John Doe, a Minor, by His Mother and Next Friend, Jane Doe v. Pulaski County Special School District ( 2002 )

McMILLIAN, Circuit Judge,

dissenting.

I join Judge Heaney’s dissenting opinion and also write separately because I believe, first, that J.M.’s statement made in the privacy of his home was protected speech. That statement was not a true threat.

In addition, and of equal importance, I question whether the school had any legitimate authority over such a statement, made in the privacy of his home, not at school or during school hours or using school equipment, which was stolen from his home by one of his friends, at the request of another, and then turned over to school officials. If anything, the statement was arguably a police matter, for which, I note, the local prosecuting attorney refused to issue any charges.