Fast-forward to February 1993. Sarah Lovell, a 15-year-old California high school student, has been trying all day to get her class schedule changed. She has been shuffled back and forth between the assistant principal's and guidance offices. Finally, she thinks her schedule is settled, but when Linda Suokko, her guidance counselor, enters the changes into the master schedule, Suokko sees that the assistant principal has approved Sarah for courses that are already overloaded. Suokko tells the girl that she may not be able to make the changes. Sarah loses her patience and, according to Suokko, says, “If you don't give me this schedule change, I'm going to shoot you.” Although Sarah apologizes immediately and insists that she did not say those exact words, her principal suspends her and files a strongly worded student referral form as part of her permanent record.
When Sarah's parents brought suit to have the referral form removed from her file, the Court of Appeals for the Ninth Circuit upheld the principal's actions, ruling that Sarah's communication to Suokko was a “true threat.” Alleged threats, according to the Ninth Circuit, are judged by an objective standard that focuses on the speaker. The test is whether a reasonable person uttering a communication would foresee that the listener would interpret the statement as a serious expression of intent to harm. True threats, the Ninth Circuit emphasized, are not among the categories of expression protected by the First Amendment. Sarah's principal, therefore, was justified in suspending Sarah and filing the student referral form. In addition to the “objective speaker” test, the Ninth Circuit also requires that statements appearing to be threats “should be considered in light of their entire factual context.” If the words uttered and the surrounding circumstances are so “unequivocal, unconditional, immediate, and specific” that they convey a seriousness of purpose and the prospect of being carried out in the near future, then the statement is a true threat.
Courts in the Ninth Circuit, then, like Sarah Lovell's court, will rule that a putative threatening statement is a true threat if the speaker, as a reasonable person, should have foreseen that the listener would interpret the statement uttered as a threat of bodily harm or assault. The burden is on the speaker to reasonably foresee an unpleasant reaction to what was said, considering all the circumstances. Sarah, as a reasonable person, should have known her statement would upset Suokko. The Ninth Circuit's definition of true threat says nothing about how reasonable the listener must be. Suokko could have completely overreacted to Sarah's words; in fact, she may even have misheard the student. Practically speaking, the Ninth Circuit requires speakers to know in advance their listeners' reactions. Moreover, using the Ninth Circuit's reasonable speaker standard, one wonders whether a frustrated teenager in Sarah's circumstances could ever be considered reasonable.
If Sarah Lovell had expressed her frustration in another state—for example, in Virginia or Maryland, both of which are bound by the standards adopted by the Fourth Circuit Court of Appeals—the standard that the court applied would have been different. Courts in the Fourth Circuit judge whether a communication is a true threat solely by considering the communication's effect on the recipient. Whether or not the speaker had any idea, or even considered, how the listener would react to her allegedly threatening communication is unimportant in complaints litigated in Virginia or Maryland.
This point may not have made a difference in Sarah's case, because Suokko, the listener, also perceived Sarah's words as a threat. Nevertheless, the judicial standards in many states are different and have different implications. Focusing solely on the listener's reaction may negate totally consideration of the speaker's intent in the communication. Focusing solely on what a speaker should have known in advance about the listener's reaction presumes that the speaker was capable of rational thought when she may have been completely consumed by anger or frustration. Deciding whether a communication is a true threat that is actionable under the law, therefore, depends on the analysis adopted by the relevant jurisdiction.
Threats Delivered in Different Forms
In addition to speaker and listener tests, other jurisdictions have adopted hybrid tests or burdened traditional tests with specific requirements (e.g., that the threat be directly communicated to the intended victim). Technology that facilitates communication at a distance complicates the analysis. For example, either party to a telephone conversation may misperceive communications, because the speaker and listener can only hear each other but not distinguish visual cues. Similarly, nonverbal modes of communication, like works of art, confound traditional true threat analyses. Poetry may do the same.
Internet communication is even more problematic. In the Sixth District in Michigan, for example, true threat analysis requires that the speaker have the intent to intimidate the recipient of the communication and that the alleged threat be communicated directly to the intended victim in some way. The Sixth Circuit applied this analysis to a series of Internet communications sent by a University of Michigan student to a chat room friend in Canada. In his messages, the student, who used the name “Jake Baker,” expressed his intent to rape and sodomize young girls and women. Baker attracted the Canadian's attention through a series of sexually violent stories he had posted to an interactive Usenet bulletin board, in which he described the rape, mutilation, and murder of women and young girls.
From November 1994 until January 1995, Baker and his new online friend, known only as Arthur Gonda, exchanged e-mail messages discussing sexual violence that they hoped to inflict on women. On January 9, 1995, Baker publicly disseminated via the bulletin board a story in which he specifically identified by name a female fellow undergraduate at the University of Michigan, and described in horrific graphic detail how he would torture, rape, and murder her. An alarmed citizen who encountered Baker's posting notified University of Michigan authorities. When questioned by university personnel, the young woman appeared so emotionally traumatized that the university recommended psychological counseling. (All official records refer to her simply as “Jane Doe.”) The Federal Bureau of Investigation (FBI) subsequently filed a complaint against Baker, whose real name was actually Abraham Jacob Alkabaz, and a grand jury indicted him for violation of 18 U.S.C. § 875, a federal statute criminalizing interstate communications containing threats to kidnap or injure another person.
