We’ve already discussed the tension between a school district’s discipline for social media posts and First Amendment protections. Click here. Indeed, as the United States Supreme Court said in Tinker v. Des Moines Independent County School District, 393 US 503 (1969). public school students do not lose their “constitutional rights to freedom of speech or expression at the school gate.”
Social media posts can be viewed by a seemingly unlimited number of “Friends” almost instantly and, therefore, can be seen as creating immediate disruption, depending on their content. However, does a student’s diary lack all of these characteristics? If the newspaper’s content describes an apparently violent intention towards the school, can that student be expelled? Last month, the Ninth Circuit of the United States Court of Appeals declared Yes.
In McNeil v. Sherwood School District 88J et al., Case n ° 3: 15-cv-01098, the Student created in May 2015 a “hit list” in his staff newspaper. The newspaper named 22 specific students and a former employee. The student’s entry stated that he “was god” and that “all these people must die. ” The newspaper also contained undeclared depictions of violence.
The student’s mother discovered the entries four months later and took them to a therapist for advice. From there, a series of events beyond the student’s control unfolded. Believing that she was a commissioned reporter, the therapist informed the police who then informed the school district. The police discovered that there were guns in the student’s house. But, the student explained that he used the newspaper to “let off steam” and that he never intended to carry out any violent plans. Police decided that no criminal charges were warranted.
The school, however, in accordance with its own policies, notified parents of students on the “hit list.” This caused parents to seek to meet with the principal and some students missed or left school. Eventually, the press got wind of the story and a student was caught with a knife at school, claiming he had brought it for protection. The school suspended the student and then informed him that he would be expelled for “a threat of violence” which “caused a distinct and substantial disruption of the school environment”. The student was expelled for a year and then challenged the expulsion based on an alleged violation of his First Amendment rights.
To reach its decision, the Court developed a three-part test which depended on (1) the degree of probability of harm to the school; (2) whether it was reasonably foreseeable that the speech would reach and impact the school; and (3) the relationship between the content and the context of the speech and the school. Here, the Court concluded that the school district reasonably concluded that all three of these factors were present in order to justify the actions of the school. Perhaps most notably, the court relied on the diary entries identifying specific students. at school and that the entries contained other depictions of violence. Thus, the Court said, the student’s alleged lack of intention to inflict harm was, in these circumstances, not determinative.
The Court also appeared to recognize the broad scope of school discipline in the area of the student. staff newspaper. On this issue, the Court said:
Normally, schools cannot discipline students for the content of their private off-campus journal notes, nor can they punish students for their private thoughts, but schools have the right, if not the obligation, to face a credible threat of violence involving the school community.
The court ruling extends a school district’s reach to a student’s private diary entries that it never intended to make public. Nevertheless, school administrators like those of Mercier are pushed into the unfair position of having to justify their deportation decisions; or face the possible consequences of not deporting despite a credible threat of violence. Ultimately, admins have to decide which conversation they prefer to have – the one where they acted or the one where they didn’t. While the Court’s decision undoubtedly rests on the specific circumstances involved, it is at least to some extent a victory for directors who have to walk that very fine line.