Tuesdays here at Daily Dawg HQ are dedicated to The Toolbox—our firm’s all day training program dealing with the discipline of students with disabilities. Today we review a decision from the 9^th Circuit that upheld the expulsion of a student for creating a “hit list.”  First, I’m going to tell you how the court ruled in this case. Then we will consider: what if the student had been identified as a student with a disability?

The boy’s mother discovered the hit list while cleaning up the teenager’s room.  The list was in his journal and read: “I am God, and All These People Must Die.” There were 22 students on the list and one former employee. The student (soon to be known as “the Plaintiff”) created this list on May 25, 2014 and his mom discovered it more than three months later.   The mom told her therapist about it. The therapist thought that she was required to inform the police, so she did. The cops told the school.  State law required the school to notify the 23 people on the list that they had been named on a hit list.

So the message went from the mom to the therapist to the cops to the school to the 23 people on the list.  That’s when it hit the fan.  The boy’s picture was promptly available on social media, even though the notices did not identify him.  The media was all over the story. Parents demanded to know more, and some pulled their kids out of the school.

Based on all of this, the school district expelled the boy for one year, offering online courses, tutoring and courses at a community college. However, the suit alleged that the school failed to implement these plans faithfully.

The parents sued on behalf of their son, alleging that he had been deprived of due process and punished for the exercise of off-campus free speech.  The court ruled in favor of the school district on all claims.

The most interesting issue was about free speech. Keep in mind that the student never communicated his threatening message to anyone. He claimed that he used his journal to vent.  The police never charged him with a crime, even though they investigated thoroughly and seized weapons from the home.  So consider: what is the basis for the expulsion? The student did not commit an act of violence. Nor did he communicate a threat to do so. A threat is not a threat until it is communicated to someone.   This student did not do that.  He thought about it and wrote about it in his private journal that he shared with no one.  Had his mom not inspected his journal no one would have known.  Nevertheless, the school charged him with making a “threat of violence” that caused a “significant disruption to the school environment.”

The 9^th Circuit concluded that the school had not violated the First Amendment:

We reaffirm our holding in Wynar [an earlier 9^th Circuit decision] 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.

Given all of the circumstances in this case, the court held that the school was facing an “identifiable and credible threat.” Thus the expulsion was upheld. 

But let’s consider how the analysis would have changed if the student had been in the special education program.  Let’s consider what “tools” would be available. 

• The school could not employ Tool #5—a Special Circumstances Removal—because the student did not possess a weapon at school or a school function. 
• The school could use Tool #6—Disciplinary Removal—but only if the ARD Committee concluded that the behavior of the student was not a manifestation of his disability.  If the parent disagreed with the manifestation determination, the parent could request a due process hearing. 
• The school could use Tool #10—Calling in Law Enforcement, but that won’t necessarily lead to any change in the student’s experience at school. In this case, for example, law enforcement was involved but decided not to charge the student with a crime.
• The school would have to offer a better set of services than this kid apparently got.  Even if Tool #6 was used and the expulsion was properly done, the school would still have a duty to provide a set of services that would enable the student to “progress toward meeting the goals set out” in his IEP.

This is the kind of analysis we do in the Toolbox Training. It’s mainly aimed at campus administrators and special education staff. If interested, let me hear from you!

This case is McNeil v. Sherwood School District 88J, decided by the 9^th Circuit on March 14, 2019.  We found it at 2019 WL 1187223.

DAWG BONE: IT’S MORE COMPLICATED IF THEY ARE IN SPECIAL ED.  YOU KNEW THAT ALREADY, DIDN’T YOU?

Tomorrow: a bill worth watching.