In April 1999, the nation mourned the horrific tragedy at Columbine High School in Littleton, Colo., in which students Eric Harris and Dylan Klebold opened fire on their classmates, teachers and others before turning the guns on themselves. Unfortunately, Columbine is not the only episode of senseless school violence. In March, a student in Red Lake, Minn., killed fellow students in a rampage. School shootings also have occurred in recent years in Springfield, Ore., Paducah, Ky., and Jonesboro, Ark.
These incidents and others understandably have heightened school officials’ concerns in ensuring a safe learning environment for their students. No one questions that school officials have a compelling interest in school safety. However, the quest for safety can lead to the trampling of student free-expression rights. In the age of zero tolerance, some students become victims of Columbine in another sense.
“We are in a new paradigm of lockdown and surveillance,” says John Whitehead, founder of the Rutherford Institute, a civil liberties group based in Virginia.
“Zero tolerance has become the bureaucrat’s dream. If a kid brings a pistol to school with the intent to harm, should school officials really treat him the same as a kid who accidentally has a box cutter? Should they be treated the same way? I don’t think so.”
One such student subjected to this “lockdown” mentality was Adam Porter. The Louisiana teen was expelled from school, charged with two felonies and thrown into jail for four days for a 2-year-old drawing that his younger brother inadvertently brought to school.
In 1999 when Adam was 14, he sketched a drawing of his school, East Ascension High, under attack by a missile launcher, armed individuals and explosives. The drawing also contained disparaging remarks about his principal and a racial epithet.
Adam showed the drawing to his mother, Mary LeBlanc. “I remember when Adam sketched the drawing in his bedroom,” she said. “I asked him what he was doing and he said he was ‘just playing.’ I found it humorous, not a serious thing. I talked with him about it. He had no violent intent at all when he made the drawing. In fact, I forgot about it until two years later.”
Adam’s mother forgot about the drawing in part because the sketchpad was thrown into a family closet, where it remained for two years until Adam’s younger brother, Andrew Breen, discovered it in March 2001. Andrew drew a picture of an animal on it. Then he took the sketchpad on the school bus to show one of his teachers. On the bus, Andrew showed his drawing to a fellow student. Flipping through the pad, that student noticed Adam’s 2-year-old drawing. The student showed the school bus driver and the cycle of overreaction began.
The result was that Andrew received a three-day suspension for bringing an inappropriate drawing to Galvez Middle School. Meanwhile, officials were contacted at the high school and informed of Adam’s drawing. School officials searched Adam at school and found a box cutter. They then removed him from school.
Adam worked at a local grocery store and used the box cutter for his job. School officials thought differently, believing him to be a serious security risk.
“Adam spent four nights in jail,” his mother recalls. “It was unbelievable. Adam never had discipline problems in school. The only complaint I ever received about him was that he sometimes made the other kids laugh, sort of like a class clown. He was one of the most docile kids in school.”
Adam was allowed to re-enroll at an alternative school after his mother waived his right to a hearing on the expulsion proceedings. His mother signed the waiver after being told by a school hearing officer that such school proceedings are regularly decided in the school’s favor. Adam attended the alternative school, later re-enrolled at Ascension and dropped out in March 2002.
At that time, Adam Porter and his brother sued Ascension Parish School Board, alleging numerous constitutional violations. Among their claims, the brothers asserted that school officials had violated their First Amendment rights by punishing them for the content of a drawing.
School officials countered that they could reasonably believe that the drawing constituted a true threat or that they could reasonably forecast that the drawing would create a substantial disruption of school activities.
At federal trial court
U.S. District Judge Frank J. Polozola had Columbine on his mind when he issued his decision granting summary judgment to the school board.
School officials, he wrote, “cannot operate in a vacuum or in a fantasy world and must be aware of the events occurring at other schools to properly protect their students and faculty.
“One of the keys to avoiding violence and disruption at schools is to be aware of acts which could cause such. Indeed, several of the opinions this Court relies on in this opinion mention Columbine and similar incidents in upholding the actions taken by the schools in other cases.”
Polozola determined that Adam’s drawing constituted a substantial disruption under the Tinker standard articulated by the U.S. Supreme Court in its classic 1969 opinion, Tinker v. Des Moines Indep. Comm. Sch. Dist.
Polozola also held that Adam’s drawing constituted a true threat and, thus, received no First Amendment protection.
Adam and his attorney, Dan Scheuermann, had argued that the drawing could not constitute a true threat because Adam never intended to show it to anyone at school. “This does not and should not matter,” Polozola wrote. “What does matter is that the drawing did end up in the hands of a student, a bus driver and school administrators, all of whom were justified in believing it was a threat to the safety of all of the EAHS school family and facilities.”
