Michael McNeil v. Sherwood School District 88j , 918 F.3d 700 ( 2019 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHAEL MCNEIL, guardian ad litem No. 17-35500
as to CLM; CLM, by and through
Michael McNeil guardian ad litem; D.C. No.
JULIE MCNEIL, individually, 3:15-cv-01098-
Plaintiffs-Appellants, SB
v.
OPINION
SHERWOOD SCHOOL DISTRICT 88J;
HEATHER H. CORDIE; KEN BELL;
BRIAN BAILEY; PETER MILLER; GARY
BENNETT,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Oregon
Michael H. Simon, District Judge, Presiding
Argued and Submitted October 9, 2018
Portland, Oregon
Filed March 14, 2019
Before: Raymond C. Fisher and Consuelo M. Callahan,
Circuit Judges, and Cathy Ann Bencivengo,* District Judge.
Per Curiam Opinion
*
The Honorable Cathy Ann Bencivengo, United States District Judge
for the Southern District of California, sitting by designation.
2 MCNEIL V. SHERWOOD SCHOOL DISTRICT 88J
SUMMARY**
Civil Rights
The panel affirmed the district court’s summary judgment
in favor of a school district in an action brought pursuant to
42 U.S.C. § 1983 by student CLM and his parents alleging
that the district violated plaintiffs’ First Amendment and
Fourteenth Amendment substantive due process rights when
it expelled CLM for one year.
CLM, then a high school sophomore at Sherwood High
School, created in his personal journal a hit list of students
that “must die.” When his mother discovered the hit list, she
told a therapist, who informed the police, who told the school
district.
The panel held that under the particular facts in this case,
including the nature of the hit list, CLM’s access to firearms,
and the close proximity of CLM’s home to the high school,
the decision to discipline CLM for his off-campus speech did
not violate his constitutional right to free speech. The panel
held that when considering whether a school district may
constitutionally regulate off-campus speech, courts must
determine, based on the totality of the circumstances, whether
the speech bears a sufficient nexus to the school. The panel
stated that there is always a sufficient nexus between the
speech and the school when the school district reasonably
concludes that it faces a credible, identifiable threat of school
violence. The panel further held that a student’s lack of intent
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
MCNEIL V. SHERWOOD SCHOOL DISTRICT 88J 3
to convey his off-campus speech to any third party is relevant
to an evaluation of whether the speech constitutes a credible
threat, but is not dispositive.
The panel held that the claim brought by CLM’s parents
alleging substantive due process violations failed because
their fundamental right to choose CLM’s educational forum
was not infringed by the School District’s discipline of CLM.
COUNSEL
Adam S. Heder (argued) and Roger K. Harris, Harris Berne
Christensen LLP, Lake Oswego, Oregon, for Plaintiffs-
Appellants.
Blake H. Fry (argued) and Peter R. Mersereau, Mersereau
Shannon LLP, Portland, Oregon, for Defendants-Appellees.
OPINION
PER CURIAM:
CLM, then a high school sophomore at Sherwood High
School (“Sherwood High”), created in his personal journal a
hit list of students that “must die.” When his mother
discovered the hit list, she told a therapist, who informed the
police, who told Sherwood School District (“School
District”). The School District expelled CLM for one year.
CLM sued the School District primarily on First Amendment
grounds, and the district court held that the expulsion
was constitutional. On appeal, CLM and his parents
(“Appellants”) assert that the School District cannot
4 MCNEIL V. SHERWOOD SCHOOL DISTRICT 88J
constitutionally regulate student speech that the student
never intended to communicate to any third party. We
conclude that under the particular facts in this case, including
the nature of the hit list, CLM’s access to firearms, and the
close proximity of CLM’s home to Sherwood High, the
School District did not violate any of Appellants’ asserted
constitutional rights.
I.
On or about May 25, 2014, CLM created a “hit list” in his
personal journal, naming 22 Sherwood High students and one
former employee, and stating “I am God” and “All These
People Must Die.” On September 8, 2014, soon after CLM
started his junior year at Sherwood High, CLM’s mother,
Mrs. McNeil, discovered the journal on CLM’s nightstand
while cleaning CLM’s room. Upon reviewing the journal’s
contents, Mrs. McNeil came across the hit list and additional
entries containing graphic depictions of violence.
