1

The Honorable Roger L. Wollman stepped down as Chief Judge of the United

States Court of Appeals for the Eighth Circuit at the close of business on January 31,

2002. He has been succeeded by the author of this opinion. 

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 01-1048

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John Doe, a minor, by his mother

and next friend, Jane Doe,

Appellee,

v.

Pulaski County Special School

District,

Appellant.

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Appeal from the United States

District Court for the

Eastern District of Arkansas.

 [PUBLISHED]

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Submitted: January 16, 2002

 Filed: September 25, 2002

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Before WOLLMAN,1

 Chief Judge, HEANEY, McMILLIAN, BOWMAN, LOKEN,

HANSEN, MORRIS SHEPPARD ARNOLD, MURPHY, BYE, and RILEY, Circuit

Judges, En banc. 

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HANSEN, Circuit Judge.
2

We granted en banc review to determine whether a school board ran afoul of

a student's free speech rights when it expelled him for an offensive and vulgar letter

that the student had prepared at home. The expelled student described in the letter

how he would rape, sodomize, and murder a female classmate who had previously

broken up with him. After a bench trial, the district court ordered the expelled

student reinstated, concluding that the letter was not a "true threat" and that it

therefore was protected speech under the First Amendment. A divided panel of our

court affirmed the district court's decision. See Doe v. Pulaski County Special Sch.

Dist., 263 F.3d 833 (8th Cir. 2001). We vacated the panel decision, ordered en banc

rehearing, and now hold that the school board did not violate the student's First

Amendment rights when it expelled him. 

I. BACKGROUND AND FACTS

J.M., a male, and K.G., a female, began "going together" during their seventhgrade year at Northwood Junior High School. As one would expect from typical

junior high students, the two primarily saw each other at school and church, and their

relationship was marked by multiple breakups during the school year. Sometime

during the summer vacation after the end of the seventh-grade year, K.G. "broke up"

with J.M. for the final time because she was interested in another boy. 

Frustrated by the breakup and upset that K.G. would not go out with him again,

J.M. drafted two violent, misogynic, and obscenity-laden rants expressing a desire to

molest, rape, and murder K.G. According to J.M., he intended to write a rap song

with lyrics similar in theme to the more vulgar and violent rap songs performed by

controversial "rappers" such as Eminem, Juvenile, and Kid Rock, but found that his

"song" fit no particular beat or rhythm. J.M. ultimately penned the documents as

letters, signing them at their conclusion. J.M. prepared both letters at his home,

where they remained until J.M.'s best friend, D.M., discovered one of them
3

approximately a month before the youths were to begin their eighth-grade year at

Northwood. 

D.M. found the letter in J.M.'s bedroom while he was searching for something

on top of a dresser. Before D.M. had a chance to read the letter, J.M. snatched it from

his hand. D.M. asked to read the letter, and J.M. handed it back to him and gave

D.M. permission to read the letter. (Trial Tr. at 176-77; 300-02.) D.M. asked for a

copy of the letter, but J.M. refused to give him one. 

K.G. also learned about the existence and contents of the letter, but it was not

made clear during the trial when or how she learned about it. K.G. testified that she

first learned about a letter during a telephone conversation with J.M. She claimed

that J.M. told her that another boy had written a letter that stated she would be killed.

J.M. claimed instead that K.G. learned about the letter from D.M. Either way, the

testimony clearly established that J.M. voluntarily discussed the letter with K.G.

during two or three telephone conversations and that J.M. admitted to K.G. in their

final telephone conversation that he, not another boy, had written the letter. 

Concerned about the letter, K.G. enlisted D.M.'s help in obtaining it from J.M.

About a week before the start of school, D.M. spent the night at J.M.'s house and took

the letter from J.M.'s room on the following morning. D.M. did so without J.M.'s

knowledge or permission. D.M. delivered the letter to K.G. on the second day back

from summer vacation, and K.G. read it in gym class in the presence of some other

students. One of those students went immediately to the school resource officer,

Officer James Kesterson, and reported that threats had been made against K.G.

Officer Kesterson accompanied the student back to the gym where he found K.G.

frightened and crying. K.G. told Officer Kesterson that J.M. had threatened her and

explained how she obtained the letter. Officer Kesterson conducted an investigation

and informed school administrators about the situation. 
2

Rule 36 provides:

Students shall not, with the purpose of terrorizing another person,

threaten to cause death or serious physical injury or substantial property

damage to another person or threaten physical injury to teachers or

school employees. . . . 

Student[s] will be suspended immediately and recommended for

expulsion.

(Appellant's App. of Trial Exs., Ex. 21.)

4

Bob Allison, the principal, conducted his own investigation and learned that

D.M. had taken the letter from J.M. and delivered it to K.G. at school. After the

investigation, Principal Allison recommended that J.M. be expelled from Northwood

for the remainder of his eighth-grade year. Allison based his recommendation on

Rule 36 of the district's Handbook for Student Conduct and Discipline, which

prohibits students from making terrorizing threats against others. The rule requires

that a violator be recommended for expulsion.2

J.M. and his parents appealed the principal's recommendation to the Director

of Student Services and Athletics, who serves as a hearing officer under the district's

rules. The director recommended that J.M. be suspended from Northwood for one

semester but that J.M. be allowed to attend the district's alternative school during the

period of his suspension. J.M. appealed the director's decision to the school board.

In the interim, he attended the alternative school from August 29 through September

12, the date of the school board's hearing on J.M.'s appeal. The school board voted

at the conclusion of the hearing to expel J.M. from both Northwood and the

alternative school for the remainder of his eighth-grade year, essentially adopting

Principal Allison's initial recommendation. 
5

Upset with the school board's decision, J.M.'s mother filed this lawsuit on her

son's behalf. J.M. sought reinstatement at Northwood on the ground that the school

board violated his free speech rights when it disciplined him for the letter. On

September 27, 2000, the district court issued a temporary restraining order, directing

the board to reinstate J.M. on the condition that he have no contact with K.G. In

November 2000, the district court held a bench trial on J.M.'s First Amendment claim

and found in favor of J.M. The court concluded that the letter was not a true threat

of violence, which may be punished without offending an individual's First

Amendment rights, because J.M. had prepared the letter at home and did not intend

to deliver it to K.G. The district court's judgment required the district to permanently

reinstate J.M., to restore all rights and privileges he lost, and to remove from J.M.'s

school records any reference to the expulsion.

II. DISCUSSION AND ANALYSIS

A. Mootness and Standard of Review

As a preliminary matter, J.M. argues that we no longer have jurisdiction

because his First Amendment claim was rendered moot when he completed his

eighth-grade year at Northwood. According to J.M., even if we reverse the district

court's judgment, our decision will have no practical effect because he was expelled

only for the remainder of his eighth-grade year, which he has completed. We agree

that an appeal must be dismissed as moot when our decision will have no "effectual

relief whatever to a prevailing party." Church of Scientology of Cal. v. United States,

506 U.S. 9, 12 (1992) (internal quotations omitted). We disagree, however, that our

decision can have no effect for either party and conclude that a live case or

controversy remains between the parties. 

