John Doe, a Minor, by His Mother and Next Friend, Jane Doe v. Pulaski County Special School District

HEANEY, Circuit Judge,

with whom McMILLIAN, MORRIS SHEPPARD ARNOLD, and BYE, Circuit Judges, join, dissenting.

Because I believe the majority has undermined the scope of the First Amendment by failing to consider the unique circumstances of speech in a school setting, I respectfully dissent. I believe the proper inquiry before us is 1) whether J.M.’s written expression is protected speech or a true threat; and 2) if it is protected speech, as I believe it is, whether it is subject to regulation because it may cause substantial disruption or interfere with the rights of other students. The majority ignores the school context analysis and creates dangerously broad precedent by holding that any private utterance of an intent to injure another person is not entitled to First Amendment protection. I reject this reasoning because it violates the fundamental principles of the First Amendment. I would hold instead that J.M.’s written expression is constitutionally protected speech, but can be reasonably regulated by school administrators to prevent substantial disruption in the school setting.

I. True Threat Analysis

I agree with the majority that in the Eighth Circuit, a true threat is a statement that a reasonable recipient would interpret as a serious expression of an intent to harm or cause injury to another. I disagree, however, with the majority’s rejection of the district court’s determination that J.M. had not communicated a true threat to K.G. The district court’s factual findings do not constitute “a forbidden intrusion on the field of free expression,” nor are they clearly erroneous. The majority ignores the district court’s findings to conclude that J.M. intended to communicate a threat to D.M., and that a reasonable recipient of J.M.’s letter understood the letter to be a threat. This holding cannot be independently supported by the record. I would therefore affirm the district court.

United States v. Dinwiddle, 76 F.3d 913, 925 (8th Cir.1996) sets forth the standard for determining whether speech constitutes a true threat. The majority recites this standard, but omits analysis of how that standard is applied. Judge Richard Arnold explained in that well-reasoned opinion that “[t]he court must analyze an alleged threat ‘in the light of [its] entire *628factual context,’ ... and decide whether the recipient of the alleged threat could reasonably conclude that it expresses ‘a determination or intent to injure presently or in the future.’” Id. (quoting United States v. Lee, 6 F.3d 1297, 1306 (en banc) (Lay, J., concurring in part and dissenting in part); Martin v. United States, 691 F.2d 1235, 1240 (8th Cir.1982)). The court in Dinwiddie relied on the following facts to conclude that the speaker had issued a true threat:

Mrs. Dinwiddie made these statements not once or twice, but about 50 times. She communicated them directly [with a bullhorn] to Dr. Crist, who reacted to them by wearing a bullet-proof vest. Finally, Dr. Crist was aware that Mrs. Dinwiddie, a well-known advocate of the view that it is justifiable to use lethal force against doctors who perform abortions, had attacked ... a Maintenance Supervisor at Planned Parenthood, physically obstructed potential patients who were trying to enter Planned Parenthood, ... and told ... Planned Parenthood’s Executive Director, “Patty, you have not seen violence yet until you see what we do to you.” These facts gave Dr. Crist reason to believe that Mrs. Dinwiddie had a propensity to use force.

Dinwiddie, 76 F.3d at 925-26. There is no question that her series of communications to Dr. Christ amounted to a true threat.

It is unclear how the majority could conclude that the facts before us rise to the level of a Dinwiddie true threat, given the entire factual context of J.M.’s written expression. During summer vacation, J.M., a fourteen-year-old recipient of a certificate of honor from the Greater Jones-boro Chamber of Commerce, and a student in good academic standing with a record of good behavior, wrote a vile letter that suggested he would rape, sodomize, and murder his ex-girlfriend, K.G. He placed the letter on his bureau or shelf in his bedroom, and apparently forgot about it.5 Weeks, if not months,6 later, a friend, D.M., discovered the letter on the shelf, and after protest, J.M. let D.M. read it. KG. was informed of the contents of the letter before she saw it, but did not seek help from adults. J.M. discovered on the second day of his eighth-grade year that upon KG.’s request, and to gain KG.’s favor, D.M. had stolen the letter from his room and shown it to K.G., who reported him to school authorities. KG. was frightened by the message and slept with the lights for three nights, but was otherwise calm. A police report was filed, but the county attorney did not press charges, and J.M. apologized to and hugged the girl and her mother at the church they attend together before the school board voted to expel him.7 J.M. and KG. continue to attend school together, without incident. *629This entire context must be considered in determining whether J.M. intended to communicate the threat and whether a reasonable person in KG.’s position would consider the letter a true threat.

