Cox v. Warwick Valley Central Sch., No. 10-3633 (2d Cir. 2011)

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Justia Opinion Summary

Plaintiffs appealed from a judgment of the district court granting summary judgment in favor of a school district and principal on 42 U.S.C. 1983 claims arising out of the treatment of their son, a middle school student with a history of misbehavior in school, who wrote an essay with descriptions of illegal activity, violence, and suicide (Racing Time essay). Plaintiffs appealed the dismissal of a First Amendment retaliation claim brought on behalf of their son and the dismissal of their own Fourth Amendment substantive due process claim. The court held that none of the principal's actions in response to the student's speech constituted retaliation; and because neither of the principal's actions in response to the essay were adverse, the court affirmed the district court's grant of summary judgment to the principal on the First Amendment retaliation claim. The court also held that the principal's call to Child and Family Services (CFS) did not violate the parents' substantive due process rights where there was no actual loss of the parents' custody and no reasonably jury could conclude that the principal's report to CFS, or the resulting requirement that the student by psychiatrically evaluated, was even remotely "outrageous" or "conscience-shocking." The court did not reach the question of qualified immunity. Accordingly, the court affirmed the judgment of the district court.

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10-3633-cv Cox v. Warwick Valley Cent. School Dist. 1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 August Term, 2010 4 (Argued: May 31, 2011 5 Decided: August 17, 2011) Docket No. 10-3633-cv 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - - - - - - - - - - - - - - - - - - - -x EVERETT W. COX III and NAN PING PENG, individually and on behalf of their minor son NAN PING RAPHAEL COX, Plaintiffs-Appellants, -v.- 10-3633-cv WARWICK VALLEY CENTRAL SCHOOL DISTRICT, JOHN KOLESAR individually and as PRINCIPAL OF WARWICK MIDDLE SCHOOL, Defendants-Appellees.* - - - - - - - - - - - - - - - - - - - -x Before: DENNIS JACOBS, Chief Judge, DEBRA ANN LIVINGSTON, Circuit Judge, JED S. RAKOFF, District Judge.** * The Clerk of Court is respectfully instructed to amend the official case caption as shown above. ** The Honorable Jed S. Rakoff of the United States District Court for the Southern District of New York, sitting by designation. 1 Plaintiffs appeal from a judgment of the United States 2 District Court for the Southern District of New York (Gwin, 3 J., sitting by designation) granting summary judgment in 4 favor of a school district and principal on § 1983 claims 5 arising out of the treatment of their son, a middle school 6 student. 7 Amendment retaliation claim brought on behalf of their son, 8 and the dismissal of their own Fourteenth Amendment 9 substantive due process claim. Plaintiffs appeal the dismissal of a First Affirmed. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 FOR APPELLANTS: Christopher D. Watkins (Michael H. Sussman, on brief) Sussman & Watkins Goshen, NY FOR APPELLEES: Patrick J. Fitzgerald, III Scott P. Quesnel Girvin & Ferlazzo, P.C. Albany,NY DENNIS JACOBS, Chief Judge: Everett Cox III and Nan Ping Peng, parents of a middle 25 school student, appeal from a judgment of the United States 26 District Court for the Southern District of New York (Gwin, 27 J., sitting by designation) dismissing on summary judgment 28 their § 1983 complaint against Warwick Valley Central School 29 District and Principal John Kolesar. 2 Cox and Peng appeal 1 the dismissal of: [1] a First Amendment claim brought on 2 behalf of their son, alleging that Kolesar retaliated 3 against the boy for his school essay by temporarily placing 4 him in the school s suspension room and by reporting the 5 parents to the state s Department of Child and Family 6 Services for suspected abuse or neglect; and [2] the 7 parents Fourteenth Amendment substantive due process claim, 8 alleging that the same report to Child and Family Services 9 infringed their right to custody of their son. We affirm. 10 11 12 BACKGROUND John Kolesar is the Principal of Warwick Valley Middle 13 School ( Warwick ), which was attended by Raphael Cox, the 14 plaintiffs son. 15 exhibited a pattern of misbehavior: 16 classmates, interrupted class instruction, fought with other 17 students, and brought contraband to school (fireworks, 18 lighters, and alcohol). 