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Published in Print: February 13, 2002, as Law Update

Law Update

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Student Expelled for Violent Poem Loses Court Appeal

Student speech that depicts violence continues to get close scrutiny in the courts.

Late last month, the full U.S. Court of Appeals for the 9th Circuit declined to reconsider a decision involving expulsion of a high school student for a violent poem about a student shooting up his high school. But three judges on the San Francisco-based appeals court vigorously dissented from the full court's refusal to re-examine the case.

"First Amendment judicial scrutiny should now be at its height, whether the individual before us is a troubled schoolboy, a right-to-life activist, an outraged environmentalist, a Taliban sympathizer, or any other person who disapproves of one or more of our nation's officials or policies for any reason whatsoever," said U.S. Circuit Judge Stephen Reinhardt in his Jan. 29 opinion arguing for rehearing the case.

The case concerns James LaVine, who was a junior at Blaine (Wash.) High School in fall 1998 when he turned in a poem about a lonely student who roams the halls and fatally shoots 28 students. The boy's English teacher alerted administrators, who expelled Mr. LaVine on an emergency basis for about a month. After the boy was examined by a psychiatrist, the 1,900-student district rescinded the expulsion. Nevertheless, his parents sued, claiming that the discipline violated his First Amendment right of free speech.

A federal district judge in Seattle ruled for the family in 2000, holding that the poem was not a true threat of violence. But last year, a three-judge panel of the 9th Circuit court ruled unanimously for the district. Citing major school shootings at Columbine High School and elsewhere, the panel said school authorities were on solid ground in taking steps to prevent Mr. LaVine from carrying out the violence depicted in his poem.

"School officials have a difficult task in balancing safety concerns against chilling free expression," the panel said in the July 20 opinion.

The LaVine family asked the full 9th Circuit court to rehear the case, but failed to receive the majority of votes needed for reconsideration.

Besides Judge Reinhardt's dissent, U.S. Circuit Judge Andrew J. Kleinfeld filed a dissent joined by another judge.

"After today, members of the black-trench-coat clique in high schools in the western United States will have to hide their artwork," Judge Kleinfeld wrote. "School officials may now subordinate students' freedom of expression to a policy of making high schools cozy places, like day-care centers, 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."

Broken Bones: School districts are probably sued as much as other organizations over accidents, but laws in most states give them strong protection from liability. The Illinois Supreme Court ruled recently that a student who broke his leg in an in-line skating accident in gym class could not recover any damages, even though the school did not require that students wear safety equipment while on the skates.

The case stems from the day in March 1998 when Jeremy Arteman chose to do in-line skating rather than run laps during physical education class. He paid $7 for that choice, but it was not his lucky day. The 2,190-student Clinton Community school district was using experimental skates with toe brakes instead of heel brakes.

Mr. Arteman fell during the class and broke two bones in his right leg. His father sued the district, alleging that it was negligent for failing to provide safety equipment.

The Artemans lost in a trial court, then won in a state appellate court. But the Illinois Supreme Court ruled that the district was immune under state law from the negligence suit. The "decision not to provide roller-blade safety equipment was a discretionary policy determination," the 4-3 ruling on Jan. 25 said.

The majority said that while its conclusion was "inescapable," under its view of state law, a district would enjoy immunity from lawsuits even if "it provided its football players with leather helmets, or worse yet, no helmets at all."

State legislators should examine the state of school immunity from liability, the majority suggested.

Choice Ruling: At a time when the Bush administration is proposing tuition tax credits for parents whose children attend failing public schools, a federal appeals court has denied the claim of a California couple for a partial tax refund for tuition paid to Jewish day schools.

The couple, Michael and Marla Sklar, had sought to deduct 55 percent of their children's tuition, which they said was the proportion of their schooling devoted to religious education. The couple argued that that amount was a charitable contribution to a religious organization. They also argued that they were entitled to the deduction because the Internal Revenue Service permits similar deductions for adherents of the Church of Scientology.

The U.S. Tax Court did not accept their arguments, nor did a three-judge panel of the 9th Circuit in a Jan. 29 ruling.

The panel unanimously held that both the federal tax code and Supreme Court precedents make clear that payments for which a taxpayer receives consideration cannot be deducted. The court raised questions about how the IRS has treated Scientologists' claims for deductions for religious training, but it said that issue did not help the Sklars.

—Mark Walsh

Vol. 21, Issue 22, Page 14

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