Mrs. McNeil made copies of some of the journal entries,
including the hit list, and sought guidance from a therapist the
next day regarding her findings. The therapist, alarmed by
the entries and believing they triggered her duties as a
mandatory reporter, informed the Sherwood Police
Department (“Sherwood Police”) about the list. The therapist
told Mrs. McNeil to call a local crisis hotline, which she did.
The hotline’s social worker also contacted the Sherwood
Police about CLM’s list.
Later that day, the Sherwood Police searched the
McNeils’ residence. Officers found and confiscated several
weapons, including a .22 caliber rifle and 525 rounds of
ammunition belonging to CLM, but the officers found
MCNEIL V. SHERWOOD SCHOOL DISTRICT 88J 5
nothing “to indicate any planning had gone into following
through with the hit list.”
Shortly after the search, CLM and his parents voluntarily
went to the police station, where they provided the police
with a copy of CLM’s hit list. After being read his Miranda
warnings, CLM admitted he created the hit list and that
“sometimes he thinks killing people might relieve some of the
stress he feels,” but he also stated “he uses the journal to
vent” and that “he would never carry out” such thoughts.
CLM claimed he created the list about four months prior to its
discovery. The Sherwood Police determined that no criminal
charges would be brought against CLM at that time.
Meanwhile, the Sherwood Police informed the School
District of CLM’s hit list, of the fact the police had seized
guns from his house, and that CLM’s journal contained
additional entries that graphically depicted school violence.
Sherwood High’s principal, Ken Bell, was aware that the
McNeils lived “very close” to Sherwood High and assembled
an administrative team to address the issue.
Consistent with the notification requirements of Oregon
Revised Statutes § 339.327(1), the School District’s policies
required school faculty to notify the parents of students found
on a hit list within 12 hours of discovery. Within the 12-hour
span, Bell’s team made the necessary calls, which did not
identify CLM as the hit list’s author. Before the final call
was made, the media began contacting the School District to
inquire about the list. The School District also learned that
CLM’s picture had been posted on social media accounts.
Upon realization of the widespread knowledge regarding
CLM’s hit list, Bell’s team sent out a recorded voice message
to all parents of students in the School District to notify them
6 MCNEIL V. SHERWOOD SCHOOL DISTRICT 88J
of the issue. The message stated that a student of Sherwood
High had authored a hit list containing 23 names, but that the
list contained no specific threats and the home in which the
student resided was safe. The School District also issued a
press release containing similar information. Thereafter,
Sherwood High received numerous calls and emails from
parents, media outlets, and the public requesting information
about the hit list, CLM’s identity, and whether CLM posed a
threat to others. Some parents demanded to meet with Bell,
and other parents had their children leave school early, miss
several days, or transfer out of the district. A student was
caught on campus with a knife, and he alleged “he needed it
to protect himself in light of the hit list.”
The School District suspended CLM pending an
expulsion hearing. Bell recommended that CLM be expelled
from Sherwood High for one year because news of his hit list
“significantly disrupted the learning environment at school,”
which would only be increased by CLM’s return. Sherwood
High’s associate principal wrote a letter to the McNeils
stating that he recommended that CLM be expelled for one
year for making “a threat of violence” that “has caused a
distinct and substantial disruption to the school environment.”
On September 22, 2014, an expulsion hearing was held
before Pete Miller, a hearings officer for the School District.
CLM was represented by an attorney at the hearing. Upon
review of the testimony and evidence, Miller adopted the
principal’s recommendation for expulsion, largely based on
“the significant disruption” CLM’s list caused in the school
environment. After the hearing, the School District’s
associate superintendent sent a decision letter to the McNeils,
explaining that the list constituted “a threat of violence in
violation of the Student Code of Conduct.” The letter
MCNEIL V. SHERWOOD SCHOOL DISTRICT 88J 7
explained that CLM could not return to school that academic
year, and that the McNeils had the right to appeal the decision
to the School District’s board. The McNeils did not appeal.
Following his expulsion, CLM received alternative forms
of education through the School District, including online
courses, in-person tutoring, and courses at a community
college. However, CLM had “no immediate or even daily
access to instructors,” and the tutors were “inconsistent and
not dependable,” as they missed appointments and in one
instance failed to follow up for weeks. CLM ultimately had
to retake several classes.
