279 F.3d 719 | 9th Cir. | 2002
Dissenting Opinion
dissenting from denial of rehearing en banc:
While I agree with most of what Judge Kleinfeld says and therefore join his dissent, I do not share his bleak view of the effect of this decision on the rights of students in this circuit. I do not agree that the erroneous result arrived at in this case compels or authorizes this court, or district courts, in future cases, to uphold discipline that impinges on the First Amendment activities of students, even when those students are emotionally disturbed. I read the panel’s opinion essentially as approving only a brief suspension of a student pending determination of the existence of a safety question. Because the Washington statute contained no express provision for immediate “suspension,” the panel treated the “emergency expulsion” section as if it were such a provision. As Judge Kleinfeld so eloquently points out, in doing so, the panel erred — in my opinion, largely because it left the impression that it approved of the imposition of discipline, discipline that simply was not warranted and that violated the student’s First Amendment rights.
Specifically, I do not join in the introductory paragraph of Judge Kleinfeld’s dissent or in the first sentence of either the fourth or seventh paragraphs of the Analysis section. Otherwise, I agree fully with his dissent.
I would add only that at times like those this nation now confronts, it is especially important that the courts remain sensitive to the demands of the First Amendment, a provision that underlies the very existence of our democracy. See Brown v. Hartlage, 456 U.S. 45, 60, 102 S.Ct. 1523, 71 L.Ed.2d 732 (1982) (“[T]he First Amendment [is] the guardian of our democracy.”) First Amendment judicial scrutiny should now be at its height, whether the individual before us is a troubled schoolboy, a right-to-life-activist, an outraged environmentalist, a Taliban sympathizer, or any other person who disapproves of one or more of our nation’s officials or policies for any reason whatsoever.
dissenting from denial of rehearing en banc:
After today, members of the black trench coat clique in high schools in the
Facts
During all the press hullabaloo about school shootings, James LaVine, like a multitude of columnists and oped writers, wrote about school shootings. His attempt to understand was then presented as a poem, and it is disturbing. His “Last Words,” reproduced in the appendix, describes the feelings of a person who shot and killed twenty-eight people at a school two years before and decides to kill himself because he fears he may kill again. James, then in the eleventh grade, gave the poem to his English teacher for review. The teacher found the poem disturbing and showed it to the school guidance counselor, principal, and vice-principal.
School officials considered James troubled and troublesome. School records said that James was “involved in a domestic violence situation with his father,” because James had parked his car in the barn after his father told him not to, his father threw a rock at James’s car, and James called the police. James had twice been in fights with other boys involving pushing, hitting and kicking. Two years before, he had confided to the school counselor that he had thought about suicide. He had recently broken up with his girlfriend, whose mother later told the school that James was stalking her daughter. He had earned the vice-principal’s ire for wearing a shirt that said “eat shit and die.” All of us who remember high school recognize the picture, the sort of boy that the vice-principal in charge of discipline keeps his eye on.
James’s English teacher read the poem on Friday night, found it disturbing, and called the school counselor the next morning. The counselor called the vice-principal. The three of them met, and the vice-principal decided to call the city police. The city police told him to call state Child Protective Services. Child Protective Services told him to call the Community Mental Health Crisis Line. A psychologist at the crisis line told the vice-principal that the police should bring James in for an evaluation. James lived outside the city police department’s jurisdiction, so the police asked the county sheriff to do the welfare check on James to determine whether he should be detained for a mental evaluation.
A sheriffs deputy interviewed James and his mother, got a copy of the poem, and ascertained that James had no access to weapons. James’s mother did not believe that he was a danger to anyone. James and his mother 'agreed to speak to
The principal consulted with his personnel, reviewed James’s disciplinary history, learned the police weren’t going to take action, and “emergency expelled” James.
