Bruce Lavine, as Next Friend of James Lavine James Lavine v. Blaine School District, a Municipal Corporation Tim Haney Dan Newell Karen Mulholland

this wаs not a part of law “raise the inference suspicion on the reasonable finding any in routine search.” Such a labels I also concur required. enforcement mechanic, by a Inspec- routine dismantlement as I believe the Customs the result justify bumper, from the removal of fender suspicion tors had a reasonable category. inspection. non-routine As discussed matter what its this search no above, the use of force that somehow al- unable, however, to concur I am damages or the vehicle is far more ters opinion III analysis in Part of the simple disassembly than intrusive very is a goes too far. There believe ma- reassembly that occurred here. The or the removal real distinction between jority opinion also focuses on the inherent disassembly part of of an automobile psychological pos- fear that stems from the inspection, ap- and the ordinary course sibility that a mechanic not of the detain- force in order to plication of destructive choosing may fail to ee’s reassemble States v. inspection. facilitate See United in a safe manner. The vehicle and reliable (10th Cir.1989) Carreon, 872 F.2d reassembly replace- negligent risk of required (drilling camper into reasonable ment create fear that would never be Rivas, v. suspicion); United States circumstances, any including overcome in (5th Cir.1998) body into (drilling F.3d 364 simplest dismantlement. trailer was not routine search and re- quired suspicion); reasonable United reasons, For I cannot concur in these (1st Cir.1995) Robles, v. 45 F.3d 1 States analysis opinion. in Part III of this (drilling part required into machine rea- suspicion). sonable example here is an

The search issue simple disassembly gas of a tank in ordinary inspection. course of As the pointed out:

district court great.

The intrusion here was

Nothing was Some bolts broken. unscrewed, the tank was low-

were LaVINE, Bruce as next friend of any connection from ered. There wasn’t LaVINE; LaVine, James broken, the tank to the vehicle was Plaintiffs-Appellees, just straps place, that held it in so It is not restrapped it could back. glassed it is or welded like bonded DISTRICT, a munic BLAINE SCHOOL place they had to break the where corporation; Haney; Dan ipal Tim removed, hoses were

welds. Two Mulholland, Newell; Defen Karen hose, sending and the and the filler hose dants-Appellants. cap un- tank was lowered and the screwed, marijuana. and there was the No. 00-35303. in a matter inspection

This was conducted Appeals, United States Court alter- permanent of 10-15 minutes with no Ninth Circuit. resulting ation or harm to Molina-Tara- zon’s vehicle. Jan. majority’s opinion seizes on use FISHER, B. FLETCHER and employment of a mechanic to Before:

of tools and SCHWARZER,* safety question. Because existence of a and Judges, Circuit statute contained no ex- Washington the Judge. District “suspen- press provision for immediate Order; by Judge Dissent sion,” ‍‌​​​‌​‌​​​​​​‌​​​​‌‌‌‌​‌‌‌​​‌‌‌​​‌​‌​​​‌‌​​​‌‌​‌‍“emergency the panel treated REINHARDT; by Judge Dissent as if it were such a expulsion” section KLEINFELD so elo- Judge As Kleinfeld provision. оut, so, doing panel in quently points

ORDER my opinion, largely erred —in because unanimously voted to panel approved has of the impression that it left petition rehearing discipline for filed that sim- deny appellees’ imposition discipline, of and that violated Judge ply Fisher voted to was not warranted August rights. First Amendment the student’s reject rehearing for en suggestion banc, Judge Judge Fletcher join I do not in the intro- Specifically, rejection of recommended Schwarzer Judge Kleinfeld’s ductory paragraph of rehearing en suggestion for banc. of either dissent or in the first sentence paragraphs the fourth or seventh sugges- full court advised of the Otherwise, Analysis agree fully I section. An rehearing en banc. active tion for with his dissent. a on whether to re- judge requested vote only en banc. The matter I would add that at times like those hear the matter confronts, especially it is this nation now majority a of the votes of failed to receive important that the courts remain sensitive judges active in favor of en the nonrecused Amendment, to the demands of the First 35(b). R.App. Fed. P. banc consideration. provision very that underlies the existence rehearing denied and petition Hartlage, Brown v. See democracy. our suggestion rehearing en banc is 1523, 71 L.Ed.2d rejected. (1982) (“[T]he Amendment [is] First guardian democracy.”) of our First REINHARDT, Judge, Circuit judicial scrutiny should Amendment now dissenting rehearing from denial of en height, at its the individual whether banc: schoolboy, right- before us is a troubled аgree Judge I with most of what While to-life-activist, outraged an environmental- join says Kleinfeld and therefore his dis- ist, sympathizer, any other Taliban sent, I do not share bleak view of the person disapproves of or more of who one rights effect of this decision on the any policies our nation’s officials or agree students in this circuit. I do not reason whatsoever. that the erroneous result at in this arrived KLEINFELD, court, Judge, with compels case or authorizes this Circuit KOZINSKI, joins Judge, whom courts, cases, Circuit uphold district future REINHARDT, Judge, joins Circuit discipline impinges on the First dissent, except separate as set forth students, Amendment even activities rehearing dissenting from denial of en emotionally when those students are dis- banc: opinion panel’s turbed. read the essen-