In June 2015, CLM and the McNeils filed a complaint in
the U.S. District Court for the District of Oregon seeking
damages and other relief under 42 U.S.C. § 1983. CLM
sought damages for the School District’s alleged violations of
the Free Speech Clause of the First Amendment and of the
Equal Protection and Due Process Clauses of the Fourteenth
Amendment.1 The McNeils also brought a substantive due
process challenge to CLM’s expulsion. The complaint sought
expungement of any documentation or reference to CLM’s
suspension, expulsion, and the circumstances surrounding the
disciplinary proceedings.
The School District moved for summary judgment on all
claims, while CLM and the McNeils moved for summary
judgment on their free speech claim and substantive due
process claim, respectively. The district court concluded that
the School District could regulate CLM’s off-campus speech
for three primary reasons: (1) the hit list had a sufficient
1
On appeal, CLM has withdrawn his equal protection and
procedural due process claims.
8 MCNEIL V. SHERWOOD SCHOOL DISTRICT 88J
connection to Sherwood High; (2) school officials could have
reasonably foreseen that the effects of the hit list would spill
over into the school environment; and (3) the facts in CLM’s
case mirrored those in Wynar v. Douglas County School
District, 728 F.3d 1062 (9th Cir. 2013). The district court
further held that the one-year expulsion did not violate
CLM’s First Amendment rights, reasoning that a student-
authored hit list would cause a substantial disruption in any
school community, particularly in light of Oregon’s statutory
notification requirement.
The district court also granted the School District
summary judgment on the McNeils’ substantive due process
claim. The district court reasoned that the claim failed
because it was derivative of CLM’s First Amendment claim
and because a school has the authority to discipline students
on reasonable grounds. The district court determined that
although the McNeils had a liberty interest in an “initial
‘educational venue choice,’” their interest did not extend to
temporary school discipline within that venue, which is an
issue “generally committed to the control of the state and
local authorities.”
Appellants timely appealed. On appeal, CLM claims that
the School District lacked authority under the First
Amendment to discipline CLM for his hit list. The McNeils
also allege that the School District’s expulsion of CLM
violated their substantive due process right “to be free from
state interference with their choice of [CLM’s] educational
forum.”
MCNEIL V. SHERWOOD SCHOOL DISTRICT 88J 9
II.
We review “the district court’s grant of summary
judgment de novo.” Szajer v. City of Los Angeles, 632 F.3d
607, 610 (9th Cir. 2011). The court views “evidence in the
light most favorable to the nonmoving party,” to determine
“whether genuine issues of material fact exist.” George v.
Edholm, 752 F.3d 1206, 1214 (9th Cir. 2014) (quoting
Bagdadi v. Nazar, 84 F.3d 1194, 1197 (9th Cir. 1996)). If a
rational juror “‘could resolve a genuine issue of material fact
in the nonmoving party’s favor,’ summary judgment is
inappropriate.” Id. (quoting Bravo v. City of Santa Maria,
665 F.3d 1076, 1083 (9th Cir. 2011)).
III.
“The first inquiry in any § 1983 suit . . . is whether the
plaintiff has been deprived of a right ‘secured by the
Constitution and laws.’” Baker v. McCollan, 443 U.S. 137,
140 (1979). Section 1983 does not create substantive rights,
but rather provides the procedural mechanism for vindicating
federal statutory or constitutional rights. Id. at 145 n.3.
A. CLM’s First Amendment Claim
The Supreme Court has held that public school students
do not forfeit “their constitutional rights to freedom of speech
or expression at the schoolhouse gate.” Tinker v. Des Moines
Indep. Cnty. Sch. Dist., 393 U.S. 503, 506 (1969). However,
their rights are “not automatically coextensive with the rights
of adults in other settings.” Wynar, 728 F.3d at 1067 (quoting
Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 682
(1986)). Additionally, although they enjoy greater freedom
to speak when they are off campus than when they are on
10 MCNEIL V. SHERWOOD SCHOOL DISTRICT 88J
campus, their off-campus speech is not necessarily beyond
the reach of a school district’s regulatory authority. Our
review of the School District’s treatment of CLM turns on
two inquiries: (1) whether the School District could
permissibly regulate CLM’s off-campus speech at all; and if
so, (2) whether the School District’s decision to expel CLM
violated the First Amendment standard for school regulation
of speech set out in Tinker. See C.R. v. Eugene Sch. Dist. 4J,
835 F.3d 1142, 1148 (9th Cir. 2016).
1. The School District’s authority to regulate CLM’s
off-campus speech
We have twice considered the authority of a school
district to regulate off-campus speech. In Wynar, a high
school student was expelled because he sent graphic instant
messages to his friends from his home computer. 728 F.3d
at 1064–67. The messages expressed threats of school
violence and indicated that the student had access to guns and
ammunition. Id. at 1065–66. The messages were brought to
the school’s attention by the student’s friends. Id. at 1066.
