23-7232-cv

Kristoffersson v. Port Jefferson Union Free Sch. Dist. 

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

Rulings by summary order do not have precedential effect. Citation to a summary order 

filed on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate 

Procedure 32.1 and this court’s Local Rule 32.1.1. When citing a summary order in a 

document filed with this court, a party must cite either the Federal Appendix or an 

electronic database (with the notation “summary order”). A party citing a summary order 

must serve a copy of it on any party not represented by counsel.

At a stated term of the United States Court of Appeals for the Second Circuit, 

held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the 

City of New York, on the 12th day of July, two thousand twenty-four. 

PRESENT: Reena Raggi, 

Steven J. Menashi, 

Alison J. Nathan, 

Circuit Judges.

____________________________________________ 

MADELEINE KRISTOFFERSSON, on behalf of 

R.R., an infant, as her natural mother and 

guardian, 

Plaintiff-Appellant, 

v. No. 23-7232-cv

PORT JEFFERSON UNION FREE SCHOOL 

DISTRICT, ERIC HARUTHUNIAN, High School 

Principal, JESSICA SCHMETTAN, 

Superintendent, and MATTHEW SEFICK, 

Defendants-Appellees. 

____________________________________________ 
2 

For Plaintiff-Appellant: JOHN RAY, John Ray & Associates, Miller 

Place, New York. 

For Defendants-Appellees: CHELSEA WEISBORD (Adam I. Kleinberg, on 

the brief), Sokoloff Stern LLP, Carle Place, 

New York.

Appeal from a judgment of the United States District Court for the Eastern 

District of New York (Azrack, J.). 

Upon due consideration, it is hereby ORDERED, ADJUDGED, and 

DECREED that the judgment of the district court is AFFIRMED. 

The plaintiff in this case, Madeleine Kristoffersson, is the natural mother and 

guardian of R.R., who was a Port Jefferson high school student at all times relevant 

to this case. In April 2021, R.R. wrote a sonnet about the killing of George Floyd 

and submitted it for publication in her high school’s literary magazine. The school 

refused to publish the sonnet, and Kristoffersson brought this lawsuit against the 

school district, the school principal, the district superintendent, and the literary 

magazine’s faculty advisor, claiming that the school’s decision violated R.R.’s 

rights under the First and Fourteenth Amendments as well as under the 

constitution and statutes of New York. The district court granted the defendants’ 

motion to dismiss, holding that R.R.’s First Amendment rights were not violated 

under the standards of Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988), 

and that her Fourteenth Amendment claims coalesced with her First Amendment 

claim and therefore failed for the same reason. Kristoffersson did not request—

and the district court did not grant—leave to amend the complaint. We assume 

the parties’ familiarity with the underlying facts, the procedural history of the case, 

and the issues on appeal. 
3 

I 

R.R. was a student at Earl L. Vandermeulen High School in Port Jefferson, 

New York, which is part of the Port Jefferson Union Free School District. 

Defendants Eric Haruthunian and Jessica Schmettan were the school principal and 

district superintendent, respectively, and defendant Matthew Sefick was an 

English teacher and the faculty advisor for the school’s literary magazine, The 

Mast. The Mast was published twice per school year and featured short stories and 

poems written by students at the school. The Mast was edited by students and 

overseen by the faculty advisor, principal, and superintendent. 

In April 2021, shortly after a jury found Derek Chauvin guilty of Floyd’s

murder, R.R. wrote a sonnet in iambic pentameter with the title “Derek Chauvin’s 

Ode to George Floyd: A Dark Sonnet.” According to the complaint, the sonnet was 

intended to “reflect the contemptuous racial hatred demonstrated by a white 

figure of authority for a helpless African American,” “capture the deeply bred 

racially motivated cause of the death of George Floyd,” and “convey the intense 

reason for the nation-wide reaction to Chauvin’s murder of George Floyd.” App’x 

37. 

The complaint alleges that “[t]he Defendants acknowledged that the sonnet 

was very well-written” but “forbade the editors of The Mast to publish the sonnet.” 

