The Ninth Circuit Court of Appeals upheld the expulsion of a student who was disciplined for credible, identifiable, threats of school violence that were made off-campus. (McNeil v. Sherwood School District, 19 C.D.O.S. 2353) The Court held the school district in Sherwood, Oregon did not violate the CLM’s (“Student”) First Amendment or his or his parents’ due process rights by expelling him for creating a “hit list” of other students who “must die” in his personal journal at home because there existed a sufficient nexus between that off-campus speech and school operations to justify school officials’ authority to discipline.
The Student kept a personal journal in his room at his home. He created a “hit list” which listed 22 students at his school and one former employee. He wrote, “I am God” and “All These People Must Die” and included other graphic descriptions of violence. The Student’s mother discovered the journal and notified a therapist, who in turn notified the police. The police searched the home, located very close to the school, and found a rifle and 525 rounds of ammunition. When interviewed by police, the Student admitted creating the hit list and that “sometimes he thinks killing people might relieve some of the stress he feels.” He denied actual intention to carry out his thoughts. No criminal charges were filed.
The police notified the school of the threat, and the school notified the parents of the students named in the hit list. The media became heavily involved. There was social media activity about the list and the Student who created it, and some parents kept their children out of school for several days or transferred their children elsewhere. One student brought a knife on campus, which he reported was to protect himself since the list was made known.
The District suspended the Student and recommended expulsion for the “threat of violence” he made that “caused a distinct and substantial disruption to the school environment.” After a hearing, the Student was expelled due to the hit list and it causing “significant disruption” of the school environment. The Student’s parents challenged the discipline based on constitutional protections of speech, equal protection and due process. The District Court granted the school district summary judgment finding a hit list would cause a substantial disruption in any school community, justifying the discipline.
The Ninth Circuit upheld the expulsion. While recognizing broader freedom of speech rights exist when made off-campus, it held that school officials may regulate off-campus speech that is reasonably likely to cause disruption at school. The Court explained a school district must show the off-campus speech bears a sufficient nexus to the school when regulating off-campus speech, based on the totality of the circumstances. This is a “flexible” and “fact-specific” test, based on (1) the degree and likelihood of harm to the school caused by the speech, (2) whether it was reasonably foreseeable that the speech would reach and impact the school, and (3) the relation between the content and context of the speech and the school. Most importantly, the Court held that “there is always a sufficient nexus between the speech and the school” when the district reasonably concludes that it faces a credible, identifiable threat of school violence.
The Court also reviewed the manner in which the school district learned of the hit list. Finding it not necessary for the student to communicate the threat, or that criminal charges be filed, it recognized schools have a “weighty social responsibility to ensure that ‘warning signs’ do not turn to tragedy,” and “[s]chools must be permitted to act preventatively, taking into account other students’ interest in a safe school environment.” School authorities thus acted within their authority to discipline the Student.
When a district reasonably receives a credible, identifiable threat of school violence, “there is always a sufficient nexus between the speech and the school” sufficient to confer authority on school officials to discipline. Once there is a nexus between off-campus speech and school operations, school officials should take disciplinary action following a fact specific analysis of the school impact.