Cox v. Warwick Valley Cent. School Dist.

10-3633-cv
Cox v. Warwick Valley Cent. School Dist.
UNITED STATES COURT OF APPEALS 1
FOR THE SECOND CIRCUIT 2
August Term, 2010 3
(Argued: May 31, 2011 Decided: August 17, 2011) 4
Docket No. 10-3633-cv 5
6
- - - - - - - - - - - - - - - - - - - -x 7
8
EVERETT W. COX III and NAN PING PENG, 9
individually and on behalf of their 10
minor son NAN PING RAPHAEL COX, 11
12
Plaintiffs-Appellants, 13
14
-v.- 10-3633-cv 15
16
WARWICK VALLEY CENTRAL SCHOOL DISTRICT, 17
JOHN KOLESAR individually and as 18
PRINCIPAL OF WARWICK MIDDLE SCHOOL, 19
20
Defendants-Appellees.*
21
22
- - - - - - - - - - - - - - - - - - - -x 23
24
Before: DENNIS JACOBS, Chief Judge, 25
DEBRA ANN LIVINGSTON, Circuit Judge, 26
JED S. RAKOFF, District Judge.**
27
28
* The Clerk of Court is respectfully instructed to
amend the official case caption as shown above.
** The Honorable Jed S. Rakoff of the United States
District Court for the Southern District of New York,
sitting by designation.

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Plaintiffs appeal from a judgment of the United States 1
District Court for the Southern District of New York (Gwin, 2
J., sitting by designation) granting summary judgment in 3
favor of a school district and principal on § 1983 claims 4
arising out of the treatment of their son, a middle school 5
student. Plaintiffs appeal the dismissal of a First 6
Amendment retaliation claim brought on behalf of their son, 7
and the dismissal of their own Fourteenth Amendment 8
substantive due process claim. Affirmed. 9
10
FOR APPELLANTS: Christopher D. Watkins (Michael H. 11
Sussman, on brief) 12
Sussman & Watkins 13
Goshen, NY 14
15
FOR APPELLEES: Patrick J. Fitzgerald, III 16
Scott P. Quesnel 17
Girvin & Ferlazzo, P.C. 18
Albany,NY 19
20
21
DENNIS JACOBS, Chief Judge: 22
23
Everett Cox III and Nan Ping Peng, parents of a middle 24
school student, appeal from a judgment of the United States 25
District Court for the Southern District of New York (Gwin, 26
J., sitting by designation) dismissing on summary judgment 27
their § 1983 complaint against Warwick Valley Central School 28
District and Principal John Kolesar. Cox and Peng appeal 29
2

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the dismissal of: [1] a First Amendment claim brought on 1
behalf of their son, alleging that Kolesar retaliated 2
against the boy for his school essay by temporarily placing 3
him in the school’s suspension room and by reporting the 4
parents to the state’s Department of Child and Family 5
Services for suspected abuse or neglect; and [2] the 6
parents’ Fourteenth Amendment substantive due process claim, 7
alleging that the same report to Child and Family Services 8
infringed their right to custody of their son. We affirm. 9
10
BACKGROUND 11
John Kolesar is the Principal of Warwick Valley Middle 12
School (“Warwick”), which was attended by Raphael Cox, the 13
plaintiffs’ son. During his time at Warwick, Raphael 14
exhibited a pattern of misbehavior: He threw objects at 15
classmates, interrupted class instruction, fought with other 16
students, and brought contraband to school (fireworks, 17
lighters, and alcohol). Kolesar suspended Raphael on 18
multiple occasions for these infractions. At a meeting with 19
Kolesar in late 2006, Raphael and his parents signed a 20
“behavioral contract” that placed Raphael on probation and 21
3

