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DISCIPLINE OF STUDENTS UNDER IDEA 2004 IN WASHINGTON

Sources of Law for Discipline of Special Needs Students. IDEA the Statute (2004). President Bush signed the reauthorized IDEA into law on December 3, 2004.The law was renamed the Individuals with Disabilities Education Improvement Act (still known as IDEA).Most provisions became effective on July 1, 2005. .

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DISCIPLINE OF STUDENTS UNDER IDEA 2004 IN WASHINGTON

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    1. DISCIPLINE OF STUDENTS UNDER IDEA 2004 IN WASHINGTON Joni R. Kerr Law Offices of Joni R. Kerr, PLLC 800 NE Tenney Road, Suite 110-123 Vancouver, WA 98685 (360) 574-0461 Fax: (360) 574-3350 jrkerrschoolaw@uswest.net February 8, 2008

    2. Sources of Law for Discipline of Special Needs Students

    3. IDEA the Statute (2004) President Bush signed the reauthorized IDEA into law on December 3, 2004. The law was renamed the Individuals with Disabilities Education Improvement Act (still known as IDEA). Most provisions became effective on July 1, 2005.

    4. IDEA 2004 Purposes Include ensuring that educators and parents have the necessary tools to improve educational results for children with disabilities; and assessing and ensuring the effectiveness of efforts to educate children with disabilities. Aligns IDEA closely with the No Child Left Behind (“NCLB”) Act. To ensure that all children with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living.

    5. IDEA Regulations Final IDEA regulations were announced on August 3, 2006 and became effective in October 2006 The official copy of the final Part B IDEA regulations was published in the Federal Register on August 14, 2006 Regulations, including the Summary and Analysis of Comments and Changes, cover more than 300 pages

    6. New State Regulations OSPI adopted new state regulations consistent with IDEA 2004 on June 29, 2007. Chapter 392-172 WAC was repealed due to the “restructuring of the order and number of changes” in IDEA 2004. The state regulations are in new Chapter 392-172A WAC.

    7. Overview of Changes to Student Discipline under IDEA 2004 The manifestation determination analysis has been simplified. For purposes of calculating periods of exclusion, calendar days were changed to school days. Expanded use of interim alternative educational settings (“IAES”) to include misconduct involving “serious bodily injury.” “Stay put” relating to disciplinary exclusions.

    8. Governance Relating to Discipline of Special Needs Students Short-Term Suspensions and Lesser Discipline Not Constituting a Change of Placement: School team of knowledgeable persons

    9. Governance Relating to Discipline of Special Needs Students Long-Term Suspensions, Expulsions and Other Changes of Placement: IEP or §504 team (includes the parents) Administrative Law Judge or Hearing Officer State or Federal courts

    10. RULE OF LAW A school district cannot implement a disciplinary action, which constitutes a change of placement, until it has satisfied the procedures required under IDEA (or §504).

    11. DISCIPLINARY ACTIONS SUBJECT TO THE RULE UNDER IDEA (AND SECTION 504) Any disciplinary action that constitutes a change of placement, i.e., excludes a Special Education student for more than ten (10) consecutive days or for more than ten (10) cumulative days that create a pattern of exclusion, cannot be implemented without following change of placement procedures.

    12. Ten Day Consecutive Rule A long-term suspension or expulsion, by definition, constitutes a change of placement under the IDEA (and §504).

    13. Pattern of Exclusion Rule Short-term suspensions accumulating to more than ten (10) days of exclusion during a school year may constitute a significant change of placement.

    14. Pattern of Exclusion Rule The determination of whether a series of short-term suspensions, each of ten (10) or fewer days in duration, creates a pattern of exclusion must be made on a case-by-case basis. Factors that should be considered include the length of each suspension, proximity in time, similarities in behavior, and the total amount of time the student has been excluded during that school year.