In addition to reinstating J.M., the district court required the school board to

expunge any mention of J.M.'s Rule 36 violation from his school records and ordered
6

it to restore all of J.M.'s rights and privileges. If we reverse the district court, the

district will no longer be required to refrain from documenting the incident in J.M.'s

school records. Cf. Kerr v. Farrey, 95 F.3d 472, 476 (7th Cir. 1996) (concluding that

inmate's request to have disciplinary action expunged from his record was not

rendered moot when inmate was paroled). Nor will the district be required to refrain

from considering J.M.'s past rule violation in determining his present privileges as a

student in the district; for instance, whether J.M. can be excluded from a class that

K.G. is taking. Moreover, the district has a legitimate interest in a judicial

determination of whether its application of the rule prohibiting terrorizing threats was

constitutional because the district court's judgment implicates the district's ability to

protect its students and staff. See Papish v. Bd. of Curators of the Univ. of Mo., 464

F.2d 136, 142 (8th Cir. 1972) (reasoning that an expelled student's constitutional

challenge was not moot, based on the student's subsequent academic ineligibility,

where the lawsuit weakened the University's ability to maintain regulatory measures

benefitting its students), reversed and remanded on other grounds, 410 U.S. 667

(1973). 

In reviewing a district court's judgment following a bench trial, we normally

review the court's factual findings for clear error and its conclusions of law de novo.

Speer v. City of Wynne, 276 F.3d 980, 984-85 (8th Cir. 2002). An appellate court's

review, however, is unique in the context of a First Amendment claim. New York

Times Co. v. Sullivan, 376 U.S. 254, 284-85 (1964). When such a claim is raised,

we must "make an independent examination of the whole record . . . to assure . . . that

the judgment does not constitute a forbidden intrusion on the field of free

expression." Id. at 285 (internal quotations omitted). Following a bench trial

involving a First Amendment claim, an independent review of the facts is not

necessarily a de novo review of all the facts relevant to the ultimate judgment entered.

See Families Achieving Independence and Respect v. Neb. Dep't of Soc. Servs., 111

F.3d 1408, 1411 (8th Cir. 1997). Facts irrelevant to the free speech issue remain

subject to the clear error standard, but we make a "fresh examination" of those facts
7

that are crucial to the First Amendment inquiry. Id. (quoting Hurley v. Irish-Am.

Gay, Lesbian, & Bisexual Group of Boston, 515 U.S. 557, 567 (1995)). In doing so,

we are not bound by the district court's witness-credibility determinations, yet we

remain cognizant that the district court is in the best seat to observe the demeanor of

the witnesses. Id. 

B. The True Threat Inquiry

As a general matter, the First Amendment prohibits governmental actors from

directing what persons may see, read, speak, or hear. Ashcroft v. The Free Speech

Coalition, 122 S. Ct. 1389, 1399 (2002). Free speech protections do not extend,

however, to certain categories or modes of expression, such as obscenity, defamation,

and fighting words. R.A.V. v. City of St. Paul, 505 U.S. 377, 382-83 (1992). The

government is permitted to regulate speech that falls within these categories because

the speech is "'of such slight social value as a step to truth that any benefit that may

be derived from them is clearly outweighed by the social interest in order and

morality.'" Id. at 382 (quoting Chaplinsky v. New Hampshire, 315 U.S. 568, 572

(1942)). Of course the rule remains that the government's proscription of speech

within these categories may not, in general, be based on the content of the speech or

the speaker's viewpoint. Id. at 383-86. 

In Watts v. United States, 394 U.S. 705 (1969), the Supreme Court recognized

that threats of violence also fall within the realm of speech that the government can

proscribe without offending the First Amendment. Although there may be some

political or social value associated with threatening words in some circumstances, the

government has an overriding interest in "protecting individuals from the fear of

violence, from the disruption that fear engenders, and from the possibility that the

threatened violence will occur." R.A.V., 505 U.S. at 388. Our task, therefore, is to

determine "[w]hat is a threat . . . from what is constitutionally protected speech."

Watts, 394 U.S. at 707. The Court in Watts, however, set forth no particular
8

definition or description of a true threat that distinguishes an unprotected threat from

protected speech. Thus, the lower courts have been left to ascertain for themselves

when a statement triggers the government's interest in preventing the disruption and

fear of violence associated with a threat. 

The federal courts of appeals that have announced a test to parse true threats

from protected speech essentially fall into two camps. See United States v. Fulmer,

108 F.3d 1486, 1490-91 (1st Cir. 1997) (describing the differing circuit approaches

to ascertaining a true threat). All the courts to have reached the issue have

consistently adopted an objective test that focuses on whether a reasonable person

would interpret the purported threat as a serious expression of an intent to cause a

present or future harm. See id. The views among the courts diverge, however, in

determining from whose viewpoint the statement should be interpreted. Some ask

whether a reasonable person standing in the shoes of the speaker would foresee that

the recipient would perceive the statement as a threat, whereas others ask how a

reasonable person standing in the recipient's shoes would view the alleged threat.

Compare Planned Parenthood of the Columbia/Willamette, Inc. v. Am. Coalition of

Life Activists, 290 F.3d 1058, 1075 (9th Cir. 2002) (en banc), with United States v.

Malik, 16 F.3d 45, 49 (2d Cir.), cert. denied, 513 U.S. 968 (1994).

Our court is in the camp that views the nature of the alleged threat from the

viewpoint of a reasonable recipient. In United States v. Dinwiddie, we emphasized

the fact intensive nature of the true threat inquiry and held that a court must view the

relevant facts to determine "whether the recipient of the alleged threat could

reasonably conclude that it expresses 'a determination or intent to injure presently or

in the future.'" 76 F.3d 913, 925 (8th Cir.) (quoting Martin v. United States, 691 F.2d

1235, 1240 (8th Cir. 1982)), cert. denied, 519 U.S. 1043 (1996); see also United

States v. Hart, 212 F.3d 1067, 1071 (8th Cir. 2000) (quoting Dinwiddie's statement

of what amounts to a true threat), cert. denied, 531 U.S. 1114 (2001). We also set

forth in Dinwiddie a nonexhaustive list of factors relevant to how a reasonable
9

recipient would view the purported threat. Those factors include: 1) the reaction of

those who heard the alleged threat; 2) whether the threat was conditional; 3) whether

the person who made the alleged threat communicated it directly to the object of the

threat; 4) whether the speaker had a history of making threats against the person

purportedly threatened; and 5) whether the recipient had a reason to believe that the

speaker had a propensity to engage in violence. Dinwiddie, 76 F.3d at 925. 

