The Doctrine of Patia Potestas Confers Child Custody Upon Mexican Nationals Over Their Children and is Entitled to Full Faith and Credit in North Carolina Courts

            

Patia Potestas is a doctrine of custodial authority of Roman origin which originally conveyed absolute and despotic rights of a father (Paterfamilias) over his children. Gonzales v. Preston, 107 F. Supp 3d 1226 (M.D. Ala. 2015); Saldivar v. Rodela, 879 F. Supp. 2d 610 (W.D. Tex. 2012); Patricia Begne, Symposium on Comparative Custody Law, North American Parental Authority and Child Custody in Mexico, 39 Fam. L.Q. 527 (Summer 2005). As the head of his household, Roman law also bestowed upon the father similar power over the persons of his grandchildren, and other descendants. William Smith, Patria Potestas in John Murray, A Dictionary of Roman Antiquities 873 (London 1875). Whether this power in its extreme forms was actually employed on any consistent basis is a matter of debate. See Steven Thomson, Was Ancient Rome a Dead Wives Society? What Did the Roman Paterfamilias Get Away With? Journal of Family History V. 31, No. 1 (January2006), 3-27. Nevertheless, it is clear that the Roman Paterfamilias did enjoy widespread authority over the activities of his family relations until his death, unless he had previously emancipated a family member from such authority. Id.


The doctrine of Patia Potestas continues to have legal vitality today. The most notable example can be found in the laws of the State of Mexico which has codified the doctrine in its Federal Civil Code. C.C.D.F. art. 411 ("In the relationship between ascendants and descendants, children, regardless of their age, status or other conditions shall honor and respect their parents and other relatives"). The present incarnation of Patria Potestas has evolved from being purely authority to be exercised by the male head of the household to a more gender neutral duty which not only provides custodial authority to both parents but also imposes obligations upon parents to provide for the needs of their children and for children to obey their parents. Patricia Begne, Symposium on Comparative Custody Law, North American Parental Authority and Child Custody in Mexico, 39 Fam. L.Q. 527 (Summer 2005). As a codified legal doctrine, Patria Potestas "constitutes the 'most comprehensive' right that a parent can exercise over the person and property of his or her minor children." Saldivar v. Rodela, 879 F. Supp. 2d 610 (W.D. Tex. 212). Furthermore, it creates a constellation of legal rights for each biological parent over a child, starting with formal custody but also includes the right to care for the child and make substantive decisions about the child’s life.Gonzales v. Preston, 107 F. Supp 3d 1226 (M.D. Ala. 2015); Patricia Begne, Symposium on Comparative Custody Law, North American Parental Authority and Child Custody in Mexico, 39 Fam. L.Q. 527 (Summer 2005). 


With the immigration of large numbers of individuals and families from the State of Mexico each year,, litigation over issues of child custody among persons from whose origins are from the State of Mexico will naturally require examining whether the doctrine of Patia Potestas applies. If in fact it I found to apply, a reviewing court must give full faith and credit to the custodial authority imposed by Mexican Law in the same way it would do so with regard to a formal child custody order.Diaz v. Ibarra, No. CV-19-03183-PHX-DWL (D. Ariz. Sep. 13, 2019). Whallon v. Lynn, 230 F.3d 450 (!rst Cir. 2000); Gonzalez v. Pena, 194 F. Supp. 3d 897 (D. Ariz. 2016); DeLaRiva v. Soto, 183 D.Supp. 3d 1182 (M.D. Fla. 2016); Aguilera v. De Lara, 2014 WL3427548, 2 & n 1 (D. Ariz. 2014); Seaman v. Peterson, 762 F. Supp. 2d 1363 (M.D. Ga. 2011).  

Establishing Nexus between Substance Abuse and Adverse Impact on Child Critical in Neglect Cases

Many, if not most juvenile cases, involve substance abuse as at least one problem that impairs a parent, guardian, caretaker or custodian’s ability to provide effective care for dependent children. When formulating pleadings that allege neglect due to substance abuse in the home, it is essential that the pleadings set forth allegations that there is substantial evidence a child either suffers physical, mental, or emotional impairment, or that the child is at a substantial risk of suffering such impairment, as the result of substance abuse in the child’s home. See In re K.J.B., 248 N.C. App.__, 797 S.E.2d 516 (2016); In re E.P., 183 N.C. App. 301, 645 S.E.2d 772, aff’d per curiam, 362 N.C. 82, 653 S.E.2d 143 (2007).

