Case Information
*2
McKEOWN, Circuit Judge:
With the advent of the Internet and in the wake of school shootings at Columbine, Santee, Newtown and many others, school administrators face the daunting task of evaluating potential threats of violence and keeping their students safe without impinging on their constitutional rights. It is a feat like tightrope balancing, where an error in judgment can lead to a tragic result. Courts have long dealt with the tension between students’ First Amendment rights and “the special characteristics of the school environment.” Hazelwood Sch. Dist. v. Kuhlmeier , 484 U.S. 260, 266 (1988). But the challenge for administrators is made all the more difficult because, outside of the official school environment, students are instant messaging, texting, emailing, Twittering, Tumblring, and otherwise communicating elеctronically, sometimes about subjects that threaten the safety of the school environment. At the same time, school officials must take care not to overreact and to take into account the creative juices and often startling writings of the students.
In this case, Landon Wynar, a student at Douglas High School, engaged in a string of increasingly violent and threatening instant messages sent from 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. His friends were alarmed and notified schоol authorities, who temporarily expelled Landon based in large part on these instant messages. We affirm the district court’s grant of summary judgment to the school district. The messages presented a real risk of significant disruption to school activities and interfered with the rights of other students. Under the circumstances, the school district did not violate Landon’s rights to freedom of expression or due process.
B ACKGROUND
When the events at issue occurred, Landon was a sophomore at Douglas High School. He collected weapons and ammunition and reported owning various rifles, including a Russian semi-automatic rifle and a .22 caliber rifle.
*4 Landon communicated regularly with friends from schоol by exchanging instant messages through the website MySpace. MySpace is a social networking website that [1] The parties’ briefs refer to Landon as “LW,” but the appeal was filed in Landon’s full name, and Landon’s attorney confirmed at oral argument that his name was not under seal and had been made public. Landon is no longer a minor.
allows its members to set up online “profiles” and
communicate via email, instant messages, and blogs.
Layshock v. Hermitage Sch. Dist.
,
Among other things, Landon wrote frequently about weapоns, going shooting, and World War II (often mentioning Hitler, whom he once referred to as “our hero”). His messages also expressed social insecurity, stating, for example, “[my parents] also don’t like me just like everyone at school,” and “its ignore landon day everyday.” Some months into his sophomore year, Landon’s MySpace messages became increasingly violent and disturbing. They included the following statements, all centered around a school shooting to take place on April 20 (the date of Hitler’s birth and the Columbine massacre and within days of the anniversary of the Virginia Tech massacre): • “its pretty simple / I have a sweet gun / my neighbor is
giving me 500 rounds / dhs is gay / I’ve watched these kinds of movies so I know how NOT to go wrong / I just cant decide who will be on my hit list / and thats totally deminted and it scares even my self” All typographical errors in the messages quoted throughout are in the original messages.
6 W YNAR V . D OUGLAS NTY . S CH . D IST . • “I havent decided which 4/20 I will be doing it on / by
next year, I might have a better gun to use such as an MI cabine w/ a 30 rd clip. . . .or 5 clips. . . .10?” • “and ill probably only kill the people I hate?who hate me
/ then a few random to get the record” • [in response to a statement that he would “kill everyone”]
“no, just the blacks / and mexicans / halfbreeds / athiests / french / gays / liberals / david” • [referring to a classmate] “no im shooting her boobs off
/ then paul (hell take a 50rd clip) / then I reload and take out everybody else on the list / hmm paul should be last that way I can get more people before they run away. . .” • “she only reads my mesages and sometimes doesnt even
do that. / shes #1 on 4/20” • “ya I thought about ripping someones throat out with one.
/ wow these r weird thoughts. . . / then raping some chicks dead bodies to? no. maybe. idk.” • “that stupid kid from vtech. he didnt do shit and got a
record. I bet I could get 50+ people / and not one bullet would be wasted.”
• “I wish then I could kill more people / but I have to make
due with what I got. / 1 sks & 150 rds / 1 semi-auto shot gun w/sawed off barrle / 1 pistle” Although Landon’s friends apparently joked with him at times about school violence, the tenor of these escalating comments alarmed them, and they corresponded with each оther to decide what to do. One boy forwarded Landon’s messages to a friend, who responded, “thats [f . . .] crazy / landon and I have and messages like that too / he told me he was going to rape [redacted] / then kill her / then go on a school shotting / maybe we should be worried.” After seeing the messages, a third boy wrote, “Jesus Christ dude!!! / this is some really serious shit!!! / wat do we do? / I mean that is really really sico shit and this is not something to be taking *6 lightly seriously.” The first two boys decided to speak with one of their coaches and “ask them how to deal with him / like how not to make him tick and go on a rampage.”
