NEW YORK — Theattorney for Dylan Finkle, who was suspended from his middle school in 2003 forwriting a horror story and reading it aloud in class, has filed a petition forre-hearing after a federal appeals court rejected his appeal.
Athree-judge panel of the 2nd U.S. Circuit Court of Appealsaffirmedon May 9 a lower court’s ruling that officials at Thompson Middle Schoolin Syosset did not violate Finkle’s First Amendment rights by suspendinghim.
Finkle’s attorney, Christopher Murray, said he filed apetition for a rehearing by the full court in late May and expects a decisionfrom the court in late June or early July.
According to courtdocuments, Finkle was 11 when he wrote the multi-chapter story titled
”Costume Party,” modeled after the horror flick”Halloween,” in which he named characters after some of his friendsand classmates. The story, which was part of a journal that one ofFinkle’s teachers had assigned as a class project, chronicled the killingspree of a character named ”Dylan” who was out for revenge afterbeing bullied by kids at school.
In the story, Finkle graphicallydescribed the murders — many involving a knife or ax — of”mean kids,” some of which occurred while a character was making outtopless on a table or engaged in sex.
Finkle read selected chaptersof his story in front of his English class in 2003 without incident, but laterthat day, when he tried to read it in front of a voluntary program called
”Latin at Lunch,” the program’s instructor decided to read itherself first.
Disturbed by the story, the teacher brought it to theattention of the school’s principal and Finkle was suspended for fivedays. Finkle was also subjected to psychological tests prior to hissuspension.
After Finkle’s suspension was upheld by the SyossetCentral School District, his father Andrew sued the district on his son’sbehalf.
In September 2005, a federal district court in New Yorkruled in favor of the school district, finding that Dylan’s story was notconstitutionally protected speech. The court found that the story did not meetthe standard for protected speech established in the 1969 U.S. Supreme CourtdecisionTinkerv. Des Moines Independent School District.
”The story,with its graphic depictions of the murder of specifically named students and sexbetween named students, may materially interfere with the work of the school bydisturbing the students and teachers,” according to the districtcourt’s ruling.
In the Tinker decision, the Court ruled thatstudents can express themselves freely unless their actions cause a”material and substantial disruption.”
Finkle appealedthe district court’s ruling, but the court of appeals — in a briefdecision that it stated ”may not be cited as precedential authority tothis or any other court” — also sided with the schooldistrict.
Murray said the Finkles are disappointed with thecourt’s decision but will continue appealing, even to the Supreme Court ifnecessary.
”Weobviously know the odds are long, but we feel it’s an important case andwe will exhaust all of our options in the appeal process,” Murraysaid.