Slippery Slope for Scary Story
By Shawn Healy
Former Roswell (GA) High School student Rachel Boim was suspended and expelled in October 2003 for writing in a notebook that alluded to shooting her male math teacher during sixth period. The notebook was shared with a fellow student during art class and confiscated by the teacher. Boim served her suspension, but the expulsion was overturned by the Fulton County Board of Education. Boim's father filed suit on her behalf, contesting the constitutionality of the punishment on 1st Amendment grounds and later asking that the reprimand be expunged from her academic record.
Last week, the 11th Circuit Court of Appeals ruled on behalf of the school district on both counts. They cited a slew of Supreme Court cases related to student speech, including Tinker, Fraser, and Hazelwood, along with the TLO v. New Jersey case implicating student privacy. They went further to suggest that in their district, "school officials 'must have the flexibility to control the tenors and contours of student speech within school walls or on school property, even if such speech does not result in a reasonable fear of immediate disruption.'"
In concluding that Rachel's writing clearly constitutes expression, the material and substantial disruption standard of Tinker applies, as it threatened the "maintenance of order and decorum" within Roswell High School. The court went further, however, by applying the recent Morse v. Frederick (AKA, Bong Hits 4 Jesus) opinion, equating the school's right to limit drug-related speech to the threat of school violence.
In the end, according to the opinion, "there is...no First Amendment right allowing a student to knowingly make comments, whether oral or written, that reasonably could be perceived as a threat of school violence, whether general or specific, while on school property during the day."
The outcome of the case is by no means shocking and is arguably a reasonable ruling. A concurring opinion writing by the Honorable Susan Black limited the decision to solely the Tinker material and substantial disruption standard, suggesting that the court need go no further in applying the slew of student speech cases that have since eroded the impact of the landmark ruling. I tend to agree with Judge Black, and fear the rather narrow "Bong Hits" ruling will be applied in a broader fashion with this opinion cited as precedent.
Last week, the 11th Circuit Court of Appeals ruled on behalf of the school district on both counts. They cited a slew of Supreme Court cases related to student speech, including Tinker, Fraser, and Hazelwood, along with the TLO v. New Jersey case implicating student privacy. They went further to suggest that in their district, "school officials 'must have the flexibility to control the tenors and contours of student speech within school walls or on school property, even if such speech does not result in a reasonable fear of immediate disruption.'"
In concluding that Rachel's writing clearly constitutes expression, the material and substantial disruption standard of Tinker applies, as it threatened the "maintenance of order and decorum" within Roswell High School. The court went further, however, by applying the recent Morse v. Frederick (AKA, Bong Hits 4 Jesus) opinion, equating the school's right to limit drug-related speech to the threat of school violence.
In the end, according to the opinion, "there is...no First Amendment right allowing a student to knowingly make comments, whether oral or written, that reasonably could be perceived as a threat of school violence, whether general or specific, while on school property during the day."
The outcome of the case is by no means shocking and is arguably a reasonable ruling. A concurring opinion writing by the Honorable Susan Black limited the decision to solely the Tinker material and substantial disruption standard, suggesting that the court need go no further in applying the slew of student speech cases that have since eroded the impact of the landmark ruling. I tend to agree with Judge Black, and fear the rather narrow "Bong Hits" ruling will be applied in a broader fashion with this opinion cited as precedent.
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