Defabio v. E. Hampton Union Free Sch. Dist. - 623 F.3d 71 (2d Cir. 2010)

Rule:

In order for a school to suppress student speech on the grounds of preventing material disruption in the school, administrators must have more than an undifferentiated fear or apprehension of disturbance and must be able to show that its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint. 

Facts:

On Friday, April 24, 2004, Andres Felipe Osorio-Diez, a Hispanic student at East Hampton High School, was killed in a motorcycle accident. The following Monday, April 26, 2004, was a day of mourning in the school. Remorse among Osorio-Diez's friends turned to outrage when a rumor spread through the school that Daniel DeFabio, a tenth grader at the school, had commented to a friend in reference to Osorio-Diez's ethnic background: "one down, forty thousand to go." Students were openly hostile toward Daniel throughout the day, some threatening to kill him and bomb his house. It escalated so much that a police officer and a school administrator had to escort Daniel out of the nurse’s office, where he was currently hiding. As Daniel departed, students yelled at him in Spanish. Farina informed Daniel's mother, Patricia DeFabio, that Daniel was being sent home for his own protection and that Daniel should stay home for a few days until the atmosphere in the school had calmed down. The following day Daniel's mother asked Principal Farina to read over the school's public address system a letter from Daniel declaring his innocence. She requested, in the alternative, that the school permit Daniel to read the statement during a school assembly or that the school distribute the statement to the students in written form. Principal Farina denied all of these requests, citing the risk that any statement could further aggravate tensions in the school. In the days following April 26, Daniel received a number of threatening phone calls at his house as well as a threatening message in Spanish on his cell phone. In a meeting with Daniel’s parents, Farina and a few other school officials advised that Daniel could not immediately return to school in light of concerns for his safety. Daniel's parents disagreed and argued strenuously that the best course of action would be to allow Daniel to return to school to "address the rumor." Farina denied their request citing the need to preserve order and calm in the school. Daniel wanted in some way to return to school, but was also "pretty scared." Daniel's parents acknowledged during this meeting that they felt intimidated in their home.

The next morning after the meeting, an attorney hired by Daniel's parents contacted the school to inquire when Daniel would be readmitted to school. That afternoon Daniel received a hand-delivered letter from Principal Farina informing him that he would be suspended for five days, that Daniel was entitled to an informal hearing and that he had twenty-four hours to inform Farina if he wanted a hearing. The letter also noted that, because of the seriousness of the infraction, a Superintendent's Meeting might be held, and that if so, Daniel would receive notice from the Superintendent's office. A week later a Superintendent's Meeting was held. Daniel attended the meeting, venturing out of his house for the first time since the day of the incident. Two students testified against Daniel. Superintendent Raymond Gualtieri found that Daniel had made the comment alleged and suspended Daniel for the remainder of the 2003-2004 school year. Daniel received home tutoring for that time period. Following the meeting, Principal Farina accompanied Daniel to a meeting with twelve student representatives of the Latin American community in East Hampton High School. At the meeting, Daniel told the students that he did not originate the offending statement but that he had merely repeated the comment to a friend, stating preliminarily that "you would not believe the terrible thing that I just heard someone say in the hallway." At this meeting with the twelve students, Daniel also distributed the written statement that he had earlier requested the school to read or otherwise distribute. Most of the students told Daniel that they did not believe him. Their conclusion was informed in part by Daniel's failure to return to school following the incident--they found his absence and silence consistent with guilt. Farina informed the students that he had not allowed Daniel back in school and had denied Daniel's request to distribute his statement. On May 18, 2004, Daniel appealed Superintendent Gualtieri's adverse decision to the Board of Education, which upheld the decision. Daniel further appealed to the New York Commissioner of Education. The Commissioner of Education annulled Daniel's suspension and overturned the Superintendent's finding. The incident was expunged from Daniel's record. The Commissioner found that the record contained insufficient evidence that Daniel had been the originator of the offending comment. However, over the summer of 2004 Daniel was continuously harassed to the point that Daniel moved to California.

In April 2007, Daniel and his mother filed a 42 U.S.C. § 1983 civil rights action against East Hampton Union Free School District (the "District"), and Principal Farina, Superintendent Gualtieri, and the members of the East Hampton Union Free School District Board of Education in their individual and official capacities (the "Individual Defendants"). The complaint alleged that the District and the Individual Defendants had violated Daniel's rights to freedom of speech and freedom of association under the First Amendment, and to due process and equal protection under the Fourteenth Amendment. They also asserted claims under New York state law. Following discovery, the District and the Individual Defendants (the "Defendants") moved for summary judgment. The district court granted the Defendants' motion.

Issue:

 Do the Individual Defendants have qualified immunity with respect to Daniel’s First Amendment rights?

Answer:

Yes.

Conclusion:

Daniel and his mom (“appellants”) assert that there was nothing on the face of Daniel's message which could "lead to a determination that its dissemination would risk a material disruption at the school," and that the district court erred in focusing on "the atmosphere at school, not the speech being prohibited." However, they misread Tinker. The Court's focus in Tinker was not on the contours of the specific message the petitioners sought to convey by wearing black arm bands -- the message itself was simple and self-evident: opposition to the war in Vietnam. The Court's focus was on the extent to which the speech would be accompanied by "disorder or disturbance on the part of the petitioners." In contradistinction to the facts presented in Tinker, the Supreme Court cited Blackwell v. Issaquena Country Board of Education where the Fifth Circuit upheld the enforcement of a similar ban because "the students wearing freedom buttons harassed students who did not wear them and created much disturbance." Appellants also cite Governor Wentworth Regional School District v. Hendrickson in support of their argument that the district court was required to undergo an in-depth review of the context of Daniel's speech. The court in Hendrickson confronted a school's prohibition on students wearing an anti-Nazi patch and struggled with the question of "how (and where) to draw the line between a reasonable (and legally sufficient) fear of disturbance, and one that is merely 'undifferentiated.'" Here, however, the appellate court does not face any difficulty in line drawing. There is no question that Daniel's mere presence in the school, with or without his speech, would likely result in violence or the threat of violence and would therefore "materially and substantially interfere with the requirements of appropriate discipline in the operation of the school." The record shows, inter alia, that police were assigned to protect the DeFabio home, Daniel's parents felt intimidated in their home, Daniel received death threats, and he admitted he was scared to return to school. The fact that hostility towards Daniel continued throughout the summer of 2004 also speaks to the danger that Daniel faced were he to return to school in the months following the incident.

In Doninger v. Niehoff, 527 F.3d 41 (2d Cir. 2008), the appellate court explained that "'[s]chool officials have an affirmative duty to not only ameliorate the harmful effects of disruptions, but to prevent them from happening in the first place'" and that "[t]he question is not whether there has been actual disruption, but whether school officials 'might reasonably portend disruption' from the student expression at issue." Here the school had already experienced "actual disruption," and in light of, inter alia, threats heard in school that students were planning to bomb Daniel's house, the Individual Defendants could also "reasonably portend disruption" were Daniel readmitted to East Hampton High School.  Under the circumstances, therefore, it was reasonable for the Individual Defendants "to forecast substantial disruption of or material interference with school activities," were Daniel permitted to return to school to speak with his classmates about his version of what transpired on April 26. Because "it was objectively reasonable [for the Individual Defendants] to believe that their acts did not violate [Daniel's] clearly established rights," they were entitled to qualified immunity with respect to Daniel's asserted right to return to school and communicate his explanation.