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Appeals Court Upholds School Discipline for Off-Campus Threats

A federal appeals court on Thursday upheld school administrators in Nevada who expelled a student who sent violent and threatening off-campus instant messages to his friends about his desire to shoot up his high school.

"The messages presented a real risk of significant disruption to school activities and interfered with the rights of other students," said the opinion for a unanimous three-judge panel of the U.S. Court of Appeals for the 9th Circuit, in San Francisco.

The case involves Landon Wynar, who was a sophomore at Douglas High School in Minden, Nev., in the spring of 2008 when he sent the instant messages to several friends. He wrote frequently about weapons, going shooting, and his interest in World War II, court papers say, and was known to have weapons in his household.

Among his more disturbing messages, the 9th Circuit court said, were these:

● "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".

● "and ill probably only kill the people I hate?who hate me / then a few random to get the record"

● "that stupid kid from vtech.[referring to the assailant in the 2008 shootings at Virginia Tech] he didnt do shit and got a record. I bet I could get 50+ people / and not one bullet would be wasted."

Wynar's friends were alarmed, and they approached a football coach at the school whom they trusted. The coach brought them to the school principal. Wynar was questioned by police in the principal's office, where he said the instant messages were just a joke. He was suspended and later expelled for the rest of the school year.

Wynar and his father sued the Douglas County, Nev., school district and various officials, alleging that his First Amendment free speech rights were violated. The student also alleged violations of his 14th Amendment procedural due-process rights.

A federal district court granted summary judgment to the school defendants. In its Aug. 29 decision in Wynar v. Douglas County School District, the 9th Circuit court panel affirmed the lower court.

Citing past school shootings that are known by their one-word shorthands, such as Columbine, Santee, and Newtown, the appeals court said school administrators face a daunting task of evaluating potential threats of violence while balancing students' free-speech rights.

"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," said the opinion by U.S. Circuit Judge M. Margaret McKeown.

She noted that the U.S. Supreme Court has not yet definitively ruled on the applicability of its school speech cases to student expression that originates off campus. (The justices have passed on several recent appeals involving student online parodies of principals or disparaging other students, and their most recent speech decision, in Morse v. Frederick, involved a student's "Bong Hits 4 Jesus" banner that the court held was displayed at a school event and thus subject to school discipline.)

A number of other federal appeals courts have wrestled with the question, with several ruling that off-campus speech that has a nexus to the school or causes disruption at school may be subject to school discipline, McKeown noted.

"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," McKeown said. "For the same reasons, it should have been reasonably foreseeable to Landon that his messages would reach campus."

McKeown said the 9th Circuit's basic principle is this: "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" the Supreme Court's landmark 1969 student speech decision in Tinker v. Des Moines Independent Community School District.

"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," McKeown added.

Applying its principle to Wynar's messages, the appeals court said the threats were "alarming and explosive," and the school district did not need to wait for an actual disruption to take action.

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