19 multiple occasions for these infractions. 20 Kolesar in late 2006, Raphael and his parents signed a 21 behavioral contract that placed Raphael on probation and During his time at Warwick, Raphael He threw objects at Kolesar suspended Raphael on 3 At a meeting with 1 specified that further misconduct would result in more 2 severe discipline, possibly including expulsion. 3 Raphael continued to misbehave, fighting with other 4 students and vandalizing school property. He also continued 5 to display violent tendencies and ideations: 6 inappropriate comment in class about flying a plane into a 7 building, he was overheard by a teacher talking about 8 blowing up things, and he brought to school what 9 administrators perceived to be a makeshift metal weapon. He made an 10 a result, Kolesar requested another meeting with the 11 As parents. 12 In February 2007, the parents met with several Warwick 13 school administrators, including Kolesar and the school 14 psychologist. 15 undergo a psychiatric evaluation. 16 agreed to have Raphael seen by a psychologist. 17 Raphael met with the psychologist, the parents gave Kolesar 18 a copy of the evaluation. 19 The administrators requested that Raphael The parents resisted, but After In March 2007, Raphael s English teacher assigned 20 Raphael to write an essay on what he would do if he had only 21 24 hours to live.3 Raphael s essay, titled Racing Time, 3 There is some disagreement between the parties as to what the essay assignment was, but at least one other 4 1 described getting drunk, smoking, doing drugs, and breaking 2 the law. 3 himself in the head in front of his friends at the end of 4 the 24 hours. 5 but never presented it to his class or shared it with his 6 fellow students. 7 It ended with Raphael taking cyanide and shooting Raphael submitted the essay to his teacher, Concerned about its casual description of illegal 8 activity, violence, and suicide, Raphael s teacher showed 9 Racing Time to Kolesar. Kolesar immediately took Raphael 10 out of class to discuss it. 11 essay was fictional and that he did not intend harm to 12 himself or others. 13 in-school suspension room ( ISS Room ) for the rest of the 14 afternoon while he considered whether Raphael posed an 15 imminent threat to himself or others, and whether he should 16 be disciplined for his essay. 17 was no immediate threat and that discipline was not 18 appropriate. 19 20 Raphael explained that the Kolesar then sequestered Raphael in the Kolesar concluded that there Raphael was sent home at the end of the day. Before school the next morning, Kolesar met the school psychologist and guidance counselors to discuss Raphael s student appeared to interpret it the way Raphael did; so taken in the light most favorable to the plaintiffs, we assume that the students were assigned to write what they would do if they had only 24 hours to live. 5 1 emotional health and Kolesar s perception that the parents 2 were insufficiently concerned about Raphael s misbehavior 3 and emotional well-being. 4 reported to the district Superintendent, who reminded 5 Kolesar of his legal obligation to report suspected abuse or 6 neglect to the state department of Child and Family Services 7 ( CFS ). 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 After the meeting, Kolesar Kolesar then called CFS and reported his concern that the parents were neglecting Raphael. The CFS narrative on Kolesar s call stated: Narrative: 13 yr old Rafael has been repeatedly writing in his journal violent homicidal and suicidal imagery while in school. He has also participated in acts of vandalism and brought dangerous objects into school such as fireworks and pieces of metal. Rafael recently expressed suicidal thoughts and had a very descriptive plan for doing it in that he would take his favorite weapon, a ruger place it in his mouth with a cyanide pill and shoot himself and everyone would party for a week. The school recommended to the parents that they seek a psychiatric evaluation for their son but they have refused to do so. The parents are minimizing the child s thoughts and behaviors and state that this is just fiction and all a misunderstanding. It is believed the child is a danger to himself and other[s] at this point. The parents are failing to provide a minimal degree of care to their son. That afternoon, a CFS worker told the parents to meet her at Warwick. When they arrived, the CFS worker insisted 6 1 that they take Raphael to the hospital immediately to 2 undergo a psychiatric evaluation, and warned that otherwise 3 they could lose custody. 