    15. More to Consider in Determining Whether a Disciplinary Change of Placement Has Occurred The IDEA 2004 Regulations add another factor, namely whether the child’s behavior is substantially similar to that in previous incidents that resulted in a series of short-term removals.

    16. Disciplinary Actions that Do Not Constitute a Change in Placement School-based disciplinary procedures, such as study carrels, time-out, in-school suspension, after school detention, and Saturday school. Short-term suspensions (up to the first ten (10) days). Emergency expulsion not exceeding ten (10) school days.

    17. Don’t Forget the Bus! Removals from the bus may constitute a change in placement, whether or not transportation is listed as a related service, and if the student is not otherwise able to get to school.

    18. Required Notice Under IDEA 2004, on the date the decision is made to change a student’s placement, for disciplinary reasons, the LEA must notify the parents of that decision and provide a copy of their procedural safeguards.

    19. Counting Days Change of placement refers to school days, i.e., any day, including partial days, that students attend school for instructional purposes (as opposed to calendar and/or business days)

    20. Counting Days (cont’d.) Under IDEA 2004, counting partial day removals in determining whether there is a pattern of removals is permissible but not required. Analysis of Comments and Changes, 71 Fed Reg 46715 (August 14, 2006)

    21. Is there a limit on short-term suspensions for disabled students? IDEA 2004 specifies no upper limit and the Comments to the new Federal Regs state: “We believe it is important for purposes of school safety and order to preserve the authority that school personnel have to be able to remove a child for a discipline infraction for a short period of time, even though the child may already have been removed for more than 10 school days in that school year, as long as the pattern of removals does not itself constitute a change in placement…” Analysis of Comments and Changes, 71 Fed Reg 46715 (August 14, 2006). BUT, Chapter 392-400 WAC does provide limitations based on the age of the student. In Travis W. v. Puyallup School District (9th Cir. 1994) , these limits (previously found in Chapter 180-40 WAC) were held to apply to Special Education students.

    22. WAC 392-400 limitations on short-term suspensions for disabled students Grades K - 4 may be short-term suspended for no more than five (5) school days at a time, and they are not subject to a combination of suspensions exceeding ten (10) school days during a semester/trimester. Grades 5 - 12 are not subject to a combination of short-term suspensions exceeding fifteen (15) days in a semester.

    23. Manifestation Determinations Prior to implementing discipline that would constitute a change of placement, IDEA 2004 requires that a determination be made whether the student’s misconduct was a manifestation of his/her disability.

    24. Manifestation Determination For an IDEA-eligible student, the manifestation determination is conducted by the IEP team and other qualified personnel

    25. Manifestation Determination The determination must be based upon information from a variety of sources, e.g., aptitude and achievement tests, teacher observations, social and cultural background. Consideration must also be given to previous programs/placements/ accommodations provided, along with the possible need for additional services or a more restrictive placement.

    26. Manifestation Determination IDEA 2004 eliminated the previous requirement to consider the appropriateness of the student’s IEP and placement as part of the manifestation determination.

    27. Manifestation Determination Not driven by disability labels Not equivalent to whether the student knew right from wrong Principal does not have the controlling vote

    28. Manifestation Determination Under IDEA 2004, the manifestation determination is conducted by a team including a district representative, the parent, and other relevant members of the IEP team. 34 CFR §300.530(e)(1) WAC 392-172A-05145(5)

    29. 2004 IDEA Reauthorization Significantly Changes the Term “Manifestation” “It is the intention of the Conferees that the conduct in question was caused by, or has a direct and substantial relationship to, the child’s disability, and is not an attenuated association, such as low self-esteem, to the child’s disability.” Conference report 108-779, p. 240 (Nov. 17, 2004). Accordingly, the conduct must either (1) be caused by, or have a direct and substantial relationship to, the child’s disability; or (2) be the direct result of the LEA’s failure to implement the IEP. The District representative, parents and relevant IEP team members (as determined by the parents and LEA) must determine whether the conduct was a “manifestation of the child’s disability.”

