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Second Circuit Again Sides with District in Recent First Amendment Case

The issue in Cox v. Warwick Valley Central School District stemmed from a student assignment to write an essay for English class. The teacher asked students to write about what they would do if they had 24 hours to live. While this sort of creative writing occurs every day in classrooms across the country, teachers sometimes get troubling responses. One student in this class, Raphael, wrote an essay called “Racing Time”, in which he described drinking, smoking, doing drugs and doing other illegal activities, and ended the essay with him taking cyanide and shooting himself in the head in front of his friends. After Principal John Kolesar removed the student from class and later called the Department of Children and Family Services (DCYS) because he felt the parents did not take the essay seriously enough, the parents sued, alleging retaliation against their son in violation of his First Amendment rights, and for deprivation of the parents’ substantive due process rights for calling DCYS.

<>In this case, the Second Circuit Court of Appeals ruled in favor of the school on both issues. Regarding the retaliation claim, Principal Kolesar removed Raphael from the classroom to discuss the content of his essay. After speaking with the student, Kolesar placed Raphael in the in-school suspension room while he considered whether or not the student posed a safety risk to himself or others, which is understandable given the disturbing content of his essay. Determining that the essay did not constitute a true threat, Principal Kolesar chose not to discipline the student.

Kolesar did, however, call DCFS because he was concerned that the parents were not taking Raphael’s behavior seriously enough, and in effect, neglecting the child. DCFS conducted an investigation, but ultimately found the allegations of neglect to be unsubstantiated. The parents then brought this lawsuit.

The parents claimed that Raphael’s essay was protected speech under the First Amendment and that Kolesar had impermissibly retaliated against him by removing him from class and later calling DCFS. The Second Circuit did not answer the question of whether or not the essay constituted protected speech, holding instead that Kolesar’s actions were not adverse and therefore there was no retaliation in violation of the student’s First Amendment rights.

The Second Circuit noted that “outside the school context, an adverse action in a First Amendment retaliation case is conduct that would deter a similarly situated individual of ordinary firmness from exercising his or her constitutional rights.” Recognizing that First Amendment cases over student speech usually involve explicit censorship or disciplinary action, and that there is no clear definition of “adverse action” in the school context, the Court, citing Tinker v. Des Moines Independent Community School District, applied the “adverse action” analysis “in light of the special characteristics of the school environment”.

The Court discussed how school administrators have multiple responsibilities that include both protecting and disciplining students. In determining what is a serious threat or worthy of discipline, administrators must often investigate, which sometimes means interviewing students and removing them from class. The Court noted that an administrator “must be able to react to ambiguous student speech by temporarily removing the student from potential danger (to himself and others) until it can be determined whether the speech represents a real threat to school safety and student learning” and that those decisions, once made, are worthy of “unusual deference” from the court. Further, the Court noted that a “school cannot function without affording teachers and administrators fair latitude to make these inquiries”. In fact, many districts have suicide prevention policies that require the school team to assess whether a student is at-risk.

Noting New York’s mandatory reporter law, the Court found that the call to DCFS was also made to protect the child and was not adverse in nature. Importantly, the Court noted that if such reports could expose administrators to liability under federal law, then administrators would be between the proverbial rock and a hard place, as they would face liability whether they make the call or fail to make the call. The Court therefore rejected the parents’ due process claim, especially since they had never lost custody of their child, and furthermore, Kolesar had not acted with any sort of malice. 

We have followed closely the Doninger v. Niehoff decision from the Second Circuit, in which the Court ruled in favor of the district for barring the student from running for student council after her off-campus speech disrupted the educational process. The recent decision in Cox, while it did not reach the issue of whether or not the essay constituted protected speech, was sympathetic to the demands of school administrators in meeting the needs of students, and ultimately ruled in favor of the district. As the Doninger case is currently up on appeal to the Supreme Court, we will see whether or not the high court agrees with Second Circuit’s interpretation of First Amendment issues. Stay tuned.