tially approving only suspension a brief today, After members of the black pending clique high of a student determination of trench coat schools * fornia, Schwarzer, sitting designation. W Honorable William Senior Dis- Judge trict for the Northern District of Cali- father,” have to hide violence situation with his States will western United parked had his car in free James the barn after They have lost their their art work. to, teacher, administrator, his father told him not his father threw If a speech rights. car, a rock at James’s called disturbing, they their art or student finds police. fights James had twice been in though they say punished, can be even boys involving pushing, hitting with other defamatory or indecent nothing disruptive, before, kicking. years and Two he had harm and do not intend to threaten or confided to the school counselor he may anyone. officials now subor- thought had about suicide. He had recent- expression freedom of to a dinate students’ ly up girlfriend, broken with his whose making high cozy places, schools policy of mother later told the school that James centers, daycare may where no one like be stalking her daughter. was He had knowledge uncomfortable made vice-principal’s earned wearing ire for thoughts, that others have dark and all the a shirt that said “eat shit and die.” All of smiley art is of hearts and faces. The high us who recognize remember adopted court has a new doctrine First picture, boy the sort of that the vice- law, high Amendment school students principal in charge discipline keeps of his may punished non-threatening eye on. in- may that administrators believe speaker emotionally is dis- dicate that the English poem James’s teacher read the dangerous. turbed and therefore Friday night, disturbing, found it and called the school counselor morn- the next Facts ing. vice-princi- The counselor called the met, During press pal. all the hullabaloo about The three them and the vice- LaVine, shootings, principal city police. James like a decided to call the writers, oped city police multitude of columnists and told him to call state The Child shootings. His at- Protective Child Protective wrote about school Services. Ser- presented Community was then told him to call the Men- tempt to understand vices disturbing. psychologist and it His tal Health Line. A poem, as a Crisis Words,” reproduced appen- vice-principal in the the crisis line told the “Last dix, person bring in for an feelings police describes the of a who the should James twenty-eight people city at a lived outside the shot and killed evaluation. James jurisdiction, years police department’s po- to kill so the school two before decides county he kill asked the sheriff to do the himself because he fears lice James, grade, then in the eleventh welfare check on James to determine again. a men- poem English to his teacher for whether he should be detained for gave the The teacher found the dis- tal evaluation.1 review.

turbing guid- and showed it to the school deputy A sheriffs interviewed James counselor, principal, vice-princi- ance mother, poem, got copy and his a pal. that James had no access and ascertained did not be- weapons. trou- to James’s mother

School officials considered James danger anyone. to records lieve that he was bled and troublesome. School said speak to 'agreed in a and his mother that James “involved domestic James 71.34.050(1) "presents § harm” as a Ann. likelihood serious 1. See Wash. Rev.Code (West 2001) (authorizing "county-designat- disorder” and detain the "result of a mental investigate professional” evaluation). ed mental health child for older information that a child thirteen or they regarded his Monday morning did so because thing first counselors the school’s disci- faculty. a threat violation of the school apologize to summary district court’s pline policy. line telephoned the crisis deputy sheriff is un- judgment “[i]t order concluded his with observations. psychologist expulsion of disputed that the District’s deputy’s obser- based on psychologist, behavior, by the mes- in- LaVine was motivated boy’s and the vations ” in ‘Last and that pro- sage had contained Words’ that the school district formation disciplined for the context in vided, legal there was no “[h]e “determined - poem, explicitly undergo a which he delivered but forcing the student cause for of his solely for the evocativе nature gave He psychological examination.” opinion. poem.” professional deputy sheriff report that wrote in his deputy The sheriff expulsion, psychiatrist a child After the in- cause existed to probable “I found no parents and his three met with James for a mental

