” and can show that their ac saw B.C.’s “wish” and that by something no tion “was caused more than disciplinary history. remand, Id. On a mere desire to avoid the discomfort and parties completed discovery, appellees unpleasantness always accompany 508, 509, ed, despite the student’s claim that he viewpoint.” Id. at unpopular it of fiction and not a meant as work S.Ct. 733. Dist., threat); Cnty. Boim v. Fulton Sch. Tinker, we have held applying (11th Cir.2007) 978, 981, 494 F.3d 984-85 ‘the inquiry is whether that “the relevant (same). ... facts which demonstrate^] ... record led school authori Finally, the context of student disruption substantial ties to forecast conduct, favoring violent it is not activi interference with school material courts to determine how school officials ” E. Hampton ties.’ DeFabio v. Union respond. administrators are should School (2d Cir. Free Sch. to assess the position the best 2010) (quoting accordingly. for harm and act See Wis 733) (alterations in This original). (“[W]e nieioski, 494 F.3d at 40 are mindful require does not school administrators test not the of the ‘[i]t is role federal disruption that actual occurred or prove courts to set aside decisions school ad was inevitable. substantial ministrators which the court view as Rather, question is “whether school in lacking compas a basis wisdom or reasonably disrup portend officials ”) Strickland, (quoting sion.’ Wood v. 420 at issue.” expression tion from the student 326, 992, 308, U.S. 95 S.Ct. 43 L.Ed.2d 214 (2d Niehoff, 527 F.3d 51 Doninger v. (1975)); see also Bethel Sch. Dist. No. 403 Cir.2008) (internal quotation marks omit Fraser, 675, 683, v. 478 U.S. ted). court III As the district Cuff (1986) (“[I]t 3159, 92 L.Ed.2d 549 ais stated, disruption “an actual standard highly appropriate public function of F.Supp.2d absurd.” 714 at 469. would be prohibit school education to the use of one, objective The test is an focus vulgar public and offensive terms in dis reasonableness of the ing on the school course” and determination of what “[t]he in response, administration’s not on the manner of the classroom ... is tent of the student. See inappropriate properly rests with the (holding objec at that the board.”). school tive reasonableness of the school adminis response, not the student’s inten

trator’s b) Application tions, relevant); is Wisniewski v. Bd. Applying these standards to B.C.’s Dist., Weedsport Educ. Cent. Sch. conduct, we conclude that suspension (2d Cir.2007) (holding F.3d that a II, In upheld. must be we remanded Cuff generation student’s and transmission of because, alia, allegations inter there were “buddy parent’s an internet icon” from his that B.C. “did not show the [astronaut computer supports home a reasonable drawing] any classmates but rather probability disruption of substantial at the teacher[,] directly handed it to his and permitting discipline and school disciplinary history B.C. had no not [the “whether or intended student] suggest tendency.” would a violent speech] to be communicated to school [the Fed.Appx. or, communicated, to cause a authorities disruption”); substantial now before us Ponce Socorro record demonstrates Dist., 765, 767, Indep. 508 F.3d 772 that it was foreseeable that Sch. (5th Cir.2007) (holding high-school drawing that a the astronaut could create a sub- story depicting student’s violent a school stantial at the school. When shooting constitutionally protect- suspended, history was not B.C. was he had a issues,

