Everett W.Cox III v. Warwick Valley Central School District

Everett Cox III and Nan Ping Peng, parents of a middle

school student, appeal from a judgment of the United States

District Court for the Southern District of New York (Gwin,

J., sitting by designation) dismissing on summary judgment

their § 1983 complaint against Warwick Valley Central School

District and Principal John Kolesar. 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 BACKGROUND

12 John Kolesar is the Principal of Warwick Valley Middle

13 School ("Warwick”), which was attended by Raphael Cox, the

14 plaintiffs' son. During his time at Warwick, Raphael

15 exhibited a pattern of misbehavior: He threw objects at

16 classmates, interrupted class instruction, fought with other

17 students, and brought contraband to school (fireworks,

18 lighters, and alcohol). Kolesar suspended Raphael on

19 multiple occasions for these infractions. At a meeting with

20 Kolesar in late 2006, Raphael and his parents signed a

21 "behavioral contract” that placed Raphael on probation and

3

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: He made an

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. As

10 a result, Kolesar requested another meeting with the

11 parents.

12 In February 2007, the parents met with several Warwick

13 school administrators, including Kolesar and the school

14 psychologist. The administrators requested that Raphael

15 undergo a psychiatric evaluation. The parents resisted, but

16 agreed to have Raphael seen by a psychologist. After

17 Raphael met with the psychologist, the parents gave Kolesar

18 a copy of the evaluation.

19 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. It ended with Raphael taking cyanide and shooting

3 himself in the head in front of his friends at the end of

4 the 24 hours. Raphael submitted the essay to his teacher,

5 but never presented it to his class or shared it with his

6 fellow students.

7 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. Raphael explained that the

11 essay was fictional and that he did not intend harm to

12 himself or others. Kolesar then sequestered Raphael in the

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. Kolesar concluded that there

17 was no immediate threat and that discipline was not

18 appropriate. Raphael was sent home at the end of the day.

19 Before school the next morning, Kolesar met the school

20 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. After the meeting, Kolesar

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 Kolesar then called CFS and reported his concern that

9 the parents were neglecting Raphael. The CFS narrative on

10 Kolesar's call stated:

11 Narrative: 13 yr old Rafael has been repeatedly

12 writing in his journal violent homicidal and

13 suicidal imagery while in school. He has also

14 participated in acts of vandalism and brought

15 dangerous objects into school such as fireworks

16 and pieces of metal. Rafael recently expressed

17 suicidal thoughts and had a very descriptive plan

18 for doing it in that he would take his favorite

19 weapon, a ruger place it in his mouth with a

20 cyanide pill and shoot himself and everyone would

21 party for a week. The school recommended to the

22 parents that they seek a psychiatric evaluation

23 for their son but they have refused to do so. The

24 parents are minimizing the child's thoughts and

25 behaviors and state that this is just fiction and

26 all a misunderstanding. It is believed the child

27 is a danger to himself and other[s] at this point.

28 The parents are failing to provide a minimal

29 degree of care to their son.

30 That afternoon, a CFS worker told the parents to meet

31 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. The parents complied, and Raphael

4 was evaluated that evening.

5 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.” No further

8 state action was taken.

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. The district court granted summary judgment

16 to Kolesar and Warwick on both claims. The parents now

17 appeal.

18

19 DISCUSSION

20 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. Id. Summary judgment is appropriate

4 when the evidence is "so one-sided that one party must

5 prevail as a matter of law.” Kulak v. City of New York, 88

6 F.3d 63, 70 (2d Cir. 1996) (internal quotation marks

7 omitted).

8 To state a § 1983 claim, a plaintiff must establish

9 that the defendant deprived him of a federal or

10 constitutional right while acting under the color of state

11 law. Haywood v. Drown, 129 S. Ct. 2108, 2111 (2009).

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. The sole question on appeal is whether

15 these actions deprived Raphael or his parents of any federal

16 or constitutional right. The parents argue that Kolesar's

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. We conclude that Kolesar did not

22 violate the rights of the child or of the parents.

8

1 I

2 To state a First Amendment retaliation claim, a

3 plaintiff must establish that: (1) his speech or conduct

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. Scott v. Coughlin, 344 F.3d 282, 287 (2d Cir.

8 2003); see also Kuck v. Danaher, 600 F.3d 159, 168 (2d Cir.

9 2010).

10 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. Kolesar concedes that Raphael's Racing Time 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 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). We

5 affirm for different reasons.

6

7 A

8 "[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.” Morse v. Frederick, 551 U.S.

13 393, 396-97 (2007) (internal quotation marks omitted). As a

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.” Tinker v. Des

18 Moines Indep. Cmty. School Dist., 393 U.S. 503, 509 (1969)

19 (internal quotation marks omitted).