The boys went to a football coach whom they trusted and then, together with the coach, they talked to the school principal about their concerns. They told the principal that they had information about a possible school shooting. After two police deputies interviewed the boys and saw the MySpace printouts, they questioned Landon in the principal’s office.
After the police took Landon into custody, school administrators met with him and asked if he wanted his parents to be present for their discussion. Landon said that he did not. They asked Landon about the MySpace messages, which he admitted writing but claimed were a joke. After providing a signed, written statement, Landon was suspended for 10 days.
The school board charged Landon with violating Nev. Rev. Stat. § 392.4655, among other things, and convened a formal hearing. Section 392.4655(1)(a) provides that a student will be deemed a habitual discipline problem if there is written evidence that the student threatened or extorted another pupil, teacher, or school employee. Under Nev. Rev. Stat. § 392.466(3), a student who is deemed a habitual disciplinary problem must be suspended or expelled for at least a semester. At the school board hearing, Landon was represented by an attorney. He had the opportunity to call witnesses and present evidence, which he chose not to do, and to cross-examine the school’s witnesses. Landon testified at the hearing. The board held that he violated § 392.4655 and expelled him for 90 days.
Landon and his father, acting as guardian, sued the school district, school administrators, and school district officials and trustees (collectively, “Douglas County”) for violations of Landon’s constitutional rights under 42 U.S.C. § 1983, as well as for negligence and negligent infliction of emotional distress. The district court denied Landon’s motion for summary judgment and granted Douglas County’s motion for summary judgment. The material facts are not in dispute.
A NALYSIS
I. F IRST A MENDMENT LAIM
The Supreme Court has not yet addressed the applicability of its school speech cases to speech originating off campus, such as Landon’s MySpace messages, which were written from home. Although the Court’s prior cases are instructive, In the аmended answer to the complaint, Douglas County raised a number of immunities as affirmative defenses. However, the district court did not address these, and Douglas County does not raise them here. Landon does not appeal from the district court’s grant of summary judgment on his negligence and negligent infliction of emotional distress claims.
we also look to our circuit precedent and to our sister circuits for guidance. We hold that Douglas County did not violate Landon’s First Amendment rights. Landon’s messages, which threatened the safety of the school and its students, both interfered with the rights of other students and made it reasonable for school officials to forecast a substantial disruption of school activities.
A. F RAMEWORK FOR A NALYSIS
The Supreme Court’s school speech jurisprudence echoes
a common theme: although public school students do not
“shed their constitutional rights to freedom of speech or
expression at the schoolhouse gate,”
Tinker v. Des Moines
Indep. Cmty. Sch. Dist.
, 393 U.S. 503, 506 (1969), “the
constitutional rights of students in public school are not
automatically coextensive with the rights of adults in other
settings,”
Bethel Sch. Dist. No. 403 v. Fraser
,
10
W YNAR V . D OUGLAS NTY . S CH . D IST .
In
LaVine v. Blaine School District
, our circuit’s most
analogous precedent, we held that a school did not violate the
First Amendment rights of a student who was expelled on a
temporary, emergency basis because of a first-person poem
he wrote at home about a school shooting and suicide and
later showed to his English teacher during class. 257 F.3d
981, 988 (9th Cir. 2001). Beсause the poem was neither lewd
nor school-sponsored, we applied the
Tinker
test to the
school’s actions.
Id.
at 989. Under
Tinker
, schools may
prohibit speech that “might reasonably [lead] school
authorities to forecast substantial disruption of or material
interference with school activities” or that collides “with the
rights of other students to be secure and to be let alone.”
Tinker
,
Although we did not explicitly address the poem’s off-
campus origination, courts have nevertheless cited
LaVine
as
an example of a case applying the test to off-campus
student speech.
See, e.g.
,
Porter v. Ascension Parish Sch.
Bd.
,
We do not view LaVine as taking the position staked out for it by these other courts. LaVine definitely did not say that the geographic origin of speech doesn’t matter, nor did it say that an individual’s free speech rights are diminished simply by virtue of being a student. Rather, it dealt with speech created off campus but brought to the school by the speaker. This is not a minor distinction. Our case presents another variation—off-campus communication among students involving a safety threat to the school environment and brought to the school’s attention by a fellow student, not the speaker. As explained below, the location of the speech can make a difference, but that does not mean that all off-campus speech is beyond the reach of school officials.
