                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-19-2003

S.G. v. Sayreville Bd Ed
Precedential or Non-Precedential: Precedential

Docket No. 02-2384




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                       PRECEDENTIAL

                                Filed June 19, 2003

    UNITED STATES COURT OF APPEALS
         FOR THE THIRD CIRCUIT


                 No. 02-2384


        S.G., as Guardian ad Litem of
        A.G. a minor and individually,
                                 Appellant
                      v.
   SAYREVILLE BOARD OF EDUCATION;
 GEORGIA B. BAUMANN; WILLIAM L. BAUER

On Appeal from the United States District Court
          for the District of New Jersey
              (D.C. No. 00-cv-02727)
   District Judge: Hon. Katharine S. Hayden

           Argued February 3, 2003
Before: SLOVITER, RENDELL and STAPLETON,
               Circuit Judges

            (Filed: June 19, 2003)

               F. Michael Daily, Jr. (Argued)
               Quinlan, Dunne & Daily
               Merchantville, N.J. 08109-2619
                 Attorney for Appellant
               Sean X. Kelly (Argued)
               Marks, O’Neill, O’Brien & Courtney
               Pennsauken, N.J. 08110
                 Attorney for Appellees
                             2



                OPINION OF THE COURT

SLOVITER, Circuit Judge.
   In this civil rights action brought pursuant to 42 U.S.C.
§ 1983, S.G., father of A.G., a kindergarten student in the
Sayreville, New Jersey Public School System, claims that
the Sayreville Board of Education, the Superintendent of
Schools and the principal of the school that A.G. attended
(jointly referred to as “School Defendants”) violated A.G.’s
constitutional rights to freedom of speech, procedural due
process and equal protection by suspending him from
school for uttering the statement “I’m going to shoot you” to
his friends while they were playing at recess in the school
yard. The District Court granted summary judgment in
favor of the School Defendants. This appeal followed.

                             I.

                      BACKGROUND
  A.G. was a five-year old, kindergarten student at the
Wilson Elementary School in Sayreville, New Jersey, at the
time in question. Three incidents at the school in early
March 2000 provide the context of the events that are the
basis of this suit. On March 4, 2000, a student told other
children that he intended to shoot a teacher. In an
unrelated incident the same day, another student told a
classmate that he would put a gun in the classmate’s
mouth and kill him. On March 10, 2000, a student told
another that his mother allowed him to bring guns to
school. The students making these statements were each
suspended for three days. The students involved in the first
two incidents also met with the school psychologist, and
the school recommended outside psychological counseling
to their parents. The second incident was also reported to
the police.
   On March 10, 2000, the school principal, Georgia
Baumann, visited each class and discussed the seriousness
of making statements threatening harm with a weapon. She
                                  3


sent a letter home with each student asking parents to
discuss the issue with their children and stating that
immediate disciplinary action would be taken when
students make statements referring to violence or weapons.
A.G. was absent on March 10 and his parents did not
receive Baumann’s letter. On March 15, 2000, A.G. and
three other students made statements referring to weapons
and shooting each other at recess. According to A.G., he
was playing a game of cops and robbers with his friends
and said, “I’m going to shoot you.” App. at 157. Another
student told a teacher what A.G. and his friends were doing,1
and that teacher reported that some of the students were
upset. The teacher took the boys to Baumann’s office.
   Baumann asked A.G. and his friends what had occurred
and they told her that they were “playing guns.” App. at 64.
The parties dispute the extent to which the boys’ actions
affected other children. Baumann testified that she spoke
to children who were in the vicinity and they told her that
they were frightened and upset. A.G. testified that the only
child who was watching them was the one who told the
teacher what they were doing. Baumann suspended the
students for three days after notifying then-Assistant
Superintendent Dennis Fyffe and Superintendent William
Bauer. When Baumann was unable to reach A.G.’s parents
by telephone, she contacted his grandmother about the
incident and sent a letter home with A.G. informing his
parents about the suspension.
   A.G.’s father, S.G., contacted Superintendent Bauer who
told S.G. that “policy was policy” and that he had to stand
behind Baumann’s decision. App. at 138. A.G. served the
three day suspension, returned to school and finished the
school year. A.G.’s suspension is not part of his permanent
scholastic record, but Baumann has a record of it in a
personal file she retains which she would be free to share
with the principal of another school, but she has never
been asked to do so.
  S.G. filed this action on behalf of A.G. against the
Sayreville Board of Education, Baumann and Bauer