disciplinary and his other earlier and finding specific threatening “such drawings writings and had also embraced to a school or its population is violence. Prior to the astronaut drawing unprotected by the First Amendment” be- incident, Malley discussed B.C.’s other cause administrators “[s]chool must be Knecht, drawings writings permitted and quickly decisively ex- to react and student, pressing a “concern” for the physical to address a threat of violence psychologist students, Charette against worrying testified their without spoken she had with Knecht about will years litiga- have to face disciplinary prior drawings. issues and tion second-guessing judgment their toas addition, the astronaut was seen posed whether the threat a real risk class, disturbance.”); other students and caused substantial Cnty. Pulaski C.P., drawing, Special who observed B.C. with the Sch. 306 F.3d at 626 n. 4 bring to leave her (finding seat and it DeBold’s it “untenable the wake of Co- perceived attention. DeBold C.P. to be any lumbine and Jonesboro that reason- “very drawing. worried” about the able school official posses- who came into sion of [the student’s letter which he Whether intended his “wish” as a rape described how he would and murder joke carry or never intended to out the a classmate] would not have taken some threat is irrelevant. Nor does it matter action based on its violent disturbing capacity carry B.C. lacked the out content,” and holding that the letter con- expressed the threat in the drawing. See stituted a “true threat” under Watts v. Wisniewski, (affirming States, 1399, United 394 U.S. 89 S.Ct. in summary judgment favor of school ad- (1969)); 22 L.Ed.2d 664 LaVine v. Blaine ministrators for regulating student’s Dist., (9th 981, 983, 987, Sch. 257 F.3d speech though even the student protested Cir.2001) (evaluating spate “the recent of “buddy his creation of the icon” was school shootings,” “potential for school only joke); meant as a see also Doe v. violence,” and the evaluating “care when a Cnty. Special Pulaski Sch. student’s First Amendment right of free (8th Cir.2002) (“In determining wheth- expression against school officials’ need to er a statement amounts to an unprotected provide environment,” a safe school Amendment], threat [under the First there holding that the school did not violate a is no requirement ... speaker student’s First rights Amendment’s when capable carrying of purported out the it expelled him poem for his filled with violence.”). threat of imagery of violent death and suicide and Courts leeway have allowed wide to students). shooting of fellow school disciplining administrators students for writings or other conduct threatening The threat of substantial disruption was See, Boim, e.g., violence. 494 F.3d at aggravated by sharing of his “wish” (finding students, school officials did not with fellow an reasonably act violate a student’s First rights perceived Amendment as an attention-grabbing device. when suspended her writing a might School administrators reasonably depicting that, narrative her shooting her math permitted, fear other students teacher); Ponce, (analyz- 508 F.3d at 772 might escalate, well be tempted copy, to ing, Frederick, under Morse v. might U.S. B.C.’s conduct. This then have led 168 L.Ed.2d 290 to a discipline, substantial decrease in an (2007), a threatening student’s a distracting increase behavior students shooting school, “Columbine attack” a mission, on and teachers from the educational a CONCLUSION acts.1 Such to violent tendencies control would difficult to events be chain of reasons, foregoing affirm. For the we B.C. would discipline failure to because be- in such engaging students give POOLER, Judge, dissenting: Circuit argument Equal Protection

