Mark Wynar, As Guardian of L. W., and v. Plaintiffs

June 22, 2011

MARK WYNAR, AS GUARDIAN OF L. W., AND L. W., A MINOR,
v.
PLAINTIFFS, DOUGLAS COUNTY SCHOOL DISTRICT, (UNDER SEAL) ET AL., DEFENDANTS.

ORDER

Before the court is minor plaintiff L. W.'s ("LW") motion for summary judgment on the issue of liability. Doc. #25.*fn1 Defendant Douglas County School District ("DCSD") filed an opposition (Doc. #32) to which LW replied (Doc. #33).

Facts and Background

In 2008, plaintiff LW was a student enrolled at the Douglas County High School ("DHS"). On February 5, 2008, LW was instant messaging his friend J, another DHS student. During the conversation, LW threatened several female DHS students and discussed his purported "hit list." LW's messages included the following:

C "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 get more people before they run away..."

C "and ill probly only kill the people i hate?who hate me then a few random to get the record."

C "that stupid kid from vtech. he didnt do shit and got a record. i bet i could get 50+ people and not one bullet would be wasted."

C "i wish then i could kill more people but i have to make due with what I got. 1 sks & 150 rds, 1 semi-auto shot gun w/ sawed off barrle, 1 pistle." Doc. #26, Exhibit 3.

Concerned about the content of the messages, J forwarded them to R, another DHS student, who suggested that the messages be brought to the attention of DHS administration. On February 7, 2008, J and R turned the messages in to the school. LW was subsequently arrested and taken out of DHS pending an investigation.

On March 6, 2008, LW was suspended from DHS for ten (10) school days. Shortly thereafter, on March 31, 2008, after an administrative hearing, LW was expelled from the school district for ninety (90) days.

Subsequently, on October 27, 2009, LW filed a complaint against defendants alleging five causes of action: (1) procedural Due Process; (2) substantive Due Process; (3) First Amendment violation; (4) negligence; and (5) negligent infliction of emotional distress. Doc. #1. Thereafter, LW filed the present motion for summary judgment on the issue of liability as to his constitutional claims. Doc. #25.

Legal Standard

Summary judgment is appropriate only when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). In assessing a motion for summary judgment, the evidence, together with all inferences that can reasonably be drawn therefrom, must be read in the light most favorable to the party opposing the motion. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); County of Tuolumne v. Sonora Cmty. Hosp., 236 F.3d 1148, 1154 (9th Cir. 2001).

The moving party bears the burden of informing the court of the basis for its motion, along with evidence showing the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). On those issues for which it bears the burden of proof, the moving party must make a showing that is "sufficient for the court to hold that no reasonable trier of fact could find other than for the moving party." Calderone v. United States, 799 F.2d 254, 259 (6th Cir. 1986); see also Idema v. Dreamworks, Inc., 162 F. Supp. 2d 1129, 1141 (C.D. Cal. 2001).

To successfully rebut a motion for summary judgment, the non-moving party must point to facts supported by the record which demonstrate a genuine issue of material fact. Reese v. Jefferson Sch. Dist. No. 14J, 208 F.3d 736 (9th Cir. 2000). A "material fact" is a fact "that might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Where reasonable minds could differ on the material facts at issue, summary judgment is not appropriate. See v. Durang, 711 F.2d 141, 143 (9th Cir. 1983). A dispute regarding a material fact is considered genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Liberty Lobby, 477 U.S. at 248. The mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient to establish a genuine dispute; must be evidence on which the jury could reasonably find for the plaintiff. See id. at 252.

Discussion

A. Procedural Due Process

Nevada law provides that a student shall not be suspended from school or expelled from the school district until the student has been given notice and an opportunity to be heard.

NRS § 392.467(2).

Here, LW argues that defendants violated his procedural Due Process rights when they suspended him from DHS for ten days without a formal administrative hearing. In opposition, defendants contend that LW received appropriate notice and an opportunity to be heard when individual defendants Marty Swisher ("Swisher"), DHS principal, and David Pyle ("Pyle"), DHS vice-principal, visited LW at the detention center.

The court has reviewed the documents and pleading on file in this matter and find that there disputed issues of material fact precluding summary judgment as to whether LW received adequate notice and an opportunity to be heard prior to his temporary suspension. Viewing the evidence in the light most favorable to defendants as the non-moving party, the court finds that

(1) LW was informed by defendants Swisher and Pyle of the purpose for their visit; (2) LW declined to have his parents present during the meeting; (3) LW was informed of and understood the school district's policy regarding violence and threats; and (4) LW was informed that he had violated those policies and that additional discipline could be meted out, including suspension. See Doc. #26, Exhibit 1, LW Depo., p.13:4-p.23:10. Therefore, based on the record before the court, the court finds that LW is not entitled to summary judgment on his procedural due process claim.