1. Appellant’s characterization of the student as a “tattle tale,”
Appellant’s Br. at 22, does nothing to further the necessary analysis.
                                   4


pursuant to 42 U.S.C. § 1983 claiming that A.G. was denied
his constitutional rights to free speech, procedural due
process and equal protection of law. After discovery, the
School Defendants moved for summary judgment, and the
individual defendants Baumann and Bauer asserted that
they are entitled to qualified immunity.
  The District Court held a hearing on the motion, and
then granted the summary judgment motion. The Court
examined the school’s conduct in the context of its
announced intention to take seriously speech that refers to
guns and violence, and in light of the school’s heightened
concerns about the problem of guns and violence on school
premises. The Court held that Baumann’s response “was
reasonable and within in [sic] her authority and did not
implicate any fundamental constitutional rights that A.G.
could assert in that context.” App. at 272. The District
Court further concluded as a “fall back” that Baumann is
entitled to qualified immunity because she did not violate
A.G.’s clearly established constitutional rights. App. at 275.
S.G. appeals.

                                   II.

       JURISDICTION AND STANDARD OF REVIEW
   The District Court had jurisdiction pursuant to 28 U.S.C.
§ 1331. This court has jurisdiction pursuant to 28 U.S.C.
§ 1291. We review an order granting summary judgment de
novo, applying the same standard used by the District
Court. Nicini v. Morra, 212 F.3d 798, 805 (3d Cir. 2000) (en
banc).2

2. Under Fed. R. Civ. P. 56(c), summary judgment is warranted if the
pleadings, depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled to
judgment as a matter of law.
                              5


                             III.

                        DISCUSSION
   Section 1983 imposes civil liability upon any person who,
under color of state law, deprives another person of any
rights, privileges, or immunities secured by the
Constitution or laws of the United States. 42 U.S.C. § 1983.
When an individual defendant in a § 1983 action claims
s/he is entitled to qualified immunity, “our first task is to
assess whether the plaintiff ’s allegations are sufficient to
establish the violation of a constitutional or statutory right
at all.” Gruenke v. Seip, 225 F.3d 290, 298 (3d Cir. 2000).
If the plaintiff ’s allegations meet this threshold, “we must
next determine whether, as a legal matter, the right that
the defendant’s conduct allegedly violates was a clearly
established one, about which a reasonable person would
have known.” Id. If so, then the defendant is not entitled to
qualified immunity. Id. If the plaintiff ’s allegations fail to
satisfy either inquiry, then the defendant is entitled to
summary judgment. Id. Until the question of qualified
immunity is addressed, a court cannot reach the
underlying merits of the case. Id. at 298-99.
   In Saucier v. Katz, 533 U.S. 194 (2001), the Supreme
Court explained why the first inquiry must be whether a
constitutional right would have been violated on the facts
alleged:
    In the course of determining whether a constitutional
    right was violated on the premises alleged, a court
    might find it necessary to set forth principles which
    will become the basis for a holding that a right is
    clearly established. This is the process for the law’s
    elaboration from case to case, and it is one reason for
    our insisting upon turning to the existence or
    nonexistence of a constitutional right as the first
    inquiry. The law might be deprived of this explanation
    were a court simply to skip ahead to the question
    whether the law clearly established that the
    [defendant’s]    conduct    was   unlawful     in  the
    circumstances of the case.
                              6


Id. at 201. The Supreme Court had previously stated that
this order of procedure is designed to “ ‘spare a defendant
not only unwarranted liability, but unwarranted demands
customarily imposed upon those defending a long drawn
out lawsuit.’ ” Wilson v. Layne, 526 U.S. 603, 609 (1999)
(quoting Siegert v. Gilley, 500 U.S. 226, 232 (1991)). We
therefore proceed first to consider whether S.G. has alleged
facts sufficient to establish the violation of a constitutional
right. If so, we will then consider whether the right allegedly
violated was “clearly established.”
  A.   First Amendment
  S.G. argues primarily that A.G. was deprived of his First
Amendment right to freedom of speech when he was
suspended from school for saying “I’m going to shoot you”
to a friend at recess. He contends that the boys were
playing a game, that they did not threaten physical harm
and that they did not substantially disrupt school
operations or interfere with the rights of others.
   It has been established that students do not “shed their
constitutional rights to freedom of speech or expression at
the schoolhouse gate.” Tinker v. Des Moines Indep. Cmty.
Sch. Dist., 393 U.S. 503, 506 (1969). This does not mean
that students are free of any regulation of their speech. The
Supreme Court “has repeatedly emphasized the need for
affirming the comprehensive authority of the States and of
school officials, consistent with fundamental constitutional
safeguards, to prescribe and control conduct in the
schools.” Id. at 507.
  In Tinker, the Court was presented with the First
Amendment claim of two high school students and one
junior high student who were suspended for wearing black
armbands to school to show their objections to the Vietnam
war. In holding that school officials violated the students’
First Amendment rights, the Court emphasized that the
school officials banned and sought to punish the students
for a silent, passive expression of opinion, unaccompanied
by any disorder or disturbance on their part. Id. at 508.
The Court made clear that school officials may not prohibit
a particular expression of opinion because of their “mere
desire to avoid the discomfort and unpleasantness that
                              7