In affirming the district court's conclusion that the letter constituted protected

speech, our vacated panel opinion discussed Dinwiddie's factors but ultimately relied

on the Ninth Circuit's definition of a true threat in Lovell v. Poway Unified Sch. Dist.,

90 F.3d 367 (9th Cir. 1996). See Doe, 263 F.3d at 836-37. In Lovell, the Ninth

Circuit explained that its test is "'whether a reasonable person would foresee that the

statement would be interpreted by those to whom the maker communicates the

statement as a serious expression of intent to harm or assault.'" Lovell, 90 F.3d at 372

(quoting United States v. Orozco-Santillan, 903 F.2d 1262, 1265 (9th Cir. 1990)).

Our panel reasoned that the Ninth Circuit, in focusing on whether a reasonable

speaker would know of the threatening nature of his or her statement, provided the

most concise standard to separate a true threat from protected speech. Doe, 263 F.3d

at 837. 

The panel's implicit rejection of the Dinwiddie true threat inquiry has some

support. The First Circuit rejected the reasonable recipient approach, reasoning that

it creates the peril that a speaker's constitutional rights could turn on a recipient's

unique sensitivity or characteristic that is, or may be, unknown to the speaker.

Fulmer, 108 F.3d at 1491. The notion underlying the First Circuit's decision is that

the reasonable recipient test is less conducive to the robust and wide-open public

debate envisioned by the First Amendment because a speaker may find it necessary

to tone down his or her speech in fear of triggering a recipient's unknown sensitivity.
10

While a panel is normally bound to follow our circuit's prior panel decisions,

we, as an en banc court, are free to overrule a prior decision or alter the law of our

circuit when we determine such a course is necessary. Netland v. Hess & Clark, Inc.,

284 F.3d 895, 899 (8th Cir. 2002). Given our panel's reliance on the reasonable

speaker approach, and the First Circuit's criticism of the reasonable recipient

approach, we find it appropriate to address whether we should adhere to the true

threat inquiry we previously adopted in Dinwiddie. The debate over the approaches

appears to us to be largely academic because in the vast majority of cases the outcome

will be the same under both tests. The result will differ only in the extremely rare

case when a recipient suffers from some unique sensitivity and that sensitivity is

unknown to the speaker. Absent such a situation, a reasonably foreseeable response

from the recipient and an actual reasonable response must, theoretically, be one and

the same. We have come across no case where such a situation has ever been

presented. Moreover, we find no overarching problem with our Dinwiddie approach

because the recipient's reaction still must be a reasonable one even if he or she suffers

some unique sensitivity, thus alleviating much of the First Circuit's concern. Finally,

because neither party contends that one test or the other determines the outcome in

this case, it is an inappropriate vehicle to use to alter our approach to ascertaining true

threats. Accordingly, we adhere to Dinwiddie's inquiry and hold that a true threat is

a statement that a reasonable recipient would have interpreted as a serious expression

of an intent to harm or cause injury to another. 

C. Intent to Communicate

Before we address whether a reasonable recipient would view the letter as a

threat, we are faced with a threshold question of whether J.M. intended to

communicate the purported threat. The district court's conclusion that the letter was

protected speech turned on its finding that J.M. never intended to deliver the letter to

K.G.; in other words, that J.M. never intended to communicate the purported threat

to K.G. In determining whether a statement amounts to an unprotected threat, there
11

is no requirement that the speaker intended to carry out the threat, nor is there any

requirement that the speaker was capable of carrying out the purported threat of

violence. Planned Parenthood, 290 F.3d at 1075. However, the speaker must have

intentionally or knowingly communicated the statement in question to someone

before he or she may be punished or disciplined for it. Id. The requirement is

satisfied if the speaker communicates the statement to the object of the purported

threat or to a third party. See, e.g., United States v. Crews, 781 F.2d 826, 831-32

(10th Cir. 1986) (affirming conviction under 18 U.S.C. § 871 where a defendant made

a statement to a third party that threatened to kill the President); Hawaii v. Chung,

862 P.2d 1063, 1071-73 (Haw. 1993) (recognizing that a defendant's statements to

other teachers that he would kill the principal were true threats entitled to no First

Amendment protection). 

Requiring less than an intent to communicate the purported threat would run

afoul of the notion that an individual's most protected right is to be free from

governmental interference in the sanctity of his home and in the sanctity of his own

personal thoughts. See Stanley v. Georgia, 394 U.S. 557, 564-68 (1969) (recognizing

an individual's right under the First Amendment to possess obscene material in the

privacy of one's home). In Stanley, the Supreme Court recognized that the First

Amendment means, at a minimum, that the government has no business telling an

individual what he may read or view in the privacy of his own home. Id. at 565. The

government similarly has no valid interest in the contents of a writing that a person,

such as J.M., might prepare in the confines of his own bedroom. After all, "[o]ur

whole constitutional heritage rebels at the thought of giving government the power

to control" the moral contents of our minds. Id. It is only when a threatening idea or

thought is communicated that the government's interest in alleviating the fear of

violence and disruption associated with a threat engages. 

We conclude here that J.M. intended to communicate the letter and is therefore

accountable if a reasonable recipient would have viewed the letter as a threat.
3

J.M. argues it would have been improbable for him to harm K.G. in the

manner he described because K.G. resided with her parents. However, a threat does

not need to be logical or based in reality before the government may punish someone

for making it. See United States v. Bellrichard, 994 F.2d 1318, 1322 (8th Cir.), cert.

12

Although J.M. snatched the letter out of D.M.'s hands when D.M. first found it, J.M.

handed the letter back to D.M. and permitted D.M. to read it. J.M.'s decision to let

D.M. read the letter is even more problematic for J.M. given his testimony that he

knew there was a good possibility that D.M. would tell K.G. about the letter because

D.M. and K.G. were friends. (Trial Tr. at 178.) J.M. also discussed the letter in more

than one phone conversation with K.G., and J.M. admitted to K.G. that he wrote the

letter and that it talked of killing her. J.M. made similar admissions to K.G.'s best

friend who would be likely to convey the information to K.G. (Trial Tr. at 174-75.)

One can hardly say, based on J.M.'s willingness to let D.M. read the letter and his

overt discussion of the letter and its contents with K.G. and K.G.'s best friend, that

J.M. intended to keep the letter, and the message it contained, within his own lockbox

of personal privacy. 

