Ponce v. Socorro Independent School District

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

November 20, 2007

No. 06-50709 Charles R. Fulbruge III

Clerk

ENRIQUE PONCE, JR; ROCIO PONCE, Individually and as next friends of

E.P., a minor child

Plaintiffs - Appellees

v.

SOCORRO INDEPENDENT SCHOOL DISTRICT

Defendant - Appellant

Appeal from the United States District Court

for the Western District of Texas

Before JOLLY, STEWART, and PRADO, Circuit Judges.

E. GRADY JOLLY, Circuit Judge.

This appeal presents the question of whether student speech that

threatens a Columbine-style attack on a school is protected by the First

Amendment. Today we follow the lead of the United States Supreme Court in

Morse v. Frederick, 127 S.Ct. 2618 (2007), and hold that it is not because such

speech poses a direct threat to the physical safety of the school population. We

therefore VACATE the preliminary injunction entered by the district court and

REMAND for further proceedings, if appropriate.

I.

No. 06-50709

While enrolled as a sophomore at Montwood High School, a minor student

identified as E.P. kept an extended notebook diary, written in the first-person

perspective, in which he detailed the “author’s” creation of a pseudo-Nazi group

on the Montwood High School Campus, and at other schools in the Socorro

Independent School District (“SISD” or “School District”). The notebook

describes several incidents involving the pseudo-Nazi group, including one in

which the author ordered his group “to brutally injure two homosexuals and

seven colored” people and another in which the author describes punishing

another student by setting his house on fire and “brutally murder[ing]” his dog.

The notebook also details the group’s plan to commit a “[C]olumbine shooting”

attack on Montwood High School or a coordinated “shooting at all the [district’s]

schools at the same time.” At several points in the journal, the author expresses

the feeling that his “anger has the best of [him]” and that “it will get to the point

where [he] will no longer have control.” The author predicts that this outburst

will occur on the day that his close friends at the school graduate.

On August 15, 2005, E.P. told another student (the “informing student”)

about the notebook and supposedly showed him some of its contents. The

informing student told a teacher about the notebook. After waiting a day, the

teacher told Assistant Principal Jesus Aguirre (“Aguirre”) about the notebook.

Aguirre called the informing student into his office and questioned the student

about the conversation with E.P. Aguirre then decided to call E.P. into his office

for a meeting.

During the meeting, Aguirre told E.P. that students had complained to

him that E.P. was writing threats in his diary. E.P. denied these accusations

and instead explained that he was writing a work of fiction. Aguirre asked E.P.

for permission to search his backpack and E.P. consented. Aguirre discovered

the notebook and briefly reviewed its contents. E.P. continued to maintain that

the notebook was a work of fiction.

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No. 06-50709

Aguirre called E.P.’s mother to tell her about the notebook. She too

maintained that the notebook was fiction, and explained that she also engaged

in creative writing. Aguirre informed her that he would read the notebook in

detail and “call her the next day with an administrative decision based on the

safety and security of the student body.” Aguirre then released E.P. back into

the general student population to complete the school day. Aguirre took the

notebook home and read it several times. He found several lines in the notebook

alarming and ultimately determined that E.P.’s writing posed a “terroristic

threat” to the safety and security of the students and the campus.

As a “terroristic threat,” Aguirre determined that the writing violated the

Student Code of Conduct. He therefore suspended E.P. from school three days

and recommended that he be placed in the school’s alternative education

program at KEYS Academy.1 E.P.’s parents unsuccessfully appealed the

decision to the Principal of the Montwood High School, the Assistant

Superintendent of Instructional Services, and finally to the School Board’s

designated committee. To prevent E.P. from being transferred to KEYS

Academy, E.P.’s parents placed him in private school, where he completed his

sophomore year without incident.

E.P.’s mother explained that the decision to transfer E.P. to a private

school was based upon the concern that the school’s finding that E.P. made a

terroristic threat and violated the Student Code of Conduct would become part

of his permanent school record and follow him to any other district to which he

might transfer. Such a record would require that E.P. attend an alternative

education program, like that at KEYS Academy, and deprive E.P. of the ability

to participate in musical education programs. E.P.’s mother worried that this

1

The day after reading the notebook, Aguirre called the El Paso Police Department and

had E.P. arrested. After reviewing the case, the El Paso County Attorney’s Office declined to

prosecute.

