The First Amendment vs. school safety


Judges tell administrators that they cannot use unfounded fears of violence to justify violations of student rights





One year after the Columbine High School shooting, courts are telling school
officials that the First Amendment still applies.

In three recent cases that have tested the balance between students’
free-speech rights and school officials’ safety concerns, judges have come
out emphatically on the side of free speech.

Courts are warning school districts that despite fears ignited by high-profile
shootings like the one in Littleton, Colo., they cannot trample on constitutionally
protected speech — even in the name of school safety.

“What the courts are starting to say clearly is that schools don’t have
the authority to punish people for exercising their freedom of speech,”
said Doug Honig, a spokesman for the American Civil Liberties Union of
Washington, which represented a student suspended for his Web site.

Since January, three separate federal courts have ruled in favor of
students who were suspended or expelled for speech that school officials
deemed threatening. All of the judges addressed the issue of schools’ safety
concerns in the wake of heightened fears about school violence, but none
were willing to grant school districts greater authority to override students’
First Amendment rights.

These cases are the first in which judges have issued decisions regarding
the free-speech rights of public school students in the post-Columbine
era. Following the recent spate of shootings, schools have become increasingly
concerned about safety and have been punishing students for all kinds of
speech and behavior that they view as threatening, or even different. School
officials argue that they need to be given more leeway in punishing students
in order to prevent tragedies like Columbine, but so far, judges have been
reluctant to chip away at students’ rights.

“These cases are finally getting in front of judges, and judges are
still enforcing the same rules that have already been in place,” said Breean
Beggs, an attorney who represented a student suspended for writing a poem.
“What school districts have been arguing is that the old rules should be
changed.”

Emmett v. Kent School District

U.S. District Court Judge John Coughenour refused to grant a Washington
school district more latitude in punishing student speech, instead ruling
that the district violated a student’s First Amendment rights by suspending
him for his Web site.

Nick Emmett, a senior at Kentlake High School, was suspended for five
days for a Web site he created at home. The site, titled the “Unofficial
Kentlake High School Home Page,” contained a message board and pictures
of him and his friends, in addition to a mock obituary section.

The mock obituaries described the humorous and imagined deaths of other
classmates and were created with the permission of the subjects. In fact,
they became so popular that a section was added to the site where other
students could vote for who the subject of the next obituary should be.

But Emmett immediately took the site down after a local television station
referred to the obituaries as a “hit list.” The day after the segment aired,
school officials suspended Emmett for five days. Emmett then filed a lawsuit
against the school district contesting the punishment.

Judge Coughenour issued a temporary
restraining order
in February, prohibiting Kent School District from
enforcing Emmett’s suspension until a preliminary injunction hearing could
be held.

Coughenour said there was no evidence supporting the charge that the
mock obituaries were threatening or intended as threats, even when placed
in context of the climate created by recent school shootings.

“The [school district] argues, persuasively, that school administrators
are in an acutely difficult position after recent school shootings in Colorado,
Oregon, and other places,” Coughenour said in his decision. “Web sites
can be an early indication of a student’s violent inclinations, and can
spread those beliefs quickly to like-minded or susceptible people. The
[school district], however, has presented no evidence that the mock obituaries
and voting on this Web site were intended to threaten anyone, did actually
threaten anyone, or manifested any violent tendencies whatsoever.”

Coughenour also said the school district did not have authority to punish
Emmett for the site because it was not created on school property.

“Although the intended audience was undoubtedly connected to Kentlake
High School, the speech was entirely outside the school’s supervision or
control,” Coughenour said.

The school district reached a settlement with Emmett in March, before
the preliminary injunction hearing took place. The district agreed to drop
its punishment, pay Emmett $1 in damages and cover the cost of his attorneys.

“Cases on free speech on the Web outside of school are just starting
to hit the courts so it’s an important precedent,” Honig said. “The judge
recognized that the school doesn’t have authority to punish somebody for
freedom of speech outside of school.”

LaVine v. Blaine School District

A federal judge also found in favor of another Washington student
who was expelled for writing a poem that administrators perceived as threatening.

U.S. District Judge Barbara Jacobs Rothstein ruled that Blaine School
District violated the First Amendment rights of James LaVine when it expelled
him in October 1998 for the content of a poem he wrote about school violence.

