In the past year, several parents have called to ask whether the First Amendment allows public schools to suspend or expel their children (with and without IEPs) for making written, oral, or online threats of violence toward their school building, other students, and school personnel.
The answer is YES.
It is long-established in law that the Constitution doesn’t protect “true threats of violence.” See Virginia v. Black, 538 U.S. 343, 359-360 (2003). The use of the word “true” differentiates between silly jests and hyperbole that don’t communicate a real possibility that violence will follow (e.g., “I’ll just kill you if you don’t bring your applesauce cake.”) and serious expressions that convey the message that the speaker intends to commit an act of unlawful violence. There are good reasons for this rule - threats inflict harm, have little or no social value, and may cause serious emotional stress for the person threatened and those who care about the person.
In 2015, the U.S. Supreme Court wrote that whether a threat is a “true threat” doesn’t depend on the mental state of the person who made it, but on what the statement conveys to the person who receives it. Elonis v. United States, 575 U. S. 723, 733 (2015). In 2023, the U.S. Supreme Court addressed the question: “Where is the line between true threats of violence that are punishable as crimes and free speech protected by the First Amendment? By a 7-2 majority, the Court decided that (1) true threats are not free speech if the person who made them recklessly disregarded a substantial risk that they would be viewed as threatening violence, and (2) whether the threat subjects the receiver to the fear of violence and to the kinds of disruption that fear engenders. See Counterman v. Colorado, 600 U.S. 66 (2023).
In D.J.M. v. Hannibal Public School District #60, the Eighth Circuit applied the Tinker "substantial disruption standard" (see Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969)) to off-campus student speech where it is reasonably foreseeable that the speech will reach the school community and cause a substantial disruption to the educational setting. 647 F.3d 754, 766 (8th Cir. 2011). In that case, while at home, the student, D.J.M. sent instant messages to a school friend, threatening to obtain a gun and shoot students at his school. D.J.M.'s friend reported the instant messages to the school principal, and D.J.M. was suspended. The Eighth Circuit upheld the school's action, finding that D.J.M.'s speech was not protected by the First Amendment because it was "reasonably foreseeable" that it "would be brought to the attention of school authorities and create a risk of substantial disruption within the school environment," and his speech actually caused substantial disruption. See 647 F.3d 754, 766 (8th Cir. 2011).
For an Iowa case in point, we need look no further than a 2021 decision of the Iowa Department of Education that upheld a school board’s expulsion of a student with an IEP who sent out a Snapchat message stating that he was going to shoot up the school. 30 D.o.E. App. Dec. 074. The receiver forwarded it to other students who continued to pass it on. When a parent was shown the message, the parent forwarded it to the local police chief. The police chief forwarded the message to the school superintendent and to the original sender’s mother. Although the school sent out a public statement that there was no threat and school was not canceled, 86 students were absent the next day.