havior First contentions. their Amendment add to child ten-year-old A made to be also have administrators School blowing up jokingly referred to class parents about confidence concerned His classmates chuckled. His his school. their system’s ability to shield in a school suspended did not. school teacher and to frightening behavior children nearly boy’s parents a week. The him for their children safety for the provide that the school violated their son’s claim “wish,” being in school. B.C.’s while speech by him for punishing to free right students, easily have many could known joke. ill-advised who parents known to number become something require oth- The First Amendment does not reasonably view it as could marketplace every mis- to the our nation’s teachers tolerate than a contribution er have the parents comedy do not in the class- guided attempt While of ideas. they could speech, monitor student v. Des right Indepen- room. In Tinker Moines safety District, be concerned about Community School dent circum- present children (1969), their L.Ed.2d 731 to re- appellees A failure of the may, stances. held Supreme Court that a school forcefully the “wish” spond Amendment, violating First without parental confidence to a decline led student that threatens to restrict effects, safety many negative a substantial at school. cause security e.g., the need to hire including, result, 513, 89 S.Ct. As a Id. at and even enroll- a decline personnel may punish making a student for ment. threatening lan- joke involving violent or matter how innocent the stu- guage, no Thus, reasonably have appellees could intention, joke poten- the had the dent’s drawing B.C.’s astronaut concluded that a substantial at tial to cause envi- substantially disrupt the school would school, by panic among perhaps sparking ronment, to resulting and their decision believed, mistakenly, who even classmates was B.C. constitutional. suspend they might danger. be that Appellants argue also that However, jury I could the First believe that was excessive under punishment at degree young that this child’s stab appropriate conclude Amendment. potential the cause a barely in which humor had to is of course a matter punishment school, alone dis- to school at let a substantial greatest the deference stir we show Wood, 326, 95 Few students even saw the draw- ruption. at authorities. U.S. the took it ing given we see no that child’s teacher say It suffices to S.Ct. 992. in a matter of minutes. And the argument. away to this merit already have Appeals ex- teachers and administrators could Court of has how 1. As one confronting signs,’ why school vio- pressed, 'warning a threat of some- missed telltale may appropriate given the recent be lence thing and what should was not done earlier tragically shootings wave of school hap- prevent tragedies to such from be done nation: school [all the] our "[a]fter affected LaVine, again.” at 987. pening shootings, questions asked about have been laughed. get glimpse apparently students who did Some students were daunted Clearly, everyone thought open-ended assign- school the nature the not the They peppered ment. teacher drawing and for them funny, good the questions what were about allowed to I am that a jury reason. But convinced apparent write. In a moment of frustra- boy’s young could conclude crude tion, said, keep DeBold “Don’t on coming the attempt merely at humor had up to When I anything you me. mean among to cause mild amusement his class- want, anything. You can write about mis- majority alarm. mates —not refuses (internal quotation siles.” J.A. marks a jury ques- even to allow to consider the omitted). drawing poten- tion of whether the had the tial to the school. disrupt work of the But student, B.C., years One was ten who the affirming judgment the district time, old at the saw an opportunity this as court, majority to the has failed “construe to have fun. some Wdiile DeBold was ex- light the facts most favorable to the plaining assignment class, B.C. non-moving resolve all party [to] ambi- told his some of friends who were sitting guities all and draw reasonable inferences near him planned what he to write on his against Inc., v. Omya, the movant.” Brod drawing. The teacher’s mention of mis- (2d Cir.2011) (internal F.3d apparently sparked siles an idea in the omitted).1 quotation marks young boy’s mind: he wanted to write a joke blowing up about his school. Accordingly, respectfully dissent. While his sense of humor seem deficient, fifth-grade his audience of peers I. thought otherwise. When he mentioned his idea few classmates who were At beginning year nearby, sitting they laughed. After the DeBold, September Tara a teacher teacher finished describing assignment Elementary Berea in Montgom- School and answering questions students, ery, N.Y., fifth-grade gave her science his drawing wrote on astronaut class a assignment. routine She handed he up wanted to “blow with all out paper sheets of that contained a draw- 46; teachers it.” J.A. see also J.A. ing astronaut, of an similar to an outline He showed the to some of one find in a children’s coloring They again. classmates. chuckled Ac- book. explained DeBold her students B.C., cording everyone understood that that they could write anything they about joke. his was a “No one was astronaut, wanted including “adjec- on the scared,” was, he said later. “Everybody themselves, tives about their birthday, like, laughing.” explained, J.A. 75. As he things they they grow want to be when up, just “I joking was with it.” around J.A. have, a wish they goal a [or] 73. year.” J.A. purpose 213.2 The of the assignment was to allow DeBold to graders classroom, Of all the fifth in that “learn a little bit only about” her students at arguably one even slight- showed the the start of the year. J.A. sign taking 213. est seriously. B.C.’s threat A 1. Throughout opinion, this against unless otherwise reasonable inferences the movant.” noted, Brod, present 164. facts of the case "in the light non-moving most party favorable to the 2. The abbreviation "J.A.” refers to the Joint ambiguities and ... resolve all and draw all Appendix by parties. filed

