2003 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

6-19-2003

S.G. v. Sayreville Bd Ed

Precedential or Non-Precedential: Precedential

Docket No. 02-2384

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2003

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 2003 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"S.G. v. Sayreville Bd Ed" (2003). 2003 Decisions. Paper 409.

http://digitalcommons.law.villanova.edu/thirdcircuit_2003/409
PRECEDENTIAL

Filed June 19, 2003

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 02-2384

S.G., as Guardian ad Litem of

A.G. a minor and individually,

Appellant

v.

SAYREVILLE BOARD OF EDUCATION;

GEORGIA B. BAUMANN; WILLIAM L. BAUER

On Appeal from the United States District Court

for the District of New Jersey

(D.C. No. 00-cv-02727)

District Judge: Hon. Katharine S. Hayden

Argued February 3, 2003

Before: SLOVITER, RENDELL and STAPLETON,

Circuit Judges

(Filed: June 19, 2003)

F. Michael Daily, Jr. (Argued)

Quinlan, Dunne & Daily

Merchantville, N.J. 08109-2619

Attorney for Appellant

Sean X. Kelly (Argued)

Marks, O’Neill, O’Brien & Courtney

Pennsauken, N.J. 08110

Attorney for Appellees
OPINION OF THE COURT

SLOVITER, Circuit Judge.

In this civil rights action brought pursuant to 42 U.S.C.

§ 1983, S.G., father of A.G., a kindergarten student in the

Sayreville, New Jersey Public School System, claims that

the Sayreville Board of Education, the Superintendent of

Schools and the principal of the school that A.G. attended

(jointly referred to as “School Defendants”) violated A.G.’s

constitutional rights to freedom of speech, procedural due

process and equal protection by suspending him from

school for uttering the statement “I’m going to shoot you” to

his friends while they were playing at recess in the school

yard. The District Court granted summary judgment in

favor of the School Defendants. This appeal followed. 

I.

BACKGROUND

A.G. was a five-year old, kindergarten student at the

Wilson Elementary School in Sayreville, New Jersey, at the

time in question. Three incidents at the school in early

March 2000 provide the context of the events that are the

basis of this suit. On March 4, 2000, a student told other

children that he intended to shoot a teacher. In an

unrelated incident the same day, another student told a

classmate that he would put a gun in the classmate’s

mouth and kill him. On March 10, 2000, a student told

another that his mother allowed him to bring guns to

school. The students making these statements were each

suspended for three days. The students involved in the first

two incidents also met with the school psychologist, and

the school recommended outside psychological counseling

to their parents. The second incident was also reported to

the police. 

On March 10, 2000, the school principal, Georgia

Baumann, visited each class and discussed the seriousness

of making statements threatening harm with a weapon. She

2
sent a letter home with each student asking parents to

discuss the issue with their children and stating that

immediate disciplinary action would be taken when

students make statements referring to violence or weapons.

A.G. was absent on March 10 and his parents did not

receive Baumann’s letter. On March 15, 2000, A.G. and

three other students made statements referring to weapons

and shooting each other at recess. According to A.G., he

was playing a game of cops and robbers with his friends

and said, “I’m going to shoot you.” App. at 157. Another

student told a teacher what A.G. and his friends were doing,1

and that teacher reported that some of the students were

upset. The teacher took the boys to Baumann’s office. 

Baumann asked A.G. and his friends what had occurred

and they told her that they were “playing guns.” App. at 64.

The parties dispute the extent to which the boys’ actions

affected other children. Baumann testified that she spoke

to children who were in the vicinity and they told her that

they were frightened and upset. A.G. testified that the only

child who was watching them was the one who told the

teacher what they were doing. Baumann suspended the

students for three days after notifying then-Assistant

Superintendent Dennis Fyffe and Superintendent William

Bauer. When Baumann was unable to reach A.G.’s parents

by telephone, she contacted his grandmother about the

incident and sent a letter home with A.G. informing his

parents about the suspension. 

A.G.’s father, S.G., contacted Superintendent Bauer who

told S.G. that “policy was policy” and that he had to stand

behind Baumann’s decision. App. at 138. A.G. served the

three day suspension, returned to school and finished the

school year. A.G.’s suspension is not part of his permanent

scholastic record, but Baumann has a record of it in a

personal file she retains which she would be free to share

with the principal of another school, but she has never

been asked to do so. 

S.G. filed this action on behalf of A.G. against the

Sayreville Board of Education, Baumann and Bauer

1. Appellant’s characterization of the student as a “tattle tale,”

Appellant’s Br. at 22, does nothing to further the necessary analysis. 

