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Courts considering whether a school district may constitutionally regulate off-campus speech must determine, based on the totality of the circumstances, whether the speech bears a sufficient nexus to the school. This test is flexible and fact-specific, but the relevant considerations will include (1) the degree and likelihood of harm to the school caused or augured by the speech, (2) whether it was reasonably foreseeable that the speech would reach and impact the school, and (3) the relation between the content and context of the speech and the school. 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.
CLM, then a high school sophomore at Sherwood High School (Oregon), 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 School District expelled CLM for one year. CLM sued the School District arguing that the School District violated his Free Speech Clause of the First Amendment and of the Equal Protection and Due Process Clauses of the Fourteenth Amendment. The district court granted the School District’s summary judgment.
Could a school district regulate the off-campus speech of CLM without violating his First Amendment rights?
The Court of Appeals for the Ninth Circuit 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 Court 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 consistent with Tinker v. Des Moines Indep. Cnty. Sch. Dist., 393 U.S. 503, 506, 89 S. Ct. 733, 21 L. Ed. 2d 731 (1969). The Court averred that CLM’s expulsion was consistent with the First Amendment, as it was reasonable for district officials to forecast that his presence at the school would cause a substantial disruption.