117 II. had saw what B.C. girl named C.P. young him to their teacher. reported written First bars the federal Amendment girl very claimed that “seemed DeBold governments from “abridging and state had by what B.C. written. J.A. worried” of speech.” the freedom U.S. Const. is, however, ample There evidence I; City see Griffin, amend. Lovell v. any- suggest to that C.P. was the record 444, 450, 666, 303 U.S. 58 S.Ct. L.Ed. 82 C.P. herself was seen thing but scared. (1938). Indeed, 949 the First Amendment class- along with B.C.’s other laughing it “protects against citizen the State any- If drawing. who had seen his mates creatures,” all of including self and its to hardly seems have been thing, C.P. Tinker, public schools. 393 U.S. at re- incident. After B.C. scarred (quoting W. Va. State Bd. S.Ct. following suspension, to his turned Barnette, 624, 637, v. Educ. U.S. greetings exchange the two children would (1943)); also S.Ct. L.Ed. 1628 see hallway nothing happened. in the as (“It 393 U.S. at 89 S.Ct. 733 89-90. See J.A. hardly be argued can that either students Indeed, to B.C. to report C.P.’s decision rights or teachers shed their constitutional more arguably motivated the teacher was expression freedom of speech to or at the than The two students had by spite fear. gate”). schoolhouse something rivalry at school. B.C. matter, general the First “[A]s tattletale,” her “a who had described government Amendment means that has “if past on him in the did some- [he] told power expression no restrict because of silly joking.” or J.A. 75. For exam- thing ideas, matter, subject its message, its its “if “tattle on” him [he] C.P. would ple, its content.” v. Am. Civil or Ashcroft or doing “talking.” work” J.A. [his] wasn’t Union, 564, 573, 122 Liberties certainly seems have been 75. She (2002) (altera- 1700, 152 L.Ed.2d 771 rules, reminding for the B.C. stickler (internal original) quotation marks tion the chance he was she had whenever omitted). Thus, expression following J.A. them. See 75. On not content, no involves violent how matter occasion, reported when C.P. particular distasteful, necessarily not forfeit all does for making to his teacher the astro- B.C. Amendment Brown protection. First See drawing, suspected “[s]he naut he — Ass’n, U.S.-, v. Entm’t Merchants trying was probably just get [him] 180 L.Ed.2d 708 short, J.A. 74. there is suffi- trouble.” (2011). suggest cient evidence to while put mildly,

joke inappropriate, it Court, however, Supreme has made single student took threat seri- not categories clear that entire ously. protection do under expression not merit Nonetheless, reported Chaplinsky to the First Amendment. See after C.P. 568, 571-72, teacher, Hampshire, U.S. and DeBold saw what B.C. New 766, (1942). written, Among took 86 L.Ed. 1031 DeBold the S.Ct. narrowly and limited away principal’s and sent him to the office. these “well-defined speech, prevention pun- of the and young boy eventually suspended The classes thought days total of as of which has never been from school for a six ishment any problem,” are boys’ parents now claim to raise- Constitutional punishment. The obscene, profane, lewd and the punishment their violated “the son’s libelous, insulting ‘fighting’ and the or First Amendment. 118 by very may

words—those which their utter- Court suppress held that school injury ance inflict to incite an speech violating tend student without the First breach peace.” immediate of the Id. speech if the Amendment has “materially substantially disrupt the a public There is no doubt that school discipline work and of the school.” Tink- may suppress speech student that falls er, 513, Next, 393 U.S. at 89 in S.Ct. categories of within one these Fraser, may the Court held that a school Supreme Court has as entirely identified punish offensively student “his lewd unprotected by the First Amendment. In- Fraser, speech.” and indecent 478 U.S. at deed, of despite expansion school-spe- 685, 106 explained S.Ct. 3159. Fraser exceptions cific to the First Amendment’s what every parent already knows. Schools general prohibition against government re- must police be allowed to their students Tinker, see, speech, e.g., on strictions 393 “society’s because countervailing of inter- 503, 733, 89 U.S. S.Ct. certain well-settled teaching est in students the boundaries of apply rules adults and adolescents alike. socially 681, appropriate behavior.” Id. at A true threat under v. Watts United 106 S.Ct. 3159. But while the thrust of States, 705, 1399, 394 U.S. S.Ct. 89 22 may broad, Fraser’s language been (1969) have curiam), (per L.Ed.2d 664 for in- holding the case’s squarely at “of- stance, unprotected is as when uttered in —aimed fensively speech,” lewd indecent id. at school it is on as the street. 685, 106 S.Ct. 3159—was narrow. Shortly But in empty even threat the class- Fraser, after the Court held in Hazelwood just room do much harm as a Kuhlmeier, 260, School v. District 484 U.S. true one made outside the schoolhouse 562, (1988), 108 S.Ct. 98 L.Ed.2d 592 “that Indeed, gate. we made clear “that educators do not offend the First Amend- significantly school officials have broader by exercising ment editorial control over authority speech sanction student than style and content of speech student in the Watts standard allows.” Wisniewski school-sponsored long activities so as their v. Weedsport Bd. Educ. Cent. Sch. reasonably actions are legiti- related to 34, (2d Cir.2007). 38 A 273, mate pedagogical concerns.” Id. at public regulate and indeed 108 Finally, S.Ct. 562. and most recently, punish speech by a student that would Frederick, the Court held Morse v. 551 protected be by otherwise if made an adult U.S. 168 L.Ed.2d in another context. See 393 U.S. (2007), that a school ... “may restrict at S.Ct. (concluding that “First event, student a school when rights” Amendment “applied must be that speech is pro- viewed as light special of the characteristics of the moting illegal drug use.” Id. environment”); see also Bethel Sch. S.Ct. 2618. Fraser, 675, 682, Dist. No. (1986) majority The L.Ed.2d 549 concludes that Tinker re- (“[T]he quires that affirm rights constitutional we students in district court’s public grant summary school are not automatically judgment. disagree. coex- tensive rights with the of adults III.