    30. Under IDEA 1997, the IEP team could determine that a student’s misconduct was not a manifestation of the student’s disability ONLY if the IEP team Based on consideration of all relevant information determined: that, in relationship to the behavior subject to the disciplinary action, the IEP and placement were appropriate and that services, including behavior intervention strategies, were provided consistent with the IEP and placement; and that the child’s disability did not impair the child’s ability to understand the impact and consequences of the behavior subject to disciplinary action; and that the child’s disability did not impair the child’s ability to control the behavior subject to disciplinary action.

    31. More on Manifestation Determinations under IDEA 2004 The Conference Committee also stated that Congress intended that the team “analyze the child’s behavior as demonstrated across settings and across time” as part of the manifestation determination. Committee Report at p. 240. If the team determines that the behavior was a direct result of the district’s failure to implement the student’s IEP, the district must take immediate steps to remedy those deficiencies. 34 CFR § 300.530(e)(3) and WAC 392-172A-05145(5)(c).

    32. Should we do a manifestation determination for IDEA students in cases involving discipline of ten (10) days or less? With respect to the first ten (10) days of removal during a school year, there is clearly no legal requirement to conduct a manifestation determination. In a 1997 Memorandum, the Office of Special Education Programs (OSEP) advised that manifestation determinations were only required when removals longer than ten (10) days were contemplated. OSEP 97-7 If the student is being suspended for recurring behavior, I recommend that manifestation determinations be done for any short-term suspensions accumulating past ten (10) days, in order to minimize the likelihood that the student is being disciplined for behavior relating to his/her disability.

    33. Manifestation Determination If the student’s misconduct is determined to be a manifestation of his/her disability, a long-term suspension or expulsion may not be implemented, unless the misconduct involves drugs, weapons and/or serious bodily injury for an IDEA-eligible student, such that the District may utilize a 45-day interim alternative educational setting.

    34. IDEA Change of Placement Procedures Either before, or not later than ten (10) days after taking “change of placement” disciplinary action, a school district shall: (1) Convene an IEP meeting to develop an assessment plan to address the behavior that resulted in the suspension, if the district did not conduct a functional behavioral assessment and implement a behavior intervention plan for the child before the behavior that resulted in the suspension; or (2) If the child already has a behavioral intervention plan, the IEP team shall review the plan and modify it, as necessary, to address that behavior.

    35. If behavior is determined to be a manifestation of the disability The IEP team must conduct a functional behavioral assessment (“FBA”) and implement a behavior intervention plan (“BIP”); or review a previously developed behavior intervention plan and modify it, as necessary, to address the behavior. 34 CFR § 300.530(f)(1) and WAC 392-172A-05145(6). The student must be returned to the previous placement unless the parent and the district agree to a change of placement as part of a modification of a behavior intervention plan; or unless the student is being removed to a 45-day interim alternative educational setting. 34 CFR § 300.530(f).

    36. More on Functional Behavior Assessments under IDEA 2004 “Congress specifically removed from the Act a requirement to conduct a functional behavior assessment or review and modify an existing behavior intervention plan for all children within 10 days of a disciplinary removal, regardless of whether the behavior was a manifestation or not.” Analysis of Comments and Changes, 71 Fed Reg 46721 (August 14, 2006).

    37. Practice tip: In most cases, however, I continue to recommend that a school district be proactive rather than reactive in conducting a FBA.

    38. If the misconduct was not a manifestation of the disability Student may be disciplined in the same manner and for the same duration as students without disabilities. 34 CFR § 300.530(c). School personnel also “may consider any unique circumstances on a case-by-case basis” in determining whether a change of placement disciplinary sanction is appropriate for a disabled student. 34 CFR §300.530(a).

    39. STUDENTS WHO CARRY WEAPONS IDEA permits school personnel to utilize interim alternative educational settings (“IAES”) for up to 45 school days, without parent agreement, for students who carry or possess “dangerous weapons” at school, regardless of the manifestation determination.

