The media coverage of the Sandy Hook school shooting is tapering down, but the lessons for school administrators in its wake are just beginning. One such lesson comes after a California school suspended a high school senior for writing a poem about the Connecticut tragedy. The case provides an opportunity to consider the standards for when student speech is protected, even if it is controversial, and when it is a red flag warranting discipline and other school action.

The Facts

In late December, the Life Learning Academy suspended a 17-year old student for a poem she wrote about the shooting at Sandy Hook Elementary School in Newtown, Connecticut. The poem included lines such as “I understand the killings in Connecticut. I know why he pulled the trigger.” The student told ABC News that the meaning of the poem is about society and how she understood why things like the incident happened. She explained that she wasn’t agreeing with the actions of the shooter, but “that’s how the school made it seem.” She stated that she’d written poems about suicide and sadness in the past because it is a genre that she likes, comparing herself to Stephen King who “writes weird stuff all the time. That doesn’t mean he’s going to do it or act it out.”

The student reportedly neither turned in the poem to school employees nor distributed it to others in the school community. Rather, a teacher came across the poem in a notebook and turned it into the school’s principal. According to one account, the school—which is a non-residential high school located on Treasure Island, a former US Navel base in the middle of the San Francisco Bay—and the San Francisco Unified School District are reportedly considering expelling the student. The school has a zero tolerance approach to violence or threats of violence.

The Law

It is axiomatic that students do not shed their constitutional rights to free speech and free expression at the schoolhouse gate. But equally self-evident is the fact that school districts can discipline certain threatening speech—”true threats,” as they are known—without violating the First Amendment. Even if a student’s threat does not rise to the level of a “true threat,” moreover, student speech can nonetheless be disciplined if it materially and substantially impacts on the rights of the school or other students (or reasonably could be foreseen to create such an impact).

So what constitutes a true threat or a sufficient disruption to justify punishment? There is an extensive body of case law on the issue, and the decision often turns on the factual nuances of the case. But the factors most consistently considered by courts include:

• Would a reasonable person believe the communication actually to be a threat? As the Eighth Circuit explained it, this prong would be met if a reasonable person in the same position as the person who received the threat would be frightened by the message and the tone of the message and would fear for the their physical well-being if they received the message. If the communication is obviously a joke, however, this prong is not met.
• Is the speaker capable of carrying out the threat? There is no requirement that the speaker actually intend to carry out the threat. The speaker simply has to be capable of doing so.
• Did the student communicate the threat to someone in the school environment? The student could share the communication with another student, a teacher or other employee, or post it on the Internet in a way that would likely be seen by others in the school community. In one case where a poem was found by a student’s brother at home and the brother brought it into school without the author’s knowledge, this prong was not found to be met and the discipline of the author by his school was not upheld. If a student posts a threatening communication online on a webpage that is available to the public, this prong likely has been met.

Was Suspension the Right Choice?

In the case of the San Francisco teen and the post-Newtown poem, it is difficult to know how the factors above shake out because the whole story may not be available to the public at this time. In other words, there may be many facts that support the school’s decision about which we are not aware. And of course it is more important now than ever for school administrators to take all threats seriously at least until it can be determined that they are not a concern.

But let’s assume that the facts are limited to those in the summary above. On those facts alone, it appears that suspension or further discipline would not be justified. First, there does not appear to be any real threat in the student’s poem on its face alone, let alone a statement that a reasonable person would consider actually to be a threat. Second, if there is no threat it would be difficult to see how the student would be capable of carrying a threat out out. Third, if it is true that the teacher serendipitously came across the student’s notebook and that the student did not show it to anyone, it would appear that the student did not voluntarily show the purported threat to anyone.

It is yet to be seen whether the school and the school district will choose to expel the student, or whether the student will contest her suspension in court. If they do, we will have an opportunity to find out if there are other facts that supported the school’s decision and what a court’s take on the story is. In the mean-time, educators should keep these principles in mind when determining whether a student’s comments are a true or sufficiently disruptive threat or are protected free speech, and remember that these are tricky issues that require careful analysis prior to any disciplinary decision being made.