voluntarily commit James and decided “it was safe for times then evaluation.” High James to return to Blaine School.” lifted, and James person- expulsion with his The was then principal The consulted inci- nel, disciplinary history, returned to school without further reviewed James’s psychiatrist say- going to take dent. The wrote letter police learned the weren’t that, action, expelled” ing prior had he been consulted to “emergency and James.2 thought expulsion, would have recom- principal vice-principal and the he The people kill be removed from threatening to mended “James that James was They pending did not a mental health evalua- they poem. when read the describes, in poem signed tion.” He also a declaration filed carefully. read it The monologue by summary judgment. proceedings a mur- the through a dramatic ideation, behavior, derer, years and killings place that took two “suicidal anti-social expression now fears that written of homicide and suicide ago. speaker says he “may potential so he will instead are indicators of a for violence.” again,” he strike principal kill concluded that himself. The judg- his father for a James and sued terribly wrong when something “James did damages ground ment for on the poem” he wrote this because “the rights James’s First Amendment were vio- expelled writing a threat.” James was injunction lated and for an to remove the poem, principal vice-prin- and the emergency expulsion from his file. The cipal both said he would have been ex- district court ruled on cross motions for pelled fights two with or without the that, summary judgment although the the t-shirt. legitimately school could have made “a expulsion, temporary suspension pending psychiatric