The district court in Michigan dismissed the indictment, holding that the communications were not true threats. The prosecution appealed to the Sixth Circuit Court of Appeals. A panel of three judges heard the appeal, and agreed with the district court, ruling two-to-one that Baker's communications were not true threats. In the published decision, Boyce F. Martin, Jr., chief judge, engaged in an extended discussion of the nature of threats, stating, “At their core, threats are tools that are employed when one wishes to have some effect, or achieve some goal, through intimidation.” Baker's communications, Martin wrote, were not intended to intimidate; they were never even communicated directly to his classmate. Therefore, they were not true threats. Baker and his Canadian friend, Martin continued, were simply attempting “to foster a friendship based on shared sexual fantasies.” Martin's colleague on the bench, Judge Robert Krupansky, vigorously dissented, defining a threat in a more familiar way, as a “simple, credible declaration of an intent to cause injury to some person.” However, “Jake Baker” went free. The court decision remains as only one of many adding to the confusion as to what constitutes a true threat under the law.
Would K–12 students ever engage in the kind of online communications published by Jake Baker? Public school districts that provide e-mail privileges to students and school personnel undoubtedly employ acceptable-use policies to put them on notice of what constitutes appropriate e-mail communication. When students and staff are aware of their diminished expectations of privacy in e-mail communications, most self-monitor their online speech. However, many students erroneously believe that the anonymity of the Internet protects them. In 2000, the Boston public school system ended free Hotmail and Yahoo e-mail accounts for students after two boys at the Boston Arts Academy had sent threatening e-mails to a female classmate who refused to date them. The district subsequently installed e-mail accounts that can be immediately traced back to the sender. That same year, a Florida teenager was sentenced to prison after he had sent an e-mail message to a Columbine High School sophomore, threatening to “finish Columbine.”
As the Florida case demonstrates, technology-assisted communication can certainly count as a true threat. But can “entertainment” be a threat? Can a student-created rap song be a true threat? Does the song have to be recognizable as a song?
An Arkansas junior high school student intended to write a violent rap song in the style of Eminem and other controversial rappers after his girlfriend broke up with him. The student, however, seemed to lack musical talent, and his song had no discernible beat or rhythm. What his writings did contain, however, were violent rantings about how he wanted to molest, rape, and murder his former girlfriend. He never delivered the purported lyrics but instead left them on his bedroom dresser. A classmate discovered them weeks later and read them. Some time after this, the girlfriend found out about the “song.” She arranged with the friend who had read the papers to steal them for her, and she read them in gym class. A student who observed her reading them noticed her very apparent distress and reported the threatening letter to the school security officer.
The principal subsequently suspended the would-be rapper for the remainder of his 8th grade year. The student's mother brought a lawsuit against the school district, suing for his reinstatement. The Arkansas court, acknowledging that courts in the Eighth Circuit where the state is located use a reasonable listener standard to analyze true threats, declined to use the traditional test. Instead, the court decided to apply the reasonable speaker test used in Sarah Lovell's case. In reality, however, they applied an amalgam of speaker and listener standards to decide that the feeble rap song was a true threat. The court also explicitly noted that in the wake of Jonesboro and Columbine, any reasonable school official would have taken action based on the content of the young man's papers.
This rap song case is especially interesting because the Court of Appeals, in a first sitting, decided that the song was protected speech. Courts of Appeals usually sit as a body of three judges to hear a case. After the decision of the three-judge panel in this case, the entire case was reheard en banc (i.e., by all the judges of the court sitting together). The full court came to its final decision, that the 8th grader's rap song was a true threat, by a narrow margin, and the decision contains four sharply divided dissenting opinions.
Another Arkansas court dealing with an allegedly threatening rap song also ruled that the song in question was a true threat. In this case, the rapper was a 15-year-old student who had become angry when his female classmate and former friend snubbed him. He wrote, “I'll murder you before you can think twice, cut you up and use you for decoration to look nice.” The writer had a record of juvenile arrests, and the fellow student whom the rapper threatened knew of this record and believed that he would carry out the threats. Although the rapper argued to the court that he was exercising his First Amendment right to free speech when he wrote the song, the court ruled that, as a true threat, the words fell outside the protection of the First Amendment.
Poetry and Art as Threats
Two other cases from California illustrate the difficulty educators may have in recognizing a true threat when the alleged threat is not delivered in a spoken, face-to-face context. Both cases were brought to court as violations of the same California statute criminalizing true threats, a statute containing very specific and unambiguous language. In one, a male high school student nicknamed Julius, new to the school, gave a handwritten note containing “dark poetry,” which warned that he could be “the next kid to bring guns to kill students at school,” to at least two different female classmates from his honors English class. In the other case, another male high school student, Ryan D., turned in for credit for his art class a realistic painting depicting the execution by gunshot of a police officer who had recently “busted” him for marijuana possession.
