Lavine v. Blaine School Dist.

• Citation: 257 F.3d 981
• Decision Date: 20 July 2001
• Docket Number: DEFENDANTS-APPELLANTS,No. 00-35303,PLAINTIFFS-APPELLEES,00-35303
• Parties: (9th Cir. 2001) BRUCE LAVINE, AS NEXT FRIEND OF JAMES LAVINE; JAMES LAVINE,, v. BLAINE SCHOOL DISTRICT, A MUNICIPAL CORPORATION; TIM HANEY; OPINION DAN NEWELL; KAREN MULHOLLAND,
• Court: U.S. Court of Appeals — Ninth Circuit

Page 981

257 F.3d 981 (9th Cir. 2001)

BRUCE LAVINE, AS NEXT FRIEND OF JAMES LAVINE; JAMES LAVINE, PLAINTIFFS-APPELLEES, v. BLAINE SCHOOL DISTRICT, A MUNICIPAL CORPORATION; TIM HANEY; OPINION DAN NEWELL; KAREN MULHOLLAND, DEFENDANTS-APPELLANTS.

No. 00-35303

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted December 4, 2000

July 20, 2001

Tyna Ek, Merrick, Hofstedt & Lindsey, Seattle, Washington, for the defendants-appellants.

Philip J. Buri, Breean L. Beggs, Brett & Daugert, Bellingham, Washington, for the plaintiffs-appellees.

Appeal from the United States District Court Western District of Washington Barbara J. Rothstein, Chief Judge, Presiding D.C. No. CV-99-01074-BJR

Before: Betty B. Fletcher and Raymond C. Fisher, Circuit Judges, and William W Schwarzer,^* District Judge.

Fisher, Circuit Judge.

This case has its genesis in a high school student's poem, which led to his temporary, emergency expulsion from school. It arises against a backdrop of tragic school shootings, occurring both before and after the events at issue here, and requires us to evaluate through a constitutional prism the actions school officials took to address what they perceived was the student's implied threat of violent harm to himself and others. Given the knowledge the shootings at Columbine, Thurston and Santee high schools, among others, have imparted about the potential for school violence (as rare as these incidents may be when taken in context), we must take care when evaluating a student's First Amendment right of free expression against school officials' need to provide a safe school environment not to overreact in favor of either. Schools must be safe, but they are educational institutions after all, and speech -including creative writing and poetry -is an essential part of the educational fabric. Although this is a close case in retrospect, we conclude that when the school officials expelled James LaVine they acted with sufficient justification and within constitutional limits, not to punish James for the content of his poem, but to avert perceived potential harm.

FACTUAL AND PROCEDURAL BACKGROUND¹

In the fall of 1998, James LaVine was in eleventh grade and a student in Vivian Bleecker's sixth period English class at Blaine High School. One evening in June or July 1998, James wrote the first draft of a poem he entitled"Last Words." The final version reads:

As each day passed, I watched, love sprout, from the most, unlikely places, wich reminds, me that, beauty is in the eye's, of the beholder.

As I remember, I start to cry, for I, had leared, this to late, and now, I must spend, each day, alone, alone for supper, alone at night, alone at death.

Death I feel, crawlling down, my neck at, every turn, and so, now I know, what I must do.

I pulled my gun, from its case, and began to load it.

I remember, thinking at least I won't, go alone, as I, jumpped in, the car, all I could think about, was I would not, go alone.

As I walked, through the, now empty halls, I could feel, my hart pounding.

As I approched, the classroom door, I drew my gun and, threw open the door, Bang, Bang, Bang-Bang.

When it all was over, 28 were, dead, and all I remember, was not felling, any remorce, for I felt, I was, clensing my soul,

I quickly, turned and ran, as the bell rang, all I could here, were screams, screams of friends, screams of co workers, and just plain, screams of shear horor, as the students, found their, slayen classmates 2 years have passed, and now I lay, 29 roses, down upon, these stairs, as now, I feel, I may, strike again.

No tears, shall be shead, in sarrow, for I am, alone, and now, I hope, I can feel, remorce, for what I did, without a shed, of tears, for no tear, shall fall, from your face, but from mine, as I try, to rest in peace, Bang!