Despite the student’s lack of intent in bringing his speech to
the school campus, we held that his expulsion was
constitutional, reasoning that “when faced with an identifiable
threat of school violence, schools may take disciplinary
action in response to off-campus speech . . . .” Id. at 1069.
In C.R., a school district suspended a student for sexually
harassing two students shortly after school hours in a public
park near the school. 835 F.3d at 1145–47. The student
argued that the school’s regulation of his harassment was
unconstitutional because the harassment occurred in a public,
off-campus park. Id. at 1145–46. While we recognized that
the harassment constituted off-campus speech, we held that
MCNEIL V. SHERWOOD SCHOOL DISTRICT 88J 11
the suspension was constitutional. Id. at 1146. We reasoned
that the speech was closely tied to the school, noting that all
of the individuals involved were students and that the incident
occurred in close proximity to the school and just minutes
after the end of the school day. Id. at 1150–51. We also
noted that school administrators could reasonably expect the
effects of the speech to disrupt the school environment. Id.
at 1151.
Although our previous cases have not settled on a test for
determining when a school can constitutionally regulate off-
campus speech, we have stressed the importance of flexibility
in dealing with the “myriad of circumstances” schools face.
Wynar, 728 F.3d at 1069; see also C.R., 835 F.3d at 1150–51.
These cases have noted two approaches: (1) requiring that
off-campus speech “have a sufficient ‘nexus’ to the school,”
Wynar, 728 F.3d at 1068 (quoting Kowalski v. Berkeley Cty.
Schs., 652 F.3d 565, 573 (4th Cir. 2011)); and (2) requiring
“that it be ‘reasonably foreseeable that the speech will reach
the school community,’” id. (quoting S.J.W. v. Lee’s Summit
R-7 Sch. Dist., 696 F.3d 771, 777 (8th Cir. 2012)).
We now clarify that courts considering whether a school
district may constitutionally regulate off-campus speech must
determine, based on the totality of the circumstances, whether
the speech bears a sufficient nexus to the school. See C.R.,
835 F.3d at 1150–51; Wynar, 728 F.3d at 1069. This test is
flexible and fact-specific, but the relevant considerations will
include (1) the degree and likelihood of harm to the school
caused or augured by the speech, see Wynar, 728 F.3d at
1069, (2) whether it was reasonably foreseeable that the
speech would reach and impact the school, see C.R., 835 F.3d
at 1150–51; Wynar, 728 F.3d at 1069; Kowalski, 652 F.3d at
573, and (3) the relation between the content and context of
12 MCNEIL V. SHERWOOD SCHOOL DISTRICT 88J
the speech and the school, see C.R., 835 F.3d at 1150–51;
Wynar, 728 F.3d at 1069.2 There is always a sufficient nexus
between the speech and the school when the school district
reasonably concludes that it faces a credible, identifiable
threat of school violence. See Wynar, 728 F.3d at 1069.
CLM attempts to distinguish Wynar on the ground that he
had no intent to communicate the contents of his speech to
anyone. That distinction cannot be dispositive. We have
recognized repeatedly that the specter of school violence
places a weighty social responsibility on school districts to
ensure that “warning signs” do not turn to tragedy. See
LaVine v. Blaine Sch. Dist., 257 F.3d 981, 987 (9th Cir.
2001). This responsibility does not mean schools may “expel
students just because they are ‘loners,’ wear black and play
video games.” Id. It does mean, however, that a student’s
intent, although relevant, does not necessarily define the
threat of violence. We reaffirm our holding in Wynar that
regardless of the speaker’s intent or how speech comes to a
school district’s attention, a school district may take
disciplinary action in response to off-campus speech when it
reasonably determines that it faces an identifiable and
credible threat of school violence. See Wynar, 728 F.3d at
1069.