A number of our sister circuits have wrestled with the
question of
Tinker
’s reach beyond the schoolyard. The
Second, Fourth, and Eighth Circuits have concluded that
applies to certain off-campus speech.
See, e.g.
,
Doninger v. Niehoff
, 527 F.3d 41 (2d Cir. 2008) (student
disqualified from running for class secretary after posting a
vulgar and misleading message about the supposed
cancellation of an upcoming school event on a web log
(“blog”) from home);
Kowalski v. Berkeley County Schs.
The Third and Fifth Circuits have left open the question
whether
Tinker
applies to off-campus speech. In
J.S. ex rel.
Snyder v. Blue Mountain Sch. Dist.
,
One 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. A student’s
profanity-laced parody of a principal is hardly the same as a
threat of a school shooting, and we are reluctant to try and
craft a one-size fits all approach. We do not need to consider
at this time whether applies to all off-campus sрeech
such as principal parody profiles or websites dedicated to
disparaging or bullying fellow students. These cases present
challenges of their own that we will no doubt confront down
the road. Nor do we need to decide whether to incorporate or
adopt the threshold tests from our sister circuits, as any of
these tests could be easily satisfied in this circumstance.
Given the subject and addressees of Landon’s messages, it is
*11
hard to imagine how their nexus to the school could have
been more direct; for the same reasons, it should have been
reasonably foreseeable to Landon that his messages would
reach campus. Indeed, the alarming nаture of the messages
Dist.
,
As we wrote in
LaVine
: “Given the knowledge the
shootings at Columbine, Thurston and Santee high schools,
among others, have imparted about the potential for school
violence . . . we must take care when evaluating a student’s
First Amendment right of free expression against school
officials’ need to provide a safe school environment not to
overreact in favor of either.”
B. A PPLICATION TO L ANDON ’ S M Y PACE M ESSAGES Confronted with messages that could be interpreted as a plan to attack the school, written by a student with confirmed access to weapons and brought to the schоol’s attention by fellow students, Douglas County faced a dilemma every school dreads. As the Eleventh Circuit noted in a similar In the twelve years since LaVine was decided, many more names have joined this tragic list. When we decided LaVine , the shooting at Columbine High School, in which thirteen people died, was the deadliest school shooting to date. Since then there have been two even deadlier school shootings: at Virginia Tech and at Sandy Hook Elementary School. U.S. Dep’t of Health & Human Servs., Mass Murders: Why Us? Why the U.S.? , Healthfinder.gov, http://healthfinder.gov/News/ Article.aspx?id=671871 (last visited Aug. 21, 2013).
W YNAR V . D OUGLAS NTY . S CH . D IST .
15
case, “[w]e can only imagine what would have happened if
the school officials, after learning of [the] writing, did
nothing about it” and Landon did in fact come to school with
a gun.
Boim v. Fulton Cnty. Sch. Dist.
,
Under
Tinker
, schools may restrict speech that “might
reasonably [lead] school authorities to forecast substantial
disruption of or material interference with school activities”
or that collides “with the rights of other students to be secure
and to be let alone.”
1. Substantial Disruption or Material Interference with School Activities The nature of the threats here was alarming and explosive.
Confronted with a challenge to the safety of its students,
If the MySpace messages constituted a “true threat,” then they were not
entitled to any First Amendment protection.
United States v. Cassel
Douglas County did not need to wait for an actual disruption
to materialize before taking action. “ does not require
school officials to wait until disruption actually occurs before
they may act. . . . ‘In fact, they have a duty to prevent the
*13
occurrence of disturbances.’”
LaVine
, 257 F.3d at 989
(quoting
Karp v. Becken
,
It was reasonable for Douglas County to interpret the
messages as a real risk and to forecast a substantial
disruption. Landon argues that the circumstances in
LaVine
that made
it reasonable
to forecast substantial
disruption—“specifically, that [the student] was intending to
inflict injury upon himself or others,”
To begin, the harm described would have been catastrophic had it occurred. The messages suggest a Landon’s emphasis on his lack of previous disciplinary problems is misplaced. A report by the Secret Service and the Department of Education that examined 37 incidents of targeted school shootings and school attacks found that nearly two-thirds of the attackers had never been in trouble or were rarely in trouble at school. U.S. Secret Serv. & U.S. Dep’t of Educ., The Final Report and Findings of the Safe School Initiative ii, 20 (May 2002), available at http://www.secretservice.gov/ ntac/ssi_final_report.pdf.
fascination with previous school shootings. Landon explicitly invoked the deadliest school shooting ever by a single gunman and stated that he could kill even more people without wasting a single bullet. The given date for the event—April 20—implicitly invoked another horrific mass school shooting—the massacre at Columbine.