The import of this established legal doctrine was touched upon most recently in the North Carolina Court of Appeals opinion in In re : J.C.M.J.C., J.J.C.C., C.O.C, __N.C. App.__,__S.E.2d__(October 15, 2019). In that case, the Court of Appeals reversed a trail court’s adjudication of neglect where allegations were that a child’s clothes “smelled of marijuana” without other evidence that the child welfare suffered as a result of substance abuse in the home.

Juvenile pleadings, and the accompanying substantial evidence of both impairment and adverse impact, can come in many forms. For example, a newborn child testing positive for controlled substances at birth demonstrating listlessness, tremors, unabated crying, physical defect, or impaired development can meet the evidentiary standard. See In re Leftwich, 135 N.C. App. 67, 518 S.E.2d 799 (1999). Likewise, demonstrating that a child was in the sole care of an impaired individual whether in the home or in an automobile. See In re L.W., 175 N.C. App. 387, 623 S.E.2d 626, appeal dismissed and disc review denied, 360 N.C. 534, 633 S.E.2d 818 (2006); In re E.C., 174 N.C. App. 517, 621 S.E.2d 647 (2005).  Finally, in cases where there is household financial instability, allegations and accompanying proof that the household income is being siphoned away to support a drug habit might also be sufficient to meet the standard.

The critical point is that allegations and evidence of substance abuse, standing alone, will not be sufficient to establish neglect unless a nexus is made between the complained of activity and the welfare of a child in the home.

North Carolina's Juvenile Justice Reinvestment Act: No Change in Juvenile Recidivism and a $20 Million Dollar Taxpayer Boondoggle?

In 2017, the North Carolina General Assembly passed Senate Law 2017-57, otherwise known as the Juvenile Justice Reinvestment Act, which raised the Juvenile Court jurisdiction in North Carolina to include offenses incurred by 16 and 17 year olds. This expansion of juvenile court jurisdiction, premised in part upon the notion that juveniles commit offenses largely due to psychological immaturity (their brains aren’t fully developed), is said by some to have the potential to double the population being served in the Juvenile Justice System. If the advocates that led to the passage of this legislation are correct, the public will benefit in a number of ways. These include a reduction in overall incarceration costs (since juvenile offenders will no longer be able to serve sentences in excess of their 20th birthday); greater ability to provide necessary psychological and psychiatric services to this population; and a reduced recidivism rate (since with all the psychiatric and psychological treatment these juveniles will be getting and with their increased psychological maturity, they will be less likely to want to commit offenses in the future). In a nutshell, the Juvenile Justice Reinvestment Act is claimed to save money and reduce crime as a result of “raising the age” of juvenile accountability in North Carolina.

While there seemed to be little more than cheerleading in the days that led to the enactment of this legislation, now that "Raise the Age" is about to begin, it would be an appropriate time to examine two of the essential claims that supported the bill’s passage.

When one examines the first claim made in support of raising the age, that the people of the State of North Carolina will save money, the States own reporting seems to demonstrate that the claim is unsupportable and largely false. Estimates provided by the Juvenile Jurisdiction Advisory Committee Interim Report this year show needed expenditures of $5.7 million in Fiscal Year 2020 alone with a slightly lesser sum recurring in the years thereafter. Juvenile Jurisdiction Advisory Committee Juvenile Age Interim Report, January 15, 2019. The Committee Report also recommends that the General Assembly fund the state court system’s “existing deficiencies at a cost of $15 million in Fiscal Year 2020” and at a rate of $14.5 million in every year thereafter. Interestingly, the Committee Report mentions no offset monies coming from the North Carolina Division of Prisons (or any other participant in the adult court system). So one can only assume that these funds will be additional expenditures with savings arising if, and when, crime goes down.

