Ninth Circuit Holds That Student’s Expulsion for “Hit List” Did Not Violate Student’s Free Speech

On March 14, 2019, the Ninth Circuit Court of Appeals held in McNeil v. Sherwood Sch. Dist. 88J, 918 F.3d 700 (9th Cir. 2019) that an Oregon school district did not violate a student’s First Amendment rights to free speech when it expelled the student due to a “hit list” of classmates found in the student’s personal journal.

In May 2014, a parent of a high school student at an Oregon school discovered a “hit list” in the student’s personal journal. Although the journal did not contain specific threats, it depicted scenes of graphic violence and identified 22 classmates and 1 former school district employee on a “hit list.” The parent brought the journal to the attention of a therapist, who in turn reported it to the police in her capacity as a mandatory reporter. When the police searched the family’s residence, they discovered a rifle and several hundred rounds of ammunition.

The school district suspended the student pending an expulsion hearing. The principal recommended a one-year expulsion on the basis that the “hit list” was “a threat of violence” and news of it would “significantly disrupt the learning environment of the school.” At the expulsion hearing in September 2014, the hearing officer agreed with the principal’s rationale and expelled the student for one school year. During the 2014-15 school year, the student received education via online courses, tutoring, and a community college. However, the educational program was allegedly inadequate and the student ultimately had to retake several classes.

In June 2015, the student’s family filed a lawsuit in federal court against the school, alleging violations of the First and Fourteenth Amendments and requesting damages and expungement of the student’s disciplinary record. The district court granted summary judgment in favor of the school, and the family appealed to the Ninth Circuit. On appeal, the family alleged that the school had violated their substantive due process right “to be free from state interference with their choice of…education forum” as well as the student’s First Amendment right to free speech.

The Ninth Circuit considered two questions when deciding the case. First, whether the school was permitted to regulate the student’s off-campus speech at all, since the journal was not school property and was not found on school property or by school employees, and second, whether the expulsion complied with the First Amendment standards established in the Tinker v. Des Moines Supreme Court decision.

The court concluded that case law in the Ninth Circuit did not adequately address the first issue, and clarified the applicable test. The court held that the constitutionality of a school’s regulation of off-campus speech turns on (1) “the degree and likelihood of harm to the school” caused by such 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.” Applying this test, the court found that the each prong was satisfied in this scenario; the school’s assessment of credible harm was reasonable, the disruptive impact of news of the list was foreseeable, and the content of the speech certainly involved the school.

The fact that a substantial disruption to the school was reasonably foreseeable also supported the school’s position with regard to claims that it had violated the student’s First Amendment right to free speech. Under Tinker, schools may restrict speech that would “reasonably lead school authorities to forecast a substantial disruption.” Partly because the “hit list” identified specific individuals, the school district had reasonably foreseen that news of the list would cause significant safety concerns among both students and parents, and substantially disrupt their educational activities.

With respect to the student’s due process claim, the court held that the school “did not deprive the McNeil’s of their liberty interest” because, by enrolling their student at the school, “they accepted Sherwood High’s curriculum, school policies, and reasonable disciplinary measures.”

The Ninth Circuit’s sister court in Illinois, the Seventh Circuit, has not had an opportunity to examine the precise question here, a First Amendment-based challenge to expulsion due to credible threats of violence. However, the Seventh Circuit has offered school districts in Illinois relatively wide latitude with respect to similar concerns arising out of less violent scenarios, like potential school disruptions caused by certain types of student political speech. This court case, although not directly governing Illinois school districts, further reinforces the national trend toward giving deference to school authorities when deciding whether a student’s actions are reasonably disruptive to warrant disciplinary action.

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