The U.S. Supreme Court declined last week to review a free-speech case involving a middle school student who was suspended for reading to classmates his fictional story about a school killing spree that depicted him and several other students in sexual and violent situations.
The family of the boy, who was 10 at the time, argued that the punishment imposed by the 6,800-student Syosset Central School District, in Syosset, N.Y., violated his First Amendment right to freedom of speech.
Without comment, the justices refused on Jan. 22 to hear the appeal in D.F. v. Board of Education of Syosset Central School District (Case No. 06-542).
The court’s action was somewhat surprising because the justices agreed in December to review another student-speech case. That case involves a high school student at a parade in Juneau, Alaska, who raised a banner with a slogan that school officials contend promoted illegal drugs. The justices often defer action on appeals raising similar legal questions if they might be affected by a decision in the first case. Arguments in the so-called “Bong Hits 4 Jesus” case—Morse v. Frederick (No. 06-278)—are scheduled for March 19.
A Lurid Read
The New York state case originated at the Syosset district’s Thompson Middle School in the fall of 2003. The student, identified only as D.F. in court proceedings, wrote a lengthy story in his class journal that he allegedly modeled after the horror movie “Halloween,” according to the record cited in 2005 by the federal district court in Central Islip, N.Y.
The story tells of a boy with the same first name as D.F.’s who goes on a murderous rampage at school, brutally assaulting other students who have the same names as students at Thompson Middle School.
The story also describes a female student—with the same name as a student in D.F.’s class—in sexual situations and being attacked by the protagonist; at one point, she kisses him, despite her bloodied mouth, to save herself. Two other students are depicted having sex and then being attacked.
On Oct. 3, 2003, D.F. read the story to other students in class while the teacher, who arrived late, was distracted by checking attendance, according to the opinion by U.S. District Judge Thomas C. Platt Jr.
Later, the boy asked the supervising teacher at a voluntary lunchtime program for permission to read the story aloud, but that teacher reviewed the story and reported the boy to the principal.
The principal suspended D.F. for five days, and later, after a full hearing, the district’s superintendent imposed an additional 30-day suspension.
In their suit against the school district in the federal district court in Central Islip, the boy, now 12, and his father, Andrew Finkle, contended that the story was not a “true threat” and did not pose a substantial risk of disruption of school, which are requirements under case law for removing First Amendment protection from student speech.
In September 2005, Judge Platt granted the district’s motion to dismiss the case, noting that D.F. had repeatedly read excerpts of the story to other students.
“The story, with its graphic depictions of the murder of specifically named students and sex between named students, may materially interfere with the work of the school by disturbing the students and teachers,” the judge wrote. He added that the story “constitutes a true threat of violence, as it describes a student killing other real-life students.”
A three-judge panel of the U.S. Court of Appeals for the 2nd Circuit, in New York City, upheld the district court’s decision unanimously.
The court’s refusal to accept the appeal means the lower court’s decision stands.
Michigan Affirmative Action
In a separate order, issued Jan. 19, the Supreme Court turned down an emergency motion seeking to reinstate an injunction suspending a Michigan law that bars the state’s universities from using affirmative action in admissions.
Several Michigan groups had filed the request after the U.S. Court of Appeals for the 6th Circuit, in Cincinnati, overturned on Dec. 29 a federal district court’s injunction suspending Proposition 2, which was passed by Michigan voters in November. A three-judge panel of the 6th Circuit court said the ballot initiative was likely to be upheld.
In December, the University of Michigan, Michigan State University, and Wayne State University dropped consideration of race and gender from their admissions policies.
But after the opponents asked Justice John Paul Stevens, as circuit justice for the 6th Circuit, to reinstate the injunction, the three universities and Michigan Gov. Jennifer M. Granholm, a Democrat, joined in support of that request.
In papers filed with Justice Stevens on Jan. 17, the universities contended that the abandonment of their former admissions policies was unfair to students who had applied for admission for the fall 2007 academic term.
But Michigan Attorney General Michael A. Cox submitted papers arguing that the stay by the appeals court should remain in place.
Justice Stevens referred the motion in Coalition to Defend Affirmative Action v. Granholm (No. 06A678) to the full Supreme Court, which denied the motion without elaboration.
Consideration of the merits of the challenge to the law is still pending in the lower courts.
