Student who wrote violent story loses appeal

11th Circuit rules school was in its power to suspend teen in light of other incidents of school violence across nation.

CITING SCHOOL SCHOOTINGS from Columbine to Virginia Tech, a federal appeals court has ruled against a local student suspended in 2003 after a teacher saw a story the student had written in which the narrator dreams of shooting her math teacher.

Rachel Boim, who was a ninth-grader at Roswell High School when the incident occurred, sued the Fulton County School District and school officials, asking the courts to force school officials to remove the suspension from her disciplinary record. Her parents also sued, asking for legal fees and expenses they had incurred in responding to the disciplinary proceedings.

The family’s lawyers argued that the discipline was a violation of Boim’s First Amendment rights, emphasizing that Boim had told school officials the story was a work of fiction.

In Tuesday’s decision written by Judge Joel F. Dubina, a panel of the 11th U.S. Circuit Court of Appeals rejected that argument. “There is no question that Rachel’s writing constitutes expression,” wrote Dubina. But given the context of reported incidents of school violence across the country—and the authority the law allows schools to exert over students—the panel ruled that the school’s response was within its power.

“[I]n this climate of increasing school violence and government oversight, and in light of schools’ undisputedly compelling interest in acting quickly to prevent violence on school property, especially during regular school hours, we must conclude that the defendants did not violate Rachel’s First Amendment rights,” wrote Dubina.

“We can only imagine what would have happened if the school officials, after learning of Rachel’s writing, did nothing about it and the next day Rachel did in fact come to school with a gun and shoot and kill her math teacher.”

Boim’s story reaches its climax in the narrator’s sixth-period class. “Yes, my math teacher,” wrote Boim. “I lothe [sic] him with every bone in my body.”

“I stand up and pull the gun from my pocket,” the story continues. “BANG the force blows him back and everyone in the class sits there in shock.”

On Oct. 7, 2003, Boim gave the notebook to another student during art class. The other student was writing on another page in the notebook when the teacher confiscated it. According to a brief by the school defendants, Boim initially refused the teacher’s request for the notebook, saying the teacher would first have to say “please.”

Boim was a writer on the school newspaper with an unblemished conduct record, according to one of her lawyers. But officials noted Boim had math class during sixth period, and the school’s principal suspended the student for 10 days. A hearing officer in the school’s disciplinary system ruled that Boim should be expelled, but the county Board of Education ultimately decided not to expel her.

One year ago Wednesday, U.S. Senior District Judge Marvin H. Shoob granted the school defendants summary judgment in the Boims’ lawsuits. The 11th Circuit ruling affirmed that order.

Oral arguments in the Boims’ appeal took place just 11 days after the April 16 massacre at Virginia Tech by a student gunman who had unnerved classmates and teachers with violent writings and strange behavior. While Dubina relegated reference to that incident to a footnote, he relied on reports of several incidents of school shootings over the past decade or so.

“Literary merit and technique not withstanding, without doubt, Rachel’s first-person narrative could reasonably be construed as a threat of physical violence against her sixth-period math teacher. … Rachel created an appreciable risk of disrupting [Roswell High School] in a way that, regrettably, is not a matter of mere speculation or paranoia,” wrote Dubina.

Dubina also noted that the 2001 federal No Child Left Behind Act allows students who attend schools designated as persistently dangerous to transfer to another school, showing how cognizant school teachers and administers have to be about safety. He wrote that a June U.S. Supreme Court decision ruling against an Alaska student who displayed a banner reading “Bong Hits 4 Jesus” across the street from his high school reaffirmed that courts will give school officials administrative leeway.

While Senior Judge Stephen N. Limbaugh, visiting from the Eastern District of Missouri, joined the decision, Judge Susan H. Black wrote a separate concurrence indicating she agreed with the result but not all that was said in Dubina’s opinion.

Citing a seminal 1969 U.S. Supreme Court decision, Tinker v. Des Moines Community School District, 393 U.S. 503, 89 S.Ct. 733, that upheld the rights of secondary school students to wear black armbands to school in protest of the Vietnam War, Black wrote that she “would have limited the inquiry in this case to whether Rachel Boim’s story and the circumstances surrounding it would cause school officials to reasonably anticipate a substantial disruption of or material interference ‘with the work of the school or impinge upon the rights of other students.’”

Eric A. Brewton of Brock, Clay, Calhoun & Rogers in Marietta made the winning argument for the school defendants. He said the decision shows the 11th Circuit judges are concerned about school safety.

“They have taken the position—which we obviously believe is right—that school officials can take reasonable action when they believe that there [are] threats to the safety of school officials or students,” said Brewton.

The Boims’ attorneys, Don C. Keenan and Allan L. Galbraith of The Keenan Law Firm in Atlanta, could not be reached for comment.

