623 F.3d 71 (2nd Cir. 2010), 09-4407-cv, DeFabio v. East Hampton Union Free School District

Docket Nº:09-4407-cv.
Citation:623 F.3d 71
Opinion Judge:PER CURIAM:
Party Name:Daniel DEFABIO, Patricia DeFabio, Plaintiffs-Appellants, v. EAST HAMPTON UNION FREE SCHOOL DISTRICT, Scott Farina, individually and in his official capacity as Principal of East Hampton High School, Raymond Gualtieri, individually and in his official capacity as Superintendent of Schools of East Hampton Union Free School District, Wendy Hall, indiv
Attorney:Raymond G. Kuntz, (Leah L. Murphy, on the brief), Kuntz, Spagnuolo & Murphy, P.C., Bedford Village, NY, appearing for Plaintiffs-Appellants. Diane K. Farrell (Jeltje deJong, David H. Arntsen, on the brief), Devitt Spellman Barrett, LLP, Smithtown, NY, appearing for Defendants-Appellees.
Judge Panel:Present: LEVAL, B.D. PARKER, HALL, Circuit Judges.
Case Date:October 13, 2010
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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623 F.3d 71 (2nd Cir. 2010)

Daniel DEFABIO, Patricia DeFabio, Plaintiffs-Appellants,

Michael Rusinsky, Plaintiff,

v.

EAST HAMPTON UNION FREE SCHOOL DISTRICT, Scott Farina, individually and in his official capacity as Principal of East Hampton High School, Raymond Gualtieri, individually and in his official capacity as Superintendent of Schools of East Hampton Union Free School District, Wendy Hall, individually and in her official capacity as member of the Board of Education of the East Hampton Union Free School District, Stephen Talmage, individually and in his official capacity as a Member of the Board of Education of the East Hampton Union Free School District, Laura Anker Grossman, individually and in her official capacity as a Member of the Board of Education of the East Hampton Union Free School District, Sharon Bacon, individually and in her official capacity as a Member of the Board of Education of the East Hampton Union Free School District, Theresa K. Quigley, J.D., individually and in her official capacity as a Member of the Board of Education of the East Hampton Union Free School District, John Ryan Sr., individually and in his official capacity as a Member of the Board of Education of the East Hampton Union Free School District, Michael Tracey, individually and in his official capacity as a Member of the Board of Education of the East Hampton Union Free School District, Defendants-Appellees.

No. 09-4407-cv.

United States Court of Appeals, Second Circuit.

October 13, 2010

Argued: July 13, 2010.

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[Copyrighted Material Omitted]

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Raymond G. Kuntz, (Leah L. Murphy, on the brief), Kuntz, Spagnuolo & Murphy, P.C., Bedford Village, NY, appearing for Plaintiffs-Appellants.

Diane K. Farrell (Jeltje deJong, David H. Arntsen, on the brief), Devitt Spellman Barrett, LLP, Smithtown, NY, appearing for Defendants-Appellees.

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Present: LEVAL, B.D. PARKER, HALL, Circuit Judges.

PER CURIAM:

Plaintiffs Daniel and Patricia DeFabio appeal from a September 30, 2009, judgment of the United States District Court for the Eastern District of New York (Bianco, J. ), granting defendants' motion for summary judgment on plaintiffs' claims brought pursuant to 42 U.S.C. § 1983 alleging violations of Daniel's rights to freedom of speech, freedom of association, due process and equal protection under the First and Fourteenth Amendments, as well as related state law claims. We hold that in a case involving a student's assertion of a First Amendment right to return to school and make a statement disavowing a racial slur attributed to him, the school officials alleged to have violated the student's rights were entitled to qualified immunity from such claims where the record demonstrates a significant probability that the student would be assaulted were he permitted to return to school and deliver his message.

I. The Facts

Drawing all reasonable factual inferences in the light most favorable to the Appellants, as we must when reviewing a district court's grant of summary judgment, see, e.g., D'Amico v. City of N.Y., 132 F.3d 145, 149 (2d Cir.1998), the events that follow took place in the spring and summer of 2004 in East Hampton, New York. On Friday, April 24, 2004, Andres Felipe Osorio-Diez, a Hispanic student at East Hampton High School, was killed in a motorcycle accident. The following Monday, April 26, 2004, was a day of mourning in the school. Remorse among Osorio-Diez's friends turned to outrage when a rumor spread through the school that Daniel DeFabio, a tenth grader at the school, had commented to a friend in reference to Osorio-Diez's ethnic background: " one down, forty thousand to go." Students were openly hostile toward Daniel throughout the day, some threatening to kill him and bomb his house. In the cafeteria during eighth period a group of four or five Hispanic students confronted Daniel and yelled that he was a racist. One of the students threw something at him. Ralph Naglieri, a school psychiatrist, physically removed Daniel from the cafeteria after hearing from a distraught student a report of the comment attributed to Daniel and the resulting commotion. Daniel did not resist being removed from the lunch room.