The school board affirmed the expulsion, but directed that a back-dated letter be put in James’s file to say that James had been expelled for safety rather than disciplinary reasons, although the principal and vice principal who expelled him had been unequivocal in their testimony that they did so because they regarded his poem as a threat in violation of the school’s discipline policy. The district court’s summary judgment order concluded that “[i]t is undisputed that the District’s expulsion of James LaVine was motivated by the message contained in ‘Last Words’ ” and that “[h]e was not disciplined for the context in which he delivered his poem, but explicitly and solely for the evocative nature of his poem.”
After the expulsion, a child psychiatrist met with James and his parents three times and then decided “it was safe for James to return to Blaine High School.” The expulsion was then lifted, and James returned to school without further incident. The psychiatrist wrote a letter saying that, had he been consulted prior to the expulsion, he would have recommended that “James be removed from school pending a mental health evaluation.” He also signed a declaration filed in the summary judgment. proceedings that “suicidal ideation, anti-social behavior, and written expression of homicide and suicide are indicators of a potential for violence.”
James and his father sued for a judgment for damages on the ground that James’s First Amendment rights were violated and for an injunction to remove the emergency expulsion from his file. The district court ruled on cross motions for summary judgment that, although the school could legitimately have made “a temporary suspension pending psychiatric examination,” the expulsion was unconstitutional. It held that the LaVines were entitled to an injunction “preventing the placement or maintenance of any negative documentation of this incident in James LaVine’s school file.” Damages were to be
The district court found that it was “undisputed” that the school expelled James “solely for the evocative nature of his poem,” that is, “the message contained” in it. And since “ ‘Last Words’ was not a sincere expression of intent to harm or assault,” the district court held that “the poem therefore falls squarely within the purview of the First Amendment’s core protections.” The district court then considered whether the expulsion was a narrowly tailored means of achieving the school’s non-speech-related interest in protecting the safety of its students. The court held that it was not narrowly tailored, because “[a] temporary suspension pending psychiatric examination would have been a far less drastic measure and ultimately would have accomplished the defendants’ purpose.”
On appeal, the panel held that although the summary judgment was partial and interlocutory, because damages remained to be adjudicated, nevertheless it had jurisdiction to review it because the issue of constitutionality was “inextricably bound” up with the injunction.
Analysis
The issue in this case is whether the school could punish James for what he said in his poem. The expulsion mechanism used against James is, as is set out below, a form of punishment. It is not unusual to hear some troubled person say things that give rise to the thought, “That person may be mentally ill or emotionally disturbed,” and sometimes, “That person ought to be examined to determine whether he poses a danger to himself or others.” Those conclusions, even assuming that they are well taken, do not justify punishing the speaker.
This case does not put at issue whether the school could, consistently with the Constitution, remove James pending psychiatric examination to ensure that he did not pose an unreasonable risk to the safety of other students. The district court only addressed whether the school could punish James with “emergency expulsion” for writing his poem. James’s poem is disturbing. Reasonable school officials could have reasonably been concerned, based on
Punishment has meaning and consequences distinct from examination, counseling, and exclusion for health or safety reasons based on predictions about future conduct. As the district court proceedings on the injunction make clear, James and his father brought this case in part because the disciplinary expulsion in his school record has kept James from enlisting in the armed services. People are often asked on job and other applications whether they were ever “disciplined” in school, but not whether they were ever removed from school for medical reasons. School nurses commonly send children home when they appear to have communicable or dangerous medical conditions, such as impetigo, lice, measles, German measles, and chicken pox, and do not allow them to return until a doctor confirms that they are no longer dangerous to others. The Constitution does not permit the government to punish an individual for being ill, regardless of whether his illness is dangerous to others.
The panel decision creates a new First Amendment rule: where school officials perceive a major social concern about school safety, they may punish school children whose speech gives rise to a concern that they may be dangerous to themselves or others, even though the speech is not a threat, disruptive, defamatory, sexual, or otherwise within any previously recognized category of constitutionally unprotected speech.
The panel muddies the waters by saying that “when the school officials expelled James LaVine they acted with sufficient justification and within constitutional limits, not to punish James for the content of
The applicable state law governing emergency expulsion establishes that it is punitive. School officials must show that a student poses an “immediate and continuing danger” to himself or others to justify immediate expulsion with a hearing after-wards.
