Students’ Rights to Write: Following John Lovas’s Lead
Robert E. Crafton
Slippery Rock University
Chair, NCTE Standing Committee Against Censorship

1. Criminalizing Writing
In the year before he died, John Lovas expressed his alarm over what he termed the “criminalizing of writing.” In entry 362, dated 29 May, 2004, of “A Writing Teacher’s Blog,” Lovas recounts a series of incidents in which students were arrested by the civil authorities or disciplined by their schools’ administrations for writing poems, short stories or personal essays that either expressed dark, violent and/or suicidal thoughts, or, in other instances, that criticized Bush administration policies.  In some cases, associated faculty members were also disciplined or fired.  A few examples:

(1) In two cases, that of George T. in San Jose and of a 17-year old Humboldt Senior High School student in St. Paul, Minnesota, students were arrested for expressing “dark” and “violent” thoughts in poems and short stories they had written.  George T., then 15, had shared a poem entitled “Faces” with two fellow students and asked if the school had a poetry club.  In the poem, he expresses frustration over his lack of opportunity:

      Who are these faces around me?
      Where did they come from?
      They would probably become the
      next doctors or loirs or something.  All
      really intelligent and ahead in their
      game.  I wish I had the choice on
      what I want to be like they do.

This frustration turns to animosity:
                                         They
     make me want to puke.  For I am
     Dark, Destructive & Dangerous.  I
     slap on my face of happiness but
     Inside I am evil!! For I can be
     the next kid to bring guns to
     kill students at school.  So
     Parents watch your children cuz I’m BACK!! (qtd. in In re George T.)

George T. was arrested for making criminal threats, incarcerated, tried and convicted, a conviction that the California Supreme Court eventually set aside (see In re George T., filed 22 July 2004).  In the St. Paul case, the pieces of writing, found on a school computer, contained references to “suicide, death to other students, and a gun” (Prather).  In a letter sent home to parents following this student-author’s arrest, Principal John Bianchi wrote, "While no threats were made against individuals or groups of people, the poetry and stories contained language that is vulgar, profane and violent" (qtd. in Prather).  The student could be charged either with making terroristic threats, a felony, or disorderly conduct, a misdemeanor. The decision to prosecute is up to the county attorney, as Paul Schnell, a spokesperson for the St. Paul police, notes:

"It's one of those difficult issues. What is the difference between the freedom-of-speech issues and what is the line that constitutes threats and a danger?  We as the police department are not the sole judge of that. From this point in time, it becomes the interpretation of the prosecutor's office." (qtd. in Prather)   
 
(2)  Two students were expelled from San Francisco’s Academy of Art University in the fall of 2003 for writing pieces that the administration found troublesome; in addition, one of their instructors was also terminated, presumably for assigning a David Foster Wallace short story that precipitated the response in one case.  In the first instance, the student was summarily dismissed after being interviewed by police; in the other case, involving a “meta tale” including masturbating elves, sexual fantasies involving the instructor, a threatened suicide (the author writes that “she will kill herself if she doesn’t get an ‘A’ on this project”) and a red splotch identified as the author’s blood, the student was denied readmission for the spring term when she refused to sign a behavioral contract banning her from writing about suicide and from including sexually explicit material in her work (Brahinsky).  She was also ordered to seek counseling as a condition of returning to school, a condition she also refused.  Academy vice president Sue Rowley cited safety concerns in justifying the expulsions. With regard to the expulsion of the first student, she commented, "Imagine you are in a post-Columbine era and you have reason to believe there could be a disaster.... To try to avert a crisis, you want to get that young man or young woman home as quickly as possible."  Of the second, “We don't feel like it's acceptable to threaten a teacher with suicide” (qtd. in Brahinsky).

(3) Finally, at New Mexico’s Rio Rancho High School, creative writing classes were cancelled, the poetry club disbanded, and the club’s faculty advisor was fired in the spring of 2003 after one of the students read a poem critical of the Iraq war, first at a local Barnes Noble Bookstore, and thereafter at school.  In addition, antiwar posters made by the students were removed and the contracts of several art teachers were not renewed for the following year (see Hill).  In the case of the student poet, “A school military liaison and the high school principal accused the girl of being ‘un-American’ because she criticized the war in Iraq and the Bush administration's failure to give substance to its ‘No child left behind’ education policy” (Hill).  The principal also ordered the student’s mother, a teacher at the school, to destroy her daughter’s poetry.     