The California statute criminalizing true threats, Penal Code § 422, requires that the prosecution establish that the accused willfully threatened to commit a crime that would result in death or great bodily injury to another person. Under the statute, the prosecution does not have to show that the accused threat-maker actually had the intent to carry out the threat but simply that the threat was made with the specific intent it be taken as a threat. In addition, the California statute tracks the language of several Supreme Court decisions and requires that the threat, either standing alone or considering the surrounding circumstances, be so “unequivocal, unconditional, immediate, and specific” that it conveys to the threatened person a gravity of purpose and immediate prospect of its being carried out. Finally, the threat must have reasonably caused the threatened person to be in sustained fear of harm.
Applying the same statute to both the would-be poet and the aspiring artist resulted in two different outcomes: the poet was convicted of making a true threat, and the artist was let off. Why did these two cases come out differently?
The courts in both cases looked at not only the actual threats—the words of the poem or the painting itself—but also the circumstances surrounding each. In Julius's case, he was the “new kid” in school; he had been thrown out of two other high schools in the district for offenses other than threats: urinating on the wall and plagiarism. Evidence showed that he and his father were living with his uncle, who owned a stash of rifles and guns that Julius had discovered. Julius did not really know the girls to whom he showed his poems, and his class was not studying or discussing poetry at the time he divulged his works. Although Julius asserted that he was writing the poems as a fictional character, the court took into consideration his admitted feelings that the district was “out to get him,” and it ruled that his poems had been intended as a threat to get back at the district by terrorizing innocent students.
Could Julius simply have been a lonely student, reaching out to his classmates for acceptance by offering them his poems? One of his poems had written at the top of the page, “These poems describe me and my feelings. Tell me if they describe you and your feelings.” The dissenting judge, at least, thought so and noted that Julius's poem said he could be the next to bring guns to school, not that he would. The majority found the distinction not significant, focusing instead on the sustained fear that Julius's poems inspired in his female classmates.
In Ryan D.'s case, the court also examined the circumstances surrounding his painting. The officer was readily identifiable as Ryan's arresting officer in his marijuana conviction—her badge number was clearly depicted. Although Ryan admitted that he was angry at the police officer for arresting him and had painted the graphic shooting scene to show his anger, knowing the officer would see the painting, the court found it relevant that Ryan had handed in the painting for a class grade. Despite the testimony of the arresting officer that she considered the painting to be a threat, the court decided that Ryan's submission of the painting for class credit resolved the “ambiguous” intent of the expression; the painting was not a true threat.
How would another set of judges rule on the same facts? Did Julius “look like” a terrorist, and did Ryan look like a clean-cut kid? Are words more forceful than painted images? These two judicial rulings, from the same California jurisdiction and based on the same California statute, centered on similar imagery of bodily harm and death, arrive at opposite conclusions. They now serve as either controlling or persuasive authority for the next cases involving threatening expression, and lawyers for either side can argue opposite outcomes justified by precedent.
No Threat if Classroom Assignment
In Ryan D.'s case, the court made much of the fact that Ryan had turned in his graphic painting as a class assignment for an art grade. Does the fact that a student's allegedly threatening communication comes in the context of an actual school assignment mitigate the force of a threat? An 8th grade student in a creative writing class was found delinquent after he wrote a composition about concealing a machete and chopping off his English teacher's head. Although the student, Douglas D., specifically named the teacher in his writing and wrote the assignment after being disciplined and sent out of the classroom to a seat in the hallway, the Supreme Court of Wisconsin reversed his delinquency adjudication, ruling that his composition did not constitute a true threat. The court recognized a need for “more creative license” in a creative writing class than in, say, a math class. For instance, Douglas wrote his story in the third person; it also attempted at jest, the court said, when Douglas penned that the teacher's name, Mrs. C., stood for Mrs. Crab. Besides, the court said, a story about killing with a machete was unrealistic and not to be taken seriously.
Was Douglas really threatening Mrs. C.? Mrs. C. was a first-year teacher. She testified that she felt panicked by Douglas's composition. She had had discipline problems with Douglas before this incident. Douglas was not a model student; he had a pattern of delinquency and skipping school. The record showed that he was “a troubled young man.” Yet the court decided that Douglas was not making a true threat against Mrs. C. The school, the court said, still had the right to discipline Douglas for violation of the student rules of conduct, but the First Amendment protected Douglas's right to speak freely and graphically in his composition.
Bomb threats, even if groundless or pranks, seriously disrupt the ongoing operations of schools. Besides instilling fear and forcing cancellation of classes and building closures, such threats also cost school districts considerable funds to install telephone systems to trace calls and video cameras to monitor nonclassroom areas of buildings, to investigate and prosecute perpetrators, and to hire extra personnel to observe student activities effectively. Many school districts specifically mention making terroristic threats as an actionable offense in their student codes of conduct. All states have adopted laws making it a crime to communicate a bomb threat to a school, even if the perpetrator knows the threat is untrue, and school districts have begun to cooperate vigorously with law enforcement authorities in prosecuting guilty students. However, schools need to exercise care in alerting authorities and charging students with making terroristic threats. Bomb threats are serious business and carry serious consequences under the law; these consequences need to be applied only to prosecute students who truly deserve prosecution.