always accompany an unpopular viewpoint.” Id. at 509.
Students cannot be punished for merely expressing their
personal views on the school premises unless “school
authorities ha[ve] reason to anticipate that [such expression
will] substantially interfere with the work of the school or
impinge upon the rights of other students.” Id.
   On the other hand, First Amendment protection for
students’ speech is not unlimited, as made clear in Bethel
Sch. Dist. No. 403 v. Fraser, 478 U.S. 675 (1986). In that
case, a high school student delivered a speech nominating
a fellow student for a student elective office, and referred to
his candidate in terms of an elaborate, graphic and explicit
sexual metaphor. The school suspended the student for
violating the high school’s rule prohibiting the use of
obscene language in the school, and the student, in a suit
filed by his father as guardian ad litem, claimed the
suspension violated his First Amendment right to freedom
of speech.
   In holding that the school district acted within its
permissible authority in imposing sanctions upon the
student, the Court enunciated a principle equally applicable
to the case before us when it stated, “[t]he undoubted
freedom to advocate unpopular and controversial views in
schools and classrooms must be balanced against the
society’s countervailing interest in teaching students the
boundaries of socially appropriate behavior.” Id. at 681. It
then stated, “it is a highly appropriate function of public
school education to prohibit the use of vulgar and offensive
terms in public discourse,” and that the “determination of
what manner of speech in the classroom or in school
assembly is inappropriate properly rests with the school
board.” Id. at 683. It pointed out that, “[u]nlike the
sanctions imposed on the students wearing armbands in
Tinker, the penalties imposed in [Fraser] were unrelated to
any political viewpoint.” Id. at 685.
   Moreover, the “First Amendment guarantees wide
freedom in matters of adult public discourse,” id. at 682
(emphasis added), but “[i]t does not follow . . . that simply
because the use of an offensive form of expression may not
be prohibited to adults making what the speaker considers
a political point, the same latitude must be permitted to
                             8


children in a public school.” Id. The Court recognized that
the constitutional rights of students in public school are
not automatically coextensive with the rights of adults in
other settings. Id.
  The Fraser decision was relied upon by the majority in
Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260 (1988),
where the Court rejected a First Amendment challenge to
the high school principal’s deletion of two pages in the
school newspaper. The principal objected to stories that
described three students’ experiences with pregnancy
because he was concerned that the students might be
identifiable and that the subject matter was inappropriate
for younger students at the school, and he objected to a
story that discussed the impact of divorce on students at
the school because he believed that the students’ parents
should have been given the opportunity to respond or
consent to the publication.
   In concluding, over a vigorous dissent, that school
officials had not violated the students’ First Amendment
rights, the Court, citing Fraser, recognized that a “school
need not tolerate student speech that is inconsistent with
its ‘basic educational mission,’ [ ]even though the
government could not censor similar speech outside the
school.” Id. at 266. Because the school officials had not
intended to create a public forum, they were entitled to
regulate the contents of the newspaper in any reasonable
manner. Id. at 270.
  Guided by these Supreme Court decisions focusing on
the speech rights of students in a school setting, we
conclude that the facts alleged by S.G., even if true, do not
establish a violation of A.G.’s First Amendment rights. The
Supreme Court has recognized that a balance must be
struck between the student’s rights and the school’s role in
fostering what the Court in Fraser termed “socially
appropriate behavior.” Fraser, 478 U.S. at 681. Here, where
the school officials determined that threats of violence and
simulated firearm use were unacceptable, even on the
playground, the balance tilts in favor of the school’s
discretionary decision-making. S.G. attempts to ratchet up
the school’s rule forbidding speech referring to weapons or
violence to the level of “core” political speech. He then
                             9