3
pursuant to 42 U.S.C. § 1983 claiming that A.G. was denied

his constitutional rights to free speech, procedural due

process and equal protection of law. After discovery, the

School Defendants moved for summary judgment, and the

individual defendants Baumann and Bauer asserted that

they are entitled to qualified immunity. 

The District Court held a hearing on the motion, and

then granted the summary judgment motion. The Court

examined the school’s conduct in the context of its

announced intention to take seriously speech that refers to

guns and violence, and in light of the school’s heightened

concerns about the problem of guns and violence on school

premises. The Court held that Baumann’s response “was

reasonable and within in [sic] her authority and did not

implicate any fundamental constitutional rights that A.G.

could assert in that context.” App. at 272. The District

Court further concluded as a “fall back” that Baumann is

entitled to qualified immunity because she did not violate

A.G.’s clearly established constitutional rights. App. at 275.

S.G. appeals. 

II.

JURISDICTION AND STANDARD OF REVIEW

The District Court had jurisdiction pursuant to 28 U.S.C.

§ 1331. This court has jurisdiction pursuant to 28 U.S.C.

§ 1291. We review an order granting summary judgment de

novo, applying the same standard used by the District

Court. Nicini v. Morra, 212 F.3d 798, 805 (3d Cir. 2000) (en

banc).2

2. Under Fed. R. Civ. P. 56(c), summary judgment is warranted if the

pleadings, depositions, answers to interrogatories, and admissions on

file, together with the affidavits, if any, show that there is no genuine

issue as to any material fact and that the moving party is entitled to

judgment as a matter of law. 

4
III.

DISCUSSION

Section 1983 imposes civil liability upon any person who,

under color of state law, deprives another person of any

rights, privileges, or immunities secured by the

Constitution or laws of the United States. 42 U.S.C. § 1983.

When an individual defendant in a § 1983 action claims

s/he is entitled to qualified immunity, “our first task is to

assess whether the plaintiff ’s allegations are sufficient to

establish the violation of a constitutional or statutory right

at all.” Gruenke v. Seip, 225 F.3d 290, 298 (3d Cir. 2000).

If the plaintiff ’s allegations meet this threshold, “we must

next determine whether, as a legal matter, the right that

the defendant’s conduct allegedly violates was a clearly

established one, about which a reasonable person would

have known.” Id. If so, then the defendant is not entitled to

qualified immunity. Id. If the plaintiff ’s allegations fail to

satisfy either inquiry, then the defendant is entitled to

summary judgment. Id. Until the question of qualified

immunity is addressed, a court cannot reach the

underlying merits of the case. Id. at 298-99. 

In Saucier v. Katz, 533 U.S. 194 (2001), the Supreme

Court explained why the first inquiry must be whether a

constitutional right would have been violated on the facts

alleged: 

In the course of determining whether a constitutional

right was violated on the premises alleged, a court

might find it necessary to set forth principles which

will become the basis for a holding that a right is

clearly established. This is the process for the law’s

elaboration from case to case, and it is one reason for

our insisting upon turning to the existence or

nonexistence of a constitutional right as the first

inquiry. The law might be deprived of this explanation

were a court simply to skip ahead to the question

whether the law clearly established that the

[defendant’s] conduct was unlawful in the

circumstances of the case.

5
Id. at 201. The Supreme Court had previously stated that

this order of procedure is designed to “ ‘spare a defendant

not only unwarranted liability, but unwarranted demands

customarily imposed upon those defending a long drawn

out lawsuit.’ ” Wilson v. Layne, 526 U.S. 603, 609 (1999)

(quoting Siegert v. Gilley, 500 U.S. 226, 232 (1991)). We

therefore proceed first to consider whether S.G. has alleged

facts sufficient to establish the violation of a constitutional

right. If so, we will then consider whether the right allegedly

violated was “clearly established.” 

A. First Amendment

S.G. argues primarily that A.G. was deprived of his First

Amendment right to freedom of speech when he was

suspended from school for saying “I’m going to shoot you”

to a friend at recess. He contends that the boys were

playing a game, that they did not threaten physical harm

and that they did not substantially disrupt school

operations or interfere with the rights of others. 

It has been established that students do not “shed their

constitutional rights to freedom of speech or expression at

the schoolhouse gate.” Tinker v. Des Moines Indep. Cmty.