For example, Jason W. did not need to be prosecuted. Jason was a middle school student at Clear Spring Middle School in Washington County, Maryland, on December 13, 2001. At 9:15 a.m., a teacher found him scribbling with a pencil on the wall near a school stairway. It appeared he had written “There is a bomb,” but when the teacher spied him, he began erasing the word “bomb.” The teacher took Jason to the school principal.
The principal obviously did not take Jason's threat seriously. He did not evacuate the school building; he did not notify the fire marshal or call in bomb detection or disposal agencies. The normal operations of the school were not disrupted. In fact, no one even took a photograph of Jason's writing, which, after his furious erasing, ended in an illegible smudge.
However, the school contacted law enforcement authorities, who brought charges against Jason. Communicating a false bomb threat in Maryland is a felony. Even if Jason had been convicted of “disturbing . . . the orderly conduct of schools,” a misdemeanor, he could have received a six-month jail sentence and a $3,500 fine. As it was, the court adjudicated him as a delinquent.
Jason's parents appealed. The Court of Special Appeals found that Jason's wall writing had not disturbed the normal operations of the school. The court said that the lower court's reading of the statute raised the “specter of a young child being hauled into juvenile court and found delinquent for throwing a temper tantrum in school . . . . Disruptions of one kind or another no doubt occur every day in the schools,” the court continued, and “there is a level of disturbance that is simply part of the school activity.” Jason was off the hook, and the school district was publicly admonished.
Threats to Harm Self
Schools are supposed to be places where children and teenagers can learn without fearing for their safety. When students make threatening statements directed at members of the school community, school officials are usually quick to react. But what about a student's threat to harm himself? Does the school have a duty to protect students from themselves? Do guidance counselors, teachers, or other school personnel have a legal duty to warn parents that they suspect a student intends self-harm or suicide?
More than 25 years ago, the California Supreme Court imposed a much-debated “duty to warn” on therapists who learn that their patients intend harm to another. The litigation arose after a University of California at Berkeley student, Prosenjit Poddar, told his university hospital psychotherapist that he intended to kill his former girlfriend, Tatiana Tarasoff. Poddar actually carried out his threat. Tarasoff's parents sued the regents of the University of California, the hospital's psychotherapists, and the university police for failing to protect their daughter. The court ruled that once a therapist determines that a serious threat of violence to another exists, he or she has a duty to “exercise reasonable care to protect the foreseeable victim.” This duty to warn foreseeable victims of harm, now called the “Tarasoff duty,” has been adopted in several states and extended to apply not only to therapists but also to many other professionals who engage in confidential relationships with clients.
Should the law recognize a Tarasoff-kind of duty for educators who receive student confidences threatening suicide? Where a duty exists, the potential for liability also exists. Should educators and their school districts be held liable for failing to prevent student suicides whose warning signs were, or should have been, apparent? Many surviving parents, believing they should, have pursued remedies through the courts.
Suicide in Schools
More people die from suicide than from homicides, according to the Centers for Disease Control (2000). Many of these suicide victims are young people. Between 1981 and 1998, the Office of Juvenile Justice and Delinquency Prevention reports, 20,775 juveniles ages 7–17 committed suicide in the United States. Of these juvenile suicides, 62 percent were committed with a firearm. The states with the highest juvenile suicide rates were Alaska, Montana, Idaho, Wyoming, and New Mexico, in that order (Snyder & Swahn, 2004).
Even more alarming than the overall numbers of student suicides is the increase in the suicide rate among middle school students, a rate that has increased more than 100 percent over the last decade. Among 13- and 14-year-olds, as many youngsters committed suicide as were murdered. While suicides among white males still predominate, rates for minority students are increasing. Suicide rates for black male adolescents as a group increased 240 percent between 1981 and 1998 (Snyder & Swahn, 2004). Black males ages 15–24 showed the greatest increase in suicide completion rates in the 1990s compared with other minority groups. In addition, gay and lesbian adolescents were 200–300 percent more likely to attempt suicide than other young people, and they may have accounted for up to 30 percent of completed youth suicides annually (Poland & Lieberman, 2003).
In December 2001, Mark Anderson and his colleagues from the Division of Violence Prevention of the Centers for Disease Control reported the results of a five-year study of violent deaths that had occurred either on the campus of a public school, on the way to or from regular school sessions, or during official school-sponsored events. They found that 220 confirmed school-associated incidents involving violent death had occurred between July 1, 1994, and June 30, 1999, with a total of 253 victims who died in those incidents. While 18 of the 220 total incidents were the widely reported school shootings that involved multiple victims, 202 of the incidents resulted in single deaths.
Analyzing the details of the 220 total incidents, 172 were homicides, 30 were suicides, and 11 were homicide-suicides. The remaining seven death-related incidents were the result of legal interventions into school situations or accidental firearms discharges. Over half of all these incidents were preceded by warning signals such as notes, journal entries, or threats; in the cases of suicides, significantly more than half were signaled in advance. Homicide perpetrators were also likely to have expressed suicidal behaviors, thoughts, or actual suicide attempts before the incidents (Anderson, et al., 2001).
Legal Implications for Educators
Imposing liability on schools and school personnel for failing to warn of a student's threats to commit suicide would require a showing of negligence on the part of school personnel. Negligence is a tort that requires proof of four elements that the plaintiff must show: (1) that the defendant had a duty of care, (2) that the defendant breached that duty, (3) that the breach of duty caused the damage alleged, and (4) that quantifiable damage actually occurred. The sticking point in the law is establishing that school personnel had a duty of care to prevent harm to the student.