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specified that further misconduct would result in more 1
severe discipline, possibly including expulsion. 2
Raphael continued to misbehave, fighting with other 3
students and vandalizing school property. He also continued 4
to display violent tendencies and ideations: He made an 5
inappropriate comment in class about flying a plane into a 6
building, he was overheard by a teacher talking about 7
blowing up things, and he brought to school what 8
administrators perceived to be a makeshift metal weapon. As 9
a result, Kolesar requested another meeting with the 10
parents. 11
In February 2007, the parents met with several Warwick 12
school administrators, including Kolesar and the school 13
psychologist. The administrators requested that Raphael 14
undergo a psychiatric evaluation. The parents resisted, but 15
agreed to have Raphael seen by a psychologist. After 16
Raphael met with the psychologist, the parents gave Kolesar 17
a copy of the evaluation. 18
In March 2007, Raphael’s English teacher assigned 19
Raphael to write an essay on what he would do if he had only 20
24 hours to live. 3 Raphael’s essay, titled “Racing Time,” 21
3 There is some disagreement between the parties as to
what the essay assignment was, but at least one other
4

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described getting drunk, smoking, doing drugs, and breaking 1
the law. It ended with Raphael taking cyanide and shooting 2
himself in the head in front of his friends at the end of 3
the 24 hours. Raphael submitted the essay to his teacher, 4
but never presented it to his class or shared it with his 5
fellow students. 6
Concerned about its casual description of illegal 7
activity, violence, and suicide, Raphael’s teacher showed 8
Racing Time to Kolesar. Kolesar immediately took Raphael 9
out of class to discuss it. Raphael explained that the 10
essay was fictional and that he did not intend harm to 11
himself or others. Kolesar then sequestered Raphael in the 12
in-school suspension room (“ISS Room”) for the rest of the 13
afternoon while he considered whether Raphael posed an 14
imminent threat to himself or others, and whether he should 15
be disciplined for his essay. Kolesar concluded that there 16
was no immediate threat and that discipline was not 17
appropriate. Raphael was sent home at the end of the day. 18
Before school the next morning, Kolesar met the school 19
psychologist and guidance counselors to discuss Raphael’s 20
student appeared to interpret it the way Raphael did; so
taken in the light most favorable to the plaintiffs, we
assume that the students were assigned to write what they
would do if they had only 24 hours to live.
5

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emotional health and Kolesar’s perception that the parents 1
were insufficiently concerned about Raphael’s misbehavior 2
and emotional well-being. After the meeting, Kolesar 3
reported to the district Superintendent, who reminded 4
Kolesar of his legal obligation to report suspected abuse or 5
neglect to the state department of Child and Family Services 6
(“CFS”). 7
Kolesar then called CFS and reported his concern that 8
the parents were neglecting Raphael. The CFS narrative on 9
Kolesar’s call stated: 10
Narrative: 13 yr old Rafael has been repeatedly 11
writing in his journal violent homicidal and 12
suicidal imagery while in school. He has also 13
participated in acts of vandalism and brought 14
dangerous objects into school such as fireworks 15
and pieces of metal. Rafael recently expressed 16
suicidal thoughts and had a very descriptive plan 17
for doing it in that he would take his favorite 18
weapon, a ruger place it in his mouth with a 19
cyanide pill and shoot himself and everyone would 20
party for a week. The school recommended to the 21
parents that they seek a psychiatric evaluation 22
for their son but they have refused to do so. The 23
parents are minimizing the child’s thoughts and 24
behaviors and state that this is just fiction and 25
all a misunderstanding. It is believed the child 26
is a danger to himself and other[s] at this point. 27
The parents are failing to provide a minimal 28
degree of care to their son. 29
That afternoon, a CFS worker told the parents to meet 30
her at Warwick. When they arrived, the CFS worker insisted 31
6

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that they take Raphael to the hospital immediately to 1
undergo a psychiatric evaluation, and warned that otherwise 2
they could lose custody. The parents complied, and Raphael 3
was evaluated that evening. 4
After this incident, the parents home-schooled Raphael 5
for the rest of the year. The CFS investigation eventually 6
concluded Kolesar’s concern was “unfounded.” No further 7
state action was taken. 8
The parents filed a § 1983 suit against Kolesar and 9
Warwick in federal district court, alleging that Kolesar 10
violated Raphael’s First Amendment speech rights by 11
disciplining him for his essay and that Kolesar violated the 12
parents’ Fourteenth Amendment substantive due process right 13
to custody over Raphael by making an exaggerated or false 14
report to CFS. The district court granted summary judgment 15
to Kolesar and Warwick on both claims. The parents now 16
appeal. 17
18
DISCUSSION 19
We review de novo a district court’s grant of summary 20
judgment. Costello v. City of Burlington, 632 F.3d 41, 45 21
(2d Cir. 2011). When considering a motion for summary 22
7