The second claim, that crime will go down as juvenile recidivism rates decline, is also likely to be false. In a law review article published in the Journal for Legal Studies in 2015, Professor Charles E. Loeffler of the University of Pennsylvania and Lecturer in Law Ben Grunwald of the University of Chicago Law School report the results of their own study of the effect of “raise the age” as it was implemented in Illinois and specifically with regard to its impact on juvenile offenders in Chicago. Charles E. Loeffler and Ben Grunwald, Decriminalizing Delinquency: The Effect of Raising the Age of Majority on Juvenile Recidivism, 44 J. Legal Stud. 361-388 (June 2015). According to their research, which utilized a difference-in-differences design with multiple control groups, increasing the maximum age for juvenile court did not affect the rate of juvenile recidivism in Chicago. Other studies, according to the authors, have reached similar conclusions in other jurisdictions. Another interesting conclusion drawn by the authors is that previous studies used to support the raise the age legislation were potentially flawed. These studies, which showed a higher rate of recidivism among juveniles transferred to the adult system, focused on juveniles who had committed serious felonies, which are relatively rare, instead of the vast majority of juvenile offenses that involved misdemeanors and lesser felonies. Thus, it may be the case that the raise the age legislation was fashioned as a remedy for a problem that might not have even existed.

Despite all the fanfare and media hype that led to the passage of this State’s “Raise the Age” legislation, it seems likely that the people of North Carolina will not be rewarded with any significant change in the nature of juvenile re-offense patterns. Rather, they can expect juveniles to re-offend in much the same way as they did before the passage of the legislation. Furthermore, taxpayers can expect a bill of nearly $5.7 to $20 million dollars each year beginning in 2020.  What will they get for their money? It seems not a whole lot of anything.

N.C. CHAPTER 7B-600 GUARDIANSHIP: THE PERMANENT PLAN THAT INCREASINGLY FAILS TO LIVE UP TO EXPECTATIONS

Guardianship is supposed to be a permanent plan for a juvenile but increasingly is viewed as a temporary arrangement for children until the child’s parents can get their act together. This view is contrary to the spirit and letter of the law and district court judges should be exceedingly cautious to assure that appointed guardians are in it for the long haul.

As a general proposition, Guardianship in a Juvenile Case pursuant to N.C. General Statute 7B-600 can be conferred at any time during the pendency of a case, even prior to the adjudication if the child appears at a hearing with no parent. N.C. Gen. Stat. 7B-600(a). For the most part, however, guardianship is only appropriate only where “the court has determined that the appointment of a relative or other suitable person as guardian of the person for a juvenile is a permanent plan. Id. at (b).

The reason that guardianship is an ideal permanent plan is that, aside from termination of parental rights, it is structurally the most permanent. To dissolve a guardianship, it is entirely insufficient to merely show that a material change of circumstances has transpired with regard to either the parent or the child. In re Williamson, 77 N.C. App. 53 (1985). Rather, one must show the guardian is unwilling or unable to serve, has neglected the child, the guardian is unfit or that continuation of the guardianship is contrary to the best interests of the juvenile. Id. So it really doesn’t matter that mom has “found Jesus” and spends her days distributing alms to poor or that Dad has suddenly decided, after 41 years, to get his first job, buy a home and marry his fifteenth paramour. 

All of this is decidedly immaterial.

But it will be objected to that the Guardian must be willing to serve as guardian and in light of changed circumstances, many guardians, usually paternal or maternal grandparents, are all too willing to return to the status of grandparents and let the actual biological parents take charge for once. Thus, the occasion which gives rise to many guardianship dissolutions.

This specter, which is haunting our fruited plain, must be confronted head-on.

Guardianship, to be a permanent plan, should be, well, . . . permanent! This means that when the court is examining a proposed guardian about their ability to serve as guardian physically and financially and about whether they understand the responsibilities of guardianship, and exchange like this should probably occur:

JUDGE:                 SO AFTER EXAMINATION, I WILL FIND THAT YOU ARE PHYSICALLY AND FINANCIALLY ABLE TO PROVIDE FOR LITTLE JIMMY BUT I HAVE ONE MORE QUESTION FOR YOU.

PROPOSED

GUARDIAN:        YES YOUR HONOR, ASK AWAY.

JUDGE:                 DO YOU KNOW WHAT PERMANENT MEANS?

PROPOSED

GUARDIAN:        WHY YES, THAT MEANS A LONG TIME.

JUDGE:                 MORE THAN “A LONG TIME”. IT CAN MEAN UNTIL YOU ARE PLANTED IN THE GROUND FERTILIZING DAISIES.

PROPOSED

GUARDIAN:        YOU MEAN WHEN I AM DEAD?