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No. 06-50709

record would affect E.P.’s ability to gain admission to the college of his choice,

especially because he intends to major in music while attending college. Thus,

in an effort to ensure that E.P. can return to Montwood High School with a clean

record, E.P.’s parents filed the instant lawsuit in January 2006.

E.P.’s parents sued SISD under 42 U.S.C. § 1983 alleging violations of

E.P.’s First, Fourth, and Fourteenth Amendment rights and analogous

provisions under the Texas Constitution. E.P.’s parents also moved to enjoin the

School District: from placing him at KEYS Academy, from informing third

parties that E.P. had planned to commit violence, from discussing the contents

of his writing without his consent, and from retaining any reference to the

infraction in his school record. On May 2, 2006, the district court granted a

preliminary injunction on First Amendment grounds. The court held that under

the Supreme Court’s Tinker standard, the evidence was insufficient to prove that

SISD acted upon a reasonable belief that disruption would occur. See Tinker v.

Des Moines Indep. Comty. Sch. Dist., 393 U.S. 503, 514 (1969) (holding that

school officials must justify their decision to punish student speech by showing

“facts which might reasonably have led school authorities to forecast substantial

disruption of or material interference with school activities.”).

On appeal, the School District challenges the preliminary injunction. We

review the district court’s decision to grant a preliminary injunction for an abuse

of discretion; the legal principles upon which the decision is grounded, however,

are reviewed de novo. Women’s Med. Ctr. of Nw. Houston v. Bell, 248 F.3d 411,

418–19 (5th Cir. 2001).

II.

As a threshold matter, SISD argues that the district court erred in finding

that E.P. and his parents have standing to bring this lawsuit. SISD maintains

that under our precedent, a student does not have standing to bring a federal

action challenging his transfer to an alternative education program. In Nevares

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No. 06-50709

v. San Marcos Consolidated Independent School District, the student plaintiff

challenged the constitutionality of a Texas statute which permitted his

assignment to an alternative education program. 111 F.3d 25, 26 (5th Cir.

1997). He argued that because the statute permitted him to be transferred

without a hearing, it deprived him of a protected property or liberty interest. Id.

After noting that the student had not been denied access to public education,

even temporarily, we concluded that no protected interest is implicated in the

decision to transfer a student into an alternate education program and dismissed

the case for lack of standing. Id. As the district court correctly noted, Nevares

is not applicable here. The Ponces’ standing does not rest on a claim that E.P.’s

due process rights would be violated by the transfer to KEYS Academy. Instead,

the Ponces challenge the ability of the school to punish E.P. based on the content

of his journal -- whether the form of that punishment was a suspension, a

notation in his permanent record, or a school transfer -- because, they argue,

such punishment would violate E.P.’s First Amendment rights. Accordingly, the

Ponces had standing to pursue a preliminary injunction to prevent SISD from

imposing a punishment.

III.

A preliminary injunction requires that “the applicant . . . show (1) a

substantial likelihood that he will prevail on the merits, (2) a substantial threat

that he will suffer irreparable injury if the injunction is not granted, (3) his

threatened injury outweighs the threatened harm to the party whom he seeks

to enjoin, and (4) granting the preliminary injunction will not disserve the public

interest.” Lake Charles Diesel, Inc. v. General Motors Corp., 328 F.3d 192,

195–96 (5th Cir. 2003). Our analysis begins—and ends—with the first

requirement. There is not, on the record before us, a substantial likelihood that

the Ponces can succeed on the merits of their First Amendment claim.

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No. 06-50709

We are guided by the Supreme Court's recent decision in Morse v.

Frederick, 127 S.Ct. 2618 (2007). But before applying Morse to the case before

us, some extended analysis of the case and particularly of Justice Alito’s

concurring, and controlling, opinion is necessary. That concurring opinion

appears to have two primary purposes: providing specificity to the rule

announced by the majority opinion, and, relatedly, ensuring that political speech

will remain protected within the school setting. Taken together, the majority

and concurring opinions in Morse explain well why the actions of the school

administrators here satisfy the requirements of the First Amendment.

