Legal Mailbag – 12-9-21

By Attorney Thomas B. Mooney, Neag School of Education, University of Connecticut

The “Legal Mailbag Question of the Week” is a regular feature of the CAS Weekly NewsBlast. We invite readers to submit short, law-related questions of practical concern to school administrators. Each week, we will select a question and publish an answer. While these answers cannot be considered formal legal advice, they may be of help to you and your colleagues. We may edit your questions, and we will not identify the authors.

Please submit your questions to: legalmailbagatcasciacdotorg.

Dear Legal Mailbag:

I have been reading about the various threats that school administrators have had to deal with in recent weeks, but I didn’t expect to have to deal with student threats myself. Sadly, that is no longer true. Earlier this week, there was a scuffle between two students in the cafeteria in the middle school where I serve as principal. Two teachers separated the two boys and left them with a warning against further hostilities, and we thought that the incident was resolved.

It was not. This morning, one of the students involved in the scuffle and his father were in my office, and they showed me an Instagram post in which the other student made the following statement: “[Student’s name] is a dead man. My buddies and I are going to mess him up because I don’t put up with sh*t from anyone!” I pointed out to them that the other student apparently made this post off campus, and I wondered aloud whether I have the authority to do anything about this threat. The student and his father were visibly upset with my response, and the father demanded immediate action on my part “or else.”

This seems not to be my fight, but I don’t like the father’s ominous “or else” statement. Do I have any responsibility to get involved here?

Anxious Administrator


Dear Anxious:

Yes, you do, and Legal Mailbag is here to help you sort out what you can and should do about this unfortunate situation.

As a threshold matter, the student has no First Amendment right to make such threats, and when such threats arise from school interactions, school administrators have the right to take action, whether the statement was made at school or online. In June of this year, the United States Supreme Court decided in Mahanoy Area School District v. B.L. (U.S. 2021) that school officials violated the free speech rights of a student who made vulgar posts on Snapchat after she did not make the varsity cheerleading squad. However, in so ruling, the Court clarified that school officials are authorized to take disciplinary action against students for online speech in certain situations:

The school’s regulatory interests remain significant in some off-campus circumstances…These include serious or severe bullying or harassment targeting particular individuals; threats aimed at teachers or other students; the failure to follow rules concerning lessons, the writing of papers, the use of computers, or participation in other online school activities; and breaches of school security devices, including material maintained within school computers.

Given this statement in the Court’s opinion, the post by the student in your school is not protected, and you may take action.

As you consider next steps, Legal Mailbag reminds you that the definition of “bullying” changed effective July 1, 2021. Now, Conn. Gen. Stat. Section 10-222d defines “bullying” as follows:

(1) “Bullying” means an act that is direct or indirect and severe, persistent or pervasive, which (A) causes physical or emotional harm to an individual, (B) places an individual in reasonable fear of physical or emotional harm, or (C) infringes on the rights or opportunities of an individual at school. “Bullying” shall include, but need not be limited to, a written, oral or electronic communication or physical act or gesture based on any actual or perceived differentiating characteristic, such as race, color, religion, ancestry, national origin, gender, sexual orientation, gender identity or expression, socioeconomic status, academic status, physical appearance, or mental, physical, developmental or sensory disability, or by association with an individual or group who has or is perceived to have one or more of such characteristics.

Moreover, the statute contemplates that bullying conduct can occur online, given the following additional definition in the bullying statute:

(2) “Cyberbullying” means any act of bullying through the use of the Internet, interactive and digital technologies, cellular mobile telephone or other mobile electronic devices or any electronic communications.

Certainly, the student who reported this threat may reasonably be in fear of physical harm, and you must therefore report this conduct to the safe school climate specialist in your school as required by the district’s safe school climate plan developed in accordance with Conn. Gen. Stat. Section 10-222d. The safe school climate specialist (perhaps you?) is then obligated to investigate this potential act of bullying and take appropriate action as set out in the district’s safe school climate plan.

The actions required when bullying complaints are investigated and substantiated are laid out in Conn. Gen. Stat. Section 10-222d, and presumably they are incorporated into your district’s safe school climate plan. As you deal with this potentially-bullying conduct, one particular issue merits further comment. The safe school climate plan mandated by the bullying statute must “(15) require the principal of a school, or the principal’s designee, to notify the appropriate local law enforcement agency when such principal, or the principal’s designee, believes that any acts of bullying constitute criminal conduct.”

Given the nature of the student’s threatening post, you may reasonably wonder whether the Instagram post you describe is criminal conduct. In considering such matters, the courts have differentiated between conduct that is a “true threat” and that which is not, holding that “true threats” may result in criminal prosecution. Our Second Circuit Court of Appeals (the federal appellate court for Connecticut) has described a “true threat” as follows:

This Circuit’s test for whether conduct amounts to a true threat “is an objective one—namely, whether an ordinary, reasonable recipient who is familiar with the context of the [communication] would interpret it as a threat of injury. [Citations omitted]. Prohibitions on true threats — even where the speaker has no intention of carrying them out — “‘protect . . . individuals from the fear of violence’ and ‘from the disruption that fear engenders’” . . . Virginia v. Black, 538 U.S. 343, 360 (2003) [further citations omitted], and are fully consistent with the First Amendment.

United State v. Turner, 720 F.3d 411 (2d Cir. 2013). In an earlier case, the Second Circuit provided this more detailed description of a “true threat” as a threat that “on its face and in the circumstances in which it is made is so unequivocal, unconditional, immediate, and specific as to the person threatened, as to convey a gravity of purpose and imminent prospect of execution.” United States v. Kelner, 534 F.2d 1020 (2d Cir. 1976).

As you consider this matter further, Legal Mailbag has two final observations. First, since there is a legitimate question whether the student who made the threat is subject to criminal prosecution, you should definitely report this post to the police so that the experts can sort that out. Second, school officials should have a zero-tolerance policy for threats, and threatening language of any sort can and should be considered a disciplinary offense, whether or not it constitutes a “true threat.”