Although no educator would deny a moral responsibility to care for and protect students in the school setting, a legal duty of care is different from a moral or professional duty. Courts have held that the requisite duty of care necessary in a suit for negligence against state actors occurs in only two different situations: (1) where individuals are under the control, or in the custody, of the state, as in an orphanage or in a jail; or (2) where the state itself created the danger. Courts have been reluctant to decide that either situation applies in the public school setting. Although school attendance is compulsory under state laws, schools are not jails or orphanages, and school employees are not wholly responsible for the care of students, nor are they in total control of students' actions or well-being.
State legislatures could, of course, make reporting of suspected student suicides by school personnel mandatory, as they have done for reporting suspected child abuse. However, to date few states have adopted specific statutory language dealing with school employees' obligations with respect to suspected student suicides or confidential communications from students. That said, the American Counseling Association does acknowledge that school counselors have an ethical obligation to report to parents, school administrators, or other appropriate authorities their suspicions that a student intends to harm herself or someone else. However, an association study in 1999 revealed that only 38 percent of school counselors believed that they could identify a student at-risk for suicide (Milson, 2002).
The situation is even more complicated when a student confronted with warning signs of her imminent suicide denies her intentions. Nicole Eisel, a 13-year-old Sligo Middle School student from Montgomery County, Maryland, confided to several friends her intent to commit suicide in a Satanic murder-suicide pact. When friends alerted school counselors, two counselors questioned Nicole, who vigorously denied making the comments. Neither counselor notified school authorities or the girl's parents. After Nicole committed suicide, her father brought a lawsuit against the counselors and the school district, alleging negligence as a cause of his daughter's death. Eisel argued that, if school authorities had not neglected their duty to warn him of Nicole's intentions, he could have prevented her suicide. The court granted summary judgment to the school district, stating that “public policy” prohibited recognizing that either the counselors or school district had a duty to intervene.
When Nicole's father appealed the decision, the Maryland Court of Appeals focused not on duty but on the foreseeability of the student's committing suicide. The court quoted from the Maryland State Department of Education's 1987 Youth Suicide Prevention School initiative for Maryland public schools, in place at Nicole's school at the time of her death, but declined to find that the law creating the program imposed liability on school counselors for failing to intervene in student suicides. Instead, the court pointed to the law as evidence of “a community sense that there should be intervention” when a student's emotional states indicates suicidal ideation. Even if the possibility of Nicole's committing suicide was remote, the court said, the possible harm was so “total and irreversible” that school counselors had a duty to “use reasonable means to attempt to prevent a suicide” when they had notice of a student's suicidal intent.
The Court of Appeals sent the case back to the lower court to determine if the counselors had sufficient notice of intent in order to hold them liable for failing to notify Nicole's parents. In an unreported decision, the jury hearing the evidence decided they did not. (For a discussion of unreported decisions, please see the end of Chapter 1.) The court then relieved the counselors and the school district of liability for Nicole's suicide. However, the Eisel decision has been interpreted in many jurisdictions as imposing on school counselors the duty to use reasonable means to prevent student suicides, including warning parents.
Parents of suicide victims have also attempted to sue school districts based on liability under Section 1983 of the federal Civil Rights Act of 1871, alleging that school officials acting under color of state law violated their children's civil rights. Shawn Wyke was a 13-year-old in 1989 when he finally accomplished at home the suicide he had twice before attempted in school. Shawn's mother sued the Polk County School Board and school officials at McLaughlin Junior High School where Shawn had been a student, alleging both negligence and violation of Section 1983. Mrs. Wyke argued that school personnel were made aware of Shawn's first suicide attempt after he tried to hang himself in the school bathroom, but district officials had not notified her or Shawn's grandmother, had not obtained counseling for Shawn, and had not taken him into protective custody. In 1995, in an unreported decision, a U.S. District Court jury dismissed Wyke's Section 1983 claim, stating that the district had no constitutional duty to protect Shawn Wyke from himself, but awarded her $165,000 damages on her state law claim that the school board negligently failed to supervise her son (Bjorklun, 1996). Wyke then appealed the court's dismissal of her Section 1983 federal claim.
In 1997, the U.S. Court of Appeals for the Eleventh Circuit ruled that Mrs. Wyke's Section 1983 claim failed. Failure to train school personnel in reporting and handling recurring situations where students are endangered was not enough to sustain a federal claim of violation of her son's constitutional rights, the court stated. The school, standing in the place of a student's parents, has a duty to supervise students. When a student attempts suicide at school, and the school knows of the attempt, the school can be found negligent in failing to notify a parent or guardian. However, compulsory school attendance laws do not give rise to a school district's constitutional duty to affirmatively protect students. In other words, under a Section 1983 federal claim analysis, school districts are not liable for student suicides.
