Academic journal article Phi Delta Kappan

A Threat to Student Speech?

Academic journal article Phi Delta Kappan

A Threat to Student Speech?

Article excerpt

In February 1993 Sarah Lovell was a 10th-grader at Mt. Carmel High School in San Diego County, California. On February 2 at 1:30 p.m., she revisited her school counselor, Linda Suokko, in her efforts to change her class schedule. Lovell had been shuttled back and forth between the counselor's office and the administrative offices for several hours as she attempted to secure the changes. As a result, she was frustrated and irritable. This visit was to have been her final stop in this brouhaha; Suokko simply needed to enter into the school's computer system the changes that had been approved by Scott Wright, the assistant principal.

As she entered the changes, however, Suokko noticed that the courses that Wright had approved were already overloaded. She advised Lovell of the problem and told her that she might have to go back to Wright's office. At the end of her patience, Lovell uttered a statement that was later subject to dispute. According to Suokko, Lovell said, "If you don't give me the schedule change, I'm going to shoot you." According to Lovell, she muttered simply, "I'm so angry I could just shoot someone." In any event, Lovell immediately apologized to Suokko, who completed the requested schedule change, and Lovell left the office.(1)

Approximately three hours later, after processing schedule changes for the long line of students waiting outside her door, Suokko reported Lovell's statement to Wright. She told him that she felt threatened by the content and manner of the statement, which implied that she might be in some future danger from Lovell. After consulting with Wright, she filled out a student referral form, reporting the matter as a disciplinary incident to Mary Heath, another assistant principal.

Two days later, Heath called a meeting with Suokko and Lovell to discuss the matter. Lovell admitted part of the allegations but claimed that she merely muttered a "figure of speech" and meant no harm. Suokko retorted that she had felt threatened, in that Lovell was "angry, serious, and emotionally out of control when the statement was made." Heath informed Lovell that she was being suspended from school for three days. Heath then met with Lovell's parents to advise them of their daughter's suspension for threatening her counselor.

Although at first the Lovells accepted the suspension, when they received a copy of the student referral form, they became extremely upset by Suokko's portrayal of the events. They found Suokko's assertions that Sarah immediately and individually targeted her and that Sarah had a "volatile nature, ... lack of impulse control, ... possible violent verbal tendencies, [and] potentially explosive behavior" to be strongly at variance with their understanding of what had happened.

The Lovells wrote to the school principal demanding that the referral report be removed from Sarah's file. When the school refused to take any action, they filed suit in federal court against the district and its administrative officials, claiming violations of due process under the 14th Amendment and of free speech under the First Amendment and under California law.

The parties agreed to a bench trial before a magistrate judge. After hearing the matter, the judge held that the district had provided appropriate procedural and substantive due process under the 14th Amendment but that it had violated Lovell's free speech rights under the First Amendment. He predicated the First Amendment ruling on the conclusion that Lovell's statement did not constitute "the requisite 'threat' required by law, under either contention as to the exact words spoken, to allow infringement on her right of free speech." As a result, he awarded the Lovells 50% of their requested attorney's fees (which totaled $22,728 at that point), based on the work done for their successful First Amendment claim.

The district filed for review of the lower court's First Amendment ruling by the Ninth Circuit Court of Appeals. …

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