The Second Circuit U.S. Court of Appeals affirmed a decision that a principal was not unlawfully retaliating against a student he temporarily held in the school’s detention room after reading his essay depicting recreational drug use, law-breaking and suicide.
The case was brought by middle school student Raphael Cox’s parents, who alleged Principal John Kolesar infringed Raphael’s freedom of speech, in addition to the parents’ right to custody of Raphael, after Kolesar filed a report to child welfare authorities suggesting the parents were inadequately protecting their son.
The essay that brought on the dispute was a response to an English class assignment asking what the student would do if he had 24 hours to live. Raphael depicted himself “getting drunk, smoking, doing drugs, and breaking the law,” ending with him “taking cyanide and shooting himself in the head in front of his friends at the end of the 24 hours,” the case reads.
The essay, titled “Racing Time,” set off alarms for Raphael’s teacher, who in turn shared it with Kolesar. He pulled Raphael out of class, leaving him in the in-school suspension room for the remainder of the afternoon while he determined if Raphael was a threat to himself or others. Raphael’s parents argued his fictional essay was protected under the First Amendment and the in-house suspension was retaliation from Kolesar.
As plaintiffs in the original district court case, Raphael’s parents suggested the First Amendment issue should have been decided using the Tinker standard, which says student speech can’t be repressed or punished unless administrators can prove it will “materially and substantially disrupt the work and discipline of the school.”
Conversely, the defendants originally suggested applying the Hazelwood standard, which says educators may exert broad editorial control over speech that could be interpreted as promoted or endorsed by the school. The district court suggested Tinker was a more appropriate standard for “Racing Time,” but the appeals court sidestepped the First Amendment issue by finding Kolesar’s actions didn’t qualify as retaliation for the essay in the first place.
The facts of this case differ from what usually plays out with violent speech in schools that result in the disciplinary suspension or expulsion of a student. In the more typical case, the school’s action is clearly punitive, and the only question is whether the speech was protected by the First Amendment. Instead, the Second Circuit said holding Raphael in afternoon suspension and contacting Child and Family Services, which took him to the hospital to undergo psychiatric evaluation, were preventive and not punitive.
The court decided 3-0 that both actions were part of Kolesar’s responsibilities as an educator to inquire into potential dangers, adding schools “cannot function without affording teachers and administrators fair latitude to make these inquiries.”
Chief Judge Dennis Jacobs wrote in the court’s Aug. 17 opinion:
In their various roles, school administrators must distinguish empty boasts from serious threats, rough-housing from bullying, and an active imagination from a dangerous impulse. Making such distinctions often requires an investigation, and the investigation may result in discipline, but the investigation itself is not disciplinary–it is precautionary and protective. This is so even when a student is separated, interviewed, or temporarily sequestered to defuse a potentially volatile or dangerous situation.
The case is Cox v. Warwick Valley School District, Docket No. 10-3633-CV.