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McNeil v. Sherwood School District 88J

United States Court of Appeals, Ninth Circuit

March 14, 2019

Michael McNeil, guardian ad litem as to CLM; CLM, by and through Michael McNeil guardian ad litem; Julie McNeil, individually, Plaintiffs-Appellants,
v.
Sherwood School District 88J; Heather H. Cordie; Ken Bell; Brian Bailey; Peter Miller; Gary Bennett, Defendants-Appellees.

          Argued and Submitted October 9, 2018 Portland, Oregon

          Appeal from the United States District Court for the District of Oregon, No. 3:15-cv-01098-SB Michael H. Simon, District Judge, Presiding

          Adam S. Heder (argued) and Roger K. Harris, Harris Berne Christensen LLP, Lake Oswego, Oregon, for Plaintiffs-Appellants.

          Blake H. Fry (argued) and Peter R. Mersereau, Mersereau Shannon LLP, Portland, Oregon, for Defendants-Appellees.

          Before: Raymond C. Fisher and Consuelo M. Callahan, Circuit Judges, and Cathy Ann Coerciveness, [*] District Judge.

         SUMMARY [**]

         Civil Rights

         The panel affirmed the district court's summary judgment in favor of a school district in an action brought pursuant to 42 U.S.C. § 1983 by student CLM and his parents alleging that the district violated plaintiffs' First Amendment and Fourteenth Amendment substantive due process rights when it expelled CLM for one year.

         CLM, then a high school sophomore at Sherwood High School, created in his personal journal a hit list of students that "must die." When his mother discovered the hit list, she told a therapist, who informed the police, who told the school district.

         The panel held that under the particular facts in this case, including the nature of the hit list, CLM's access to firearms, and the close proximity of CLM's home to the high school, the decision to discipline CLM for his off-campus speech did not violate his constitutional right to free speech. The panel held that when considering whether a school district may constitutionally regulate off-campus speech, courts must determine, based on the totality of the circumstances, whether the speech bears a sufficient nexus to the school. The panel stated that there is always a sufficient nexus between the speech and the school when the school district reasonably concludes that it faces a credible, identifiable threat of school violence. The panel further held that a student's lack of intent to convey his off-campus speech to any third party is relevant to an evaluation of whether the speech constitutes a credible threat, but is not dispositive.

         The panel held that the claim brought by CLM's parents alleging substantive due process violations failed because their fundamental right to choose CLM's educational forum was not infringed by the School District's discipline of CLM.

          OPINION

          PER CURIAM:

         CLM, then a high school sophomore at Sherwood High School ("Sherwood High"), created in his personal journal a hit list of students that "must die." When his mother discovered the hit list, she told a therapist, who informed the police, who told Sherwood School District ("School District"). The School District expelled CLM for one year. CLM sued the School District primarily on First Amendment grounds, and the district court held that the expulsion was constitutional. On appeal, CLM and his parents ("Appellants") assert that the School District cannot constitutionally regulate student speech that the student never intended to communicate to any third party. We conclude that under the particular facts in this case, including the nature of the hit list, CLM's access to firearms, and the close proximity of CLM's home to Sherwood High, the School District did not violate any of Appellants' asserted constitutional rights.

         I.

         On or about May 25, 2014, CLM created a "hit list" in his personal journal, naming 22 Sherwood High students and one former employee, and stating "I am God" and "All These People Must Die." On September 8, 2014, soon after CLM started his junior year at Sherwood High, CLM's mother, Mrs. McNeil, discovered the journal on CLM's nightstand while cleaning CLM's room. Upon reviewing the journal's contents, Mrs. McNeil came across the hit list and additional entries containing graphic depictions of violence. Mrs. McNeil made copies of some of the journal entries, including the hit list, and sought guidance from a therapist the next day regarding her findings. The therapist, alarmed by the entries and believing they triggered her duties as a mandatory reporter, informed the Sherwood Police Department ("Sherwood Police") about the list. The therapist told Mrs. McNeil to call a local crisis hotline, which she did. The hotline's social worker also contacted the Sherwood Police about CLM's list.

         Later that day, the Sherwood Police searched the McNeils' residence. Officers found and confiscated several weapons, including a .22 caliber rifle and 525 rounds of ammunition belonging to CLM, but the officers found nothing "to indicate any planning had gone into following through with the hit list."

         Shortly after the search, CLM and his parents voluntarily went to the police station, where they provided the police with a copy of CLM's hit list. After being read his Miranda warnings, CLM admitted he created the hit list and that "sometimes he thinks killing people might relieve some of the stress he feels," but he also stated "he uses the journal to vent" and that "he would never carry out" such thoughts. CLM claimed he created the list about four months prior to its discovery. The Sherwood Police determined that no criminal charges would be brought against CLM at that time.

         Meanwhile, the Sherwood Police informed the School District of CLM's hit list, of the fact the police had seized guns from his house, and that CLM's journal contained additional entries that graphically depicted school violence. Sherwood High's principal, Ken Bell, was aware that the McNeils lived "very close" to Sherwood High and assembled an administrative team to address the issue.

         Consistent with the notification requirements of Oregon Revised Statutes § 339.327(1), the School District's policies required school faculty to notify the parents of students found on a hit list within 12 hours of discovery. Within the 12-hour span, Bell's team made the necessary calls, which did not identify CLM as the hit list's author. Before the final call was made, the media began contacting the School District to inquire about the list. The School District also learned that CLM's picture had been posted on social media accounts. Upon realization of the widespread knowledge regarding CLM's hit list, Bell's team sent out a recorded voice message to all parents of students in the School District to notify them of the issue. The message stated that a student of Sherwood High had authored a hit list containing 23 names, but that the list contained no specific threats and the home in which the student resided was safe. The School District also issued a press release containing similar information. Thereafter, Sherwood High received numerous calls and emails from parents, media outlets, and the public requesting information about the hit list, CLM's identity, and whether CLM posed a threat to others. Some parents demanded to meet with Bell, and other parents had their children leave school early, miss several days, or transfer out of the district. A student was caught on campus with a knife, and he alleged "he needed it to protect himself in light of the hit list."

         The School District suspended CLM pending an expulsion hearing. Bell recommended that CLM be expelled from Sherwood High for one year because news of his hit list "significantly disrupted the learning environment at school," which would only be increased by CLM's return. Sherwood High's associate principal wrote a letter to the McNeils stating that he recommended that CLM be expelled for one year for making "a threat of ...


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