Waiting to Exhale: How "bong Hits 4 Jesus" Reduces Breathing Space for Student Speakers & Alters the Constitutional Limits on Schools' Disciplinary Actions Against Student Threats in the Light of Morse v. Frederick
| Jurisdiction | United States,Federal |
| Publication year | 2010 |
| Citation | Vol. 25 No. 2 |
Georgia State University Law Review
Article 3
3-21-2012
Waiting to Exhale: How "Bong Hits 4 Jesus" Reduces Breathing Space for Student Speakers & Alters the Constitutional Limits on Schools' Disciplinary Actions Against Student Threats in the Light of Morse v. Frederick
Angie Fox
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Recommended Citation
Fox, Angie (2008) "Waiting to Exhale: How "Bong Hits 4 Jesus" Reduces Breathing Space for Student Speakers & Alters the Constitutional Limits on Schools' Disciplinary Actions Against Student Threats in the Light of Morse v. Frederick," Georgia State University Law Review: Vol. 25: Iss. 2, Article 3. Available at: http://digitalarchive.gsu.edu/gsulr/vol25/iss2/3
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WAITING TO EXHALE: HOW "BONG HITS 4 JESUS" REDUCES BREATHING SPACE FOR
STUDENT SPEAKERS & ALTERS THE CONSTITUTIONAL LIMITS ON SCHOOLS' DISCIPLINARY ACTIONS AGAINST STUDENT THREATS IN THE LIGHT OF MORSE V. FREDERICK
Introduction
Since 1996, thirty-nine school shootings have occurred in the United States, resulting in over one hundred deaths.1 Due in part to the large number of casualties involved in several of these shootings, media coverage has been as intense as it has been ubiquitous. As alarmingly tragic as these calamities have been, research demonstrates that school violence in this country has steadily declined since the early 1990s, when it peaked alongside other forms of juvenile crime.3 According to experts, "the actual occurrence of violent death in schools is much lower than the media portrays."4 For instance, the Centers for Disease Control and Prevention has observed that "[although high-profile school shootings have increased public concern for student safety, school-associated violent deaths account for less than 1% of homicides among school-aged children and youth."5
1. See A Timeline of Recent Worldwide Shootings, http://www.infoplease.com/ipa/A0777958.htrnl (last visited Jan. 7,2009).
2. See, e.g., Joe Volz, Media Distorts the Truth About Violence in School, 30 AM. psychol. ASS'n Monitor 9 (Oct. 1999), available at http://www.apa.org/monitor/oct99/cf2.htrnl (stating that "the sheer number of media accounts about violence suggests the problem of school crime is much worse than it is.").
3. Dewey G. Cornell, School Violence: Fears Versus Facts 11,29-31 (2006).
4. The National Center for Children Exposed to Violence, http://www.nccev.org/violence/ school.html (last visited Jan. 7,2009).
5. CDC, Youth Violence Fact Sheet, http://www.cdc.gov/ncipc/factsheets/yvfacts.htm (last visited Jan. 7, 2009); See also Cornell, supra note 3, at 16 (noting that news reports on school shootings "seemed to confirm a radical change in the safety of all schools"; for example, "the cover of Newsweek magazine (March 9, 1992) brazenly presented 'A report from America's classroom killing grounds.' The use of hyperbole such as 'killing grounds' is an obvious attempt to reach a sensational conclusion.").
436 GEORGIA STATE UNIVERSITY LAW REVIEW [Vol. 25:2
In the wake of high-profile shootings, (such as Columbine, and more recently Virginia Tech), and the accompanying perception of increased school violence, educators, administrators, and policymakers have been re-assessing the scope of schools' disciplinary authority to respond to students' conduct, writings, and speech before they erupt in tragedy.6 For instance, following the Virginia Tech shootings in April 2007, educators "across the country have been wondering what they would [or could] have done if the gunman, Seung-Hui Cho, had been writing troubling stories in their classrooms."7 Concomitantly, "[s]ome members of Congress want to . . . [rewrite existing laws to] absolve college officials of liability if they contact parents to discuss concerns about a dependent student, as long as they consultf] first with a licensed mental-health
Q
professional." Similarly, some state policymakers would like to bolster educators' abilities to intervene by lessening the possibility that such intervention would precipitate litigation by students.9 Most relevantly, these concerns are not lost on courts, recognizing that "[a]fter Columbine... and other school shootings, questions have been asked about how teachers or administrators could have missed telltale 'warning signs,' why something was not done earlier and
what should be done to prevent such tragedies from happening
___• „io
again.