Lovas noted these and other similar incidents in his blog, including links to newspaper articles detailing each of these incidents.  He also, as chair of NCTE’s Resolution Committee, drafted the “Resolution on Student’s Right of Expression,” http://www.ncte.org/about/over/positions/category/profcon/118784.htm  which was presented at the fall, 2004, business meeting in Indianapolis.  The resolution calls on NCTE to convene a task force to prepare guidelines on “troubling and difficult student expression,” guidelines which would:

• reaffirm the rights of expression by students at all levels in a variety of media;
• acknowledge the need for educators to develop competencies in responding to such expression in ways that ensure safety, welfare, and respect for students and others; and,
• encourage educators and school authorities to develop written procedures for logical and prudent interventions when student expression may warrant an intervention. (“Resolution on Students’ Right of Expression”)

Any such set of guidelines will need to consider the First Amendment rights of students and the possible limits that pertain, especially given our post-Columbine, post-9/11 concerns for public safety; equally germane are issues relating to institutional responsibility and liability and to the limits that can be placed on the expression of dissenting views at a time of war when U.S. soldiers stand daily in harm’s way.  These are, of course, classic First Amendment issues, some with established bodies of case law and multiple Supreme Court decisions behind them; in other instances, the legal outlines are just beginning to emerge in state and district courts, in decisions like In re George T. or Schieszler v. Ferrum College.   Telling the difference between terroristic threats and the dark and brooding thoughts of 21st- century adolescent poets, between threatened acts of suicide/genuine cries for help and figures of speech can be difficult, so it seems, at least for school authorities in San Jose, San Francisco, and St. Paul.  The responses to cases like those above, at least in the ways they are presented in the newspapers, seem perfectly inappropriate, something like a worst-case scenario.  Still, determining how far student rights extend and where limits appear and how we should respond to “troubling and difficult” student writing, writing on the borderline, is a real concern.

2. Political Speech
Instances like that in New Mexico seem, at the risk of sounding reductive, relatively easy to answer.  The Supreme Court has clearly affirmed students’ First Amendment rights in West Virginia v. Barnette and Tinker v. Des Moines, among other decisions.  West Virginia v. Barnette, a World War II-era ruling, struck down a West Virginia Board of Education requirement that students recite the Pledge of Allegiance on a daily basis.  In that decision, Justice Robert Jackson wrote, “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”  In Tinker v. Des Moines, a Vietnam-era decision, the court ruled that Tinker could wear a black armband in school in protest of government actions in Southeast Asia.  In the words of the majority decision, students do not “shed their rights to freedom of speech or expression at the schoolhouse gate,” nor can they be punished for expressing personal opinions on school grounds, whether “in the cafeteria, or on the playing field, or on the campus during authorized hours” so long as such expression will not “substantially interfere with the work of the school or impinge on the rights of other students.” 

Presumably, students are not permitted to stand atop their desks in Algebra I and loudly denounce government actions with which they disagree.  On the other hand, reading an anti-war poem as part of morning announcements, in a timeslot devoted to the reading of original student poetry, seems to foster, not impede, the mission of public education to create a thoughtful and engaged citizenry.  School authorities may not agree with the position being espoused—they may even find it offensive—but they may not ban such speech for those reasons, as other decisions, like Texas v. Johnson, which protects flag desecration, clearly demonstrate.

That said, it is true that restrictions apply, that students’ rights “are not automatically coextensive with the rights of adults in other settings” (Bethel School District No. 403 v. Fraser), a point emphasized with regard to school-sponsored publications in Hazelwood v. Kuhlmeier.  There are differences between merely tolerating student speech that happens to occur on campus—the issue in Tinker—and that expressed in “school-sponsored publications, theatrical productions, and other expressive activities that students, parents, and members of the public might reasonably perceive to bear the imprimatur of the school” (Hazelwood v. Kuhlmeier).  As the majority decision puts it,

Educators are entitled to exercise greater control over this second form of student expression to assure that participants learn whatever lessons the activity is designed to teach, that readers or listeners are not exposed to material that may be inappropriate for their level of maturity, and that the views of the individual speaker are not erroneously attributed to the school.  Hence, a school may in its capacity as publisher of a school newspaper or producer of a school play “disassociate itself,” [Fraser] not only from speech that would “substantially interfere with [its] work . . . or impinge upon the rights of other students,” [Tinker] but also from speech that is, for example, ungrammatical, poorly written, inadequately researched, biased or prejudiced, vulgar or profane, or unsuitable for immature audiences.