suggests that the policy at issue is overbroad and offends
the First Amendment. This argument is tenuous. There is
nothing in the record that even suggests that A.G. and his
schoolmates playing cops and robbers were making a
political statement about the value of guns in schools.
   S.G. argues that under this court’s decision in Saxe v.
State College Area Sch. Dist., 240 F.3d 200 (3d Cir. 2001),
student speech can be regulated only if it would
substantially disrupt school operations or interfere with the
rights of others. In Saxe, the students challenged the
constitutionality of the school district’s anti-harassment
policy which provided that harassment can include any
unwelcome verbal, written or physical conduct which
offends, denigrates or belittles an individual on various
grounds, including, inter alia, one’s sexual orientation. The
students believed that homosexuality is a sin and feared
that if they spoke out, they would be punished under the
anti-harassment policy.
  We agreed with the students that the policy offended the
First Amendment. We explained that content- or viewpoint-
based restrictions are subject to the most exacting First
Amendment scrutiny, and the government may not prohibit
the expression of an idea because it is offensive or
disagreeable. Id. at 207-09. We held that the school
district’s anti-harassment policy went beyond the
permissible restrictions on student speech under Tinker
and its progeny, and was unconstitutionally overbroad. Id.
at 216-17. See also Sypniewski v. Warren Hills Reg’l Bd. of
Educ., 307 F.3d 243 (3d Cir. 2002) (district court should
have granted an injunction against enforcement of a
school’s racial harassment policy to ban a t-shirt targeted
for its expressive content). Unlike Tinker or Saxe, this case
does not involve the regulation of expressive speech and
thus neither of those cases applies here.
  Moreover, none of the cases discussed above involved a
school’s restriction of a kindergartner’s speech. Indeed, one
Court of Appeals has stated that it is unlikely that Tinker
and its progeny apply to elementary school students. Muller
by Muller v. Jefferson Lighthouse Sch., 98 F.3d 1530, 1539
(7th Cir. 1996).
                              10


  In a recent decision, this court has noted that:
    any analysis of the students’ rights to expression on
    the one hand, and of schools’ need to control behavior
    and foster an environment conducive to learning on the
    other, must necessarily take into account the age and
    maturity of the student.
Walker-Serrano v. Leonard, 325 F.3d 412, 416 (3d Cir.
2003). Various cases have held that “[a]ge is a critical factor
in student speech cases.” Muller, 98 F.3d at 1538; see also
Baxter by Baxter v. Vigo County Sch. Corp., 26 F.3d 728,
738 (7th Cir. 1994) (“age is a relevant factor in assessing
the extent of a student’s free speech rights in school”). As
we stated in Walker-Serrano, “[t]he significance of age in
this inquiry has called into question the appropriateness of
employing     the   Tinker    framework    to    assess     the
constitutionality of restrictions on the expression of
elementary school students.” Id., 325 F.3d at 416. See also
Slotterback v. Interboro Sch. Dist., 766 F. Supp. 280, 296
(E.D. Pa. 1991) (noting the “impressionability” of children at
elementary school level).
   We need not decide in this case whether or if, under what
circumstances, a school may violate an elementary school
student’s right to freedom of speech. For our purposes, it is
enough to recognize that a school’s authority to control
student speech in an elementary school setting is
undoubtedly greater than in a high school setting. See
Fraser, 478 U.S. at 683 (discussing the damaging nature of
a student’s speech on its less mature audience). As this
court stated recently, “[t]here can be little doubt that
speech appropriate for eighteen-year-old high school
students is not necessarily acceptable for seven-year-old
grammar school students.” Walker-Serrano, 325 F.2d at
416-17.
   Returning to the issue of defendants’ entitlement to
qualified immunity, we hold that the school’s prohibition of
speech threatening violence and the use of firearms was a
legitimate decision related to reasonable pedagogical
concerns and therefore did not violate A.G.’s First
Amendment rights. In any event, defendants are entitled to
qualified immunity because there was no clearly
                             11