4 was evaluated that evening. 5 The parents complied, and Raphael After this incident, the parents home-schooled Raphael 6 for the rest of the year. The CFS investigation eventually 7 concluded Kolesar s concern was unfounded. 8 state action was taken. No further 9 The parents filed a § 1983 suit against Kolesar and 10 Warwick in federal district court, alleging that Kolesar 11 violated Raphael s First Amendment speech rights by 12 disciplining him for his essay and that Kolesar violated the 13 parents Fourteenth Amendment substantive due process right 14 to custody over Raphael by making an exaggerated or false 15 report to CFS. 16 to Kolesar and Warwick on both claims. 17 appeal. The district court granted summary judgment The parents now 18 19 20 DISCUSSION We review de novo a district court s grant of summary 21 judgment. Costello v. City of Burlington, 632 F.3d 41, 45 22 (2d Cir. 2011). When considering a motion for summary 7 1 judgment, we view the facts in the light most favorable to 2 the non-moving party and draw all reasonable inferences in 3 that party s favor. 4 when the evidence is so one-sided that one party must 5 prevail as a matter of law. 6 F.3d 63, 70 (2d Cir. 1996) (internal quotation marks 7 omitted). 8 9 Id. Summary judgment is appropriate Kulak v. City of New York, 88 To state a § 1983 claim, a plaintiff must establish that the defendant deprived him of a federal or 10 constitutional right while acting under the color of state 11 law. 12 Kolesar concedes he was acting under the color of state law 13 when he placed Raphael in the ISS room and reported the 14 parents to CFS. 15 these actions deprived Raphael or his parents of any federal 16 or constitutional right. 17 actions constituted retaliation against Raphael for his 18 Racing Time essay in violation of his First Amendment 19 rights, and that Kolesar s report to CFS violated their 20 Fourteenth Amendment substantive due process right to 21 custody of Raphael. 22 violate the rights of the child or of the parents. Haywood v. Drown, 129 S. Ct. 2108, 2111 (2009). The sole question on appeal is whether The parents argue that Kolesar s We conclude that Kolesar did not 8 1 2 I To state a First Amendment retaliation claim, a 3 plaintiff must establish that: 4 was protected by the First Amendment; (2) the defendant took 5 an adverse action against him; and (3) there was a causal 6 connection between this adverse action and the protected 7 speech. 8 2003); see also Kuck v. Danaher, 600 F.3d 159, 168 (2d Cir. 9 2010). 10 (1) his speech or conduct Scott v. Coughlin, 344 F.3d 282, 287 (2d Cir. The parents argue that Raphael s Racing Time essay was 11 protected speech and that placing Raphael in the ISS Room 12 and calling CFS were adverse actions taken because of the 13 essay. 14 was a substantial cause of his decision to put Raphael in 15 the ISS Room for an afternoon and report the parents to CFS; 16 Kolesar disputes that these actions constituted adverse 17 actions, and that Raphael s Racing Time essay was speech 18 protected by the First Amendment. 19 Kolesar concedes that Raphael s Racing Time essay The district court concluded that there was at least 20 material factual dispute as to whether Kolesar took an 21 adverse action against Raphael as a result of his speech, 22 but that summary judgment for Kolesar was appropriate on the 9 1 First Amendment claim because Raphael had no protected 2 speech right in his Racing Time essay as a matter of law. 3 Cox v. Warwick Valley Cent. School Dist., No. 7:07-CV-10682, 4 2010 WL 6501655, at *7-8 (S.D.N.Y. Aug. 16, 2010). 5 affirm for different reasons. We 6 7 8 A [S]tudents do not shed their constitutional rights to 9 freedom of speech or expression at the schoolhouse gate ; 10 however, the constitutional rights of students in public 11 school are not automatically coextensive with the rights of 12 adults in other settings. 13 393, 396-97 (2007) (internal quotation marks omitted). 14 general rule, student speech in school is protected under 15 the First Amendment unless it would materially and 16 substantially interfere with the requirements of appropriate 17 discipline in the operation of the school. 18 Moines Indep. Cmty. School Dist., 393 U.S. 503, 509 (1969) 19 (internal quotation marks omitted). 