The panel consigns high schools to a constitutional black hole, where freedom of speech exists only to the extent that administrators are comfortable with it. That is not the law. Tinker v. Des Moines Independent Community School District holds that students “do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”
The panel purports to draw its rule, that school administrators may punish student speech if they can show “facts which might reasonably have led school officials to forecast substantial disruption of or material interference with school activities,” from Tinker.
The panel’s errors on Tinker are these: (1) Tinker does not hold that a mere prediction that speech may interfere with discipline justifies suppression, it holds only the converse, that suppression is not justified in the absence of such a finding and showing; (2) Tinker does not hold that a student may be punished for speech that, without intentional wrongdoing by the student, may disrupt discipline, but at most implies that, had the armbands been disruptive, the students could have been punished for refusing to obey an order to take them off, that is, to cease engaging in the prohibited expression; (3) Tinker requires a “showing,” not a mere prediction based on amorphous concern.
Bethel School District v. Fraser reaffirmed the Tinker principle that “students do not ‘shed their constitutional rights to freedom of speech at the schoolhouse gate.’ ”
Hazelwood School District v. Kuhlmeier again reaffirmed that “[sjtudents in the public schools do not ‘shed their constitutional rights to freedom of speech or ex
In the absence of any viewpoint discrimination or other disqualifier, perhaps a school could constitutionally punish student personal expression within the school if (1) as in Tinker, Bethel and Hazelwood, the student had clear notice that the speech was prohibited and would be punished, and (2) “Disturbances or disorders on the school premises in fact occurred”
The panel opinion suggests that there was nothing else the school could do to exclude James pending psychiatric examination, that it had “only one option,” emergency expulsion.
I do not cite this article to suggest that constitutional law ought to be based on this sociological and psychological basis instead of the basis to which the panel gave some deference, that expulsion for speech not amounting to a “true threat” will reduce school violence. My purpose is to show that there is not necessarily any trade-off between speech and security. Suppression of speech may reduce security as well as liberty. Allowing the school to punish a student for writing a poem about a school killer may foster school killings, by drying up information from students about their own and other students’ emotional troubles. If the students don’t talk, the administrators and medical professionals won’t find out about problems that speech might reveal. Punishment based on prediction rather than misconduct tends to be unjust, and where the predicted event is extremely rare, as in-school murders are, predictive punishment such as the school imposed is likely to punish vast numbers of innocent people for every one who would have engaged in the feared misconduct.
What was threatening about James’s poem was not the words but the writer. The fact that he wrote the poem, given his background, might have indicated that he was so emotionally distraught that he might hurt himself and others. The fact that James wrote the poem might reasonably have justified a temporary suspension for mental examination, which was done, and which ascertained after three psychiatric visits that he could safely return to school. But the fact that James’s poem might have revealed his emotional condition did not constitutionally justify punishing him.
Not everyone who writes about murder and evil is an incipient murderer. There is a lot of art about homicide {e.g., the folk songs “On the Banks of the Ohio”
APPENDIX
Last Words
by James LaVine
As each day passed, I watched, love sprout, from the most, unlikely places, wich
As I remember, I start to cry, for I, had leared, this to late, and now, I must spend, each day, alone, alone for supper, alone at night, alone at death.
Death I feel, crawlling down, my neck at, every turn, and so, now I know, what I must do.
I pulled my gun, from its case, and began to load it.
I remember, thinking at least I won’t, go alone, as I, jumped in, the car, all I could think about, was I would not, go alone.
As I walked, through the, now empty halls, I could feel, my hart pounding.
As I approached, the classroom door, I drew my gun and, threw open the door, Bang, Bang, Bang, Bang.
When it was all over, 28 were, dead, and all I remember, was not felling, any remorce, for I felt, I was, clensing my soul,
1 quickly, turned and ran,' as the bell rang, all I could here, were screams, screams of co workers, and just plan, screams of shear horror, as the students, found their, slayen classmates.