established law to the contrary. Like the vulgar language in
Fraser, school officials could reasonably believe they were
acting within the scope of their permissible authority in
deciding that the use of threatening language at school
undermines the school’s basic educational mission,
particularly because the incident in Sayreville was only two
weeks after the widely reported fatal shooting of a six-year
old child by another six-year old child at an elementary
school in Flint, Michigan. Although S.G. argues that the
boys were only playing a game, the determination of what
manner of speech is inappropriate properly rests with the
school officials. We therefore hold that the School officials
did not act contrary to any established law.
  B.   Procedural Due Process
   S.G. also argues that A.G.’s procedural due process
rights were violated because neither S.G. nor his wife was
present when Baumann met with A.G. before his
suspension. S.G. contends that A.G. did not understand
the process, that he or his wife could have explained that
A.G. was not in school when Baumann discussed the issue
of weapons and violence with the students, and that they
did not receive her letter to parents.
  The requirements of procedural due process for
suspension of students were set forth in Goss v. Lopez, 419
U.S. 565 (1975). In that case, the Supreme Court held that
high school students were denied due process of law when
they were suspended for misconduct without a hearing. The
Court stated that a student has a “legitimate entitlement to
a public education as a property interest which is protected
by the Due Process Clause and which may not be taken
away for misconduct without adherence to the minimum
procedures required by that Clause.” Id. at 574. In addition,
because the suspensions could damage the students’
standing with other students and their teachers, and
interfere with later opportunities for higher education and
employment, the Court believed that the students’ liberty
interest in their reputation was also implicated. Id. at 574-
75.
  The Supreme Court concluded that a student facing a
suspension of ten days or less must be given oral or written
                             12


notice of the charges against him or her and a student who
denies the charges must be given an explanation of the
evidence the authorities have and an opportunity to present
his or her side of the story. Id. at 581. There need be no
delay between the time the notice is given and the time of
the hearing. Id. at 582. In the majority of cases, “the
disciplinarian may informally discuss the alleged
misconduct with the student minutes after it has occurred.”
Id.
  The record here reflects that Baumann met with A.G. and
his friends before imposing his suspension. Contrary to
S.G.’s argument, the record does not reflect that A.G. did
not understand the meeting with Baumann. Baumann had
sought to inform A.G.’s parents, but her inability to reach
them does not signify that A.G. was deprived of procedural
due process. She asked each of the boys to explain to her
what he had said and done. The boys admitted that they
were “playing guns,” App. at 64, and that they had made
statements regarding shooting a gun. That discussion
fulfilled the requirements of due process which can be
satisfied in a case like this by informal procedure.
  C.   Equal Protection
   S.G.’s third constitutional claim is that A.G.’s suspension
violated his right to equal protection because it was
imposed solely because of school policy and lacked a
rational basis. Assuming arguendo that there was a policy
established by the principal that the school had a zero
tolerance policy for threats of violence and students who
made threats or statements referring to weapons would be
punished and receive suspensions, here for three days,
there was no clearly established law holding that such a
policy was irrational. Nor do we see any equal protection
violation.
  In Palmer v. Merluzzi, 868 F.2d 90 (3d Cir. 1989), this
court considered whether a suspension from participation
in interscholastic sports because of drug use violated a
student’s right to equal protection. Applying a rational
relationship test, we concluded that the school’s
disciplinary action was rationally related to a valid state
interest in preserving a drug-free environment in the
                                    13


schools and in discouraging drug use by its students. Id. at
96. Here also, the school’s disciplinary action of short three
day suspensions for threats of violence and similar gun
play was rationally related to the valid state interest in
controlling student conduct in light of the shootings at
other schools nationwide and the recent incidents at A.G.’s
school involving threats of violence. It was not
unreasonable for the principal to seek to avoid conduct
which has the capacity to interfere with the orderly conduct
of the school and other children’s rights to be secure.
  S.G.’s reliance on Seal v. Morgan, 229 F.3d 567 (6th Cir.
2000), is misplaced. In that case, it was for the trier of fact
to decide whether the expulsion of a high school student
who unknowingly possessed a weapon was rationally
related to a legitimate state interest, Id. at 579-80, or, if
not, whether the school violated the student’s substantive
due process rights. Unlike the situation in Seal, A.G. had
knowledge of the underlying conduct for which he was
sanctioned.
  Because S.G.’s allegations are insufficient to establish a
violation of A.G.’s constitutional rights to freedom of
speech, procedural due process or equal protection,3 and
because there is no clearly established law to the contrary,
we will affirm the District Court’s grant of qualified
immunity.4

3. Having concluded that S.G. has not alleged a constitutional claim
against the individual Appellees, we need not address his claims against
the Board of Education. These claims are not based upon any action by
the Board but rather upon its acquiescence in an alleged policy
promulgated and enforced by Bauer and Baumann that violated A.G.’s
constitutional rights.
4. S.G. seeks injunctive relief to prevent the principal from retaining any
informal record of A.G.’s suspension in her personal notes. Because
such an informal record does not violate any of A.G.’s constitutional
rights, he is not entitled to an order expunging it.
                            14


                            IV.

                     CONCLUSION
  For the reasons discussed above, we will affirm the
judgment of the District Court.

A True Copy:
        Teste:
                 Clerk of the United States Court of Appeals
                             for the Third Circuit
