2d Circuit Upholds Suspension of 10-Year Old Who Expressed Desire to Blow Up School

In a March 22, 2012 opinion (authored by Judge Ralph Winter), the Second Circuit held, in Cuff v. Valley Central School District et al., that the defendant school did not violate a student’s First Amendment rights by suspending him for six days after he created a crayon drawing in which he expressed his desire to “[b]low up the school with the teachers in it.”

The Court derived the applicable law from the Supreme Court’s Tinker (1969) and Hazelwood (1988) decisions, and cases applying them:

[T]he First Amendment rights of students in the public schools are not automatically coextensive with the rights of adults in other settings, and must be applied in light of the special characteristics of the school environment. … Student speech may be curtailed if the speech will materially and substantially interfere with the requirements of appropriate discipline in the operation of the school. … School authorities may suppress student speech to prevent material disruption in the schools, when they have more than an undifferentiated fear or apprehension of disturbance and can show that their action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint. …

[T]he relevant inquiry is whether the record . . . demonstrate[s] . . . facts which might reasonably have led school authorities to forecast substantial disruption of or material interference with school activities. … This test does not require school administrators to prove that actual disruption occurred or that substantial disruption was inevitable. Rather, the question is whether school officials might reasonably portend disruption from the student expression at issue. …

The test is an objective one, focusing on the reasonableness of the school administration’s response, not on the intent of the student.  … [I]n the context of student speech favoring violent conduct, it is not for courts to determine how school officials should respond. School administrators are in the best position to assess the potential for harm and act accordingly.

Applying this standard, the Court found the requisite foreseeability of disruption:

[I]t was reasonably foreseeable that the astronaut drawing could create a substantial disruption at the school. When B.C. was suspended, he had a history of disciplinary issues, and his other earlier drawings and writings had also embraced violence. … In addition, the astronaut drawing was seen by other students in the class, and caused [another student], who observed B.C. with the drawing, to leave her seat and bring it to [the teacher]’s attention. [The teacher] perceived C.P. to be “very worried” about the drawing.

Whether B.C. intended his “wish” as a joke or never intended to carry out the threat is irrelevant. Nor does it matter that B.C. lacked the capacity to carry out the threat expressed in the drawing. … Courts have allowed wide leeway to school administrators disciplining students for writings or other conduct threatening violence. …

The threat of substantial disruption was aggravated by B.C.’s sharing of his “wish” with fellow students, an act reasonably perceived as an attention-grabbing device. School administrators might reasonably fear that, if permitted, other students might well be tempted to copy, or escalate, B.C.’s conduct. This might then have led to a substantial decrease in discipline, an increase in behavior distracting students and teachers from the educational mission, and tendencies to violent acts.[] Such a chain of events would be difficult to control because the failure to discipline B.C. would give other students engaging in such behavior an Equal Protection argument to add to their First Amendment contentions.

School administrators also have to be concerned about the confidence of parents in a school system’s ability to shield their children from frightening behavior and to provide for the safety of their children while in school. B.C.’s “wish,” being known by many students, could easily have become known to a number of parents who could reasonably view it as something other than a contribution to the marketplace of ideas. While parents do not have the right to monitor student speech, they could reasonably be concerned about the safety of their children in the present circumstances.  A failure of the appellees to respond forcefully to the “wish” might have led to a decline of parental confidence in school safety with many negative effects, including, e.g., the need to hire security personnel and even a decline in enrollment.

Thus, appellees could reasonably have concluded that B.C.’s astronaut drawing would substantially disrupt the school environment, and their resulting decision to suspend B.C. was constitutional.

Judge Pooler disagreed, concluding her dissent with the following observation:

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.

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