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 don’t 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 / I’ve 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 probably 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 / I’ve 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).