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

by Best Best & Krieger LLP

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.

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.

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