John Doe v. Pulaski County Spec. Sch. Dist., 092502 FED8, 01-1048

Docket Nº:01-1048
Party Name:John Doe v. Pulaski County Spec. Sch. Dist.
Case Date:January 16, 2002
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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John Doe, a minor, by his mother and next friend, Jane Doe, Appellee,

v.

Pulaski County Special School District, Appellant.

No. 01-1048

United States Court of Appeals FOR THE EIGHTH CIRCUIT

[PUBLISHED]

Submitted: January 16, 2002

Filed:

September 25, 2002

Appeal from the United States District Court for the Eastern District of Arkansas.

Before WOLLMAN,1 Chief Judge, HEANEY, McMILLIAN, BOWMAN, LOKEN, HANSEN, MORRIS SHEPPARD ARNOLD, MURPHY, BYE, and RILEY, Circuit Judges, En banc.

HANSEN, Circuit Judge.

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 seventh- grade 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 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.

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.

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 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...

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