D. Reasonable Recipient's Perception of the Letter

We turn next to the question of whether a reasonable recipient would have

perceived the letter as a threat. There is no question that the contents of the letter

itself expressed an intent to harm K.G., and we disagree entirely, but respectfully,

with the district court's assessment that the words contained in it were only

"arguably" threatening. The letter exhibited J.M.'s pronounced, contemptuous and

depraved hate for K.G. J.M. referred to or described K.G. as a "bitch," "slut," "ass,"

and a "whore" over 80 times in only four pages. He used the f-word no fewer than

ninety times and spoke frequently in the letter of his wish to sodomize, rape, and kill

K.G. The most disturbing aspect of the letter, however, is J.M.'s warning in two

passages, expressed in unconditional terms, that K.G. should not go to sleep because

he would be lying under her bed waiting to kill her with a knife.3

 Most, if not all,
denied, 510 U.S. 928 (1993); see also Planned Parenthood, 290 F.3d at 1075 (stating

there is no requirement that the speaker be able to carry out the threat). It seems quite

probable that the threat to hide under a person's bed with a knife would induce fear

and apprehension. 

13

normal thirteen-year-old girls (and probably most reasonable adults) would be

frightened by the message and tone of J.M.'s letter and would fear for their physical

well-being if they received the same letter. Cf. Jones v. Arkansas, 64 S.W.3d 728, 736

(Ark. 2002) (concluding that a rap song that described the murder of a fifteen-yearold female student and her family, which was written by a male student and delivered

to the female student, was a true threat). 

The fact that J.M. did not personally deliver the letter to K.G. did not dispel its

threatening nature. Although J.M. did not personally hand the letter to K.G., J.M.

titled the letter "F___ that bitch [K.G.]," and he wrote the letter as though he was

speaking directly to her. As a consequence, the letter was extremely intimate and

personal, and the violence described in it was directed unequivocally at K.G. Cf.

Bellrichard, 994 F.2d at 1321 (recognizing that correspondence directed to one's

home or work is more likely to be perceived as a threat than a general statement

delivered at a public gathering). 

There is also no indication that J.M. ever attempted to alleviate K.G.'s concerns

about the letter during the period between when he told her about the letter and when

she received it at school. Prior to K.G. obtaining the letter, J.M. had discussed its

contents with her in phone conversations, and he testified at trial that he knew K.G.

might have taken the threat as being truthful. It readily appears that J.M. wanted K.G.

to be scared as retribution for her treatment of him. In fact, K.G.'s best friend testified

at trial that J.M. told her, before D.M. obtained the letter and delivered it, that J.M.

wanted to hide under K.G.'s bed and kill her. J.M. told this to K.G.'s best friend

knowing the friend would likely pass the message along to K.G. (Trial Tr. at 239-41).

J.M. also shared the letter with D.M. suspecting that D.M. would pass the information
4

We find it untenable in the wake of Columbine and Jonesboro that any

reasonable school official who came into possession of J.M.'s letter would not have

taken some action based on its violent and disturbing content. 

14

it contained to K.G. J.M. ultimately apologized to K.G., but his apology came only

after he was expelled by the school board and during the pendency of the district

court proceeding. The crescendoing events that presaged K.G.'s receipt of the actual

letter would not have given a reasonable person in K.G.'s shoes much solace that J.M.

did not want or intend to harm her. 

Based on the tone of the letter, and the situation surrounding its

communication, we are not surprised that those who read it interpreted it as a threat.

Watts, 394 U.S. at 708 (recognizing the reaction of the listener is relevant to whether

the speech is protected). D.M. was concerned enough by the letter that he purloined

it from his friend's home because he "felt that something should be done about it."

(Trial Tr. at 302.) A girl present when K.G. first read the letter immediately went to

Officer Kesterson because she thought someone needed to know about the letter and

the threats contained therein. School officials conducted an investigation and

ultimately instituted expulsion proceedings because they believed the letter amounted

to a "terrorizing threat."4

 As for K.G., she broke down crying and was scared to leave

the gym after she read the letter. She also slept with the lights on for the first couple

of nights after the incident. The junior high principal who observed K.G. shortly after

K.G. received the letter described K.G. as being extremely frightened. He explained

that K.G. remained frightened enough of J.M. that she went home early when J.M.

returned to school after the district court temporarily reinstated him.

J.M.'s previous portrayal of himself as a tough guy with a propensity for

aggression made his threat more credible and contributed to K.G.'s reaction. Before

the breakup, J.M. had told K.G., as well as K.G.'s best friend and D.M., that he was

a member of the "Bloods" gang. (Trial Tr. at 243, 259-60, 299). K.G. also testified
15

at trial that J.M. once shot a cat while she was speaking to him on the phone and that

J.M.'s penchant for violence towards animals heightened her concern over the letter.

(Trial Tr. at 262-63.) The district court excluded the district's evidence of J.M.'s

violent propensities on the ground that the evidence was not considered by the school

board. We conclude, however, that the evidence is relevant to an understanding of

K.G.'s response to the threat and our determination of whether her response was a

reasonable one. See Families Achieving Independence, 111 F.3d at 1411 ("[I]n cases

involving the First Amendment, appellate courts must make an independent

examination of the whole record to ensure that its judgment does not constitute a

forbidden intrusion on the field of free expression." (internal quotations omitted)).

Viewing the entire factual circumstances surrounding the letter, we conclude

that a reasonable recipient would have perceived J.M.'s letter as a serious expression

of an intent to harm K.G. As such, the letter amounted to a true threat, and the

school's administrators and the school board did not violate J.M.'s First Amendment

rights by initiating disciplinary action based on the letter's threatening content. The

district court's contrary conclusion was erroneous. Had we been sitting as the school

board, we might very well have approached the situation differently, for it appears to

us that the board's action taken against J.M. was unnecessarily harsh. Other options

have occurred to us that could have furthered the district's interest in protecting its

students, as well as have punished J.M., but also have aided him in understanding the

severity and inappropriateness of his conduct. However, "[i]t is not the role of the

federal courts to set aside decisions of school administrators which the court may

view as lacking a basis in wisdom or compassion." Wood v. Strickland, 420 U.S.

308, 326 (1975). Those judgments are best left to the voters who elect the school

board. 

 
16

III. CONCLUSION

We reverse the judgment of the district court and remand the case to the district

court with instructions to dissolve the injunctive relief afforded J.M. and to dismiss

J.M.'s First Amendment claim against the school district. 

HEANEY, Circuit Judge, with whom McMILLIAN, MORRIS SHEPPARD

ARNOLD, and BYE, Circuit Judges, join, dissenting.

Because I believe the majority has undermined the scope of the First

Amendment by failing to consider the unique circumstances of speech in a school

setting, I respectfully dissent. I believe the proper inquiry before us is 1) whether

J.M.’s written expression is protected speech or a true threat; and 2) if it is protected

speech, as I believe it is, whether it is subject to regulation because it may cause

substantial disruption or interfere with the rights of other students. The majority

ignores the school context analysis and creates dangerously broad precedent by

holding that any private utterance of an intent to injure another person is not entitled

to First Amendment protection. I reject this reasoning because it violates the

fundamental principles of the First Amendment. I would hold instead that J.M.’s

written expression is constitutionally protected speech, but can be reasonably

regulated by school administrators to prevent substantial disruption in the school

setting. 

