McNeil v. Sherwood School District 88J, No. 17-35500 (9th Cir. 2019)
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The Ninth Circuit affirmed the district court's grant of summary judgment for the school district in a 42 U.S.C. 1983 action alleging that the district violated a student and his parents' First Amendment and Fourteenth Amendment substantive due process rights when it expelled the student for one year. The student was expelled for creating a hit list of students that "must die."
Under the circumstances of this case, including the nature of the hit list, the student's access to firearms, and the close proximity of the student's home to the high school, the decision to discipline the student for his off-campus speech did not violate his constitutional right to free speech. The panel clarified 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. 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. Furthermore, 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. In this case, taken as a whole, the considerations that guide application of the nexus test supported the school district.
Finally, the parents' claims alleging violations of their substantive due process failed because their fundamental right to choose the student's educational forum was not infringed by the school district's discipline of the student.
Court Description: 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 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.
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