    40. Definitions The final Federal regulations define a “weapon” as a “dangerous weapon” under Title 18 of the United States Code. The term “dangerous weapon” means: A weapon, device, instrument, material, or substance, animate or inanimate, that is used for, or is capable of, causing death or serious bodily injury, except that such term does not include a pocket knife with a blade of less than 2 1/2 inches in length. This definition expands the authority school districts previously possessed with respect to “firearms.”

    41. Special Rules Applicable to Drug/Alcohol Offenses School personnel may utilize an IAES for up to 45 school days for IDEA-eligible students who knowingly possess or use illegal drugs, or who sell or solicit the sale of a controlled substance while at school or at a school function.

    42. Definitions “Controlled substance” means a drug or other substance identified under schedules I, II, III, IV, or V in section 202(c) of the Controlled Substances Act, 21 USC 812 (c) The term “illegal drug” means a controlled substance, but does NOT include such a substance that is legally possessed or used under the supervision of a licensed health care professional or that is legally possessed or used under any other authority under the Controlled Substances Act or any other provision of Federal law.

    43. What if no illegal drugs or weapons are involved? IDEA 2004 also allows automatic removal from the classroom to an IAES for up to 45 school days, without regard to the outcome of the manifestation determination, for infliction of “serious bodily injury” upon another person while at school, on school premises, or at a school function (in addition to removals for weapons and/or drug violations).

    44. 2004 IDEA Reauthorization “Serious bodily injury” is, as defined in 18 U.S.C. §1365(h)(3), bodily injury which involves (a) a substantial risk of death, (b) extreme physical pain, (c) protracted and obvious disfigurement, or (d) protracted loss or impairment of the function of a bodily member, organ or mental faculty.

    45. More on Interim Alternative Educational Settings Under IDEA 2004 The IAES must be selected by the IEP team. What constitutes an appropriate setting will depend on the circumstances of each individual case. Analysis of Comments and Changes, 71 Fed Reg 46722 (August 14, 2006). The final Federal Regs do not include a prohibition on a student’s home as a suitable IAES. However, care must be taken to ensure that the required services can be provided in the home setting. 71 Fed Reg 46722 (August 14, 2006).

    46. “Zero Tolerance”

    47. Zero Tolerance In general, the nature and circumstances of the violation must reasonably warrant the proposed punishment or corrective action, both in severity and length. In general, there is a requirement of “progressive” disciplinary sanctions. In cases involving “exceptional misconduct,” a school district may elect to adopt rules providing immediate resort to short-term or long-term suspension, notwithstanding the fact that prior alternative corrective action or punishment has not been imposed upon the student, and as long as disciplinarians and hearing officers may grant exceptions in cases involving extenuating and/or exceptional circumstances. WAC 392-400-245(2) and –260(2)

    48. Zero Tolerance “Exceptional misconduct” means misconduct, other than absenteeism, which a school district has judged, following consultation with an ad hoc citizens committee, to be of such frequent occurrence, notwithstanding past attempts of district personnel to control such misconduct through the use of other forms of corrective action and/or punishment, as to warrant immediate resort to short- or long-term suspension, and/or So serious in nature and/or so serious in terms of the disruptive effect upon the operation of the school(s) as to warrant an immediate resort to short- or long-term suspension (e.g., misconduct judged by the school district to be the same or of the same nature as illegal drug or controlled substances violations). WAC 392-400-245(2) and –260(2)

    49. IDEA students under disciplinary removal Must continue to receive educational services to enable participation in the general education curriculum, although in another setting, and to progress toward meeting his/her IEP goals. Must receive behavioral intervention services and modifications, as appropriate, designed to address the misconduct so it does not recur. 34 CFR §300.530(d)(1).

