Federal appeals court rejects student’s free speech claim over racial slur

Citing the likelihood of substantial disruption, the 2nd Circuit ruled that school authorities acted corrrectly in suspending a student for making a racial slur after a Hispanic student had died in a motorcycle accident. -db

First Amendment Center
October 20, 2010
By David L. Hudson Jr.

East Hampton, N.Y., public school officials were entitled to qualified immunity for removing a student from school who allegedly made a racial slur that led to substantial disruptions at school, a federal appeals court panel has ruled.

The controversy began on April 24, 2004, when Andres Felipe Osorio-Diez, a Hispanic student at East Hampton High School, died in a weekend motorcycle accident. Two days later, the school held a day of mourning. A rumor spread through school that 10th-grader Daniel DeFabio allegedly said in reference to Osorio-Diez’s ethnicity: “one down, forty thousand to go.”

In the cafeteria later that day, several students confronted DeFabio and called him a racist. School Principal Scott Farina told Daniel’s mother, Patricia, that Daniel should stay home for a few days to ensure his protection.

On April 27, Patricia asked the principal to read over the school’s public address system a letter from Daniel explaining that he did not utter the statement as a slur. Daniel claimed that he told another student that he heard a horrible comment, repeated the “one down, forty thousand to go” phrase and then said, “I can’t believe someone could say something like that.”

School officials, including Farina, said Daniel should continue to stay home. In subsequent days, several students threatened to kill Daniel and firebomb the DeFabios’ house. Police placed a car outside the family’s home for a week.

Daniel’s parents strenuously objected to his being kept out of school, saying he needed to return to address the rumors. On April 30, Daniel’s parents hired an attorney who contacted the school, asking when Daniel would be readmitted. Later that afternoon, Farina had a letter hand-delivered to the DeFabios’ home, informing Daniel that he was suspended for five days and that the superintendent of schools might hold a hearing to determine further punishment.

A week later, Superintendent Raymond Gualtieri held a hearing. Two students testified against Daniel and said he uttered the objectionable comment. The superintendent determined that Daniel had made the controversial statement and suspended him for the rest of the academic year. Daniel later had an opportunity to speak to some Latin American students, who told him they didn’t believe his story in part because he was silent after the incident. Daniel tried to explain that he was prevented from speaking about the incident because he was suspended and the principal wouldn’t let his letter be read over the loudspeaker at school.

On May 18, 2004, Daniel appealed his suspension to the board of education, which affirmed the superintendent’s decision. He then appealed to the New York Commissioner of Education, which overturned Superintendent Gualtieri’s decision and expunged the suspension from Daniel’s record.

During summer 2004, Daniel still faced threats from various individuals. In August 2004, his parents decided he would attend school in California. He never returned to East Hampton High School.

In April 2007, Daniel and his parents (Patricia DeFabio and her partner Michael Rusinsky) sued in federal court, alleging a variety of constitutional claims. Among their assertions was that Farina, Gualtieri and school board members violated Daniel’s First Amendment free-speech rights by not allowing him to return to school to address his fellow students or even to distribute his letter proclaiming his innocence to the student body.

On Sept. 30, 2009, U.S. District Judge Joseph F. Bianco ruled that the individual school defendants did not violate the First Amendment because the facts in the case “demonstrate that school officials could reasonably conclude any attempt by Daniel to engage in speech at the school during this emotional and volatile time period” would disrupt activities within the meaning of the U.S. Supreme Court’s landmark ruling on student speech in Tinker v. Des Moines Independent Community School Dist. (1969).

Bianco also ruled that even if Daniel’s First Amendment rights were violated, the defendants were entitled to qualified immunity because they did not violate clearly established constitutional rights. “Although there is no question that the Tinker rule is clearly established, the application of that test to the particular circumstances here leaves room for school officials, at a minimum, to reasonably disagree as to whether the return of Daniel to the school (and his proposed speech at the school) in the days following the incident would lead to substantial disruption,” Bianco wrote.

Daniel appealed to the 2nd U.S. Circuit Court of Appeals, which affirmed Bianco’s ruling unanimously in its Oct. 13, 2010, decision in DeFabio v. East Hampton Union Free School District. The appeals court affirmed the lower court on the First Amendment claim on qualified immunity.

“There is no question that Daniel’s mere presence in the school, with or without his speech, would likely result in violence or the threat of violence,” the appeals court explained. “The record shows … that police were assigned to protect the DeFabio home, Daniel’s parents felt intimidated in their home, Daniel received death threats, and he admitted he was scared to return to school.”

Because of these circumstances, the appeals court said it was reasonable for school officials to believe they could prohibit Daniel from coming back to school to address his fellow students.

Daniel also had argued that the school violated his First Amendment rights by refusing to distribute his message over the loudspeaker, allow him to speak to the student body or hand out his letter explaining what happened.

The 2nd Circuit rejected this argument, finding that school officials could reasonably believe that any further mention of Daniel and his comment could lead to disruptions at school. The appeals court also noted that school officials have greater leeway to control speech over the loudspeaker or at assemblies because such speech is considered “school-sponsored.” This type of speech is subject to greater control by school officials under the U.S. Supreme Court’s 1988 decision Hazelwood School District v. Kuhlmeier.

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