20 There are exceptions. Morse v. Frederick, 551 U.S. As a Tinker v. Des When students speak pursuant to 21 the school curriculum such that their speech may be 22 perceived as being endorsed or promoted by the school--e.g., 10 1 school newspapers, theatrical productions--school 2 administrators may exercise editorial control over that 3 speech so long as their actions are reasonably related to 4 legitimate pedagogical concerns. 5 Kuhlmeier, 484 U.S. 260, 271-73 (1988). 6 administrators may, as part of their responsibility to 7 teach[] students the boundaries of socially appropriate 8 behavior, punish student speech that is vulgar, lewd, or 9 threatening, at least where that speech occurs publicly at Hazelwood School Dist. v. Moreover, school 10 school or a school-related event. 11 403 v. Fraser, 478 U.S. 675, 681 (1986); see also Morse, 551 12 U.S. at 404-06. 13 Bethel School Dist. No. However, we need not reach the question whether 14 Raphael s speech was protected by the First Amendment 15 because we conclude that none of Kolesar s actions in 16 response to Raphael s speech constituted retaliation. 17 18 B First Amendment student speech cases ordinarily involve 19 explicit censorship or avowedly disciplinary action by 20 school administrators. 21 (student suspended for displaying drug-promoting banner at 22 school activity); Fraser, 478 U.S. at 678 (student suspended See e.g., Morse, 551 U.S. at 396 11 1 for lewd speech at school event); Hazelwood, 484 U.S. at 2 263-4 (articles banned from student newspaper); Tinker, 393 3 U.S. at 504 (school ban on black armbands); Doninger, 642 4 F.3d at 340-42 (student prohibited from running for student 5 council for derogatory blog post about school event); 6 Wisniewski v. Bd. of Educ. of the Weedsport Cent. School 7 Dist., 494 F.3d 34, 35-36 (2d Cir. 2007) (student suspended 8 for violent drawing distributed electronically to other 9 students). 10 There is therefore no clear definition of adverse action in the school context. 11 Outside the school context, an adverse action in a 12 First Amendment retaliation case is conduct that would 13 deter a similarly situated individual of ordinary firmness 14 from exercising his or her constitutional rights. 15 v. Fashion Inst. of Tech., 464 F.3d 217, 225 (2d Cir. 2006) 16 (internal quotation marks omitted). 17 standard, an adverse action must be more than de minimis 18 to support a First Amendment retaliation claim. 19 Recognizing that this test is highly context-specific, id., 20 we apply it in light of the special characteristics of the 21 school environment. Under this objective Tinker, 393 U.S. at 506. 12 Zelnick Id. at 226. 1 Teachers and school administrators have multiple 2 responsibilities: 3 protecting troubled and neglected students. 4 Serv. Law § 413(a) (making teachers and school 5 administrators mandatory reporters legally obligated to 6 report suspected child abuse and neglect to CFS). 7 part disciplinarian, and part protector. 8 teaching, maintaining order, and Cf. N.Y. Soc. They are Id. The state s interest in encouraging teachers to protect 9 students is so powerful that New York confers immunity from 10 civil and criminal liability whenever they report suspected 11 abuse in good faith, and it exposes them to criminal and 12 civil liability whenever they willfully fail to do so. 13 id. § 419 (providing immunity from criminal and civil 14 liability when mandatory reporters report suspected child 15 abuse in good faith and creating a presumption that all 16 reports of suspected abuse are made in good faith); id. 17 § 420 (subjecting mandatory reporters to criminal and civil 18 liability for willful and knowing failure to report 19 suspected abuse and neglect); Sclar v. Fayetteville-Manlius 20 School Dist., 753 N.Y.S.2d 636, 637 (App. Div., 4th Dep t, 21 2002) (recognizing immunity for good faith compliance with 13 See 1 the mandatory reporting requirements and the need for 2 plaintiffs to allege actual malice in making the reports). 3 In their various roles, school administrators must 4 distinguish empty boasts from serious threats, rough-housing 5 from bullying, and an active imagination from a dangerous 6 impulse. 7 investigation, and the investigation may result in 8 discipline, but the investigation itself is not 9 disciplinary--it is precautionary and protective. Making such distinctions often requires an This is 10 so even when a student is separated, interviewed, or 11 temporarily sequestered to defuse a potentially volatile or 12 dangerous situation. 