What about a student who cannot deny his suicidal thoughts because he wrote them down? And what about school liability if the student's thoughts were submitted to a teacher in English class as an ongoing journaling assignment? Parents who seek to hold school districts liable for their children's suicides have a heavy burden of proof. In the case of Jeff Brooks, a high school student who chronicled his suicidal ideation for the four months of a daily journal-writing assignment in English class, the Idaho Supreme Court ruled that a jury could consider whether the district had violated a state law, as in Wyke's case, and been negligent in not notifying Jeff's parents of his troubled writings. However, the dissenting judge strongly stated that expecting teachers untrained in medicine to recognize and diagnosis a potentially suicidal student would “require a duty beyond reason.”
Liability for Threats Resulting in Violence
When students carry out their threats in schools, and other students get hurt, are school districts or school personnel liable for the injuries to other students? Suppose the school district had warning signs of the dangers, teachers heard the threats or saw students acting out in unmistakably threatening ways?
Following the Columbine High School tragedy on April 20, 1999, many parents of injured and slain students sought to hold the Jefferson County School District, school officials, and law enforcement officials who had responded to the tragedy liable for injuries to their children. In the media aftermath of the Columbine shootings, the parents had discovered many reasons to think that school and law enforcement officials should have anticipated trouble at the hands of Dylan Klebold and Eric Harris. In January 1998, Klebold and Harris were apprehended by sheriff's deputies for stealing tools from a van, adjudicated delinquent, and placed in a county juvenile offender diversion program. Harris again came to the attention of law enforcement officials for repeatedly threatening the life of Brooks Brown, a fellow Columbine student. Harris maintained a Web site in which he spoke of issuing death threats, using pipe bombs to kill numerous people, and making other bombs. Sometime before the actual shootings, Harris added an “information panel” to his Web site listing as his “Hobbies” “Preparing for the big April 20! You'll be sorry that day.”
The assistant principal in charge of discipline allegedly knew that Klebold and Harris had talked about blowing up the school. He had suspended them for hacking into school computers and stealing locker combinations. Klebold's creative writing teacher had alerted his guidance counselor to a particularly vicious story he wrote in her class. In his video production class, Harris turned in a videotape filmed inside the school depicting him and Klebold enacting revenge shootings of other Columbine students. Other videos showed the two shooters carrying guns in the school hallways and recorded their conversations about owning guns and making bombs. Their psychology teacher had heard them speak of their hatred, anger, and intent to kill other Columbine students in many classes.
The parents of Richard Castaldo, a student injured in the Columbine shootings, presented this evidence of the pre-April 20 warnings in a lawsuit alleging that both law enforcement and school officials had breached a duty of care to their son and violated his constitutional rights to be free from bodily harm by not taking steps to prevent the Columbine tragedy. The federal district court in Colorado dismissed their claims, stating that even if they were negligent, both law enforcement and school officials had such high social utility that to impose a duty on them to act affirmatively to prevent violent acts would undermine their usefulness to society as a whole. Affirming the general rule that compulsory attendance laws do not impose on schools an affirmative constitutional duty to protect students from harms imposed by others at school, the court rejected Castaldo's Section 1983 claim.
Months after the shootings, additional evidence came to light in the form of a journal written by Eric Harris and reports by the Brown family, and several other parents of injured students sued as the Castaldos had; all suits were dismissed from court. The Castaldos moved for reconsideration, but the court denied their request. One injured student attempted to sue the gun shop dealer who had sold guns to Klebold and Harris; his suit, too, was dismissed for the same reasons already stated.
Although the Colorado courts' assessment of the social utility of law enforcement and school officials is reassuring, the parents of slain and injured students in the Columbine community deserve some explanation of how and why professionals trained to deal with public school students ignored the collective signs of impending violence. As recently as October 2003, more information about forewarnings of the Columbine events was released by the current Jefferson County sheriff, Ted Mink, indicating that a caller had tipped authorities off to a threatening Web site created by Eric Harris as early as 1997 (Slevin, 2003). Threats and warning signs of violence have been present in other school shootings besides those at Columbine.
Courts may deny a school district's legal responsibility to act on threats and warnings of violence, even where the warning signs seem unmistakably clear in hindsight. However, school officials and school districts function at public expense. If courts were to impose liability on schools when students injure other students or teachers, even if warning signs were present and neglected, monetary damage awards might seriously deplete the public treasury, with benefits distributed to a relatively few individuals at the expense of the greater community. The same public policy argument applies in lawsuits against state-supported first responders in school shooting tragedies. Several states, including Idaho, where Jeffrey Brooks committed suicide, explicitly provide governmental entities immunity from lawsuits alleging liability for failure to adopt discretionary policies like suicide prevention programs. However, even Idaho has a statute requiring school boards to protect the health of its students. Florida, as the Wyke case demonstrates, has a law requiring school districts to immediately notify parents of any emergency involving students that occurs during the school day. The Eisel decision noted the Maryland statute mandating school districts' adoption of suicide prevention programs. Ohio has a similar suicide prevention initiative. One difficulty in assessing the prospects of school district liability for harms to students is the wide range of language used in state statutes dealing with student safety. Every statute seems to use different vocabulary terms, and courts hearing the lawsuits brought by the families of students injured or killed in schools are faced with interpreting the different terms on their own. Seemingly conflicting rulings may be the result. In addition, the law is distinctly different from morality and moral responsibility. The courts may legally set aside school districts' responsibility, but educators' moral responsibility is not so easily set aside.