II. Intent to Communicate

The majority concludes on the basis of the facts recited above that J.M. intentionally or knowingly communicated a threat to K.G. by allowing D.M. to read the letter. The majority correctly notes that there must be some intent to communicate a threat, yet the majority unreasonably stretches facts and law to find that J.M. had the requisite intent to do so. Whether J.M. meant to communicate a threat is a finding of fact that should be reviewed under a clearly erroneous standard. The district court’s conclusion that J.M. lacked the necessary intent is supported by the evidence. J.M. never intended anyone to see his letter. He wrote it in the privacy of his bedroom and placed it on his shelf away from the eyes of others. When D.M. found the letter, J.M. immediately grabbed it from him, indicating that he did not want to publicize his private writings. J.M. gave in and unwisely allowed D.M. to read it, but he refused to let D.M. have a copy of the letter. Furthermore, D.M. had to steal the letter to deliver it to KG. J.M. never gave D.M. his permission to show the letter to anyone. D.M. understood at all times that the letter was never meant for KG.’s viewing. I reject the majority’s conclusion that J.M. intended to communicate the letter.

Rather than defer to the district court’s reasonable factual findings on the matter, the majority attempts to turn the issue into a legal question. I disagree with the majority’s conclusion that J.M.’s acquiescence to D.M.’s request to see the letter amounts to the communication of a threat. The cited legal authority fails to support the proposition that J.M.’s actions constitute an intent to communicate. The court cites United States v. Crews, 781 F.2d 826 (10th Cir.1986), and a decade-old Hawaii Supreme Court case, State v. Chung, 75 Haw. 398, 862 P.2d 1063 (1993), for the proposition that the alleged threatening communication need only be conveyed to a third party to rise to the level of a true threat. These cases lend little insight to the inquiry before us. Crews informs us of the special security concerns related to threats on the President’s life, even when the threat never reaches the President’s ears. The case involves a psychiatric ward patient who, after taking a large dose of anti-depressant medication, told a nurse that he would shoot President Reagan if he came to the hospital, an unlikely visit. Id. at 829. The court concluded he had issued a true threat. Yet, unlike the situation here, a federal statute specifically prohibits making threats against the President to anyone, precluding any sort of analysis of the context within which the statement was made. See 18 U.S.C. § 871 (1976); see also United States v. Welch, 745 F.2d 614, 615-16, 620 (10th Cir.1984) (holding that man with minimal brain dysfunction who blamed President Reagan for unavailability of vocational training and stated that if President Reagan were in town he would get a rifle and shoot him, had issued a true threat); but see Watts v. United States, 394 U.S. 705, 706, 708, 89 S.Ct. 1399, 22 L.Ed.2d 664 (1969) (holding that protester’s public statement that “[i]f they ever make me carry a rifle the first man I want to get in my sights is L.B.J. They are not going to make me kill my black brothers,” constituted political hyperbole, not a true threat). The Crews analysis of a threat against the President is inapplicable to the situation before us, which involves a teenage gossip-circle about a break-up, not the specifically pro*630hibited threatened assassination of our national leader.

Chung also fails to shed light on our analysis of J.M.’s letter, and, in any case, we are not bound to follow Hawaiian precedent. In that case, a teacher with a history of mental illness told four co-workers that he intended to kill the principal. Chung, 862 P.2d at 1067-68. On school grounds he showed each teacher the gun or ammunition he planned to use to carry out his plan. Id. He had a months-long strained relationship with the principal, he violated his ten-day administrative leave by being on campus, he brought a semiautomatic pistol to school, and he initiated conversations with others to tell them about his plan. The teachers believed he could carry out the threat. In contrast, J.M. never initiated discussion about the contents of the letter to anyone, he was not a known disciplinary problem at his school, he did not possess weapons, he participated in church activities with KG. throughout the summer, and he had civil conversations with her even after she knew about the contents of the letter. Furthermore, J.M. did not intend to convey a plan to harm K.G. when he let D.M. read the letter. The majority’s reliance on the Chung holding is misguided.

