Case of student expelled for poem could test First Amendment in public schools

Thursday, December 16, 1999

A lawsuit pending before a federal judge in Washington state could test the balance between student free-speech rights and school administrators' safety concerns.

James LaVine, a senior at Blaine High School in Whatcom County, Wash., sued the Blaine School District and several school officials last August for his expulsion in October 1998 over a poem about school violence.

LaVine had asked English teacher Vivian Bleeker to review his poem, “Last Words,” which was unrelated to any classroom assignment. The poem is a first-person account of a student who kills numerous classmates and then anguishes over his deeds.

LaVine's lawsuit states that he had noticed that news coverage of school shootings across the country was “lacking in a description of how these young killers were feeling about their crimes of violence.”

Therefore, he wrote the poem “to understand the phenomena” of school shootings nationwide and “to improve his writing skills,” according to his lawsuit.

Bleeker was frightened enough by the poem to contact the school counselor and other school authorities. The school authorities called the local police.

LaVine turned in the poem to his teacher on Oct. 2, 1998, and was expelled from school three days later. The school termed the action “an emergency expulsion.”

School officials would not allow LaVine to return to school until he was evaluated and cleared by a psychiatrist. The psychiatrist who evaluated LaVine pronounced him fine, saying he posed no danger to himself or other students.

LaVine's poem does depict violence. One passage (misspellings included) reads:

As I walked,
through the,

now empty halls,
I could feel,
my hart pounding.

As I approached,
the classroom door,
I drew my gun and,
threw open the door,
Bang, Bang, Bang-Bang.

Another passage describes the mental anguish suffered by the young killer:

No tears
shall be shead,
in sarrow,
for I am
and now,
I hope,
I can feel,
for what I did,

without a shed,
of tears,
for no tear,
shall fall,
from your face,
but from mine,
as I try,
to rest in peace,

In LaVine v. Blaine School District, James LaVine and his father Bruce contend that James' First Amendment rights were violated when he was punished for the content of his poem.

Breean Beggs, the family's attorney, says the actions of school officials were similar to those prompted by the “Columbine hysteria” now affecting school administrators nationwide.

“The school district's position is that the First Amendment doesn't apply if they have any health or safety concern,” Beggs said. “The school officials' actions violated James' First Amendment rights by punishing him for the content of his expression, even though it caused no disruption.”

Beggs argues in legal papers that under the U.S. Supreme Court's 1969 decision in Tinker v. Des Moines Independent Community School District, LaVine's poem is protected speech under the First Amendment.

In Tinker, the high court ruled that Iowa public school officials had violated the First Amendment rights of several students suspended for wearing black armbands protesting U.S. involvement in the Vietnam War.

According to the high court, student expression is constitutionally protected unless school officials can reasonably predict that it will lead to a substantial disruption or material interference in the school environment.

Beggs writes in legal papers that “applying the Tinker analysis to the case at hand leads to the conclusion that James, as the students in Des Moines, was the victim of a constitutional violation of his First Amendment rights to free speech.”

“Kids wearing black armbands to school in the 1960s was pretty inflammatory stuff, and that was considered protected speech by the U.S. Supreme Court,” Beggs said. “The issue of the Vietnam War was quite controversial. I mean you had people killing each other in the streets. Look at what happened at Kent State.”

Beggs contends that no disturbance resulted from LaVine's poem. “To punish James for writing a poem that did not cause any disturbance in the educational process or infringe on the rights of any student or teacher at Blaine High School is a violation of his right to free speech.”

However, Mike Patterson, attorney for the school district, said school officials acted reasonably under the circumstances. “The school officials did not take action against LaVine just because of the poem,” he said. “There were other factors involved in the decision as well.”

In legal papers, Patterson argues that school officials were concerned that other factors in LaVine's life, including a “major confrontation” with his father, caused the officials to be reasonably concerned as to LaVine's mindset.

“Ms. Bleeker found the material (in the poem) disturbing and believed, based on her experience, that it might be a warning sign that plaintiff was not dealing very well with some sort of stress in his life,” the school district says in its legal brief. The district's brief also refers to “past incidents” involving LaVine, “including assault on another student on campus and inappropriate 'stalking' behavior towards an ex-girlfriend.”

The school district concludes that “emergency expulsion was entirely appropriate due to the overwhelming immediate safety concerns for the student body.”

Even though the district cites other factors in its discipline of LaVine, a main legal issue in the case revolves around whether the poem receives First Amendment protection.

The teen's attorney contends the poem is pure speech entitled to First Amendment protection. “To censure students' creative efforts as did Blaine school officials is to institute a chilling effect on students' expression on difficult topics,” his legal papers say.

LaVine's attorney said that the Vietnam War was, and teen violence continues to be, an alarming concept to school administrators. “However, the Constitution's protection of speech is not measured against the social backdrop of the times,” he writes.

First Amendment expert Kevin O'Shea, publisher of First Amendment Rights in Education, agrees with Beggs that the Tinker standard is the appropriate standard for student free-speech cases.

However, O'Shea said that “if the poem doesn't involve direct political speech, then it is not as protected as the speech in Tinker.”

“The courts will look at the current atmosphere — with school shootings occurring nationwide — in determining whether school officials can reasonably forecast that student expression would create a substantial disruption of the educational environment,” he said.

The school district contends that LaVine's speech was not the pure political speech at issue in Tinker. “This is not a case of political rhetoric or student expression in education — no matter how plaintiff attempts to characterize it,” according to the district's brief.

O'Shea said that while school officials might have had a reasonable fear of disruption, it appears that this was a “case of excessive discipline and overreaction.”

LaVine's attorney has filed a motion for summary judgment on the First Amendment claim, and the district has responded with a cross-motion for summary judgment. The federal judge assigned to the case has not yet held a hearing on the First Amendment issue.

Beggs says that he has no idea when the court will hold a hearing on the case, although he predicts the case could well set an “important free-speech precedent.”