Mark Wynar, an individual and as guardian of Landon Wynar; Landon Wynar, a Minor, Plaintiffs-Appellants,
Douglas County School District, a political subdivision of the State of Nevada; Carol Lark; Nancy Bryant; Marty Swisher; David Pyle; Cynthia Trigg; Keith Roman; Sharla Hales, Defendants-Appellees .
Argued and Submitted May 16, 2013 —San Francisco, California
Appeal from the United States District Court for the District of Nevada Larry R. Hicks, District Judge, Presiding D.C. No. 3:09-cv-00626-LRH-VPC
Jeffrey S. Blanck (argued), Reno, Nevada, for Plaintiffs-Appellants.
Ann M. Alexander (argued), Erickson, Thorpe & Swainston, Ltd., Reno, Nevada, for Defendants-Appellees.
Before: M. Margaret McKeown and Paul J. Watford, Circuit Judges, and Thomas S. Zilly, Senior District Judge. [*]
The panel affirmed the district court's summary judgment in an action brought under 42 U.S.C. § 1983 by a high school student and his father after the student was temporarily expelled for sending violent and threatening instant messages from his home to his friends about planning a school shooting.
The panel held that the messages, which threatened the safety of the school and its students, both interfered with the rights of other students and made it reasonable for school officials to forecast a substantial disruption of school activities. The panel held that when faced with an identifiable threat of school violence, schools may take disciplinary action in response to off-campus speech that meets the requirements of Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506 (1969). Under the circumstances, the panel concluded that the school district did not violate the student's rights to freedom of expression or due process.
McKEOWN, Circuit Judge
With the advent of the Internet and in the wake of school shootings at Columbine, Santee, Newtown and many others, school administrators face the daunting task of evaluating potential threats of violence and keeping their students safe without impinging on their constitutional rights. It is a feat like tightrope balancing, where an error in judgment can lead to a tragic result. Courts have long dealt with the tension between students' First Amendment rights and "the special characteristics of the school environment." Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 266 (1988). But the challenge for administrators is made all the more difficult because, outside of the official school environment, students are instant messaging, texting, emailing, Twittering, Tumblring, and otherwise communicating electronically, sometimes about subjects that threaten the safety of the school environment. At the same time, school officials must take care not to overreact and to take into account the creative juices and often startling writings of the students.
In this case, Landon Wynar,  a student at Douglas High School, engaged in a string of increasingly violent and threatening instant messages sent from home to his friends bragging about his weapons, threatening to shoot specific classmates, intimating that he would "take out" other people at a school shooting on a specific date, and invoking the image of the Virginia Tech massacre. His friends were alarmed and notified school authorities, who temporarily expelled Landon based in large part on these instant messages. We affirm the district court's grant of summary judgment to the school district. The messages presented a real risk of significant disruption to school activities and interfered with the rights of other students. Under the circumstances, the school district did not violate Landon's rights to freedom of expression or due process.
When the events at issue occurred, Landon was a sophomore at Douglas High School. He collected weapons and ammunition and reported owning various rifles, including a Russian semi-automatic rifle and a .22 caliber rifle.
Landon communicated regularly with friends from school by exchanging instant messages through the website MySpace. MySpace is a social networking website that allows its members to set up online "profiles" and communicate via email, instant messages, and blogs. Layshock v. Hermitage Sch. Dist., 650 F.3d 205, 208 & n.2 (3d Cir. 2011) (en banc). Instant messages enable "users to engage in real-time dialogue 'by typing messages to one another that appear almost immediately on the others' computer screens.'" United States v. Meek, 366 F.3d 705, 709 n.1 (9th Cir. 2004) (quoting Reno v. ACLU, 521 U.S. 844, 851–52 (1997)).
Among other things, Landon wrote frequently about weapons, going shooting, and World War II (often mentioning Hitler, whom he once referred to as "our hero"). His messages also expressed social insecurity, stating, for example, "[my parents] also don't like me just like everyone at school, " and "its ignore landon day everyday." Some months into his sophomore year, Landon's MySpace messages became increasingly violent and disturbing. They included the following statements, all centered around a school shooting to take place on April 20 (the date of Hitler's birth and the Columbine massacre and within days of the anniversary of the Virginia Tech massacre):
• "its pretty simple / I have a sweet gun / my neighbor is giving me 500 rounds / dhs is gay / I've watched these kinds of movies so I know how NOT to go wrong / I just cant decide who will be on my hit list / and thats totally deminted and it scares even my self"
• "I havent decided which 4/20 I will be doing it on / by next year, I might have a better gun to use such as an MI cabine w/ a 30 rd clip. . . .or 5 clips. . . .10?"
• "and ill probably only kill the people I hate?who hate me / then a few random to get the record"
• [in response to a statement that he would "kill everyone"] "no, just the blacks / and mexicans / halfbreeds / athiests / french / gays / liberals / david"
• [referring to a classmate] "no im shooting her boobs off / then paul (hell take a 50rd clip) / then I reload and take out everybody else on the list / hmm paul should be last that way I can ...