The facts in Roberts v. State, 78 Ark.App. 103, 78 S.W.3d 743 (2002), are more closely aligned with the facts before us. RobeHs holds that in some circumstances, third-party knowledge of an alleged threat it is not enough to constitute a true threat. In that case, a seventh-grader wrote a “Hit List (To Shoot List)” in his notebook during music class. The teacher regularly collected the students’ notebooks to assess their class work. When she noticed that Roberts was not engaged in the lesson, she picked up his notebook and saw the “Hit List” heading on the page and nineteen names underneath the heading, at least one of which belonged to a student she knew. Although Roberts allowed his teacher to read his list, it was unlikely that he gave his consent voluntarily. The court held that there was insufficient evidence to conclude that the list had been written with the purpose of terrorizing another pursuant to Ark.Code Ann. § 5-13-301 (Repl.1997)8 and explained, “[wjhile it is clear that the statute does not require that the threat be communicated directly to the person threatened, the gravamen of the offense is the communication, not utterance.” Id. at 746 (citation omitted). The court concluded that the statute did not “impose criminal liability for threats made in reckless disregard of the risk causing the terror.” Id. Roberts recognizes that third-party knowledge of the contents of an alleged threat against another is not enough to conclude that a true threat has been issued. Although our court is not bound to follow this case, I believe it accurately and reasonably sets forth the analysis we should follow when reviewing an alleged intent to communicate a threat.

III. Reasonable Response

Even if we were to conclude that J.M. intended to communicate the letter to D.M., a reasonable recipient in HG.’s position would not have viewed the letter as a threat.9 The majority finds that a reasonable recipient would perceive the letter as *631a threat because of the contents of the letter; because J.M. acknowledged that he had written the letter; because K.G. was upset and slept with the lights on; and because J.M. told KG. that he had shot a cat and was a member of the Bloods. I address each of these concerns separately.

Admittedly, the content of the letter is chilling. At its core, however, the letter is expression that was never intended to be communicated to K.G.; it was a private response to his break-up. Furthermore, the record shows that K.G. knew that J.M. did not want her to see the letter. The record demonstrates that, regrettably, J.M. thought Eminem’s lyrics were the best source of inspiration'for his catharsis. Today’s teenagers witness, experience, and hear violence on television, in music, in movies, in video games, and for some, in abusive relationships at home. It is hardly surprising that such violence is reflected in the way they express themselves and communicate with their peers, particularly where adult supervision is lacking. The shocking contents of the letter alone, however, do not warrant the finding of a true threat. As Dinwiddie notes, the entire context must be considered. “When a threat is not communicated nor intended to be communicated to the object of the statement, ... some further evidence that the individual has done more than think evil thoughts ought to be shown. Proof of actual intent to carry out the threat is needed to demonstrate the reality of the threat itself. Any other rule vests far too much power in the government at the expense of the individual.” United States v. Crews, 781 F.2d 826, 837 (10th Cir.1986) (Logan, J., dissenting).

J.M.’s admission that he wrote the letter is inconclusive as well. Once his social circle knew about the contents of the letter, he denied authorship of it, allowing one to conclude that he was embarrassed he had written it. He later admitted to having written the letter, but nothing in the record indicates that he did more than acknowledge that he had written awful things about K.G. He never issued verbal threats against K.G. during their multiple phone conversations over the course of the summer, nor did he ever affirm his intentions to carry out the actions described in the letter.

KG.’s response is certainly relevant to the inquiry, though it is not determinative because, the objective standard in our inquiry requires consideration of the reasonable recipient’s response. Given the entire context, it was unreasonable for K.G. to believe that the letter was a true threat. Although K.G. felt shocked and scared by the contents of the letter, the record reveals that J.M. never directly communicated a threat to her. Over at least a two-month period, K.G. heard about the letter before it was brought to school; initiated conversations with J.M. and others about the contents of the letter; told her friend to steal the letter from J.M.’s room; continued to participate in youth group activities with J.M., even after he admitted that he had written violent things about her; and after having read the letter months after it was written, reportedly slept with the lights on. She also hugged J.M. after he apologized for his conduct. Although she knew who wrote the - disturbing contents of the letter before it was brought to school, she did not alert a parent, a Sunday school teacher, or other adult about her concern. Rather, she solicited information and the letter itself through her friends as part of what appears to be a complicated tangle of teenage networking. Although a reasonable person would naturally be shocked by the contents of the letter, it is unreasonable for K.G. to have concluded that her life wasdn danger. She knew that J.M. did not want her to see the letter and that they had interacted in a *632non-violent manner at all times of their acquaintance.

Had J.M. had a criminal record, or handed the letter to her directly, or previously expressed an intent to hurt her, it would be far easier to conclude that KG. reasonably believed that J.M. intended to impose harm. Those are not the facts of this case. K.G. and her friends had to work hard to obtain a copy of the letter, indicating J.M.’s reluctance to make it a public issue. I therefore would not conclude that her response was reasonable.