In Morse, a student at Juneau-Douglas High School unfurled a 14-foot

banner bearing the phrase "BONG HiTS 4 JESUS" during a school-sanctioned

and supervised event. Id. at 2622. The principal confiscated the banner and

suspended Frederick. Id. Frederick filed suit under 42 U.S.C. § 1983 against

the principal and the School Board, claiming that the principal's actions violated

his First Amendment rights. Id. at 2623. Applying the standard first set out

in Tinker v. Des Moines Independent Community School District, 393 U.S. 503

(1969), the Ninth Circuit agreed, concluding that the school punished Frederick

without demonstrating that his speech gave rise to a risk of substantial

disruption. See Frederick v. Morse, 439 F.3d 1114, 1123 (9th Cir. 2006).

The Supreme Court reversed, holding that Frederick's suspension violated

no constitutional right. In reaching this conclusion, the Court expressly declined

to apply the Tinker standard of "risk of substantial disturbance" to drug speech.

See Morse, 127 S.Ct. at 2627. The Court’s refusal to apply Tinker rested on the

relative magnitude of the interest it considered to be at stake, viz., prevention

of the "serious and palpable" danger that drug abuse presents to the health and

well-being of students. Id. at 2629. Because the already significant harms of

drug use are multiplied in a school environment, the Court found “that deterring

drug use by schoolchildren is an ‘important–indeed, perhaps compelling’

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No. 06-50709

interest,” id. at 2628 (quoting Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 661

(1995)), not arising from an "undifferentiated fear or apprehension of

disturbance" or "a mere desire to avoid the discomfort and unpleasantness that

always accompany an unpopular viewpoint," as was the case in Tinker. 393 U.S.

at 508, 509. Accordingly, on the Court’s reasoning, school administrators need

not evaluate the potential for disruption caused by speech advocating drug use;

it is per se unprotected because of the scope of the harm it potentially foments.

The Court’s evaluation of the harm led to an evidently potent remedy. To

the extent that preventing a harmful activity may be classified as an

“important–indeed, perhaps compelling interest,” speech advocating that activity

may be prohibited by school administrators with little further inquiry. But the

Court did not provide a detailed account of how the particular harms of a given

activity add up to an interest sufficiently compelling to forego Tinker analysis.

As a result of this ambiguity, speech advocating an activity entailing arguably

marginal harms may be included within the circle of the majority’s rule.

Political speech in the school setting, the important constitutional value Tinker

sought to protect, could thereby be compromised by overly-anxious

administrators.

It is against this background of ambiguity that Justice Alito’s concurring

opinion opens. It begins by making two interpretive points about the majority

opinion:

(a) [the majority opinion] goes no further than to hold that a public

school may restrict speech that a reasonable observer would

interpret as advocating illegal drug use and (b) it provides no

support for any restriction of speech that can plausibly be

interpreted as commenting on any political or social issue, including

speech on issues such as the wisdom of the war on drugs or of

legalizing marijuana for medicinal use.

Morse, 127 S.Ct. at 2636 (Alito, J., concurring) (internal citation and quotation

marks omitted). By making these points, the concurring opinion makes clear

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No. 06-50709

from the outset that the majority is focused on the particular harm to students

of speech advocating drug use; the concurring opinion is not itself announcing

a general rule defining the requirements for applying Tinker whenever the

safety of the school population is threatened in some other context. On this

reading, the majority opinion “does not hold that the special characteristics of

the public schools necessarily justify any other speech restrictions.” Id. at 2637

(emphasis added). But importantly, Justice Alito’s concurring opinion goes on

to expound with further clarity why some harms are in fact so great in the

school setting that requiring a school administrator to evaluate their disruptive

potential is unnecessary. In doing so it provides the specificity necessary for

determining the harms that are so serious as to merit the Morse analysis.

