Mark Wynar v. Douglas County School District

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARK WYNAR, an individual and as No. 11-17127
guardian of Landon Wynar; LANDON
WYNAR, a Minor, D.C. No.
Plaintiffs-Appellants, 3:09-cv-00626-
LRH-VPC
v.
DOUGLAS COUNTY SCHOOL OPINION
DISTRICT, a political subdivision of
the State of Nevada; CAROL LARK;
NANCY BRYANT; MARTY SWISHER;
DAVID PYLE; CYNTHIA TRIGG;
KEITH ROMAN; SHARLA HALES,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Nevada
Larry R. Hicks, District Judge, Presiding
Argued and Submitted
May 16, 2013—San Francisco, California
Filed August 29, 2013
2 WYNAR V. DOUGLAS CNTY. SCH. DIST.
Before: M. Margaret McKeown and Paul J. Watford,
Circuit Judges, and Thomas S. Zilly, Senior District Judge.*
Opinion by Judge McKeown
SUMMARY**
Civil Rights
The panel affirmed the district court’s summary judgment
in an action brought under 42 U.S.C. § 1983 by a high school
student and his father after the student was temporarily
expelled for sending violent and threatening instant messages
from his home to his friends about planning a school
shooting.
The panel held that the 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. The panel held that 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 v. Des Moines Indep. Cmty. Sch. Dist.,
393 U.S. 503, 506 (1969). Under the circumstances, the
*
The Honorable Thomas S. Zilly, Senior District Judge for the U.S.
District Court for the Western District of Washington, sitting by
designation.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
WYNAR V. DOUGLAS CNTY. SCH. DIST. 3
panel concluded that the school district did not violate the
student’s rights to freedom of expression or due process.
COUNSEL
Jeffrey S. Blanck (argued), Reno, Nevada, for Plaintiffs-
Appellants.
Ann M. Alexander (argued), Erickson, Thorpe & Swainston,
Ltd., Reno, Nevada, for Defendants-Appellees.
OPINION
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 electronically,
sometimes about subjects that threaten the safety of the
school environment. At the same time, school officials must
4 WYNAR V. DOUGLAS CNTY. SCH. DIST.
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,1 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 school 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.
BACKGROUND
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.
Landon communicated regularly with friends from school
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.
WYNAR V. DOUGLAS CNTY. SCH. DIST. 5
allows its members to set up online “profiles” and
communicate via email, instant messages, and blogs.
Layshock v. Hermitage Sch. Dist., 650 F.3d 205, 208 & n.2
(3d Cir. 2011) (en banc). Instant messages enable “users to
engage in real-time dialogue ‘by typing messages to one
another that appear almost immediately on the others’
computer screens.’” United States v. Meek, 366 F.3d 705,
709 n.1 (9th Cir. 2004) (quoting Reno v. ACLU, 521 U.S.
844, 851–52 (1997)).
Among other things, Landon wrote frequently about
weapons, 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 dont like me just like everyone
at school,” and “its ignore landon day everyday.”2 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 / 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”
2
All typographical errors in the messages quoted throughout are in the
original messages.
6 WYNAR V. DOUGLAS CNTY. SCH. DIST.
• “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 probly 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
WYNAR V. DOUGLAS CNTY. SCH. DIST. 7
other 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
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.
8 WYNAR V. DOUGLAS CNTY. SCH. DIST.
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”)3 for violations
of Landon’s constitutional rights under 42 U.S.C. § 1983, as
well as for negligence and negligent infliction of emotional
distress.4 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.
ANALYSIS
I. FIRST AMENDMENT CLAIM
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,
3
In the amended 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.
4
Landon does not appeal from the district court’s grant of summary
judgment on his negligence and negligent infliction of emotional distress
claims.
