The First Amendment vs. school safety

One year after the Columbine High School shooting, courts are telling schoolofficials that the First Amendment still applies.

In three recent cases that have tested the balance between students’free-speech rights and school officials’ safety concerns, judges have comeout emphatically on the side of free speech.

Courts are warning school districts that despite fears ignited by high-profileshootings like the one in Littleton, Colo., they cannot trample on constitutionallyprotected speech — even in the name of school safety.

“What the courts are starting to say clearly is that schools don’t havethe authority to punish people for exercising their freedom of speech,”said Doug Honig, a spokesman for the American Civil Liberties Union ofWashington, which represented a student suspended for his Web site.

Since January, three separate federal courts have ruled in favor ofstudents who were suspended or expelled for speech that school officialsdeemed threatening. All of the judges addressed the issue of schools’ safetyconcerns in the wake of heightened fears about school violence, but nonewere willing to grant school districts greater authority to override students’First Amendment rights.

These cases are the first in which judges have issued decisions regardingthe free-speech rights of public school students in the post-Columbineera. Following the recent spate of shootings, schools have become increasinglyconcerned about safety and have been punishing students for all kinds ofspeech and behavior that they view as threatening, or even different. Schoolofficials argue that they need to be given more leeway in punishing studentsin order to prevent tragedies like Columbine, but so far, judges have beenreluctant to chip away at students’ rights.

“These cases are finally getting in front of judges, and judges arestill enforcing the same rules that have already been in place,” said BreeanBeggs, an attorney who represented a student suspended for writing a poem.”What school districts have been arguing is that the old rules should bechanged.”

Emmett v. Kent School District

U.S. District Court Judge John Coughenour refused to grant a Washingtonschool district more latitude in punishing student speech, instead rulingthat the district violated a student’s First Amendment rights by suspendinghim for his Web site.

Nick Emmett, a senior at Kentlake High School, was suspended for fivedays for a Web site he created at home. The site, titled the “UnofficialKentlake High School Home Page,” contained a message board and picturesof him and his friends, in addition to a mock obituary section.

The mock obituaries described the humorous and imagined deaths of otherclassmates and were created with the permission of the subjects. In fact,they became so popular that a section was added to the site where otherstudents could vote for who the subject of the next obituary should be.

But Emmett immediately took the site down after a local television stationreferred to the obituaries as a “hit list.” The day after the segment aired,school officials suspended Emmett for five days. Emmett then filed a lawsuitagainst the school district contesting the punishment.

Judge Coughenour issued a temporaryrestraining order in February, prohibiting Kent School District fromenforcing Emmett’s suspension until a preliminary injunction hearing couldbe held.

Coughenour said there was no evidence supporting the charge that themock obituaries were threatening or intended as threats, even when placedin context of the climate created by recent school shootings.

“The [school district] argues, persuasively, that school administratorsare in an acutely difficult position after recent school shootings in Colorado,Oregon, and other places,” Coughenour said in his decision. “Web sitescan be an early indication of a student’s violent inclinations, and canspread those beliefs quickly to like-minded or susceptible people. The[school district], however, has presented no evidence that the mock obituariesand voting on this Web site were intended to threaten anyone, did actuallythreaten anyone, or manifested any violent tendencies whatsoever.”

Coughenour also said the school district did not have authority to punishEmmett for the site because it was not created on school property.

“Although the intended audience was undoubtedly connected to KentlakeHigh School, the speech was entirely outside the school’s supervision orcontrol,” Coughenour said.

The school district reached a settlement with Emmett in March, beforethe preliminary injunction hearing took place. The district agreed to dropits punishment, pay Emmett $1 in damages and cover the cost of his attorneys.

“Cases on free speech on the Web outside of school are just startingto hit the courts so it’s an important precedent,” Honig said. “The judgerecognized that the school doesn’t have authority to punish somebody forfreedom of speech outside of school.”

LaVine v. Blaine School District

A federal judge also found in favor of another Washington studentwho was expelled for writing a poem that administrators perceived as threatening.