    50. What Services Are Required? The Comments state that the term “participate” in the general curriculum should not be interpreted to mean that a school must replicate every aspect of the services the student would receive prior to the imposition of discipline. “For example, it would not generally be feasible for a child removed for disciplinary reasons to receive every aspect of the services that a child would receive if in his chemistry or auto mechanics classroom as these classes generally are taught using a hands-on component or specialized equipment or facilities.” A free appropriate public education (“FAPE”) must be provided but the concept of FAPE in disciplinary circumstances is modified. Decisions as to the extent to which services must be provided may differ depending upon the length of the disciplinary removal. “For example, a child who is removed for a short period of time and who is performing at grade level may not need the same kind and amount of services to meet this standard as a child who is removed from his or her regular placement for 45 days… and not performing at grade level.”

    51. Services Required During Short Term Removals Unless educational services would be provided to non-disabled students during the first ten (10) days of removal during a school year, there is no obligation to provide services to disabled students. Services for an IDEA student must be provided during subsequent periods of short-term removal beginning on the 11th cumulative day. 34 CFR § 300.530(b)(2) and (d).

    52. Who Decides? The IEP team decides what educational services will be provided for a change of placement disciplinary removal. 34 CFR § 300.530(d)(5) and WAC 392-172A-05145(4)(f). If the student has been removed for more than 10 days over the course of the school year, but the discipline does not constitute a change of placement, school personnel, in consultation with at least one of the student’s teachers, determine to what extent educational services are needed during the removal. 34 CFR § 300.530(d)(4) ) and WAC 392-172A-05145(4)(e).

    53. DUE PROCESS HEARING PROCEDURES The IDEA provides due process hearings for the purpose, inter alia, of challenging discipline decisions. Due process procedures vary from state to state. Washington has a single-tier system (see Chapter 392-172A WAC). Parents must exhaust administrative remedies under the IDEA before they can go to court.

    54. Overview of IDEA Due Process Hearings Due process hearing followed by civil review 30-day resolution period Mediation available 45-day timeline for hearing decisions Shortened timelines apply to hearings on disciplinary actions Requirement to exhaust administrative remedies

    55. Expedited Hearing Required When an IDEA due process hearing request relates to disciplinary action, the hearing is conducted on an expedited basis. Specifically, the resolution meeting must occur within seven (7) days; the hearing must be held within 20 school days; and the ALJ’s decision must be issued no more than ten (10) school days following the hearing.

    56. “Stay-Put” IDEA has an explicit “stay-put” provision. “Stay-put” under the IDEA is invoked when a parent requests a due process hearing (to challenge a disciplinary action that would constitute a significant change of placement or regarding other issues relating to a student’s identification, evaluation, educational placement, or the provision of FAPE).

    57. Changes in “Stay Put” under IDEA 2004 Under the new statute, the disciplinary setting is always the “stay put” placement during a disciplinary appeal. Regardless of who files the appeal (parents or the school district), the student must remain in the disciplinary setting pending the decision of the hearing officer or until expiration of the disciplinary removal, whichever occurs first, unless the parent and the district agree otherwise. 34 CFR § 300.533 and WAC 392-172A-05165.

    58. “Stay Put” Relating to Interim Alternative Educational Settings If the parents request a hearing to challenge either the interim alternative educational setting or the manifestation determination, the interim setting is the “stay put” placement but only for the shorter of 45 school days or until the hearing officer’s decision, unless the parent and the school district agree otherwise.

    59. “Stay Put” Following Expiration of an Interim Alternative Educational Setting If school staff propose to change the child’s placement after expiration of the interim alternative educational setting and the parents request a due process hearing to challenge the proposed change of placement, the “stay put” placement during the pendency of the hearing is the child’s placement prior to the interim placement, unless the school proves dangerousness through the expedited hearing process.

    60. Expedited Hearing Available If school staff believe it is dangerous for a student to remain in the current placement during the pendency of due process proceedings, the school district may request an expedited hearing.

