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Scary Drawings—Difficult Decisions Scary Drawings—Difficult Decisions

“This case highlights the difficulties of school administrators charged to balance their duty to provide a safe school with the constitutional rights of individual students when violence in schools is a serious concern,” wrote a federal appellate court judge in a Louisiana case, the appeal from which, the Supreme Court recently declined to hear. At the age of fourteen, and in the privacy of his home, Adam Porter drew a picture of his school, East Ascension High School, under siege. The crude drawing depicted a gasoline tanker truck, a missile launcher, a helicopter and armed commandoes attacking the school. Adam also wrote obscenities and racial epithets directed at characters in the drawing and depicted a brick being thrown at the principal, Conrad Braud. Adam showed the sketch to family members, including his mother, then stored it in a home closet.

Andrew Breen, Adam’s brother, found the sketchpad two years later and took it to his school, Galvez Middle School. On his school bus ride home, Andrew showed a benign drawing he had made in the pad to a friend. The friend discovered Adam’s siege drawing and took it to the bus driver. The driver confiscated the pad and took it to the middle school principal and the in-school suspension coordinator the next day. The school officials questioned Andrew, searched his backpack and suspended him for possessing the drawing on school grounds. Andrew admitted during questioning that Adam had drawn the picture.

The middle school officials then sent the sketchpad to a high school resource officer, Robert Rhodes, who showed the drawing to principal Braud and assistant principal Gwynne Pecue.

Braud and Pecue immediately interviewed Adam, who admitted that he had drawn the sketch two years earlier. The school officials then searched Adam’s book bag and his person and found a box cutter with a half-inch blade exposed. The officials also found notebooks in Adam’s bag containing references to death, drugs and sex; depictions of gang symbols; and a fake ID.

Adam claimed that he used the box cutter in his after-school job at a local grocery store. He later explained that the death references were part of a homework assignment, and that the “gang symbols” referred only to a group of young men with whom Adam associated. According to the court, the principal did not consider the group to be a threat. The school authorities suspended Adam and had his mother take him home.

Shortly thereafter, Officer Rhodes obtained a warrant to arrest Adam for “terrorizing” the high school, and Adam was held in jail for four nights on charges of terrorizing the school and carrying an illegal weapon.

At the suggestion of the Ascension Parish School Board’s hearing officer, Adam’s mother waived a suspension hearing and enrolled Adam in an alternative school. A year later he re-enrolled in Ascension, but dropped out in March 2002.

Mary LeBlanc, who is Adam and Andrew’s mother, filed a federal lawsuit against the Ascension Parish School Board and the school officials involved in the boys’ suspensions. The suit alleged violations of the First, Fourth, and Eighth amendments and a denial of equal protection and procedural due process and rights. The defendants moved to dismiss the suit, asserting that no constitutional violation could be shown as a matter of law and claiming the defense of qualified immunity.

The district court, on the defendants’ motion, dismissed the lawsuit, granting the defendants qualified immunity. Adam appealed the decision to the Fifth Circuit Court of Appeals.

The Fifth Circuit court issued a lengthy opinion deciding the matter. It concluded that a fact issue remained as to whether the school infringed the older son’s First Amendment rights. The Court ruled that the district court erred in finding Adams’s First Amendment rights were not violated, but ruled that school officials were entitled to immunity.

“We must decide whether officials within the Ascension Parish School District responded appropriately in removing Adam Porter from East Ascension High School and requiring him to enroll in an alternative school for a sketch depicting a violent siege on the EAHS that he had drawn two years earlier, and was accidentally taken to school by his younger brother.” The court concluded that, because Adam’s drawing was composed and stored at home, where it was displayed only to members of his own household, and was accidentally taken to school, the First Amendment protected the drawing. The court also said that the drawing was neither speech directed at the campus nor a purposefully communicated true threat and that the school officials acted improperly in disciplining the brothers.

The court, however, went on to say that the school officials were entitled to qualified immunity because “a reasonable school official facing this question for the first time would find no ‘pre-existing’ body of law from which he could draw clear guidance and certain conclusions. Rather, a reasonable school official would encounter a body of case law sending inconsistent signals as to how far school authority to regulate student speech reaches beyond the confines of the campus.”

The court further said that First Amendment law as applied to off-campus student speech is “unsettled” with respect to drawings inadvertently brought on campus by others. It concluded that Adam’s right to First Amendment protection in the case could not be deemed “clearly established,” but if the right had been clearly established, the defendants could have been liable for violating Adam’s rights.

The Supreme Court gave no reason for declining to hear Adam’s appeal of the Fifth Circuit’s ruling.

See Porter v. Ascension Parish, 393 F.3d 608 (2004)

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