Ponce v. Socorro Independent School Dist.

• Decision Date: 20 November 2007
• Docket Number: No. 06-50709.,06-50709.
• Citation: 508 F.3d 765
• Parties: 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.
• Court: U.S. Court of Appeals — Fifth Circuit

508 F.3d 765

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.

No. 06-50709.

United States Court of Appeals, Fifth Circuit.

November 20, 2007.

Stephen Gordon Peters (argued), El Paso, TX, for Plaintiffs-Appellees.

Ken Kelly Slavin (argued), Kemp Smith, Henry C. Hosford, Baskind & Hosford, El Paso, TX, for 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, ___ U.S. ___, 127 S.Ct. 2618, 168 L.Ed.2d 290 (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.

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.

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 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, 89 S.Ct. 733, 21 L.Ed.2d 731 (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 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.

We are guided by the Supreme Court's recent decision in Morse v. Frederick, ___ U.S. ___, 127 S.Ct. 2618, 168 L.Ed.2d 290 (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...