Naglieri took Daniel to the nurse's office. Soon thereafter a crowd of agitated students assembled outside, yelling at Daniel and threatening to kill him. Daniel was uncomfortable and afraid. The school principal, Scott Farina, arrived in the nurse's office, asked Daniel what had transpired that day, and called the police to assist in escorting Daniel out of school. A police officer arrived in the nurse's office, Daniel put on his backpack, and, flanked by the police officer and one school administrator, Daniel ran out of the school. As Daniel departed, students yelled at him in Spanish. Farina informed Daniel's mother, Patricia DeFabio, that Daniel was being sent home for his own protection and that Daniel should stay home for a few days until the atmosphere in the school had calmed down.

The following day Daniel's mother asked Principal Farina to read over the school's public address system a letter from Daniel declaring his innocence. She requested, in the alternative, that the school permit Daniel to read the statement during a school assembly or that the school distribute the statement to the students in written form. Principal Farina denied all of these requests, citing the risk that any

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statement could further aggravate tensions in the school. In the days following April 26, Daniel received a number of threatening phone calls at his house as well as a threatening message in Spanish on his cell phone. In light of threats heard by Farina that students were planning to burn Daniel's house, police were assigned to patrol outside of the DeFabio household for the remainder of the week.

On April 29, 2004, Patricia DeFabio and her partner, Michael Rusinsky (" Daniel's parents" ), met with Farina, assistant principal Michael Burns, and guidance counselor Caryn Lieber to discuss the events of the past days. Farina advised Daniel's parents that Daniel could not immediately return to school in light of concerns for his safety. Daniel's parents disagreed and argued strenuously that the best course of action would be to allow Daniel to return to school to " address the rumor." Farina denied their request citing the need to preserve order and calm in the school. Daniel wanted in some way to return to school, but was also " pretty scared." Daniel's parents acknowledged during this meeting that they felt intimidated in their home.

The next morning, April 30, an attorney hired by Daniel's parents contacted the school to inquire when Daniel would be readmitted to school. That afternoon Daniel received a hand-delivered letter from Principal Farina informing him that he would be suspended for five days, that Daniel was entitled to an informal hearing and that he had twenty-four hours to inform Farina if he wanted a hearing. The letter also noted that, because of the seriousness of the infraction, a Superintendent's Meeting might be held, and that if so, Daniel would receive notice from the Superintendent's office.

A week later a Superintendent's Meeting was held. Daniel attended the meeting, venturing out of his house for the first time since the day of the incident. Two students testified against Daniel. Superintendent Raymond Gualtieri found that Daniel had made the comment alleged and suspended Daniel for the remainder of the 2003-2004 school year. Daniel received home tutoring for that time period.

Following the meeting, Principal Farina accompanied Daniel to a meeting with twelve student representatives of the Latin American community in East Hampton High School. At the meeting, Daniel told the students that he did not originate the offending statement but that he had merely repeated the comment to a friend, stating preliminarily that " you would not believe the terrible thing that I just heard someone say in the hallway." At this meeting with the twelve students, Daniel also distributed the written statement that he had earlier requested the school to read or otherwise distribute.1 Most of the students told Daniel that they did not believe him. Their conclusion was informed in part by Daniel's failure to return to school following the incident-they found his absence and silence consistent with guilt.

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Farina informed the students that he had not allowed Daniel back in school and had denied Daniel's request to distribute his statement.

On May 18, 2004, Daniel appealed Superintendent Gualtieri's adverse decision to the Board of Education, which upheld the decision. Daniel further appealed to the New York Commissioner of Education. The Commissioner of Education annulled Daniel's suspension and overturned the Superintendent's finding. The incident was expunged from Daniel's record. The Commissioner found that the record contained insufficient evidence that Daniel had been the originator of the offending comment.

During the summer of 2004, various individuals of Hispanic background threatened Daniel at the marina where he worked. One of them attempted to get onto a boat where Daniel was working to fight him but was stopped by the first mate. On two or three occasions while Daniel was riding in a car various individuals cursed at him and threatened his life. Once while at a gas station a Hispanic individual confronted Daniel and told Daniel that he was lucky he " didn't [get] pop[ped]." In August of 2004, Daniel and his family decided that for Daniel's safety he would attend school in California the following year. Daniel never returned to East Hampton High School.

II. Procedural History

In April 2007 Daniel and Patricia DeFabio filed a 42 U.S.C. § 1983 civil rights action against East Hampton Union Free School District (the " District" ), and Principal Farina, Superintendent Gualtieri, and the...

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