ARKANSAS — A Northwood Junior High student’s free expression rights were not violated when he was expelled from school for a threatening letter he wrote at home, according to a 6-4 decision by the U.S. Court of Appeals for the Eighth Circuit filed last week.
In the undelivered letter to his former girlfriend, Josh Mahan described how he would rape, sodomize and murder her, according to court documents. Pulaski County School District officials learned of the letter Mahan wrote over the summer of 2000 when his friend stole it from his home and brought it to school on the second day of class. The friend showed the letter to Mahan’s ex-girlfriend, who turned it in to school authorities. The 14-year-old boy was expelled from Pulaski schools. His parents sued the school district.
The review by the full Eighth Circuit court overturned previous decisions that ruled that the letter was not a true threat because Mahan did not intend to show it to the girl. A federal judge in Little Rock and a split three-judge panel for the Eighth Circuit had ruled to allow him to attend a Pulaski County alternative school for the remainder of the year.
In the majority opinion of the latest decision, Circuit Judge David R. Hansen wrote that the student is accountable if a reasonable recipient would have viewed the letter as a threat.
According to the court, once a threatening thought or idea is communicated, it is the government’s responsibility to alleviate the threatened person’s fear. “[The student’s] previous portrayal of himself as a tough guy with a propensity for aggression made his threat more credible and contributed to [the ex-girlfriend’s] response,” said the decision.
Chip Welch, the attorney cooperating with the Arkansas American Civil Liberties Union on the Mahan’s behalf, called the possible implications of the ruling “a wild extension of Tinker.” His statement was in reference to the 1967 U.S. Supreme Court ruling that states that a student does not shed his or her First Amendment rights at the schoolhouse gate.
“I don’t think they’ve thought this through,” said Welch. “It’s a clear-cut case of government intrusion.”
In his opinion on behalf of the four dissenting judges, Gerald W. Heaney called the majority opinion “misguided.”
“Although a reasonable person would naturally be shocked by the contents of the letter, it is unreasonable for [the student’s ex-girlfriend] to have concluded that her life was in danger.”
Heaney pointed to Mahan’s lack of any prior criminal record and good academic standing. He called the student’s tough guy image “teenage bravado at best,” saying it did not warrant the court’s serious consideration.
Judge Theodore McMillian lent a broad perspective in an individual dissent, questioning the school’s authority over something a student writes in his own home, “not at school or during school hours or using school equipment.”
“If anything, the statement was arguably a police matter, for which, I note, the local prosecuting attorney refused to issue any charges,” said McMillian.
Rita Sklar, Executive Director of the Arkansas ACLU, said they will be considering a petition to have the case heard by the U.S. Supreme Court.
Doe v. Pulaski County Special School District, 2002 U.S. App. LEXIS 20301 (8th Cir. 2002)