In McNeil v. Sherwood School District, published March 14, 2019, the 9th Circuit affirmed summary judgment in favor of the defendant school district in a 42 U.S.C. section 1983 case brought by a high school student and his parents. The student wrote in his personal journal a hit list of students who "must die." His mother discovered the journal in his room. She made copies, and sought guidance from a therapist. The therapist, believing the information triggered his duties as a mandatory reporter, contacted the police. The police searched the house and confiscated a rifle and ammunition, but found nothing to indicate the student was planning to follow through with the list. The police did not charge the student. The police informed the school district. As required by law, the district informed the parents of students on the list of the list, without identifying the author. After media inquiries and social media accounts displaying the student's photo, the district informed all parents. Parents transferred students out of the district, while others had their children skip school. After a hearing, the district expelled the student for one year for making the list and disrupting the school. The student sued for violation of his First Amendment rights. The parents sued for violation of their due process right to educational venue choice.
The 9th Circuit ruled that the district had not violated the student's First Amendment rights. When determining whether a school’s regulation of a student’s off-campus speech is constitutional, a court must consider all of the relevant circumstances. The student's lack of intent to communicate the speech to any third party--such as when the student writes in a personal journal--is a relevant consideration, but it is not dispositive. Here, the lack of intent to communicate the threat was offset by the fact his speech created an identifiable, credible threat of school violence. He lived close to campus, and had weapons and ammunition. The speech bore a significant nexus to the school. The school district could therefore take disciplinary action. Because his continued presence at campus would cause disruption, the discipline imposed was reasonable and not punitive. The court also rejected the due process challenge to the expulsion. That right entitled the parents to enroll the student at the high school. Once there, the school had the power to administer discipline. That included expelling the student from campus and supplying alternative, online instruction of him.
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