I. True Threat Analysis

I agree with the majority that in the Eighth Circuit, a true threat is a statement

that a reasonable recipient would interpret as a serious expression of an intent to harm

or cause injury to another. I disagree, however, with the majority’s rejection of the

district court’s determination that J.M. had not communicated a true threat to K.G.

The district court’s factual findings do not constitute “a forbidden intrusion on the

field of free expression,” nor are they clearly erroneous. The majority ignores the
17

district court’s findings to conclude that J.M. intended to communicate a threat to

D.M., and that a reasonable recipient of J.M.’s letter understood the letter to be a

threat. This holding cannot be independently supported by the record. I would

therefore affirm the district court. 

United States v. Dinwiddie, 76 F.3d 913, 925 (8th Cir. 1996) sets forth the

standard for determining whether speech constitutes a true threat. The majority

recites this standard, but omits analysis of how that standard is applied. Judge

Richard Arnold explained in that well-reasoned opinion that “[t]he court must analyze

an alleged threat ‘in the light of [its] entire factual context,’ . . . and decide whether

the recipient of the alleged threat could reasonably conclude that it expresses ‘a

determination or intent to injure presently or in the future.’” (quoting United States

v. Lee, 6 F.3d 1297,1306 (en banc) (Lay, J., concurring in part and dissenting in part);

Martin v. United States, 691 F.2d 1235, 1240 (8th Cir. 1982)). The court in Dinwiddie

relied on the following facts to conclude that the speaker had issued a true threat: 

Mrs. Dinwiddie made these statements not once or twice, but about 50

times. She communicated them directly [with a bullhorn] to Dr. Crist,

who reacted to them by wearing a bullet-proof vest. Finally, Dr. Crist

was aware that Mrs. Dinwiddie, a well-known advocate of the view that

it is justifiable to use lethal force against doctors who perform abortions,

had attacked . . . a Maintenance Supervisor at Planned Parenthood,

physically obstructed potential patients who were trying to enter Planned

Parenthood, . . . and told . . . Planned Parenthood’s Executive Director,

“Patty, you have not seen violence yet until you see what we do to you.”

These facts gave Dr. Crist reason to believe that Mrs. Dinwiddie had a

propensity to use force.

Dinwiddie, 76 F.3d at 925-26. There is no question that her series of communications

to Dr. Christ amounted to a true threat.
5

In the record there are two copies of the writing at issue. To an untrained

eye, the handwriting in one copy is different from the other, suggesting that

someone other than J.M. copied the contents of his letter. Neither party raises that

issue, so we do nothing more than note the difference in handwriting here.

6

The record fails to provide clear dates about when J.M. wrote the letter and

when D.M. discovered it. J.M.’s father stated at the September 12, 2000 School

Board Meeting that the letter sat in J.M’s room for two months before D.M. read

it. Transcript of School Board Meeting, App. of Trial Exhibits, Ex. 6 at 16.

7

J.M. explained at the September 12, 2000 School Board Meeting that on

September 10, 2000, he approached K.G. and her mother at church to apologize: “I

told her mom and [K.G.] that I was sorry for all this stuff that had happened. And

then her mom hugged me and then [K.G.] hugged me.” Transcript of School

Board Meeting, App. of Trial Exhibits, Ex. 6 at 33.

18

It is unclear how the majority could conclude that the facts before us rise to the

level of a Dinwiddie true threat, given the entire factual context of J.M.’s written

expression. During summer vacation, J.M., a fourteen-year-old recipient of a

certificate of honor from the Greater Jonesboro Chamber of Commerce, and a student

in good academic standing with a record of good behavior, wrote a vile letter that

suggested he would rape, sodomize, and murder his ex-girlfriend, K.G. He placed the

letter on his bureau or shelf in his bedroom, and apparently forgot about it.5

 Weeks,

if not months,6

 later, a friend, D.M., discovered the letter on the shelf, and after

protest, J.M. let D.M. read it. K.G. was informed of the contents of the letter before

she saw it, but did not seek help from adults. J.M. discovered on the second day of

his eighth-grade year that upon K.G.’s request, and to gain K.G.’s favor, D.M. had

stolen the letter from his room and shown it to K.G., who reported him to school

authorities. K.G. was frightened by the message and slept with the lights for three

nights, but was otherwise calm. A police report was filed, but the county attorney did

not press charges, and J.M. apologized to and hugged the girl and her mother at the

church they attend together before the school board voted to expel him.7

 J.M. and

K.G. continue to attend school together, without incident. This entire context must
19

be considered in determining whether J.M. intended to communicate the threat and

whether a reasonable person in K.G.’s position would consider the letter a true threat.

II. Intent to Communicate

The majority concludes on the basis of the facts recited above that J.M.

intentionally or knowingly communicated a threat to K.G. by allowing D.M. to read

the letter. The majority correctly notes that there must be some intent to communicate

a threat, yet the majority unreasonably stretches facts and law to find that J.M. had the

requisite intent to do so. Whether J.M. meant to communicate a threat is a finding of

fact that should be reviewed under a clearly erroneous standard. The district court’s

conclusion that J.M. lacked the necessary intent is supported by the evidence. J.M.

never intended anyone to see his letter. He wrote it in the privacy of his bedroom and

placed it on his shelf away from the eyes of others. When D.M. found the letter, J.M.

immediately grabbed it from him, indicating that he did not want to publicize his

private writings. J.M. gave in and unwisely allowed D.M. to read it, but he refused

to let D.M. have a copy of the letter. Furthermore, D.M. had to steal the letter to

deliver it to K.G. J.M. never gave D.M. his permission to show the letter to anyone.

D.M. understood at all times that the letter was never meant for K.G.’s viewing. I

reject the majority’s conclusion that J.M. intended to communicate the letter.

Rather than defer to the district court’s reasonable factual findings on the

matter, the majority attempts to turn the issue into a legal question. I disagree with

the majority’s conclusion that J.M.’s acquiescence to D.M.’s request to see the letter

amounts to the communication of a threat. The cited legal authority fails to support

the proposition that J.M.’s actions constitute an intent to communicate. The court

cites United States v. Crews, 781 F.2d 826 (10th Cir. 1986), and a decade-old Hawaii

Supreme Court case, State v. Chung, 862 P.2d 1063 (Haw. 1993), for the proposition

that the alleged threatening communication need only be conveyed to a third party to

rise to the level of a true threat. These cases lend little insight to the inquiry before
20

us. Crews informs us of the special security concerns related to threats on the

President’s life, even when the threat never reaches the President’s ears. The case

involves a psychiatric ward patient who, after taking a large dose of anti-depressant

medication, told a nurse that he would shoot President Reagan if he came to the

hospital, an unlikely visit. Id. at 829. The court concluded he had issued a true

threat. Yet, unlike the situation here, a federal statue specifically prohibits making

threats against the President to anyone, precluding any sort of analysis of the context

within which the statement was made. See 18 U.S.C. § 871 (1976); see also United

States v. Welch, 745 F.2d 614, 615-16, 620 (10th Cir. 1984) (holding that man with

minimal brain dysfunction who blamed President Reagan for unavailability of

vocational training and stated that if President Reagan were in town he would get a

rifle and shoot him, had issued a true threat); but see Watts v. United States, 394 U.S.

