Ninth Circuit Says Schools May Discipline Students Whose Off-Campus Speech Threaten Classmates

by Best Best & Krieger LLP
Contact

Ruling Strengthens Ability of School Districts to Suspend and Expel Students to Protect Students and Staff

Recognizing the increasing difficulties school administrators face in evaluating potential threats of violence and keeping their students safe without impinging on their constitutional rights, the Ninth Circuit Court of Appeals recently ruled that a student’s online messages, which were created off campus but threatened the safety of his school and classmates, both interfered with the rights of other students and made it reasonable for school officials to forecast a substantial disruption of school activities. As such, the Ninth Circuit found no First Amendment violation and affirmed the student’s expulsion.

In Wynar v. Douglas County School District, Landon Wynar, a sophomore at a Nevada high school, sent instant messages through the website MySpace from his home to his friends bragging about his weapons, threatening to shoot specific classmates, intimating that he would “take out” other people at a school shooting on a specific date and invoking the image of the Virginia Tech massacre. Alarmed, Wynar’s friends notified school authorities, who temporarily suspended Wynar for ten days. Following a formal hearing, the school board expelled Wynar for 90 days for making the threats. Wynar sued the school district under 42 U.S.C. § 1983, claiming his First Amendment free speech rights had been violated.

Under Tinker v. Des Moines Independent Community School District (1969) 393 U.S. 503, schools may prohibit speech that 1) might reasonably lead school authorities to forecast substantial disruption of or material interference with school activities or 2) collides with the rights of other students to be secure and to be let alone. Here, based on the particular and egregious facts of this case, the court confirmed that when faced with an identifiable threat of school violence, schools may take disciplinary action in response to off-campus speech that meets the requirements of Tinker.

The Ninth Circuit applied the Tinker test to the school district’s actions toward Wynar. The court noted that “the specter of a school shooting qualifies under either prong of Tinker.” Because Wynar specified a date for attacking named classmates in his messages and stated he had access to weapons and ammunition, it was reasonable for the school district, under the first prong of the Tinker test, to interpret Wynar’s messages as a real risk and to forecast a substantial disruption. Furthermore, the district did not need to wait for an actual disruption to materialize before taking action. Under the second prong of the Tinker test, the court found that “without a doubt” the threat of a school shooting impinges on students’ rights to be secure and to be let alone. Given these specific circumstances, the Ninth Circuit concluded that the school district did not violate Wynar’s First Amendment rights.

The U.S. Supreme Court has not yet addressed the applicability of its school speech cases to speech originating off campus. The Ninth Circuit continues to be careful not to hold that the Tinker test applies to all off-campus student speech and through this case again expressed its reluctance to try and craft a “one-size fits all” approach to off-campus speech. The approach set out by the Ninth Circuit is to continue to seek an appropriate balance between allowing schools to act to protect their students from credible threats of violence while recognizing and protecting freedom of expression by students. This particular decision strengthens the ability of school districts to suspend and expel students in order to protect students and staff from identifiable threats of violence, even when such threats originate off-campus.

Local law enforcement should always be contacted in any situation where the safety of a student and/or faculty member is compromised. In some instances, certain state laws could apply, thus strengthening the case against any student issuing such threats.

Written by:

Best Best & Krieger LLP
Contact
more
less

Best Best & Krieger LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.