Another case over a student disciplined for a violent story is pending before U.S. District Judge Harold L. Murphy in Rome. In that case, Murray County school officials suspended an eighth-grader for the remainder of the school year after he showed his teacher a poem that says “Something Bad is going to happen at school” and describes a scene where “guns go off, bodies drop.”

The mother of that student, unnamed in court pleadings, sued the school district and school officials, noting the story describes the author’s feeling that he must warn other students about the impending danger. In June, the parties to that case, J.U. v. Murray County School District, No. 4:06-CV-77, filed a joint motion asking to withdraw their motions for summary judgment and stay proceedings in the case, saying they had reached a tentative settlement.

The case decided by the 11th Circuit Tuesday was Boim v. Fulton County School District, No. 06-14706.

Actually is does. I am assuming your fifth grade classmate (or student) tarred the teacher with the epithet in class. In this case, the disruption of the class—there being a state interest in universal education—was the basis for disciplinary action under the prevailing First Amendment jurisprudence as applied to schools.

In this case, there was no disruption of education: a work of fiction was seized by a state functionary, and used as the basis for a state-imposed punishment.

The state claim that the story constituted a threat very much involves First Amendment jurisprudence, as there is a body of case-law dealing with what speech (or written expression) is, in fact, not protected by the First Amendment because it constitutes a threat (’true threat doctrine’).

The case thus involves the boundaries of what is protected speech or writing under the First Amendment, both boundaries set by the state interest in universal education, and boundaries set by the non-protection of true threats.

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The state has an interest in seeing that all children are fed.

We do NOT have state owned and run grocery stores as a means to accomplish the universal feeding of all children.

The problem and conflict here is that we have compulsory attendance, government owned and run schools. If this incident had occurred at a private school, there would be no First Amendment conflict, because the parents would have willing submitted to the rules of the private school when they enrolled their child.

The fundamental conflict here is that it is impossible for government to run a compulsory school without violating every protection of the First Amendment every minute of every compulsory school day.

The solution¨: Completely privatize universal K-12 education. Parents would buy education for their children in the free market. The government would provide education vouchers to the poor, just as they provide food vouchers now (food stamps).

Sadly, though, if SCOTUS takes this case it will very likely narrowly examine and rule on the problem set before it, and government schools will continue their abuse of all citizen´s rights.

More like the absence of religion.

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Mandating the absence of religion is as religiously charged in content and consequences as it the inclusion of religion.

It is impossible for K-12 education to be religious neutral. If you do not believe this then describe for us the impossible Nirvana of a religiously neutral school. I and, possibly others, will have great fun with it.

ALL sentient beings have a religious philosophy and worldview that drives the decisions in their lives.

ALL school curriculums and school policies have religious content and religious consequences. It is one ( among many) reason why government must get out of the education business.

Solution: Handle education in the same way we do universal feeding of children. Parents would pay for their own child’s education. The poor would get education vouchers in the mail along with their food stamps ( food vouchers).

If the Supreme Court accepts this case, they will likely focus on the narrow issue of this girl’s story. They will not likely ask why this is a problem in a government school and NEVER a problem in a private school. SCOTUS will not examine the fundamental incompatibility of compulsory government schools and the First Amendment.

No, secularism is a religion: it takes a position on ultimate realities, and derives a code of conduct form that position. Remember that Buddhism and the variant of Taoism that is not admixed with traditional Chinese belief in deities are both religions, and do not regard the ultimate realities as involving God or gods. Neither mihayana nor zen Buddhism involve anything recognizable as worship, yet both are religions. Secularism is a religion.

But ‘you live your life according to the world around you’ is a theological position: it denies any effective existence to a transcendent realm, whether God, the gods, or the atheistic transcendence of Buddhism or Taoism. It assumes either that morality can be obtained by reasoning from ‘is’ to ‘ought’, or that morality arises solely from common consent of human beings, or is merely subjective.

As I said, it takes a position on ultimate realties, and derives prescriptions for behavior from that position, thus having the elements common to all religions.

In my opinion, schools are overdoing it as far as punishing alleged “threats”.

When I was in high school, I once told another student I was going to kill him in a voice that was clearly meant to be joking. In response, I was sent to the office, the police were called (I wasn’t arrested, but I was Mirandized), my parents were called, and I was given ten days Alternative School as punishment.

What really pissed me off about the whole incident was the fact that when the class was asked if they felt threatened by my words, only one said yes (one out of a class of almost thirty students), and I’m willing to bet it was a student I had butted heads with before, yet they still gave me the punishment.

I can understand schools being cautious, but surely when twenty-nine out of thirty students felt I was joking, it’s reason enough to believe I was.

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