Julie Hilden

The U.S. Court of Appeals for the Second Circuit Wrongly Holds that Public-School Officials Can Constitutionally Prohibit a Student's Attempt to Clear His Name

By JULIE HILDEN
Thursday, October 21, 2010

Last week, on October 13, a three-judge panel of the U.S. Court of Appeals for the Second Circuit issued a very unjust First Amendment student-speech ruling.

The case was DeFabio v. East Hampton Union Free School Dist., and the student, Daniel DeFabio, had sued the school and individual school officials -- including the Principal and Superintendent -- under a federal statute that allows civil suits to be brought for damages caused by violations of constitutional rights (including First Amendment rights).

On appeal, however, only the claims against the individual school officials were truly at issue because, the panel noted, the facts had not shown that what had happened to Daniel had occurred pursuant to any school policy.

In dismissing the suit, the appellate panel allowed public-school students to be effectively rendered unable to timely defend themselves against allegations made by their classmates -- even when those very allegations are causing their classmates and others in the community to contemplate violence against them.

In justifying its decision, the panel claimed that the law on this point was unclear -- but if so, then the panel itself ought to have further clarified the law, in order to provide guidance in future cases.

The Facts of the Case

The pertinent facts were as follows:

At Daniel's school, a "day of mourning" was held after a Hispanic student at the school was killed in a motorcycle accident. That day, a rumor started that Daniel had said to a friend, regarding the death, "One down, forty thousand to go."

In fact, Daniel says, he had overheard that comment being made by another person in the hallway, and had then repeated it to a friend -- along with his own comment: "I can't believe someone could say something that terrible." However, Daniel says, someone apparently misheard him and believed that the "One down, forty thousand to go" comment was Daniel's own.

The rumor that Daniel had made the racist comment spread quickly. That day, Daniel faced numerous angry remarks and threats of violence from other students at his school. In the lunchroom, a crowd assembled -- and a school psychiatrist pulled Daniel out, sent him home, and advised his mother that he should stay home for a few days for his own protection.

Up until this point, Daniel and his family seem to have no quarrel with the school district's actions. It is what happened next that was the basis for their suit.

After being sent home, Daniel asked that someone at the school read a letter that he had written, declaring his innocence, over the public-address system; or that the school allow him to come in to school and read the statement at an assembly; or that the school distribute his statement to all students in written form. The principal refused to do any of these things.

Tensions worsened: Daniel received threatening calls at home, and word got out of a plan to burn down Daniel's family's house -- leading to the presence of a continuing police patrol there. In a meeting with the principal, Daniel's parents implored the principal to allow Daniel to come back and deliver his statement to the school, as he had originally wished to do. But the principal refused to allow it.

At a later meeting, the school superintendent found that Daniel had, indeed, made the comment at issue (rather than just repeating and commenting on it). The Superintendent suspended Daniel for the rest of the school year, while providing home study.

Significantly, however, the New York Commissioner of Education later found that there was not sufficient evidence to establish that Daniel had actually made the comment at issue himself -- rather than merely critically repeating it, as Daniel claimed he had done.

Some time after the meeting with the superintendent, Daniel -- escorted by the principal

-- met with a Hispanic students' group at his school. Most of the Hispanic students told Daniel that they did not believe his explanation that he was merely repeating the comment -- in part because they felt that his silence and absence from school, after the day of mourning, suggested his guilt. The principal then told them that he had prohibited Daniel from returning and delivering the statement in his defense that he had wanted to deliver.

The summer after that school year ended, Daniel received additional threats from Hispanic individuals in his community, based on the racist comment they believed he had made. Before the next school year began, his family moved to California.

The Basis for the Court's Decision -- and Why It Should Have Clarified the Law for the Future

The district court granted summary judgment to the individual defendants (that is, the principal and superintendent). On appeal, the three-judge panel affirmed the grant. The basis for the panel's decision was essentially that the school officials' actions regarding Daniel did not violate clearly-established rights of which a reasonable person would have known at the time the officials acted -- the legal standard in such cases.

