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.
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.