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judgment, we view the facts in the light most favorable to 1
the non-moving party and draw all reasonable inferences in 2
that party’s favor. Id. Summary judgment is appropriate 3
when the evidence is “so one-sided that one party must 4
prevail as a matter of law.” Kulak v. City of New York, 88 5
F.3d 63, 70 (2d Cir. 1996) (internal quotation marks 6
omitted). 7
To state a § 1983 claim, a plaintiff must establish 8
that the defendant deprived him of a federal or 9
constitutional right while acting under the color of state 10
law. Haywood v. Drown, 129 S. Ct. 2108, 2111 (2009). 11
Kolesar concedes he was acting under the color of state law 12
when he placed Raphael in the ISS room and reported the 13
parents to CFS. The sole question on appeal is whether 14
these actions deprived Raphael or his parents of any federal 15
or constitutional right. The parents argue that Kolesar’s 16
actions constituted retaliation against Raphael for his 17
Racing Time essay in violation of his First Amendment 18
rights, and that Kolesar’s report to CFS violated their 19
Fourteenth Amendment substantive due process right to 20
custody of Raphael. We conclude that Kolesar did not 21
violate the rights of the child or of the parents. 22
8

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I 1
To state a First Amendment retaliation claim, a 2
plaintiff must establish that: (1) his speech or conduct 3
was protected by the First Amendment; (2) the defendant took 4
an adverse action against him; and (3) there was a causal 5
connection between this adverse action and the protected 6
speech. Scott v. Coughlin, 344 F.3d 282, 287 (2d Cir. 7
2003); see also Kuck v. Danaher, 600 F.3d 159, 168 (2d Cir. 8
2010). 9
The parents argue that Raphael’s Racing Time essay was 10
protected speech and that placing Raphael in the ISS Room 11
and calling CFS were adverse actions taken because of the 12
essay. Kolesar concedes that Raphael’s Racing Time essay 13
was a substantial cause of his decision to put Raphael in 14
the ISS Room for an afternoon and report the parents to CFS; 15
Kolesar disputes that these actions constituted adverse 16
actions, and that Raphael’s Racing Time essay was speech 17
protected by the First Amendment. 18
The district court concluded that there was “at least 19
material factual dispute as to whether Kolesar took an 20
adverse action against Raphael as a result of his speech,” 21
but that summary judgment for Kolesar was appropriate on the 22
9

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First Amendment claim because Raphael had no protected 1
speech right in his Racing Time essay as a matter of law. 2
Cox v. Warwick Valley Cent. School Dist., No. 7:07-CV-10682, 3
2010 WL 6501655, at *7-8 (S.D.N.Y. Aug. 16, 2010). We 4
affirm for different reasons. 5
6
A 7
“[S]tudents do not shed their constitutional rights to 8
freedom of speech or expression at the schoolhouse gate”; 9
however, “the constitutional rights of students in public 10
school are not automatically coextensive with the rights of 11
adults in other settings.” Morse v. Frederick, 551 U.S. 12
393, 396-97 (2007) (internal quotation marks omitted). As a 13
general rule, student speech in school is protected under 14
the First Amendment unless it would “materially and 15
substantially interfere with the requirements of appropriate 16
discipline in the operation of the school.” Tinker v. Des 17
Moines Indep. Cmty. School Dist., 393 U.S. 503, 509 (1969) 18
(internal quotation marks omitted). 19
There are exceptions. When students speak pursuant to 20
the school curriculum such that their speech may be 21
perceived as being endorsed or promoted by the school--e.g., 22
10

