Reconsidering True Threats: What Was the Intent?

Due to the increase in student threats, many school officials have had some form of threat assessment training. But the underlying question remains: when can a school discipline a student for making a threat?

School officials may discipline a student for speech in accordance with the student handbook and board policy when the speech is a “true threat,” which is a statement where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence against a particular individual or group. “True threats” are not protected by the First Amendment.

Recently, the U.S. Supreme Court provided guidance on how to analyze a true threat. The Court now requires that for a statement (electronic, written, or verbal) to be a “true threat,” the speaker must have some subjective understanding of his or her statement’s threatening nature. Counterman v Colorado, Case No. 22-138 (2023). The Court ruled that this standard is met by demonstrating that (at a minimum) the speaker consciously disregarded a substantial and unjustifiable risk that the speech will cause harm to another. This decision establishes a higher standard for finding that a true threat was made.

To avoid reaching the wrong conclusion on whether the student subjectively intended to convey a threat, we recommend taking a “belt and suspenders” approach to student discipline. In addition to conducting a true threat analysis, we recommend conducting a school disruption analysis. School officials may discipline a student in the absence of a true threat if the speech meets the Tinker standard, which requires the speech to create a substantial disruption to the school environment or school officials can reasonably forecast a substantial disruption. Even if school officials do not conclude the student made a true threat because the student did not understand their statement was threatening, the student may still be disciplined for the speech when the student’s speech substantially disrupts the school’s operations (e.g., the speech causes a lockdown or results in many students or staff staying home due to fear), or school officials reasonably believe the speech will substantially disrupt the school. Any discipline still must, of course, be issued in accordance with the student handbook, applicable board policy, and state and federal law.

Evaluating student speech involves a fact-intensive analysis. Importantly, not every statement about violence constitutes a true threat. Before disciplining a student for allegedly threatening speech, school officials should consider the following:

1. Did the student intend for the speech to reach the school community?
2. Did the student intend to harm the school community?
3. Did the student have the ability to carry out the threat?
4. Did the threat substantially disrupt the school setting, or can school officials reasonably forecast that the school setting will be substantially disrupted?

If school officials cannot answer “yes” to at least one of these questions, disciplining the student would likely violate the First Amendment and could result in costly litigation, payment of a student’s attorney fees, and, in some cases, personal liability for an administrator or teacher.

As always, school officials should ensure before issuing any discipline that any investigation is thoroughly documented, and that they can clearly articulate either why the speech constitutes a true threat or how such speech created (or was reasonably forecasted to create) a disruption.