Thursday, September 19, 2013


By Kimberly Beltran | SI&A Cabinet Report |

Thursday, September 19, 2013  ::  In a ruling that, for the first time, provides specific guidance to school administrators addressing issues such as cyberbullying and threats via technology, a federal court has determined that school officials can discipline students for certain off-campus electronic communications.

The case involved a high school student in western Nevada’s Douglas County who made repeated threats via his MySpace page to carry out multiple violent acts, including going on a school shooting spree. After the student was suspended and then expelled, his family sued the school district, claiming that the statements were a joke and that the district had violated his First Amendment rights by disciplining him for speech made off-campus.

But in affirming a district court’s earlier judgment in favor of the district, Ninth Circuit Court Judge M. Margaret McKeown wrote, “[This] 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 (1969),” McKeown opined. “Under the circumstances, the panel concluded that the school district did not violate the student’s rights to freedom of expression or due process.”

This opinion, according to education law specialists at Lozano Smith, represents the first Ninth Circuit appellate case to address the question of whether a school district may discipline students for off-campus, electronic communications and, if so, what student speech standard applies.

In this case – Wynar v. Douglas County Sch. Dist. – the federal court applied the seminal student free speech case, Tinker, in which, according to Lozano Smith, the U.S. Supreme Court held that “students maintain their right to freedom of speech at school, and school officials are prohibited from disciplining them for otherwise protected speech so long as such expression does not cause a substantial disruption to the educational environment, or is reasonably forecast to cause such a disruption.”

This “substantial disruption” standard is often referred to as the Tinker standard.

While subsequent Supreme Court rulings have dealt with the different types of speech for which school districts may discipline students, these cases apply only to student speech taking place on campus or at school-sponsored activities.

In Wynar, Landon Wynar, a sophomore at Douglas High School in Douglas County, Nev., 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 in a school shooting on a specific date and invoking the image of the 2007 Virginia Tech massacre that left 32 dead and 17 wounded.

Wynar’s friends were alarmed notified school authorities, who temporarily expelled him based in large part on those instant messages.

Before Wynar, only one published federal court case within California addressed student discipline for off-campus expression. That case, decided by the United States District Court for the Central District of California, outlined the state of the law as generally allowing school districts to discipline students for off-campus, electronic speech only if: (1) the speech is subsequently brought onto school campus, brought to the attention of the school officials, or could foreseeably make its way onto campus; and (2) the speech caused substantial disruption to the educational environment or it was reasonably foreseeable that such a disruption would occur. Such disruption or foreseeable disruption, however, had to be based on specific facts and not undifferentiated fears of the administration.

In its recent ruling, the Ninth Circuit Court emphasized that it was not ruling that Tinker applies to all off-campus speech. Nor did the court decide to expressly adopt any of the standards previously applied by other federal district courts or federal circuit courts.

“While the Court also found that the student’s due process rights, as guaranteed under Nevada state law, had not been violated, the case did not address the perhaps unique issues under California’s Education Code relative to due process, student speech rights or California’s cyberbullying discipline provisions,” Lozano Smith partner Sloan Simmons wrote in a brief analyzing the ruling.

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