Federal Appeals Court Upholds Expulsion Over ‘Hit List’ in Personal Journal

By Mark Walsh — March 18, 2019 4 min read
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A federal appeals court has upheld the expulsion of an Oregon high school student whose personal journal include a hit list of 22 fellow students, even though the student said he was merely venting his anger and never circulated the journal.

“The number of reported tragic school shootings over the past two decades emphasizes the need for school districts to have the authority to take disciplinary action when faced with a credible threat of school violence,” said a unanimous three-judge panel of the U.S. Court of Appeals for the 9th Circuit, in San Francisco.

The case concerns a student identified in court papers as CLM, who was a sophomore at Sherwood High School in the Sherwood School District in Oregon in the spring on 2014 when his personal journal was discovered. The journal stated “I Am God” and “All These People Must Die,” naming 22 Sherwood students and one former school employee. Other entries included graphic depictions of violence.

CLM’s mother found the journal in her son’s bedroom, copied some pages, and told a therapist, who was alarmed and believed she had a duty as a mandatory reporter to inform the police. The police searched the family’s home and confiscated a .22 caliber rifle and 525 rounds of ammunition belonging to the student.

CLM told the police that “sometimes he thinks killing people might relieve some of the stress he feels,” the 9th Circuit opinions says, but he also said “he uses the journal to vent” and that “he would never carry out” such thoughts.

The police did not file any charges, but they informed the school district of CLM’s hit list and the fact that he had weapons and lived closed to his high school. Pursuant to an Oregon law requiring schools to inform parents of a student named on a hit list, the district took that step. Before long, the media learned of the hit list and CLM’s picture appeared on social media in connection with the list.

CLM was suspended, and district officials soon recommended the one-year expulsion for making “a threat of violence” that “caused a distinct and substantial disruption to the school environment.” A hearing officer adopted the recommendation for expulsion, and CLM began alternative education that included online learning, tutoring, and courses at a community college.

CLM and his parents sued the district, arguing that the student’s First Amendment free-speech rights and 14th Amendment equal protection and due process clauses were violated.

A federal district court held that the school district could regulate ALM’s off-campus speech because the hit list had a sufficient connection to school and that the one-year expulsion did not violate CLM’s rights because a student-authored hit list would cause a substantial disruption in any community.

In its March 14 decision in McNeil v. Sherwood School District 88J, the 9th Circuit panel affirmed the district court. The panel said the case bore some similarities to a 2013 decision of the 9th Circuit in Wynar v. Douglas County School District, which upheld the expulsion of a student who sent threatening instant messages to fellow students from his home computer.

“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 9th Circuit panel said in the new decision. “We have recognized repeatedly that the specter of school violence places a weighty social responsibility on school districts to ensure that ‘warning signs’ do not turn to tragedy.”

That responsibility does not mean schools may expel students just because they are “loners” or “wear black and play video games,” the panel said.

“It does mean, however, that a student’s intent, although relevant, does not necessarily define the threat of violence,” the opinion said. “We reaffirm our holding in Wynar that regardless of the speaker’s intent or how speech comes to a school district’s attention, a school district may take disciplinary action in response to off-campus speech when it reasonably determines that it faces an identifiable and credible threat of school violence.”

The court upheld CLM’s one-year expulsion, noting that the student did not challenge the length of the discipline, only whether the district had the authority to expel him at all. The court hinted that the one-year term of expulsion may have been “excessive,” saying that “at a certain point, discipline may lose its basis in reasonable, ongoing concerns of campus safety, disruption, or interference with the rights of other students, and instead become primarily a punitive, retrospective response to the student’s speech.”

But the district prevailed in showing that CLM’s presence at the school after the hit list was revealed would have caused a “substantial disruption of, or material interference with school activities” and would have interfered “with the rights of other students to be secure and to be let alone.”

That language is from the U.S. Supreme Court’s landmark 1969 student free speech decision in Tinker v. Des Moines Independent Community School District.

A version of this news article first appeared in The School Law Blog.