The brothers contended they shouldn’t be punished because the drawing was created in the privacy of Adam’s room. Polozola rejected this argument, saying it was irrelevant where the drawing was made. “The key issue is whether the school administrators and students perceived the drawing (or gun) as a threat to their safety and security when it was discovered on the school campus or bus.”
Before the 5th Circuit
The plaintiffs then took their case to a three-judge panel of the 5th U.S. Circuit Court of Appeals. Scheuermann said that at oral argument the justices appeared to believe that the school officials had overreacted. “The facts of the case would not warrant what the school board did,” he said. “The chief judge, who was on the panel, referred to what the school officials did as a ‘disaster.’”
In Porter v. Ascension Parish School Board, the 5th Circuit disagreed with the lower court that Adam’s speech was a true threat or that it constituted a substantial disruption under Tinker.
“Given the unique facts of this case, we decline to find that Adam’s drawing constitutes student speech on school premises,” Judge Patrick Higginbotham wrote for the panel. “Adam’s drawing was completed in his home, stored for two years, and never intended by him to be brought to campus.”
“Private writings made and kept in one’s home enjoy the protections of the First Amendment, as well as the Fourth,” the panel wrote. “For such writings to lose their First Amendment protection, something more than their accidental and unintentional exposure to public scrutiny must take place.”
However, the 5th Circuit still ruled in favor of the school officials by granting them qualified immunity. Qualified immunity is a doctrine that protects government officials from liability in civil rights actions when they do not violate clearly established principles of law.
The panel wrote that a reasonable school official “facing this question for the first time would find no pre-existing body of law from which he could draw clear guidance and certain conclusions.”
Because of the “unsettled nature of First Amendment law as applied to off-campus student speech inadvertently brought on campus by others,” the court determined that the school officials did not violate clearly established constitutional rights.
Mary LeBlanc takes little solace in the fact that the 5th Circuit found that Adam’s drawing had First Amendment protection.
“To me it feels like a watered-down victory,” she says. “It is a victory in that the court ruled that Adam’s First Amendment rights were indeed violated. It is also a victory with respect to all children in the public school system. The court has established that the schools cannot punish children who find themselves in the same or comparable situations.
“The granting of qualified immunity is the only part of the ruling that seems to defy logic,” she adds. “The very first thing we learn in studying the Constitution is that you cannot be punished for voicing your opinion, or otherwise expressing yourself. And the sanctity of the home is well established. It is not logical to believe that a rational adult, a school principal no less, would NOT know this.”
Scheuermann agrees. “The decision means that students’ rights, at least in the 5th Circuit, are quite diminished,” he says. “It makes one wonder what school officials would have to do to somehow get the attention of the judicial branch of government.”
For this reason, the Rutherford Institute continues to fund the case as it now goes to the nation’s highest court. “The (Supreme) Court really needs to look at whether qualified immunity trumps First Amendment rights in these kinds of cases,” Whitehead says.
Scheuermann is preparing the petition for certiorari. He says the case “certainly can be viewed as an example of post-Columbine overreaction.”
But what of school officials’ duty to ensure that the school environment is safe? Shouldn’t the officials take a close look at any student writings or drawings that contain violence?
Yes, say Scheuermann and Whitehead, but they stress that school officials should not assume that any student writing or drawing that shows violent themes should be automatically punished or categorized as a true threat. Some such student expression simply does not constitute a threat.
“Art history is replete with artists who have used violence in their art to protest violence: from Picasso’s ‘Guernica,’ Goya’s ‘5th of May’ to Gericault’s ‘Raft of the Medusa,’” Scheuermann says. “Mel Gibson used much violence to portray the crucifixion of Jesus. Why couldn’t Adam Porter create a drawing with violent themes to protest Columbine?”
Fortunately, Adam Porter seems to be doing well. He obtained his G.E.D. and, according to his mother, is working in a four-year apprentice program in his journey to become a sheet-metal worker.
The larger lesson?
The larger lesson may be an unfortunate one — that public school students possess very few First Amendment rights in school. “We are in danger of creating a whole generation of students who don’t know much about the Constitution,” Whitehead warns. “With cases like Adam Porter’s, it will be easier to sell to kids an authoritarian regime.”
“Everyone wants schools to be safe,” Whitehead says. “But, when bad things happen school officials are not focused on the problem in the right way. It is like if the police were trying to do all they could to focus on traffic violations and let all the drug dealers run free. School officials sometimes look for the wrong things.”
Perhaps Mary LeBlanc gives the most important reason why the Supreme Court should take this case. “A lesson I learned is that kids in public schools don’t have any First Amendment rights. They may think they do, but they don’t.
“Kids’ rights are slipping away in public schools just as other rights are slipping away in society. And people often don’t seem to care or realize that it’s happening.”