Ponce v. Socorro Indep. Sch. Dist., No. 06-50709 (5th Cir. Nov. 20, 2007)
The U.S. Court of Appeals for Fifth Circuit (LA, MS, TX) has ruled that school officials did not violate a Texas high school student’s free speech rights when they disciplined him over entries in his personal journal referring to mounting a "Columbine" style attack on his school. Based on the U.S. Supreme Court’s ruling in Morse v. Frederick, 127 S.Ct. 2618 (2007), the appeals court concluded that such speech is not protected by the First Amendment because it "poses a direct threat to the physical safety of the school population." E.P., a student at Montwood High School (MHS), kept a personal journal in which he wrote a first person account detailing the "author’s" creation of a pseudo-Nazi group at MHS and other schools in the Socorro Independent School District (SISD), as well as the group’s plan to commit a "[C]olumbine shooting" attack at MHS or all of the schools. MHS officials learned of the journal from a concerned classmate with whom E.P. had shared some of its contents. Summoned to the assistant principal’s office, E.P. insisted the journal entry was fictional. He consented to a search of his backpack, where the journal was discovered. The assistant principal determined the entry constituted a "terroristic threat" in violation of the student code of conduct. He suspended E.P. for three days and recommended he be placed in the school’s alternative education program. E.P.’s parents mounted an unsuccessful administrative appeal, then withdrew E.P., enrolled him in private school, and sued. They alleged violations of E.P.’s rights under the First, Fourth, and Fourteenth Amendment and analogous provisions under the Texas Constitution. They sought a preliminary court order to bar SISD from: (1) placing E.P. in the alternative education program; (2) informing third parties that he intended to commit violence; (3) discussing the contents of the journal without his consent; and (4) retaining any reference to the infraction in his school record. The U.S. district court granted the injunction on First Amendment grounds. Relying on Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), the court held that "the evidence was insufficient to prove that SISD acted upon a reasonable belief that disruption would occur."
The Fifth Circuit vacated the injunction. The appeals court found that the parents had failed to show a substantial likelihood that they would succeed on the merits of their First Amendment claim, because the speech in question was not constitutionally protected. The court indicated its analysis was guided by the U.S. Supreme Court’s decision in Morse, which held that speech promoting drug use is per se unprotected speech because of the scope of potential harm to students. In particular, the Fifth Circuit invoked Justice Samuel Alito’s "concurring, and controlling, opinion," concluding that when "[t]aken together, the majority and concurring opinions in Morse explain well why the actions of the school administrators here satisfy the requirements of the First Amendment." The majority in Morse ruled that the school official’s decision to restrict the student’s expression in that case was not subject to Tinker substantial disruption analysis. The Fifth Circuit conceded that the majority opinion left unexplained "how the particular harms of a given activity add up to an interest sufficiently compelling to forego Tinker analysis." However, the appeals court found that Justice Alito’s concurrence addressed this ambiguity by providing "further clarity why some harms are in fact so great in the school setting that requiring a school administrator to evaluate their disruptive potential is unnecessary," and that "[i]n doing so it provides the specificity necessary for determining the harms that are so serious as to merit the Morse analysis." Justice Alito’s opinion made "explicit that which remains latent in the majority opinion: speech advocating a harm that is demonstrably grave and that derives that gravity from the ‘special danger’ to the physical safety of students arising from the school environment is unprotected." The Fifth Circuit stressed that school officials must take threats, such as the ones in E.P.’s journal, seriously lest they miss "telltale warning signs" that result in another tragedy similar to Columbine or Jonesboro. They must be allowed "to react quickly and decisively to address a threat of physical violence against their students, without worrying that they will have to face years of litigation second-guessing their judgment as to whether the threat posed a real risk of substantial disturbance."
Ponce v. Socorro Indep. Sch. Dist., No. 06-50709 (5th Cir. Nov. 20, 2007)
[Editor’s Note: The Morse "Bong Hits 4 Jesus" decision is summarized at the first link below. In July, the Second Circuit (CT, NY, VT) decided, in a case summarized at the second link, that the Tinker disruption test governed a student’s instant message depicting a teacher being shot and that Morse only reinforced this approach. In contrast, the Eleventh Circuit (AL, GA, FL) held in a case factually similar to this latest one that the Supreme Court’s reasoning in Morse "applies equally, if not more strongly, to speech reasonably construed as a threat of violence." See the third link.]
NSBA School Law pages on Morse v. Frederick
NSBA School Law pages on Wisniewski v. Bd. of Educ. of Weedsport Cent. Sch. Dist.
NSBA School Law pages on Boim v. Fulton County Sch. Dist.