5th Circuit extends limits on student speech

When the U.S. Supreme Court in June decided Morse v. Frederick, reasons existed for believing the ruling would not significantly restrict the rights of student speakers.

The decision upholding the right of a school administrator to punish a student who displayed a “Bong Hits 4 Jesus” banner, after all, featured a 5-4 vote and splintered opinions that hardly provided a mandate for suppressing student speech. Moreover, Justice Samuel Alito — who wrote the concurrence creating the majority — took pains to limit the precedent to speech advocating drug use and other illegal activities. In addition, most of the justices expressly supported the Court’s 1969 decision in Tinker v. Des Moines Independent Community School Dist. upholding students’ right to engage in expressive activity that did not substantially disrupt school activities.

Just five months later, however, hopes that Morse would be interpreted narrowly have been dashed — at least in Texas, Louisiana and Mississippi. On Nov. 20, the 5th U.S. Circuit Court of Appeals, which has jurisdiction in these states, extended Morse to allow school administrators to apply zero-tolerance rules to threats of violence and potentially other subjects of student speech.

In Ponce v. Socorro Independent School Dist., a high school sophomore, Enrique Ponce, kept a diary in which he described creating a pseudo-Nazi group, committing several incidents of violence against homosexual and minority students and planning Columbine-type shootings at several schools. The plan, according to the diary, would be carried out on a graduation day several years later.

The sophomore described the notebook to another student, who reported it to a teacher. The sophomore eventually was questioned by an assistant principal and said the notebook was a work of fiction. The sophomore’s mother, citing her own creative writing experience, also maintained the notebook was fiction.

The assistant principal was not persuaded and determined that the sophomore posed a “terroristic threat” to other students. He suspended the student for three days and recommended he be placed in the school’s alternative education program. The assistant principal also reported the notebook to the El Paso Police Department, which arrested the student. After reviewing the case, however, prosecutors declined to press charges.

The sophomore’s parents sued, alleging the school district violated their son’s First Amendment rights. The trial court agreed, holding that, under Tinker, the school district had failed to show the notebook had caused or was likely to cause a substantial disruption.

On appeal, the unanimous three-judge panel of the 5th Circuit reversed the district court, saying it was “follow(ing) the lead” of the Court in Morse. As the appeals court interpreted Morse — and in particular Justice Alito’s concurrence — the substantial-disruption test of Tinker does not apply if the speech at issue “potentially foments” harm to students. Indeed, the appeals court held, such speech falls entirely outside the protection of the First Amendment.

In reaching its holding, the appeals court made several curious twists and turns through Morse and other jurisprudence that has developed in this area.

First, the court equated the unknown danger of the sophomore’s speech to the known danger of the illegal drug use promoted in Morse. While administrators of course must take seriously all threats of school violence, part of taking a threat seriously is evaluating it. In this case, no evidence existed that the sophomore intended any violence. The fictional nature of the notebook was clear from the fact that the student had not created a pseudo-Nazi group, had not caused any violent incident and described a shooting that was to occur several years in the future. The lack of a credible threat also was clear in the prosecutor’s decision not to press criminal charges.

Second, the court attempted to distinguish two post-Morse decisions that applied Tinker in cases involving student threats — the 2nd Circuit’s decision in Wisniewski v. Board of Education of Weedsport Central School Dist. (2007) and the 11th Circuit’s decision in Boim v. Fulton County School Dist. (2007). These cases were different, the court said, because they involved threats against teachers, not students. Tinker could be applied in such cases, the court reasoned, because threats against teachers “are relatively discrete in scope and directed at adults,” whereas threats of mass school shootings are more “devastating.” Interestingly, however, a threat of a mass school shooting is more devastating than a threat against a teacher only if the larger threat is credible, a determination the new 5th Circuit opinion does not require.

Third, the court relied on Schenck v. United States (1919) in stating that “when a student threatens violence against a student body, his words are as much beyond the constitutional pale as yelling ‘fire’ in [a] crowded theater.” In this case, however, the sophomore did not credibly threaten anyone and did not come remotely close to yelling “fire” in a crowded theater. At most, the notebook was the equivalent of the student’s writing, “There would be chaos in here if someone yelled ‘fire’” and handing that note to a friend sitting next to him.

After these twists and turns, the court was able to pronounce its sweeping conclusion: “School administrators must be permitted 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.”

School administrators in the 5th Circuit thus now may apply zero-tolerance rules to any speech about violence against students. The threat of violence need not be credible, imminent or even possible. It need not be widely disseminated or even disseminated at all at school. Any speech about violence against students, even if clearly fiction or fantasy, is without First Amendment protection in that circuit.

Perhaps even more troubling about the ruling in Ponce is the ease with which it could be extended to other speech. Under Ponce, the First Amendment does not protect any speech that advocates or threatens a harm at least as serious as illegal drug use. Those harms presumably could include activities such as bullying, teenage sex, alcohol and tobacco use or driving under the influence of alcohol.

Though speech advocating these activities of course is inappropriate at school, the problem with the analysis in Ponce is that it — in order to protect administrators from second-guessing — effectively denies First Amendment protection to all speech about these topics. As easily as an assistant principal can conclude that an incredible description of violence threatens real harm, an administrator can determine that an article about birth control in the school newspaper advocates teen sex.

Tinker, despite frequently being attacked, has survived since 1969 because it strikes the appropriate balance regarding student speech — that which substantially disrupts school activities is not permitted; all else is. Morseeliminated that balance as to one topic, and Ponce eliminates it for at least one other.

Whether Tinker continues to survive will depend on whether other courts are willing to second-guess Ponce and, at least occasionally, school administrators.

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