Gant v. Wallingford Board of Education

VAN GRAAFEILAND, Circuit Judge,

concurring in part and dissenting in part:

In recent weeks, there have been nationwide lamentations over what was deemed to be a resurgence of racial animosity. There are numerous reasons for this unfortunate animosity, one of which is the bringing of baseless lawsuits alleging constitutional discrimination. I am convinced that this is such a lawsuit. Accordingly, although I concur with my colleagues that the Rule 12(b)(6) dismissal of the infant’s claims cannot stand, I would be derelict in my duty to both the parties and our busy district courts if I did not express the reluctance with which I do so.

The Name-Calling

At the outset, I cannot emphasize too much that we are dealing here with six-year-old children who, despite their tender years, have the same First Amendment rights as do adults. Indeed, because of the infants’ immaturity, the test of “fighting words” (words that by their very utterance tend to incite immediate violence or breach of the peace, see NAACP v. Claiborne Hardware Co., 458 U.S. 886, 927, 102 S.Ct. 3409, 3433, 73 L.Ed.2d 1215 (1982); Gooding v. Wilson, 405 U.S. 518, 523, 92 S.Ct. 1103, 1106, 31 L.Ed.2d 408 (1972)) should be more generously applied to them than would be the case with mature adults. Children do not think or behave like adults. Generations of them have recited the doggerel “Sticks and stones may break my bones, but names will never hurt me.” I would hold, therefore, that when one six-year-old child calls another “chocolate drop” or “nigger,” and no violence or breach of the peace results, the infant, knowingly or not, is exercising his right of free speech and is not guilty of actionable wrongdoing. “The determination of what manner of speech in the classroom or in school assembly is inappropriate properly rests with the school board.” Bethel School Dist. No. 403 v. Fraser, 478 U.S. 675, 683, 106 S.Ct. 3159, 3164, 92 L.Ed.2d 549 (1986). A teacher may attempt to acquaint her youthful charges with some of the social graces; however, the Constitution does not compel her to do so. Instead, it limits the teacher’s activities to those which do not violate specific constitutional guarantees. See Wood v. Strickland, 420 U.S. 308, 326, 95 S.Ct. 992, 1003, 43 L.Ed.2d 214 (1975). As District Judge Gare nicely put it in Stanton v. Brunswick School Dep’t, 577 F.Supp. 1560, 1575 (D.Me.1984):

The public interest may be thought to be best served if schools and teachers practice the historical orthodoxies of our political freedom while they preach the temporally transitory orthodoxies of “taste.” They may legitimately, and should, seek to inculcate the latter, but they may not, in the effort to do so, transgress upon the former. In the final analysis, under our Constitution, individual liberty of expression must be accorded its day even at the expense of the promotion of aesthetic sophistication.

We are not concerned here with an ordinance or regulation which arguably may be so construed as to eliminate First Amendment protection because of improper reference to race or religion. Our colleges have learned to their dismay how difficult it is to craft rules and regulations that allow of only one construction. See, e.g., U.W.M. Post, Inc. v. Board of Regents of the Univ. of Wisc. Sys., 774 F.Supp. 1163 (E.D.Wisc.1991). Thus, the word “nigger” may or may not be constitutionally offensive depending on the context in which it is used. Cf id. at 1180. So far as incidents even remotely subject to school control are concerned, the issue here involves the spontaneous utterances of children, who are too immature to understand the real meaning of racial prejudice. As in the field of tortious speech, an infant must appreciate the offensiveness or wrongfulness of his words before he can be held hable therefor. See, e.g., 2 Harper, James & Gray, The Law of Torts § 8.13 at 590 (2 ed.1986); Cleveland Park Club v. Perry, 165 A.2d 485, 487 (D.C.1960); Horton v. Reaves, 186 Colo. 149, 155, 526 P.2d 304 (1974). If, as appellants suggest, the school were to punish these youngsters for their protected speech, it might well be shifting liability exposure from one constitutional offense to another, and at the same time be creating a greater barrier to improved race relations than might result from simple name-calling.