Sch. Dist., 393 U.S. 503, 506 (1969). This does not mean

that students are free of any regulation of their speech. The

Supreme Court “has repeatedly emphasized the need for

affirming the comprehensive authority of the States and of

school officials, consistent with fundamental constitutional

safeguards, to prescribe and control conduct in the

schools.” Id. at 507. 

In Tinker, the Court was presented with the First

Amendment claim of two high school students and one

junior high student who were suspended for wearing black

armbands to school to show their objections to the Vietnam

war. In holding that school officials violated the students’

First Amendment rights, the Court emphasized that the

school officials banned and sought to punish the students

for a silent, passive expression of opinion, unaccompanied

by any disorder or disturbance on their part. Id. at 508.

The Court made clear that school officials may not prohibit

a particular expression of opinion because of their “mere

desire to avoid the discomfort and unpleasantness that

6
always accompany an unpopular viewpoint.” Id. at 509.

Students cannot be punished for merely expressing their

personal views on the school premises unless “school

authorities ha[ve] reason to anticipate that [such expression

will] substantially interfere with the work of the school or

impinge upon the rights of other students.” Id.

On the other hand, First Amendment protection for

students’ speech is not unlimited, as made clear in Bethel

Sch. Dist. No. 403 v. Fraser, 478 U.S. 675 (1986). In that

case, a high school student delivered a speech nominating

a fellow student for a student elective office, and referred to

his candidate in terms of an elaborate, graphic and explicit

sexual metaphor. The school suspended the student for

violating the high school’s rule prohibiting the use of

obscene language in the school, and the student, in a suit

filed by his father as guardian ad litem, claimed the

suspension violated his First Amendment right to freedom

of speech. 

In holding that the school district acted within its

permissible authority in imposing sanctions upon the

student, the Court enunciated a principle equally applicable

to the case before us when it stated, “[t]he undoubted

freedom to advocate unpopular and controversial views in

schools and classrooms must be balanced against the

society’s countervailing interest in teaching students the

boundaries of socially appropriate behavior.” Id. at 681. It

then stated, “it is a highly appropriate function of public

school education to prohibit the use of vulgar and offensive

terms in public discourse,” and that the “determination of

what manner of speech in the classroom or in school

assembly is inappropriate properly rests with the school

board.” Id. at 683. It pointed out that, “[u]nlike the

sanctions imposed on the students wearing armbands in

Tinker, the penalties imposed in [Fraser] were unrelated to

any political viewpoint.” Id. at 685. 

Moreover, the “First Amendment guarantees wide

freedom in matters of adult public discourse,” id. at 682

(emphasis added), but “[i]t does not follow . . . that simply

because the use of an offensive form of expression may not

be prohibited to adults making what the speaker considers

a political point, the same latitude must be permitted to

7
children in a public school.” Id. The Court recognized that

the constitutional rights of students in public school are

not automatically coextensive with the rights of adults in

other settings. Id.

The Fraser decision was relied upon by the majority in

Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260 (1988),

where the Court rejected a First Amendment challenge to

the high school principal’s deletion of two pages in the

school newspaper. The principal objected to stories that

described three students’ experiences with pregnancy

because he was concerned that the students might be

identifiable and that the subject matter was inappropriate

for younger students at the school, and he objected to a

story that discussed the impact of divorce on students at

the school because he believed that the students’ parents

should have been given the opportunity to respond or

consent to the publication. 

In concluding, over a vigorous dissent, that school

officials had not violated the students’ First Amendment

rights, the Court, citing Fraser, recognized that a “school

need not tolerate student speech that is inconsistent with

its ‘basic educational mission,’ [ ]even though the

government could not censor similar speech outside the

school.” Id. at 266. Because the school officials had not

intended to create a public forum, they were entitled to

regulate the contents of the newspaper in any reasonable

manner. Id. at 270. 

Guided by these Supreme Court decisions focusing on

the speech rights of students in a school setting, we

conclude that the facts alleged by S.G., even if true, do not

establish a violation of A.G.’s First Amendment rights. The

Supreme Court has recognized that a balance must be

struck between the student’s rights and the school’s role in

fostering what the Court in Fraser termed “socially

appropriate behavior.” Fraser, 478 U.S. at 681. Here, where

the school officials determined that threats of violence and

simulated firearm use were unacceptable, even on the

playground, the balance tilts in favor of the school’s

discretionary decision-making. S.G. attempts to ratchet up

the school’s rule forbidding speech referring to weapons or

violence to the level of “core” political speech. He then

8
suggests that the policy at issue is overbroad and offends

the First Amendment. This argument is tenuous. There is

nothing in the record that even suggests that A.G. and his

schoolmates playing cops and robbers were making a

political statement about the value of guns in schools. 