U.S. District Judge Barbara Jacobs Rothstein ruled that Blaine SchoolDistrict violated the First Amendment rights of James LaVine when it expelledhim in October 1998 for the content of a poem he wrote about school violence.

“‘Last Words’ was not a sincere expression of intent to harm or assault,and the poem therefore falls squarely within the purview of the First Amendment’score protections,” Rothstein said in her decision.

“Last Words” is a first-person account of a student who kills his classmatesand then anguishes over what he has done. LaVine, who wrote the poem lessthan six months after a school shooting in Oregon but before the Columbineshooting, asked a Blaine High School teacher to review the poem, whichwas not part of a class assignment.

The teacher, concerned by the violent content of the poem, showed itto school administrators. School officials expelled LaVine on an emergencybasis for violating the school district’s disciplinary code. After a psychiatristexamined LaVine and said he was fit to return to school, the district repealedthe emergency expulsion.

LaVine filed a lawsuit against the district when the school board refusedto erase the incident from his disciplinary record.

“The expulsion of James LaVine for the mere content of his poetry, whichexpressed thoughts and feelings about teen violence, violated James’ rightto free speech,” said LaVine’s attorney, Beggs, in the complaint filedin the case.

Beggs said the Supreme Court had upheld students’ right to free speechin school, citing the 1969 decision Tinkerv. Des Moines Independent School District, in which the Court concludedthat students had the right to wear black arm bands in school as a symbolof protest against the Vietnam War. The Court ruled that schools couldonly limit students’ free-speech rights in situations where they couldshow that the speech would cause a substantial disruption to the schoolday.

Beggs compared school officials’ fears of school violence today to theanxiety the Des Moines School District felt when faced with controversyover the Vietnam War.

“Both backdrops were frightening and alarming to those charged withthe effective and safe operation of our schools,” Beggs said in the complaint.”However, the Constitution’s protection of speech is not measured againstthe social backdrop of the times.”

Judge Rothstein agreed.

“The Supreme Court has repeatedly held that both teachers and studentsretain their Constitutional rights to freedom of speech and expression,”she said. “Poetry is one of the classical means for artistic expressionof the content of one’s mind, and as such, falls within the core speechprotected by the Constitution.”

Rothstein rebuked school officials for insisting upon keeping documentationof the incident in LaVine’s disciplinary file and ordered them to removeit from his record.

“Forever saddling James LaVine with the baggage flowing from an expulsionof dubious constitutional validity serves no governmental interest at all,while James LaVine may be precluded from pursuing future career opportunitiesas a result of this incident,” Rothstein said. “The District’s decisionto maintain negative documentation in James LaVine’s file is far too removedfrom its legitimate safety concerns to be constitutionally justified.”

Beggs said he was pleased that the court upheld his client’s constitutionalrights in the face of societal concerns over school violence.

“I’m encouraged by the judge’s decision,” Beggs said. “Even when thereis a bit of public outcry and hysteria, [the court] has said, ‘No, thelaw is the law, and we’re simply going to follow it.'”

Blaine School District appealed the case to the U.S. Court of Appealsfor the Ninth Circuit. Beggs said the court put the case on an alternativedispute resolution track to try to get the parties to settle.

Boman v. Bluestem Unified School District

In Kansas, a federal judge ruled in February that a school districtviolated the free-speech rights of a student who was suspended for postingartworkthat administrators viewed as threatening

Sarah Boman, a senior at Bluestem High School, was expelled for theremainder of the school year for hanging a poster in a school hallway thatdepicted the thoughts of a madman. Boman said she created the poster fora portfolio she planned to submit to art colleges. Boman often hung herartwork around the school to get feedback from students and teachers.

But school administrators saw the artwork, which featured a spiralingnarrative of questions such as “who killed my dog?” and statements like”I’ll kill you if you don’t tell me who killed my dog” and “I’ll kill youall!” as a threat to student safety. They suspended Boman for five daysand later decided to expel her.

Boman appealed the district’s decision, and the district hearing officerwho presided over her case recommended that the school board reinstateher, saying that Boman’s expulsion was not warranted and could not be legallyjustified.

