Published Online: August 14, 2007
Published in Print: August 15, 2007, as Student’s Threatening ‘Fiction’ is Unprotected Speech, Court Rules

Law Update

Student’s Threatening ‘Fiction’ is Unprotected Speech, Court Rules

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Citing recent incidents of violence at schools and colleges, a federal appeals court has ruled that a high school student merited no First Amendment protection for an essay in which a character dreamed about killing her mathematics teacher.

The ruling by a panel of the U.S. Court of Appeals for the 11th Circuit, in Atlanta, involved Rachel Boim, who was a student at Roswell High School in the 88,000-student Fulton County, Ga., district in fall 2003 when she got into trouble for a story titled “Dream,” which was in a personal notebook that a teacher discovered.

“I lothe [sic] him with every bone in my body,” the narrative’s character says of her math teacher. “I stand up and pull the gun from my pocket. BANG the force blows him back and everyone in the class sit [sic] there in shock.”

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Ms. Boim told administrators the work was just “creative fiction,” according to court papers. She was suspended for 10 days and recommended for expulsion, although the school board upheld only the suspension.

Ms. Boim and her parents sued the district and administrators, alleging that the discipline violated her First Amendment right of free speech.

A federal district judge in Atlanta ruled against the Boims, and in a July 31 ruling, the three-judge panel of the 11th Circuit court unanimously backed the lower court.

The appeals court said that in light of a climate in which at least 10 school shootings occurred across the country in the eight years preceding Ms. Boim’s essay, school authorities did not violate the student’s rights.

“We can only imagine what would have happened if the school officials, after learning of Rachel’s writing, did nothing about it and the next day Rachel did in fact come to school with a gun and shoot and kill her math teacher,” the court’s opinion said. “In our view, it is imperative that school officials have the discretion and authority to deal with incidents like the one they faced in this case.”

The appeals court cited the U.S. Supreme Court’s recent decision upholding the discipline of a student who had displayed a banner with the message “Bong Hits 4 Jesus” at a school event. In Morse v. Frederick, the justices said schools could restrict student expression that they reasonably regard as promoting illegal drug use. ("Ruling in ‘Bong Hits’ Case Seen as Leaving Protection For Students’ Free Speech,", July 18, 2007.)

“That same rationale applies equally, if not more strongly, to speech reasonably construed as a threat of school violence,” the 11th Circuit court said in Boim v. Fulton County School District.


In Athletes vs. Coach, Court Sides With Adult Authority

Football season is just about here, and if there was ever much doubt that high school coaches have a lot of authority over their teams, it should be dispelled by a recent federal appellate ruling.

A panel of the U.S. Court of Appeals for the 6th Circuit, in Cincinnati, ruled against four former football players at Jefferson County High School in Dandridge, Tenn., who had challenged their coach’s tactics and authority.

Derrick Lowery, Jacob Giles, Joseph Dooley, and Dillon Spurlock were players on the Jefferson County High team in fall 2005 when they signed a petition saying they hated coach Marty Euverard and “I don’t want to play for him.”

The ex-players allege in court papers that Mr. Euverard struck a player in the helmet, threw away college-recruiting letters to disfavored players, humiliated and degraded players, and used inappropriate language, among other actions.

The coach confronted players who signed the petition, the court papers say. Some apologized and were allowed to remain on the team. But the four who refused to do so were dismissed from the squad.

The players and their parents sued the coach and Tennessee’s 7,300-student Jefferson County school district, alleging a violation of their First Amendment rights.

A federal district court denied the coach’s motion for summary judgment, saying there was an issue of fact about whether the petition had disrupted the team.

But in an Aug. 3 decision, the three-judge panel of the 6th Circuit court found unanimously for the coach. In an opinion signed by two of the judges, the court said, “A high school athletic team could not function smoothly with an authority structure based on the will of the players.”

The court noted that participation in extracurricular athletics is generally not considered a matter of constitutional right.

Athletic teams are bound to have coach-player squabbles over playing time and other matters, the court said, but the Jefferson County High players’ petition against Coach Euverard “cannot be characterized as an isolated expression of dissatisfaction. … Such a petition would necessarily force players to choose between Euverard and the players that opposed him.”

That would be too disruptive to the team, the court said.


Dismissed Principal Loses Case Over Charter School Advocacy

A recent ruling by the 11th Circuit appellate court has held that a Florida principal did not have First Amendment protection for advocating that his school be converted to a charter school.

Michael L. D’Angelo was the principal of Kathleen High School in Lakeland, Fla., in 2003 when he began exploring charter status for his school because it was not going to receive the additional staff members or money he had hoped for from the 95,000-student Polk County school district.

In spring 2004, the school’s faculty voted 50-33 against the charter conversion. Still, Mr. D’Angelo began pursuing a partial conversion under the state’s charter law.

His efforts to convert the school displeased the district’s superintendent and some board members, according to court papers. Mr. D’Angelo was fired as principal on May 3 of that year.

He sued the district, alleging that he had been dismissed in retaliation for his exercise of First Amendment rights in pursuing the conversion.

Both a federal district court and the 11th Circuit court ruled for the district.

In an Aug. 1 opinion, a three-judge panel of the 11th Circuit held unanimously that under a 2006 U.S. Supreme Court decision, in Garcetti v. Ceballos, public employees do not have First Amendment protection for speech that is part of their official duties, even if it is on a matter of public concern.

“It is clear from Florida law that D’Angelo undertook his efforts to convert Kathleen High to charter status in his capacity as the principal and not as a citizen,” the appeals court said.

Vol. 26, Issue 45, Page 12

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