    61. 2004 IDEA Reauthorization Provides that an expedited hearing shall occur within 20 school days of the date the hearing is requested and shall result in a final determination within 10 school days after the hearing. The IDEA 1997 Federal Regulations previously defined an expedited hearing as one which resulted in a written decision being mailed within 45 days, with NO extensions beyond that. The new law still does not provide for relief in a truly expedited timeframe. As a result, school districts may still find it necessary to seek injunctive relief from the courts in cases not involving 45-day IAES.

    62. Other Dangerous Students A school district may seek a court order temporarily removing a dangerous student from his/her current educational placement due to safety concerns other than weapons, drugs, and/or serious bodily injury. This is known as a “Honig injunction.”

    63. Other Dangerous Students In order to obtain a “Honig injunction,” the school district has the burden of proving that (1) maintaining the student’s current educational placement is substantially likely to result in injury, and (2) it has taken reasonable steps to reduce the risk of injury.

    64. What protections are available to students who have not been determined eligible under IDEA? Students who have engaged in behavior subject to disciplinary action may assert IDEA protections, even though they have not been determined eligible for Special Education and related services there under, if the school district had knowledge that the student was a child with a disability before the behavior that precipitated the disciplinary action.

    65. When is a school district deemed to have knowledge that a student is a child with a disability? If the parent expressed concern in writing (unless the parent is illiterate or has a disability that prevents compliance) to supervisory or administrative personnel, or one of the student’s teachers, that the child is in need of special education and related services; or The parent has requested an evaluation; or The child’s teacher or other school personnel has expressed concern about the child’s behavior or performance to the district’s special education director or other supervisory personnel. 34 CFR § 300.534(b) and WAC 392-172A-05170.

    66. 2004 IDEA Reauthorization Provides that the LEA shall not be deemed to have knowledge if the parent has not allowed an evaluation of the child, or has refused services, or the child was previously evaluated and determined not eligible.

    67. If the school district does not have knowledge that a student is a child with a disability The child may be subjected to the same disciplinary measures applied to children without disabilities who engage in comparable behaviors. If an evaluation is requested during the time the child is subject to disciplinary measures, the evaluation must be conducted in an expedited fashion. Pending the results of the evaluation, the child shall remain in the educational placement determined by school authorities. If the student is thereafter determined to be a child with a disability, based upon the evaluation results and information provided by the parents, the child shall be provided with special education and related services.

    68. Can we contact law enforcement and juvenile authorities? Yes, IDEA specifically allows a school district to report a crime. The district must also ensure that copies of the child’s Special Education and disciplinary records are transmitted for consideration by the authorities to whom a crime is reported.

    69. Problems Arising from Student Discipline Not recognizing the student’s special education status prior to imposing discipline. Failure to have evaluated behavior and/or utilize appropriate interventions prior to misconduct resulting in discipline. Failure to timely give written notice or to conduct a manifestation determination. Running afoul of the “ten day” rule through the use of serial suspensions.

    70. Problems Arising from Student Discipline (Cont’d.) Inadequate/no services during periods of disciplinary exclusion. Improper use of aversive therapy, e.g., the use of “time-out” rooms.

    71. How the Courts Are Ruling A Couple of Special Education Decisions of Note

    72. Honig v. Doe, 484 U.S. 305, 559 IDELR 231 (1988) In a 7-2 decision authored by Justice Brennan, the U.S. Supreme Court held that there was no “dangerousness” exception to the stay-put provision of the Education for the Handicapped Act (EHA).

    73. More on Honig v. Doe The School District expelled two Emotionally Disabled (“ED”) students for behaviors related to their disabilities. Case was moot as to one student as he was then 24 years of age. As to the remaining student (then age 20), his behaviors included stealing, extortion of money from other students, and making sexual remarks to female students.

    74. A.W. v. Fairfax County Sch. Bd., 372 F.3d 674, 41 IDELR 119 (4th Cir. 2004) Although gifted, student was determined eligible for special education under the ED category during his fifth grade year. Student’s diagnoses were ADHD and oppositional defiant disorder (“ODD”).