Of course, any information school officials have
regarding the intention of the speaker may bear on whether a
threat is credible. The intent to keep a threat private,
2
In analyzing foreseeability, we have considered both whether it
was foreseeable to the speaker that the speech would reach the school, see
Wynar, 728 F.3d at 1068, and whether it was foreseeable to school
administrators that the speech would impact the school community, see
C.R., 835 F.3d at 1151.
MCNEIL V. SHERWOOD SCHOOL DISTRICT 88J 13
however, is not determinative—it would be absurd to suggest
that secret threats or planning cannot give rise to reasonable
concerns of school violence. See, e.g., Kristin McCauley,
Arapahoe Cty. Sheriff, Investigative Report: Arapahoe
High School Case # CT13-44545, at 29–31 (2014),
https://mediaassets.thedenverchannel.com/document/2014/
10/10/AHSShootingReport_8903184_ver1.0.pdf?_ga=2.15
5919036.684175427.1543265365-980564543.1543265365
(describing password-protected diary entries containing
planning for a fatal 2013 school shooting).
Here, the School District reasonably determined CLM
presented a credible threat. The School District knew CLM
had identified specific targets, had accentuated his hit list
with the phrases “I am God” and “All These People Must
Die,” lived in a gun-owning home close to the school, and
had had thoughts of suicide. The School District also knew
the diary contained other graphic depictions of school
violence. This evidence was sufficient to render the School
District’s determination reasonable and to give it authority to
regulate CLM’s speech.
CLM argues that, once he was in police custody, he
ceased to pose a safety threat because he was being evaluated
in the care of competent authorities. This evaluation,
however, lasted only one day, and afterward CLM returned
home with limited oversight and his parents retrieved the
family’s firearms. The police’s decision to release CLM
cannot prevent the school from addressing the threat of
violence: a school may take action even where police or
mental health professionals have elected not to do so. See
LaVine, 257 F.3d at 990 (“It is true that the [police and a
psychiatrist] did not believe [the student at issue] should be
involuntarily committed, but the standard for involuntary
14 MCNEIL V. SHERWOOD SCHOOL DISTRICT 88J
commitment is not the same as that for school officials to take
action.”). Schools must be permitted to act preventatively,
taking into account other students’ interest in a safe school
environment. Here, the school reasonably determined the risk
was sufficient to take action.
Our test does not allow a school to take disciplinary
action in response to just any perceived threat of school
violence arising from off-campus speech. Although our
review of a school’s determinations in this regard is
deferential, “deference does not mean abdication; there are
situations where school officials overstep their bounds and
violate the Constitution.” Id. at 988.
In Porter v. Ascension Parish School Board, 393 F.3d 608
(5th Cir. 2004), for example, Adam, a high school student,
depicted a military attack on his school in his sketchpad. Id.
at 611. There were no students identified in the drawing and
Adam stored the sketchpad in his closet at home. Id. Two
years later, Adam’s brother brought the sketchpad to the
school. Id. Another student, with permission from Adam’s
brother, flipped through the sketchpad and, upon coming
across Adam’s drawing of the military attack, exclaimed,
“they’re going to blow up [the school].” Id. This brought the
drawing to the attention of school authorities, who expelled
Adam for the drawing. Id. at 611–12. The Fifth Circuit held
that Adam’s drawing was protected by the First Amendment
because it did not constitute “speech on campus or even
speech directed at the campus.” Id. at 615. The Fifth Circuit
noted that for Adam’s drawing to lose First Amendment
protection, something more than “accidental and
unintentional exposure to public scrutiny must take place.”
Id. at 618. The Fifth Circuit reasoned that because Adam’s
MCNEIL V. SHERWOOD SCHOOL DISTRICT 88J 15
drawing was not intentionally communicated, it was not a
true threat and therefore not subject to school regulation. Id.
We do not adopt the Fifth Circuit’s reasoning, but note
that our approach supports the result in Porter and that there
are critical distinctions between the facts here and those in
Porter. There, the drawing was two years old, highly
fantastical, unspecific, and unaccompanied by other indicia
of a violent intent. See id. at 611. There was no evidence
Adam had ever had the capacity to carry out the actions
depicted in the drawing. In contrast to this case, it was
unlikely that any reasonable administrator could have
believed the school faced a credible safety threat.
Taken as a whole, the three considerations that guide
application of the nexus test support the School District here.
First, it was reasonable for School District officials to
conclude that CLM presented a credible threat of severe harm
to the school community. This consideration establishes a
sufficient nexus between the speech and the school to permit
regulation. See Wynar, 728 F.3d at 1069.