“‘Last Words’ was not a sincere expression of intent to harm or assault,
and the poem therefore falls squarely within the purview of the First Amendment’s
core protections,” Rothstein said in her decision.

“Last Words” is a first-person account of a student who kills his classmates
and then anguishes over what he has done. LaVine, who wrote the poem less
than six months after a school shooting in Oregon but before the Columbine
shooting, asked a Blaine High School teacher to review the poem, which
was not part of a class assignment.

The teacher, concerned by the violent content of the poem, showed it
to school administrators. School officials expelled LaVine on an emergency
basis for violating the school district’s disciplinary code. After a psychiatrist
examined LaVine and said he was fit to return to school, the district repealed
the emergency expulsion.

LaVine filed a lawsuit against the district when the school board refused
to erase the incident from his disciplinary record.

“The expulsion of James LaVine for the mere content of his poetry, which
expressed thoughts and feelings about teen violence, violated James’ right
to free speech,” said LaVine’s attorney, Beggs, in the complaint filed
in the case.

Beggs said the Supreme Court had upheld students’ right to free speech
in school, citing the 1969 decision Tinker
v. Des Moines Independent School District,
in which the Court concluded
that students had the right to wear black arm bands in school as a symbol
of protest against the Vietnam War. The Court ruled that schools could
only limit students’ free-speech rights in situations where they could
show that the speech would cause a substantial disruption to the school
day.

Beggs compared school officials’ fears of school violence today to the
anxiety the Des Moines School District felt when faced with controversy
over the Vietnam War.

“Both backdrops were frightening and alarming to those charged with
the effective and safe operation of our schools,” Beggs said in the complaint.
“However, the Constitution’s protection of speech is not measured against
the social backdrop of the times.”

Judge Rothstein agreed.

“The Supreme Court has repeatedly held that both teachers and students
retain their Constitutional rights to freedom of speech and expression,”
she said. “Poetry is one of the classical means for artistic expression
of the content of one’s mind, and as such, falls within the core speech
protected by the Constitution.”

Rothstein rebuked school officials for insisting upon keeping documentation
of the incident in LaVine’s disciplinary file and ordered them to remove
it from his record.

“Forever saddling James LaVine with the baggage flowing from an expulsion
of dubious constitutional validity serves no governmental interest at all,
while James LaVine may be precluded from pursuing future career opportunities
as a result of this incident,” Rothstein said. “The District’s decision
to maintain negative documentation in James LaVine’s file is far too removed
from its legitimate safety concerns to be constitutionally justified.”

Beggs said he was pleased that the court upheld his client’s constitutional
rights in the face of societal concerns over school violence.

“I’m encouraged by the judge’s decision,” Beggs said. “Even when there
is a bit of public outcry and hysteria, [the court] has said, ‘No, the
law is the law, and we’re simply going to follow it.’”

Blaine School District appealed the case to the U.S. Court of Appeals
for the Ninth Circuit. Beggs said the court put the case on an alternative
dispute resolution track to try to get the parties to settle.

Boman v. Bluestem Unified School District

In Kansas, a federal judge ruled in February that a school district
violated the free-speech rights of a student who was suspended for posting
artwork
that administrators viewed as threatening

Sarah Boman, a senior at Bluestem High School, was expelled for the
remainder of the school year for hanging a poster in a school hallway that
depicted the thoughts of a madman. Boman said she created the poster for
a portfolio she planned to submit to art colleges. Boman often hung her
artwork around the school to get feedback from students and teachers.

But school administrators saw the artwork, which featured a spiraling
narrative of questions such as “who killed my dog?” and statements like
“I’ll kill you if you don’t tell me who killed my dog” and “I’ll kill you
all!” as a threat to student safety. They suspended Boman for five days
and later decided to expel her.

Boman appealed the district’s decision, and the district hearing officer
who presided over her case recommended that the school board reinstate
her, saying that Boman’s expulsion was not warranted and could not be legally
justified.

The school board refused to adopt the hearing officer’s recommendation.
Instead, the board said Boman would have to undergo a psychological evaluation
before she would be allowed to return to school and stipulated that Boman’s
suspension could be reinstated if she was involved in any other disciplinary
incidents.

Boman then filed a lawsuit against the school district, claiming that
it violated her right to free speech. In January, U.S. District Judge Wesley
Brown issued a preliminary injunction barring the Bluestem School District
from enforcing the suspension and ordering the district to allow her to
return to school.