In support of its decision, the panel cited the Supreme Court's 1969 decision in Tinker v. Des Moines Indep. Cmty. Sch. Dist., which upheld public-school students' rights to peacefully protest the Vietnam War while in school, but also allowed school officials to shut down potentially-disruptive student activity in future cases. The Second Circuit panel noted that there are a number of exceptions to Tinker , but suggested that no existing exception applied to Daniel's case.

The panel may well have been right that the existing case law does not make clear that the individual defendants had violated Daniel's rights. It is always a hard decision whether to place blame -- and liability -- on individuals with official responsibility in fraught situations such as this one, where student security is genuinely at issue. And Tinker does rule that preventing disruption is generally a valid reason for schools' shutting down free speech.

However, the panel should have held that Daniel had a right to reply -- so that, in the future, that right will be honored in similar cases. This was an especially grave case because what was at stake was not just Daniel's right to protest while in school, but also his right to attend school in the first place, and to get the public education to which he is entitled, as he is entitled to get it (not isolated, and via home study). Thus, the stakes for the student here were arguably much higher than in Tinker .

Moreover, if we believe Daniel -- and the court, by law, was supposed to make factual inferences in his favor -- he did not actually say anything that he could have possibly known would be disruptive, in the way that, say, any protest over a controversial issue that divides students might be foreseen to possibly be disruptive.

Applying Tinker 's rule to students who say (or may have said) something innocuous, but are misheard, seems bizarre. Tinker was meant to apply to ideological clashes, not to possible games of "Telephone."

How Things Might Have Been -- and Why the Panel Should Have Encouraged, For the Future, a Right of Reply for Public-School Students

Finally, it seems quite clear what the school district and its officials should have done here: They should have either allowed Daniel -- with police protection -- to deliver his statement in his defense at the school at an assembly, or over the P.A. system; or distributed his statement to all students.

In other words, officials should have granted Daniel's request to reply, while ensuring his security as he did so. Daniel might also have been asked to speak -- in a safe context -- with individual students who were still concerned about the rumor, even after hearing his reply.

After that had occurred, the school district and its officials could then have assessed the situation, to see if it had changed and if it was then safe for Daniel to return to school. Possibly, it still might not have been safe. But then Daniel and his family could at least know that they had tried their best, before they were forced to uproot themselves and move to another school district.

It is telling, here, that the Hispanic-student-group members who did not believe Daniel, when he said he had been critically repeating someone else's remark, cited the fact that he had stayed home from school and did not speak out in his own defense. Their response was only logical: They doubtless assumed that if Daniel had had a defense, he would have presented it. Rather than presuming Daniel guilty, they looked to the evidence presented by his apparent silence, not knowing that that silence was school-created. Other students, too, may have made the same assumption.

Thus, some substantial part of the risk to Daniel may actually have come from the school's decision to silence him, rather than letting him publicly reply. Indeed, had Daniel come to harm, one could imagine a different kind of suit against the school district -- one alleging that by silencing Daniel by failing to allow his public reply to be delivered in school, the school district had actually put him in grave danger.

If Daniel had been an adult, he might well have tried to clear his name by filing a libel suit. But school rumors are hard to track, and, here, a libel suit would not have been practicable. Without the ability to resort to such a suit, Daniel should have at least been able to reply, in some other way, to the allegations that had been made against him. When his school ruled that option out, it is tragic that his and his family's only safe response was to exit the community.

There should have been a better way: The school should have enabled, rather than blocking, dialogue among its own students. That might not have been a full solution, but it would have been an honorable path to follow, and one that set the right example. And a different decision from the Second Circuit panel would have encouraged that example, by penalizing future instances where schools deny students who face accusations -- and possible violence -- from their peers a chance to publicly reply and set the record straight.


Julie Hilden, who graduated from Yale Law School, practiced First Amendment law at the D.C. law firm of Williams & Connolly from 1996-99 and has been writing about First Amendment issues for a decade. Hilden is also a novelist. In reviewing Hilden's novel, 3, Kirkus Reviews praised Hilden's "rather uncanny abilities," and Counterpunch called it "a must read.... a work of art." Hilden's website, www.juliehilden.com, includes free MP3 and text downloads of the novel's first chapter.

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