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.