The school board affirmed the examination,” expulsion but directed that a back-dated letter be was unconsti- say put James’s file to that James had tutional. It held that the LaVines were expelled safety injunction “preventing than entitled to an been rather disci- reasons, plinary although principal placement any negative or maintenance of principal expelled vice who him had been documentation of this incident in James testimony Damages school file.” were to be unequivocal their LaVine’s poses continuing danger § to 2. See Wash. Admin. Code 180-40-295 an immediate and student, students, (authorizing “emergency expulsion” person- other or school "good ...”). where the school has and sufficient nel presence reason to believe that the student’s high constitutionally school can proceedings. The dis- student in later determined suppressed punished if the school certify partial sum- did not trict court might reasonably shows which “facts pursuant mary judgment appeal led school ‍‌​​​‌​‌​​​​​​‌​​​​‌‌‌‌​‌‌‌​​‌‌‌​​‌​‌​​​‌‌​​​‌‌​‌‍authorities to forecast substan- 54(b). Procedure Federal Rule Civil disruption tial of or material interference appealable injunction was of course panel with school activities.”5 The treated 1292(a)(1). § under 28 U.S.C. expulsion “trying protect its stu- “un- court found that it was The district violence,” potential “try- dents from not as expelled James disputed” that the school ing discipline speech.”6 James for his nature of his “solely for the evocative is, message “the contained” poem,” Analysis “ ‘Last was not it. And since Words’ The issue in this case is whether the intent to harm or expression sincere could James for what he аssault,” held that “the the district court poem. expulsion said in his mecha- squarely therefore falls within is, set out against nism used as is core purview of the First Amendment’s below, It punishment. a form of is not con- The district court then protections.” person say unusual to hear some troubled a nar- expulsion sidered whether things give thought, rise to the “That rowly achieving means of the tailored emotionally ill person may mentally be pro- non-speech-related interest school’s disturbed,” sometimes, person “That safety of its students. The court tecting the ought to examined to determine wheth- tailored, narrowly held that it was not poses a to himself or others.” danger er he suspension pend- temporary “[a] because conclusions, assuming thаt Those even have ing psychiatric examination would justify punish- taken, they are well do not and ulti- been a far less drastic measure ing speaker. the accomplished the de- mately would have put at This case does not issue whether purpose.” fendants’ could, consistently with the the school although appeal, panel On the held Constitution, pending psy- remove James partial and summary judgment the was that he did chiatric examination to ensure interlocutory, damages remained safety to the pose an unreasonable risk jur- adjudicated, it had to be nevertheless only of other students. The district court issue of isdiction to review it because the punish addressed whether the school could “inextricably bound” сonstitutionality was “emergency expulsion” James with panel re- up injunction.3 with the is dis- writing poem. his James’s summary judgment.4 officials could partial turbing. Reasonable school versed concerned, on by reasonably a have based holding appears Its to be that been District, only if correctness of the 257 F.3d That could be so 3. LaVine v. Blaine School (9th Cir.2001). summary judgment partial 987 would control injunction whether the could be affirmed. my opinion, panel had no Id. at 992. In partial jurisdiction the merits of the to reach LaVine, (quoting Tinker v. 257 F.3d at 989 summary judgment panel af- decision. The Community Independent Des Moines District, injunction, but the sum- firmed the reversed 503, 514, injunction mary judgment was on which the (1969)) (internal quotation L.Ed.2d 731 marks injunction If could be affirmed based. omitted). summary judgment pаrtial whether partial summary right wrong, then 6. Id. at 991. judgment properly be deemed "in- could not injunction. extricably up with the bound” they appear to considering that he had once home when have communi- poem, experienced conditions, var- suicide and thought dangerous about cable or medical life, disturbing in his lice, ious events measles, impetigo, such as German depressed boy. a troubled and James was measles, pox, and chicken and do not allow reasonably they might And have concluded them to return until a doctor confirms that by psychia- a ought that he to be examined they longer dangerous are no to others. being allowed back into the trist before permit gov- The Constitution does not school or into school events. The school an punish being ernment to individual for did not read the care- administrators ill, regardless of dan- whether illness is fully enough to notice when it used the gerous to others.7 And the Constitution past tense and when it used the future permit government does not tense, a so misread dramatic mono- people speech, for the content of their if it years a two a logue about crime before as threat,”8 punish- is not “true where the monologuist that the intended to statement grounded prediction ment is on a based commit the crime the future. Neverthe- the individuals com- less, legitimate boy is of concern when James, against mit though, crimes others. preoccupied in high thoughts school is with measles, was not treatеd like child with about murder and suicide. Neither the likely who would be referred his teach- court, LaVines, I, nor the district nor er to the school nurse and then sent home proposition taken issue with the until punished, by he was better. He was properly James could be excluded from the expulsion, having broken the rules. psychiatrist school so that a could examine judgment him and communicate a about panel decision creates a new First when safe to readmit him. Amendment rule: where school officials meaning Punishment has and conse- perceive major social concern about examination, quences from distinct coun- safety, they may punish school chil- seling, and safety exclusion health or speech gives dren whоse rise to a concern predictions reasons based on about future they may dangerous to themselves proceedings conduct. As the district court others, or though speech even is not injunction clear, on the make James and threat, disruptive, sexual, defamatory, brought part his father this case be- any previously recognized otherwise within disciplinary expulsion cause the in his category constitutionally unprotected kept school record has James from enlist- speech. ing People the armed services. are panel The by saying muddies the waters job often applications asked other that “when the school they “disciplined” expelled whether were ever officials schоol, they but not whether were LaVine acted with ever sufficient justification from school removed for medical reasons. and within constitutional lim- commonly its, School nurses send children not to James for the content of 660, (1968) California, 7. See Robinson v. (holding 370 U.S. constitutional a criminal stat- 666-667, 1417, 82 S.Ct. drunkenness). 8 L.Ed.2d 758 against public ute (holding punishing unconstitutional statute see, addiction); drug generally, Kansas v. Hen States, v.Watts United 394 U.S. dricks, 346, 361-364, 2072, 521 U.S. 117 S.Ct. 1399, (internal 22 L.Ed.2d 664 (1997) (contrasting 138 L.Ed.2d 501 civil omitted); quotation marks see also NAACPv. imprisonment commitment with for commit Co., 886, Claiborne Hardware 458 U.S. 927- crime). Texas, ting a Powell v. Cf. (1982). 73 L.Ed.2d 1215 514. 532-33. S.Ct. 2145. 20 L.Ed.2d 1254 continuing danger” to “immediate and is perceived potential poem, but to avert law, immediacy danger is mistaken as fact not that This is harm.”9 correct in its district court was and the it expulsion, but rather that is basis pun- School officials contrary conclusion. delaying expulsion for not basis making a threat. The ished James until for the after basis hearing.12 “absolutely” testified he took vice-principal post- At the expulsion is “misconduct.”13 and “a poem “as a threat to murder” expulsion hearing emergency expul- on an disciplinary code.” The violation of the sion, gets explain the student a chance to testified that “James did some- principal “alleged misconduct.”14 The determi- he wrote this thing terribly wrong when emergency expulsion nation at the is “the “poem that the itself’ “violated poem” and guilt or innocence of the student.”15 Policy” High Discipline the Blaine School panel consigns high schools to a “a threat.” The official hole, constitutional black where freedom of announcing expulsion cited letter High speech only Blaine exists to the extent that ad- James for “violation of the “impose[d] Discipline Policy” and School ministrators are it. That comfortable with expulsion.” emergency the sanction of is not the law. Tinker v. Des Moines Though on the record and state mistaken Community Independent School District that the school “was law its assertion holds that students “do not shed their trying discipline James for his rights constitutional to freedom of panel evidently concedes expression at the schoolhouse speech,”10 gate.”16 not a “true James’s directly interfere with Regulations that punishable threat” and was not suсh. libel, speech, against such as laws incite- violence, threats, obscenity, ment applicable governing state law narrowly excep- must fit within defined emergency expulsion establishes that First Amend- tions to otherwise absolute punitive. officials must show that a pur- The nature and ment protection.17 poses student an “immediate and continu- schools, fact that their poses of and the justify ing danger” to himself or others minors, generally are allows for students hearing after- expulsion immediate with apply not in other con- significance of the reference restraints that do wards.11 180-40-305(4) LdVine, § Code F.3d at 983. 15. Wash. Admin. 9. 257 (2001). 10. Id. at 991. Independent Commu- 16. Tinker v. Des Moines (2001). §

