For the first time in Pennsylvania, a federal court has found that “speech advocating school violence is unprotected” by the First Amendment, even in the absence of the substantial disruption analysis used by Pennsylvania courts to date.
In the case of J.R. v. Penns Manor Area School District (W.D.Pa. No. 18-574, Jan. 2, 2019), a federal court may have provided more leeway to school entities seeking to discipline students who make threats of school violence to do so without running afoul of the First Amendment.
Background of Free Speech Case
J.R. involved a student who had a conversation with his classmates about who they would shoot if they were to do a school shooting, including naming a specific teacher they would shoot. Another student overheard this conversation and reported this to the administration, which lead to a guidance counselor having a conversation with J.R. in which he admitted that he told his classmates he would shoot this specific teacher and would do so with a pistol. Throughout the course of the day, J.R. continued to discuss with other students that he would shoot this specific teacher if there was a school shooting. The student was expelled for a year for this behavior and filed suit claiming the expulsion was a violation of his First Amendment right to free speech.
Analysis
The court starts off by noting the challenges of applying the First Amendment to the school setting, but explains that past Supreme Court cases have found that school officials can take actions that limit speech, including discipline, without violating the First Amendment if there is (1) a well-founded “expectation of disruption” as a result of the speech, (2) the speech in questions is “lewd, vulgar, indecent, and plainly offensive”, (3) if the speech is “school-sponsored speech” and the limitations are based upon “legitimate pedagogical concern”, or (4) because of the “special characteristics of the school environment … and the governmental interest in stopping student drug abuse”, school officials can “restrict student expression that they reasonably regard as promoting illegal drug use.”
The court explains that due to the increase in school violence in recent years, school officials have become increasingly aggressive in responding to threatened violence.
The court further explains that federal courts have uniformly agreed that language threatening school violence is not constitutionally protected, but done so on the basis that such speech “might reasonably lead authorities to forecast a substantial disruption or material interference with school activities or discipline.” The court then moves to several “novel” cases outside of Pennsylvania that have found that, due to the special nature of school and the government interest in protecting students, just like the issue of limiting illegal drug use, school officials are permitted to restrict student speech that promotes school violence without violating the First Amendment even without the risk of a substantial disruption simply based upon the nature of the speech.
Applying this case law to the facts of the J.R. case, the court first finds that because the student threatened school violence, specifically identified the potential victims, and explained how he would carry out the shooting, school officials could reasonably forecast substantial disruption or material interference with school activities due to the speech and, thus, could discipline without violating the First Amendment.
In addition, the court finds that even if the potential for a substantial disruption is not supported, the court adopts the analysis used in other parts of the country to find that speech advocating school violence is not protected by the First Amendment and, as a result, a school can properly discipline a student for such speech.
Bottom Line for Schools
When schools seek to discipline students for making statements about school violence, in addition to being able to discipline for speech that is likely to cause a substantial disruption, schools may be able to discipline for speech advocating for school violence, simply based upon the nature of the speech, without violating the First Amendment. The holding in J.R. represents only the opinion of one Federal judge in the Third Circuit. Schools should carefully weigh their discipline options in such cases and consult their legal counsel or one of the attorneys at KingSpry.
This School Law Bullet is a publication of the KingSpry Education Law Practice Group. John E. Freund is our editor. It is meant to be informational and does not constitute legal advice.
