Appeals court denies rehearing for Wash. student expelled for writing poem

WASHINGTON — Even though a federal appellate court lastmonth denied a request to rehear before a full panel of judgesa case involving a student who was expelled from high school fora poem he wrote at home, two dissenting opinions accompanyingthe ruling strongly criticized the court’s decision and supportedstudent free expression.

"The panel consigns high schools to a constitutional blackhole, where freedom of speech exists only to the extent that administratorsare comfortable with it," U.S. Circuit Judge Andrew J. Kleinfeldsaid in a lengthy opinion blasting the panel’s refusal to re-hearLaVine v. Blaine School District. "That is not thelaw," he added.

James LaVine took the Blaine School District to federal courtin 1998 when he received a 17-day expulsion over a poem he hadbrought into school to ask a teacher to critique. The poem, afictitious narrative about a student killing 28 classmates andthen feeling remorseful before committing suicide, alarmed theteacher and prompted him to contact school officials, who thenexpelled LaVine and forced him to undergo psychiatric evaluation.

School officials at the time expressed concern that LaVinewas a danger to himself and other students because of a recenthistory of disciplinary and family problems.

LaVine wrote the poem after several high school shootings nationwidebut before the shootings at Columbine High School in Littleton,Colo.

The poem, "Last Words," included graphic imagerysuch as, "I drew my gun and threw open the door, Bang, Bang,Bang, Bang. When it was all over, 28 were dead."

A federal judge granted LaVine summary judgement against theschool in February 2000. Blaine then appealed the case to theU.S. Court of Appeals for the Ninth Circuit. In July 2001, theappellate court reversed the earlier decision and ruled that theschool district had acted appropriately.

Last month’s denial for a rehearing upholds that decision,which LaVine’s lawyer Breean Beggs said could chill student speechand give educators leverage to punish students for their ideas.

Kleinfeld and dissenting U.S. Circuit Judges Stephen Reinhardtand Alex Kozinski agreed.

"We do not, under our Constitution, allow the governmentto punish artists for making art," Kleinfeld said, "whetherthe art is good or bad, whether it makes people feel good or bad,unless the expression falls within a well established categoryof unprotected speech. This right too does not end at the schoolhousegate."

Kleinfeld cautioned that restricting student speech does notprevent violence in schools: "As for the cure, there is noparticular reason to think that punishing speech about schoolviolence will reduce the amount of school violence," he said."Suppression of speech may reduce security as well as liberty.Allowing the school to punish a student for writing a poem abouta school killer may foster school killings, by drying up informationfrom students about their own and other students’ emotional troubles."

Beggs said he plans to appeal the decision to the U.S. SupremeCourt.

Cite: LaVine v. Blaine School District, 2002WL 10985 F.3d (9th Cir. 2002)

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