An Oregon student has lost out on a First Amendment challenge to his one-year expulsion from school over a private journal entry that threatened violence to fellow students and a former employee at his high school.
“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,” wrote a unanimous three-judge panel of the U.S. Court of Appeals for the Ninth Circuit.
The per curiam decision from Circuit Judges Raymond Fisher and Consuelo M. Callahan and U.S. District Judge Cathy Ann Bencivengo of the Southern District of California, sitting by designation, upholds an earlier decision from the trial court.
The plaintiff, referred to in the opinion as CLM, was a sophomore at Sherwood High School, southwest of Portland, in 2014 when he created a “hit list” in his journal. The entry stated “I am God” and “All These People Must Die,” while naming 22 students and one former employee. His mother discovered the journal entry while cleaning his room and alerted a therapist. The therapist, in turn, alerted law enforcement believing that the journal entries triggered her duties as a mandatory reporter. Police officers searched the plaintiff’s house and found a .22 caliber rifle and 525 rounds of ammunition, but no indications that CLM had planned on following through with the threats made in his journal.
School authorities were alerted and, as required under Oregon law, contacted the parents of students included on the list. CLM was ultimately expelled for one year due to the disruption his hit list had caused in the school community.
CLM and his parents filed a lawsuit in June 2015 challenging the expulsion on First Amendment and due-process grounds, but lost on summary judgment. U.S. District Judge Michael Simon of the District of Oregon denied the First Amendment claim, finding that the hit list would cause a substantial disruption in any school community, particularly one faced with Oregon’s statutory notification requirement. Simon also dismissed the family’s due-process claim, finding that temporary school discipline is “generally committed to the control of the state and local authorities.”
Thursday’s Ninth Circuit decision upholding Simon follows in a line of cases dealing with school discipline for student off-campus speech and lays out a new “flexible and fact-specific” three-part test to consider in such cases. Under the test, courts must consider the degree and likelihood of harm to the school from the speech, whether it’s reasonably foreseeable that the speech would reach the school, and the relation between the “content and context” of the speech and the school.
“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,” the panel wrote. “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.”
CLM’s lawyer, Adam Heder at Harris Berne Christensen, said that he was disappointed in the outcome of the case and he and his clients were considering their options.
Blake Fry of Mersereau Shannon, who represents the school district, didn’t immediately respond to a message Thursday.