705, 706, 708 (1969) (holding that protester’s public statement that “[i]f they ever

make me carry a rifle the first man I want to get in my sights is L.B.J. They are not

going to make me kill my black brothers,” constituted political hyperbole, not a true

threat). The Crews analysis of a threat against the President is inapplicable to the

situation before us, which involves a teenage gossip-circle about a break-up, not the

specifically prohibited threatened assassination of our national leader.

Chung also fails to shed light on our analysis of J.M.’s letter, and, in any case,

we are not bound to follow Hawaiian precedent. In that case, a teacher with a history

of mental illness told four co-workers that he intended to kill the principal. Chung,

862 P.2d at 1067-68. On school grounds he showed each teacher the gun or

ammunition he planned to use to carry out his plan. Id. He had a months-long

strained relationship with the principal, he violated his ten-day administrative leave

by being on campus, he brought a semiautomatic pistol to school, and he initiated

conversations with others to tell them about his plan. The teachers believed he could

carry out the threat. In contrast, J.M. never initiated discussion about the contents of

the letter to anyone, he was not a known disciplinary problem at his school, he did not

possess weapons, he participated in church activities with K.G. throughout the
8

The statute prohibits any communication uttered “with the purpose of

terrorizing another person,” where the speaker “threatens to cause death or serious

physical injury or substantial property damage to another person.” 

21

summer, and he had civil conversations with her even after she knew about the

contents of the letter. Furthermore, J.M. did not intend to convey a plan to harm K.G.

when he let D.M. read the letter. The majority’s reliance on the Chung holding is

misguided.

The facts in Roberts v. State, CA 01-1496, 2002 WL 1376178 (Ark. App. June

26, 2002), are more closely aligned with the facts before us. Roberts holds that in

some circumstances, third-party knowledge of an alleged threat it is not enough to

constitute a true threat. In that case, a seventh-grader wrote a “Hit List (To Shoot

List)” in his notebook during music class. The teacher regularly collected the

students’ notebooks to assess their class work. When she noticed that Roberts was

not engaged in the lesson, she picked up his notebook and saw the “Hit List” heading

on the page and nineteen names underneath the heading, at least one of which

belonged to a student she knew. Although Roberts allowed his teacher to read his

list, it was unlikely that he gave his consent voluntarily. The court held that there was

insufficient evidence to conclude that the list had been written with the purpose of

terrorizing another pursuant to Ark. Code Ann. § 5-13-301 (Repl.1997)8

 and

explained, “[w]hile it is clear that the statute does not require that the threat be

communicated directly to the person threatened, the gravamen of the offense is the

communication, not utterance.” Id. at *2 (citation omitted). The court concluded that

the statute did not “impose criminal liability for threats made in reckless disregard of

the risk causing the terror.” Id. Roberts recognizes that third-party knowledge of the

contents of an alleged threat against another is not enough to conclude that a true

threat has been issued. Although our court is not bound to follow this case, I believe

it accurately and reasonably sets forth the analysis we should follow when reviewing

an alleged intent to communicate a threat.
9

I note here that there is some confusion in the majority’s opinion about who

is a reasonable recipient. The majority finds an intent to communicate the threat to

D.M., but then considers the effect of the threat from a reasonable person’s

perspective in K.G.’s shoes.

22

III. Reasonable Response

Even if we were to conclude that J.M. intended to communicate the letter to

D.M., a reasonable recipient in K.G.’s position would not have viewed the letter as

a threat.9

 The majority finds that a reasonable recipient would perceive the letter as

a threat because of the contents of the letter; because J.M. acknowledged that he had

written the letter; because K.G. was upset and slept with the lights on; and because

J.M. told K.G. that he had shot a cat and was a member of the Bloods. I address each

of these concerns separately.

Admittedly, the content of the letter is chilling. At its core, however, the letter

is expression that was never intended to be communicated to K.G.; it was a private

response to his break-up. Furthermore, the record shows that K.G. knew that J.M. did

not want her to see the letter. The record demonstrates that, regrettably, J.M. thought

Eminem’s lyrics were the best source of inspiration for his catharsis. Today’s

teenagers witness, experience, and hear violence on television, in music, in movies,

in video games, and for some, in abusive relationships at home. It is hardly surprising

that such violence is reflected in the way they express themselves and communicate

with their peers, particularly where adult supervision is lacking. The shocking

contents of the letter alone, however, do not warrant the finding of a true threat. As

Dinwiddie notes, the entire context must be considered. “When a threat is not

communicated nor intended to be communicated to the object of the statement, . . .

some further evidence that the individual has done more than think evil thoughts

ought to be shown. Proof of actual intent to carry out the threat is needed to

demonstrate the reality of the threat itself. Any other rule vests far too much power
23

in the government at the expense of the individual.” United States v. Crews, 781 F.2d

826, 837 (10th Cir. 1986) (Logan, J., dissenting). 

J.M.’s admission that he wrote the letter is inconclusive as well. Once his

social circle knew about the contents of the letter, he denied authorship of it, allowing

one to conclude that he was embarrassed he had written it. He later admitted to

having written the letter, but nothing in the record indicates that he did more than

acknowledge that he had written awful things about K.G. He never issued verbal

threats against K.G. during their multiple phone conversations over the course of the

summer, nor did he ever affirm his intentions to carry out the actions described in the

letter.

K.G.’s response is certainly relevant to the inquiry, though it is not

determinative because the objective standard in our inquiry requires consideration of

the reasonable recipient’s response. Given the entire context, it was unreasonable for

K.G. to believe that the letter was a true threat. Although K.G. felt shocked and

scared by the contents of the letter, the record reveals that J.M. never directly

communicated a threat to her. Over at least a two-month period, K.G. heard about

the letter before it was brought to school; initiated conversations with J.M. and others

about the contents of the letter; told her friend to steal the letter from J.M.’s room;

continued to participate in youth group activities with J.M., even after he admitted

that he had written violent things about her; and after having read the letter months

after it was written, reportedly slept with the lights on. She also hugged J.M. after he

apologized for his conduct. Although she knew who wrote the disturbing contents of

the letter before it was brought to school, she did not alert a parent, a Sunday school

teacher, or other adult about her concern. Rather, she solicited information and the

letter itself through her friends as part of what appears to be a complicated tangle of

teenage networking. Although a reasonable person would naturally be shocked by

the contents of the letter, it is unreasonable for K.G. to have concluded that her life
24

was in danger. She knew that J.M. did not want her to see the letter and that they had

interacted in a non-violent manner at all times of their acquaintance. 

