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Published in Print: March 14, 2001, as Law Update

Law Update

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N.C. District Finds It Can Be Tricky To Interpret Student 'Threats'

Nearly two years after the violence at Columbine High School, and just a few weeks before the March 5 school shootings in Santee, Calif., a court in North Carolina was grappling with one of the safety issues prompted by such incidents.

The North Carolina case involves the atmosphere of edginess and fear of copycat crimes that typically follow a major act of school violence. On May 4, 1999, about two weeks after the Columbine shootings in Jefferson County, Colo., rumors about a bomb circulated at Hoggard High School in Wilmington, N.C. The principal asked parents to help patrol the halls that day, and more than 500 students out of 2,500 were absent, well more than normal.

A student in a keyboarding class discovered a computer screen saver with the message, "The end is near." Police were called in, and they confronted a student whom they suspected of creating the message. The student, Joshua Mortimer, admitted writing it but said it didn't mean anything harmful. But the sophomore was charged as an adult with the misdemeanor crime of communicating a threat. He was also suspended and later expelled from school.

Mr. Mortimer was convicted of the charge by a jury in New Hanover Superior Court. On appeal, his lawyers argued that the message failed to meet the four elements of the state's law against communicating threats. Those elements include a threat of physical injury to a person or damage to property, and sufficient cause for a reasonable person to believe the threat is likely to be carried out.

In a Feb. 20 ruling, a three-judge panel of the North Carolina Court of Appeals reversed Mr. Mortimer's conviction. The court said the screen-saver message did not constitute a threat to injure a person or damage property.

"The meaning of the statement 'the end is near' is impossible to ascertain," the court said. "The end of what is near?"

Of seven people who testified they read the screen saver, only one said he believed the message had communicated a threat, the court noted. "Moreover, it is significant that defendant was never connected with any of the alleged bomb threats at the school," the opinion added.

Mr. Mortimer is now working on a General Educational Development diploma at a community college, said his lawyer, Sofie W. Hosford.

Safe-Schools Lawsuits:

In another case from North Carolina, a federal appeals court has ruled that the federal Safe and Drug-Free Schools and Communities Act of 1994 does not give individuals a private right to sue school districts or other recipients of federal grants.

A three-judge panel of the U.S. Court of Appeals for the 4th Circuit, in Richmond, Va., unanimously ruled against a boy and his father who had alleged that their school district violated the law by failing to develop a safety plan that would control student violence.

The Feb. 6 ruling came in a case in which Alex Stevenson alleged that he suffered repeated physical abuse from fellow students at Williamston Middle School in Martin County, N.C. While some of his attackers were suspended, the abuse of the then-10-year-old 6th grader continued until his father transferred him to a private school.

The family's lawsuit against the 5,000-student district alleged violations of the boy's constitutional rights as well as the claim that the district had violated the Safe Schools Act. All the claims were dismissed in federal district court.

The 4th Circuit court also dismissed the Stevensons' claims, the most novel of which was the alleged violation of the federal safe-schools law.

The court said that the act did not expressly authorize private lawsuits. The Stevensons' claim could proceed only if the law had put federal-funding recipients on notice that they might face such suits, the court said.

Lawyers for the family pointed to Title IX of the Education Amendments of 1972, which bars sex discrimination by educational institutions receiving federal money. The U.S. Supreme Court has ruled that Title IX effectively warns schools that they face private lawsuits by making them liable if they subject students to discrimination.

"Unlike Title IX, the Safe Schools Act does not put schools on notice that they can be sued for failing to implement anti-violence programs," the 4th Circuit judges said.

Special Education A private high school does not have to relax its academic requirements for a special education student attending at the expense of the local public school district, a federal appeals court has ruled.

The case concerns the 1,100-student St. Johnsbury, Vt., school district, which, like many in the state, does not have its own high school and pays tuition to send its students to private schools or public schools elsewhere. Most students from St. Johnsbury use the money to attend St. Johnsbury Academy, a local private school.

The case arose in 1993, when the academy refused to place a special education student identified as D.H. in regular 9th grade English and social studies classes. The student, who has cerebral palsy and other disabilities, did not meet the academy's requirement that such students perform at or above the 5th grade level.

D.H.'s parents won rulings from an administrative hearing officer and a federal district judge that the academy must admit the student to the two mainstream classes.

The academy appealed to the U.S. Court of Appeals for the 2nd Circuit. In a Feb. 15 ruling, a three-judge panel of the New York City-based court ruled unanimously that the academy was not subject to the standards of the federal Individuals with Disabilities Education Act.

The IDEA "expressly contemplates that children will be placed in private schools or facilities by the state or appropriate local educational agency as the means of complying with the statute," the court said. "The statute obligates the state—not the private school—to ensure that such children are provided special education and related services."

—Mark Walsh

Vol. 20, Issue 26, Page 12

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