11. Wash. Admin. Code 180-40-295 District, nity 393 U.S. ‍‌​​​‌​‌​​​​​​‌​​​​‌‌‌‌​‌‌‌​​‌‌‌​​‌​‌​​​‌‌​​​‌‌​‌‍89 §§ Compare 733, (1969). 12. Admin. Code 180-40- Wash. 21 L.Ed.2d 731 S.Ct. 275, -280, (authorizing expulsion after -285 hearing) §§ 180- with Wash. Admin. Code Sullivаn, 376 See York Times Co. v. 17. New 40-295, -300, (authorizing emergency -305 254, 281-83, 710, 11 L.Ed.2d U.S. hearing) expulsion post-expulsion followed (1964) (defamation); Brandenburg v. 686 (2001). § Admin. Code 180— See also Wash. 444, 447-48, 1827, Ohio, 89 23 395 U.S. S.Ct. (2001) (authorizing emergency remov- 40-290 Watts, (1969) (incitement); 394 L.Ed.2d 430 class, subject, activity). al from 708, (threats); S.Ct. 1399 Claiborne U.S. at 89 Hardware, 927-29, at 102 S.Ct. 3409 180-40-305(2)(d) § 13. Wash. Admin. Code 476, States, (same); U.S. Roth v. United 354 (2001). (1957) 1304, 1 L.Ed.2d (obscenity). 14. Id. (2) does not hold that sup- showing; Tinker texts,18 rule remains general but that, speech may punished speech. student of freedom portive by the stu- wrongdoing intentional without rule, draw its that panel purports dent, but at most may disrupt discipline, may punish student school administrators that, had the armbands been dis- implies might “facts which if can show speech pun- ruptive, the students could have been officials to fore- reasonably have led schоol take refusing obey an order to ished for disruption of or material cast substantial off, is, in the engaging that to cease them activities,” from with interference expression; requires Tinker prohibited through a That reads Tinker Tinker.19 prediction “showing,” not a mere based it un consti- held that was mirror. Tinker amorphous concern. suspend students for the school tutional protest off their black refusing to take District v. Fraser reaf- Bethel School hold importance Its was to armbands.20 that “students principle firmed the Tinker apply does that the First Amendment rights to do not ‘shed their constitutional schools, that it doesn’t.21 The Court not the schoolhouse speech freedom of punishment possibility open left ”23 that a school could gate.’ Bethel held to remove the armbands refusing giving constitutionally punish a student for constitutionally permissi- might have been assembly, after speech a lewd to a school “finding” and a ble if there had been specifically he had been told he “showing” “engaging the forbidden speech, permitted to make the materially substantially conduct would actually (hooting, yell- occur disruption did requirements appro- interfere with the ing, graphic gestures among sexual some priate discipline operation in the students, embarrassment and bewilder- sup- holding school.”22 But its is not that others).24 Bethel, among ment Under pression speech some circumstances vulgar may prohibit schools “a permitted, rather that in the circum- but speech” and lewd such as this one because not consti- stance before the Court was the school’s edu- undermined “basic tutionally permitted. among teaching, cational mission” of other panel’s errors on Tinker are these: civility in things, public discourse.25 pre- not hold that a mere Tinker does Kuhlmeier Hazelwood School District v. diction that interfere with dis- “[sjtudents again in the reaffirmed cipline justifies suppression, only it holds converse, justi- public schools do not ‘shed their constitu- suppression is not finding rights of such a and tional to freedom of or ex- fied the absence See, Fraser, e.g., (quoting Id. at 89 S.Ct. 733 Burnside Bethel School District v. 3159, 675, 744, (5th Cir.1966)) 478 U.S. 106 S.Ct. 92 L.Ed.2d 549 Byars, 363 F.2d (1986) (upholding punishment of student for (internal omitted). quotation marks assembly); speech in indecent school Hazel Kuhlmeier, School District v. 484 U.S. wood Frasеr, 23. Bethel School District v. 478 U.S. 260, 562, (1988) 108 S.Ct. 98 L.Ed.2d 592 675, 680, 3159, 92 L.Ed.2d 549 106 S.Ct. (upholding censorship of student articles in Tinker, 506, (1986) (quoting 393 U.S. at newspaper). school-sponsored student 733). 514, (quoted 19. 393 U.S. at 89 S.Ct. 733 LaVine, 989). 257 F.3d at 685, 24. Id. at 106 S.Ct. 3159. 514, 20. I'd. at 89 S.Ct. 733. 25. Id. 506, 21. Id. at 89 S.Ct. 733. ”26 It material interference with school activi- gate.’ at schoolhouse