Second, once it learned of the hit list, the School District
could reasonably foresee that news of the threat would reach
and impact the school and disrupt the school environment.
Oregon’s notification requirement, Oregon Revised Statutes
§ 339.327(1), provides that “[a] superintendent of a school
district . . . who has reasonable cause to believe that a person,
while in a school, is or has been in possession of a list that
threatens harm to other persons” must notify the “parent or
guardian of any student whose name appears on the list as a
target of the harm.” The statute applies to enrolled students
who are or have been in possession of a threatening list,
regardless of whether the list is on or off school property. It
16 MCNEIL V. SHERWOOD SCHOOL DISTRICT 88J
was reasonably foreseeable that parents, once notified as
required by Oregon law, would inform their children about
the hit list. It was also reasonably foreseeable that
information about the hit list would cause students to be
fearful for their safety. Invariably, these resulting
consequences would create classroom distractions and
substantial disruptions within the Sherwood High community.
Although it was not foreseeable to CLM that his speech
would reach the school, a lack of intent to share speech is of
minimal weight when, as here, the speech contains a credible
threat of violence directed at the school. Someone planning
a violent act does not need to advertise it.
Third, the content of the speech involved the school. As
we noted in Wynar and C.R., when all involved parties are
students, that fact “typically counsels in favor of finding that
a student’s speech was susceptible to discipline.” C.R., 835
F.3d at 1150 (citing Wynar, 728 F.3d at 1069). Here, CLM’s
hit list contained the names of 22 students and one former
teacher of the School District, and thus, presented a particular
threat to the school community. Ordinarily, schools may not
discipline students for the contents of their private, off-
campus diary entries, any more than they can punish students
for their private thoughts, but schools have a right, indeed an
obligation, to address a credible threat of violence involving
the school community.
In sum, we conclude that the School District could
regulate CLM’s off-campus speech without violating his First
Amendment rights. Although CLM may not have foreseen
his speech reaching Sherwood High, the School District,
when informed of CLM’s hit list, reasonably determined that
it faced a credible, identifiable threat of school violence. The
speech bore a sufficient nexus to the school. Accordingly, the
MCNEIL V. SHERWOOD SCHOOL DISTRICT 88J 17
School District could take disciplinary action consistent with
Tinker.
2. The School District’s expulsion of CLM
Although some disciplinary action was permissible, there
remains the issue of whether the School District’s expulsion
was consistent with the First Amendment. “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.’” Wynar, 728 F.3d at 1070 (alteration in original)
(quoting Tinker, 393 U.S. at 508, 514). This analysis
considers not just the actions of the disciplined student, but
rather “all of the circumstances confronting the school
officials that might reasonably portend disruption.” LaVine,
257 F.3d at 989. We have held that “the specter of a school
shooting qualifies under either prong of Tinker.” Wynar, 728
F.3d at 1070. School districts should be afforded deference
in determining what discipline is necessary to maintain safety
and order, see id. at 1072, but we have cautioned that
discipline can extend beyond the scope Tinker allows when
it takes on a purely punitive character, see LaVine, 257 F.3d
at 992.
Here, taking disciplinary action was reasonable under
both Tinker prongs. As discussed, CLM’s hit list identifying
specific individuals constituted a credible threat of school
violence that required the School District to act in furtherance
of the safety of its students. Oregon’s statutory notification
requirement further confirms this proposition, as the School
District could reasonably foresee that informing parents that
their children were identified on a student-authored hit list
18 MCNEIL V. SHERWOOD SCHOOL DISTRICT 88J
would cause a substantial disruption within the Sherwood
High community. Moreover, CLM’s hit list led to a material
disruption at Sherwood High by causing safety concerns
among both students and parents. The record evinces this
disruption by the outcry from parents who demanded to speak
with Sherwood High authorities and by the parents who
transferred or threatened to transfer their child out of the
School District. Thus, in light of the nature of CLM’s hit list
and the widespread knowledge regarding the list in the
Sherwood High community, it was reasonable for School
District officials to forecast that CLM’s presence at the
school would cause a substantial disruption.
Moreover, CLM’s hit list also invaded the “rights of other
students to be secure and to be let alone.” Tinker, 393 U.S. at
508. As Wynar stated, a student “target[ing] specific students
by name” for a potential school shooting “represent[s] the
quintessential harm to the rights of other students to be
secure.” 728 F.3d at 1072.
