Wednesday, January 30, 2002
Page 4
Ninth Circuit, Over Dissent, Declines to Review Student’s Expulsion Over Poem
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals, over the vigorous dissent of three of its judges, declined yesterday to order en banc rehearing of a ruling that allows a school board to expel a student for writing a poem featuring violent imagery.
Chief Judge Mary M. Schroeder, in a brief order, disclosed that a majority of the court’s active judges had rejected a request to have an 11-judge panel take a second look at the case.
The original panel, comprised of Judge Raymond C. Fisher, Senior Judge Betty B. Fletcher, and Senior U.S. District Judge William Schwarzer of the Northern District of California, said the Blaine, Wash. school district properly acted to protect the school community from potential disruption at the hands of James LaVine.
LaVine was in the 11th grade when he wrote “Last Words.” The poem, republished in an appendix to yesterday’s opinion, included the lines: “As I approached,/the classroom door,/I drew my gun and,/threw open the door,/Bang, Bang, Bang-Bang.”
LaVine’s English teacher, after reading the poem at his request, showed the poem to his counselor. Higher school authorities were notified, and determined that LaVine should be expelled on an emergency basis.
The content of the poem, the three-judge panel held, combined with information that LaVine had been having family and personal problems was sufficient to justify the district judge’s deferring to the district’s assessment of the situation, the panel said.
Judge Andrew Kleinfeld, joined by Judges Alex Kozinski and Stephen Reinhardt, emphatically disagreed yesterday.
Kleinfeld wrote:
“After today, members of the black trench coat clique in high schools in the western United States will have to hide their art work. They have lost their free speech rights. If a teacher, administrator, or student finds their art disturbing, they can be punished, even though they say nothing disruptive, defamatory or indecent and do not intend to threaten or harm anyone. School officials may now subordinate students’ freedom of expression to a policy of making high schools cozy places, like daycare centers, where no one may be made uncomfortable by the knowledge that others have dark thoughts, and all the art is of hearts and smiley faces. The court has adopted a new doctrine in First Amendment law, that high school students may be punished for non-threatening speech that administrators believe may indicate that the speaker is emotionally disturbed and therefore dangerous.”
LaVine, the judge said, was a victim of “all the press hullabaloo about school shootings” who was doing no worse than expressing his views, just like “a multitude of columnists and op-ed writers” who have commented on school shootings.
Reinhardt wrote separately to say that while he agreed with Kleinfeld’s criticism of the decision, he did not read the panel holding as broadly.
“I read the panel’s opinion essentially as approving only a brief suspension of a student pending determination of the existence of a safety question,” the judge said. The school district, he explained, had only used the “emergency expulsion” procedure because Washington state does not authorize a mere suspension on an emergency basis.
Copyright 2002, Metropolitan News Company