Silencing Student Speech -- And Even Artwork -- in the Post-Columbine Era:
The Relevant Supreme Court Cases, and How They Have Been Misapplied

Public school officials face a daunting task: Ensuring safe schools in the age of Columbine. The rash of school shootings in recent years -- including the April 1999 horror at Columbine High School in Littleton, Colorado -- shows that danger does exist from certain disturbed, alienated, and disaffected youth.

However, the response among many school officials has been to overreact by infringing on students' constitutional rights.

One recent federal district court judge wrote that in the wake of Columbine "some schools became like war zones and metal detectors and police officers became commonplace on high school campuses throughout the country." Unsurprisingly, Fourth Amendments rights, and student privacy, both suffered.

Meanwhile, First Amendment rights have often also been squelched. School officials have turned to zero tolerance policies with respect to certain types of speech they deemed offensive; to anti-bullying codes; and to more restrictive dress codes -- all in the hopes of somehow preventing the next Columbine.

Certainly, school officials should look for warning signs among disaffected youth. Students who convey true threats should be closely monitored and punished. But some school officials have overreacted, silencing student speech that is neither genuinely threatening, nor genuinely disruptive.

Indeed, as Professors Robert Richards and Clay Calvert write in a recent Boston University law review article: "Quite simply, the events at Columbine gave high school administrators all the reasons -- legitimate or illegitimate -- they needed to trounce the First Amendment rights of public school students in the name of preventing violence."

If you doubt it, consider the following:

• An honor-roll high school student in Kansas was suspended for writing a poem entitled "Who Killed My Dog." School officials determined the poem to be a threat.

• A kindergartener in New Jersey was suspended from school for saying "I'm going to shoot you" on the playground while playing cops and robbers with his classmates.

• A high-school student in Oklahoma was suspended for a poem she wrote about her teacher that she never showed to anyone. The poem fell out of her backpack and was shown to school authorities by another student.

• A middle-school student in Arkansas was expelled for making terroristic threats because of a graphically violent poem he wrote about his ex-girlfriend. However, the student never brought the poem to school. His "friend" stole the poem from his room and showed it to the ex-girlfriend.

• A sixth-grader in Texas was put in juvenile detention for writing a Halloween, class-project essay about a student who kills fellow students and a teacher.

• Also in Texas, school officials -- ironically -- disciplined students for wearing black armbands to mourn the victims of Columbine and to protest overly restrictive school policies.

In each of these cases, it appears that student First Amendment rights were violated. In each, speech that did not pose a genuine threat or risk a substantial disruption -- which are the relevant legal tests, as I will explain -- was nevertheless censored and/or punished.

Some school districts seem to believe that public school students simply have no First Amendment right. But as long ago as 1969, in Tinker v. Des Moines Independent Community School District, the Supreme Court made very clear that they do.

There, school officials tried to prohibit students from wearing black armbands to protest the Vietnam War. In explaining why the students' First Amendment rights had been violated, Justice Abe Fortas wrote that "undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression."

What was enough, in the Court's view? Tinker set the standard: Speech can be suppressed when school officials can reasonably forecast that student expression would create a substantial disruption or material interference with school activitiesofficials or invade the rights of others. The line is clear: These concrete, specific predictions are sufficient; undifferentiated fear is not.

Unfortunately, "undifferentiated fear" is precisely what seems to be motivating school officials in cases like those listed above. Many students have even been punished for art -- for the content of their poems and drawings. In too many instances, this zero tolerance mentality had led to zero judgment.

In 2002, in Lavine v. Blaine School District, the U.S. Court of Appeals for the Ninth Circuit held that the Tinker standard had been satisfied. In that case, school officials expelled a high-school student who wrote a poem about school violence.

Why was Tinker's standard satisfied, according to the court? Given the "backdrop of actual school shootings," the court thought that school officials could reasonably forecast that the poem would constitute a substantial disruption.

