- The Washington Times - Wednesday, August 29, 2001

A federal appeals court yesterday rescinded the expulsion of an Arkansas junior high school pupil who penned a rap-style diatribe describing plans to rape, sodomize and kill a seventh-grade classmate who "broke up" with him.
A panel of the 8th U.S. Circuit Court of Appeals ruled 2-1 that the rambling handwritten composition was not a "true threat" despite J.M.'s explicit descriptions of how he would lie in wait with a knife under the bed of K.G.
Because they are now just 15, the children's names were not made public.
The court majority wrote a new page in the growing debate over zero-tolerance rules to head off violence in schools, but school hearing officer Jerry Welch of North Little Rock, Ark., told The Washington Times he would take the same action again in hopes it could prevent "another Columbine," the 1999 Colorado school-shooting spree that left 15 dead.
"It's like bomb threats. I don't think there's a bomb in the school, but how many does it take?" said Mr. Welch, director of student services for the suburban school district that includes Northwood Junior High School, where J.M. and K.G. were classmates.
A federal judge sealed J.M.'s four-page letter. "I've never seen anything so sick and disgusting and troubling as that letter. Never," said Gregory T. Jones, attorney for the Pulaski County Special School District. He will ask the full 8th Circuit to rehear the case.
"Threats of physical violence are not protected by the First Amendment. A true threat, however, must be distinguished from constitutionally protected speech," wrote Senior Circuit Judge Gerald W. Heaney, a 1965 Lyndon Johnson appointee. He was joined by U.S. District Judge John R. Tunheim, whom President Clinton named to the federal bench in 1995.
The dissenting judge said the boy amplified his intentions in telephone conversations with the girl.
"In the space of four handwritten pages, he used the f-word no fewer than ninety times, threatened four different times to kill his former girlfriend by lying in wait under her bed with a knife, and three times proclaimed that he would rape and sodomize her (using the absolute coarsest of language to describe how he would do so)," wrote Circuit Judge David R. Hansen, a 1991 appointee of President Bush.
On Aug. 23, 2000, Mr. Welch suspended J.M., then 14, for one semester and assigned him to the alternative Alpha Academy for classes. After J.M. appealed, the school board expelled him on Sept. 12 and excluded him from Alpha Academy.
After a federal trial judge ordered J.M. readmitted, the school district appealed, leading to yesterday's ruling, which the Rutherford Institute backed.
"Looking at it in hindsight, there is no true threat," Institute President John Whitehead said from Charlottesville. "The court had the advantage of hindsight and they could see the totality. I'm not sure the school board took the time to see that."
The Rutherford Institute is fighting some 25 zero-tolerance policies around the nation, arguing for flexibility and keeping troublemakers in classrooms under supervision.
Julie Lewis, staff attorney for the National School Boards Association in Alexandria, supported the school's action. "There are times when off-campus conduct does become something on which the school authorities can take some action, particularly when it affects the ability of school officials to maintain safety and order on campus.
"What the hearing officer did was quite reasonable, recommending a one-semester suspension and placing him in an alternative school … not just sending him home to do nothing," she said. "A few others in such situations have murdered their parents and returned to school to open fire on classmates."
K.G. testified that the written threats frightened her so much that she left lights on to feel safe in her own bed and that J.M. made one phone call during which he told her he was killing a squealing cat, although it is not known if he was bluffing.
"The letter was obscene, to be sure, but in his own home. It wasn't intended to be given to anybody," said the boy's lawyer, American Civil Liberties Union volunteer Morgan Welch of Little Rock. He said the writings were patterned after rap performances by Eminem, Juvenile, and Kid Rock.
K.G. arranged for another boy to pilfer the letter from J.M.'s house.
The incident occurred in late August last year as both prepared to enter eighth grade. In part the majority supported its opinion by observing that no violence occurred even though the boy and girl continued to attend the Stanfill Baptist Youth Group, and still attend school together, now at North Pulaski High School.


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