JUDGE:                 STONE COLD DEAD. I WANT YOU TO BE ABLE TO SAY YOU BE WILLING TO SERVE AS LITTLE JIMMY’S GUARDIAN NO MATTER WHAT MAY COME. IF YOUR SON AND HIS GIRLFRIEND STOP USING DRUGS, NO MATTER. YOU STILL WILL BE JIMMY’S GUARDIAN. IF THEY CURE CANCER, YOU STILL WILL GUARDIAN. IF THEY GIVE YOU $70 MILLION DOLLARS, YOU WILL STILL BE GUARDIAN. THAT KIND OF PERMANENT, UNTIL JIMMY TURNS 18 OR YOU ARE DEAD, WHICHEVER COMES FIRST.

PROPOSED

GUARDIAN:        WELL, SINCE YOU PUT IT THAT WAY. . . .

Every child deserves permanence. Permanence should last until a child reaches the age of majority, where, presumably, the child can handle great shocks to the system, like moving to another household and having another care provider. Thus proposed guardians should be required to assure the trial court that they aren’t going to buckle at the knees the first sign that the biological parents are finally growing up. Guardianship can only be conferred when a parent continues to demonstrate over a period of nearly twelve months, that they are fundamentally unfit to parent. Once guardianship is conferred, a parent that has demonstrated unfitness has forfeited future claims to the care and custody of their child, even if they later show signs of rehabilitation. This is why judges should hold prospective guardians accountable. Forfeiture is forfeiture and permanence is permanence. The best interests of the child require, except is truly extraordinary circumstances, that there can be no going back.

Legislative Action is Urgently Required to Guide North Carolina Juvenile Courts About Ceasing Plans of Reunification and Reunification Efforts

When is it appropriate for a District Court Judge to cease reunification efforts in a juvenile case? When is it appropriate for that judge to change the plan of care to eliminate reunification as a plan? These two burning questions presently confound judges and lawyers in juvenile courtrooms across North Carolina due to the uncertainty of the law in this area. It is time for the North Carolina Legislature to step in and provide some clarity in the absence of resolution of the appellate level.

The problem began in 2018 with the case of In re C.P., where a panel of the North Carolina Court of Appeals held that at the first permanency planning hearing, reunification must be part of the initial permanent plan and may only be eliminated as a plan of care at a subsequent permanency planning hearing. In re C.P., __N.C. App.__, 812 S.E.2d 188 (2018). The C.P. Court further held that with regard to ceasing reunification efforts, a court could only suspend such efforts to the extent that it provided prior notice to the parents that failure to cooperate with the permanent plan could result in an order from the court ceasing reunification efforts. Id.  The problem is that C.P. contradicts both the relevant statute and earlier case law.

North Carolina General Statute 7B-906.2 provides in relevant part that at any permanency planning hearing there shall be both a primary and a concurrent plan and that “[r]eunification shall remain a primary or secondary plan unless the court made findings under [N.C. Gen. Stat} 7B-901(c) or makes written findings that reunification efforts would be unsuccessful or would be inconsistent with the juvenile’s health or safety.” N.C. Gen. Stat. 7B-906.2. Under the statute, reunification as a plan and the continuation of reunification efforts are logically connected: if it is contrary to the best interests of the juvenile or futile to further engage in reunification efforts, then the plan should be something other than reunification. The holding of C.P. undoes this logical unity making it possible for a trial court to cease reunification efforts while being required to continue with a plan of reunification. Furthermore, the decision seems to completely ignore the ability of a trial court to cease reunification efforts where a situation arises as contemplated by N.C. Gen. Stat. 7B-901(c)-where the court ceases reunification efforts after a finding that aggravating factors have been found at adjudication which can include murder of another child, felony assault of the same, or committed a sex offense against another child, among other things). See N.C. Gen. Stat. 7B-901 (c)(3).

Further, another panel of the Court of Appeals, in a 2017 decision in the case of In re H.L., has already held that cessation of reunification efforts is permissible at the first permanency planning hearing. In re H.L., __N.C.App.__,807 S.E.2d 685 (2017). Thus the panel’s holding in In re C.P. creates a split in authority at the level of the Court of Appeals, a split that has not been resolved by the collective North Carolina Court of Appeals sitting en banc or the Supreme Court despite calls for the same. See In re M.T.L.Y., __N.C. App.__,__S.E.2d__ (May 21, 2019).