pression distinction, though, “per- between no that ties.”31 doubt the school drew happens to occur on expression that prohibit poetry sonal discussion of in cal- could fully pro- which is premises,” rule, the school culus class under such a but am Tinker, “school-sponsored by tected considerably that less confident could expressive ac- publications ... and other prohibit talking students from to each oth- students, parents, and mem- tivities sex, during religion er recesses about might reasonably per- public bers of the politics, ground on the that such discus- imprimatur to bear of' the ceive likely feelings sions were to lead to hard principal had excluded school.”27 disruption. But even under such newspaper, some stories from school rule, punished, could not be independently prepared which was not he did not have notice that his would students, school but was outside the most, expose punishment. him to At sponsorship and su- prepared under school could, Tinker, Bethel, school under journalism curricu- pervision part as Hazelwood, him any tell not to circulate it held that in such a lum.28 The Court school, more in and then him if he school-sponsored activity, the constitution- did. school’s actions al test was whether the reasonably рanel opinion suggests “are related there regarding content legitimate pedagogical concerns.”29 nothing else the school could do to was “personal James’s ex- pending Because psychiatric exclude James exami- pression happens to occur nation, “only option,” that it had one emer- sponsored ac- premises,” not school incorrect, expulsion.32 gency That is tivity, “reasonably legitimate related to not matter if it were correct. The would applica- no pedagogical concerns” test has out judge pointed district tion. temporary suspension could have used “a pending examination” to ac- psychiatric any viewpoint

In the absence of discrim- complish legitimate purpose fully. its She disqualifier, perhaps a ination or other correctly pointed also out that “the su- constitutionally punish stu- school could legisla- premacy clause will allow state the school personal expression dent within noncompliance fed- tion to excuse with the Hazelwood, Tinker, if Bethel and can little eral constitution.” There the student had clear notice that that, even if there were not an ex- doubt prohibited pun- and would be plicit providing suspensions rule where ished, and or disorders “Disturbances posed risks to others on account students premises on the school in fact occurred”30 conditions, im- of medical the school had “facts or the record demonstrated which authority police power reasonably plied authori- to exercise the might have led school purpose.33 disruption ties to forecast substantial of or 514, Kuhlmeier, Tinker, 30. 393 U.S. at 89 S.Ct. 733. 26. School District v. Hazelwood 108 S.Ct. 98 ‍‌​​​‌​‌​​​​​​‌​​​​‌‌‌‌​‌‌‌​​‌‌‌​​‌​‌​​​‌‌​​​‌‌​‌‍L.Ed.2d Id. (1988) (quoting 592 733). Tinker LaVine, 257 F.3d at 990. 271, 27. Id. at 108 S.Ct. 562. 860, Armstrong, Wash.2d 33. See State v. 39 545, (1952) (university 239 P.2d 548-49 board 267-70, 562. 28. Id. at 108 S.Ct. may regents refuse admission to student of 273, get x-ray to out who refuses to a chest rule 29. Id. at 108 S.Ct. 562. 728 punishing speech school vio- arising this case as about panel describes the amount of school backdrop tragic of lence will reduce

