Federal judge upholds 5th-grader’s suspension for alleged threat

Tuesday, May 13, 2008

A federal judge has ruled that school officials in Montgomery, N.Y., did not violate the First Amendment rights of a fifth-grader when they suspended him for six days for writing on a school assignment that his wish was to “blow up the school with all the teachers in it.”

The case arose on the first day of school in September 2007 when a science teacher at Berea Elementary School asked students to fill in a picture of an astronaut with information about their personalities, such as their friends, favorite sports team, friends and wishes. The student known in court papers only by his initials B.C. wrote in the picture the comment about blowing up the school. He did not show the assignment to other students but handed it in to his teacher.

Though the family’s attorney said the comment was intended as a joke, school officials found it no laughing matter in this post-Columbine world. They suspended B.C. for six days and refused to expunge the suspension from his record.

William and Margaret Cuff, on behalf of their son, sued in federal court, contending that their son’s First Amendment rights were violated. In the May 5 opinion Cuff v. Valley Central School District, U.S. District Judge William C. Connor dismissed the lawsuit, writing that the school officials acted reasonably and constitutionally.

Connor relied in large part on last year’s 2nd U.S. Circuit Court of Appeals decision in Wisniewski v. Board of Education, in which the court upheld the suspension of a middle school student who transmitted a threatening image over the Internet.

“The threat of serious school violence — including mass shootings perpetrated by students — is an unfortunate fact of life in twenty-first-century America,” Connor wrote.

The judge reasoned that the controlling standard came from the U.S. Supreme Court’s 1969 decision in Tinker v. Des Moines Independent Community School Dist. In Tinker, the high court ruled that public school officials could censor student expression if they reasonably forecast that the student speech would cause a substantial disruption of school activities.

Connor wrote that the school officials “could reasonably have viewed B.C.’s writings as a general indication of violent intention or propensity, notwithstanding the fact that he might have been unable to perform the specific violent act he threatened.”

Connor also rejected as irrelevant the argument that B.C.’s words were simply a joke: “Wisniewski and Tinker instruct courts to focus on the reasonableness of the school officials’ interpretation, not the speaker’s subjective intent.”

The judge also rejected the argument that the severity of the punishment amounted to a constitutional violation. “This is exactly the sort of discretionary decision making that is entitled to deference from this Court,” he concluded.

Stephen Bergstein, the Chester, N.Y.-based civil rights attorney who represents the Cuffs, said the decision would be appealed to the 2nd Circuit.

“Although I have great respect for this judge, I respectfully think he got it wrong,” he said. “The opinion shows how recent appellate court cases — including the U.S. Supreme Court in the Bong Hits 4 Jesus case case have (wrongly) changed the landscape to give school administrators even more leeway to regulate and restrict student speech.

“This was not a real threat,” Bergstein said. “The judge relied on Wisniewski, which was a much more egregious case.”

Bergstein also questioned the district court’s dismissal of his argument about the severity of the punishment. “There has to be some level of First Amendment analysis on the severity of punishment. Otherwise where do school officials stop?”

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