WYNAR V. DOUGLAS CNTY. SCH. DIST. 9
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. FRAMEWORK FOR ANALYSIS
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, 478 U.S. 675,
682 (1986). The Court has decided four lead student speech
cases: Tinker; Fraser; Hazelwood Sch. Dist., 484 U.S. 260;
and Morse v. Frederick, 551 U.S. 393 (2007). Each governs
a different area of student speech: “(1) vulgar, lewd, obscene,
and plainly offensive speech” is governed by Fraser; “(2)
school-sponsored speech” is governed by Hazelwood, and
“(3) speech that falls into neither of these categories” is
governed by Tinker. Chandler v. McMinnville Sch. Dist.,
978 F.2d 524, 529 (9th Cir. 1992). In Morse, the Court dealt
with a fourth, and somewhat unique, category—speech
promoting illegal drug use. 551 U.S. at 403. All four cases
involved speech that took place at school or at a school-
sanctioned event. Beyond those contexts, the Court has noted
only that “[t]here is some uncertainty at the outer boundaries
as to when courts should apply school speech precedents.”
Morse, 551 U.S. at 401.
10 WYNAR V. DOUGLAS CNTY. SCH. DIST.
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). Because 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, 393 U.S. at 508, 514. Looking to the totality of the
circumstances, LaVine concluded that the school could have
reasonably “forecast substantial disruption of or material
interference with school activities—specifically, that [the
student] was intending to inflict injury upon himself or
others.” LaVine, 257 F.3d at 990. Against “the backdrop of
actual school shootings,” we considered that the student was
involved in a domestic dispute, had recently broken up with
his girlfriend and was reportedly stalking her, and had had
disciplinary problems in the past. Id. at 989–90. “[M]aybe
most important[] . . . was the poem itself.” Id. at 990. “At its
extreme it can be interpreted as a portent of future violence,”
and “[e]ven in its most mild interpretation, the poem appears
to be a ‘cry for help.’” Id.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 Tinker test to off-campus
student speech. See, e.g., Porter v. Ascension Parish Sch.
Bd., 393 F.3d 608, 615 n.22 (5th Cir. 2004) (listing LaVine as
one of the cases in which courts have “[r]efus[ed] to
WYNAR V. DOUGLAS CNTY. SCH. DIST. 11
differentiate between student speech taking place on-campus
and speech taking place off-campus”); J.C. ex rel. R.C. v.
Beverly Hills Unified Sch. Dist., 711 F. Supp. 2d 1094, 1108
(C.D. Cal. 2010) (stating that “under the majority rule, and
the rule established by the Ninth Circuit in LaVine, the
geographic origin of the speech is not material”).
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
Tinker 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.,
652 F.3d 565 (4th Cir. 2011) (student suspended for creating
and posting to a MySpace webpage that was largely dedicated
to ridiculing a fellow student); S.J.W. v. Lee’s Summit R-7
Sch. Dist., 696 F.3d 771 (8th Cir. 2012) (students suspended
12 WYNAR V. DOUGLAS CNTY. SCH. DIST.
for creating website with offensive and racist comments
discussing fights at their school and mocking black students,
as well as sexually explicit and degrading comments about
particular female classmates). These circuits have imposed
some additional threshold test before applying Tinker to
speech that originates off campus. For example, the Fourth
Circuit requires that the speech have a sufficient “nexus” to
the school, Kowalski, 652 F.3d at 573, while the Eighth
Circuit requires that it be “reasonably foreseeable that the
speech will reach the school community.” S.J.W., 696 F.3d
at 777. The Second Circuit has not decided “whether it must
be shown that it was reasonably foreseeable that [the speech]
would reach the school property or whether the undisputed
fact that it did reach the school pretermits any inquiry as to
this aspect of reasonable foreseeability.” Wisniewski v. Bd.
of Educ. of the Weedsport Cent. Sch. Dist., 494 F.3d 34, 39
(2d Cir. 2007). But at least where it is reasonably foreseeable
that off-campus speech meeting the Tinker test will wind up
at school, the Second Circuit has permitted schools to impose
discipline based on the speech. Doninger, 527 F.3d at 48.
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., 650 F.3d 915, 926, 930
(3d Cir. 2011) (en banc), the Third Circuit “assume[d],
without deciding, that Tinker applie[d]” to a student’s
creation of a parody MySpace profile mocking the school
principal, but held that it was not reasonably foreseeable that
the speech would create a substantial disruption.5 In a
5
In another Third Circuit en banc case decided the same day as Blue
Mountain, and also involving a principal parody profile, the school district
did “not dispute the district court’s finding that its punishment of [the
student] was not appropriate under Tinker.” Layshock v. Hermitage Sch.