The administration of Rio Rancho High School, in this regard, might review the pieces to be read on the morning announcements for their grammaticality and their poetic merit, for salacious content and/or racially insensitive remarks, and the administration might legitimately reject some as unworthy of “publication.”  Beyond questions of quality, however, so long as it is clear that the opinions expressed are those of the speaker and may not be attributed to the school or its administration—the stuff of common disclaimers—we seem to have met the terms set down in Hazelwood.

Clearly, the Hazelwood decision gives administrations interested in controlling student expression, especially expression that challenges the administration’s own values and beliefs and opinions, possible reasons for doing so.  Opposing positions may always seem naive, immature, or inadequately researched, especially to those who claim to know better.  Still, any set of guidelines considering students’ rights to expression should begin by acknowledging the fundamental principles set down in decisions like Tinker, West Virginia v. Barnette, and the possible limits introduced in Hazelwood.  Taken together, such rulings strongly support students’ First Amendment rights and require administrations, as agents of the state, to tolerate student expression that neither materially nor substantially disrupts learning activity.  Any refusal to “publish” student opinion must be made on pedagogical, not political grounds, to the degree that such matters can be separated one from the other (the former seems to turn on questions of form—matters of grammar, readability, adequacy of research, compliance with ethical journalistic practices—as opposed to the latter’s emphasis on content considerations, the positions espoused in the piece) and with regard to the character of the intended audience.  Even here, however, we need to recognize that school authority is limited to school-sponsored activities and not simply to the expression of ideas and opinions that happen to occur on campus.  With regard to off-campus activity, the reading, for instance, of a poem at a local bookstore, the administration has no authority.

3. Terroristic Threats
Cases like those Lovas cites, that of George T. and of the St. Paul teenager, or, more recently, of a Beaver Riverside School District (Pennsylvania) middle-school rapper, students who have been arrested and charged with making terroristic threats, represent another level of problem, of how to respond to writing that suggests a violent potential.  Schools must take such threats seriously, and schools have responded, with regard, for instance, to the threats that students face from drugs and weapons, by screening students and by initiating zero-tolerance policies.  While well intended, such policies have problems, having led to the suspension of students who carried a single aspirin into school or who happened to pack the family’s sewing scissors in their backpack along with an unfinished art project.  These responses to technical violations of school policies always seem overreactions, arbitrary, foolish, precisely because they fail to consider questions of intent, to consider context.  A single aspirin violates the letter, not the spirit, of the school’s anti-drug policies; the child is suspended.  The arrest of teenagers in San Jose, St. Paul, and Beaver, Pennsylvania, for including violent images and ideas in their poems, short stories, and rap songs seem a similar overreaction and for many of the same reasons.

All writing is rhetorical in construction and must be considered in light of the context in which it is produced, a principle which is, at bottom, central to the California Supreme Court’s reversal of George T.’s conviction.  In short, according to Article 422 of the California Penal Code, a statute modeled closely on the court’s ruling in People v. Toledo (2001), to be considered a criminal threat, an act, whether written, oral, or electronic, must meet five conditions:

Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement, made verbally [or] in writing . . . is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it was made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety, shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison.  (qtd. in In re George T.)   

In other words, the person must (1) threaten another with bodily harm, in (2) a statement the person being addressed takes as a threat, (3) the threat stated in “so unequivocal, unconditional, immediate, and specific” a manner as to suggest the threat is serious and its execution immediate (that is, a “clear and present” danger), (4) promoting in the person threatened a sustained fear for his/her safety, a fear which is (5) reasonable.  In this case, George T’s poem, according to the court, did not prove so “unequivocal, unconditional, immediate, and specific” as to fall under the definition of a “criminal threat.”  Poetic statements, because they are open to a variety of interpretations, are inherently ambiguous, hence equivocal ; when considered in context, the lack of any history of animosity between George T. and the students to whom he gave the poem prevents any immediate interpretation of the poem as a threat.  He had only known the young women to whom he gave copies of the poem for two weeks; their interactions had been friendly.  In fact, only the closing lines convey anything like a possible threat, and then only if the can is misconstrued as will. 

