School-violence poem was protected speech, not true threat, judge rules

Monday, February 28, 2000

The First Amendment rights of Washington high school student James LaVine were violated when Blaine School District officials expelled him in October 1998 because of the content of his poem, a federal judge has ruled.

LaVine sued the school district and several school officials in August 1999, contending that his poem about school violence, entitled “Last Words,” was protected speech, not a true threat.

LaVine, then a junior, handed in the poem to English teacher Vivian Bleeker for her review. The poem was not an assigned project.

Bleeker and other school officials became concerned after reading the work, a first-person account of a student shooting fellow classmates. School officials would not allow LaVine to return to school until he was evaluated and cleared by a psychiatrist. The psychiatrist who evaluated him pronounced LaVine fine, saying he posed no danger to himself or other students.

U.S. District Judge Barbara Jacobs Rothstein agreed in a Feb. 24 opinion in LaVine v. Blaine School District.

“Poetry is one of the classical means for artistic expression of the content of one’s mind, and as such, falls within the core speech protected by the Constitution,” Rothstein wrote.

The judge noted that the First Amendment does not protect true threats, writing: “It is true that such actual threats made in the school context are not speech embraced by the First Amendment.”

According to the judge, “the record presented permits no finding other than that ‘Last Words’ was not a sincere expression of intent to harm or assault, and the poem therefore falls squarely within the purview of the First Amendment’s core protection.”

A reasonable third person would not have interpreted the poem as a true threat, the judge found. “There was “no overt action, violent demeanor, or other threatening behavior manifested by James LaVine.”

Attorneys for the school officials argued that the combined impact of “Last Words” and other factors made their decision reasonable. The other factors cited by the court included:

  • A domestic violence complaint lodged against James’ father Bruce LaVine.
  • James LaVine’s ‘history of suicidal intention.’
  • One prior incident of fighting.
  • Concerns expressed by another student’s mother about James’ demeanor toward her daughter.

However, the court rejected the school district’s argument. “None of these other factors could reasonably have caused the District to expel James LaVine.”

The court also noted that the school district’s actions were not only unreasonable, but also “went well beyond that which was permissible under the circumstances.”

“A temporary suspension pending psychiatric evaluation would have been a far less drastic measure and ultimately would have accomplished the defendants’ intent,” Rothstein wrote.

The court also chastised the school district for insisting on maintaining documentation of this incident in LaVine’s personal file. “The court concludes that forever saddling James LaVine with the baggage flowing from an expulsion of dubious constitutional validity serves no governmental interest at all,” Rothstein wrote.

Breean Beggs, Lavine’s attorney, said the decision, along with the decision in the Sarah Boman case in Kansas “will start turning the tide against post-Columbine hysteria.”

“The judge made it clear that the same First Amendment standard of review applies whether the motivation in expelling a student is punitive or simply a safety concern,” he said. “Prior to this and the Kansas opinion, there was simply no case that confirmed that the First Amendment was alive and well in public schools unless there was actually a true threat.”