Preventive Law
Preventive Law Corner - The Fifth Circuit Draws a Line in the Sand for Terroristic Threats
By Cheryl Mehl - Schwartz & Eichelbaum P.C.
Dec 7, 2007, 08:31

The Fifth Circuit Draws a Line in the Sand for Terroristic Threats

For years school administrators and parents have steamed when reading about courts overturning school administrators’ efforts to maintain a safe environment by punishing students that threaten the safety of others at school. A California trial judge held that a fifteen-year old who told a counselor that she was so angry she “could just shoot someone,” or “[i]f you don't give me this schedule change, I'm going to shoot you,” was not to be suspended for three days because her comments were protected free speech (overturned by the Ninth Court of Appeals in. An Arkansas state judge found that an adjudicated delinquent who threatened a female student’s life in a rap song that he wrote and than handed to her at school (and for which he was sentenced to 24 months supervised probation and seven days in a juvenile detention facility), should nevertheless be allowed to attend school (affirmed by the court of appeals in).  An Arkansas federal judge even enjoined a school from punishing a student who wrote a letter to a fellow student that referred to the girl as a “bitch,” “slut,” “ass,” and a “whore” over 80 times in only four pages, used the f-word no fewer than 90 times and spoke frequently in the letter of his wish to sodomize, rape, and kill the girl. The letter even expressed in unconditional terms that the girl should not go to sleep because he would be lying under her bed waiting to kill her with a knife. In defying logic and perspective, the judge held that the letter was only arguably threatening to a thirteen year old girl! Fortunately, the Eight Circuit Court of Appeals disagreed with the federal judge. See Doe v. Pulaski County Special School Dist., 306 F.3d 616 (8th Cir. 2002).

With the apparent lack of support from the courts for what seemed to be reasonable discipline decisions, educators rightly worried about their options.  Even Texas had a case that protected threats by a student, but that was just overturned, and perhaps the fog is beginning to lift and permit educators to maintain a safe and secure environment without the worry of judicial intervention.

On November 20, 2007, the Fifth Circuit issued its decision in Ponce v. Socorro ISD, ____ F.3d _____, 2007 WL 4111241 (Nov. 20, 2007), which provides good authority and guidance for school administrators in dealing with student “writings” that depict Columbine-style mass shootings or any other violent acts at school.  The panel held that, “because such speech poses a direct threat to the physical safety of the school population,”  the speech is not entitled to protection under the First Amendment and is akin to the “drug speech” at issue in Frederick v. Morse,  127 S. Ct. 2618 (2007).  Thus, school officials are not required to analyze the potential for disruption to the school environment that the speech itself may cause because “some harms are in fact so great in the school setting that requiring a school administrator to evaluate their disruptive potential is unnecessary.”

A high school student in Socorro ISD kept a notebook where he wrote what he and his mother characterized as “fiction,” depicting the creation of a “pseudo-Nazi group” within the district and acts of violence directed toward homosexuals and “colored” people.  The notebook also described impending mass shootings at one or more district high schools arising from the author’s anger “getting the best of him” and predicting that those events would occur on the day his friends graduated.  The student showed the book to a friend, who told a teacher, who eventually told the principal.  The student did not object to the principal’s keeping the notebook and reading it, but maintained that it was simply creative fiction.  The principal ultimately determined that some of the writings amounted to a terroristic threat, requiring assignment to the alternative school.[1]

The parents’ appeal was denied all the way through the board.  The parents withdrew the student to private school, but filed this lawsuit to ensure that their child would return to the school with a clean record that would not “affect E.P.’s ability to gain admission to the college of his choice, especially because he intends to major in music.” They were concerned because the spell in the DAEP would “deprive” him of participation in the musical education programs.  The parents were successful in obtaining a preliminary injunction on First Amendment grounds; the district’s appeal of the trial court’s injunction is the basis for this decision.  On appellate review, the legal principles underlying the district court’s decision are open to de novo review by the court of appeals.  

The panel used Justice Alito’s concurring “and controlling” opinion in the Morse case to support its decision that the injunction should be dissolved because the parents were not likely to prevail on the merits of their constitutional claim.  Justice Alito’s focus was to make absolutely clear that the Morse decision did not mean that school administrators could discipline students for any speech that administrators determined to be inconsistent with the school’s mission and goals, since that broad approach would endanger student speech that is clearly political or on issues of social interest.  “The concurring opinion therefore makes explicit that which remains latent in the majority opinion: 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.”

The final paragraph of the Ponce decision says it all:

“Of course, we do not remotely suggest that ‘schools can expel students just because they are “loners,” wear black and play video games.’  We do hold, however, that when a student threatens violence against a student body, his words are as much beyond the constitutional pale as yelling ‘fire’ in [a] 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.” (internal citations omitted)

School administrators are, of course, well-advised to consult their school attorneys before applying this decision on their own, but for the time being, at least, Texas administrators can breathe a little more easily when faced with student notes, notebooks, journals, and the like that depict or describe acts or conduct that would threaten the safety of the school and its students and employees.

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