Bergstein & Ullrich prevail in student First Amendment appeal

Under the Supreme Court's precedents, students in public school have limited First Amendment rights. Political speech gets the broadest protection under Tinker v. Des Moines School District, 393 U.S. 503 (1969), but these cases are harder to win when the student is accused to making violent statements. The legal standard is whether school authorities could have reasonably concluded the statement would materially and substantially disrupt the work and discipline of the school.

The case is Cuff v. Valley Central School District, decided on July 21. Represented by Bergstein & Ullrich, LLP, the plaintiff was a 10-year-old student who was asked as part of a class assignment to describe his personality. Students did this by writing out their favorite things in the cartoon of an astronaut. In describing his wish, the student wrote in crayon that he wanted to "blow up the school with the teachers in it." The district court dismissed the Complaint under Rule 12. The Court of Appeals reverses and sends the back for discovery.

Dismissal prior to discovery is premature, the Court of Appeals (Jacobs, Hall and Straub) concludes. Unlike the student speech cases which do not survive dismissal, "this case is before us at the pleading stage, and the particular facts pled do not compel" the conclusion that the student's speech would "foreseeably create a risk of substantial disruption" within the school environment. This is because "B.C. was, at the time of the infraction, a ten-year-old fifth-grade student; his apparent threat was made in crayon in direct response to a school assignment; he did not show the assignment to any classmates but rather handed it directly to his teacher; and B.C. had no other disciplinary history that would suggest a violent tendency. We cannot say, based on these facts, that it was reasonable as a matter of law to foresee a material and substantial disruption to the school environment, just as we cannot say that foreseeing such a risk was, as a matter of law, unreasonable."