Ninth Circuit Upholds Discipline Of Student For Off-Campus, Online Threat Of School Shooting

by Franczek Radelet P.C.
Contact

The Ninth Circuit Court of Appeals joined a growing number of federal courts of appeals that have addressed when public schools can discipline students for off-campus, online misconduct. The case involved multiple threats by a Nevada high school student, made on his own computer on his own time, that he would commit a school shooting. The court held that the school’s discipline of the student did not violate his constitutional rights, but took care to make clear that its holding was limited to threats of serious school violence. The court saved for another day the more difficult issue of when other types of non-threatening off-campus, online misconduct – such as harassment or bullying of staff or other students – can be the subject of school discipline.

The Facts

In Wynar v. Douglas County School District, a student of Douglas High School in Minden, Nevada sent a number of troubling instant messages through MySpace to classmates from his home computer. In the messages, he bragged about having a stockpile of weapons, threatened to shoot and “take out” particular students on the anniversary of the Columbine school shooting, and boasted that his victims would outnumber those in the Virginia Tech shooting – the deadliest school shooting to date. After some of the student’s friends reported the messages to school authorities, school officials interviewed the student, who admitted that he wrote the messages but claimed they were a joke. The school district expelled the student for 90 days for violating a policy against threatening other students. The student sued, arguing that his off-campus speech was protected by the First Amendment of the U.S. Constitution.

Appellate Court Decision

The ninth circuit found that the discipline decision was constitutional because the speech “might reasonably [lead] school authorities to forecast substantial disruption of or material interference with school activities” and interfered “with the rights of other students to be secure and to be let alone.” This is the familiar standard from the seminal U.S. Supreme Court case Tinker v. Des Moines Independent Community School District.

The court found that it was reasonable under the circumstances for school officials to take the threats seriously and to forecast a substantial disruption. The student explicitly named his school, threatened a school shooting, described how he would kill two named classmates, identified the particular date on which he would do so, and boasted that he had access to a stockpile of weapons and ammunition. The student’s references to Columbine and Virginia Tech also suggested an unhealthy fascination with school shootings. Although the student argued that the comments were just jokes, on those facts his threats were not so outrageous that they were clearly a joke. It was reasonable for the school district to take the threats seriously, especially when the student’s own friends thought they were serious enough to report him to school authorities.

The court also noted that although few courts have addressed what it means to interfere with the rights of other students to be secure and to be let alone, and although even the Supreme Court has recognized that the “precise scope” of the provision is unclear, a student’s right to be secure and to be let alone clearly covers the type of threat at issue in the case.

Limitations of the Case

The Wynar case is clear that school officials are justified in taking prompt action in the face of threats of school-wide violence by students such as that at issue in the case. The court cautioned, however, that its decision was limited to the facts of the particular case, and that it was not setting forth a one-size fits all standard that could be applied to all off-campus, online student misconduct. The court explained that “[a] student’s profanity-laced parody of a principal is hardly the same as a threat of a school shooting.” Indeed, the court refused to even decide whether Tinker applies to other types of off-campus student speech, such as a parody of a principal or bullying of fellow students.

The court also took a narrow view of the question of what connection off-campus, online student speech must have with the school environment to be subject to punishment. Some courts have required that there be a showing of a sufficient “nexus” between online speech and the school before discipline can be imposed, while others require a showing that it was reasonably foreseeable that a student’s off-campus, online speech would infect the school environment. The ninth circuit simply decided that, while the geographic origin of a student’s speech is not immaterial to the Tinker analysis, whatever the standard on geographic origin may be, it would be met by the type of threats at issue in the case.

Key Takeaways for School Leaders

The Wynar decision is yet another example of the very fact-specific approach that courts tend to take when analyzing discipline cases regarding off-campus, online student speech. Unfortunately for school leaders, this narrow approach by courts means there is relatively little guidance about when student speech that occurs off campus, but that nonetheless comes to the attention of school officials, can be disciplined. The case provides further support for decisions from other jurisdictions granting a wide range of deference to school officials faced with student threats. What is less clear is what actions can be taken to address other types of student off-campus, online misconduct, such as mocking of school officials or bullying of other students.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Franczek Radelet P.C. | Attorney Advertising

Written by:

Franczek Radelet P.C.
Contact
more
less

Franczek Radelet P.C. 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.