“The First Amendment Does Not Permit Schools to Prohibit Students from Engaging in the Factual, Nonthreatening

Start at Starbuck v. Williamsburg James City County School Bd.Yesterday’s decision was made by Judge Diana Gribbon Motz of the Fourth Circuit, along with Chief Judge Roger Gregory, Judge James Wynn, and other judges.

{Because the district court dismissed this case on a Rule 12(b)(6) motion, we relate the facts as set forth in Starbuck’s amended complaint.} Jonathan Starbuck had a discussion with his classmates about the massacre at Marjory Stoneman Doug High School, Parkland on February 15, 2018. Starbuck claims that Starbuck “…”[n]Starbuck stated that no student had made threats to the shooter during the conversation and that it was factual. Starbuck made remarks about Starbuck’s intent and stated that the shooter could have done more damage if he chose to. [the shooter’s]Possession of explosives. The shooter was not challenged by the local police because he had been alone in the building for so long. A teacher heard the conversation, and reported it the the local police as well as the school administration.

Starbuck was then removed from school for the rest of the day. Starbuck claims that during that period, Starbuck called it an “in-school suspend” and that school officials “interrogated him.”[ed]” him. “The[s]You can choose [p]olice officer … investigated and cleared the [teacher’s] report as unfounded” because the officer concluded “there was no threat made and no criminal offense … occurred.”

Starbuck was informed by his assistant principal that Starbuck would be suspended for two days. Starbuck claims that Starbuck was suspended in school because of concerns about his safety.[t]The reason for suspension was given as “hreats”. Starbuck and his mother attended the meeting of various school officials, including an assistant principal, and representatives from the School Board.

Starbuck filed a written appeal to the School Board after this meeting, and having received a notice about the suspension. After Starbuck’s argumentation, and three months later in May 2018, the School Board “found that the suspension was appropriate” and stated the reasons for suspension as:[c]Lasroom [d]isturbance.” …

The Fourth Circuit stated that this would be a violation of the First Amendment, again, if facts match the allegations.

Supreme Court long held in interpreting First Amendment that students cannot “lose their constitutional right to free speech at schoolhouse gate.”  The First Amendment protects student speech unless the speech “materially disrupts schoolwork or causes substantial disorder or invasion the rights and freedoms of others,” is “indecent, “lewd,” (or “vulgar”) or promotes illegal drug usage or it is transmitted through school sponsored activities. Starbucks’ speech doesn’t fall under any of those categories.

Starbuck claimed that he only had a conversation about facts with his peers, and not about an event that was particularly important in American teenage lives, such as a school shooting. These student speeches cannot be silenced by schools because they communicate controversial or disturbing ideas. This would go against the purpose of public education. Cf. W. Va. State Bd. Educ. v. Barnette (1943) (“That [boards of education] are educating the young for citizenship is reason for scrupulous protection of Constitutional freedoms of the individual, if we are not to strangle the free mind at its source….”); Tinker v. Des Moines Indep. School Dist. (1969) [noting that personal intercommunication between students “is an important part of education]

School Board believes that courts in cases where language was reasonably perceived to be threatening school violence are not protected by the Constitution have been used. This is not our position. Starbuck’s statements, according to his complaint (which is to be seen in the best light favorable to him), weren’t threatening comments about the tragedy. These were the kind of remarks that any student would have made in response. To “school officials to prohibit a certain expression of opinion [they]You must demonstrate that [their]Action was more than just a desire to avoid discomfort or unpleasantness associated with unpopular views.

The First Amendment does not permit schools to prohibit students from engaging in the factual, nonthreatening speech alleged here….

University of Virginia School of Law Appellate Litigation Clinic Students Jacob Larson and Benjamin Lerman, both of whom argued the case as plaintiffs and were on the shorts, Gregory Eng who also was on the briefs, and Prof. Scott Ballenger who was the counsel of record.