Finally, the majority relies on J.M.’s reputation in concluding that a reasonable recipient could conclude that he had issued a threat. K.G. testified that she thought J.M. had killed a cat and remembered that J.M. had boasted that he, a white kid from rural Arkansas, was a member of the Bloods. This amounts to teenage bravado at best, and does not warrant serious consideration by this court.

A comparison of this case and others in which our circuit has found a true threat demonstrates how far the majority stretches the law today. In concluding that J.M.’s letter constitutes a true threat, the majority has placed this boy in the company of the following cast of characters: a pro-life advocate who physically assaulted an employee at Planned Parenthood and, over a period of a year, warned a doctor with the aid of a blow horn nearly fifty times that he should remember Dr. Gunn, the doctor who was murdered because he performed abortions, United States v. Dinwiddie, 76 F.3d 913, 925 (8th Cir.1996); three teenage boys who burned three crosses in the yards of African American families, United States v. J.H.H, 22 F.3d 821 (8th Cir.1994); a convicted murderer who sent a judge a letter informing him that he will “see you in hell before I permit you to [revoke custody of my son],” Martin v. United States, 691 F.2d 1235, 1240 (8th Cir.1982); an antiabortion activist who parked and left unattended two Ryder trucks in the entrance driveways of two Little Rock abortion clinics after the Oklahoma City bombing, causing the evacuation of the area and the call for a bomb squad investigation, United States v. Hart, 212 F.3d 1067 (8th Cir.2000); a man charged with bombing a building and who sent twenty-three letters to the home and work addresses of judges and government workers, threatening to kill them, United States v. Bellrichard, 994 F.2d 1318 (8th Cir.1993). J.M.’s conduct does not resemble the acts of these criminals. He wrote a disturbing but private letter that was not intended to be viewed by anyone. It would be a great injustice to conclude that his writings rise to the level of a true threat: there was no communication of a true threat, nor could there have been a reasonable belief that he intended to carry out the actions in the letter.

IV. School Board Action

Because I would find that J.M.’s letter is not a true threat and is entitled to First Amendment protection, I next examine whether the school board acted reasonably in regulating J.M.’s speech. A fundamental principle underlying the freedom of speech is that the government may not censor the expression of an idea simply because the government or society finds it offensive or disagreeable. See Texas v. Johnson, 491 U.S. 397, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989). Freedom of speech is preserved in our nation’s schools, but the exercise of speech rights is not absolute in the educational context. Although censorship of student speech is presumptively invalid, it can be prohibited to prevent potentially disruptive conduct. See 3 JAMES A. RAPP, EDUCATION LAW § 9.04 (2001).

*633In the context of political expression on school campuses, the Supreme Court has held that students may express their opinion on controversial subjects, provided such expression is accomplished without materially and substantially interfering with disciplinary objectives in the operation of the school. Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 512-13, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969). “[Cjonduct by the student, in class or out of it, which for any reason' — whether it stems from time, place, or type of behavior — materially disrupts classwork or involves substantial disorder or invasion of the rights of others is, of course, not immunized by the constitutional guarantee of freedom of speech.” Id. at 513, 89 S.Ct. 733.

With regard to the use of profane language in student speeche, Bethel School District No. 403 v. Fraser, 478 U.S. 675, 676, 683, 106 S.Ct. 3159, 92 L.Ed.2d 549 (1986), informs us that it is “a highly appropriate function of public school education to prohibit the use of vulgar and offensive terms in public discourse;” and that “[t]he determination of what manner of speech in the classroom or in school assembly is inappropriate properly rests with the school board.” Tinker and Fraser establish that language that would normally be considered protected speech may be regulated in a school setting to prevent disruptive student conduct. School administrators have a duty to ensure that students are educated in a safe environment, and this safety may come at the cost of limited student speech rights. See Lisa M. Pisciotta, Beyond Sticks and Stones: A First Amendment Framework for Educators Who Seek to Punish Student Threats, 30 Seton Hall. L.Rev. 635 (2000).

