Order trumps expression

The U.S. Court of Appeals for the Ninth Circuit has upheld the expulsion of a Douglas County High School student who used threatening language in his social media communications sent from home to classmates.

The court opinion, by Judge M. Margaret McKeown, represented the view of a three-judge panel of the court. The opinion navigated legally difficult points of conflict between school safety and freedom of expression and found the student’s speech rights and due process rights were not violated. “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,” McKeown wrote. “It is a feat like tightrope balancing, where an error in judgment can lead to a tragic result.”

The court itself walked a tightrope: “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.”

The student, a sophomore named Landon Wynar, sent messages to his fellow students in 2008 that alarmed them. After communications among themselves, they took the problem to a coach, who accompanied them to the principal, who called in law enforcement. One deputy described the students as visibly shaken.

Wynar, after declining to have a parent present, was questioned about the messages and he called them a joke. Examples of those messages:

• “its pretty simple / i have a sweet gun / my neighbor is giving me 500 rounds / dhs [Douglas High School] is gay / ive 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”

• “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?” [April 20 was the date of the Columbine tragedy.]

It was later learned that Wynar had several weapons at home, including a Russian semi-automatic rifle.

After signing a statement Wynar was suspended for 10 days. He spent 31 days in jail. Ultimately, he was charged by the Douglas County School Board under Nevada Revised Statute 392.4655, which provides in part, “[A] principal of a school shall deem a pupil … a habitual disciplinary problem if the school has written evidence which documents that in 1 school year: (a) The pupil has threatened or extorted, or attempted to threaten or extort, another pupil or a teacher or other personnel employed by the school.”

In 1968, the U.S. Supreme Court provided a broad right of students to free expression in Tinker v. Des Moines. That right has been steadily narrowed since then by several subsequent cases. The Ninth Circuit itself turned for guidance to its own ruling in a previous, similar case—LaVine v. Blaine School District.

The court first examined Wynar’s First Amendment claim. He was expelled for what he wrote, not for anything he actually did, and he did the writing off the school grounds.

The opinion read: “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. … [I]t should have been reasonably foreseeable to Landon that his messages would reach campus. … Here we make explicit what was implicit in LaVine: when faced with an identifiable threat of school violence, schools may take disciplinary action in response to off-campus speech that meets the requirements of Tinker.”

As for whether Wynar’s exercise of his free speech caused disruption or interference with school activities—a threshold issue in Tinker—the court panel said, “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 school’s attention by fellow students, Douglas County faced a dilemma every school dreads. … [T]he harm described would have been catastrophic had it occurred.” One student specifically identified as a target in the Wynar messages said her father would not allow her to return to school if Wynar was there.

The court said, “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.”

The court examined the issue of whether Wynar had invaded the rights of others, also an issue in Tinker: “Landon’s messages threatened the student body as a whole and targeted specific students by name. They represent the quintessential harm to the rights of other students to be secure.”

The court did not give the school district a pass on its handling of the Wynar case, calling it “primitive.”

“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.”

The court then turned to Wynar’s claim of a violation of procedural due process before his suspension.

“Under Nevada law, Landon had a property interest in his public education and was therefore entitled to due process before he could be suspended,” the court noted. But it said with a seeming lack of enthusiasm that the handling of the case “was constitutionally adequate. 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.”

To Wynar’s claim that he was not notified that he could face discipline for some off-campus actions, the court found, “Apart from common sense, the school’s student handbook, which is distributed at the beginning of each year, gave adequate warning … that he could face sanctions for his alarming statements about shooting classmates.”

The court decided it need not address Wynar’s contention that he was joking in his messages because “it was reasonable for Douglas County to proceed as though he was not.”

“Though he was charged under a habitual discipline statute and had no previous record of problems, the court found that the statute does require habitual problems in some discipline areas, but not in extortion or threat.” The court also noted that a study of school shootings by the U.S. Secret Service and Department of Education found that in most cases there were no previous discipline problems.”

Allen Lichtenstein and Vanessa Spinazola of the American Civil Liberties Union of Nevada read the decision at the request of the RN&R and offered this analysis:

“In this case, the Court of Appeals for the Ninth Circuit ruled that under certain exigent circumstances, particularly where school and student safety is concerned, the reach of school authority to involve itself in matters of off campus speech may be appropriate. The court, however, made it clear that absent special circumstances speech by students that occurs away from the school is not ordinarily within the purview of school disciplinary policies. This decision is fairly reasonable, particularly in light of actions happening in other circuits, where school authority is being stretched much further.”

One matter not directly addressed was Wynar’s state of mind, likely because the case was limited to constitutional issues. Messages Wynar sent out suggested he felt isolated and even hated, by students and parents. The opinion said the Ninth Circuit in an earlier case argued that expulsion “without providing some kind of counseling or supervision might not be the best response to a school’s concern for potential violence.”

Wynar is now legally an adult.