20 There are exceptions. 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.” Hazelwood School Dist. v.

5 Kuhlmeier, 484 U.S. 260, 271-73 (1988). Moreover, school

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

10 school or a school-related event. Bethel School Dist. No.

11 403 v. Fraser, 478 U.S. 675, 681 (1986); see also Morse, 551

12 U.S. at 404-06.

13 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 B

18 First Amendment student speech cases ordinarily involve

19 explicit censorship or avowedly disciplinary action by

20 school administrators. See e.g., Morse, 551 U.S. at 396

21 (student suspended for displaying drug-promoting banner at

22 school activity); Fraser, 478 U.S. at 678 (student suspended

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). There is therefore no clear definition of

10 "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.” Zelnick

15 v. Fashion Inst. of Tech., 464 F.3d 217, 225 (2d Cir. 2006)

16 (internal quotation marks omitted). Under this "objective”

17 standard, an adverse action must be more than "de minimis”

18 to support a First Amendment retaliation claim. Id. at 226.

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.” Tinker, 393 U.S. at 506.

12

1 Teachers and school administrators have multiple

2 responsibilities: teaching, maintaining order, and

3 protecting troubled and neglected students. Cf. N.Y. Soc.

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). They are

7 part disciplinarian, and part protector. Id.

8 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. See

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

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. Making such distinctions often requires an

7 investigation, and the investigation may result in

8 discipline, but the investigation itself is not

9 disciplinary--it is precautionary and protective. This is

10 so even when a student is separated, interviewed, or

11 temporarily sequestered to defuse a potentially volatile or

12 dangerous situation. See Kolesar Dep. at 45:6-9 ("Students

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.”). As in this

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. Such acts deserve

21 "unusual deference” from the judiciary. See Kia P. v.

22 McIntyre, 235 F.3d 749, 758-59 (2d Cir. 2000) (recognizing

14

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). Without more, the

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 Although a student and his parents might perceive such

13 removal as "disciplinary” or "retaliatory,” its objective

14 purpose is protective. It affords the administrator time to

15 make an inquiry, to figure out if there is danger, and to

16 determine the proper response: discipline, a benign

17 intervention, or something else. A school cannot function

18 without affording teachers and administrator fair latitude

19 to make these inquiries.

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. Kolesar

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 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. Any other

14 conclusion would place school administrators in an

15 impossible bind. Abuse, neglect, and impairment are often

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. If such reports--

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

16

1 obliged to choose "between difficult alternatives in the

2 context of suspected child abuse. If they err in

3 interrupting parental custody, they may be accused of

4 infringing the parents' constitutional rights. If they err

5 in [not doing so], they risk injury to the child and may be

6 accused of infringing the child's rights.”). Their only

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. 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. We need not reach the question whether

20 Kolesar would be entitled to qualified immunity.

21

17

1 II

2 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.” M.L.B. v. S.L.J., 519 U.S. 102, 116 (1996)

8 (internal quotation marks omitted). The interest of natural

9 parents "in the care, custody, and management of their

10 child” is a "fundamental liberty interest protected by the

11 Fourteenth Amendment.” Santosky v. Kramer, 455 U.S. 745,

12 753 (1982). "[F]amily members have, in general terms, a

13 substantive right under the Due Process Clause to remain

14 together without the coercive interference of the awesome

15 power of the state.” Anthony v. City of New York, 339 F.3d

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.” Kaluczky v. City of White Plains, 57

21 F.3d 202, 211 (2d Cir. 1995).

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. Nicholson v.

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. Such

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

1 conscience-shocking. Nicholson, 344 F.3d at 172 (brackets

2 and internal quotation marks in original omitted).

3 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.” The parents maintained custody

8 over Raphael during his entire (concededly coerced)

9 psychiatric evaluation. 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.” Common negligence is

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. Cnty. of Sacramento

21 v. Lewis, 523 U.S. 833, 848-49 (1998) ("We have accordingly

22 rejected the lowest common denominator of customary tort

20

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.”). The parents allege that

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: Raphael wrote violent journal

9 entries, misbehaved in school, and expressed suicidal

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. There is no evidence that Kolesar

14 acted with the type of malice needed to shock the

15 conscience.

16 We therefore affirm the district court's grant of

17 summary judgment in favor of Kolesar and Warwick on this

18 claim. We need not reach the question of qualified

19 immunity.



* * *



See: http://www.ca2.uscourts.gov/decisions/isysquery/0ce218ce-6611-495c-a614-d277c29fd100/2/doc/10-3633_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/0ce218ce-6611-495c-a614-d277c29fd100/2/hilite/

For the reasons stated above, the judgment of the

district court is AFFIRMED.