WYNAR V. DOUGLAS CNTY. SCH. DIST. 13
separate concurrence, five judges expressed their position that
Tinker does not apply to off-campus speech and that “the
First Amendment protects students engaging in off-campus
speech to the same extent it protects speech by citizens in the
community at large.” Id. at 936 (Smith, C.J., concurring).
The Fifth Circuit similarly left the question open in Porter,
393 F.3d at 615–16 n.22 (noting the “difficulties posed by
state regulation of student speech that takes place off-campus
and is later brought on-campus”). In that case, the student’s
speech was not even “directed at the campus.” Id. at 615.
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 Tinker applies to all off-campus speech
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
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 nature of the messages
Dist., 650 F.3d 205, 216 (3d Cir. 2011) (en banc). The school district
relied instead on Fraser. Id. But the court went on to note that Fraser
didn’t allow the school “to punish [the student] for expressive conduct
which occurred outside of the school context.” Id. at 219.
14 WYNAR V. DOUGLAS CNTY. SCH. DIST.
prompted Landon’s friends to do exactly what we would hope
any responsible student would do: report to school
authorities. 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 we wrote in LaVine: “Given the knowledge the
shootings at Columbine, Thurston and Santee high schools,
among others,6 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.” 257 F.3d at 983. The approach
we set out strikes the appropriate balance between allowing
schools to act to protect their students from credible threats of
violence while recognizing and protecting freedom of
expression by students.
B. APPLICATION TO LANDON’S MY SPACE MESSAGES
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. As the Eleventh Circuit noted in a similar
6
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).
WYNAR V. DOUGLAS CNTY. SCH. DIST. 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., 494 F.3d 978, 984
(11th Cir. 2007). “School officials have a difficult task in
balancing safety concerns against chilling free expression.”
LaVine, 257 F.3d at 992. Under the circumstances of this
case, Douglas County did not violate Landon’s First
Amendment rights by expelling him for 90 days.7
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.” 393 U.S. at 508, 514. Such speech is
“not immunized by the constitutional guarantee of freedom of
speech.” Id. at 513. It is an understatement that the specter
of a school shooting qualifies under either prong of Tinker.
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,
7
If the MySpace messages constituted a “true threat,” then they were not
entitled to any First Amendment protection. United States v. Cassel,
408 F.3d 622, 627 (9th Cir. 2005). In the criminal arena, for speech to be
deemed a “true threat,” the speaker must have “subjectively intended the
speech as a threat.” Id. at 633. Landon has contended from the beginning
that the messages were written in jest. As in LaVine, “[b]ecause we
conclude that even if [the messages were] protected speech, the school
actions were justified, we need not resolve” the question whether the
messages were a true threat in the civil context presented here. 257 F.3d
at 989 n.5.
16 WYNAR V. DOUGLAS CNTY. SCH. DIST.
Douglas County did not need to wait for an actual disruption
to materialize before taking action. “Tinker does not require
school officials to wait until disruption actually occurs before
they may act. . . . ‘In fact, they have a duty to prevent the
occurrence of disturbances.’” LaVine, 257 F.3d at 989(quoting Karp v. Becken, 477 F.2d 171, 175 (9th Cir. 1973)).
We look to “all of the circumstances confronting the school
officials that might reasonably portend disruption.” LaVine,
257 F.3d at 989.
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,” 257 F.3d at 990—were
absent.8 For example, the student in LaVine, unlike Landon,
had previous disciplinary problems, had discussed suicide
with his counselor, was reportedly stalking his recent ex-
girlfriend, and had been involved with a domestic dispute
with his father. See id. at 991. That may be so, but other
circumstances here made it exceedingly reasonable for the
school officials to take Landon’s messages seriously.
To begin, the harm described would have been
catastrophic had it occurred. The messages suggest a
8
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.
WYNAR V. DOUGLAS CNTY. SCH. DIST. 17
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 / 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”. 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.”
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
18 WYNAR V. DOUGLAS CNTY. SCH. DIST.
in Landon’s MySpace messages reported that she was afraid
of Landon and that her father would not let her return to
school if Landon 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, 647 F.3d 754, 766 (8th Cir.
2011).
