Cuff ex rel. B.C. v. Valley Cent. School Dist.

• Decision Date: 05 May 2008
• Docket Number: No. 07 Civ. 10996 (WCC).,07 Civ. 10996 (WCC).
• Citation: 559 F.Supp.2d 415
• Parties: William and Margaret CUFF, on behalf of their minor son, B.C., Plaintiffs, v. VALLEY CENTRAL SCHOOL DISTRICT and Barbara Knecht, sued in her individual capacity, Defendants.
• Court: U.S. District Court — Southern District of New York

559 F.Supp.2d 415

William and Margaret CUFF, on behalf of their minor son, B.C., Plaintiffs, v. VALLEY CENTRAL SCHOOL DISTRICT and Barbara Knecht, sued in her individual capacity, Defendants.

No. 07 Civ. 10996 (WCC).

United States District Court, S.D. New York.

May 5, 2008.

COPYRIGHT MATERIAL OMITTED

Bergstein & Ullrich, LLP, Stephen Bergstein, Esq., of Counsel, Chester, NY, for Plaintiffs.

Miranda Sokoloff Sambursky Slone Verveniotis LLP, Adam I. Kleinberg, Esq., Charles A. Martin, Esq., of Counsel, Mineola, NY, for Defendants.

OPINION AND ORDER

CONNER, Senior District Judge:

This case arises out of the suspension of an elementary-school student, B.C., for what his teacher and school principal viewed as a written threat delivered to the teacher during the school day. Plaintiffs William and Margaret Cuff are B.C.'s parents. Defendants are Valley Central School District (the "District"), the district in which B.C.'s school is located, and Barbara Knecht ("Knecht"), the principal of B.C.'s school; Knecht is sued in her individual capacity. Plaintiffs argue that the suspension and defendants' subsequent refusal to expunge the event from B.C.'s record violated B.C.'s First Amendment rights. Defendants now move to dismiss pursuant to FED. R. CIV. P. 12(b)(6). For the following reasons, the motion is granted.

BACKGROUND

The following facts are taken from the Complaint and are assumed to be true for purposes of this decision.

At the time relevant to this action, B.C. was ten years old and a fifth-grade student at Berea Elementary School. (Complt. ¶ 7.) On September 12, 2007, B.C.'s science teacher asked her students to fill in a picture of an astronaut with statements about their personalities; this was an in-class exercise. (Id. ¶ 8.) B.C. listed his birthday, his teacher's name, and his favorite sports. (Id. ¶ 9.) He also wrote "blow up the school with all the teachers in it." (Id.) B.C. then turned the assignment in to his teacher without showing it to any of his classmates. (Id. ¶ 10.)

After reviewing B.C.'s writing, the teacher notified defendant Knecht. (Id. ¶ 11.) That same day, Knecht informed plaintiffs that, "as a result of his "written violent threat against Berea Elementary School and its occupants,'" B.C. would be suspended from school for five days and would also serve one day of internal suspension. (Id. ¶ 12.) After B.C. served the suspension, plaintiffs requested, through counsel, that the Board of Education expunge this incident from B.C.'s record. (Id. ¶ 14.) The Board refused to do so, and this litigation followed. (Id.)

DISCUSSION

I. Standard of Review

On a motion to dismiss pursuant to Rule 12(b)(6), a court must accept as true all of the well-pleaded facts and consider those facts in the light most favorable to the plaintiff. See Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90, (1974), overruled on other grounds, Davis v. Scherer, 468 U.S. 183, 104 S.Ct. 3012, 82 L.Ed.2d 139, (1984); Nechis v. Oxford Health Plans, Inc., 421 F.3d 96, 100 (2d Cir.2005). "The plaintiffs factual allegations must be enough to give the defendant fair notice of what the claim is and the grounds upon which it rests." Port Dock & Stone Corp. v. Oldcastle Northeast, Inc., 507 F.3d 117, 121 (2d Cir.2007) (citing Bell All. Corp. v. Twombly, ___ U.S. ___, 127 S.Ct. 1955, 1964-65, 167 L.Ed.2d 929 (2007)). Allegations that are so conclusory that they fail to give notice of the basic events and circumstances of which the plaintiff complains are insufficient as a matter of law. See Martin v. N.Y. State Dep't of Mental Hygiene, 588 F.2d 371, 372 (2d Cir.1978). The Court may consider the facts alleged in the complaint as well as any document attached as an exhibit to the complaint or incorporated by reference. See FED. R. CIV. P. 10(c); Dangler v. N.Y. City Off Track Betting Corp., 193 F.3d 130, 138 (2d Cir.1999); De Jesus v. Sears, Roebuck & Co., 87 F.3d 65, 69 (2d Cir.1996).