“There is simply no factual basis for believing that Ms. Boman threatened
harm to other students or that her return to school would constitute a
threat,” Brown said in his ruling on the preliminary injunction. “As such,
there is no basis for requiring her to undergo a psychological evaluation.”

Brown expressed sympathy for the difficulties school officials face
in being responsible for student safety, saying that concern over safety
“is particularly high now in view of recent episodes of student violence.”
School officials have not only a right, but a duty to investigate potential
threats, he said.

“But once the school district gathered the facts, and the context of
the poster and the statements in it became clear, there simply was no longer
a factual basis for believing that the poster constituted any sort of threat,”
Brown said. “The lines in the poster were essentially a work of fiction
like the lines of a play — and when understood as such they represented
no threat at all.”

The Bluestem School District did not appeal the decision and paid Boman’s
attorneys $15,000 in fees. Bill Hays, one of the attorneys representing
Boman, said he hopes judges’ decisions and districts having to pay attorney’s
fees in cases like Boman’s will “be some incentive for [schools] not to
act so irrationally the next time around.”

“Students do have some rights,” Hays said. “They just don’t surrender
all their rights when they go to high school.”

Federal judges appear to agree with Hays. In his decision in Bomanv.Bluestem Unified
School District,
Brown cited an essential part of the Tinker decision
that prohibits schools from trampling on students’ speech rights.

“The Supreme Court said that an ‘undifferentiated fear or apprehension
of disturbance is not enough to overcome the right of freedom of expression’
for public school students,” Brown said.

But some wonder whether school districts are hearing the message.

Dick Kurtenbach, director of the ACLU of Kansas and Western Missouri,
said his office is still confronted with examples of students being disciplined
under questionable circumstances.

“We, along with every other ACLU affiliate in the country, have been
inundated with these complaints,” Kurtenbach said.

Beggs said that until the three decisions were issued, there was no
guidance for cases in which hypersensitive school districts punish students
for so-called threatening speech.

“This gives guidance to everyone: students, parents and school districts,”
Beggs said. “School districts can know that [they] can’t just kick a kid
out, there has to be something more than that. I’m hopeful that once these
decisions percolate out there, it will calm things down quite a bit because
the rule will be clear.

“Right now, school districts are worried,” he said. “Frankly, one of
the reasons they’re doing this is not to protect their kids. They’re worried
that they’re going to get sued” if a student gets hurt at school.

But according to a report
issued by the Justice Policy Institute in April, school districts face
little legal liability in situations where a student is injured by another
student at school.

“Federal courts have yet to impose liability under federal civil rights
laws against a school system based on a claim of failure to protect,” the
report states. “State courts have, for the most part, also continued to
recognize sovereign immunity principles.”

Furthermore, violent crime in schools is declining. According to the
report, the number of serious violent crimes committed at school declined
34 percent between 1993 and 1998.

But even absent legal liability or proof that school violence is increasing
— and with several court decisions on their side — many people who work
to protect students’ rights do not see the situation improving.

“[The Columbine effect] is not wearing off,” said Kurtenbach.

“I wish I saw it turning around,” Hays said.

“I think it will get worse or will continue to be bad — and I think
it’s very bad,” Beggs said. “But if we get a few more of these cases decided,
and if school districts have to start paying the money for attorney’s fees
and things like that, then that will counteract it, and I think people
will also begin to realize that this isn’t really solving the problem.

“It hasn’t prevented any school shootings so it’s kind of ludicrous,
I think.”


reports, Spring 2000

More Information


  • Emmett v. Kent School District
Emmett v. Kent School District No. 415,2000 U.S. Dist. LEXIS
4995 (W.D. Wash. Feb. 23, 2000)(temporary restraining order).

  • LaVine v. Blaine School Dsitrict
LaVine v. Blaine School District,No. C99-1074R (W.D. Wash. Feb.
24, 2000)(unpublished).

Boman v. Bluestem Unified School District


Opinion: Boman v. Bluestem Unified School District No 205,2000
U.S. Dist. LEXIS 5297 (D. Kan. Feb. 14, 2000).

Preliminary Injunction: Boman v. Bluestem Unified School
District No 205,
2000 U.S. Dist. LEXIS 5389 (D. Kan. Jan. 28, 2000)(preliminary
injunction).