2. Invasion of the Rights of Others
Few circuit cases address the “invasion of the rights of
others” prong of Tinker.9 393 U.S. at 513. As then-Circuit
Judge Alito wrote, “[t]he precise scope of Tinker’s
‘interference with the rights of others’ language is unclear.”
Saxe, 240 F.3d at 217. We agree with the Third Circuit that
“it is certainly not enough that the speech is merely offensive
to some listener,” id., but decline to elaborate on when
9
See West v. Derby Unified Sch. Dist. No. 260, 206 F.3d 1358, 1366
(10th Cir. 2000), and Saxe v. State Coll. Area Sch. Dist., 240 F.3d 200,
217 (3d Cir. 2001), for examples of cases discussing Tinker’s “invasion
of the rights of others” prong. We relied on this prong in Harper v. Poway
Unified Sch. Dist., 445 F.3d 1166 (9th Cir. 2006). However, the judgment
in that case was vacated and the appeal dismissed as moot after the student
graduated. Harper v. Poway Unified Sch. Dist., 549 U.S. 1262 (2007);
Harper v. Poway Unified Sch. Dist., 485 F.3d 1052, 1053 (9th Cir. 2007);
Harper v. Poway Unified Sch. Dist., 545 F. Supp. 2d 1072, 1077 (S.D.
Cal. 2007), aff’d in part, vacated in part, 318 F. App’x 540 (9th Cir.
2009).
WYNAR V. DOUGLAS CNTY. SCH. DIST. 19
offensive speech crosses the line. Whatever the scope of the
“rights of other students to be secure and to be let alone,”
Tinker, 393 U.S. at 508, without doubt the threat of a school
shooting impinges on those rights. 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.
In holding that Douglas County’s actions did not violate
the First Amendment, we do 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. PROCEDURAL DUE PROCESS CLAIM
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 WYNAR V. DOUGLAS CNTY. SCH. DIST.
A. 10-DAY SUSPENSION
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
evidence 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., 526 F.3d 419, 441 (9th Cir.
2008) (“Moreover, Plaintiffs provide no authority for their
suggestion that a federal due process claim lies whenever a
WYNAR V. DOUGLAS CNTY. SCH. DIST. 21
local entity deviates from its own procedures in enacting a
local regulation.”) (emphasis in original). The notice Landon
received 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.
B. 90-DAY EXPULSION
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,
419 U.S. at 583–84. Neither the Supreme Court nor our own
circuit has mandated specific procedures for a suspension of
90 days. “Due process is flexible and calls for such
procedural protections as the particular situation demands.”
Mathews v. Eldridge, 424 U.S. 319, 334 (1976) (quoting
Morrissey v. Brewer, 408 U.S. 471, 481 (1972)) (alteration
omitted). In determining whether Landon received adequate
due process, we consider Landon’s interest in his education
at Douglas High School; “the risk of an erroneous deprivation
of such interest through the procedures used, and the probable
value, if any, of additional or substitute procedural
safeguards;” and Douglas County’s interest, including the
not-insignificant burdens that the additional safeguards would
entail. See Mathews, 424 U.S. at 335. We note that
“administrative proceedings need not cleave to strict state
evidentiary rules.” In re Estate of Covington, 450 F.3d 917,
923 (9th Cir. 2006).
22 WYNAR V. DOUGLAS CNTY. SCH. DIST.
Before his expulsion, Landon received 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. DUE PROCESS NOTICE CLAIM
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 criminal code
which imposes criminal sanctions.” Fraser, 478 U.S. at 686.
Apart from common sense, the school’s student handbook,
which is distributed at the beginning of each year, gave
adequate warning to Landon that he could face sanctions for
his alarming statements about shooting classmates. See id.The handbook reproduced verbatim the portion of § 392.4655
WYNAR V. DOUGLAS CNTY. SCH. DIST. 23
that the school board found Landon to have violated. In
addition, the handbook stated in a separate section that
behavior that was “intimidating, harassing, threatening, or
disruptive” was subject to disciplinary action.
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. APPLICABILITY OF § 392.4655
The district court correctly held that 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
24 WYNAR V. DOUGLAS CNTY. SCH. DIST.
because he only committed a single act.10 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.
10
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, 384 F.3d 990, 1005 (9th Cir.
2004).