But Judge Andrew Kleinfeld's poignant dissent was more persuasive. Her critiqued the majority's reasoning as follows:

They [students] have lost their free-speech rights. If a teacher, administrator, or student finds their art disturbing, they can be punished, even though they say nothing disruptive, defamatory or indecent and do not intend to threaten or harm anyone. School officials may now subordinate their students' freedom of expression, where no one may be made uncomfortable by the knowledge that others have dark thoughts, and all the art is of hearts and smiley faces. The court has adopted a new doctrine of First Amendment law, that high school students may be punished for non-threatening speech that administrators believe may indicate that the speaker is emotionally disturbed and therefore dangerous.

After all, exactly what kind of disruption did the school officials forecast? Did they believe other students might become afraid of the poem-writing student because of the poem? If so, that sounds like exactly the kind of undifferentiated fear that Tinker says cannot be a ground for suppressing student speech.

Meanwhile, there is another crucial precedent, besides Tinker, that is also invoked, and often misapplied, by school officials who seek to suppress student speech. It is Watts v. United States -- a decision that, like Tinker, was issued in 1969.

In Watts, a young man who said "if they ever make me carry a rifle, the first man I want in my sights is L.B.J." was convicted of a crime. But the court determined that the young man's statement was mere "political hyperbole," not a true threat -- and was therefore protected by the First Amendment.

Then what kind of statement would be a "true threat"? Unfortunately, the Court did not make that clear. Accordingly, lower courts have adopted different "true threat" tests.

In setting out their "true threat" standard, some of these courts focus on a reasonable recipient of the statement: Would that person perceive a true threat?

Others focus on how a reasonable speaker should foresee that others would take her statements: Should she foresee her statements will be perceived as a true threat?

The U.S. Circuit Court of Appeals for the Eighth Circuit has devised a complex multi-factor "true threat" test, set out in the 2002 decision in Doe v. Pulaski County Special Sch. Dist. Under this test, school officials should focus on factors including: (1) the reaction of the listener and other recipients; (2) whether the threat was conditional; (3) whether the speaker communicated the statement(s) directly to the recipient; (4) whether the speaker had a history of making threats; (5) whether the recipient knew the speaker had a propensity for violence.

But whatever verbal formulation is used, judges in "true threat" cases ask more or less the same questions: Does the speech, understood in context, carries a specific and unequivocal statement of harm? Or is it more properly characterized as mere joking, idle talk or political argument?

In answering these questions, context is often important. That was the case, for example, in the February 12 decision by the Washington Supreme Court in State of Washington v. Kilburn.

There, a student was convicted of felony harassment for telling a fellow student: "I'm going to bring a gun to school tomorrow and shoot everyone and start with you." In reversing the conviction, the court focused on context -- and, in particular, on the fact that the student was laughing and joking when he made the comment. The recipient even admitted that the student-speaker was "acting like he was kind of joking."

Context also mattered to the Louisiana federal district court judge's January 28 ruling in Porter v. Ascension Parish School Board. There, a student's two-year-old sketch of his school -- soaked in gasoline surrounded by an individual with a torch and a missile -- was discovered two years after he had created it, when his younger brother brought it in. The student himself had not showed anyone the drawing, nor had he brought the sketch to school.

Nevertheless, the court found a "true threat." In so doing, the court relied on "backdrop" of Columbine -- presumably believing that after Columbine, students ought to be on notice that specific depictions of attacks against their school will be read as true threats.

Granted, reasonable minds can differ as to whether this ruling was correct. But this drawing is hardly typical of those that have usually resulted in punishment. None of the examples listed above were anywhere near as specific or threatening as this drawing

-- yet they too still led to penalties against the students involved.

Of course, student safety should be a paramount concern. And school officials have a duty to ensure safe learning environments.

Nevertheless, as the cases I have listed show, the push to silence and punish student expression has led to some very unjust results. Students have been suspended and expelled for classroom essays and poems -- sometimes regardless of the fact that these writings and artworks were not intended for anyone else's eyes but their own.

This trend toward silencing student expression is the wrong response. As Judge Kleinfeold wrote in Lavine: "Suppression of speech may reduce security as well as liberty." A cowed student body is not the safest kind.