Id. When R.R. protested, the defendants explained that they decided not to publish 

the sonnet because it would “create adverse emotional reactions and strife in the 

Port Jefferson community, amongst students and faculty, due to the sonnet’s 

allegedly controversial content.” Id. at 37-38. Kristoffersson, however, claims that 

the defendants “prevented and forbade the publication of R.R.’s sonnet and sonnet 

title in order to suppress [her] freedom of speech and of expression,” and in 

particular to prevent her from advocating on behalf of African Americans. Id. at 

39. She also claims that the defendants “believed the views expressed in the 

aforesaid sonnet would be controversial and unpopular due to the sympathy 

expressed therein for African American victims of white racism.” Id. at 39-40. 
4 

According to the complaint, in 2021, nearly 80 percent of the school and the Port 

Jefferson community was white, and no more than 1 percent was African

American. 

After the sonnet was denied publication, Kristoffersson filed this lawsuit on 

behalf of R.R. The complaint asserted § 1983 claims for violations of the First and 

Fourteenth Amendments, as well as violations of the New York State Constitution 

and the New York State Human Rights Law (“NYSHRL”), and sought damages of 

$2 million as well as punitive damages and attorney’s fees. 1 The defendants 

moved to dismiss the complaint for failure to state a claim, and in her opposition 

to the defendants’ motion, Kristoffersson cross-moved for partial summary 

judgment and “submitted a 25-page affidavit by R.R., along with 21 exhibits, 

which include ... past issues of The Mast; emails among R.R., student editors, and 

Defendants regarding her poem; and 50-h examination transcripts.” Kristoffersson 

on behalf of R.R. v. Port Jefferson Union Free Sch. Dist., No. 22-CV-1741, 2023 WL 

6119710, at *3 (E.D.N.Y. Sept. 18, 2023) (citation omitted). The defendants 

submitted their own affidavits, exhibits, and testimony in response. 

The district court declined to convert the defendants’ motion to dismiss into 

a motion for summary judgment, and it therefore did not consider materials 

extraneous to the complaint that the parties submitted. The district court then 

granted the defendants’ motion to dismiss for failure to state a claim and denied 

Kristoffersson’s cross-motion for partial summary judgment as moot. The district 

court noted that even if Kristoffersson’s motion had not been moot, it would have 

been denied because Kristoffersson failed to submit a timely Rule 56.1 statement. 

II

“We review a district court’s grant of a motion to dismiss de novo, accepting 

as true all factual claims in the complaint and drawing all reasonable inferences in 

the plaintiff’s favor.” Altimeo Asset Mgmt. v. Qihoo 360 Tech. Co., 19 F.4th 145, 147 

1 Kristoffersson does not challenge the dismissal of her claims under state law. 
5 

(2d Cir. 2021) (quoting Henry v. County of Nassau, 6 F.4th 324, 328 (2d Cir. 2021)). 

“The Court must examine the complaint for ‘facial plausibility,’ considering 

whether the ‘factual content’ ‘allows the court to draw the reasonable inference 

that the defendant is liable for the misconduct alleged.’” Tongue v. Sanofi, 816 F.3d 

199, 209 (2d Cir. 2016) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).

“Although we generally review denials of leave to amend for abuse of discretion, 

in cases in which the denial is based on futility, we review de novo that legal 

conclusion.” Shimon v. Equifax Info. Servs. LLC, 994 F.3d 88, 91 (2d Cir. 2021). 

III

Initially, we address the district court’s decision not to convert the 

defendants’ motion to dismiss into a motion for summary judgment. After 

concluding that the district court properly exercised its discretion, we turn to the 

merits of Kristoffersson’s claims. First, we hold that the defendants did not engage 

in viewpoint discrimination and that their decision not to publish R.R.’s sonnet 

was permissible under Hazelwood. Second, we hold that the Fourteenth 

Amendment claims coalesce with the First Amendment claim and for that reason 

fail as well. Third, we conclude that the district court did not err by failing to grant 

leave to amend the complaint. 

A 

Kristoffersson argues that the district court erred in refusing to convert the 

defendants’ motion to dismiss into a motion for summary judgment, which would 

have allowed the district court to consider the affidavit and exhibits she submitted 

in response to the motion to dismiss. 

The Federal Rules of Civil Procedure provide that “[i]f, on a motion under 

Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to and not 

excluded by the court, the motion must be treated as one for summary judgment 

under Rule 56.” Fed. R. Civ. P. 12(d) (emphasis added). “As the language of the 

rule suggests, federal courts have complete discretion to determine whether or not to 

accept the submission of any material beyond the pleadings that is offered in 
6 

conjunction with a Rule 12(b)(6) motion and rely on it, thereby converting the 

motion [to a motion under Rule 56], or to reject it or simply not consider it.” 