S.G. argues that under this court’s decision in Saxe v.

State College Area Sch. Dist., 240 F.3d 200 (3d Cir. 2001),

student speech can be regulated only if it would

substantially disrupt school operations or interfere with the

rights of others. In Saxe, the students challenged the

constitutionality of the school district’s anti-harassment

policy which provided that harassment can include any

unwelcome verbal, written or physical conduct which

offends, denigrates or belittles an individual on various

grounds, including, inter alia, one’s sexual orientation. The

students believed that homosexuality is a sin and feared

that if they spoke out, they would be punished under the

anti-harassment policy. 

We agreed with the students that the policy offended the

First Amendment. We explained that content- or viewpointbased restrictions are subject to the most exacting First

Amendment scrutiny, and the government may not prohibit

the expression of an idea because it is offensive or

disagreeable. Id. at 207-09. We held that the school

district’s anti-harassment policy went beyond the

permissible restrictions on student speech under Tinker

and its progeny, and was unconstitutionally overbroad. Id.

at 216-17. See also Sypniewski v. Warren Hills Reg’l Bd. of

Educ., 307 F.3d 243 (3d Cir. 2002) (district court should

have granted an injunction against enforcement of a

school’s racial harassment policy to ban a t-shirt targeted

for its expressive content). Unlike Tinker or Saxe, this case

does not involve the regulation of expressive speech and

thus neither of those cases applies here.

Moreover, none of the cases discussed above involved a

school’s restriction of a kindergartner’s speech. Indeed, one

Court of Appeals has stated that it is unlikely that Tinker

and its progeny apply to elementary school students. Muller

by Muller v. Jefferson Lighthouse Sch., 98 F.3d 1530, 1539

(7th Cir. 1996). 

9
In a recent decision, this court has noted that: 

any analysis of the students’ rights to expression on

the one hand, and of schools’ need to control behavior

and foster an environment conducive to learning on the

other, must necessarily take into account the age and

maturity of the student.

Walker-Serrano v. Leonard, 325 F.3d 412, 416 (3d Cir.

2003). Various cases have held that “[a]ge is a critical factor

in student speech cases.” Muller, 98 F.3d at 1538; see also

Baxter by Baxter v. Vigo County Sch. Corp., 26 F.3d 728,

738 (7th Cir. 1994) (“age is a relevant factor in assessing

the extent of a student’s free speech rights in school”). As

we stated in Walker-Serrano, “[t]he significance of age in

this inquiry has called into question the appropriateness of

employing the Tinker framework to assess the

constitutionality of restrictions on the expression of

elementary school students.” Id., 325 F.3d at 416. See also

Slotterback v. Interboro Sch. Dist., 766 F. Supp. 280, 296

(E.D. Pa. 1991) (noting the “impressionability” of children at

elementary school level). 

We need not decide in this case whether or if, under what

circumstances, a school may violate an elementary school

student’s right to freedom of speech. For our purposes, it is

enough to recognize that a school’s authority to control

student speech in an elementary school setting is

undoubtedly greater than in a high school setting. See

Fraser, 478 U.S. at 683 (discussing the damaging nature of

a student’s speech on its less mature audience). As this

court stated recently, “[t]here can be little doubt that

speech appropriate for eighteen-year-old high school

students is not necessarily acceptable for seven-year-old

grammar school students.” Walker-Serrano, 325 F.2d at

416-17. 

Returning to the issue of defendants’ entitlement to

qualified immunity, we hold that the school’s prohibition of

speech threatening violence and the use of firearms was a

legitimate decision related to reasonable pedagogical

concerns and therefore did not violate A.G.’s First

Amendment rights. In any event, defendants are entitled to

qualified immunity because there was no clearly

10
established law to the contrary. Like the vulgar language in

Fraser, school officials could reasonably believe they were

acting within the scope of their permissible authority in

deciding that the use of threatening language at school

undermines the school’s basic educational mission,

particularly because the incident in Sayreville was only two

weeks after the widely reported fatal shooting of a six-year

old child by another six-year old child at an elementary

school in Flint, Michigan. Although S.G. argues that the

boys were only playing a game, the determination of what

manner of speech is inappropriate properly rests with the

school officials. We therefore hold that the School officials

did not act contrary to any established law. 

