Family Life

03.23.12 | Bob Price

But the 2nd U.S. Circuit Court of Appeals in Manhattan was not unanimous in rejecting the First Amendment claims of his parents. Judge Rosemary Pooler said the drawing by the fifth grader at a Montgomery, N.Y., elementary school in Orange County was obviously the work of a class clown.

"It was a crude joke," Pooler wrote. "But the First Amendment should make us hesitate before silencing students who experiment with hyperbole for comic effect, however unknowing and unskillful that experimentation may be."

The boy, identified in court papers only as "B.C.," was suspended for six days in September 2007 after he showed his drawing to classmates. Other students laughed, though one complained to his teacher.

Writing for the majority, two 2nd Circuit judges agreed that the boy deserved punishment for his response to an assignment to write about himself on a picture of an astronaut including a "wish." The teacher at one point told students they "can write about missiles," the court noted. It said it was in the "wish" spot that B.C. wrote: "Blow up the school with the teachers in it."

The teacher said she sent B.C. to the principal's office after a girl who seemed "very worried" told her about the drawing.

The 2nd Circuit said the discipline was appropriate particularly because the boy had a history of drawings and writings embracing violence.

"Whether B.C. intended his `wish' as a joke or never intended to carry out the threat is irrelevant," the opinion said. "Nor does it matter that B.C. lacked the capacity to carry out the threat expressed in the drawing."

The 2nd Circuit said school administrators must maintain parental confidence in their ability to shield children from frightening behavior and to protect safety. It said a failure to respond forcefully to the "wish" might have eroded parental confidence in school safety, forced the hiring of security workers or led to an enrollment decline.

The judges noted they sit on the bench of at least the second federal appeals court to acknowledge the need to confront school violence "given the recent wave of school shootings that have tragically affected our nation."

In her dissent, Pooler said the case must be considered in the context of "our justified fears of yet another horrific school shooting."

She said the case that was dismissed by a lower court judge belonged before a jury, which would learn the boy was portraying a paintball game rather than playing out a violent fantasy. She said the jury also would learn that the girl who complained about him had a history of sparring with him over rules and "seems to have taken it upon herself to ensure that B.C. was punished each and every time he did something that was even arguably inappropriate."

"In short, a jury could conclude that she was prim, not petrified," Pooler wrote. "The First Amendment's protection of free speech cannot hinge entirely on the reaction of a listener to a person's speech. If that were the case, the First Amendment would only be as strong as the weakest, or at least the most thin-skinned, listener in a crowd," she added.

Adam I. Kleinberg, a lawyer for the Valley Central School District, said the ruling "reaffirms that school officials should be afforded great deference in their decision making."

He added: "School officials should not be required to wait until after an incident occurred. They can't predict the future. They can only do their best to keep everyone safe."

Stephen Bergstein, an attorney for the parents, said he probably won't appeal.

"He's 10. It was just a little drawing. Nobody cared. That's what kids do," Bergstein said, noting that the boy had a paintball court in his backyard. "There are times when you're going to make references to violence and it doesn't mean the school's going to go into lockdown."

The boy, now 15, is in high school and doing fine, he said.

Bergstein recalled the day the boy showed up for the deposition with attorneys.

"His feet didn't touch the ground. When he trotted out of the building you got the feeling he was going to walk around barefoot and go fishing," he said.