5C Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and 

Procedure § 1366 (3d ed.) (emphasis added); see Chambers v. Time Warner, Inc., 

282 F.3d 147, 154 (2d Cir. 2002) (“Once the District Court was presented with 

matters outside the pleadings, Rule 12(b) afforded two options. The court could 

have excluded the extrinsic documents. Because it elected not to do so, however, 

the court was obligated to covert the motion to one for summary judgment.”). 

In exercising that discretion, a district court typically considers “whether or 

not the proffered material, and the resulting conversion from the Rule 12(b)(6) to 

the Rule 56 procedure, is likely to facilitate the disposition of the action.” Wright, 

Miller & Kane, supra, § 1366. “[R]eversal for lack of conversion is not required 

unless there is reason to believe that the extrinsic evidence actually affected the 

district court’s decision and thus was not at least implicitly excluded.” Amaker v. 

Weiner, 179 F.3d 48, 51 (2d Cir. 1999); see McCracken v. Verisma Sys., Inc., 91 F.4th 

600, 609 (2d Cir. 2024) (holding that, because the district court “did not consider 

matters outside of the pleadings in deciding the Rule 12(c) motion ... it was not 

required to convert the motion into one for summary judgment”).

In this case, the district court expressly stated that it would not consider the 

extrinsic materials the parties submitted. Kristoffersson has not offered any reason 

to believe that the extrinsic materials the defendants submitted affected the district 

court’s decision. We therefore conclude that the district court did not abuse its 

discretion in declining to convert the defendants’ motion to dismiss into a motion 

for summary judgment. 

B 

The parties dispute whether the First Amendment claim is governed by 

Hazelwood or the stricter standard set forth in Tinker v. Des Moines Independent 

Community School District, 393 U.S. 503 (1969). See Collins v. Putt, 979 F.3d 128, 132 

(2d Cir. 2020) (noting that Tinker is “more protective of student speech than 
7 

Hazelwood”). Under either standard, however, a public school violates the First 

Amendment if it engages in viewpoint discrimination—that is, “[d]iscrimination 

against speech because of its message.” Rosenberger v. Rector & Visitors of Univ. of 

Va., 515 U.S. 819, 828 (1995). “[A] manifestly viewpoint-discriminatory restriction 

on school-sponsored speech is, prima facie, unconstitutional, even if reasonably 

related to legitimate pedagogical interests.” Peck ex rel. Peck v. Baldwinsville Cent. 

Sch. Dist., 426 F.3d 617, 633 (2d Cir. 2005). By contrast, a viewpoint-neutral 

restriction on “the style and content of student speech in school-sponsored 

expressive activities” is permissible under Hazelwood provided it is “reasonably 

related to legitimate pedagogical concerns.” Hazelwood, 484 U.S. at 273. 

The district court held that Kristoffersson failed plausibly to allege 

that the defendants discriminated against R.R. because of the viewpoint expressed 

in her sonnet. We agree. Kristoffersson argues that the district court erred in 

concluding that the defendants’ refusal to publish was viewpoint neutral because 

“the sonnet is indubitably an expression of Appellant’s opinion and perspective 

as to the historic event.” Appellant’s Br. 22. The inquiry focuses not on whether 

the speech at issue expressed a viewpoint, however, but on whether it was 

regulated because of that viewpoint. Kristoffersson’s complaint fails plausibly to 

allege that it was. The complaint asserts that the defendants told R.R. that they 

would not publish the sonnet in The Mast because they thought it would “create 

adverse emotional reactions and strife” within the school community. App’x 37. 

But it fails to include factual allegations plausibly connecting the school’s 

expressed concern with the viewpoint of the sonnet as opposed to its topic and 

tone. See Collins, 979 F.3d at 135 (noting that school officials have not “regulated in 

a viewpoint discriminatory manner” when their actions were “based on the 

content and style” of a student’s speech rather than “the particular viewpoint 

expressed”). For example, the complaint alleges that “other students’ poems were 

published” in The Mast, App’x 41, but it nowhere describes the subjects of those 

published poems or the viewpoints expressed. Without that description, the mere 
8 

fact of the poems’ publication fails to raise a plausible inference that the decision 

not to publish R.R.’s poem was viewpoint-based. 