“against Though judges violence. we have tradi- and school officials’ knowl- shootings”34 Columbine, of “shootings tionally explained at Thur- the value of freedom edge of ston, having in of high schools.”35 terms of the value and Santee Consti-, ideas,37 ought marketplace on neutral free those whose tutional law be based easily sway profession psychology psychiatry in principles, and should not concerns, traditionally explain it in popular the winds of rather than law liberty make our a weak reed that terms of what can learn about would if swayed patient patient openly. in the winds. Nevertheless we do communicates Psychologist38 our work in isolation from the An article in American ex- perform not (1) in, plains of criminal society we live and there is notion rates victimiza- in permeates apparently the record in this case that tion schools have not risen in (2) decade;39 prediction past оf increased violence of violent because schools, difficult, ought way exceedingly give free behavior is ' security. diagnosis every youth, many increased Both the “for killer there are probably wrong, and the cure are and such others with the same behaviors or atti- ought killing constitutional law not to based on tudes who never come close to their (3) classmates”;40 popular vague sociology. posi- this There “the ratio of false be, violence, an negatives greatly well not increase tives to false matters if newspaper, mag- stigmatized rather an increase in all individuals but identified are azine, limited”;41 opportunities and television stories about school if their are violence, youths declining еngage which has fact been who violent behavior “are loners”;42 steady frequency.36 usually in its diagnosis As for the both cure, particular there is no think violence-prone reason to and interventions for ado- tuberculosis, See, regulation, e.g., Broadcasting even without a under 37. Red Lion Co. v. Fed- implied authority). Commission, its chusetts, Jacobson v. Massa eral Communications 395 U.S. Cf. 11, 37-38, 358, 197 U.S. 390, 49 367, 1794, 89 S.Ct. 23 L.Ed.2d 371 (1905) (state may require L.Ed. 643 vaccina (1969) ("It purpose is the First Amend- police power). tions under its preserve marketplace ment to an uninhibited ultimately pre- of ideas in which truth will 34. LaVine at 983. vail.”); Sullivan, New York Times Co. v. 710, U.S. 84 S.Ct. 11 L.Ed.2d 686 35. Id. at 987. (1964); States, 494, Dennis United proposition, 36. The amicus brief cites for this (1951). 95 L.Ed. 1137 Brook, Schiraldi, Kim Vincent Jason Ziedenberg, Hype: School House Two Years Mulvey 38. Edward P. Cauff- Elizabeth (Justice Policy Later Institute and Children's man, Predicting The Inherent Limits Center, 2000), April Law available at Violence, Psychologist 56 American (ar- http://www.cjcj.org/jpi/publications.html (2001). guing that schools remain one of the safest places for children to be and that school vio- 39. at 797. Id. declining). lence is See also Lori Dorfman Schiraldi, Youth, and Vincent Balance: Off Race, 40. at (Building Id. 797-98. and Crime in the News Blocks Youth, 2001), April available (dis- http://www .cjcj.org/jpi/publications.html Id. at 798. cussing showing research a correlation be- public perception tween of crime rates and Id. reporting). news people every for developed;43 not well numbers innocent one lescents are assessment, infor- engaged “the best source of risk who would have the feared in a the activities of students mation about misconduct.46 students”;44 expulsion is other school threatening What was about James’s information, up because “students dries poem was not the words but the writer. information from the admin- will withhold poem, fact that given he wrote the disproportionate to avoid such istration background, might have indicated that he punishments.”45 emotionally distraught was so that he suggest I cite this article to do not might hurt himself and others. The fact ought to be based on constitutional law poem might that James wrote the reason- in- sociological psychological this basis ably justified temporary suspension a panel gave to which the stead basis examination, done, for mental which was deference, expulsion speech some psychi- and which ascertained after three amounting not to a “true threat” will re- safely atric visits that he could return to My to purpose duce school violence. is school. But the fact that James’s necessarily any there is not show might have revealed emotional condi- security. trade-off between constitutionally justify punish- tion did not speech may security Suppression of reduce ing him. liberty. Allowing the school to as well as everyone Not who writes about murder punish writing student about incipient and evil is an murderer. There is killings, killer foster {e.g., a lot of art about homicide the folk by drying up information from students songs “On the Banks of the Ohio”47 and their and other emo- about own students’ Dоoley,”48 “Tom Dostoevski’s Crime and talk, If tional troubles. the students don’t Punishment49) and about homicidal mani- profession- the administrators and medical murder {e.g., acs who commit mass Taxi problems als won’t find out about Driver50). inspires This art sometimes might reveal. Punishment based {e.g., Hinckley shooting crime John Presi- prediction rather than misconduct tends Reagan impress to Jodie Foster’s dent unjust, predicted to where Driver). gov- in Taxi But the rare, character extremely as in-school mur- event is are, properly punish ernment could Robert predictive punishment ders such Driver, in Taxi nor the imposed likely acting the school vast DeNiro for hand, pretty 43. "I took her her white Id. at 799. sand, I led her down the banks of 44. Id. 800. plunged her in drown, Where she would 45. Id. An' watched her as she flоated down.” Metropolitan Transportation 46. Gonzalez Cf. mountain, 48. "I met her on Cir.1999) (9th Authority, F.3d There I took her life. (noting positives likely that false are more mountain, Met her on the positives outnumber true extent my Stabbed her with knife.” population for is rare in the what is tested tested). Dostoevsky, Fyodor Crime and Punishment Classics, Garnett, trans., (Constance Bantam walk, my "I love to take a asked 1984) (1912). edition reissue way's Just a little with me. walked, An' as we (Columbia/Tristar Studios 50. Taxi Driver talk Then we would 1976). wedding day. All about our 730 performing Trio for “Tom Doo- Kingston 51 many people found no matter how ley,” remember, I won’t, ‍‌​​​‌​‌​​​​​​‌​​​​‌‌‌‌​‌‌‌​​‌‌‌​​‌​‌​​​‌‌​​​‌‌​‌‍thinking I at least disturbing threatening. artworks these alone, go constitution, not, under our allow

