2nd federal judge agrees student drawing was threatening

Wednesday, June 2, 2010

School officials in Montgomery, N.Y., were justified in suspending a fifth-grader for his threatening drawing, a federal judge has ruled. U.S. District Judge Jed S. Rakoff emphasized that the student apparently had written other pieces with violent themes.

In September 2007, the student — known in court papers as “B.C.” — received an assignment along with his classmates at Berea Elementary School to fill in a picture of an astronaut with information about themselves. B.C. listed his birthday, his teacher’s name, his favorite sports and the phrase “blow up the school with all the teachers in it.” School officials labeled the drawing a threat and imposed a suspension. B.C.’s parents sued.

In May 2008, U.S. District Judge William C. Connor ruled in the school’s favor and dismissed the lawsuit. However, in July 2009, a three-judge panel of the 2nd U.S. Circuit Court of Appeals reinstated the lawsuit, finding that a lack of a disciplinary record involving B.C. was an important factor in favor of the student and his parents, William and Margaret Cuff. The 2nd Circuit wrote that “B.C. had no other disciplinary history that would suggest a violent tendency.” The appeals court sent the case back down to the district court for further fact-finding.

Meanwhile, Judge Connor died and the case was transferred to Judge Rakoff. After depositions and other discovery, school officials filed a motion for summary judgment. They said B.C. did have a substantial disciplinary history, which included previous violent-themed writings that had concerned school officials. For example, as a third-grader B.C. had drawn a picture of a person shooting bullets at four people. His parents testified that B.C. loved paintball and that they had a paintball course on their property.

Rakoff sided with the school officials in his May 26 opinion in Cuff v. Valley Central School District. He based his ruling in large part on the evidence of other discipline imposed on B.C. “It is now uncontested that, even on B.C.’s account, B.C. had a substantial disciplinary history,” he wrote.

The Cuffs argued that they should prevail because B.C. did not intend to make a threat and was only joking with his drawing. Rakoff was not persuaded: “Even if B.C. meant the drawing to be a joke, the fact remains that he showed it to other students and knew that the assignment was intended for public display.”

Rakoff applied the “substantial disruption” test from the U.S. Supreme Court’s decision in Tinker v. Des Moines Independent Community School Dist. (1969). In Tinker, the Court said school officials could punish students for their expression only if the officials could reasonably forecast that the expression would cause a substantial disruption. Rakoff noted that school officials do not have to wait for an actual disruption under Tinker.

The opinion shows the importance of a student’s disciplinary history and record in student-speech cases.

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