5th Circuit upholds Texas school's punishment of student who wrote violent story

TEXAS — School administrators were justified in punishing ahigh school student who wrote a violent story in his notebook, a federal appealscourt ruled Nov. 20 in a decision that free-speech advocates fear could greatlyexpand officials’ power to censor student expression.

A three-judge panel of the 5th U.S. Circuit Court of Appeals based itsdecision on its interpretation of the Supreme Court’s June ruling in Morse v.Frederick, the so-called “Bong Hits 4 Jesus” case. In that decision, theCourt ruled that school officials can censor student speech that a reasonableobserver would believe advocated the use of illegal drugs. The 5th Circuit, inits Nov. 20 ruling, found that by similar reasoning, officials also can punishspeech they believe advocates behavior that endangers students’ physicalsafety.

A Montwood High School sophomore, identified in court documents as E.P.,was suspended for three days in August 2005, after Montwood Assistant PrincipalJesus Aguirre discovered a violent story in the student’s notebook at school.The story, titled “My Nazi Diary Based on a True Story,” was written in the formof a first-person diary. It described the formation and growth of a neo-Naziparty at Montwood and other high schools in the Socorro Independent SchoolDistrict, culminating in a Columbine-style shooting at graduation two yearslater.

E.P. and his parents maintained that the story was entirely fictional, butAguirre concluded the writings constituted a “terroristic threat.” When districtofficials upheld E.P.’s suspension and sought to transfer him to an alternativeeducational program, his parents — Enrique Ponce Jr. and Rocio Ponce — put him in a private school and sued the school district.

The U.S. District Court in El Paso ruled in May 2006 that the districtprobably had violated E.P.’s First Amendment rights. District Judge KathleenCardone issued a preliminary injunction forbidding the district fromtransferring E.P. to the alternative program, maintaining any records of hisdiscipline or discussing the contents of his notebook without his consent. Butthe 5th Circuit’s decision vacated the injunction and ruled that the school’sreaction to the story did not violate E.P.’s rights.

Stephen G. Peters, the Ponces’ attorney, said the family will file a motionMonday for a rehearing before the full 5th Circuit but have not decided whatto do if that request is denied.

“I don’t know if they’re going to want to finance a big jihad over it,”Peters said, noting that appeals to the Supreme Court are “always longshots.”

Peters said Ponce — who enrolled in a different high school in theSocorro district after winning the preliminary injunction — has been doingwell, and that “the absurdity of the school district’s position couldn’t be moreapparent” considering E.P.’s behavior and achievements since returning to thepublic school system.

“Before and after, he was pretty much a model student,” Peters said. Hesaid the Ponces’ main concerns now are allowing their son to finish his senioryear and helping him get into college.

Officials from the Socorro district said no one would be available to speakwith the Student Press Law Center about the case before Monday. AssistantSuperintendent Pat O’Neill told a local television station, ABC affiliate KVIA,that the district was pleased with the 5th Circuit ruling.

“We feel very good about the decisions the court has made. Our number oneconcern is for the safety of students and we take that concern very, veryseriously, ” he said. “We felt like this was a victory for the safety of allstudents.”

Interpreting ‘Bong Hits’

The appellate court relied heavily on Supreme Court Justice Samuel Alito’sconcurring opinion in Morse, which provided the decisive vote for theCourt’s majority. Alito’s opinion said the Court’s ruling went “no further thanto hold that a public school may restrict speech that a reasonable observerwould interpret as advocating illegal drug use” and did not extend to anypolitical or social commentary.

But Alito also noted that schools “can be places of special danger” becausestudents are outside their parents’ protection and “compelled on a daily basisto spend time at close quarters with other students who may do them harm.”

Thus, the 5th Circuit’s interpretation of the general rule established byMorse was that “speech advocating a harm that is demonstrably grave andthat derives that gravity from the ‘special danger’ to the physical safety ofstudents arising from the school environment is unprotected,” and soadministrators do not need to meet the more-protective Tinker standard tocensor such speech. The court said administrators must be able to responsequickly to threats of violence “without worrying that they will have to faceyears of litigation second-guessing their judgment as to whether the threatposed a real risk of substantial disturbance.”

Peters, the Ponces’ attorney, said even under the 5th Circuit’s standard,the court was wrong to conclude that E.P.’s fictional story amounted to”advocacy” of dangerous behavior. The El Paso County Attorney’s Officeinvestigated the matter when E.P. was first suspended and declined to pursue thecase.

Beyond the Ponces’ case, the 5th Circuit’s reading of Morse worriesfree-speech advocates.

“I believe it puts us on a very slippery slope, to a point where manytopics of student speech will be outside the scope of First Amendmentprotection,” said Douglas Lee, an Illinois attorney who serves as a legalcorrespondent for the First Amendment Center.

The 5th Circuit’s standard, unlike that in Tinker, doesn’t requireschool officials to consider how realistic a supposed threat is.

“The threat of violence need not be credible, imminent or even possible,”Lee wrote in a commentary for the First Amendment Center. “It need not be widelydisseminated or even disseminated at all at school. Any speech about violenceagainst students, even if clearly fiction or fantasy, is without First Amendmentprotection in that circuit.”

And the effect of the decision might not be limited to descriptions ofviolence.

“As easily as an assistant principal can conclude that an incredibledescription of violence threatens real harm, an administrator can determine thatan article about birth control in the school newspaper advocates teen sex,” Leewrote.

Lee, who also is school board president for Dixon Public Schools, saidTinker remains a better standard.

“What I have tried to impress upon our school administrators is that Ibelieve that part of being an effective school administrator is evaluating athreat to determine whether a threat is serious enough to warrant thediscipline,” Lee told the Student Press Law Center.

For More Information:

Ponce v. Socorro, No. 06-50709, 2007 WL 4111241 (5th Cir. Nov. 20, 2007).