The Transfer to Kindergarten

Although I concur with the majority’s Rule 12(b)(6) conclusion, I am skeptical of appellants’ claim that it was appellees’ racial prejudice against the infant Ray Gant, Jr. that motivated his transfer to kindergarten. My skepticism is based upon both the inherent unlikelihood that such vindictive motivation against a six-year-old child existed and also upon the asserted facts, not the “exculpatory conclusions,” contained in Exhibit B attached to the complaint. In paragraph 19 of the complaint, plaintiffs alleged that Board Superintendent Joseph Cirasuolo “adopted, approved and/or ratified the actions and/or omissions of the [defendant teachers],” and concluded these allegations with the words “Refer to Exhibit B attached.” If the contents of Exhibit B were not intended to support the allegation of adoption, approval, etc., it is difficult to understand why they were referred to. “In determining the adequacy of a claim under Rule 12(b)(6), consideration is limited to facts stated on the face of the complaint, in documents appended to the complaint or incorporated in the complaint by reference_” Allen v. West-Point-Pepperell, Inc., 945 F.2d 40, 44 (2d Cir.1991); see also Paulemon v. Tobin, 30 F.3d 307, 309 (2d Cir.1994); Hertz v. City of New York, 1 F.3d 121, 125 (2d Cir.), cert. denied, — U.S. —, 114 S.Ct. 1054, 127 L.Ed.2d 375 (1993). I do not suggest that the contents of Exhibit B, standing alone, warrant affirmance of the district court’s Rule 12(b)(6) order. I do suggest, however, that the contents were incorporated in the complaint and therefore may properly be considered in both the district court and this Court.

The Superintendent’s report, with all con-clusory statements deleted, reads as follows:

Investigative Steps

I took the following steps in my investigation of this matter.

1.I consulted with the following staff members:

a. Mrs. Cronin, Cook Hill’s principal,

b. Mrs. Candido, the student’s first grade teacher,

c. Mrs. Romans, the student’s kindergarten teacher,

d. Mrs. Mason, the school psychologist who is assigned to Cook Hill.

2. I reviewed the following records that pertain to the student:

a. His final report card from the Casi-mir Pulaski Elementary School in Meriden.

b. The report of the Planning and Placement Team (PPT) meeting that was held at Cook Hill with respect to the student on 5/28/93.

3. I held a joint meeting with the student’s parents, Mrs. Cronin, and Mrs. Romans. The parents were accompanied by a family member, two (2) representatives of the Meriden-Wallingford Branch of the NAACP, an advocate, and a former Wallingford Public Schools’ student who had attended Cook Hill. Of her own volition, Mrs. Candido did not attend this meeting which took place on 8/23/93. Because the meeting took place during Mrs. Candido’s vacation time, she could not be compelled to attend the meeting.

4. I scheduled a joint meeting with the parents, Mrs. Cronin, and Mrs. Candido for 8/31/93. On 8/30/93, the parents informed my office that they were not willing to attend the meeting. I asked the parents to reconsider this decision not to attend such a meeting and, to date, I have received no reply to my request.

The Student’s Grade Placement

The student was registered at Cook Hill on 2/23/93. He transferred from Casimir Pulaski in Meriden, Connecticut.

The last report card issued by Casimir Pulaski to the student’s parents indicated that he was having serious difficulty learning to read and that he was experiencing some behavioral difficulties as well. The report card indicated that a Child Study Team meeting had been scheduled on 2/1/93 regarding the student. Within two (2) weeks of this date, the student and his parents moved to Wallingford.

The student’s first day at Cook Hill was 2/24/93. It was almost immediately apparent to his teacher, Mrs. Candido, that he was having serious difficulty with reading instruction. His inability to do the work quickly transformed into an unwillingness to attempt any reading work despite special efforts made by the teacher to assist him. He would not even open a reading book and his frustration caused him to cry when reading time occurred.

At the end of his first week in school the student refused to take the school bus and had to be brought to school by his mother. On that morning, his mother had to pry his fingers from the car door handle to get him into the school building. Given her son’s actions, the student’s mother remained in her son’s classroom for most of the morning.

Mrs. Candido conferred with the mother before she left school on that day. During the conference, Mrs. Candido described briefly the problems that the student was experiencing, indicated that it appeared that the student would not be prepared to enter second grade in September 1998, and said that she would discuss with Mrs. Cronin an alternate grade placement for 1992-93. While she did not specify for Mrs. Gant an alternate grade placement, Mrs. Candido had a transfer to a transitional class in mind. It was that recommendation that Mrs. Candido made to Mrs. Cronin.

Mrs. Cronin took that recommendation under consideration and reached the conclusion that while a transfer for Ray out of first grade was appropriate, placing him in a transitional class would not be wise because even the transitional class was beyond Ray’s reading achievement level in 3/93. She, therefore, decided that a placement in Mrs. Roman’s kindergarten class would be most appropriate for Ray.

Mrs. Cronin reached this conclusion without requesting any testing for Ray because his difficulties with first grade reading were very apparent and because those difficulties were causing Ray to attend school with great reluctance.

Mrs. Cronin met with Mrs. Gant to present her with the recommendation that Ray be transferred to kindergarten. Mrs. Cronin ended that meeting convinced that Mrs. Gant had approved the transfer. Mrs. Gant indicated to me at the meeting mentioned above that she did not agree with the transfer but that she may have appeared to approve it because she felt that she had no choice. Mrs. Gant apparently did not know that the school system makes it a practice to make transfers of this type only with parental approval.

