Out-of-school speech is protected, court rules

Federal judge says expulsion violates First Amendment

ARKANSAS -- A junior high school student in the Pulaski County School District was expelled for one year in September because of profane writing he did at home -- but a federal judge reinstated him less than two weeks later, ruling the school district violated the student's First Amendment rights.

In September, U.S. District Judge George Howard Jr. granted a temporary restraining order in the case, allowing Northwood Junior High School eighth-grader Josh Mahan to return to his studies at the local alternative school. Howard affirmed his original ruling with a permanent injunction in November. Doe v. Pulaski County Special School Dist., No. 4:00CV00707 GH (E.D. Ark. Nov. 22, 2000).

Mahan, 14, represented by the Arkansas American Civil Liberties Union, drew the one-year expulsion after school officials obtained a letter he wrote about his recent break-up with another student, Kelly Gregg. He did not bring the letter, described in court documents as "patently offensive" with references to "violence, misogynism, and suicide," to school. Rather, it was stolen from his home by another friend who later gave the letter to Gregg.

Gregg then turned the letter over to school authorities.

Mahan's initial punishment called for a one-semester suspension for "terroristic threatening." He was to spend the suspension in alternative school, where he could complete his course work.

His parents challenged the suspension to the full school board, which ruled Sept. 12 not only to uphold the suspension, but to lengthen it into a full-year expulsion and bar Mahan from attending alternative school.

"Even though the letter contained what are arguably 'threatening words,' Josh did not intend to convey those words to anyone," Howard said in his opinion. "Josh was expelled from school solely because of protected speech contained in a private document taken from his home without his permission. [School officials'] actions violated Josh's rights under the First Amendment."

Rita Sklar, executive director of the Arkansas ACLU, approved of the decision.

"No government official has the right to punish a person for expressing his or her feelings," she said. "If the government could punish uncommunicated thought or feelings, how many of us could be jailed for the pages of our journals or the contents of unsent letters?"

reports, Winter 2000-01