settings.”). Supreme Court has made clear question under Tinker is whether a certain types jury, are considered un- drawing every reasonable inference protected when made plaintiffs, students favor of the could conclude Tinker, setting. In the Supreme that the did not believe not for.the court jury, matters for the cause a are drawing could itself that B.C.’s summary judgment.”). on disruption” school. “substantial U.S. claim majority simply ignores B.C.’s The others when laughed along with C.P. Here, up came DeBold herself Indeed, drawing. majori- she saw the weaponry. See J.A. to write about idea “perceived their teacher C.P. ty notes that (“Don’t coming up to me. When keep on ” worried,’ Majority Op. at ‘very to be want, You anything. anything you mean acknowledge B.C.’s utterly but fails (internal quota- missiles.” can write about contrary. reviewing In a claim to the omitted)). told his When B.C. tion marks summary judg- grant district court’s write, what he wanted friends about ment, of the court is not to role “[t]he unconcerned and were they laughed issues of fact but to as- disputed resolve joke. They were they knew was what any there are factual issues sess whether be- precisely than alarmed amused rather Brod, (quot- at 164 to be tried.” 653 F.3d of a riff drawing something was cause his Co., Mut. 625 F.3d ing v. Nw. Ins. Wilson write suggestion to their teacher’s own on (2d Cir.2010)) (internal quotation missiles, least undoubtedly, at which about omitted). majority casts aside marks conjure up images fifth-graders, for some principle by deciding this foundational mayhem. explosions identifying disputed questions rather than of fact. among his hint of concern only C.P., brought who came from Furthermore, classmates jury might readily con- attention of his drawing to the reported not because B.C.’s clude that C.P. B.C. she seriously But it seems even threat or was even teacher. she took his scared, deposi- At but rather because she re- drawing. slightly his laughed about pushing him for the boundaries sented tion, B.C. testified: getting conduct in class and acceptable you think C.P. was scared when Q. Do certainly The two had a away with it. you wrote? she read what And history sparring over the rules. Everybody A.No. No one was scared. upon it herself to seems to have taken C.P. like, was, laughing. each and punished that B.C. was ensure laughing? Q. Everybody was even every something time he did was Accordingly, a arguably inappropriate. laughing hysterically. Not like Just A. that she was well jury might conclude giggle something. like a joke, but drawing aware B.C.’s J.A. 75. him to their teacher reported nonetheless short, “seemed him simply punished. claims that C.P. to see While DeBold prim, that she was not seeing jury what could conclude very worried” as a result of written, petrified. any conflict J.A. accounts of whether competing between drawing clearly caused at least B.C.’s by the draw- frightened was in fact C.P. By disruption some his classroom. percep- DeBold’s ing thus whether account, laughed children and one of own —and was reasonable- tion of C.P.’s reaction him to his teacher. reported his classmates student, in favor of the hardly must be resolved momentary interruption But Rem, States v. as con- not the school. See United a substantial constitutes Cir.1994) (“Resolu- (2d anything, If by Tinker. templated briefly merely diverted students choices credibility conflicts and tions of from their schoolwork. of the facts conflicting versions between 120 for only disruptions among note that some circulated three weeks students

