This case involves the suspension of a student for writing a fictional story that school officials regarded as violent. An 11-year-old boy was suspended for 35 days for "intimidation and threats to bring a weapon to school" after he wrote in his daily journal a scary, violent story patterned after the horror movie "Halloween." The story included names of classmates as victims, who all knew he was writing a story and had given him permission to use their names. Officials removed the student from class and subjected him to several hours of psychological testing without notifying his parents, and did not count the resulting two days of lost classes as included within the period of suspension. In October 2003, the NYCLU, representing the student, filed an appeal from the suspension to the Commissioner of Education.
In the appeal, the NYCLU argued that school officials violated due process in punishing the student for his fictional account, since the student was not notified that "fictional" writings could be punished under the school’s Code of Conduct. The commissioner affirmed the decision of the school board. A suit was filed in federal District Court challenging the suspension. On Sept. 30, 2005, the District Court dismissed the complaint. The plaintiff appealed to the United States Court of Appeals, Second Circuit. On May 9, 2006, the Second Circuit ruled in favor of the defendants and affirmed the District Court decision dismissing the complaint.
E.D.N.Y., Index No. CV 04-4251 (TCP) (MJO) (direct)