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

Appellate court's interpretation of 'Bong Hits' case worries free-speech advocates

TEXAS -- School administrators were justified in punishing a high school student who wrote a violent story in his notebook, a federal appeals court ruled Nov. 20 in a decision that free-speech advocates fear could greatly expand officials' power to censor student expression.

A three-judge panel of the 5th U.S. Circuit Court of Appeals based its decision 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, the Court ruled that school officials can censor student speech that a reasonable observer would believe advocated the use of illegal drugs. The 5th Circuit, in its Nov. 20 ruling, found that by similar reasoning, officials also can punish speech they believe advocates behavior that endangers students' physical safety.

A Montwood High School sophomore, identified in court documents as E.P., was suspended for three days in August 2005, after Montwood Assistant Principal Jesus 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 form of a first-person diary. It described the formation and growth of a neo-Nazi party at Montwood and other high schools in the Socorro Independent School District, culminating in a Columbine-style shooting at graduation two years later.

E.P. and his parents maintained that the story was entirely fictional, but Aguirre concluded the writings constituted a "terroristic threat." When district officials upheld E.P.'s suspension and sought to transfer him to an alternative educational 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 district probably had violated E.P.'s First Amendment rights. District Judge Kathleen Cardone issued a preliminary injunction forbidding the district from transferring E.P. to the alternative program, maintaining any records of his discipline or discussing the contents of his notebook without his consent. But the 5th Circuit's decision vacated the injunction and ruled that the school's reaction to the story did not violate E.P.'s rights.

Stephen G. Peters, the Ponces' attorney, said the family will file a motion Monday for a rehearing before the full 5th Circuit but have not decided what to 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 long shots."

Peters said Ponce — who enrolled in a different high school in the Socorro district after winning the preliminary injunction — has been doing well, and that "the absurdity of the school district's position couldn't be more apparent" considering E.P.'s behavior and achievements since returning to the public school system.

"Before and after, he was pretty much a model student," Peters said. He said the Ponces' main concerns now are allowing their son to finish his senior year and helping him get into college.

Officials from the Socorro district said no one would be available to speak with the Student Press Law Center about the case before Monday. Assistant Superintendent 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 one concern is for the safety of students and we take that concern very, very seriously, " he said. "We felt like this was a victory for the safety of all students."

Interpreting 'Bong Hits'

The appellate court relied heavily on Supreme Court Justice Samuel Alito's concurring opinion in Morse, which provided the decisive vote for the Court's majority. Alito's opinion said the Court's ruling went "no further than to hold that a public school may restrict speech that a reasonable observer would interpret as advocating illegal drug use" and did not extend to any political or social commentary.

But Alito also noted that schools "can be places of special danger" because students are outside their parents' protection and "compelled on a daily basis to spend time at close quarters with other students who may do them harm."

Thus, the 5th Circuit's interpretation of the general rule established by Morse was that "speech advocating a harm that is demonstrably grave and that derives that gravity from the 'special danger' to the physical safety of students arising from the school environment is unprotected," and so administrators do not need to meet the more-protective Tinker standard to censor such speech. The court said administrators must be able to response quickly to threats of violence "without worrying that they will have to face years of litigation second-guessing their judgment as to whether the threat posed 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 Office investigated the matter when E.P. was first suspended and declined to pursue the case.

Beyond the Ponces' case, the 5th Circuit's reading of Morse worries free-speech advocates.

"I believe it puts us on a very slippery slope, to a point where many topics of student speech will be outside the scope of First Amendment protection," said Douglas Lee, an Illinois attorney who serves as a legal correspondent for the First Amendment Center.

The 5th Circuit's standard, unlike that in Tinker, doesn't require school 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 widely disseminated or even disseminated at all at school. Any speech about violence against students, even if clearly fiction or fantasy, is without First Amendment protection in that circuit."

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

"As easily as an assistant principal can conclude that an incredible description of violence threatens real harm, an administrator can determine that an article about birth control in the school newspaper advocates teen sex," Lee wrote.

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

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

For More Information:

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

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