An ethical and legal perspective on the role of school counselors in preventing violence in schools - Special issue: legal and ethical issues in school counseling

Professional School Counseling, Oct, 2002 by Mary A. Hermann, Abbe Finn

Other courts have considered students' constitutional rights and focused on whether threats of violence made in school settings were believable (Hermann & Remley, 2000). Though threats that present a "clear and present danger" have never been afforded first amendment protections, some courts are still finding that for a threat to be punishable, the threat must meet the objective "true threat" test (e.g., Lovell v. Poway Unified Sch. Dist., 1996). According to these courts, a "true threat" is a threat that a reasonable person in the same circumstances would find to be a serious and unambiguous expression of intent to do harm based on the language and context of the threat.

The application of the "true threat" doctrine is illustrated in D. G. vs. Independent School District No. 11, Tulsa County Oklahoma (2000). In this case, the court considered the suspension of an 11th grade student for writing a poem about killing a specific teacher. The student explained that she was upset with the teacher at the time and she wrote the poem to express her frustration. The student did not intend for the teacher to see the poem. Neither the teacher nor the school administrator considered the threat to be a "true threat" because the student had never been engaged in or threatened to engage in violent conduct at school. But, the school had a "zero tolerance" policy for student threats. The court held that the student's suspension was appropriate while the threat was being investigated; however, the court added that once a psychologist determined that the threat was not a "true threat," the school was violating the student's constitutional rights by not allowing the student to return to school.

Similarly, in Lavine v. Blaine School District (2001), a student sued school officials, including his school counselors, after being expelled because of a poem he wrote. The poem contained suicidal and homicidal imagery including a passage depicting a school shooting, 28 people dying, the shooter feeling no remorse, and the perpetrator shooting himself. The English teacher who read the poem was concerned and notified the school counselor. The school shooting in nearby Springfield, Oregon had just occurred. In a previous school year, the student admitted to the school counselor that he had thought about committing suicide. Suicidal ideation is highly correlated with violent behavior (Vossekuil et al., 2000). The school counselor was also aware of recent, serious problems the student was having at home and that the student was reportedly stalking the girl with whom he had just broken up. The student had a discipline record which included a fight and an incident of insubordination to a teacher. Based on these facts, the principal expelled the student.

After the student's removal from school, the student was evaluated by a psychiatrist who found that the student could safely return to school. Though the student returned to school, the student's father sued school officials claiming that his son's expulsion had violated his son's constitutional rights. Addressing this claim, the court stated that recent school shootings have "put our nation on edge and have focused attention on what school officials, law enforcement and others can do or could have done to prevent these kinds of tragedies" (Lavine v. Blaine Sch. Dist., 2001, p. 987). The court continued by stating that "the school had a duty to prevent any potential violence on campus" (p. 989). Considering the facts of the case and the recent school shootings, the court held that school personnel acted reasonably by removing the student from the school environment until a psychiatrist evaluated the student and determined that the student was not a danger to himself or others.