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school newspapers, theatrical productions--school 1
administrators may exercise editorial control over that 2
speech “so long as their actions are reasonably related to 3
legitimate pedagogical concerns.” Hazelwood School Dist. v. 4
Kuhlmeier, 484 U.S. 260, 271-73 (1988). Moreover, school 5
administrators may, as part of their responsibility to 6
“teach[] students the boundaries of socially appropriate 7
behavior,” punish student speech that is vulgar, lewd, or 8
threatening, at least where that speech occurs publicly at 9
school or a school-related event. Bethel School Dist. No. 10
403 v. Fraser, 478 U.S. 675, 681 (1986); see also Morse, 551 11
U.S. at 404-06. 12
However, we need not reach the question whether 13
Raphael’s speech was protected by the First Amendment 14
because we conclude that none of Kolesar’s actions in 15
response to Raphael’s speech constituted retaliation. 16
B 17
First Amendment student speech cases ordinarily involve 18
explicit censorship or avowedly disciplinary action by 19
school administrators. See e.g., Morse, 551 U.S. at 396 20
(student suspended for displaying drug-promoting banner at 21
school activity); Fraser, 478 U.S. at 678 (student suspended 22
11

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for lewd speech at school event); Hazelwood, 484 U.S. at 1
263-4 (articles banned from student newspaper); Tinker, 393 2
U.S. at 504 (school ban on black armbands); Doninger, 642 3
F.3d at 340-42 (student prohibited from running for student 4
council for derogatory blog post about school event); 5
Wisniewski v. Bd. of Educ. of the Weedsport Cent. School 6
Dist., 494 F.3d 34, 35-36 (2d Cir. 2007) (student suspended 7
for violent drawing distributed electronically to other 8
students). There is therefore no clear definition of 9
“adverse action” in the school context. 10
Outside the school context, an adverse action in a 11
First Amendment retaliation case is “conduct that would 12
deter a similarly situated individual of ordinary firmness 13
from exercising his or her constitutional rights.” Zelnick 14
v. Fashion Inst. of Tech., 464 F.3d 217, 225 (2d Cir. 2006) 15
(internal quotation marks omitted). Under this “objective” 16
standard, an adverse action must be more than “de minimis” 17
to support a First Amendment retaliation claim. Id. at 226. 18
Recognizing that this test is highly context-specific, id., 19
we apply it “in light of the special characteristics of the 20
school environment.” Tinker, 393 U.S. at 506. 21
12

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Teachers and school administrators have multiple 1
responsibilities: teaching, maintaining order, and 2
protecting troubled and neglected students. Cf. N.Y. Soc. 3
Serv. Law § 413(a) (making teachers and school 4
administrators “mandatory reporters” legally obligated to 5
report suspected child abuse and neglect to CFS). They are 6
part disciplinarian, and part protector. Id. 7
The state’s interest in encouraging teachers to protect 8
students is so powerful that New York confers immunity from 9
civil and criminal liability whenever they report suspected 10
abuse in good faith, and it exposes them to criminal and 11
civil liability whenever they willfully fail to do so. See 12
id. § 419 (providing immunity from criminal and civil 13
liability when mandatory reporters report suspected child 14
abuse in good faith and creating a presumption that all 15
reports of suspected abuse are made in good faith); id. 16
§ 420 (subjecting mandatory reporters to criminal and civil 17
liability for willful and knowing failure to report 18
suspected abuse and neglect); Sclar v. Fayetteville-Manlius 19
School Dist., 753 N.Y.S.2d 636, 637 (App. Div., 4th Dep’t, 20
2002) (recognizing immunity for good faith compliance with 21
13

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the mandatory reporting requirements and the need for 1
plaintiffs to allege actual malice in making the reports). 2
In their various roles, school administrators must 3
distinguish empty boasts from serious threats, rough-housing 4
from bullying, and an active imagination from a dangerous 5
impulse. Making such distinctions often requires an 6
investigation, and the investigation may result in 7
discipline, but the investigation itself is not 8
disciplinary--it is precautionary and protective. This is 9
so even when a student is separated, interviewed, or 10
temporarily sequestered to defuse a potentially volatile or 11
dangerous situation. See Kolesar Dep. at 45:6-9 (“Students 12
that could potentially receive out-of-school suspension in 13
our Code of Conduct are to be supervised in an in-school 14
suspension room until a decision is made.”). As in this 15
case, a school administrator must be able to react to 16
ambiguous student speech by temporarily removing the student 17
from potential danger (to himself and others) until it can 18
be determined whether the speech represents a real threat to 19
school safety and student learning. Such acts deserve 20
“unusual deference” from the judiciary. See Kia P. v. 21
McIntyre, 235 F.3d 749, 758-59 (2d Cir. 2000) (recognizing 22
14

