January 20, 2000.
Memorandum and Order
This matter came before the court for a hearing on plaintiff's motion for a preliminary injunction. The court heard testimony from witnesses at the hearing and the parties submitted various evidentiary materials. After hearing the evidence, the court granted the motion and made oral findings in support thereof. This written memorandum will supplement the court's oral ruling.
The facts behind this lawsuit are for the most part undisputed. Plaintiff Sarah Boman is a 17-year old senior enrolled at Bluestem High School in Leon, Kansas. According to the complaint, she is an accomplished art student. On January 4, 2000, plaintiff created a poster while at school and hung it on a door in a school hallway. The poster was unsigned. It contained sentences written in circles spiraling outward from the center (which makes it fairly difficult to read unless it is rotated). The narrative on the poster was a series of questions and statements, written in first person, asking about "who killed my dog?" and asking what do "you" know about it. It included statements that "I'll kill you if you don't tell me who killed my dog" and "I'll kill you all!"
The poster stated the following:
"Please tell me who killed my dog. I miss him very much. He was my best friend. I do miss him terribly. Did you do it? Did you kill my dog? Do you know who did it? You do know, don't you? I know you know who did it. You know who killed my dog. I'll kill you if you don't tell me who killed my dog. Tell me who did it. Tell me. Tell me. Tell me. Please tell me now. How could anyone kill a dog. My dog was the best. Man's best friend. Who could shoot their best friend? Who? Dammit, Who? Who killed my dog? Who killed him? Who killed my dog? I'll kill you all! You all killed my dog. You all hated him. Who? Who are you that you could kill my best friend? Who killed my dog?
The next day, a school employee saw the poster, removed it, and took it to Principal Dale Harper. Mr. Harper believed some of the phrases were threatening in nature and that the matter required investigation. Within 15 minutes, plaintiff Sarah Boman was identified as the person who made and displayed the poster. Mr. Harper made copies of the poster and left the original on the desk in his office, where Ms. Boman had been brought. Mr. Harper left his office for a brief period, and when he returned the original poster was no longer there. Ms. Boman admitted at that time that she had destroyed the poster.
The high school administration then suspended Ms. Boman for five days with the recommendation that a long-term suspension/expulsion hearing be held. Such a hearing was held on January 10, 2000, at which time the School District decided that Ms. Boman should be suspended for 81.5 days, which was essentially the remainder of the school year. Plaintiff appealed that decision, in accordance with Kansas statutes, and the matter was referred to a Hearing Officer, David A. Ricke, for findings of fact and a recommendation to the School Board as to whether the extended term suspension should be upheld. Mr. Ricke heard testimony from the plaintiff and from two art professors, as well as testimony from Ms. Boman's art teacher at Bluestem, Ruth Markos. Mr. Ricke made numerous findings of fact, including the following:
— He found that Ms. Boman openly made the poster in tutorial class and made no effort to hide it;
— that Ms. Boman is an accomplished art student who had been exposed to concrete poetry', which is described as fashioning the words of a poem into a shape, as well as "compulsive and repetitive art", which is described as writings made of repetition in circular motion supporting the thoughts of obsessive or deranged behavior;
— He found that Ms. Boman had not had a dog killed and that the "madman" character depicted in the poster was fictional;
— that the school district stipulated that Ms. Boman believed that her writings constituted a work of art;
— that the school had no particular regulation against posting artwork outside of traditionally approved areas and that it generally tolerated the hanging of posters by students in the school;
— that no students at the school complained about the poster or any threat contained in it;
— that the allegedly threatening language in the poster was not readily apparent, and that nothing in the poster directs a threat at any particular individual;
— that it was not unusual for artists, including Ms. Boman, not to sign her work; and
— that Ms. Boman had previously done somewhat comparable work for art class, and had used the concept of "derangement" in her art work before.
At the January 10th hearing, the School District argued that Ms. Boman's extended suspension was justified under subsections (a), (b) and (c) of section 72-8901 of the Kansas Statutes. Those provisions permit a board of education to suspend or expel a student found guilty of any of the following:
(a) Willful violation of any published regulation for student conduct adopted or approved by the board of education;
(b) conduct which substantially disrupts, impedes or interferes with the operation of any public school, or
(c) conduct which substantially impinges upon or invades the rights of others.