B. Procedural Due Process

S.G. also argues that A.G.’s procedural due process

rights were violated because neither S.G. nor his wife was

present when Baumann met with A.G. before his

suspension. S.G. contends that A.G. did not understand

the process, that he or his wife could have explained that

A.G. was not in school when Baumann discussed the issue

of weapons and violence with the students, and that they

did not receive her letter to parents. 

The requirements of procedural due process for

suspension of students were set forth in Goss v. Lopez, 419

U.S. 565 (1975). In that case, the Supreme Court held that

high school students were denied due process of law when

they were suspended for misconduct without a hearing. The

Court stated that a student has a “legitimate entitlement to

a public education as a property interest which is protected

by the Due Process Clause and which may not be taken

away for misconduct without adherence to the minimum

procedures required by that Clause.” Id. at 574. In addition,

because the suspensions could damage the students’

standing with other students and their teachers, and

interfere with later opportunities for higher education and

employment, the Court believed that the students’ liberty

interest in their reputation was also implicated. Id. at 574-

75. 

The Supreme Court concluded that a student facing a

suspension of ten days or less must be given oral or written

11
notice of the charges against him or her and a student who

denies the charges must be given an explanation of the

evidence the authorities have and an opportunity to present

his or her side of the story. Id. at 581. There need be no

delay between the time the notice is given and the time of

the hearing. Id. at 582. In the majority of cases, “the

disciplinarian may informally discuss the alleged

misconduct with the student minutes after it has occurred.”

Id.

The record here reflects that Baumann met with A.G. and

his friends before imposing his suspension. Contrary to

S.G.’s argument, the record does not reflect that A.G. did

not understand the meeting with Baumann. Baumann had

sought to inform A.G.’s parents, but her inability to reach

them does not signify that A.G. was deprived of procedural

due process. She asked each of the boys to explain to her

what he had said and done. The boys admitted that they

were “playing guns,” App. at 64, and that they had made

statements regarding shooting a gun. That discussion

fulfilled the requirements of due process which can be

satisfied in a case like this by informal procedure. 

C. Equal Protection

S.G.’s third constitutional claim is that A.G.’s suspension

violated his right to equal protection because it was

imposed solely because of school policy and lacked a

rational basis. Assuming arguendo that there was a policy

established by the principal that the school had a zero

tolerance policy for threats of violence and students who

made threats or statements referring to weapons would be

punished and receive suspensions, here for three days,

there was no clearly established law holding that such a

policy was irrational. Nor do we see any equal protection

violation. 

In Palmer v. Merluzzi, 868 F.2d 90 (3d Cir. 1989), this

court considered whether a suspension from participation

in interscholastic sports because of drug use violated a

student’s right to equal protection. Applying a rational

relationship test, we concluded that the school’s

disciplinary action was rationally related to a valid state

interest in preserving a drug-free environment in the

12
schools and in discouraging drug use by its students. Id. at

96. Here also, the school’s disciplinary action of short three

day suspensions for threats of violence and similar gun

play was rationally related to the valid state interest in

controlling student conduct in light of the shootings at

other schools nationwide and the recent incidents at A.G.’s

school involving threats of violence. It was not

unreasonable for the principal to seek to avoid conduct

which has the capacity to interfere with the orderly conduct

of the school and other children’s rights to be secure. 

S.G.’s reliance on Seal v. Morgan, 229 F.3d 567 (6th Cir.

2000), is misplaced. In that case, it was for the trier of fact

to decide whether the expulsion of a high school student

who unknowingly possessed a weapon was rationally

related to a legitimate state interest, Id. at 579-80, or, if

not, whether the school violated the student’s substantive

due process rights. Unlike the situation in Seal, A.G. had

knowledge of the underlying conduct for which he was

sanctioned. 

Because S.G.’s allegations are insufficient to establish a

violation of A.G.’s constitutional rights to freedom of

speech, procedural due process or equal protection,3 and

because there is no clearly established law to the contrary,

we will affirm the District Court’s grant of qualified

immunity.4

3. Having concluded that S.G. has not alleged a constitutional claim

against the individual Appellees, we need not address his claims against

the Board of Education. These claims are not based upon any action by

the Board but rather upon its acquiescence in an alleged policy

promulgated and enforced by Bauer and Baumann that violated A.G.’s

constitutional rights. 

4. S.G. seeks injunctive relief to prevent the principal from retaining any

informal record of A.G.’s suspension in her personal notes. Because

such an informal record does not violate any of A.G.’s constitutional

rights, he is not entitled to an order expunging it. 

13
IV.

CONCLUSION

For the reasons discussed above, we will affirm the

judgment of the District Court.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

14