On 3/10/93, eleven (11) days after he entered Cook Hill, Ray was transferred to kindergarten. On his first day in his new grade, he was reluctant to attend school. From 3/11/93 to the end of the school year, however, he attended willingly....

On 9/2/93, Ray’s parents requested and were granted an out-of-district placement at Parker Farms Elementary School. He was placed in first grade with parental approval. When Mr. Gant met with me to present his out-of-district placement request, we discussed Ray’s grade placement at Parker Farms School and I told him that from everything I knew about Ray, it was my opinion both as an educator and as a parent that first grade was the appropriate placement....

Related to the matter of grade placement is the issue of testing. In a letter to me dated 5/10/93, the Gants requested testing for Ray to determine whether he had a handicapping condition. I referred the letter to Dr. Bivona, the director of Public Personnel Services and a PPT was held on 5/21/93 regarding the request. At the conclusion of that PPT, the Gants refused permission for Ray to be tested.

In late 6/93, Mrs. Cronin met with the Gants at their request to discuss the circumstances that led to Ray’s transferal to kindergarten. During that meeting, the issue of testing was raised once again and the Gants indicated that they were willing to approve testing for Ray. Mrs. Cronin asked the Gants to sign the appropriate approval forms and asked Mrs. Mason the school psychologist who is assigned to Cook Hill to place Ray on her schedule early in September 1993. To date, the Gants have not returned signed approval forms.

Appellants have given us no reason to believe that the facts as above stated are not substantially true. For example, when one reads the allegation in the complaint that the infant plaintiff had the “same or similar skill levels” as the other students enrolled in his first grade class, one cannot help but wonder whether this allegation has any foundation in fact. Making allowance for normal parental exaggeration, one may perhaps accept the senior Gants’ appraisal of their son’s skill levels. However, the same is not true of his classmates for ten days, whose skills obviously were unknown to either the Gants or their lawyer. Under the circumstances, the certification of plaintiffs’ signatory attorney that, to the best of his knowledge, information and belief formed after reasonable inquiry, the above allegation has evidentiary support, is at best a questionable practice. See, e.g., Levine v. F.D.I.C., 2 F.3d 476, 479 (2d Cir.1993) (upholding imposition of sanctions for Fed.R.Civ.P. 11(b)(3) violation). My colleagues’ comment that “in a studious way, plaintiffs’ lawyer seems to avoid commitment on an issue that is potentially significant,” supra, at 671, is an understatement when considered against the attorney’s obligation as an officer of the court.

In Epperson v. Arkansas, 393 U.S. 97, 104, 89 S.Ct. 266, 270, 21 L.Ed.2d 228 (1968), the Court made the following oft-quoted statement:

By and large, public education in our Nation is committed to the control of state and local authorities. Courts do not and cannot intervene in the resolution of conflicts which arise in the daily operation of school systems and which do not directly and sharply implicate basic constitutional values.

'Despite the “studious” efforts of. Gant’s attorney to depict a violation of the infant plaintiffs basic constitutional rights, I am satisfied that there was no such violation. I regret that appellees must be subjected to the emotional and financial trauma of defending against a lawsuit with punitive damage exposure that I am convinced is without merit.

The Parents’ Claim

Although I concur in the majority’s opinion with respect to the infant Gant, unlike my colleagues, I would resolve the issue of the parents’ claims, which are predicated on the wrong allegedly inflicted on their son. It is well-settled law that a civil rights suit is a personal suit and one may not recover damages for the violation of another person’s constitutional rights, even though that person may be a close relative such as a child. See, e.g., Barrett v. United States, 622 F.Supp. 574, 591 (S.D.N.Y.1985), aff'd on other grounds, 798 F.2d 565 (2d Cir.1986); Fobbs v. Holy Cross Health Sys. Corp., 29 F.3d 1439, 1447-48 (9th Cir.1994), cert. denied, — U.S. —, 115 S.Ct. 936, 130 L.Ed.2d 881 (1995); Javits v. Stevens, 382 F.Supp. 131, 135 (S.D.N.Y.1974); Coon v. Ledbetter, 780 F.2d 1158, 1160-61 (5th Cir.1986); Dohaish v. Tooley, 670 F.2d 934, 936 (10th Cir.), cert. denied, 459 U.S. 826, 103 S.Ct. 60, 74 L.Ed.2d 63 (1982); O’Malley v. Brierley, 477 F.2d 785, 789 (3d Cir.1973); Broadnax v. Webb, 892 F.Supp. 188, 190 (E.D.Mich.1995). Accordingly, whatever disposition is made of the claim of Ray Gant, Jr., the claim of his parents to recover for their alleged anxiety and emotional stress cannot stand. I would affirm the dismissal of the parents’ claim.