As the most recent case involving an appeal of a permanency planning order eliminating reunification as a plan has demonstrated, continued confusion will continue until the legislature resolves the present case law conflict. Simplicity, like brevity, is the soul of wit and should guide legislative action by restoring the previously existing logical identity between the propriety of reunification efforts and the continued existence of a permanent plan of reunification. If it is a bad idea or a waste of time to further reunification efforts, there should be no plan of reunification required. Furthermore, since reunification efforts may be suspended right after adjudication if factors exist such as are enumerated in N.C. Gen. Stat. 7B-901(c), then there is no reason to require elimination of reunification as a plan to be limited to a subsequent permanency planning hearing.

Parents, guardians, or custodians of children are on notice the minute they are summoned to juvenile court that their parenting skills may be less than sterling. While the mere allegation of inappropriate parenting requires clear and convincing proof and an adjudication of abuse, neglect or dependency by a trial judge, any ambiguity about what a parent should do with regard to their parenting is for the most part resolved at the time the adjudication order is handed down. This is all the warning a child’s custodian or caretaker needs and all that should be required when the first permanency planning hearing is scheduled and the court should have the latitude to not only advance the child’s best interests but to do so in a timely manner that brings permanence sooner rather than much later.

Four Principles Trial Courts Should Observe When Dealing with the Issue of Juvenile Parent Representation

Very often juvenile court judges encounter indigent parties in their courts who have been appointed court appointed counsel who, for one reason or another, wish no longer to be represented by their appointed attorney. The reasons can be many, from a clash of personalities, to disagreements over legal strategy, to more egregious situations such as ineffective assistance of counsel. When a motion is made by a party or the party’s attorney to allow appointed counsel to withdraw, it is especially important to keep a few critical guidelines in mind in order to avoid an appeal and subsequent reversal, which not only may be frustrating but most significantly can cause a delay in permanence for children in juvenile court.

The first principle to keep in mind is that a parent in a juvenile proceeding has an absolute right to representation. In re L.C., 181 N.C. App. 278, 638 S.E.2d 638 (2007). This right permits the parent to hire their own counsel or, if they are indigent, to court appointed counsel. N.C. Gen. Stat. §7B-602; §7B-1101.1. The only exception to the representational rule is if the parent waives their right to counsel. Id.

To be effective, a waiver must both be knowing and voluntary. Id.; In re J.K.P., 238 N.C. App. 334, 767 S.E.2d 119, (2014). It is important to note that the North Carolina Court has identified a number of instances which do not constitute a waiver of the right to counsel. For example, requesting new counsel be appointed by a party does not constitute a waiver of court appointed counsel. See In re S.L.L., 167 N.C. App. 362, 605 S.E.2d 498 (2004) (request for different counsel is not a waiver of counsel). Additionally, it should be pointed out that if a parent does waive the right to hire their own counsel or have court appointed counsel, the parent has the right to represent themselves. N.C. Gen. Stat. §7B-602   Regarding this, such pro se representation is very often discouraged given the complexity of juvenile law. The trial judge must assure that the parent is carefully examined and makes sufficient findings of fact to any subsequent appellate tribunal that the waiver given was both  knowing and voluntary. Id; In re A.Y, 225 N.C. App. 29, 737 S.E.2d 160 (2013).

The second principle to keep in mind is that while a parent has an absolute right to representation, a parent is not entitled to representation of their choice in a court appointed setting. In order to release court appointed counsel, the court is not release counsel unless the reason for the relief counsel involves egregious conduct. Here, a number of possibilities come to mind which tend toward attorney negligence and lack of involvement in the case. It is important to note, however, that mere dissatisfaction with counsel, without more, is insufficient for the court to withdraw counsel. In re S.L.L., 167 N.C. App. 362, 605 S.E.2d 498 (2004)

The third principle to keep in mind is that on occasion, a parent’s behavior may be so egregious that they may forfeit their right to counsel. State v. Blakeney, 245 N.C. App., 782 S.E.2d 88 (2016). Forfeiture, unlike waiver, does not depend upon a parent’s knowing and voluntary waiver but instead relates specifically to extreme conduct which prejudices the administration of justice. Examples of where forfeiture might exist include multiple attempts to delay trial; offensive or abusive behavior; disruption of court proceedings; or refusal to acknowledge the trial court’s authority. Id.