    75. More on A.W. v. Fairfax County Sch. Bd. Student’s IEP provided for one (1) hour per week of services “intended to alleviate AW's ‘difficulty maintaining focus and completing academic tasks as required’ and avoidance of ‘many tasks, especially when they involve writing’." During the sixth grade, the student began exhibiting new behavior problems. In the spring of his sixth grade year, he persuaded another student to place a threatening note in the computer file of a student that he disliked. AW admitted that his intent was to scare the targeted student away from school.

    76. More on A.W. v. Fairfax County Sch. Bd. School administrators suspended AW from school for two school weeks and initiated proceedings to expel him. Another administrator rejected the expulsion recommendation and directed instead that AW be transferred to the same program at another district elementary school for the remainder of the school year.

    77. More on A.W. v. Fairfax County Sch. Bd. The district conducted a manifestation determination review and concluded his emotional disability did not affect his misconduct. On appeal, the Court concluded the MDR conclusion was appropriate.

    78. More on A.W. v. Fairfax County Sch. Bd. “While the student's ADHD was a factor relevant to the student's emotional disability, the ADHD did not figure into the threatening letter. He was aware and anticipated the consequences of sending the message as evidenced by his enlisting another student to actually place the message. The student's conduct ‘indicated forethought and investigation, as he had to figure out a way to gain access to his target's personal folder’."

    79. How the Courts Are Ruling A Couple of Other Decisions of Note

    80. Lavine v. Blaine School District, 257 F.3d 981 (9th Cir. 2002), cert. denied, 122 S. Ct. 2663 (2002) Regular education student was placed on emergency expulsion after showing his English teacher a poem he wrote that described him shooting other students. The U.S. District Court ruled this violated the First Amendment. The Ninth Circuit Court of Appeals reversed.

    81. More on Lavine v. Blaine School District. “We review . . . with deference, schools' decisions in connection with the safety of their students even when freedom of expression is involved.” “Even in its most mild interpretation, the poem appears to be a 'cry for help' from a troubled teenager contemplating suicide. Taken together and given the backdrop of actual school shootings, we hold that these circumstances were sufficient to have led school authorities to forecast substantial disruption of or material interference with school activities -- specifically, that James was intending to inflict injury upon himself or others.”

    82. State v. Kilburn, 151 Wn.2d 36, 84 P.3d 1215 (Wash. 2004) During an accelerated reading class, an eighth grade student told another student "I'm going to bring a gun to school tomorrow and shoot everyone and start with you." The other student told her parents that evening. The mother called 911 and Kilburn was arrested and charged with felony harassment, which required “the State to prove that Kilburn knowingly threatened to cause bodily injury … immediately or in the future.” The trial court found him guilty on the basis that the other student reasonably feared that Kilburn would carry out the threat.

    83. More on State v. Kilburn The Washington Supreme Court concluded, under a “true threat” analysis, that the State was not required, by either the First Amendment or the criminal statute, to prove that the defendant actually intended to carry out the threat. The student claimed that he was only joking; and the Supreme Court said that “the relevant constitutional question under the circumstances … is whether there is sufficient evidence that a reasonable person in Kilburn's position would foresee that his comments would be interpreted as a serious statement of intent to inflict serious bodily injury or death.”

    84. More on State v. Kilburn The Court held that there was insufficient evidence of a “true threat.” “These facts all suggest that a reasonable person in Kilburn's position would foresee that his comments would not be interpreted seriously. In particular the testimony about [the other student’s] and Kilburn's past history and relationship, his treatment of her in the past, the regularity of Kilburn joking with her and others, and his giggling or laughter as he made the comments, ‘acting kind of like he was joking,’ make it difficult to conclude that he would reasonably foresee his comments being taken seriously. In addition, Kilburn and [the other student] had been discussing their books, and his had guns on it - perhaps the origin of his comment about guns.”

    85. THE END Thank you!

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