The majority acknowledges that the school board’s expulsion of J.M. and the elimination of the option to attend the alternative school in the district was unnecessarily harsh, yet it defers to the board’s discretion. While I agree that we should not interfere with school board decision-making where it has acted constitutionally, we are obliged to impose our judgment where there has been an abuse of discretion, as in this case. “The system of public education that has evolved in this Nation relies necessarily upon the discretion and judgment of school administrators and school board members, and § 1983 was not intended to be a vehicle for federal court correction of errors in the exercise of that discretion which do not rise to the level of violations of specific constitutional guarantees.” Id. (citing Epperson v. Arkansas, 393 U.S. 97, 104, 89 S.Ct. 266, 21 L.Ed.2d 228 (1968); Tinker, 393 U.S. at 507, 89 S.Ct. 733) (emphasis added). “Despite this considerable discretion, courts have recognized that school boards must exercise their powers ‘in a manner that comports with the transcendent imperatives of the First Amendment.’ ” Stark v. Indep. Sch. Dist. No. 640, 123 F.3d 1068, 1073 (8th Cir.1997) (quoting Edwards v. Aguillard, 482 U.S. 578, 583-84, 107 S.Ct. 2573, 96 L.Ed.2d 510 (1987) (citation omitted)). “While this court must ordinarily defer to the judgment of a body vested with such powers, we are not so obligated when the exercise of the power constitutes an abuse of discretion.” Bowman v. Pulaski County Special Sch. Dist., 723 F.2d 640, 645 (8th Cir.1983).

The school board faded to exercise sound, reasonable, and legal decision-making in its review of J.M.’s conduct. On August 23, 2000, Principal Allison recommended that J.M. be expelled for the year. Recommendation for Expulsion Notice, App. of Trial Exhibits, Ex. 3. Sometime after that date but before the September 12 school board hearing, Dr. Welch of the Pupil Personnel Committee recommended that J.M. attend Alpha Academy, the alter*634native school in the district, for a semester with the possibility of returning to North-wood Junior High for the second semester, contingent upon good behavior while at Alpha. Transcript of Meeting with Director of Pupil Discipline, App. of Trial Exhibits, Ex. 5 at 8. Dr. Welch reasoned, “I do not want to see Josh on the street and out of school because of what Mr. Calhoun has told me, that I think basically he’s a good kid.” Id. at 9. Dr. Welch informed the family that if they were unhappy with his decision they could appeal to the school board, which they opted to do.

Before the school board hearing began, it appears the board had concluded that J.M. had issued a “terroristic threat” without actually considering whether the letter was written with the pui-pose of terrorizing another person, as required by case law and its own Rule 36. While it would be unreasonable for a body of non-attorneys to conduct the complex true threat analysis that this court attempts today, it is an abuse of discretion for the board to exclude a reasoned analysis of its rule as applied to the context of the case before it.

The hearing took place at 10 p.m. J.M., J.M.’s parents, Mr. Allison, Assistant Principal Calhoun, and Dr. Welch testified. Rather than acting as a neutral decision-making body and allowing J.M. to explain his side of the story, the board devoted the first part of the meeting to convincing J.M.’s family that Alpha Academy was a decent place and that J.M. would probably benefit from his experience there. From that point, several board members took the opportunity to chastise J.M. and his family for not asking K.G. to be at the meeting, and for allowing their son to listen to rap music. Transcript of School Board Meeting, App. of Trial Exhibits, ex. 6 at 23, 42. One board member made sweeping generalizations of J.M.’s frame of mind: “[I] understand how teenage boys can react at that age, but this goes beyond that. This goes beyond a level that — quite frankly, it scares the begeebees out of me .... [T]his shows terrible, terrible problems taking place in a person’s mind, whether he got it off of tapes or not, whether he was listening to Eminem or other rap stars.” Id. at 29. At another point, board member O’Brien claimed to know a menace when he sees one: “This scares me. We’ve had kids in here who I’ve expelled or we’ve done whatever, I’ve never been scared to be in their presence. I looked into your eyes a minute ago, I’ve practiced criminal law for five years, you weren’t looking back at me. There wasn’t anything in your eyes. There wasn’t any remorse. That scares me.” Id. at 44.

Concerned that J.M. did not understand the severity of expulsion, O’Brien demanded, “[y]ou don’t know what it means to be expelled, do you?” Id. at 45. Unsatisfied with J.M.’s response, O’Brien provided the “correct” answer: “[t]o maybe not have a life. You may have a problem getting into other school districts, you may never finish school. Your life may now be over. Do you get that?” Id. To provide J.M. with questionable context regarding the severity of his transgression, O’Brien stated, “ [k]id, I tell you, I want to help you, but this is scary stuff. It’s not [as though] you slapped some girl’s rear end, you know.” Id. Finally, another board member assured J.M. that “in a court of law this would be treated more seriously than terroristic threatening. It’s a threat of serious physical injury or property damage.” Id. at 48-49. Apparently not realizing that the county attorney had decided not to press charges against J.M., the board member wanted to make sure that there was a police report taken. Id. at 49.

