Free speech hurt in shootings' wake

March 13, 2001|By Larry Atkins

PHILADELPHIA - In addition to the tragic loss of lives caused by the recent spate of school shootings, another silent victim has emerged: the free speech rights of students.

With the increasing number of school shootings, school officials, police, and parents are looking for signs about whether a troubled teen is about to go on a shooting spree. As the Andy Williams situation in San Diego last week indicated, it's often difficult for anyone to know when a kid is seriously contemplating an act of violence or merely joking or engaging in constitutionally protected free speech.

Recent court decisions involved cases pitting valid concern for school violence against situations in which school officials overreacted and violated students' free speech rights.

Shortly after the Columbine incident nearly two years ago, an Ohio high school student suggested in writing that students could relieve stress by assassinating the president and blowing up a house. When the school suspended him for 10 days, he sued the school district for violating his free speech rights and sought to have his suspension expunged from his academic record. The student received $16,500 and had the suspension expunged.

A high school senior recently sued school officials in a Washington state federal court for First Amendment violations after they expelled him for writing a poem that gave a first-person account of a fictitious student who killed numerous classmates and then anguished over his acts. The court ruled in his favor, finding the poem was not a sincere expression of intent to harm.

Recent court decisions have challenged whether school districts can punish students for Web sites created at home.

A federal judge in Washington state ordered a high school to drop its suspension of a student who posted mock obituaries of other students with their permission via his home computer. The judge ruled the school lacked authority to punish students for exercising their freedom of speech outside of school.

As the U.S. Supreme Court ruled in the 1969 seminal case on public school students' First Amendment rights - Tinker vs. Des Moines Independent Community School District - public school students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate."

A good approach to dealing with Columbine types of situations occurred in Ohio in 1999. Eleven high school and middle school students who discussed their hatred of some students and teachers on a Gothic Web site were placed on an "emergency removal list" for seven days pending an investigation. They were permitted to return to school after an expulsion hearing.

School administrators are in a tough spot in these cases, and it seems justifiable that they should err on the side of safety. But suspensions or expulsions should not be a knee-jerk reaction. They should be accompanied by thorough investigations, psychiatric evaluations and hearings that give the accused student a chance to explain.

Easing zero-tolerance rules might make a student more likely to tell authorities that a friend might be thinking about committing violence. That could result in hearings, investigations and psychological counseling rather than a permanent and automatic expulsion.

There's a big difference between the angry rants and specific terror threats made by the Columbine suicide killers orAndy Williams and the offhand sarcastic remarks or constitutionally protected opinions about school violence others express. While concern is justified, the accused student deserves an opportunity to be heard.

As the Supreme Court said in the Tinker ruling, "state- operated schools may not be enclaves of totalitarianism."

We haven't reached that stage yet, but it's a legitimate concern that school officials will overreact to every single incident.

Larry Atkins is a lawyer and writer who lives in Philadelphia.

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