To be sure, preventing school violence through proactive and disciplinary measures is a legitimate and necessary enterprise for school officials.11 Educational experts, however, have questioned the efficacy of some of the preventative programs that have been
6. E.g., Joseph Berger, Deciding When Student Writing Crosses the Line, N.Y. Times, May 2, 2007, at B7; Elizabeth Bernstein, Delicate Balance: Colleges' Culture of Privacy Often Overshadows Safety - Laws Allow Disclosure of Troubling Behavior But Many Schools Resist, Wall ST. J., Apr. 27, 2007, at Al; Michael Luo, Senators Discuss Preventing College Attacks, N.Y. TIMES, Apr. 24, 2007, at A17.
7. Berger, supra note 6, at B7.
8. Bernstein, supra note 6, at Al.
9. Alan Gaithright, Measure Would Protect School Staff, rocky Mountain News, Apr. 25, 2007, at 24.
10. Lavine v. Blaine Sch. Dist, 257 F.3d 981, 987 (9th Cir. 2001).
11. See generally robert A. fein et al., threat assessment in schools: A guide to
Managing Threatening Situations and to Creating Safe School Climates 64 (2002).
2008] WAITING TO EXHALE 437
10
proposed and enacted in recent years. For example, researchers in the field of education as well as policy groups have challenged as ineffective (or at least over inclusive) "get tough" or "zero tolerance" school policies that automatically punish a student, often quite severely, for any infraction, regardless of ambient circumstances,
1 %
such as the student's intent.
In addition to arousing skepticism among education researchers, new disciplinary measures have piqued the scrutiny of courts and constitutional scholars because they raise important constitutional questions.14 In particular, those policies aimed at strengthening schools' disciplinary abilities to preempt violence by punishing violent speech lie in direct tension with students' First Amendment free speech rights.15
Examined broadly, this constitutional tension is not new. Commentators have substantially chronicled federal courts' approaches to the constitutional concerns over school disciplinary policies as they interact with the First Amendment.16 For instance, the much heralded professor-practitioner Erwin Chemerinsky has traced the manner in which First Amendment school discipline cases have grappled with, followed, and generally chipped away at the seminal case of Tinker v. Des Moines Independent Community School
17 18
District, upon its thirtieth anniversary. Others, perhaps more forward looking, have questioned the extent to which the First Amendment permits schools to discipline students for speech created off-campus—in cyberspace, for instance.19
12. E.g., CORNELL, supra note 3, at 164-65 (collecting criticism of "zero tolerance" policies in schools for threat-related behavior including possessing a firearm on school property).
13. Id.
14. See generally David L. Hudson, Jr., Student Expression in the Age of Columbine: Securing Safety and Protecting First Amendment Rights, 6 FIRST REP. 2, Sept. 2005, available at http://www.firstamendmentcenter.org/PDF/First.Report.student.speech.pdf.
15. Id. at 25-26.
16. See generally, e.g., Edward T. Ramey, Student Expression: The Legacy o/"Tinker in the Wake of Columbine, 77 denver U. L. rev. 699 (2000).
17. Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969).
18. See generally Erwin Chemerinksy, Students Do Leave Their First Amendment Rights at the Schoolhouse Gates: What's Left of Tinker?, 48 Drake L. Rev. 527 (2000).
19. E.g., Rita J. Verga, Policing Their Space: The First Amendment Parameters of School Discipline of Student Cyberspeech, 23 Santa Clara COMPUTER & HIGH Tech. L.J. 727, 728-29 (2007).
438 GEORGIA STATE UNIVERSITY LAW REVIEW [Vol. 25:2
This Comment picks up where these commentaries (and others similar to them) left off. Specifically, it seeks to provide a framework of the legal principals at play in determining the constitutionality of school disciplinary policies and actions.20 This Comment is made timely not only by the most recent tragedy at Virginia Tech and the disciplinary proposals it and other similar catastrophes have generated, but also by the Supreme Court's most recent decision in the student-speech area, Morse v. Frederick?1
In Morse, the much-discussed "BONG HiTS 4 JESUS" case, the United States Supreme Court held that school officials may discipline students for speech reasonably interpreted as advocating illegal drug use. Although Morse did not concern student speech contemplating violence, it augments schools' disciplinary authority, and in this regard, Morse raises new questions about the outer limits of such authority in other contexts. The constitutional confines with respect to student threats are particularly implicated by Morse's holding due to similar concerns for protecting the health and safety of schoolchildren.24 Indeed, Morse has already been applied to such cases in three Federal Circuit Courts of Appeal.25 In Boim v. Fulton County School District, the Eleventh Circuit upheld a Georgia high school student's ten-day suspension for a fictional story about a girl's "dream" of shooting her teacher.26 Also faced with a perceived threat of violence, the Second Circuit, in Wisniewski v. Board...
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