Had J.M. had a criminal record, or handed the letter to her directly, or

previously expressed an intent to hurt her, it would be far easier to conclude that K.G.

reasonably believed that J.M. intended impose harm. Those are not the facts of this

case. K.G. and her friends had to work hard to obtain a copy of the letter, indicating

J.M.’s reluctance to make it a public issue. I therefore would not conclude that her

response was reasonable.

Finally, the majority relies on J.M.’s reputation in concluding that a reasonable

recipient could conclude that he had issued a threat. K.G. testified that she thought

J.M. had killed a cat and remembered that J.M. had boasted that he, a white kid from

rural Arkansas, was a member of the Bloods. This amounts to teenage bravado at

best, and does not warrant serious consideration by this court.

A comparison of this case and others in which our circuit has found a true

threat demonstrates how far the majority stretches the law today. In concluding that

J.M.’s letter constitutes a true threat, the majority has placed this boy in the company

of the following cast of characters: a pro-life advocate who physically assaulted an

employee at Planned Parenthood and, over a period of a year, warned a doctor with

the aid of a blow horn nearly fifty times that he should remember Dr. Gunn, the

doctor who was murdered because he performed abortions, United States v.

Dinwiddie, 76 F.3d 913, 925 (8th Cir. 1996); three teenage boys who burned three

crosses in the yards of African American families, United States v. J.H.H., 22 F.3d

821 (8th Cir. 1994); a convicted murderer who sent a judge a letter informing him that

he will “see you in hell before I permit you to [revoke custody of my son],” Martin

v. United States, 691 F.2d 1235, 1240 (8th Cir. 1982); an anti-abortion activist who

parked and left unattended two Ryder trucks in the entrance driveways of two Little

Rock abortion clinics after the Oklahoma City bombing, causing the evacuation of
25

the area and the call for a bomb squad investigation, United States v. Hart, 212 F.3d

1067 (8th Cir. 2000); a man charged with bombing a building and who sent twentythree letters to the home and work addresses of judges and government workers,

threatening to kill them, United States v. Bellrichard, 994 F.2d 1318 (8th Cir. 1993).

J.M.’s conduct does not resemble the acts of these criminals. He wrote a disturbing

but private letter that was not intended to be viewed by anyone. It would be a great

injustice to conclude that his writings rise to the level of a true threat: there was no

communication of a true threat, nor could there have been a reasonable belief that he

intended to carry out the actions in the letter.

IV. School Board Action

Because I would find that J.M.’s letter is not a true threat and is entitled to First

Amendment protection, I next examine whether the school board acted reasonably in

regulating J.M.’s speech. A fundamental principle underlying the freedom of speech

is that the government may not censor the expression of an idea simply because the

government or society finds it offensive or disagreeable. See Texas v. Johnson, 491

U.S. 397 (1989). Freedom of speech is preserved in our nation’s schools, but the

exercise of speech rights is not absolute in the educational context. Although

censorship of student speech is presumptively invalid, it can be prohibited to prevent

potentially disruptive conduct. See 3 JAMES A. RAPP, EDUCATION LAW § 9.04 (2001).

 

In the context of political expression on school campuses, the Supreme Court

has held that students may express their opinion on controversial subjects, provided

such expression is accomplished without materially and substantially interfering with

disciplinary objectives in the operation of the school. Tinker v. Des Moines Indep.

Cmty. Sch. Dist., 393 U.S. 503, 512-13 (1969). “[C]onduct by the student, in class

or out of it, which for any reason – whether it stems from time, place, or type of

behavior – materially disrupts classwork or involves substantial disorder or invasion
26

of the rights of others is, of course, not immunized by the constitutional guarantee of

freedom of speech.” Id. at 513.

With regard to the use of profane language in student speeches, Bethel School

District No. 403 v. Fraser, 478 U.S. 675, 676, 683 (1986), informs us that it is “a

highly appropriate function of public school education to prohibit the use of vulgar

and offensive terms in public discourse;” and that “[t]he determination of what

manner of speech in the classroom or in school assembly is inappropriate properly

rests with the school board.” Tinker and Fraser establish that language that would

normally be considered protected speech may be regulated in a school setting to

prevent disruptive student conduct. School administrators have a duty to ensure that

students are educated in a safe environment, and this safety may come at the cost of

limited student speech rights. See Lisa M. Pisciotta, Beyond Sticks and Stones: A

First Amendment Framework for Educators Who Seek to Punish Student Threats, 30

Seton Hall. L. Rev. 635 (2000).

The majority acknowledges that the school board’s expulsion of J.M. and the

elimination of the option to attend the alternative school in the district was

unnecessarily harsh, yet it defers to the board’s discretion. While I agree that we

should not interfere with school board decision-making where it has acted

constitutionally, we are obliged to impose our judgment where there has been an

abuse of discretion, as in this case. “The system of public education that has evolved

in this Nation relies necessarily upon the discretion and judgment of school

administrators and school board members, and § 1983 was not intended to be a

vehicle for federal court correction of errors in the exercise of that discretion which

do not rise to the level of violations of specific constitutional guarantees.” Id. (citing

Epperson v. Arkansas, 393 U.S. 97, 104 (1968); Tinker, 393 U.S. at 507) (emphasis

added). “Despite this considerable discretion, courts have recognized that school

boards must exercise their powers ‘in a manner that comports with the transcendent

imperatives of the First Amendment.’” Stark v. Indep. Sch. Dist. No. 640, 123 F.3d
27

1068, 1073 (8th Cir. 1997) (quoting Edwards v. Aguillard, 482 U.S. 578, 583-84

(1987)(citation omitted)). “While this court must ordinarily defer to the judgment of

a body vested with such powers, we are not so obligated when the exercise of the

power constitutes an abuse of discretion.” Bowman v. Pulaski County Special Sch.

Dist., 723 F.2d 640, 645 (8th Cir. 1983).

The school board failed to exercise sound, reasonable, and legal decisionmaking in its review of J.M.’s conduct. On August 23, 2000, Principal Allison

recommended that J.M. be expelled for the year. Recommendation for Expulsion

Notice, App. of Trial Exhibits, Ex. 3. Sometime after that date but before the

September 12 school board hearing, Dr. Welch of the Pupil Personnel Committee

recommended that J.M. attend Alpha Academy, the alternative school in the district,

for a semester with the possibility of returning to Northwood Junior High for the

second semester, contingent upon good behavior while at Alpha. Transcript of

Meeting with Director of Pupil Discipline, App. of Trial Exhibits, Ex. 5 at 8. Dr.