On appeal, CLM does not challenge the length of his
expulsion—he argues only that the School District did not
have the authority to expel him at all. We thus are not called
upon to determine whether a one-year expulsion was
excessive. At a certain point, discipline may lose its basis in
reasonable, ongoing concerns of campus safety, disruption, or
interference with the rights of other students, and instead
become primarily a punitive, retrospective response to the
student’s speech. Such discipline would be in conflict with
Tinker. See LaVine, 257 F.3d at 991–92. Here, however, we
decide only that CLM has not shown that the decision to
expel him violates his constitutional rights under Tinker. The
School District could reasonably conclude that CLM’s
continued presence at the school at the time of his expulsion
MCNEIL V. SHERWOOD SCHOOL DISTRICT 88J 19
would have caused a “substantial disruption of, or material
interference with school activities” and would have interfered
“with the rights of other students to be secure and to be let
alone.” Wynar, 728 F.3d at 1070 (quoting Tinker, 393 U.S.
at 508, 514).
B. The McNeils’ Substantive Due Process Claim
Finally, we address the McNeils’ substantive due process
claim. The Fourteenth Amendment’s Substantive Due
Process Clause “provides heightened protection against
government interference with certain fundamental rights and
liberty interests,” such as a parent’s right to make decisions
regarding the “care, custody, and control of their children.”
Troxel v. Granville, 530 U.S. 57, 65 (2000) (quoting
Washington v. Glucksberg, 521 U.S. 702, 720 (1997)). One
such fundamental right is “the right of parents to be free from
state interference with their choice of the educational forum
itself, a choice that ordinarily determines the type of
education one’s child will receive.” Fields v. Palmdale Sch.
Dist., 427 F.3d 1197, 1207 (9th Cir. 2005). However, once
parents determine their child’s educational forum, their
fundamental right to control the education is “substantially
diminished.” Id. at 1206. Due process does not give parents
the right to interfere with a public school’s operations
because issues such as school discipline, the content of
examinations, and dress code are “issues of public education
generally ‘committed to the control of state and local
authorities.’” Id. (quoting Blau v. Fort Thomas Pub. Sch.
Dist., 401 F.3d 381, 395–96 (6th Cir. 2005)).
Here, the School District did not deprive the McNeils of
their liberty interest in determining where CLM completes his
high school education or whether CLM attends public school.
20 MCNEIL V. SHERWOOD SCHOOL DISTRICT 88J
The McNeils’ fundamental right allowed them to voluntarily
enroll CLM at Sherwood High. In doing so, they accepted
Sherwood High’s curriculum, school policies, and reasonable
disciplinary measures.
IV.
The number of reported tragic school shootings over the
past two decades emphasizes the need for school districts to
have the authority to take disciplinary action when faced with
a credible threat of school violence. See Wynar, 728 F.3d at
1069. Although a student’s expectation as to the circulation
of his speech may be relevant to an evaluation of whether the
speech constitutes a credible threat, the student’s intent as to
circulation does not condition the school’s regulation of
threatening off-campus speech. As we noted in Wynar, “[w]e
can only imagine what would have happened if the school
officials, after learning of [the] writing, did nothing about it,”
and CLM did in fact come to Sherwood High with a firearm
and the intent to carry out his hit list. 728 F.3d at 1070
(alterations in original) (quoting Boim v. Fulton Cty. Sch.
Dist., 494 F.3d 978, 984 (11th Cir. 2007)).
We hold that the School District’s decision to discipline
CLM for his off-campus speech did not violate CLM’s
constitutional right to free speech. A student’s lack of intent
to convey his off-campus speech to any third party is relevant
to an evaluation of whether the speech constitutes a credible
threat, but is not dispositive. Rather, a court must consider all
the relevant factual circumstances when determining whether
a school’s regulation of a student’s off-campus speech is
constitutional. Here, CLM’s lack of intent to communicate
the contents of his hit list is offset by the fact that his speech
created a credible, identifiable threat of school violence.
MCNEIL V. SHERWOOD SCHOOL DISTRICT 88J 21
The McNeils’ substantive due process claim also fails
because their fundamental right to choose CLM’s educational
forum was not infringed by the School District’s discipline of
CLM.
The district court’s judgment for Defendants is
AFFIRMED.