13 that could potentially receive out-of-school suspension in 14 our Code of Conduct are to be supervised in an in-school 15 suspension room until a decision is made. ). 16 case, a school administrator must be able to react to 17 ambiguous student speech by temporarily removing the student 18 from potential danger (to himself and others) until it can 19 be determined whether the speech represents a real threat to 20 school safety and student learning. 21 unusual deference from the judiciary. 22 McIntyre, 235 F.3d 749, 758-59 (2d Cir. 2000) (recognizing See Kolesar Dep. at 45:6-9 ( Students 14 As in this Such acts deserve See Kia P. v. 1 that mandatory reporters face the dilemma that aggressive 2 action to protect children can expose them to civil 3 liability for due process violations while inadequate action 4 to protect children can expose them to § 1983 liability and 5 concluding that courts must give mandatory reporters 6 unusual deference in this context). 7 temporary removal of a student from regular school 8 activities in response to speech exhibiting violent, 9 disruptive, lewd, or otherwise harmful ideations is not an 10 adverse action for purposes of the First Amendment absent a 11 clear showing of intent to chill speech or punish it. 12 Without more, the Although a student and his parents might perceive such 13 removal as disciplinary or retaliatory, its objective 14 purpose is protective. 15 make an inquiry, to figure out if there is danger, and to 16 determine the proper response: 17 intervention, or something else. 18 without affording teachers and administrator fair latitude 19 to make these inquiries. It affords the administrator time to discipline, a benign A school cannot function 20 Under this standard, Kolesar s decision to remove 21 Raphael from class for an afternoon cannot support a First 22 Amendment retaliation claim, regardless of how Raphael or 15 1 his parents may have perceived Kolesar s actions. 2 took a precautionary measure to ensure that ambiguous 3 student expression did not portend disruption or violence. 4 We owe this decision unusual deference, and absent a clear 5 showing of retaliatory or punitive intent, it cannot be 6 considered adverse or retaliatory. 7 Kolesar For the same reason, Kolesar s decision to report 8 Raphael s parents to CFS, without any evidence of 9 retaliatory or punitive intent as to the child, is not an 10 adverse action against Raphael as a matter of law. By its 11 nature, the call was a protective-- not disciplinary--act, 12 and was therefore not an adverse action for purposes of 13 Raphael s First Amendment retaliation claim. 14 conclusion would place school administrators in an 15 impossible bind. 16 disclosed or suggested by a child s words or acts, and 17 school administrators have a legal obligation to report 18 suspected abuse and neglect to CFS. 19 inevitably based in part on the student s speech or 20 conduct--could result in § 1983 liability, administrators 21 would be exposed to civil liability no matter what they did. 22 Cf. id. at 758-59 (recognizing that mandatory reporters are Any other Abuse, neglect, and impairment are often 16 If such reports-- 1 obliged to choose between difficult alternatives in the 2 context of suspected child abuse. 3 interrupting parental custody, they may be accused of 4 infringing the parents constitutional rights. 5 in [not doing so], they risk injury to the child and may be 6 accused of infringing the child s rights. ). 7 choice would be whether to suffer 42 U.S.C. § 1983 liability 8 for reporting or N.Y. Soc. Serv. Law § 420 liability for not 9 doing so. If they err in If they err Their only Kolesar had a legal obligation to report 10 suspected child neglect to CFS, an obligation arising 11 precisely from his responsibility to keep his students safe. 12 Allowing such reports to generally constitute retaliation 13 against the children would seriously undermine school 14 administrators ability to protect the children entrusted to 15 them. 16 Because neither of Kolesar s actions in response to 17 Raphael s essay was adverse, we affirm the district court s 18 grant of summary judgment to Kolesar on the First Amendment 19 retaliation claim. 20 Kolesar would be entitled to qualified immunity. We need not reach the question whether 21 17 1 2 II The parents allege that Kolesar s call to CFS violated 3 their substantive due process rights under the Fourteenth 4 amendment by interfering with their custody of Raphael. 