2 years have passed, and now I lay, 29 roses, down upon, these stairs, as now, I feel, I may, strike again.
No tears, shall be shead,
Bang!
. See Wash. Rev.Code Ann. § 71.34.050(1) (West 2001) (authorizing a "county-designated mental health professional” to investigate information that a child thirteen or older "presents a likelihood of serious harm” as a "result of a mental disorder” and detain the child for evaluation).
. See Wash. Admin. Code § 180-40-295 (2001) (authorizing “emergency expulsion” where the school has "good and sufficient reason to believe that the student’s presence poses an immediate and continuing danger to the student, other students, or school personnel ...”).
. LaVine v. Blaine School District, 257 F.3d 981, 987 (9th Cir.2001).
. Id. at 992. In my opinion, the panel had no jurisdiction to reach the merits of the partial summary judgment decision. The panel affirmed the injunction, but reversed the summary judgment on which the injunction was based. If the injunction could be affirmed whether the partial summary judgment was right or wrong, then the partial summary judgment could not properly be deemed "inextricably bound” up with the injunction. That could be so only if the correctness of the partial summary judgment would control whether the injunction could be affirmed.
. LaVine, 257 F.3d at 989 (quoting Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 514, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969)) (internal quotation marks omitted).
. Id. at 991.
. See Robinson v. California, 370 U.S. 660, 666-667, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962) (holding unconstitutional statute punishing drug addiction); see, generally, Kansas v. Hendricks, 521 U.S. 346, 361-364, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997) (contrasting civil commitment with imprisonment for committing a crime). Cf. Powell v. Texas, 392 U.S. 514. 532-33. 88 S.Ct. 2145. 20 L.Ed.2d 1254 (1968) (holding constitutional a criminal statute against public drunkenness).
. Watts v. United States, 394 U.S. 705, 708, 89 S.Ct. 1399, 22 L.Ed.2d 664 (1969) (internal quotation marks omitted); see also NAACP v. Claiborne Hardware Co., 458 U.S. 886, 927-29, 102 S.Ct. 3409, 73 L.Ed.2d 1215 (1982).
. LdVine, 257 F.3d at 983.
. Id. at 991.
. Wash. Admin. Code § 180-40-295 (2001).
. Compare Wash. Admin. Code §§ 180-40-275, -280, -285 (authorizing expulsion after hearing) with Wash. Admin. Code §§ 180-40-295, -300, -305 (authorizing emergency expulsion followed by post-expulsion hearing) (2001). See also Wash. Admin. Code § 180— 40-290 (2001) (authorizing emergency removal from class, subject, or activity).
. Wash. Admin. Code § 180-40-305(2)(d) (2001).
. Id.
. Wash. Admin. Code § 180-40-305(4) (2001).
. Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 506, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969).
. See New York Times Co. v. Sullivan, 376 U.S. 254, 281-83, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964) (defamation); Brandenburg v. Ohio, 395 U.S. 444, 447-48, 89 S.Ct. 1827, 23 L.Ed.2d 430 (1969) (incitement); Watts, 394 U.S. at 708, 89 S.Ct. 1399 (threats); Claiborne Hardware, 458 U.S. at 927-29, 102 S.Ct. 3409 (same); Roth v. United States, 354 U.S. 476, 485, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957) (obscenity).
. See, e.g., Bethel School District v. Fraser, 478 U.S. 675, 106 S.Ct. 3159, 92 L.Ed.2d 549 (1986) (upholding punishment of student for indecent speech in school assembly); Hazelwood School District v. Kuhlmeier, 484 U.S. 260, 108 S.Ct. 562, 98 L.Ed.2d 592 (1988) (upholding censorship of student articles in school-sponsored student newspaper).
. 393 U.S. at 514, 89 S.Ct. 733 (quoted in LaVine, 257 F.3d at 989).
. I'd. at 514, 89 S.Ct. 733.
. Id. at 506, 89 S.Ct. 733.
. Id. at 509, 89 S.Ct. 733 (quoting Burnside v. Byars, 363 F.2d 744, 749 (5th Cir.1966)) (internal quotation marks omitted).