In one of the most disturbing messages, Landon explicitly named his school: “its pretty simple / I have a sweet gun / my neighbor is giving me 500 rounds / dhs [ Douglas High School ] is gay / I’ve watched these kinds of movies so I know how NOT tо go wrong / I just cant decide who will be on my hit list / and thats totally deminted and it scares even my self”. Landon specified a date for the attack and described how he would kill two specific, named classmates, one of whom was to be “#1 on 4/20,” while the other would be last so Landon could “get more people before they run away.” *14 Further, unlike the student in LaVine , 257 F.3d at 985, Landon stated that he had access to weapons and ammunition, so his friends and the school had reason to believe he had the ability to carry out a shooting. When questioned, Landon confirmed to a police officer that, as reported by his friends, he had weapons and ammunition at his house.
In contrast to the fake MySpace profile purporting to be the principal in J.S , which “was so outrageous that no one took its content seriously,” 650 F.3d at 921, Landon’s MySpace messages should have been taken seriously and apparently were. Landon’s friends’ MySpace messages to each other underscore their fear. The deputy sheriff who serves as a school resource officer for Douglas High School noted in his report that the friends who reported Landon’s messages “were vis[i]bly shaken and believe the suspect is mentally disturbed.” One female student who was mentioned . in Landon’s MySpace messages reported that she was afraid of Landon and that her father would not let her return to school if Lаndon was there.
We need not discredit Landon’s insistence that he was
joking; our point is that it was reasonable for Douglas County
to proceed as though he was not. Faced with this scenario,
the school district officials reasonably could have predicted
that they would have to spend “considerable time dealing
with [parents’ and students’] concerns and ensuring that
appropriate safety measures were in place.”
D.J.M. v.
Hannibal Pub. Sch. Dist. No. 60
,
2. Invasion of the Rights of Others
Few circuit cases address the “invasion of the rights of
others” prong of
Tinker
offensive speech crosses the line. Whatever the scope of the
“rights of other students to be secure and to be let alone,”
,
In holding that Douglas County’s actions did not violate the First Amendment, we dо not mean to imply approval of Douglas County’s particular response to the perceived threat. We note that there was a more punitive character to the expulsion here than in LaVine , in which the school “allowed [the student] to return to class as soon as a mental health professional determined he was not a threat to himself or his classmates.” 257 F.3d at 991 n.9. In addition, we 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.” Id. at 990 n.7. Our responsibility, however, is not to parse the wisdom of Douglas County’s actions, but to determine whether they were constitutional. We conclude that they were.
II. P ROCEDURAL UE P ROCESS LAIM
Under Nevada law, Landon had a property interest in his public education and was therefore entitled to due process before he could be suspended. See Goss v. Lopez , 419 U.S. 565, 572–74 (1975); Nev. Const. art. 11, § 2. Landon received adequate due process before both his 10-day suspension and his 90-day expulsion.
20 W YNAR V . D OUGLAS NTY . S CH . D IST . A. 10-D AY S USPENSION The Supreme Court explained in Goss that “due process requires, in connection with a suspension of 10 days or less, that the student be given oral or written notice of the charges against him and, if he denies them, an explanation of the evidence the authorities have and an opportunity to present his side of the story.” 419 U.S. at 581. Landon does not argue that Douglas County did not comply with these requirements. Instead, he complains that the county did not comply with its own regulatory procedures for suspension and that it did not notify Landon’s parents before meeting with him at the juvenile detention center.
Before suspending Landon for 10 days, the school
administrators who met with him at the detention center told
him that they had evidence that he had made threats on
MySpace and that they wanted to get his side of the story, but
Landon asserts that they did not follow exactly the school
district’s administrative regulations requiring that he be told
of the “
specific
rules, policies, or procedures that are alleged
to have been violated” (emphasis added) and that, if the
evidencе supported the allegations, the consequences could
include suspension. As the district court noted, “defendants’
purported failure to comply with their own administrative
procedure does not, itself, constitute a violation of
constitutional due process.”
