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A Fine Line Between Dangerous
And Harmless Student Expression

As educators struggle to maintain safe schools, they are increasingly wary of student essays and artwork that depict violence. But two recent federal court rulings demonstrate that the line between potential threats to school safety and protected student speech is a tricky one to distinguish.

In a case from Washington state, a federal district judge ruled last month that a student’s poem about shooting his classmates to death and feeling no remorse was protected by the First Amendment. And a federal district judge in Kansas ruled that a school district violated a high school student’s right to free speech when it disciplined her for posting a work of art on a school wall that included the words "I’ll kill you all."

The first case concerns James LaVine, who was a junior at Blaine (Wash.) High School in the fall of 1998 when he turned in a poem titled "Last Words" to his English teacher for extra credit.

The poem is about a lonely student who roams his high school halls with heart pounding:

"As I approached the classroom door, I drew my gun and threw open the door. Bang, Bang, Bang-Bang. When it was all over, 28 were dead, and all I remember was not felling any remorce, for I felt, I was, cleansing my soul..."

The boy’s English teacher alerted school administrators, who called the Whatcom County sheriff’s department. The poem was reviewed by a psychologist, who determined it was unlikely Mr. LaVine was going to cause imminent harm to himself or others.

Nevertheless, the 1,900-student Blaine school district expelled Mr. LaVine on an emergency basis in October 1998 for violating the district’s disciplinary code. Later that month, after he was examined by a psychiatrist, the district rescinded the emergency expulsion, and Mr. LaVine completed his junior year without incident. His records were changed to reflect that the expulsion was made for safety instead of disciplinary reasons.

The boy’s parents sued, claiming that the discipline violated his First Amendment right to free speech. They sought the removal of the expulsion from his record.

In a Feb. 24 ruling, U.S. District Judge Barbara J. Rothstein of Seattle ruled for the family. She said the boy was disciplined "solely for the evocative nature of his poem."

"Although the district need not wait until the school experiences an actual disturbance before taking corrective action, neither may it pre-emptively silence a student unless a reasonable person under similar circumstances would conclude that the poem constitutes a true threat of physical violence," the judge wrote.

District officials argued that it was the combination of the poem and other factors that led to the discipline. Among other things, the district cited a fight that the boy had had with another student. He also dressed differently from his peers, wearing cowboy garb and a trench coat, district officials said. They pointed out that while the incident occurred well before the shooting rampage at Columbine High School in Colorado last April, it came only a few months after the fatal 1998 shootings at a school in nearby Springfield, Ore.

But Judge Rothstein said the district had overreacted in expelling Mr. LaVine.

"There were far less restrictive ways to ensure the safety of students and school personnel," she wrote. "A temporary suspension pending psychiatric examination would have accomplished the [district’s] purpose."

Michael Patterson, a lawyer for the Blaine district, said an appeal was being considered. Meanwhile, Mr. LaVine is a senior at Blaine High this year.

‘I’ll kill you all!’: The Kansas case concerns Sarah Boman, a senior at Bluestem High School in Leon. In January, Ms. Boman created a poster in a tutorial art class and posted it in a school hallway.

The poster was an example of "concrete poetry," in which the words are fashioned into a shape. The poem was in a circular pattern, which the student told a hearing officer was meant to suggest the thoughts of a deranged person.

"Please tell me who killed my dog," the poem begins. "I miss him very much. … Dammit, Who? Who killed my dog? Who killed him? I’ll kill you all! You all killed my dog. …"

The poster was on the wall only a short time before it was removed and brought to the attention of the principal, Dale Harper, who found some of the phrases threatening, according to the court record. Once he learned it was Ms. Boman, he was relieved and no longer believed there was a threat of violence, according to Bill J. Hays, the lawyer for the student.

However, Ms. Boman was suspended for the rest of the school year. She appealed to a hearing officer, who found that the poem was not referring to any particular dog, and that the "madman" character was fictional. Because no students took the poster as a threat, and nothing in it directed a threat at any individual, the hearing officer concluded that the long-term suspension of Ms. Boman was not justified.

The school board of the 800-student Bluestem district did not accept the hearing officer’s recommendation. Instead, it voted to allow Ms. Boman back into school only if she underwent a psychological evaluation that determined she was not a threat to students or staff members.

Ms. Boman and her father sued the district in federal district court in Wichita, alleging that the district’s response violated her First Amendment free-speech rights. U.S. Senior District Judge Wesley E. Brown of Wichita granted her a preliminary injunction on Jan. 28 that allowed her back into school. On Feb. 14, he made the injunction permanent and issued his legal opinion in favor of the student.

"Once the circumstances surrounding the making of Ms. Boman’s poster were understood by school officials, there was no factual basis for believing that Ms. Boman had violated any school rule, caused a substantial disruption in the operation of the school, or invaded the rights of other students," Judge Brown said in the Feb. 14 opinion.

"There is no basis for requiring her to undergo a psychological evaluation," he added.

Kelly Johnson, a lawyer for the district, said the school board had not yet decided whether to appeal.

—Mark Walsh

Vol. 19, Issue 26, Page 14

Published in Print: March 8, 2000, as Law Update
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