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that mandatory reporters face the dilemma that aggressive 1
action to protect children can expose them to civil 2
liability for due process violations while inadequate action 3
to protect children can expose them to § 1983 liability and 4
concluding that courts must give mandatory reporters 5
“unusual deference” in this context). Without more, the 6
temporary removal of a student from regular school 7
activities in response to speech exhibiting violent, 8
disruptive, lewd, or otherwise harmful ideations is not an 9
adverse action for purposes of the First Amendment absent a 10
clear showing of intent to chill speech or punish it. 11
Although a student and his parents might perceive such 12
removal as “disciplinary” or “retaliatory,” its objective 13
purpose is protective. It affords the administrator time to 14
make an inquiry, to figure out if there is danger, and to 15
determine the proper response: discipline, a benign 16
intervention, or something else. A school cannot function 17
without affording teachers and administrator fair latitude 18
to make these inquiries. 19
Under this standard, Kolesar’s decision to remove 20
Raphael from class for an afternoon cannot support a First 21
Amendment retaliation claim, regardless of how Raphael or 22
15

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his parents may have perceived Kolesar’s actions. Kolesar 1
took a precautionary measure to ensure that ambiguous 2
student expression did not portend disruption or violence. 3
We owe this decision “unusual deference,” and absent a clear 4
showing of retaliatory or punitive intent, it cannot be 5
considered “adverse” or “retaliatory.” 6
For the same reason, Kolesar’s decision to report 7
Raphael’s parents to CFS, without any evidence of 8
retaliatory or punitive intent as to the child, is not an 9
adverse action against Raphael as a matter of law. By its 10
nature, the call was a protective-- not disciplinary--act, 11
and was therefore not an “adverse action” for purposes of 12
Raphael’s First Amendment retaliation claim. Any other 13
conclusion would place school administrators in an 14
impossible bind. Abuse, neglect, and impairment are often 15
disclosed or suggested by a child’s words or acts, and 16
school administrators have a legal obligation to report 17
suspected abuse and neglect to CFS. If such reports-- 18
inevitably based in part on the student’s speech or 19
conduct--could result in § 1983 liability, administrators 20
would be exposed to civil liability no matter what they did. 21
Cf. id. at 758-59 (recognizing that mandatory reporters are 22
16

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obliged to choose “between difficult alternatives in the 1
context of suspected child abuse. If they err in 2
interrupting parental custody, they may be accused of 3
infringing the parents’ constitutional rights. If they err 4
in [not doing so], they risk injury to the child and may be 5
accused of infringing the child’s rights.”). Their only 6
choice would be whether to suffer 42 U.S.C. § 1983 liability 7
for reporting or N.Y. Soc. Serv. Law § 420 liability for not 8
doing so. Kolesar had a legal obligation to report 9
suspected child neglect to CFS, an obligation arising 10
precisely from his responsibility to keep his students safe. 11
Allowing such reports to generally constitute retaliation 12
against the children would seriously undermine school 13
administrators’ ability to protect the children entrusted to 14
them. 15
Because neither of Kolesar’s actions in response to 16
Raphael’s essay was adverse, we affirm the district court’s 17
grant of summary judgment to Kolesar on the First Amendment 18
retaliation claim. We need not reach the question whether 19
Kolesar would be entitled to qualified immunity. 20
21
17

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II 1
The parents allege that Kolesar’s call to CFS violated 2
their substantive due process rights under the Fourteenth 3
amendment by interfering with their custody of Raphael. 4
“Choices about marriage, family life, and the 5
upbringing of children” are “of basic importance in our 6
society.” M.L.B. v. S.L.J., 519 U.S. 102, 116 (1996) 7
(internal quotation marks omitted). The interest of natural 8
parents “in the care, custody, and management of their 9
child” is a “fundamental liberty interest protected by the 10
Fourteenth Amendment.” Santosky v. Kramer, 455 U.S. 745, 11
753 (1982). “[F]amily members have, in general terms, a 12
substantive right under the Due Process Clause to remain 13
together without the coercive interference of the awesome 14
power of the state.” Anthony v. City of New York, 339 F.3d 15
129, 142 (2d. Cir. 2003) (internal quotation marks omitted). 16
This right is amplified by the more general substantive due 17
process right of all people to be free of government action 18
that is “arbitrary, conscience-shocking, or oppressive in a 19
constitutional sense.” Kaluczky v. City of White Plains, 57 20
F.3d 202, 211 (2d Cir. 1995). 21
18

