Constitutional Law - First Amendment - Second Circuit Holds That Student's Removal from Class Is Not First Amendment Retaliation Where Motivation Is Protective

Harvard Law Review, February 2012 | Go to article overview

Constitutional Law - First Amendment - Second Circuit Holds That Student's Removal from Class Is Not First Amendment Retaliation Where Motivation Is Protective


CONSTITUTIONAL LAW--FIRST AMENDMENT--SECOND CIRCUIT HOLDS THAT STUDENT'S REMOVAL FROM CLASS IS NOT FIRST AMENDMENT RETALIATION WHERE MOTIVATION IS PROTECTIVE.--Cox v. Warwick Valley Central School District, 654 F.3d 267 (2d Cir. 2011).

The First Amendment protects citizens from state retaliation for exercising their freedom of speech, because allowing such reprisals would "threaten [] to inhibit exercise of the protected right." (1) Yet not all speech is protected by the First Amendment, (2) and not all official actions adverse to a speaker constitute retaliation. (3) These limitations are particularly relevant for students in public schools, who customarily enjoy diminished First Amendment protection for their speech. (4) Ordinarily, a speaker bringing suit for First Amendment retaliation must prove "(1) that the speech or conduct at issue was protected, (2) that the defendant took adverse action against the plaintiff, and (3) that there was a causal connection between the protected speech and the adverse action." (5) Recently, in Cox v. Warwick Valley Central School District, (6) the Second Circuit held that a student's temporary removal from school activities in response to a disturbing essay he had written did not violate the student's First Amendment rights because the school's motivation for the removal was "protective" rather than punitive, and thus the removal failed to constitute an adverse action. (7) The court declined to decide whether the student's speech was protected by the First Amendment because its holding rendered the question moot. (8) Although the court reached the correct result, it should have first determined whether the essay was protected speech and then applied--if necessary--the adverse action prong in the same way as it had in previous cases. By adopting a reformulation of the usual test, the court unnecessarily modified the adverse action requirement, effectively raising the bar for proving retaliation to impossible heights. Furthermore, the important policy considerations to which the court pointed could more appropriately have been addressed in determining the First Amendment status of the speech.

In March 2007, Raphael Cox turned in an essay called "Racing Time" for his English class; the essay described what he would do if he had twenty-four hours to live. (9) The essay contained descriptions of alcohol and drug abuse, insinuations of violence, and a plan to commit suicide at the end of the twenty-four hours by "taking cyanide and shooting himself in the head in front of his friends." (10) In part because Raphael had misbehaved frequently and seriously in the past, the Warwick Valley Middle School principal removed Raphael from class to discuss the essay and "sequestered Raphael in the in-school suspension room ... for the rest of the afternoon" while he determined whether Raphael was a threat to himself or others and whether he should be disciplined. (11) After resolving both questions in the negative, the principal sent Raphael home but reported the incident the next day to the state's Office of Children and Family Services (CFS) due to concerns regarding parental neglect. (12) A CFS representative insisted that Raphael receive a psychiatric evaluation, the results of which eventually led CFS to conclude that the principal's concerns were "unfounded." (13)

In November 2007, Raphael's parents filed suit in federal district court against the principal and the school under 42 U.S.C. [section] 1983, (14) alleging, inter alia, that the principal and the school had violated Raphael's First Amendment speech rights by removing him from class and by involving CFS. (15) Raphael's parents also alleged that the school had violated their substantive due process rights to custody "by making an exaggerated or false report to CFS." (16)

The district court granted summary judgment to Warwick Valley on both claims. First, despite finding "at least material factual dispute" regarding whether the school's responses had constituted adverse action, (17) the court held that Raphael had not suffered any First Amendment retaliation because his essay was not protected by the First Amendment. …

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