Much of the court’s reasoning suggests positions familiar to students of literary theory, ideas that might be tracked back to T.S. Eliot, to “Tradition and the Individual Talent,” for instance, and the possibility of identifying poet and persona, or to his 1932 lectures The Use of Poetry and the Use of Criticism where Eliot, elaborating on various of the ideas set down in his earlier essay, suggests that poetry cannot be considered a form of communication.  The decision does not cite Eliot, but it does acknowledge that artistic expressions are not literal transcriptions of experience but constructs shaped by the conventions of the genre to which they belong. Quoting from the amicus brief filed on behalf of George T. by a long list of authors and organizations, including J.M. Coetzee, Michael Chabon, the ACLU, and PEN, among others, the decision identifies “Faces” as belonging to a specific genre, “dark poetry,” that grew out of the works by Plath, Berryman, and Lowell, a branch of confessionalism; such poems depict “extraordinarily mean, ugly, violent, or harrowing experiences” (quoted from Deutsch, Poetry Handbook, 4th edition, 1973).  The California Supreme Court had ruled in In re Ryan D. (2002) that even a graphic cartoon depicting a student shooting a policeman in the back of the head was inherently ambiguous “because it may use symbolism, exaggeration, and make believe”—that is, comic book conventions—in its representation (qtd. in In re George T.).  We can only tell if a threat is intended by carefully examining the context surrounding the statement, by considering the rhetorical force of the expression. 

In re George T. does conclude by acknowledging that school and law enforcement officials were fully justified and should be commended for their response to George T.’s poem and the fear it evidently occasioned in several of its readers, a point which Justice Baxter particularly emphasizes in his concurring opinion.  On the other hand, the decision also, in its final footnote, cites the Youth Law Center’s amicus curiae and their suggestion that students should be encouraged to write out such negative feelings, that doing so may help shortcut violent actions and permit, where appropriate, early intervention.  They also note that any official response should progress from the student to his/her parents to law enforcement, this last step taken only “in the most egregious situations” in response to an immanent threat.  And, here, it seems, is the problem.  This pattern of response is missing in all of the instances Lovas cites and, in addition, in that of the Beaver Riverside rapper.  The administrations in each case, judging from the standards articulated in In re George T., clearly misread the texts and the circumstances surrounding their publication; these texts contained no credible threats, but such matters are open to interpretation.  Their misreading of these texts, however, becomes a problem when they file complaints with the civil authorities without first speaking with the student and his or her parents.  This failure not only results in the arrest and prosecution of the student, but it exposes the school district to the need to defend itself against countersuits. (In the case of the Pennsylvania rapper, the court awarded the student $90,000 in damages.)  If nothing else, these cases suggest that schools need to develop policy statements, to define what constitutes a “criminal threat,” to establish principles of interpretation, to develop due process procedures.  The definition of threat is a legal matter and requires a legal definition.  Absent any other standard, the definitions, principles of interpretation, and suggested due process procedures set down in the California Supreme Court’s decision overturning George T.’s conviction seem a good place to start.

4. Responding to Suicidal Suggestions
Much of the foregoing discussion seems to apply to cases like those at the Academy of Art University, the second case in particular, where a student was dismissed for submitting a creative response which included, among other things, a suggestion that she would take her own life if she didn’t receive an “A” on the assignment.  Based on the available accounts, even a cursory examination of the work would suggest that no credible threat existed.  The behavioral contract and counseling demanded of her were clearly uncalled for.  The piece in question may not have been wholly successful, but it hardly warranted the response it received.  In this case, the administrative response seems to have been driven by fears of liability, clearly a concern, but hardly enough to justify expelling students and firing faculty for exploring violent and suicidal impulses in assigned readings and written responses. 

Liability is a concern.  Recent court decisions argue that colleges and universities do share responsibility for student suicides when the danger is foreseeable.  That, at least, is the conclusion reached by the U.S. District Court for the Western District of Virginia in Schieszler v. Ferrum College (2002).  The decision is based both on the “special relationship” that pertains between a college and its full-time residential students and the fact that the administration was aware of the “immanent probability” that the student in question would harm himself, that is, that the danger the student faced was foreseeable.  The question here might be what constitutes “immanent probability”?  In this case, the student had a history of emotional problems and had been required to attend anger-management classes as a condition for returning to campus; he had been found in his room following an argument with his girlfriend, the precipitating cause, so it now seems, of his eventual suicide, with injuries to his head and neck, injuries which he claimed were self-inflicted; the student had subsequently emailed messages to his girlfriend and to a third party suggesting that he was going to kill himself, communications which their recipients had shared with the dean; the dean of students had recognized the seriousness of this situation by having the student sign a statement promising not to harm himself, yet in spite of all these warning signs, the student was left alone in his room and his counselor was not called (Schieszler v. Ferrum College).  The resulting suicide was foreseeable.

The question of immanent probability here seems relevant to our discussion.  The circumstances in this case couldn’t be more different from the suicidal suggestions and violent musings in those cases Lovas cites.  A personal email sent to a boy- or girlfriend in the midst of a heated episode by a young person with a history of emotional problems stands in stark contrast to the work of an aspiring artist engaged in an artistic or academic exercise.  We may be sufficiently worried by the poem or short story to speak to the student, both about the underlying intent and the effectiveness of this means of expression, showing a care both for the artist and the art, the author and the craft of fiction.  In the case of a minor, we might draw the parents into the discussion.  Where the facts demonstrate an immanent probability of harm, the existence of a clear and present danger, then intervention is necessary.  The response needs to be appropriate to the specifics of the situation.

