WASHINGTON — The attorney for a student expelled from school for\nsubmitting a poem about a school shooting is asking a federal\nappeals court to reconsider its ruling upholding the punishment.
Breean Beggs, the student’s attorney, said the U.S. Court of\nAppeals for the Ninth Circuit ignored evidence that the expulsion\nwas primarily meant as a punishment instead of a precaution.
The Ninth Circuit ruled in July that "the totality of\nthe relevant facts" surrounding James LaVine’s "emergency\nexpulsion" indicated school officials had reason to believe\nthe action was necessary to avoid disruption of the school in\nlight of a spate of recent school shootings.
"We conclude that when the school officials expelled James\nLaVine they acted with sufficient justification and within constitutional\nlimits, not to punish James for the content of his poem, but to\navert perceived potential harm," Judge Raymond Fisher wrote\nin the court’s opinion.
The court said administrators were not justified, however,\nin maintaining a record of the action in LaVine’s file after determining\nno threat existed.
LaVine was expelled for 17 days in October 1998 after he asked\na teacher to look over a poem he had written about a fictitious\nschool shooting.
School officials said that given LaVine’s recent history of\ndisciplinary and family problems, they were concerned that he\nwas a danger to himself and other students. LaVine had been disciplined\nonce before for a violent act, he had a domestic dispute with\nhis father and he was reportedly stalking an ex-girlfriend. Earlier,\nhe had told a school official that he had considered suicide.
LaVine was allowed to return to school after a psychological\nevaluation convinced administrators that he had no intention of\nviolence.
Although the court said the suspension was probably unnecessary,\nit said the school successfully balanced LaVine’s First Amendment\nrights with the district’s concern for safety.
"School officials have a difficult task in balancing safety\nconcerns against chilling free expression," the court said.\n"This case demonstrates how difficult that task can be."
Beggs said the court erred in concluding that the expulsion\nwas a precautionary safety measure when school officials admitted\nits purpose was to discipline him as well. It would set a bad\nprecedent, he said, if schools are allowed to punish students\nas long as they can justify it as a matter of safety.
"You simply can’t punish people for their speech,"\nBeggs said.
The court said it was the circumstances surrounding the poem\nand not the content itself that merited the school’s reaction.\nAccordingly, the court ordered the school to remove mention of\nthe incident from LaVine’s disciplinary record because the feared\ndisruption did not occur.
"Even though we conclude that emergency expelling James\ndid not violate the First Amendment, the same cannot be said for\nthe school’s placement and maintenance in James’ file of what\nthe district court characterized as ‘negative documentation,’"\nthe court said. "The school need not permanently blemish\nJames’ record and harm his ability to secure future employment."
Beggs said his client has already suffered because of his record,\nincluding being rejected from serving in the military.