The Take-Home Message on Threats
The legal standards for deciding what constitutes a true threat are confusing and contradictory. Until the Supreme Court steps in and defines a common standard test for all courts in the land to follow, the confusion and contradictory lower court opinions will persist. Unfortunately, the Supreme Court seems reluctant to undertake the needed clarification, and it has ignored several opportunities to deal with the issue.
What can and should educators do in the meantime? School personnel must take all threats or suspected threats seriously. Investigators have documented that many of the widely publicized recent episodes of school violence, such as those at Jonesboro and Columbine, were preceded by warnings or threats by the student perpetrators. Warning signs of student suicide may be subtle, but they are documented. All school personnel should be trained to recognize them. Warning signs include making verbal statements of a wish to die or an intent to commit suicide, cutting oneself or other intentional superficial self-wounding, experiencing prolonged depression, withdrawing, talking of death, putting affairs in order or giving away favorite possessions, or having a sudden change of mood to a kind of euphoria or extreme calm after a period of prolonged depression or anxiety.
For threats against the school community, the 1999 report of the Federal Bureau of Investigation's Critical Incident Response Group, The School Shooter: A Threat Assessment Perspective, recommends that schools adopt three-tiered threat response policies based on the perceived level of the threats: low level, carrying a minimal risk to the victim; medium level, threats that could possibly be effected but are not realistic; and high level, which pose a serious and imminent danger to others. The Final Report and Findings of the Safe Schools Initiative: Implications for the Prevention of Attacks in the United States (Vossekuil et al., 2002), issued by the U.S. Department of Education and the U.S. Secret Service, contains information about profiling students who make threats and sorting them into six categories. Another publication of the Department of Education and Secret Service, Threat Assessment in Schools: A Guide to Managing Threatening Situations and to Creating Safe School Climates (Fein et al., 2002), contains similar information. Both reports stress that “school shootings are rarely impulsive acts.” The shooters told others, not the victims, but the other students did not tell adults.
The guiding principle in dealing with student threats should be that the first and foremost goal and duty of all school personnel is to safeguard the physical welfare of students and colleagues. Any and all threatening communications or materials should be reported to a school official with authority to investigate. The school official who receives such notification must research the reported incident and take appropriate action.
Of course, in an actual or perceived situation of a threatening nature, having policies in place to deal with the issue is always desirable, but the policies must be flexible enough to cover varied and possibly unanticipated circumstances. A useful exercise is to examine the scenarios described in this chapter and to determine whether the district has in place a student code of conduct or a district policy to deal with similar threatening situations. (All district policies should be incorporated in the student code of conduct by reference, and vice versa.) If not, codes and policies need to be put in place as soon as possible.
With appropriate documentation in place, the first step when a threat is made or suspected is to consult the district's student code of conduct to see whether the code itself or a district policy has been violated. If a part of the code or a policy has been violated, the designated consequence should be applied if the consequence is sufficient to deal with the severity of the issue. Any student who presents an immediate danger to school personnel or students should be removed from the school, with the assistance of school safety officers or the police if necessary, without any hesitation over possible legal action that may follow.
If the situation is deemed serious, district legal counsel should be involved as soon as possible. Courts will ultimately decide whether school personnel acted in accordance with the law, but an adverse decision years down the line is better than risking harm because of inaction when faced with the possibility of bodily harm to a member of the school community.
Annotated References and Resources
Constitutional and Statutory References
- The federal statute that makes it a crime to willfully and knowingly threaten the President of the United States is 18 U.S.C. § 871 (a).
- 18 U.S.C. § 875 (c) prohibits interstate communications containing threats to kidnap or injure another person, stating:
Whoever transmits in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another, shall be fined under this title or imprisoned not more than five years, or both.
Many states also have state laws dealing with threatening communications. For example, California criminalizes making threats. To prove that a defendant uttered a true threat, California Penal Code § 422 requires that the prosecution establish
(1) that the defendant willfully threatened to commit a crime which will result in death or great bodily injury to another person, (2) that the defendant made the threat with the specific intent that the statement be taken as a threat, even if there is no intent of actually carrying it out, (3) that the threat—which may be made verbally, in writing, or by means of an electronic communication device—was on its face and under the circumstances so unequivocal, unconditional, immediate and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, (4) that the threat actually caused the person threatened to be in sustained fear for his or her own safety or for his or her immediate family's safety, and (5) that the threatened person's fear was reasonable under the circumstances.
- The seminal Supreme Court decision on true threats is Watts v. United States, 394 U.S. 705 (1969).
Student Threats of Harm to Others
- Sarah Lovell's case is Lovell v. Poway Unified School District, 90 F.3d 367 (9th Cir. 1996).
- In the University of Michigan e-mail case, “Jake Baker” was a pseudonym used by Abraham Jacob Alkabaz. His case is United States v. Baker, 890 F. Supp. 1375 (E.D. Mich. 1995), aff'd United States v. Alkabaz, 104 F.3d 1492 (6th Cir. 1997), rehearing and suggestion for rehearing en banc denied (1997).
