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Boy's "wish" to blow up school warrants suspension, court says

By Jonathan Stempel

(Reuters) - A New York school district acted properly in suspending a 10-year-old boy who during a class exercise wrote in crayon that he wanted to "blow up the school with the teachers in it," a divided federal appeals court said.

The boy, then a fifth-grade student at Berea Elementary School in Montgomery, New York, about 75 miles north of Manhattan, had been suspended for six days by the Valley Central School District for his September 12, 2007 crayon message.

The incident occurred when the boy's science teacher distributed pictures of an astronaut and asked students to write a "wish" in the astronaut's left leg. Other students laughed when they learned what the boy, known as "B.C." in court papers, was writing.

The boy's parents William and Margaret Cuff sued, saying the suspension violated their son's First Amendment right to freedom of expression.

But in a 2-1 decision, the 2nd U.S. Circuit Court of Appeals in New York on Thursday said school officials have "wide leeway" to discipline students for threatening violence, and that it was reasonably foreseeable that B.C.'s drawing could cause a substantial disruption.

It cited the boy's history of disciplinary issues, and his having "embraced" violence in earlier drawings and writing. The court also said the boy's sharing of his message might have tempted other students to copy his conduct.

"Whether B.C. intended his 'wish' as a joke or never intended to carry out the threat is irrelevant," Judge Ralph Winter wrote for the court majority. "Nor does it matter that B.C. lacked the capacity to carry out the threat."

Judge Rosemary Pooler dissented. "I am convinced that a jury could find that this young boy's crude attempt at humor merely had the potential to cause mild amusement among his classmates -- not alarm," she wrote.

Thursday's decision upheld a May 2010 ruling by U.S. District Judge Jed Rakoff in Manhattan. The boy is now 15.

Stephen Bergstein, a lawyer for the Cuffs, said he is disappointed with the decision, and said the school overreacted in suspending the boy.

"It was 10-year-old kid who was joking around, and didn't mean anything by it," he said. "It's not Columbine." Bergstein said it is unclear whether his clients will appeal.

Adam Kleinberg, a lawyer for the school district, said the decision reaffirms that "great deference" be afforded to school administrators. "School officials should not be required to wait until after something has occurred," he said.

(Reporting By Jonathan Stempel; Editing by Paul Thomasch)

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