II. Whether B.C.'s Writing is Protected Speech

It is well established that "students do not `shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.'" Morse v. Frederick, ___ U.S. ___, 127 S.Ct. 2618, 2622, 168 L.Ed.2d 290 (2007) (quoting Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969)). But it is also clear that students in public schools enjoy a more limited form of First Amendment protection than do adults in society at large. See Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 682, 106 S.Ct. 3159, 92 L.Ed.2d 549 (1986) ("[T]he constitutional rights of students in public school are not automatically coextensive with the rights of adults in other settings."). The Second Circuit recently provided a succinct summary of the key principles in this area:

(1) schools have wide discretion to prohibit speech that is less than obscene— to wit, vulgar, lewd, indecent or plainly offensive speech, Fraser, 478 U.S. at 683-85, 106 S.Ct. 3159; Hazelwood, 484 U.S. at 272 n. 4, 108 S.Ct. 562;

(2) if the speech at issue is "school-sponsored," educators may censor student speech so long as the censorship is "reasonably related to legitimate pedagogical concerns," Hazelwood, 484 U.S. at 273, 108 S.Ct. 562; and

(3) for all other speech, meaning speech that is neither vulgar, lewd, indecent or plainly offensive under Fraser, nor school-sponsored under Hazelwood, the rule of Tinker applies. Schools may not regulate such student speech unless it would materially and substantially disrupt classwork and discipline in the school. See Tinker, 393 U.S. at 513, 89 S.Ct. 733.

Guiles ex rel. Guiles v. Marineau, 461 F.3d 320, 325 (2d Cir.2006) (citing Fraser, 478 U.S. at 683-85, 106 S.Ct. 3159; Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 272-73 & n. 4, 108 S.Ct. 562, 98 L.Ed.2d 592 (1988); Tinker, 393 U.S. at 513, 89 S.Ct. 733). After the Second Circuit decided Guiles, the Supreme Court held, in Morse, that schools may prohibit student speech that appears to advocate the use of illegal drugs. Morse, 127 S.Ct. at 2621.

In cases involving threats by students, the Second Circuit has instructed district courts to apply the rule of Tinker, which the Supreme Court recently reaffirmed in Morse: "`student expression may not be suppressed unless school officials reasonably conclude that it will "materially and substantially disrupt the work and discipline of the school."'"¹ Wisniewski v. Bd. of Educ., 494 F.3d 34, 38 (2d Cir.2007), cert. denied, ___ U.S. ___, 128 S.Ct. 1741, 170 L.Ed.2d 540 (2008) (quoting Morse, 127 S.Ct. at 2625 (quoting, in turn, Tinker, 393 U.S. at 513, 89 S.Ct. 733)).

Wisniewski controls the outcome here and requires dismissal. The case involved a threatening image transmitted over the internet by a middle-school student, Aaron, to several of his classmates. Id. at 35-36. The image was "a small drawing of a pistol firing a bullet at a person's head, above which were dots representing splattered blood. Beneath the drawing appeared the words `Kill Mr. VanderMolen'"; Mr. VanderMolen was Aaron's English teacher at the time. Id. at 36. The image was displayed as Aaron's AOL Instant Messaging ("IM") "buddy icon," which means that it was transmitted to every person with whom Aaron communicated in an IM conversation.² Id. Aaron's buddy icon was available for viewing for approximately three weeks, and fifteen of his "buddies" saw it during that time, including several of his classmates. Id. One of Aaron's classmates told Mr. VanderMolen about the icon, and he in turn told the school principal. Id. Aaron was ultimately suspended for five days. Id. A police officer and a psychologist both subsequently concluded that Aaron had meant the icon as a joke, had no violent intent and was not a threat. Id.

Aaron's parents challenged his suspension on, inter alia, First Amendment grounds. Id. at 37. The district court granted summary judgment to the defendants, and the Court of Appeals affirmed, holding that the buddy icon did not enjoy First Amendment protection. Id. In reaching its decision, the court considered two factors: the foreseeability that the buddy icon would come to the attention of school authorities and, once it did, the foreseeability of its creating "a risk of substantial disruption within the school environment." Id. at 39-40.

The "threatening content" of the image and its widespread distribution over a three-week period satisfied the first element, despite the fact that Aaron created and distributed the icon outside of school. Id. As to the second factor, the court observed: "there can be no doubt that the icon, once made known to the teacher and other school officials, would foreseeably create a risk of substantial disruption within the school environment." Id. at 40. The court described the foreseeability of such disruption as "clear." Id. In fact, the potential disruptive impact of speech that threatened a member of the school community was apparently so obvious to the court, so clear and beyond doubt, that no further discussion of the issue was warranted. See id.; D.F. ex rel. Finkle v. Bd. of Educ., 386 F.Supp.2d 119, 125-26 (E.D.N.Y.2005) (holding that a student's exceedingly violent story about a student who murders several of his classmates did not enjoy First Amendment protection because it "may materially interfere with the work of the school by disturbing the students and teachers").

Wisniewski makes this Court's inquiry straightforward. Here, unlike in Wisniewski, the threatening message was delivered directly to a teacher, so the likelihood that a school official would learn about it is not in question. See 494 F.3d at 39-40. The Wisniewski court had "no doubt" that the threatening image involved in that case "would foreseeably create a risk of substantial disruption within the school environment." Id. at 40. We have no doubt that the same is true of B.C.'s statement here. Although, as plaintiffs suggest, one might...