What about the First Amendment

NEA Today, Sep 1998 by Simpson, Michael D

The federal lawsuit now pending in California (see main article) raises the question whether schools can lawfully punish students for "merely" making threats.

The Supreme Court in 1969 recognized that students have First Amendment rights in school, but the High Court in 1986 upheld the authority of school officials to punish a student for giving a "racy" speech in a school assembly.

A student's rights of free speech, the Court said, were outweighed by the school's "interest in teaching students the boundaries of socially appropriate behavior." The school need not "tolerate indecent or offensive speech" by students, the Court concluded.

More recently, the Ninth Circuit Court of Appeals in 1996 upheld the three-day suspension of a California student who had threatened her guidance counselor, saying, "If you don't give me this schedule change, I'm going to shoot you."

The court in Lovell v. Poway Unified School Dist. said "threats of physical violence are not protected by the First Amendment."

"In light of the violence prevalent in schools today," the court added, "school officials are justified in taking very seriously student threats against faculty or other students."

But can schools also punish students with disabilities for this kind of misbehavior? Yes.

Under the Individuals with Disabilities Education Act (IDEA), disabled students who violate school rules can be suspended for up to 10 days. And if the misconduct involves bringing a weapon to school, then the disabled student can be removed to an alternative educational setting for up to 45 days.

In addition, under the new law known as IDEA '97, a hearing officer (instead of a federal judge) can remove disabled students from the classroom for up to 45 days if the students are likely to harm themselves or others.

The new law also authorizes school officials to report criminal acts committed by IDEA students to law enforcement authorities for possible action by the criminal justice system.

-M.D.S.