I —and perhaps some far more substantial than before it came to the attention of school Wisniewski, case—must no the one at issue officials. See tolerated, slightest weeks, ample po- lest the During doubt be flicker those there was fear in a of frustration or classmate could tential students who had no informa- for sanctioning justify speech. a student’s tion regarding the context which the image amount of nominal discord and dis- it interpret Some violent was created to against is the cost of our “hazardous free- a truly comfort violent threat a teacher. 508, U.S. at Consequently, image dom.” S.Ct. the in that case had 733; see also Holloman ex rel. Holloman every terrifying chance of both students (11th Harland, F.3d 1271-72 v. and alike. teachers Cir.2004) (“[I]n assessing the reasonable- contrast, By drawing astronaut B.C.’s upon of regulations expres- ness that tread for a of before circulated matter minutes sion, simply specter we cannot defer to the away took it the teacher and made sure possi- of or the mere theoretical see it. each that no one else would And discord, minimis, or bility even some de drawing the who did the knew children see impact insubstantial on classroom deco- it joke laughed was a about it. As a [Sjtudent expression may rum. ... not be result, jury I believe a that reasonable suppressed gives because it simply rise to could conclude that there was no chance easily slight, some disruption, overlooked that anything B.C.’s would create including but ‘a showing not limited to a approaching disruption. substantial students, curiosity’ by mild ‘discus- Indeed, explained the principal school’s students, among sion comment’ or “[tjhere parents to B.C.’s zero even some ‘hostile remarks’ or ‘discussion expression tolerance” the type by outside of the classrooms’ other stu- result, jury B.C. used. J.A. 105. As a (citations omitted)). dents.” punished could find B.C. was because protection First Amendment’s the did any not tolerate or language hinge entirely free cannot on the threat, expression that involved violent person’s speech. reaction of a listener to a even if the student’s a true threat was not case, If that were First the Amend- Watts, Black, threat Virginia under see v. only strong ment would be as as the 343, 359, U.S. S.Ct. weakest, thin-skinned, or at least the most (2003) (“ L.Ed.2d 535 ‘True en- threats’ in a listener crowd. See Brown Louisi- compass those statements where ana, 133 n. speaker means to a serious communicate (1966) (“Participants 15 L.Ed.2d 637 in an expression of an intent commit an act of orderly public place demonstration unlawful to particular violence individual chargeable are not danger, un- individuals.”), or group of and even provoked except fact of consti- threat no cause a substan- tutionally protected itself, demonstration tial disruption under Tinker. that their critics react with disorder violence.”). IV. addition, majority note that the minor extensively dis- discusses ruption at in this is a cry prior issue case far issues behavioral Wisniewski, one we faced in in officials claim were cause for concern. image example, majority which that could been For inter- writes preted against suspended, as a violent threat a teacher B.C. was he had a “[w]hen “disturbing,” majority as the con- issues, drawing and his other disciplinary history cludes, simply Majority Op. at decid- writings had also em- drawings and earlier 111— boy’s 113-14. a harmless Majority Op. that the was ed violence.” braced play. game of a he loved portrayal issues behavioral past if B.C.’s But even the astro- of whether analysis the affected part “As of a majority also notes: cause a potential the drawing had naut assignment, in-class B.C. grade fourth Tinker, see under substantial big ‘a wind story [that] a about wrote displaced has majority note the infra in America.... destroyed every school finding facts where jury by role of the the life every body ran for there [sic] [And] the example, For disputes exist. genuine died and the kids and than all adults [sic] ” 2006, prior January “In writes: majority all alive. Than the kids died.’ [sic] were drawing, astronaut creating the (alterations origi- Majority Op. at 111 per- that was picture another had drawn nal). majority fails to acknowl- But the disturbing. staff as by the school ceived that he had writ- edge explained that B.C. a person firing a drawing depicted big time a story of] the “around [the ten it, ‘One B.C. had written: and above gun, that, something like like a hurricane or got fo[ur] of them people each day I shot Consequently, jury a J.A. 87. tsunami.” dead. I wasted they + were blows officials were might conclude that school ” Majority Op. at on them.’ [sic] bulits story the that B.C. had written aware omitted). (citations (alterations original) merely to a natural disaster that response said majority notes that “B.C. the While boy to wonder—and young a prompted paintball game a portraying that he worry danger the such di- perhaps —about the Majority Op. drawing,” in the pose. sasters ... was “picture that the simply concludes addition, majority cites “B.C.’s In staff disturb- the school as perceived by dur- in numerous altercations involvement Majority Op. at 111. ing.” recess, in the pushing shoving and ing officials were But whether or not school at school.” Ma- hallways, rough play boy’s by young reasonably concerned March for jority Op. at 111. In jurors, not question a drawing is instance, “pushfing] his B.C. was cited for the school said that when judges. B.C. aisle” while mate out into the seat him had asked about psychologist 161. But riding the school bus. J.A. were simply that he was drawing, explained he disciplin- jury a could conclude that game, playing not paintball portraying hardly young unusual for a ary history was 85. As fantasy. violent See J.A. out some occasionally misbehaved. child who result, seems to have been the matter Furthermore, I do not believe than the dropped. No one other promptly in- history, and prior disciplinary spoke even to B.C. B.C.’s psychologist are any past problems, behavioral juryA could conclude deed drawing. about Indeed, directly relevant under Tinker.3 finding officials—far that school situations, aggressive and his or evaluat- violent behavior —and certain I note history— were aware of that it be her classmates ing a threat under student’s likely they might to take such a necessary, then be more appropriate, even to assess result, seriously. a threat part As a such prior disciplinary history threat student's expected might reasonably be to cause sub- inquiry whether or not school officials into frightening disruption by members might stantial the threat believed instance, community, even if the same disruption. For substantial cause a student, threat, history when made another makes a threat had if a student who words, question disruption. under Tinker is whether this a substantial link requires Tinker a causal boy’s itself had the between that speech sup- school officials want to school, cause a at not whether disruption press disruption the substantial that might predicted have that the they wish to avoid. an attack. planning B.C. was Supreme The has Court made clear that Tinker, the In the issue was whether though may even the First Amendment protected students who First Amendment permit restrictions on certain in signal in to school wore black armbands to order avoid the harmful effects of such to the War. The opposition their Vietnam be, minimum, at a expression, there must the school banned armbands because of relationship causal between the controversy the to avoid school’s “wish the government that the suppress wants to might which from expression.” result the and the harmful that justify effects the (em- Tinker, at 393 U.S. 89 S.Ct. 733 suppression. In v. Speech Free Ashcroft added). phasis concern was the Coalition, 234, 122 1389, 152 535 U.S. S.Ct. is, expression symbolic the act itself—that (2002), an rejected L.Ed.2d 403 the Court wearing cause a armband —would attempt to restrict in expression part be among students, that, the one “the cause causal link” between the ex given undoubtedly strong feelings the held pression that government sought the war, by many “might students about the restrict and prevent the harm it wanted to something evolve into which be diffi- would “contingent and indirect.” Id. at Tinker, cult at to control.” 393 U.S. 509 n. 122 S.Ct. 1389. The Court wrote: Ashcroft (internal quotation 89 S.Ct. 733 mark harm necessarily “The does not follow omitted); Wisniewski, see also F.3d at 494 speech, depends but upon some (describing 38 Tinker as “that holding stu- unquantified potential for subsequent may dent expression suppressed not be Id.; Morse, acts.” also criminal see unless school officials conclude (“It 410, 127 U.S. at S.Ct. was reason is, the expression it” —that itself— principal] [the able school’s to conclude “will ‘materially substantially disrupt promoted illegal drug banner ” discipline the work and school’ use—in violation of poli established school added)). (emphasis cy act failing to would send —and The school in Tinker was not worried powerful message to the in her students might that the signal armbands a desire on ... charge about how serious the school part of the students them wearing dangers illegal was about the drug use. violently against classmates, lash out their First require Amendment does not but just opposite rather schools to tolerate at school events student —that expression that contributes to those students lash out at dan them. See added)). Tinker, gers.” (emphasis at (“Any 393 U.S. S.Ct. class, spoken, lunchroom,