Mr. Ricke concluded that none of these provisions had been violated. He rejected the school district's argument that Ms. Boman willfully violated a regulation against "intimidating behavior by word or deed," saying there was no indication of a malicious intent on her part (and hence no willfullness), and also said that once the circumstances of the poster had been explained there was no threat or intimidation. He found Ms. Boman's conduct had not substantially disrupted the operation of the school, noting that no students had complained about the poster. Finally, he concluded that Ms. Boman's conduct did not endanger the safety off others or invade the rights of others, noting that no student reported any actual fear from the poster, and — although he noted that the imitation of someone with mental illness might be considered poor taste — he said that once the allegedly threatening language was considered in context there was insufficient evidence that Ms. Boman's conduct invaded the rights of other students.
Mr. Ricke concluded that under the circumstances, the continued extended suspension of Ms. Boman was not warranted and could not be legally justified. Accordingly, he recommended that she be reinstated as a student and that no further disciplinary penalties be imposed.
On January 24, 2000, the Bluestem Board of Education received Mr. Ricke's report and held a public hearing. The Board did not adopt the recommendation to reinstate Ms. Boman. Instead, it approved a statement saying that in order to return to school, Ms. Boman would have to undergo a psychological evaluation and that when the Board received a psychological report indicating she was not a threat to students or staff, she would be reinstated. It further said that upon any further disciplinary incidents the suspension could be reinstated. The Board scheduled a tentative appointment with a psychologist for January 26, 1000.
The motion approved by the Board stated:
In order to return to Bluestem High School as a student, Sarah Boman shall receive a psychological evaluation, by a mental health provider approved by the Board of Education. This report should provide assurances that Sarah Boman is not a threat to the students and staff of Bluestem High School. Upon receipt of a psychological report indicating that Sarah Boman is not a threat to students and staff of Blue Stem High School, Sarah will be reinstated as a student, on probation, for the remainder of the 1999-2000 school year. Upon any further incidents which require any type of disciplinary action, the suspension may be reinstated for the remainder of the 1999-2000 school year. In the interim, between Monday, January 24, 2000 and the receipt of the acceptable psychological report, Sarah will be entitled to receive and complete class assignments for credit.
On January 25, plaintiff filed a complaint alleging that the actions of the School District and the other defendants are depriving her of her rights under the United States Constitution, including her right to free speech under the First Amendment and Fourteenth Amendments. She also filed a motion for preliminary injunction asking the court to order that she be reinstated as a student at Bluestem High School pending the outcome of this case.
II. Preliminary Injunction.
The law provides that in order to obtain a preliminary injunction, the party requesting the injunction must establish four elements:
First, she must show that she will suffer irreparable injury unless the injunction issues. The court concludes that this element is satisfied because the suspension of Ms. Boman for the remainder of the school year — which would essentially deprive her of graduating with her class and from going on to college — constitutes irreparable harm. See Axelrod v. Philips Academy, 36 F. Supp. 46, 50 (D. Mass. 1999).
Second and third, the plaintiff must show that the threatened injury to her outweighs whatever damage the injunction may cause the opposing party, and that the injunction, if issued, will not be adverse to the public interest. The court concludes that these elements are satisfied and, for reasons which I will discuss in a moment, finds no evidence that reinstating the plaintiff is adverse to the public interest.
The fourth requirement for a preliminary injunction is that the plaintiff must show a substantial likelihood of prevailing on the merits of her claim. One of Ms. Boman' s claims is that the School District is violating her First Amendment right to freedom of speech by suspending her for posting a work of art. The Supreme Court has said that public school students generally retain their rights to free expression, but it has also made clear that school officials can suspend a student for conduct that substantially interferes with discipline in the school or which invades the rights of other students. See Hazelwood School District v. Kuhlmeier, 484 U.S. 260, 265 (1988).
When a party satisfies the first three requirements, the standard for meeting the fourth "probability of success" requirement becomes more lenient. See Resolution Trust Corp. v. Cruce, 972 F.2d 1195, 1198 (10th Cir. 1992).
