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Was It a First Amendment Violation for a New York School to Suspend a Fifth Grader Who Shared a Violent But Perhaps Joking Wish?

The Right to Bully?

by JULIE HILDEN

On March 22, a three-judge panel of the U.S. Court of Appeals for the Second Circuit handed down its decision in Cuff v. Valley Central School District.  The case raised the question whether an elementary school student’s First Amendment rights were violated when he was suspended for six days based on arguably threatening—but possibly simply joking—words that he had written during a classroom assignment and shown to other students.  The panel split 2-1, with the majority siding with the school.

The Drawing at Issue, and B.C.’s Prior Drawing and Story

The student was known in court only as B.C. (The use of initials to identify juvenile parties in federal court is standard.)  At the time the drawing was made, B.C. was a ten-year-old fifth grader.

The drawing itself was an innocuous one, provided by a teacher to be colored in, and depicting an astronaut.  But the text that B.C. added to the astronaut figure was seen by some at the school as far from innocuous: The teacher had encouraged students to write a “wish” and B.C. had written “Blow up the school with the teachers in it.”

B.C. testified that the teacher told the students that day that they could write about anything, even “missiles” if they so chose.  And a reference to missiles, if there indeed was one, might arguably have suggested to B.C. that even warlike wishes were acceptable.

Unfortunately, however, this was not B.C.’s first disturbing incident involving a drawing.  Previously, B.C. had created another drawing, depicting a student firing a gun.  On that drawing, B.C. wrote, “One day I shot 4 people each of them got fo[ur] bullits [sic] on them.”  B.C. claimed that, when he wrote this, he was depicting a game of paintball, but one has to wonder.

And on a third occasion, B.C. wrote a story for class about “a big wind [that] destroyed every school in America . . . [And] every body ran for there [sic] life and than [sic] all adults died and all the kids were alive.  Than [sic] all the kids died.”

Previously, B.C. had also been involved in numerous altercations—some of them physical—and other misbehavior at his school.  Some of these incidents had also led to trips to the principal’s office for B.C.

The wish that B.C. made in connection with the astronaut drawing drew the attention of the fellow students to whom he showed it.  Several laughed, but one—who B.C. testified had initially laughed—later left her desk to go and tell the teacher.  Moreover, at that point, the student seemed to the teacher to be quite frightened.

The teacher then asked B.C. if he meant what he had written, and she testified that he looked at her, the court noted, with a “blank and serious face.”

Later, in the principal’s office, B.C. said he hadn’t meant what he’d written.  However, the Superintendent, after being briefed on the incident and on the earlier misbehavior by B.C., imposed a six-day suspension.

The Panel Majority’s Holding

The two-judge panel majority applied the seminal school-speech test drawn from the Supreme Court’s opinion in Tinker v. Des Moines Indep. Cmty. Sch. Dist.  Specifically, the panel inquired into whether B.C.’s case had demonstrated “facts which might reasonably have led school authorities to forecast substantial disruption of or material interference with school activities.”

The panel majority also quoted a precedent from the Second Circuit itself, which described the Tinker inquiry as ascertaining “whether school officials might reasonably portend disruption from the student expression at issue.”  Moreover, the panel majority cited a string of precedents that seem to establish something close to a post-Columbine zero-tolerance policy for threats of school violence that are assessed under Tinker.

When a court engages in Tinker’s inquiry, the panel majority made clear, the student’s intentions don’t count. What matters, instead, are the reasonable predictions that school officials make regarding the disruption that the student’s expression may cause.  (The panel majority also accorded significant deference to the school officials’ judgment in its analysis.)

B.C.’s prior drawings and writings that depicted violence were on school officials’ minds when they contemplated his suspension, and officials also had spoken to the school psychologist, who was aware of B.C.’s prior drawings and past disciplinary issues.

Based on the evidence, the two-judge majority ruled against B.C.

One other possible, but unspoken factor in the appellate majority’s decision might be the fact that it was U.S. District Judge Jed Rakoff who initially ruled against B.C. and in favor of the school.  Judge Rakoff is reputed to be both very smart and very liberal. Thus, the members of the appellate majority might have had, in the back of their minds, the fact that even the liberal Judge Rakoff had ruled against B.C.

The Dissent

Judge Rosemary Pooler’s dissent took a very different approach than did the majority’s opinion:  Judge Pooler made it clear that she saw B.C.’s comment as trivial, whereas the majority took the comment very seriously indeed.  (It seems likely that the real nature of the comment lay somewhere in the middle, between these two extremes.)

Judge Pooler began her dissent by characterizing B.C.’s comment as a mere “stab at humor,” an “ill-advised joke.”  In her view, B.C.’s comment “barely had the potential to cause a stir at school, let alone a substantial disruption.” In addition, she predicted that had this case gone to a jury, the jury would have agreed that the comment was innocuous.

In support of her point, Judge Pooler notes that none of B.C.’s classmates seemed to have taken the comment seriously; even the girl who later became concerned initially laughed.  But clearly, that girl herself thought better of her first, knee-jerk response since she did, in the end, feel that her teacher ought to know about B.C.’s comment.

Judge Pooler makes a good point when she notes that the protection of free speech cannot depend on a listener’s veto; if a listener or reader misinterprets a comment, that is not the speaker’s or writer’s fault.

But here, B.C.’s prior writing and drawing provided context that could reasonably be used by a reader within the school administration to illuminate the meaning of B.C.’s most recent writing.  And that context suggests, to me, that Judge Pooler may have dismissed B.C.’s most recent writing too quickly.

Is the Tinker Standard Alone Sufficient to Protect Students in the Modern-Day School Context?

Finally, Judge Pooler contended that what the school was really worried about, in B.C.’s case, wasn’t that B.C.’s most recent writing would cause disruption at the school. It was, instead, that B.C.’s writing might foreshadow a possible school shooting, or other act of violence, to be perpetrated by him in the future.

Judge Pooler’s point, put another way, is that the Tinker standard isn’t truly fulfilled here. Tinker is about disruption that is immediately or almost immediately foreseeable, and that is sparked by student speech. It is not about long-term risks of violence, as real as they may be.

Moreover, it would be odd to categorize violence as just a subset of disruption in order to shoehorn future-violence cases into Tinker’s framework, when actual violence is typically so much more grave.

In addition, as Judge Pooler points out, Tinker requires that the speech at issue must itself forseeably lead to disruption. (For instance, a bully’s taunt to a future victim could qualify.)  It is not enough, then, that the speech at issue reveals the potential of a given student for committing violence at some unspecified time in the future.  To fall outside First Amendment protection, speech has to do more than just reveal a reality or shine light on a personality.

Perhaps, then, we need a new standard for modern schools that face not only the fear that their school day will be disrupted by students’ clashes, but also the fear that their students could actually be killed or seriously harmed by their fellow students.

With a child like B.C., who seems obsessed with the idea of violence against others, perhaps our legal test should focus on whether a public school is offering such a kid enough in the way of psychological counseling to ensure that his fascination with violence will not take a deadly turn.  (Kids who are bullies, too, should be required to attend extended counseling, which should also be offered to bullying victims if they so choose.)

Of course, counseling won’t be a panacea, but it could change some kids’ lives. In contrast, it’s not clear if a suspension—the punishment imposed on B.C.—will do any good at all.  Some parents may just side with their kids (as B.C.’s parents did in this lawsuit) and conclude the suspension was unjust.  And other parents may learn of the suspension and impose harsh punishments that only reiterate the lesson their child is already learning:  Might makes right.