The central paragraph of Justice Alito’s concurring opinion states:

[A]ny argument for altering the usual free speech rules in the public

schools cannot rest on a theory of delegation but must instead be

based on some special characteristic of the school setting. The

special characteristic that is relevant in this case is the threat to the

physical safety of students. School attendance can expose students

to threats to their physical safety that they would not otherwise

face. Outside of school, parents can attempt to protect their children

in many ways and may take steps to monitor and exercise control

over the persons with whom their children associate. Similarly,

students, when not in school, may be able to avoid threatening

individuals and situations. During school hours, however, parents

are not present to provide protection and guidance, and students'

movements and their ability to choose the persons with whom they

spend time are severely restricted. Students may be compelled on a

daily basis to spend time at close quarters with other students who

may do them harm. Experience shows that schools can be places of

special danger.

Id. at 2638 (emphasis added). On Justice Alito’s analysis, the heightened

vulnerability of students arising from the lack of parental protection and the

close proximity of students with one another make schools places of “special

danger” to the physical safety of the student. Id. And it is this particular threat

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that functions as the basis for restricting the First Amendment in schools:

“school officials must have greater authority to intervene before speech leads to

violence.” Id. The limits of that authority are often, but not always, adequately

determined by Tinker, which “in most cases . . . permits school officials to step

in before actual violence erupts.” Id. As such, Tinker will not always allow

school officials to respond to threats of violence appropriately.

The concurring opinion therefore makes explicit that which remains latent

in the majority opinion: speech advocating a harm that is demonstrably grave

and that derives that gravity from the “special danger” to the physical safety of

students arising from the school environment is unprotected. But, because this

is a content-based regulation, the concurring opinion is at pains to point out that

the reasoning of the court cannot be extended to other kinds of regulations of

content, for permitting such content-based regulation is indeed at “the far

reaches of what the First Amendment permits.” Id. Instead, Tinker’s focus on

the result of speech rather than its content remains the prevailing norm. The

protection of the First Amendment in public schools is thereby preserved.

The constitutional concerns of this case—focusing on content—fall

precisely within the student speech area demarcated by Justice Alito in Morse.

That area consists of speech pertaining to grave harms arising from the

particular character of the school setting. The speech in question here is not

about violence aimed at specific persons,2 but of violence bearing the stamp of a

well-known pattern of recent historic activity: mass, systematic school-shootings

2

Two post-Morse cases are instructive on this point. In Boim v. Fulton County School

District, 494 F.3d 978 (11th Cir. 2007) and Wisniewski v. Board of Education of the Weedsport

Central School District, 494 F.3d 34 (2d Cir. 2007), threats of violence to individual teachers

were analyzed under Tinker. Such threats, because they are relatively discrete in scope and

directed at adults, do not amount to the heightened level of harm that was the focus of both

the majority opinion and Justice Alito’s concurring opinion in Morse. The harm of a mass

school shooting is, by contrast, so devastating and so particular to schools that Morse analysis

is appropriate.

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No. 06-50709

in the style that has become painfully familiar in the United States. LaVine v.

Blaine Sch. Dist., 257 F.3d 981, 987 (9th Cir. 2001) (“[W]e live in a time when

school violence is an unfortunate reality that educators must confront on an all

too frequent basis.”). Such shootings exhibit the character that the concurring

opinion identifies as particular to schools. As the concurring opinion points out,

school attendance results in the creation of an essentially captive group of

persons protected only by the limited personnel of the school itself. See Morse,

127 S.Ct. at 2638. This environment makes it possible for a single armed

student to cause massive harm to his or her fellow students with little restraint

and perhaps even less forewarning. Indeed, the difficulty of identifying warning

signs in the various instances of school shootings across the country is intrinsic

to the harm itself. Cf. LaVine, 257 F.3d at 987 (“After Columbine, Thurston,

Santee and other school shootings, questions have been asked how teachers or

administrators could have missed telltale ‘warning signs,’ why something was

not done earlier and what should be done to prevent such tragedies from

happening again.”). We therefore “find it untenable in the wake of Columbine

and Jonesboro that any reasonable school official who came into possession of

[E.P.’s diary] would not have taken some action based on its violent and

disturbing content.” Doe v. Pulaski County Special Sch. Dist., 306 F.3d 616, 626

n. 4 (8th Cir. 2002). Our recent history demonstrates that threats of an attack

on a school and its students must be taken seriously.3

3

With respect to the reasonableness of an administrator’s actions, it is of great import that

the Morse Court’s opinion specifically did not turn on Frederick’s motive for displaying the banner,

which was that “he just wanted to get on television.” Morse, 127 S.Ct. at 2625. Instead, the Court

considered how the banner would likely be interpreted by its viewers, id. at 2624-25, finding that it

was reasonable for the principal to conclude that “failing to act would send a powerful message to

the students in her charge ... about how serious the school was about the dangers of illegal drug use.”