A motion was made to impose expulsion against J.M., and after a 5-2 vote in favor *635of expulsion was taken, the board remained uncertain as to whether they had expelled him for a semester or the entire year, and whether J.M. would be allowed to attend Alpha Academy. They voted again, and decided to expel J.M. for the year without the option of attending the alternative school. Whereas J.M.’s family thought they were appealing Dr. Welch’s recommended semester expulsion from Northwood with the option of attending Alpha Academy, they left the meeting with a far more stringent punishment imposed against J.M. When J.M’s father expressed concern about this, Ms. Cherven, who appeared to have allowed a family member’s experience with threatening conduct sway her decision, exclaimed, “[n]ow, sir, what did you expect us to do? I mean, in all honesty, when you decided to appeal to the school board, you didn’t want to accept Dr. Welch’s recommendation, did you think that we were just going to put your child back in school? Is that what you thought?” Id. at 64.

The board’s draconian punishment is unprecedented among the school threat cases across the nation. Consider these: a fifteen year old student who exclaimed to a counselor that she was so angry she “could just shoot someone,” or “[i]f you don’t give me this schedule change, I’m going to shoot you,” was suspended for three days, Lovell v. Poway Unified School District, 90 F.3d 367, 369 (9th Cir.1996); an adjudicated delinquent who wrote a rap song that threatened his female friend’s life and which he handed to her at school, was sentenced to 24 months supervised probation and seven days in a juvenile detention facility, but was allowed to attend school, Jones v. State, 347 Ark. 409, 64 S.W.3d 728, 732 (2002); a seventh-grader who was placed on nine months probation and ordered to complete forty hours of community service for writing a “hit list” at school, discovered by his teacher, but whose case was dismissed and order vacated by appellate court because there was insufficient evidence to find a true threat, Roberts, 78 S.W.3d at 744.

There is something fundamentally wrong with our system of justice if we willingly revoke a non-offending teenager’s privilege to attend public school, particularly where an alternative school is available, and where the responsible school authority recommended the alternative school as a constructive way to handle the matter. J.M., of all people, belongs in school. It does not pass unnoticed by this court that teachers and administrators in today’s world are expected to undertake greater responsibilities than what the one-room schoolhouse teacher shouldered. Educators serve as surrogate parents, psychologists, social workers, and security guards, above and beyond their normal teaching responsibilities. They are charged with the duties of creating a safe learning environment, teaching clear communication, and protecting students’ constitutional rights. It is clear that we as parents, neighbors, members of religious communities, political leaders, and members of the court cannot alienate teachers and administrators as they grapple with issues of violence in the classroom. It is not acceptable, however, to lower the bar for what constitutes a true threat and expel a “good kid” with a good scholastic record when other remedies are available. Nor should J.M. be more severely punished than what was originally recommended because he exercised his right to appeal Dr. Welch’s decision to the school board.

Because I believe that J.M.’s written expression was protected speech, I would affirm the district court’s holding that J.M. had not issued a true threat. Although I agree that J.M.’s conduct required disciplinary action, the school board’s response *636was an abuse of discretion. I would therefore affirm the district court.

. In the record there are two copies of the writing at issue. To an untrained eye, the handwriting in one copy is different from the other, suggesting that someone other than J.M. copied the contents of his letter. Neither party raises that issue, so we do nothing more than note the difference in handwriting here.

. The record fails to provide clear dates about when J.M. wrote the letter and when D.M. discovered it. J.M.'s father stated at the September 12, 2000 School Board Meeting that the letter sat in J.M’s room for two months before D.M. read it. Transcript of School Board Meeting, App. of Trial Exhibits, Ex. 6 at 16.

.J.M. explained at the September 12, 2000 School Board Meeting that on September 10, 2000, he approached K.G. and her mother at church to apologize: "I told her mom and [K.G.] that I was sorry for all this stuff that had happened. And then her mom hugged me and then [K.G.] hugged me.” Transcript of School Board Meeting, App. of Trial Exhibits, Ex. 6 at 33.

. The statute prohibits any communication uttered "with the purpose of terrorizing another person,” where the speaker "threatens to cause death or serious physical injury or substantial property damage to another person.”

. I note here that there is some confusion in the majority's opinion about who is a reasonable recipient. The majority finds an intent to communicate the threat to D.M., but then considers the effect of the threat from a reasonable person’s perspective in K.G.'s shoes.