- The two student rapper cases are Doe v. Pulaski County Special School District, 306 F.3d 616 (8th Cir. 2002) and Jones v. Arkansas, 64 S.W.3d 728 (Ark. 2002).
- Julius's real name is George, and his case is In re George T., 102 Cal. App. 4th 1422 (Cal. Ct. App. 2002). Ryan D.'s case is In re Ryan D., 100 Cal. App. 4th 854 (Cal. Ct. App. 2002).
- The creative writer is Douglas D., In the Interest of Douglas D., 626 N.W.2d 725 (Wis. 2001).
- The student caught writing a bomb threat is Jason W., In re Jason W., 837 A.2d 168 (Md. 2003).
School Districts' Duty to Report Student Threats of Suicide
- The Tarasoff duty is derived from Tarasoff v. Regents of the University of California, 551 P.2d 334 (Cal. 1976).
- Several courts have declined to recognize a school district's duty of care in suits for negligence. See, J.O. v. Alton Community Unit School District 11, 909 F.2d 267 (7th Cir. 1990); D.R. v. Middle Bucks Area Vocational Technical School, 972 F.2d 1364 (3dCir. 1992).
- Lawsuits alleging district liability for student suicides include the following:
- Eisel v. Board of Education of Montgomery County, 597 A.2d 447 (Md. 1991), brought by Nicole Eisel's father.
- Wyke v. Polk County School Board, 898 F. Supp. 852 (M.D. Fla. 1995), and Wyke v. Polk County School Board, 129 F.3d 560 (11th Cir. 1997), both brought by Shawn Wyke's mother.
- Brooks v. Logan, 903 P.2d 73 (Idaho 1995), brought by Jeff Brooks' parents.
- Lawsuits against school officials and law enforcement authorities in the wake of the Columbine tragedy include:
- Castaldo v. Stone, 192 F. Supp.2d 1124 (D. Colo. 2001), reconsideration denied, 191 F. Supp.2d 1196 (D. Colo. 2002);
- Graves v. Stone, 191 F. Supp.2d 1194 (D. Colo. 2002);
- Kirklin v. Stone, 191 F. Supp.2d 1198 (D. Colo. 2002);
- Ireland v. Jefferson County Sheriff's Department, 193 F. Supp.2d 1201 (D. Colo. 2002).
Journal Articles, Texts, and Commentaries
- The National Center for Injury Prevention and Control of the Centers for Disease Control reports that more people in the United States die from suicide than from homicide. In 2000, 1.7 times as many people committed suicides as were killed in homicides. Available at www.cdc.gov/ncipc/factsheets/suifacts.htm (accessed May 2004).
- Poland, S., & Lieberman, R. (2003, May). Questions and answers: Suicide intervention in the schools. National Association of School Psychologists Communique 31(7). Available at
www.nasponline.org/publications/cq317suicideqa.html (accessed May 2004).
- Snyder, H. N., & Swahn, M. H. (2004, March). Juvenile suicides, 1981–1998. Youth Violence Research Bulletin. Available at
www.ncjrs.org/html/ojjdp/196978/contents.html (accessed May 2004).
- Department of Health and Human Services, Mental Health (1999). U.S. Department of Health and Human Services, Mental Health: A Report of the Surgeon General. Rockville, MD: Department of Health and Human Services, National Institutes of Health, and National Institutes of Mental Health. The Executive Summary is available at
http://www.surgeongeneral.gov/library/mentalhealth/summary.html (accessed May 2004). Of particular interest is Chapter 3, Depression and Suicide in Children, by Chavez, N., Hyman, S. E., and Arons, B. S. Available at
(accessed May 2004).
- Anderson, M., et al. (2001, December 5). School-associated violent deaths in the United States, 1994–1999. The Journal of the American Medical Association, 286(21), 2695. Available at
(accessed May 2004).
- Milson, A. (2002, March). Suicide prevention in schools: Court cases and implications for principals. National Association of Secondary School Principals Bulletin, 86(630). Available at
(accessed May 2004).
- Court decisions involving student suicides are discussed in Bjorklun, E. C. (1996). School liability for student suicide. Education Law Reporter, 106(21).
- Slevin, C. (2003, October 30). Columbine pair stirred alarms as early as '97. Philadelphia Inquirer, p. A3. See also, Nussbaum, P. (2004, April 18). Philadelphia Inquirer, p. A1.
- O'Toole, M. E., & Critical Incident Response Group. (1999). The school shooter: A threat assessment perspective. Quantico, VA: National Center for the Analysis of Violent Crime. Available at
www.fbi.gov/publications.htm (accessed May 2004).
- Vossekuil, B., Fein, R. A., Reddy, M., Borum, R., & Modzeleski, W. (2002). The final report and findings of the safe schools initiative: Implications for the prevention of school attacks in the United States. Washington, DC: U.S. Secret Service and U.S. Department of Education. Available at
(accessed May 2004).
- Fein, R., Vossekuil, B., Pollack, W., Borum, R., Modzeleski, W., & Reddy, M. (2002). Threat assessment in schools: A guide to managing threatening situations and to creating safe school climates. Washington, DC: U.S. Secret Service and U.S. Department of Education. Available at www.secretservice.gov/ntac_ssi.shtml
(accessed May 2004).