. Bethel School District v. Fraser, 478 U.S. 675, 680, 106 S.Ct. 3159, 92 L.Ed.2d 549 (1986) (quoting Tinker, 393 U.S. at 506, 89 S.Ct. 733).
. Id. at 685, 106 S.Ct. 3159.
. Id.
. Hazelwood School District v. Kuhlmeier, 484 U.S. 260, 266, 108 S.Ct. 562, 98 L.Ed.2d 592 (1988) (quoting Tinker at 506, 89 S.Ct. 733).
. Id. at 271, 108 S.Ct. 562.
. Id. at 267-70, 108 S.Ct. 562.
. Id. at 273, 108 S.Ct. 562.
. Tinker, 393 U.S. at 514, 89 S.Ct. 733.
. Id.
. LaVine, 257 F.3d at 990.
. See State v. Armstrong, 39 Wash.2d 860, 239 P.2d 545, 548-49 (1952) (university board of regents may refuse admission to student who refuses to get a chest x-ray to rule out
. LaVine at 983.
. Id. at 987.
. The amicus brief cites for this proposition, Kim Brook, Vincent Schiraldi, and Jason Ziedenberg, School House Hype: Two Years Later (Justice Policy Institute and Children's Law Center, April 2000), available at http://www.cjcj.org/jpi/publications.html (arguing that schools remain one of the safest places for children to be and that school violence is declining). See also Lori Dorfman and Vincent Schiraldi, Off Balance: Youth, Race, and Crime in the News (Building Blocks for Youth, April 2001), available at http://www .cjcj.org/jpi/publications.html (discussing research showing a correlation between public perception of crime rates and news reporting).
. See, e.g., Red Lion Broadcasting Co. v. Federal Communications Commission, 395 U.S. 367, 390, 89 S.Ct. 1794, 23 L.Ed.2d 371 (1969) ("It is the purpose of the First Amendment to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail.”); New York Times Co. v. Sullivan, 376 U.S. 254, 270, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964); Dennis v. United States, 341 U.S. 494, 503, 71 S.Ct. 857, 95 L.Ed. 1137 (1951).
. Edward P. Mulvey and Elizabeth Cauff-man, The Inherent Limits of Predicting School Violence, 56 American Psychologist 797 (2001).
. Id. at 797.
. Id. at 797-98.
. Id. at 798.
. Id.
. Id. at 799.
. Id. at 800.
. Id.
. Cf. Gonzalez v. Metropolitan Transportation Authority, 174 F.3d 1016, 1023 (9th Cir.1999) (noting that false positives are more likely to outnumber true positives to the extent that what is tested for is rare in the population tested).
. "I asked my love to take a walk,
Just a little way's with me.
An' as we walked,
Then we would talk
All about our wedding day.
"I took her by her pretty white hand,
I led her down the banks of sand,
I plunged her in
Where she would drown,
An' watched her as she floated down.”
. "I met her on the mountain,
There I took her life.
Met her on the mountain,
Stabbed her with my knife.”
. Fyodor Dostoevsky, Crime and Punishment (Constance Garnett, trans., Bantam Classics, reissue edition 1984) (1912).
. Taxi Driver (Columbia/Tristar Studios 1976).
. The Kingston Trio, "Tom Dooley” on Tom Dooley (EMI/Capitol Special Products 1994).
. All typographical errors are James La-vine’s.
Lead Opinion
Order; Dissent by Judge REINHARDT; Dissent by Judge KLEINFELD
ORDER
The panel has unanimously voted to deny appellees’ petition for rehearing filed August 3, 2001. Judge Fisher voted to reject the suggestion for rehearing en banc, and Judge Fletcher and Judge Schwarzer recommended rejection of the suggestion for rehearing en banc.
The full court was advised of the suggestion for rehearing en banc. An active judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc consideration. Fed. R.App. P. 35(b).
The petition for rehearing is denied and the suggestion for rehearing en banc is rejected.