Welch reasoned, “I do not want to see Josh on the street and out of school because of

what Mr. Calhoun has told me, that I think basically he’s a good kid.” Id. at 9. Dr.

Welch informed the family that if they were unhappy with his decision they could

appeal to the school board, which they opted to do.

Before the school board hearing began, it appears the board had concluded that

J.M. had issued a “terroristic threat” without actually considering whether the letter

was written with the purpose of terrorizing another person, as required by case law

and its own Rule 36. While it would be unreasonable for a body of non-attorneys to

conduct the complex true threat analysis that this court attempts today, it is an abuse

of discretion for the board to exclude a reasoned analysis of its rule as applied to the

context of the case before it. 

The hearing took place at 10 p.m. J.M., J.M.’s parents, Mr. Allison, Assistant

Principal Calhoun, and Dr. Welch testified. Rather than acting as a neutral decision-
28

making body and allowing J.M. to explain his side of the story, the board devoted the

first part of the meeting to convincing J.M’s family that Alpha Academy was a decent

place and that J.M. would probably benefit from his experience there. From that

point, several board members took the opportunity to chastise J.M. and his family for

not asking K.G. to be at the meeting, and for allowing their son to listen to rap music.

Transcript of School Board Meeting, App. of Trial Exhibits, ex. 6 at 23, 42. One

board member made sweeping generalizations of J.M.’s frame of mind: “[I]

understand how teenage boys can react at that age, but this goes beyond that. This

goes beyond a level that – quite frankly, it scares the begeebees out of me . . . . [T]his

shows terrible, terrible problems taking place in a person’s mind, whether he got it

off of tapes or not, whether he was listening to Eminen or other rap stars.” Id. at 29.

At another point, board member O’Brien claimed to know a menace when he sees

one: “This scares me. We’ve had kids in here who I’ve expelled or we’ve done

whatever, I’ve never been scared to be in their presence. I looked into your eyes a

minute ago, I’ve practiced criminal law for five years, you weren’t looking back at

me. There wasn’t anything in your eyes. There wasn’t any remorse. That scares

me.” Id. at 44. 

Concerned that J.M. did not understand the severity of expulsion, O’Brien

demanded, “[y]ou don’t know what it means to be expelled, do you?” Id. at 45.

Unsatisfied with J.M.’s response, O’Brien provided the “correct” answer: “[t]o maybe

not have a life. You may have a problem getting into other school districts, you may

never finish school. Your life may now be over. Do you get that?” Id. To provide

J.M. with questionable context regarding the severity of his transgression, O’Brien

stated, “[k]id, I tell you, I want to help you, but this is scary stuff. It’s not [as though]

you slapped some girl’s rear end, you know.” Id. Finally, another board member

assured J.M. that “in a court of law this would be treated more seriously than

terroristic threatening. It’s a threat of serious physical injury or property damage.”

Id. at 48-49. Apparently not realizing that the county attorney had decided not to
29

press charges against J.M., the board member wanted to make sure that there was a

police report taken. Id. at 49.

A motion was made to impose expulsion against J.M., and after a 5-2 vote in

favor of expulsion was taken, the board remained uncertain as to whether they had

expelled him for a semester or the entire year, and whether J.M. would be allowed to

attend Alpha Academy. They voted again, and decided to expel J.M. for the year

without the option of attending the alternative school. Whereas J.M.’s family thought

they were appealing Dr. Welch’s recommended semester expulsion from Northwood

with the option of attending Alpha Academy, they left the meeting with a far more

stringent punishment imposed against J.M. When J.M’s father expressed concern

about this, Ms. Cherven, who appeared to have allowed a family member’s

experience with threatening conduct sway her decision, exclaimed, “[n]ow, sir, what

did you expect us to do? I mean, in all honesty, when you decided to appeal to the

school board, you didn’t want to accept Dr. Welch’s recommendation, did you think

that we were just going to put your child back in school? Is that what you thought?”

Id. at 64. 

The board’s draconian punishment is unprecedented among the school threat

cases across the nation. Consider these: a fifteen year old student who exclaimed to

a counselor that she was so angry she “could just shoot someone,” or “[i]f you don’t

give me this schedule change, I’m going to shoot you,” was suspended for three days,

Lovell v. Poway Unified School District, 90 F.3d 367, 369 (9th Cir. 1996); an

adjudicated delinquent who wrote a rap song that threatened his female friend’s life

and which he handed to her at school, was sentenced to 24 months supervised

probation and seven days in a juvenile detention facility, but was allowed to attend

school, Jones v. State, 64 S.W.3d 728, 732 (Ark. 2002); a seventh-grader who was

placed on nine months probation and ordered to complete forty hours of community

service for writing a “hit list” at school, discovered by his teacher, but whose case
30

was dismissed and order vacated by appellate court because there was insufficient

evidence to find a true threat, Roberts, 2002 WL 1376178 at *1.

There is something fundamentally wrong with our system of justice if we

willingly revoke a non-offending teenager’s privilege to attend public school,

particularly where an alternative school is available, and where the responsible school

authority recommended the alternative school as a constructive way to handle the

matter. J.M., of all people, belongs in school. It does not pass unnoticed by this court

that teachers and administrators in today’s world are expected to undertake greater

responsibilities than what the one-room schoolhouse teacher shouldered. Educators

serve as surrogate parents, psychologists, social workers, and security guards, above

and beyond their normal teaching responsibilities. They are charged with the duties

of creating a safe learning environment, teaching clear communication, and protecting

students’ constitutional rights. It is clear that we as parents, neighbors, members of

religious communities, political leaders, and members of the court cannot alienate

teachers and administrators as they grapple with issues of violence in the classroom.

It is not acceptable, however, to lower the bar for what constitutes a true threat and

expel a “good kid” with a good scholastic record when other remedies are available.

Nor should J.M. be more severely punished than what was originally recommended

because he exercised his right to appeal Dr. Welch’s decision to the school board.

Because I believe that J.M.’s written expression was protected speech, I would

affirm the district court’s holding that J.M. had not issued a true threat. Although I

agree that J.M.’s conduct required disciplinary action, the school board’s response

was an abuse of discretion. I would therefore affirm the district court.
31

McMILLIAN, Circuit Judge, dissenting.

I join Judge Heaney's dissenting opinion and also write separately because I

believe, first, that J.M.'s statement made in the privacy of his home was protected

speech. That statement was not a true threat.

In addition, and of equal importance, I question whether the school had any

legitimate authority over such a statement, made in the privacy of his home, not at

school or during school hours or using school equipment, which was stolen from his

home by one of his friends, at the request of another, and then turned over to school

officials. If anything, the statement was arguably a police matter, for which, I note,

the local prosecuting attorney refused to issue any charges.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.