Scales.jpgThis blog post was authored by Shardé C. Thomas 

On August 29, 2013, the U.S. Court of Appeals for the Ninth Circuit held in Wynar v. Douglas County School District that a school can discipline a student in response to speech occurring off-campus if it meets the requirements set forth by the U.S. Supreme Court for prohibition of on-campus student speech.  Those requirements are set forth in the 1969 landmark case Tinker v. Des Moines Independent Community School District. There, the Supreme Court held that schools may prohibit speech if it “might reasonably [lead] school authorities to forecast substantial disruption of or material interference with school activities,” or if the speech collides “with the rights of other students to be secure and to be let alone.”

Wynar involved MySpace posts by a student at Douglas High School in Nevada. The posts contained increasingly violent and threatening messages sent from the student’s home computer to his friends.  In the messages, the student referred to the various weapons and ammunition he acquired.  He wrote about killing his classmates, referring to some of them by name, raping students, mimicking other school shootings, and the potential date of his shooting massacre. Alarmed, the student’s friends reported the situation to their football coach and then the school principal. The student was interviewed by two police deputies, questioned in the principal’s office, and taken into custody.  The school then suspended the student for ten days after school administrators met with him.  Ultimately, the student was expelled for 90 days for violating Nevada Revised Statute section 392.466(3), which requires a student who is deemed a “habitual discipline problem” to be suspended or expelled for at least one semester.  The student and his parents sued for violations of the student’s constitutional rights, negligence, and negligent infliction of emotional distress.

Both the trial court and the Court of Appeal upheld the school’s actions. The Court analyzed whether the school acted reasonably considering the information the school officials were provided.  The Court characterized the nature of the threats as “alarming and explosive.”  The Court determined that a school does not have to wait until an actual disruption occurs before it can take action.  “It was reasonable for Douglas County to interpret the messages as a real risk and to forecast a substantial disruption.”  The Court found it particularly important that the student’s speech could have potentially resulted in catastrophic harm, as the student’s messages invoked a fascination with other school shootings. The school was named in one of the student’s messages and a potential date was provided.  The Court compared Wynar to decisions by other courts in which the off-campus comments are not taken seriously. In Wynar, by contrast, the evidence showed the student’s friends were extremely alarmed and shaken by his comments. It should be noted that the Wynar Court did not discredit the student’s claim that his statements were jokes. Instead, the Court determined that even if they were jokes, the school reacted reasonably be proceeding as though they were not.

The Wynar decision is noteworthy because it is the first Ninth Circuit case squarely addressing a school’s ability to take disciplinary action against a student for speech that occurred off-campus.  Applying the Tinker factors, Wynar can support a school’s decision to discipline a student for certain off-campus speech involving violence if the speech could reasonably lead to a substantial disruption of school activities or if it collides “with the rights of other students to be secure and to be let alone.”  The Ninth Circuit’s underlying reasoning in Wynar supports that the more egregious and alarming the speech is, and the more specifically the school is targeted, the more likely courts will consider it to be a satisfactory basis for discipline.

The Court then addressed whether the student’s actions were interfering with other students’ rights to be secure and let alone.  The Court agreed with the Third Circuit that the speech had to be more than just offensive to some listener, but the Court did not elaborate on the threshold.  The Court determined that school shootings impinge on other students’ rights “without doubt.” Therefore, the school’s actions did not violate the student’s First Amendment rights.  However, the Court suggested that the school should have done more to help the student, and added that the justices “have observed before that ‘[s]imply expelling a student without providing some kind of counseling or supervision might not be the best response to a school’s concern for potential violence.’”

The Court then addressed the student’s procedural due process claim to determine whether the school provided the student with sufficient procedural safeguards prior to suspending him. Under Nevada law, students have a property interest in public education, which entitles them to due process before suspension. Before a suspension of 10 days or less, due process required the student to be given oral or written notice of the charges against him and an explanation of the evidence if he disputed the charges. The Court found that the due process requirements were satisfied.  It observed that school administrators met with the student at the detention center. Although the Court acknowledged that the school deviated from its own procedures, its actions were still constitutionally adequate.  The Court found it sufficient that the student, among other things, received written notice of the charges, a list of possible witnesses, and the right to be represented by an advocate. The Court also found that the school’s student handbook provided sufficient warning to the student.

Courts have long recognized that the constitutional rights of public school students are not necessarily the same as the First Amendment rights of adults.  The Wynar Court acknowledged that “[o]ne of the difficulties with the student speech cases is an effort to divine and impose a global standard for a myriad of circumstances involving off-campus speech.” The Court went on to say that they did “not need to consider at this time whether Tinker applies to all off-campus speech such as principal parody profiles or websites dedicated to disparaging or bullying fellow students.”

Although Wynar confirms a school’s ability to take disciplinary action for violent comments made off-campus, the analysis articulated Wynar must be conducted on a case by case basis. Therefore, when faced with violent statements made off-campus, if possible, a school should consult with legal counsel to determine the correct course of action.