All of which returns us to the issues set down in NCTE’s “Resolution on Students’ Right of Expression,” in particular “the need for educators to develop competencies in responding to [student] expression in ways that ensure safety, welfare, and respect for students and others” and to craft written procedures “for logical and prudent interventions when student expression may warrant an intervention.”  An understanding of First Amendment law, of rhetorical principles, of rudimentary issues in literary criticism, including questions of authorial intent and genre, of psychology, are all necessary here.  We do need definitions.  We do need to develop more sophisticated ways of reading and responding to student writing, ways that consider context, that understand the ways that texts are conventional in construction, that assess the rhetorical impact of the speech act.  We do need due process procedures which begin with the student and his or her parents, with the civil authorities included only as a measure of last resort.   And we do need, once again, to affirm the First Amendment rights of students and faculty, especially as they have been articulated by the courts.  Given the incidents he cites in his blog—not to mention the proliferation of mandatory pledge laws, PATRIOT Act restrictions on civil liberties, and the perennial attempts to pass a constitutional amendment criminalizing flag desecration,  all advocated as responses to terroristic threats of one kind or another—Lovas was right to be concerned.  Clearly, we ought to know better.

Works Cited
Bethel School District No. 403 v. Fraser.  No. 84-1667. Supreme Ct. of the US.  7 July 1986.  Academic Universe: Legal Research.  Lexis Nexis.  Bailey Library, Slippery Rock University, Slippery Rock, PA.  18 Aug. 2005.

Brahinsky, Rachel.  “Expelling Edgy Writers: S.F. Art School Boots Second Author of Controversial Fiction; Second Teacher on Verge of Losing Job.”   SFBG.com. 14 April 2004. http://www.sfbg.com/38/29/news_art.html.  8 Aug. 2005.

Hazelwood v. Kuhlmeier.  No. 86-836. Supreme Ct. of the US.  13 Jan. 1988. Academic Universe: Legal Research.  Lexis Nexis.  Bailey Library, Slippery Rock University, Slippery Rock, PA.  18 Aug. 2005.

Hill, Bill.  “Fahrenheit 451 Revisited.” Daytona Beach News-Journal 15 May 2004.  In Lovas.

In re George T.  S111780.  Supreme Ct. of California.  22 July 2004.  Academic Universe: Legal Research.  Lexis Nexis.  Bailey Library, Slippery Rock University, Slippery Rock, PA.  18 Aug. 2005.

Latour v. Riverside Beaver School District.  Civil Action.  US Dist. Ct. for the Western Dist. of Pennsylvania.  3 Aug. 2005.  http://www.aclu.org/studentsrights/expression/19928prs20050803.html 12 Aug. 2005.

Lovas, John. “Blog Three Hundred Sixty-Two."  29 May 2004. http://faculty.deanza.fhda.edu/jocalo/discuss/msgReader$755. 

National Council of Teachers of English.  “Resolution on Students’ Right of Expression.” 2004.  http://www.ncte.org/about/over/positions/category/rights/118784.htm.

“Pennsylvania School District Sued over Expulsion of Middle School Rapper for Songs Written at Home.”  ACLU Online. 12 August 2005.  Email. http://www.aclu.org.

Prather, Shannon. “Teen Arrested for Writing Poetry with ‘Dark Overtones.’” Pioneer Press 18 Oct. 2004.  In Lovas.

Schieszler v. Ferrum College. No. 7:02CV00131.  US Dist. Ct. for the Western Dist. of Virginia, Roanoke Div.  2 Dec.2002.  Academic Universe: Legal Research.  Lexis Nexis.  Bailey Library, Slippery Rock University, Slippery Rock, PA.  18 Aug. 2005.

Tinker v. Des Moines.  No. 21.  Supreme Ct. of the US.  24 Feb. 1969.  Academic Universe: Legal Research.  Lexis Nexis.  Bailey Library, Slippery Rock University, Slippery Rock, PA.  18 Aug. 2005.

West Virginia v. Barnette.  No. 591.  Supreme Ct. of the US.  14 June 1943.  Academic Universe: Legal Research.  Lexis Nexis.  Bailey Library, Slippery Rock University, Slippery Rock, PA.  18 Aug. 2005.