5 Choices about marriage, family life, and the 6 upbringing of children are of basic importance in our 7 society. 8 (internal quotation marks omitted). 9 parents in the care, custody, and management of their M.L.B. v. S.L.J., 519 U.S. 102, 116 (1996) The interest of natural 10 child is a fundamental liberty interest protected by the 11 Fourteenth Amendment. 12 753 (1982). 13 substantive right under the Due Process Clause to remain 14 together without the coercive interference of the awesome 15 power of the state. 16 129, 142 (2d. Cir. 2003) (internal quotation marks omitted). 17 This right is amplified by the more general substantive due 18 process right of all people to be free of government action 19 that is arbitrary, conscience-shocking, or oppressive in a 20 constitutional sense. 21 F.3d 202, 211 (2d Cir. 1995). Santosky v. Kramer, 455 U.S. 745, [F]amily members have, in general terms, a Anthony v. City of New York, 339 F.3d Kaluczky v. City of White Plains, 57 18 1 To state a claim for a violation of this substantive 2 due process right of custody, a plaintiff must demonstrate 3 that the state action depriving him of custody was so 4 shocking, arbitrary, and egregious that the Due Process 5 Clause would not countenance it even were it accompanied by 6 full procedural protection. Tenenbaum v. Williams, 193 7 F.3d 581, 600 (2d Cir. 1999). It is not enough that the 8 government act be incorrect or ill-advised ; it must be 9 conscience-shocking. Kaluczky, 57 F.3d at 211. Only the 10 most egregious official conduct can be said to be arbitrary 11 in the constitutional sense and therefore unconstitutional. 12 Tenenbaum, 193 F.3d at 600 (internal quotation marks 13 omitted). 14 Absent truly extraordinary circumstances, a brief 15 deprivation of custody is insufficient to state a 16 substantive due process custody claim. 17 Scoppetta, 344 F.3d 154, 172 (2d Cir. 2003); see also 18 Anthony, 339 F.3d at 143; Tenenbaum, 193 F.3d at 601. 19 temporary deprivations do not result in the parents 20 wholesale relinquishment of their right to rear their 21 children, so they are not constitutionally outrageous or 19 Nicholson v. Such 1 conscience-shocking. 2 and internal quotation marks in original omitted). 3 Nicholson, 344 F.3d at 172 (brackets Kolesar s call to CFS and the resulting demands and 4 threats from CFS to the parents may have been stressful or 5 even infuriating, but they did not result in even a 6 temporary loss of custody, let alone a wholesale 7 relinquishment of rights. 8 over Raphael during his entire (concededly coerced) 9 psychiatric evaluation. The parents maintained custody Where there is no actual loss of 10 custody, no substantive due process claim can lie. 11 Nicholson, 344 F.3d at 172; Anthony, 339 F.3d at 143; 12 Tenenbaum, 193 F.3d at 601. 13 Moreover, no reasonable jury could conclude that 14 Kolesar s report to CFS, or the resulting requirement that 15 Raphael be psychiatrically evaluated, was even remotely 16 outrageous or conscience-shocking. 17 categorically insufficient to shock the conscience, so the 18 parents must raise an inference that Kolesar acted 19 maliciously before his call to CFS can even begin to support 20 a violation of substantive due process. 21 v. Lewis, 523 U.S. 833, 848-49 (1998) ( We have accordingly 22 rejected the lowest common denominator of customary tort 20 Common negligence is Cnty. of Sacramento 1 liability as any mark of sufficiently shocking conduct, and 2 have held that the Constitution does not guarantee due care 3 on the part of state officials; liability for negligently 4 inflicted harm is categorically beneath the threshold of 5 constitutional due process. ). 6 Kolesar s report to CFS was exaggerated and misleading, but 7 even in the light most favorable to them, nothing in the 8 report was materially false: 9 entries, misbehaved in school, and expressed suicidal The parents allege that Raphael wrote violent journal 10 thoughts, albeit in a hypothetical, creative, imagined way. 11 Furthermore, Kolesar s actions were expressly aimed at 12 protecting Raphael, and Kolesar had a legal obligation to 13 report suspected neglect. 14 acted with the type of malice needed to shock the 15 conscience. 16 There is no evidence that Kolesar We therefore affirm the district court s grant of 17 summary judgment in favor of Kolesar and Warwick on this 18 claim. 19 immunity. We need not reach the question of qualified 20 21 1 2 3 CONCLUSION For the reasons stated above, the judgment of the district court is AFFIRMED. 22