See Bilbrey by Bilbrey v. Brown
738 F.2d 1462, 1471 (9th Cir. 1984) (holding that a due
process claim arising out of an alleged violation of a school’s
own regulations “would not make a search unconstitutional
if it were otherwise valid under the Fourth Amendment”);
Jacobs v. Clark Cnty. Sch. Dist.
,
Neither the Constitution nor the school district’s policies require parental notification prior to imposing a 10-day suspension or prior to meeting with a student.
B. 90-D AY E XPULSION
Although the Constitution does not require that a school
give a student “the opportunity to secure counsel, to confront
and cross-examine witnesses supporting the charge, [and] to
call his own witnesses to verify his version of the incident”
before a short suspension, suspensions longer than 10 days or
“expulsions for the remainder of the school term, or
permanently, may require more formal process.”
Goss
Before his expulsion, Landon receivеd written notice of the charges and a list of possible witnesses. He was given “the right to be represented by an advocate of [his] choosing, including counsel,” to present evidence and to call and cross- examine witnesses. Landon argues his due process rights were violated because he was not provided with evidence in advance of the hearing and because no witness testified to any disruption and hence he could not cross-examine on that point.
The additional procedures conceived by Landon were not constitutionally required. To begin, Landon had the key evidence—he acknowledged writing the messages and he had access to them through his MySpace account. As to witnesses on disruption, this is a question of the weight of the evidence, not a due process violation. In any event, Tinker does not require actual disruption before a school can impose discipline.
III. D UE P ROCESS N OTICE LAIM
Landon’s notice argument—that his expulsion violated
due process because he could not have known that he could
be expelled for writing the MySpace messages—is without
legal support. “Given the school’s need to be able to impose
disciplinary sanctions for a wide range of unanticipated
conduct disruptive of the educational process, the school
disciplinary rules need not be as detailed as a сriminal code
which imposes criminal sanctions.”
Fraser
,
Landon was also on notice that he could face discipline even for certain off-campus actions. Unlike the portion of § 392.4655 dealing with fights, the portion dealing with threats does not contain a geographic limitation. Compare § 392.4655(1)(a) (deeming a student a habitual disciplinary problem if he or she has “threatened or extorted” a classmate, teacher, or school employee, with no specification of the location of the threat or extortion) with § 392.4655(1)(b) (deeming a student a habitual disciplinary problem if he or she “has been suspended for initiating at least two fights on school property, at an activity sponsored by a public school, on a school bus or, if the fight occurs within 1 hour of the beginning or end of a school day, on the pupil’s way to or from school”).
IV. A PPLICABILITY OF § 392.4655
The district court correctly held thаt Douglas County did not misinterpret § 392.4655 in applying it to Landon. That section provides that “a principal of a school shall deem a pupil enrolled in the school a habitual disciplinary problem if the school has written evidence which documents that in 1 school year . . . [t]he pupil has threatened or extorted, or attempted to threaten or extort, another pupil or a teacher or other personnel employed by the school.” § 392.4655(1)–(1)(a). According to Landon, he could not be “deemed a habitual disciplinary problem” under § 392.4655 because he only committed a single act. Although the statute requires multiple occurrences for certain types of conduct before a student is deemed a habitual disciplinary problem, it does not require more than one occurrence of threat or extortion. As the district court pointed out, this “shows the legislature’s intent to hold a single act of threatening conduct an expellable offense.” The plain language of the statute, which includes the legislative definition of “habitual disciplinary problem” in this context, is controlling.
Landon’s argument that he could not be expelled because he did not intend to harm or intimidate anyone is equally unpersuasive. Douglas County’s correspondence with Landon’s parents and the board minutes stated that Landon was being charged with a violation of board policy and Nev. Rev. Stat. § 392.4655, an administrative statute without an intent requirement. Douglas County’s reference to a different, criminal statute—Nev. Rev. Stat. § 392.915, with which Landon was not charged—in those same documents did not incorporate the intent element of that statute. In any event, the school was not acting in the role of a government prosecutor enforcing a criminal statute. Douglas County was not required to prove Landon’s subjective intent in writing the messages before expelling him.
AFFIRMED.
On appeal, Landon also argues that § 392.4655 is facially
unconstitutional because it is overbroad and vague. Because he did not
raise this argument before the district court, we decline to consider it here.
See Dream Palace v. Cnty. of Maricopa
,