doWe I,as for mak- artists government in, jumped car, bad, art, good or ing the art is whether about, I think all could bad, people good feel whether it makes not, Iwas would expression falls within a well unless the go alone. unprotected category established walked, IAs not end at the speech. right This too does the, through gate. schoolhouse halls, empty now feel, I could my pounding. hart APPENDIX Last Words approached, As I door, the classroom by James LaVine and, my gun I drew door, open threw passed, day As each Bang, Bang. Bang, Bang, watched, I most, sprout, from the love over, When it was all unlikely places, were, 28 reminds, wich52 dead, remember, I and all that, me felling, was not beauty eye’s, remorce, any felt, of the beholder. for I was, I soul, clensing my remember, As I cry, I start to quickly, 1 I, ran,' turned and as the bell learеd, had rang, late, this to here, all I could now, screams, were spend, I must workers, screams of co day, each alone, just plan, horror, of shear screams supper, alone for students, as night, alone at their, found alone at death. slayen classmates. feel, I Death years passed, down, crawlling lay, I and now at, my neck roses, turn, every upon, down so, stairs, these know, I now now, I must do.

what feel, I may, I pulled my gun, again. strike case, from its began tears, to load it. No shead, shall be Trio, Kingston Dooley” typographical 51. The "Tom on Tom 52. All errors are James La- 1994). Dooley (EMI/Capitol Special vine’s. Products sarrow, am, for I alone, now, hope, I feel, I can remorse, did, for what shed, without a tears, tear, for no face, fall, your shall from mine, from but try, Ias peace, to rest in

Bang! America,

UNITED STATES

Plaintiff-Appellee, King HILL,

Patricia Defendant-

Appellant.

No. 00-30023. Appeals,

United States Court

Ninth Circuit.

Argued and Submitted March

Filed Jan.

Case Details

Case Name: Bruce Lavine, as Next Friend of James Lavine James Lavine v. Blaine School District, a Municipal Corporation Tim Haney Dan Newell Karen Mulholland

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Jan 29, 2002

Citation: 279 F.3d 719

Docket Number: 00-35303

Court Abbreviation: 9th Cir.