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Wynar v. Douglas Cty. Sch. Dist. - 728 F.3d 1062 (9th Cir. 2013)


The Supreme Court of the United States' school speech jurisprudence echoes a common theme: although public school students do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gate, the constitutional rights of students in public school are not automatically coextensive with the rights of adults in other settings. The Supreme Court has decided four lead student speech cases. Each governs a different area of student speech: (1) vulgar, lewd, obscene, and plainly offensive speech is governed by Fraser; (2) school-sponsored speech is governed by Hazelwood, and (3) speech that falls into neither of these categories is governed by Tinker. In Morse, the Supreme Court dealt with a fourth, and somewhat unique, category—speech promoting illegal drug use. All four cases involved speech that took place at school or at a school-sanctioned event. Beyond those contexts, the Supreme Court has noted only that there is some uncertainty at the outer boundaries as to when courts should apply school speech precedents.


L.W., a minor student at a high school operated by defendant Douglas County School District ("District"), engaged in a string of increasingly violent and threatening instant messages sent from his home to his friends. In the messages, L.W. bragged about his weapons, threatened to shoot specific classmates, intimated that he would "take out" other people at a school shooting on a specific date, and invoked the image of the Virginia Tech massacre. His friends were alarmed and notified school authorities, who temporarily expelled L.W. based in large part on the instant messages. L.W., by Mark Wynar, individually and as L.E.'s guardian, filed a lawsuit in federal district court against the District and others for violations of L.W.'s constitutional rights under 42 U.S.C.S. § 1983, as well as for negligence and negligent infliction of emotional distress. On the parties' motions, the district court denied L.W. summary judgment and granted the District summary judgment. L.W. appealed.


Did the District violate L.W.'s First Amendment right to freedom of expression when he was expelled for sending messages about a planned school shooting?




The appellate court affirmed the district court's judgment. Th court ruled that the District did not violate L.W.'s First Amendment right to freedom of expression by suspending and temporarily expelling him based on the instant messages because the messages presented a real risk of significant disruption to school activities and interfered with the rights of other students.

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