In evaluating the merits of the claims in this case, there are two basic factual questions that have to be addressed. One is the matter of Ms. Boman's intent and her state of mind in creating this poster and putting it up. Clearly, if she had intended this poster to convey a genuine threat, or even if she put the poster up with the intent of putting students in fear by making them think it was a genuine threat, the court believes that the school district could appropriately punish her for willfully violating the school's rule against intimidating behavior. As far as her intent is concerned, however, the school district has not cited any evidence which would reasonably suggest that she acted with a bad or willful purpose. In the proceeding in front of the hearing officer, the school district stipulated that Ms. Boman thought her poster was a work of art. She had seen works of art similar to this one on other occasions. She made the poster in the open in her tutorial class and did not try to hide it. There really isn't any question but that Ms. Boman thought she was displaying something that had artistic merit. The fact that she put the poster up in the hallway and did not sign it might suggest to some that she intended for students who saw it to wonder about its origin. But these facts, standing alone, cannot reasonably be accepted as proof that she intended students to take the poster as a threat — particularly when all of the other circumstances are considered, such as Ms. Boman's background as an art student and the lack of any evidence of a history of violence or behavioral problems on her part.
The second factual question that must be addressed deals more with the school district's perspective. Regardless of Ms. Boman's intent, if her conduct substantially disrupted the operation of the school or invaded the rights of others, under the law she could appropriately be subjected to punishment, including long term suspension. As the hearing officer noted, a student cannot make what appear to be genuine threats and then hide behind the First Amendment by claiming that the threat constitutes art. In this case, however, the court sees no factual basis to support a conclusion that the display of this poster falls under these categories. The court is not unsympathetic with the difficulties faced by the defendants in administering a school and in being responsible for the safety of its students. The concern for student safety is particularly high now in view of recent episodes of student violence. When a school district learns of a potential threat by a student, it has not only a right but a duty to investigate the circumstances. When Principal Harper read the poster in this case, the meaning of it was not self-evident to him, and he was certainly justified in determining if the poster represented some sort of threat to student safety. In that regard, the court believes that the decision to suspend Ms. Boman on a short-term basis until the circumstances could be investigated was likely appropriate under the law. Insofar as the context of the poster was vague or unclear, that was Ms. Boman's fault, and it was up to her to clear it up. But once the school district gathered the facts, and the context of the poster and the statements in it became clear, there simply was no longer a factual basis for believing that the poster constituted any sort of threat. The lines in the poster were essentially a work of fiction like the lines of a play — and when understood as such they represented no threat at all.
The school district understandably wants to be as sure as it possibly can that no threat to student safety exists. Toward that end, the district has declared that Ms. Boman must undergo a psychological evaluation before it will reinstate her. But the context of the poster she put up has been reasonably explained, and there is simply no factual basis for believing that Ms. Boman threatened harm to other students or that her return to school would constitute a threat. As such, there is no basis for requiring her to undergo a psychological evaluation.
The idea of a psychological evaluation apparently first came from Ms. Boman in comments she made to the School Board. She suggested at that time that she might be willing to undergo an evaluation in order to get reinstated. Since that time, however, Ms. Boman has come to believe that being required to undergo an evaluation would be an invasion of her privacy.
In Tinker v. Des Moines School District, 393 U.S. 503 (1969), the Supreme Court said that an "undifferentiated fear or apprehension of disturbance is not enough to overcome the right of freedom of expression" for public school students. In light of the law and the factual basis cited by the school district for its actions, the court concludes that the plaintiff has shown a substantial likelihood that she will prevail on the merits of her claim. Accordingly, the court finds that the plaintiff's motion for preliminary injunction should be granted, and will sign a separate order directing that the plaintiff shall be immediately reinstated as a student at Bluestem High School pending the outcome of this case.
Plaintiff's Motion for Preliminary Injunction (Doc. 2) is hereby GRANTED. The court will conduct a hearing on the plaintiff's request for permanent injunction on Friday, February 4, 2000 at 9:00 a.m. IT IS SO ORDERED this 28th day of January, 2000, at Wichita, Ks.