Protecting Student Speech Rights While Increasing School Safety: School Jurisdiction and the Search for Warning Signs in a Post-Columbine/Red Lake Environment

I. INTRODUCTION Adam Porter's little brother wanted to draw a llama.1 He found a discarded drawing pad in the closet, drew the llama, and took it to school the next day to show his middle-school teacher.2 An otherwise uneventful day at school transformed abruptly when another student flipped through the pad during the bus ride home and discovered a more provocative sketch drawn by Adam two years before: a crude rendition of the high school under siege by tanker truck, missile launcher, helicopter, and gunmen.3 The student immediately alerted the bus driver, and the school suspended Adam's brother from school the next morning for possession of the picture.4 Adam, however, suffered the most severe consequences.5 Officials at East Ascension High School searched Adam, a junior, and recommended he be expelled.6 He was also locked in jail four nights for "terrorizing the school."7 More than three years later, in December 2004, the Fifth Circuit Court of Appeals declared Adam's sketch fully protected under the First Amendment.8 In the time between the initial events and the Fifth Circuit's decision, school administrators forced Adam, under threat of expulsion, to enroll in a school for troubled students; he subsequently dropped out.9 By the time the constitutional dust setded, it was too late for Adam Porter. The courts may have finally vindicated him, but his high school experience was by then just a memory. School violence across the nation has created an atmosphere of fear, leaving administrators desperately searching for warning signs similar to those exhibited by past school shooters.10 Caution is warranted,11 and administrators must be empowered to act when they perceive that a danger exists,12 for history shows that unaddressed or unrecognized warning signs can transform into tragedy.13 But it is also important that in the rush to prevent future violence administrators do not unnecessarily trample upon students' First Amendment speech rights.14 Since Columbine15 and the school shootings that preceded and followed it,16 courts addressing First Amendment protection on the campuses of public schools17 have repeatedly held that "[a] school need not tolerate student speech that is inconsistent with its basic educational mission, even though the government could not censor similar speech outside the school."18 A student's freedom of speech "in" school is less than his freedom of speech at home, work, a shopping mall, a movie theater, or virtually anywhere else "out" of school.19 However, the line designating what constitutes out-of-school speech is jagged with exceptions and caveats.20 In the absence of clear bright-line rules to follow, teachers and administrators sometimes react out of fear and suppress speech that, in retrospect, should be protected. Additionally, the traditional legal framework for assessing threats is overinclusive21 when dealing with student speech, overreacting to harmless speech and thus being spread so thin as to be unable to respond to legitimate dangers. Further, fearing punishment, many students choose to suppress their speech, thus concealing potential warning signs. As Columbine, Red Lake, and other tragedies have demonstrated, and as future tragedies may demonstrate, speech can be infringed, but violence is likely to continue. With greater student speech, a student contemplating violence will be more likely to express his feelings. Warning signs will surface and, with the appropriate guidelines in place, these signs can be dealt with. A danger known is much safer than a danger that goes unspoken until it is too late. In this regard, encouraging the open exchange of student speech is as vital to school safety as it is to First Amendment rights. This Comment proposes two needed clarifications to balance educators' rights to maintain a secure environment and students' rights to express themselves by viewing school administrators' evaluations of student threats and warning signs as a two-step process: (1) use of a clear standard to determine whether student speech is within their jurisdiction (the on-campus/off-campus question),22 and if so, (2) determination if student speech actually threatens school safety through application of specific guidelines modeled after those proposed by the United States Secret Service. …