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To state a claim for a violation of this substantive 1
due process right of custody, a plaintiff must demonstrate 2
that the state action depriving him of custody was “so 3
shocking, arbitrary, and egregious that the Due Process 4
Clause would not countenance it even were it accompanied by 5
full procedural protection.” Tenenbaum v. Williams, 193 6
F.3d 581, 600 (2d Cir. 1999). It is not enough that the 7
government act be “incorrect or ill-advised”; it must be 8
“conscience-shocking.” Kaluczky, 57 F.3d at 211. “Only the 9
most egregious official conduct can be said to be arbitrary 10
in the constitutional sense and therefore unconstitutional.” 11
Tenenbaum, 193 F.3d at 600 (internal quotation marks 12
omitted). 13
Absent truly extraordinary circumstances, a brief 14
deprivation of custody is insufficient to state a 15
substantive due process custody claim. Nicholson v. 16
Scoppetta, 344 F.3d 154, 172 (2d Cir. 2003); see also 17
Anthony, 339 F.3d at 143; Tenenbaum, 193 F.3d at 601. Such 18
temporary deprivations do “not result in the parents’ 19
wholesale relinquishment of their right to rear their 20
children,” so they are not constitutionally outrageous or 21
19

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conscience-shocking. Nicholson, 344 F.3d at 172 (brackets 1
and internal quotation marks in original omitted). 2
Kolesar’s call to CFS and the resulting demands and 3
threats from CFS to the parents may have been stressful or 4
even infuriating, but they did not result in even a 5
temporary loss of custody, let alone a “wholesale 6
relinquishment of rights.” The parents maintained custody 7
over Raphael during his entire (concededly coerced) 8
psychiatric evaluation. Where there is no actual loss of 9
custody, no substantive due process claim can lie. 10
Nicholson, 344 F.3d at 172; Anthony, 339 F.3d at 143; 11
Tenenbaum, 193 F.3d at 601. 12
Moreover, no reasonable jury could conclude that 13
Kolesar’s report to CFS, or the resulting requirement that 14
Raphael be psychiatrically evaluated, was even remotely 15
“outrageous” or “conscience-shocking.” Common negligence is 16
categorically insufficient to shock the conscience, so the 17
parents must raise an inference that Kolesar acted 18
maliciously before his call to CFS can even begin to support 19
a violation of substantive due process. Cnty. of Sacramento 20
v. Lewis, 523 U.S. 833, 848-49 (1998) (“We have accordingly 21
rejected the lowest common denominator of customary tort 22
20

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liability as any mark of sufficiently shocking conduct, and 1
have held that the Constitution does not guarantee due care 2
on the part of state officials; liability for negligently 3
inflicted harm is categorically beneath the threshold of 4
constitutional due process.”). The parents allege that 5
Kolesar’s report to CFS was exaggerated and misleading, but 6
even in the light most favorable to them, nothing in the 7
report was materially false: Raphael wrote violent journal 8
entries, misbehaved in school, and expressed suicidal 9
thoughts, albeit in a hypothetical, creative, imagined way. 10
Furthermore, Kolesar’s actions were expressly aimed at 11
protecting Raphael, and Kolesar had a legal obligation to 12
report suspected neglect. There is no evidence that Kolesar 13
acted with the type of malice needed to shock the 14
conscience. 15
We therefore affirm the district court’s grant of 16
summary judgment in favor of Kolesar and Warwick on this 17
claim. We need not reach the question of qualified 18
immunity. 19
20
21

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CONCLUSION 1
For the reasons stated above, the judgment of the 2
district court is AFFIRMED. 3
22

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