Finally, when allowing counsel to withdraw, it must be done following notice being given to the parent by counsel. Notice is required to a parent of an attorney’s intention to withdraw. This act assures that the parent has the ability to request new court appointed counsel if it is their intention to do so. In re M.G., 239 N.C. App. 77, 767 S.E.2d 346 (2015). Without some evidence of a parent receiving some form of notice from their attorney, a trial court cannot adequately assure that a parent’s rights are being protected or know the parent’s position regarding representation. Proceeding to allow counsel to withdraw in such circumstances brings into question whether the court is upholding fundamentally fair procedures in any ensuing trial. Where such questions arise on appeal, it almost invariably leads to reversal or vacation of the order and remand.

The Emerging Jurisprudence on Threatening Student Speech

            

In an era which has seen multiple school shootings across the United States, the specter of student initiated violence has caused school boards and administrators to reconsider certain types of student speech that only a few decades ago would have been thought merely in poor taste or, at most, warranting a trip to the principal’s office. The violent acts and loss of human life at Columbine and Marjory Stoneman Douglas High School have caused a wholesale reexamination of speech of a threatening nature which either betrays a desire to immediately bring physical harm to individuals within the school or school community or states a plan to carry out such an act in the near future.

            Like other forms of speech which has a proclivity toward substantial disruption or interference with school activities, threatening speech which may be restricted or suppressed because of its potential impact on the functioning of a school. See, for example, Johnson v. New Brighton Area Sch. Dist., No. CIV A 06-1672, 2008 WL 4204718, at *1 (W.D. Pa. Sept. 11, 2008); Boim v. Fulton Cty. Sch. Dist., 494 F.3d 978, 985 (11th Cir. 2007). However, it has increasingly been the case that showing disruption is not always necessary when addressing threatening speech of a student. J.R. v. Penns Manor Area Sch. Dist., 2019 WL 96041 (2019).  Rather, justification has also been found in the fact that a school is a special environment with particular safety challenges that cannot be accomplished if threatening violent speech is tolerated.  Ponce v. Socorro Indep. Sch. Dist., 508 F.3d 765 (2007); J.R. v. Penns Manor Area Sch. Dist., 2019 WL 96041 (2019). The rational for the latter approach is that if student speech endorsing drug use can be absolutely prohibited, then speech that directly threatens violence should likewise be able to be absolutely banned. Id.

            Thus in a case where a student was suspended for keeping a notebook diary which discussed the creation a Nazi-like group who would commit shootings on campus as well as in the school district at large, the Court vacated an injunction which prohibited the school district from carrying out the suspension of the offending student as well as diverting the child to alternative education and divulging the child’s conduct to third parties. Ponce v. Socorro Indep. Sch. Dist., 508 F.3d 765 (2007). In reaching its decision, the Fifth Circuit Court of Appeals concluded that the disciplinary action against the student violated no protected right, as specific threatening speech to a school or its population was unprotected by the First Amendment. Id.  Thus it was not relevant whether the school could show a substantial disruption. Rather, as the Court stated that “. . . when a student threatens violence against a student body, his words are as much beyond the constitutional pale as yelling "fire" in crowded theater. . . and such specific threatening speech to a school or its population is unprotected by the First Amendment. School administrators must be permitted to react quickly and decisively to address a threat of physical violence against their students, 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.” Id.

            Likewise, where a student discussed with his friends over lunch who he would kill at the school and why, the United States District Court for the Western District of Pennsylvania dismissed a constitutional claims in a lawsuit filed by parents. J.R. v. Penns Manor Area Sch. Dist., 2019 WL 96041 (2019). Like the Court in Ponce, the District Court concluded that the student’s speech was not constitutionally protected. Id. Furthermore, the Court concluded not only could the school forecast substantial disruption based upon the content of the speech and the student’s actions but even outside of evidence showing the potential for a substantial disruption, the school’s action were justified because a "vital" governmental interest in stopping student violence and promoting school safety justified school officials in exercising control over student speech. Id.

              Thus, while schools may ban threatening speech where there is a reasonable forecast of educational disruption, the new jurisprudence allows the school to claim a special status which warrants special protections. This new jurisprudence, which disqualifies threatening speech from the realm of constitutional protection, allows school administrators to act decisively to address such speech and protect student populations through expulsion and other acts aimed at sequestering troubled kids who most often are the perpetrators of school violence. The question now is whether such administrators have the will to exercise such discretion as they have been granted.