The complaint also alleges that the defendants refused to publish the sonnet 

because it would have offended the white majority in the student body and the 

Port Jefferson community, see App’x 38-40, but the district court correctly 

determined that these “entirely conclusory” allegations are not entitled to the 

presumption of truth for purposes of the motion to dismiss. Kristoffersson, 2023 WL 

6119710, at *6; see Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (“[O]n a motion 

to dismiss, courts ‘are not bound to accept as true a legal conclusion couched as a 

factual allegation.’”) (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)); Krys v. 

Pigott, 749 F.3d 117, 128 (2d Cir. 2014) (noting that a court is not “required to accept 

as true allegations that are wholly conclusory”). Because the complaint offers no 

factual matter to support the assertion that the defendants discriminated against 

R.R. because of her viewpoint, the district court did not err by declining to credit 

the assertion that they did. 

The district court also correctly held that Hazelwood rather than Tinker

supplies the governing standard. Hazelwood applies when the speech at issue is 

part of a “school-sponsored expressive activity.” Collins, 979 F.3d at 132 (alteration 

omitted) (quoting Hazelwood, 484 U.S. at 273). “We evaluate whether a student’s 

speech is ‘school sponsored’ based on whether ‘students, parents, and members of 

the public might reasonably perceive’ the speech ‘to bear the imprimatur of the 

school.’” Id. at 132-33 (alteration omitted) (quoting Hazelwood, 484 U.S. at 271). The 

district court found that The Mast bears “hallmarks of school sponsorship.” 

Kristoffersson, 2023 WL 6119710, at *4 (quoting Collins, 979 F.3d at 133). These 

hallmarks include the following facts: 

(i) The Mast is the literary magazine of Earl L. Vandermeulen High 

School; (ii) it is composed of works submitted by the school’s 

students; (iii) the works are selected by student editors, whose 

decisions are subject to review by school officials, specifically, Sefick, 
9 

Haruthunian, and Schmettan; (iv) it is published by the school; and 

(v) it is distributed to students, faculty, and members of the Port 

Jefferson community. 

Id. Kristoffersson does not dispute these facts but argues that such facts do not 

establish that The Mast was a school-sponsored expressive activity such that 

Hazelwood should apply. That argument is refuted by Hazelwood itself, which 

treated a similar student publication as a school-sponsored expressive activity. See 

Hazelwood, 484 U.S. at 273. Likewise, in R.O. ex rel. Ochshorn v. Ithaca City School

District, 645 F.3d 533 (2d Cir. 2011), we decided that a school newspaper was a 

school-sponsored expressive activity because—in addition to being published 

under the name of the school—the school provided the resources and budget for 

the newspaper and the newspaper was never published without the oversight of 

a faculty advisor. See id. at 541. The district court did not err in applying 

Hazelwood.2 

Applying the Hazelwood standard, the district court did not err in concluding 

that the actions of the defendants were permissible as reasonably related to 

legitimate pedagogical concerns. The Hazelwood Court recognized that “a school 

must be able to take into account the emotional maturity of the intended audience 

in determining whether to disseminate student speech on potentially sensitive 

topics.” Hazelwood, 484 U.S. at 272. Moreover, “[a] school must also retain the 

authority to refuse to sponsor student speech that might reasonably be perceived 

to ... associate the school with any position other than neutrality on matters of 

political controversy.” Id. The complaint acknowledges that the defendants’ stated 

2 The complaint further establishes that The Mast is school-sponsored when it alleges that 

the defendants refused to publish R.R.’s sonnet because they feared that the school 

community would be upset by the sonnet and direct its anger “at and against the 

Defendants’ schools.” App’x 39; see Ochshorn, 645 F.3d at 541 (noting that “members of 

the community at large apparently believed that [the newspaper] was school-sponsored” 

because they directed complaints about the newspaper’s contents to the school and not 

to the newspaper’s student managers). 
10 

reason for declining to publish R.R.’s sonnet was to avoid “creat[ing] adverse 

emotional reactions and strife in the Port Jefferson community, amongst students 

and faculty, due to the sonnet’s allegedly controversial content.” App’x 37-38; see

Appellee’s Br. 31-32 (arguing that the defendants did not publish the sonnet out of 

a “desire to avoid controversy within a school environment”). With the complaint 

alleging both the political sensitivity of the sonnet’s subject and the defendants’ 

stated interest in avoiding the emotional strife and controversy that would 

accompany its publication, we conclude that, under Hazelwood, school officials 

permissibly declined to publish the sonnet. As already discussed, the complaint 

offers no non-conclusory allegations that raise an inference that the defendants’ 

justification was pretextual. The district court properly decided that the complaint 

failed to state a claim for violation of the First Amendment. 

