Michael McNeil v. Sherwood School District 88j
918 F.3d 700
9th Cir.2019Background
- CLM, a Sherwood High student, wrote a privately kept journal “hit list” naming 22 students and one former employee with phrases like “I am God” and “All These People Must Die.”
- CLM’s mother found the journal, told a therapist; the therapist and a crisis hotline notified Sherwood Police, who searched the home and seized firearms and ammunition belonging to CLM.
- CLM admitted to creating the list, said he sometimes thought killing relieved stress, but also said he would never carry it out; police declined to press criminal charges.
- School officials learned of the list, knew CLM lived very close to the school, and that the list had become public (social media, media inquiries); parents and students reacted with fear, absences, transfers, and reports of a student carrying a knife for protection.
- The district suspended and then expelled CLM for one year after an administrative hearing, citing the list as a threat and a substantial disruption; CLM and his parents sued under 42 U.S.C. § 1983 for First and Fourteenth Amendment violations.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether school may regulate off-campus, private threatening speech | McNeil: school lacked authority because CLM never intended to communicate the list to others | School: off-campus threats may be regulated when they bear nexus to the school and threaten safety | Court: school may regulate off-campus speech based on totality of circumstances; intent to communicate is relevant but not dispositive |
| Whether expulsion violated Tinker (substantial disruption / rights of others) | CLM: expulsion unconstitutional because speech was private/off-campus | School: list caused foreseeable disruption, invaded students’ right to be secure; expulsion was reasonable to preserve safety | Court: expulsion did not violate First Amendment under Tinker given credible threat and material disruption |
| Whether parents’ substantive due process right to choose educational forum was violated | McNeils: expulsion interfered with their fundamental right to choose CLM’s education | School: parental rights diminished after enrollment; discipline and school operations are within school authority | Held: parents’ right not infringed; discipline did not deprive them of the fundamental forum choice |
Key Cases Cited
- Tinker v. Des Moines Indep. Cnty. Sch. Dist., 393 U.S. 503 (U.S. 1969) (students retain First Amendment rights at school; discipline allowed to prevent substantial disruption)
- Wynar v. Douglas County Sch. Dist., 728 F.3d 1062 (9th Cir. 2013) (schools may discipline for off-campus speech when there is an identifiable, credible threat of school violence)
- C.R. v. Eugene Sch. Dist. 4J, 835 F.3d 1142 (9th Cir. 2016) (foreseeability and proximity can tie off-campus conduct to the school)
- LaVine v. Blaine Sch. Dist., 257 F.3d 981 (9th Cir. 2001) (schools may act preventatively to address threats even if police/psychiatrists decline involuntary commitment)
- Porter v. Ascension Parish Sch. Bd., 393 F.3d 608 (5th Cir. 2004) (off-campus, private expression without intent to communicate may be protected where no credible threat exists)
- Kowalski v. Berkeley Cnty. Schs., 652 F.3d 565 (4th Cir. 2011) (nexus test and context for off-campus online speech discipline)
- Troxel v. Granville, 530 U.S. 57 (U.S. 2000) (parental rights as fundamental liberty interests)
- Fields v. Palmdale Sch. Dist., 427 F.3d 1197 (9th Cir. 2005) (parental educational forum choice is a fundamental right but is diminished after enrollment)