B. Substantive Due Process

LW argues that his substantive due process rights were violated when he was expelled from the school district under the habitual discipline statute, NRS § 392.4655. Specifically, LW argues that the school district misinterpreted the statute because it is undisputed that he did not have any prior disciplinary problems and thus, the school district could not have found that he was a habitual disciplinary problem under the statute.

NRS § 392.4655(1) provides that:

Except as otherwise provided in this section, a principal of a school shall deem a pupil enrolled in the school a habitual disciplinary problem if the school has written evidence which documents that in 1 school year:

(a) the pupil has threatened or extorted, or attempted to threaten or extort, another pupil or a teacher or other personnel employed by the school;

(b) the pupil has been suspended for initiating at least two fights on school property, at an activity sponsored by a public school, on a school bus or, if the fight occurs within 1 hour of the beginning or end of a school day, on the pupil's way to or from school; or

(c) the pupil had a record of five suspensions from school for any reason.

The court has reviewed the documents and pleadings on file in this matter and finds that defendants did not misinterpret the habitual discipline statute. Under the plain language of the statute, a student shall be deemed a "habitual disciplinary problem" if the school has written evidence that the student had threatened another student, teacher, or school employee, even if that student had no prior disciplinary problems. NRS § 392.4655(1)(a). The statute does not require multiple threats before a student is deemed a habitual disciplinary problem. Id. Further, the fact that other kinds of conduct require multiple acts before being deemed a habitual disciplinary problem (two fights or five suspensions) establishes the legislature's intent to hold a single act of threatening conduct an expellable offense. Therefore, the court finds that defendants did not violate LW's substantive due process rights by expelling him for a single instance of threatening conduct.

C. First Amendment

LW argues that defendants violated his First Amendment rights when they disciplined him for his off-campus speech.

"The Supreme Court has held that the First Amendment guarantees only limited protection for student speech in the school context." Lovell v. Poway Unified Sch. Dist., 90 F.3d 367, 371 (9th Cir. 1996) (citing Tinker v. Des Moines Indep. Sch. Dist., 393 U.S. 503, 509 (1969)). A school may discipline or suppress speech if there are sufficient facts for school authorities to reasonably forecast the substantial disruption of, or material interference with, school activities. Lavine v. Blain Sch. Dist., 257 F.3d 981, 989 (9th Cir. 2001) (citing Tinker, 393 U.S. at 514); see also, J.C. v. Beverly Hills Unified Sch. Dist., 711 F. Supp. 2d 1094, 1103 (C.D. Cal. 2010) (holding that speech which causes or is foreseeably likely to cause a substantial disruption of school activities can be regulated and disciplined by the school). A school's regulatory and disciplinary power may be exercised regardless of whether the speech occurred on or off campus. Poway Unified Sch. Dist., 90 F.3d at 371; Beverly Hills Unified Sch. Dist., 711 F. Supp. 2d at 1103 ("[T]he majority of courts will apply Tinker where speech originating off campus is brought to school or to the attention of school authorities, whether by the author himself or some other means.").

In determining whether school officials had sufficient facts to reasonably forecast substantial disruption, "alleged threats should be considered in light of their entire factual context, including the surrounding of the events and the reaction of the listeners." Poway Unified Sch. Dist., 90 F.3d at 371. Further, disruption does not have to actually occur before a school regulates or disciplines speech so long as there exists facts "which might reasonably lead school officials to forecast substantial disruption." Blain Sch. Dist., 257 F.3d at 989. Where a student's speech is violent or threatening to members of the school, a school can reasonably portend substantial disruption. Id. at 1112; see also Poway Unified Sch. Dist., 90 F.3d at 372 ("In light of the violence prevalent in schools today, school officials are justified in taking very seriously student threats against faculty or other students.").

Viewing the evidence in the light most favorable to defendants as the non-moving party, the court finds that there is sufficient evidence to raise a disputed issue of material fact as to whether DHS administration had a reasonable basis to forecast a substantial disruption to school activities. In his messages, LW invoked the image of the Virginia Tech massacre. Doc. #26, Exhibit 3. He stated that he had access to guns and ammunition. Id. He wrote about getting "the record" for school shootings and made specific references to girls and the school by name. Id. Therefore, based on the record before the court, the court finds that LW is not entitled to summary judgment on his First Amendment claim. Accordingly, the court shall deny his motion as to this issue.

IT IS THEREFORE ORDERED that plaintiffs' motion for summary judgment (Doc. #25) is DENIED.

IT IS SO ORDERED.