The school board refused to adopt the hearing officer’s recommendation.Instead, the board said Boman would have to undergo a psychological evaluationbefore she would be allowed to return to school and stipulated that Boman’ssuspension could be reinstated if she was involved in any other disciplinaryincidents.

Boman then filed a lawsuit against the school district, claiming thatit violated her right to free speech. In January, U.S. District Judge WesleyBrown issued a preliminary injunction barring the Bluestem School Districtfrom enforcing the suspension and ordering the district to allow her toreturn to school.

“There is simply no factual basis for believing that Ms. Boman threatenedharm to other students or that her return to school would constitute athreat,” Brown said in his ruling on the preliminary injunction. “As such,there is no basis for requiring her to undergo a psychological evaluation.”

Brown expressed sympathy for the difficulties school officials facein being responsible for student safety, saying that concern over safety”is particularly high now in view of recent episodes of student violence.”School officials have not only a right, but a duty to investigate potentialthreats, he said.

“But once the school district gathered the facts, and the context ofthe poster and the statements in it became clear, there simply was no longera factual basis for believing that the poster constituted any sort of threat,”Brown said. “The lines in the poster were essentially a work of fictionlike the lines of a play — and when understood as such they representedno threat at all.”

The Bluestem School District did not appeal the decision and paid Boman’sattorneys $15,000 in fees. Bill Hays, one of the attorneys representingBoman, said he hopes judges’ decisions and districts having to pay attorney’sfees in cases like Boman’s will “be some incentive for [schools] not toact so irrationally the next time around.”

“Students do have some rights,” Hays said. “They just don’t surrenderall their rights when they go to high school.”

Federal judges appear to agree with Hays. In his decision in Bomanv.Bluestem UnifiedSchool District, Brown cited an essential part of the Tinker decisionthat prohibits schools from trampling on students’ speech rights.

“The Supreme Court said that an ‘undifferentiated fear or apprehensionof disturbance is not enough to overcome the right of freedom of expression’for public school students,” Brown said.

But some wonder whether school districts are hearing the message.

Dick Kurtenbach, director of the ACLU of Kansas and Western Missouri,said his office is still confronted with examples of students being disciplinedunder questionable circumstances.

“We, along with every other ACLU affiliate in the country, have beeninundated with these complaints,” Kurtenbach said.

Beggs said that until the three decisions were issued, there was noguidance for cases in which hypersensitive school districts punish studentsfor so-called threatening speech.

“This gives guidance to everyone: students, parents and school districts,”Beggs said. “School districts can know that [they] can’t just kick a kidout, there has to be something more than that. I’m hopeful that once thesedecisions percolate out there, it will calm things down quite a bit becausethe rule will be clear.

“Right now, school districts are worried,” he said. “Frankly, one ofthe reasons they’re doing this is not to protect their kids. They’re worriedthat they’re going to get sued” if a student gets hurt at school.

But according to a reportissued by the Justice Policy Institute in April, school districts facelittle legal liability in situations where a student is injured by anotherstudent at school.

“Federal courts have yet to impose liability under federal civil rightslaws against a school system based on a claim of failure to protect,” thereport states. “State courts have, for the most part, also continued torecognize sovereign immunity principles.”

Furthermore, violent crime in schools is declining. According to thereport, the number of serious violent crimes committed at school declined34 percent between 1993 and 1998.

But even absent legal liability or proof that school violence is increasing– and with several court decisions on their side — many people who workto protect students’ rights do not see the situation improving.

“[The Columbine effect] is not wearing off,” said Kurtenbach.

“I wish I saw it turning around,” Hays said.

“I think it will get worse or will continue to be bad — and I thinkit’s very bad,” Beggs said. “But if we get a few more of these cases decided,and if school districts have to start paying the money for attorney’s feesand things like that, then that will counteract it, and I think peoplewill also begin to realize that this isn’t really solving the problem.

“It hasn’t prevented any school shootings so it’s kind of ludicrous,I think.”