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
Before: Sloviter, Rendell and Stapleton,
The opinion of the court was delivered by: 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.
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 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,*fn1 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 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. ...