C 

The district court also was correct in holding that Kristoffersson’s failure to 

state a First Amendment claim dooms her Fourteenth Amendment claims. See 

African Trade & Info. Cent., Inc. v. Abromaitis, 294 F.3d 355, 363 (2d Cir. 2002) 

(explaining that when the basis of an equal protection claim is a purported 

violation of the First Amendment, the “equal protection claim and the[] First 

Amendment claim coalesce”); Cobb v. Pozzi, 363 F.3d 89, 110 (2d Cir. 2004) (“Due 

to the manner in which they have cast their contentions throughout this action, the 

plaintiffs’ [Fourteenth Amendment] selective prosecution and [First Amendment] 

retaliation claims ‘coalesce.’”). Kristoffersson effectively conceded before the 

district court, and concedes again on appeal, that her equal protection claims stand 

or fall with her First Amendment claim.3 That makes sense because the allegations 

of the complaint on which the equal protection claims depend largely reiterate the 

3 See Plaintiff’s Memorandum of Law in Opposition to Motion to Dismiss at 11, 

Kristoffersson v. Port Jefferson Union Free Sch. Dist., No. 22-CV-01741 (E.D.N.Y. March 29, 

2022), ECF No. 25 (arguing that, because Kristoffersson’s First Amendment claim is 

viable, “the equal protection claim remains viable as well”); Appellant’s Br. 23 (same).
11 

alleged First Amendment violation. The complaint alleges, for example, that the 

defendants violated R.R.’s “right to free speech and expression within the school” 

and that “[b]y reason of [this violation], [R.R.] was deprived of ... [her] right to 

equal protection of law.” App’x 41. The complaint further alleges that the 

defendants violated R.R.’s right to equal protection by “prevent[ing] R.R. from 

advocating for the advancement of African American citizens.” Id. at 43. Such 

claims are premised on the same allegations that underlie the First Amendment 

claim. We conclude that the district court properly dismissed Kristoffersson’s 

Fourteenth Amendment claims as well. 

D 

Kristoffersson argues on appeal that the district court should have granted 

her leave to amend the complaint. The defendants correctly observe that 

Kristoffersson never sought leave to amend from the district court. A district court

does not generally abuse its discretion in “failing to grant a request that was not 

made.” Gallop v. Cheney, 642 F.3d 364, 369 (2d Cir. 2011). Moreover, leave to amend 

would have been futile in this case because Kristoffersson has not identified factual 

allegations she would add to the complaint to state a plausible First or Fourteenth 

Amendment claim. See Noto v. 22nd Century Grp., 35 F.4th 95, 107 (2d Cir. 2022) 

(“[D]enial of leave to amend is proper ‘where the request gives no clue as to how 

the complaint’s defects would be cured.’”) (quoting Loreley Fin. (Jersey) No. 3 Ltd. 

v. Wells Fargo Sec., LLC, 797 F.3d 160, 190 (2d Cir. 2015)).4

4 The district court also did not err in denying as moot Kristoffersson’s cross-motion for 

partial summary judgment after it granted the defendants’ motion to dismiss. See 

McCracken, 91 F.4th at 609 (“[I]t was not error, but rather an exercise of efficiency, to first 

decide the motion for judgment on the pleadings, because if the court concluded (as it 

did) that the [plaintiffs’] allegations, taken as true, did not state a claim, there would be 

no value in assessing the evidence on a summary judgment motion. And based on our 

foregoing conclusion that the [plaintiffs] failed to state a claim, the district court also did 

not err in denying their cross-motion for summary judgment as moot.”) 
12 

* * * 

We have considered Kristoffersson’s remaining arguments, which we 

conclude are without merit. For the foregoing reasons, we affirm the judgment of 

the district court.

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk of Court