A student in a San Francisco charter school is facing the threat of expulsion after writing a “dark” poem referencing the Newtown school shootings, part of a wave of suspensions and expulsions sweeping the nation since the Dec. 14 massacre at Sandy Hook Elementary School.
Courtni Webb says her poem — which included the line “I know why he pulled the trigger” — was a literary meditation on evil and not a threat to do anyone harm. But her school maintains — and after Newtown, is aggressively enforcing — a “zero tolerance” disciplinary policy toward anything that hints at violence.
Cases like Webb’s are playing out in schools across the country, as administrators react (or at times, overreact) to student speech that refers to Newtown or more generally references guns or violence:
- Five Utah high school students were suspended and are facing misdemeanor criminal charges after one of them brought a Playstation game console to school and joked that it was a bomb, and the others joined in the joke. A school official, alluding to Newtown, said the joke amounted to “saying the wrong thing at the wrong time.”
- Police in New Jersey searched the home of a 16-year-old after he drew a sketch in a school notebook of a cartoon character shooting flames out of his gloves. They found chemicals that could be used in bomb-making, and charged him with possession of an explosive device.
- A Georgia high school suspended a student whose Facebook posting promising classmates a “big surprise” — his annual Christmas treat, coming to school dressed as Santa — was mistaken for a threat.
- A Florida elementary-school student was given a four-day suspension because a classmate told a teacher that the student was carrying a gun. He wasn’t — he was carrying a Sharpie pen under a hat.
- An Oklahoma middle school suspended a student for what it termed a “tasteless prank,” making a drawing of a bomb.
- A high school student in Georgia was suspended for an “insensitive” comment about Newtown that, although it indicated no specific intent to harm anyone, was taken as threatening.
- A Wisconsin high school student was suspended, taken from the school in handcuffs and arrested under his school’s zero-tolerance policy, for making a joke about wearing explosives to school. A second student who joked in class about the original comment was also suspended.
Notably, in none of these cases — nor in the dozens of other reported suspensions and expulsions that have followed the Newtown tragedy — have authorities concluded that any threat was intended, or that any of the disciplined students had access to weapons.
Speech constituting a “true threat” is unprotected by the First Amendment. The Supreme Court’s approach to determining what qualifies as a true threat has been described, accurately, as “a muddled mess.”
The Court has made clear that speech is not a true threat just because it is “very crude” and “offensive.” Two essential prerequisites for a true threat seem to be (1) that the threat can reasonably be understood as serious, and (2) that the speaker actually had some realistic capability of carrying out the threat (e.g., “I’m going to shoot you to Mars on the space shuttle” would not qualify).
Within school, courts have given the government greater leeway even when a threat seems farfetched. For instance, a federal appeals court in Texas found no First Amendment violation when a school expelled a student who wrote a science-fiction “journal” in which he fantasized about leading a type of neo-Nazi uprising at his school culminating in a mass shooting.
But the same appeals court decided that a school went too far in expelling a student for a fanciful drawing of his school exploding — which he made at home and left in a closet, where it sat for two years until his younger brother accidentally brought the sketchpad to school. In that case, the court held, the punishment was unconstitutional in the absence of any evidence that the student meant to communicate the “threat” to anyone outside his own household.
Even when punishment is within the scope of a school’s lawful authority, not everything that a school can get away with legally is a sound educational practice.
It may make sense to remove a potentially threatening student from school for the time it takes to conduct an investigation. And it is understandable that disciplinarians will be on a short fuse for as long as the memory of Sandy Hook remains fresh, which is why students should never, ever joke about doing violence toward others in the school community.
But once it is determined that a poem, song, drawing or a joke carried no intent to harm, it’s questionable whether punishment is really the educationally sound response.
What “lesson” is usefully conveyed, for instance, to a student like John George, whose well-intentioned Christmas surprise was misunderstood: “Don’t say things that people might misunderstand?” Punishment is entirely proper for people who mean to frighten or threaten others. But for those who are at worst innocently mistaken, schools should first try what they do best, education, and not what they do worst, discipline.
Civil-rights advocate are awakening to the damage inflicted when minor wrongdoing — or even misunderstood innocent behavior — is met with suspension or expulsion. The phenomenon even has a name: “the school-to-prison pipeline.”
The trajectory of a young life can be permanently altered for the worse when a student is removed from school long enough for his grades to crater, and when his record carries the stigma of “threatening violence.” A college will not know — and is unlikely to take the time to find out — that the “threat” was a misunderstood Facebook posting about Santa Claus.