word or sure, Supreme To be Court used the on the campus, that deviates from the Tinker, word “forecast” in concluding that person views of may argu- another start an record any “the does not demonstrate facts disturbance.”). ment or Put cause a sim- might reasonably which have led school ply, Tinker that a may held restrict authorities substantial disrup- forecast speech that has potential cause tion of material interference with school itself case, however, had, not. that a still did believe not have the to cause

jury drawing, could conclude that B.C.'s even such fear. light any prior problems he absolutely question there is no But activities.” added); school, journal Don upon reading see also a student’s (emphasis (2d 41, 51 Cir. Niehoff, 527 F.3d overhearing v. a comment made inger entry or (“The there 2008) not whether is question class, investigate even detain— can —and but whether disruption, been actual has in order to determine whether that student reasonably portend ‘might officials or others at a threat to himself poses he expression the student disruption’ from As we concluded Cox the school. added) LaVine (quoting (emphasis issue.” Valley Sch. Cent. Warwick (9th Dist., 981, 989 257 F.3d Sch. v. Blaine (2d Cir.2011), “a school administrator Cir.2001))). Tinker— the facts of But ambiguous to stu- be able to react must that speech political involved which itself removing the speech by temporarily dent reac provoke a violent potential had (to himself potential danger student clearly indicate from other tion students — others) until it can be determined and contemplating merely the Court was that a real speech represents whether correctly authorities that school safety to school and student learn- threat issue had the speech at that the forecast result, 274. As a there is no ing.” Id. at that the disruption, a not to cause may to a respond doubt school predict or forecast might somehow language use of violent order student’s student. particular of a the actions poses whether the student “a to determine the lead of other majority follows id., threat,” protective and thus take real justified fears of relying on our courts safety, in order to ensure school see action shooting in an another horrific yet (“In roles, their various school admin- id. actions inoculate the school’s effort distinguish empty boasts istrators must scrutiny. See Ma- against constitutional threats, rough-housing from from serious (“Courts have allowed at 114 jority Op. imagination from a bullying, and an active disci- administrators leeway to school wide Making distinc- dangerous impulse. such writings other con- plining students investigation, and requires tions often violence.”); Majority Op. threatening duct discipline, result in investigation (“When he suspended, B.C. was at 113-14 investigation disciplin- itself is not but the issues, and his history disciplinary protective.”). and ary precautionary is writings had drawings and other earlier —it Indeed, wait certainly need not violence.”); also Ponce see also embraced “to step to occur order for a Dist., 508 F.3d Indep. Sch. Socorro Morse, (“School erupts.” (5th Cir.2007) actual violence before administrators (Alito, J., quickly and to react S.Ct. 2618 permitted must be physical decisively to address a threat concurring). students, their without against

violence years to face

worrying will have V. judg- their litigation second-guessing de- child’s call for the young aWhile a reál posed the threat ment as to whether killing and the of his of his school struction disturbance.”); Boim v. of substantial risk “justif[y] sound- may not seem teachers 978, 984 Cnty. Fulton Sch. Morse, bugle,” ing the First Amendment (11th Cir.2007) (“We imagine only can I believe U.S. at if the school happened would have what subtle, free important, there are writing, officials, learning of Rachel’s after in this case. values at stake day next nothing about it and the did suggested explicitly teacher to school with did in fact come Rachel teacher.”). mis- writing about her students consider math and kill her gun and shoot concept irony may siles. While average

seem the ken of an beyond well routinely ex-

ten-year-old, young children

periment They seeds satire. by fumbling way finding their

learn socially permissible,

boundaries between encouraged, expression

and even forms of employ exaggeration for rhetorical ef-

fect, and re- impermissible offensive merely

marks that threaten alienate

those around them. boy’s young clearly

This subtle, jab

not ironic his school some commentary

or broader about education. joke.

It was a crude But the First

Amendment should make us hesitate be- silencing experiment

fore students who effect, hyperbole for comic however

unknowing experimen- unskillful

tation Publ’g be. See Yankee Inc. v. Inc., Publ’g

News F.Supp. Am. (S.D.N.Y.1992) (“First Amendment

protections not apply only do to those speak clearly, jokes funny,

who whose are succeed.”). parodies

and whose reasons,

For foregoing respectfully

dissent. America,

UNITED STATES of

Appellee, Dejesus RAMOS,

Natividad

Defendant-Appellant.

No. 10-3982-cr.

United Court Appeals, States

Second Circuit.

Argued: March 2012. April

Decided:

Case Details

Case Name: CUFF EX REL. BC v. Valley Cent. School Dist.

Court Name: Court of Appeals for the Second Circuit

Date Published: Mar 22, 2012

Citation: 677 F.3d 109

Docket Number: Docket 10-2282-cv

Court Abbreviation: 2d Cir.