Id. at 2629. Thus here, where E.P. contended that his writings were mere fiction that posed no real

threat, it was reasonable for Aguirre to conclude that failing to respond to E.P.’s diary would not

only place E.P. and other students at risk of physical danger if the intent expressed in the diary was

actualized, but would also send a message to E.P. and to the informing student that the school

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No. 06-50709

Lack of forewarning and the frequent setting within schools give mass

shootings the unique indicia that the concurring opinion found compelling with

respect to drug use. If school administrators are permitted to prohibit student

speech that advocates illegal drug use because “illegal drug use presents a grave

and in many ways unique threat to the physical safety of students,” Morse, 127

S.Ct. at 2638, then it defies logical extrapolation to hold school administrators

to a stricter standard with respect to speech that gravely and uniquely

threatens violence, including massive deaths, to the school population as a

whole.4

Of course, we do not remotely suggest that “schools can[] expel students

just because they are ‘loners,’ wear black and play video games.” LaVine, 257

F.3d at 987. We do hold, however, that when a student threatens violence

against a student body, his words are as much beyond the constitutional pale as

yelling “fire” in crowded theater, see Schenck v. United States, 249 U.S. 47, 52

(1919), and such specific threatening speech to a school or its population is

unprotected by the First Amendment. School administrators must be permitted

to react quickly and decisively to address a threat of physical violence against

administration would tolerate violent threats against the student body. Aguirre did not punish E.P.

for speech because it was in conflict with his vision of the school’s “educational mission,” id. at 2637

(Alito, J., concurring), nor out of a “mere desire to avoid ... discomfort and unpleasantness.” Tinker,

393 U.S. at 509. He acted in response to a danger that, like drug use, “is far more serious and

palpable.” Morse, 127 S.Ct. at 2629.

4

And in fact, the dissenting justices in Morse presumably would agree that the content

of E.P.’s speech is unprotected. See Morse, 127 S.Ct. at 2644 (Stevens, J., dissenting) (“In my

judgment, the First Amendment protects student speech if the message itself neither violates

a permissible rule nor expressly advocates conduct that is illegal and harmful to students.”)

(emphasis added). The expressly violent content of E.P.’s diary is not the kind of political

speech that “implicat[es] concerns at the heart of the First Amendment.” Id. at 2626. “The

students [in Tinker] sought to engage in political speech, using the armbands to express ‘their

disapproval of the Vietnam hostilities and their advocacy of a truce, to make their views

known, and, by their example, to influence others to adopt them.’” Id. (quoting Tinker, 393 U.S.

at 514). In contrast, E.P.’s diary is much more characteristic of threat speech, which the

Supreme Court has held that the government may proscribe without offending the First

Amendment. See Watts v. United States, 394 U.S. 705 (1969).

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their students, without worrying that they will have to face years of litigation

second-guessing their judgment as to whether the threat posed a real risk of

substantial disturbance.

IV.

Because we conclude that no constitutional violation has occurred, our

inquiry ends here. But cf. LaVine, 257 F.3d at 992 (finding no constitutional

violation in emergency expulsion, but holding that school could not maintain

negative documentation in student’s file). Our role is to enforce constitutional

rights, not “to set aside decisions of the school administrators which [we] may

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

308, 326 (1975).5 Because the journal’s threatening language is not protected by

the First Amendment, SISD’s disciplinary action against E.P. violated no

protected right and, accordingly, the Ponces have failed to show that they have

a “substantial likelihood” of success on the merits.

Accordingly, the preliminary injunction is VACATED and the case is

REMANDED to the district court for further proceedings not inconsistent with

this holding.

VACATED AND REMANDED.

5

And in this case, no such action would be necessary. Counsel for SISD represented

at oral argument that transfer to the alternative education program is rarely permanent, and

that the school would continue to evaluate E.P. to determine when he could be readmitted

safely to Montwood High School.

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