Around that time, several school shootings had occurred --including the tragedy at Thurston High School in nearby Springfield, Oregon -and were frequent topics in the news.² The morning after James wrote the poem, he showed it to his mother. She warned James not to turn the poem in to his teachers at school, because "with everything that was on the news . . . whoever read it might overreact."

James forgot about the poem until he rediscovered it in his living room on September 30, 1998. He made some editorial changes and brought it to school on Friday, October 2. He showed the poem to several of his friends, some of whom liked it and some of whom did not. At that point, he decided to ask his English teacher, Ms. Bleecker, her opinion of "Last Words."

James had not been in school for the three days prior to October 2. At the end of his sixth period English class, he turned in several assignments and the poem. James asked Bleecker if she would read the poem and tell him what she thought. Bleecker thanked James for the poem and said she looked forward to reading it. The poem was not an assignment or an "extra credit" project, but James had turned in other poems to his previous English teachers at Blaine High School and appreciated their feedback.

That evening, Bleecker read "Last Words" and became concerned. Her impression of James up to that time was that he was a very quiet student. She thought the poem might be "James' way of letting somebody know that . . . maybe something's hurting him, maybe he's upset about something, maybe he's afraid." The next morning (Saturday), Bleecker contacted Karen Mulholland, James' school counselor, to discuss the contents of the poem. Mulholland was similarly concerned and set up a meeting that evening with Bleecker and Tim Haney, the school's vice principal.

During his time at Blaine High School, James had frequently confided in Mulholland, who is also a school psychologist. In 1996, James told her that he thought about suicide. Mulholland made James promise her that he would talk to her before he tried to kill himself. Thereafter, Mulholland kept an eye out for James and tried to make time to help him when he needed it. In fall 1998, James told her about several incidents that had occurred in his home. In particular, on September 12, James and his father had had an argument about James' car. James' father, Bruce, had thrown a rock in the direction of James and his car. James called the police, who filed charges against Bruce. As a result of the charges, a court issued a no-contact order that led to James moving out of his home temporarily to live with his sister. James had also missed school on September 17, 1998 to participate in the resulting legal proceedings. In addition, in the preceding weeks, James had broken up with his girlfriend. The school authorities had become aware of this because the ex-girlfriend's mother had called the school to report that James was stalking her daughter.

Mulholland disclosed these events to Haney and Bleecker. Haney also reviewed James' disciplinary file, which recorded several additional incidents, including a fight in February 1998 and an episode of insubordination with a teacher in March 1997. Moreover, Haney said that a few weeks before October 2, 1998, he had personally disciplined James for wearing to school a T-shirt emblazoned with the words "eat shit and die." Haney's impression of James at that time was that he was a "good kid, but . . . somewhat of a`loner.' "

Given the content of the poem, and his knowledge of James' suicidal thoughts, family situation and past incidents, Haney decided at the Saturday meeting to call James' home to find out if James would be attending the school's homecoming dance that evening. Haney learned that James would not be attending the dance. Haney, nonetheless, decided to contact the Blaine Police Department for guidance about the situation. At the police department's suggestion, the school officials called Washington State's Child Protective Services, which then suggested they call the Community Mental Health Crisis Line. The Crisis Line in turn put them in touch with Dr. Charles Dewitt, the psychiatrist on duty for that evening. Dr. Dewitt suggested James be picked up by the police for evaluation.

The Whatcom Sheriff's Department, the law enforcement agency having jurisdiction over James' neighborhood, dispatched deputy sheriffs to the LaVines' family farm to conduct a welfare check of James. A deputy sheriff interviewed James to determine whether a medical evaluation was needed. James told the deputy that "he often writes poetry and has his teachers review them. He has never written this type of poem in the past and had no explanation why he wrote this one." James further told the officer he had no access to weapons and had no intention of carrying out any of the acts in the poem. James' mother assured the deputy that James had no access to weapons and was not a danger to himself or others. The deputy found no probable cause to commit James involuntarily, and James was unwilling to undergo a voluntary psychological examination.

The deputy telephoned Dr. Dewitt and reported his observations. Based upon Dr. Dewitt's conversation with the deputy and with the school officials, Dr. Dewitt concluded, "[i]n my professional opinion on a more probable than not basis based upon the information provided to me by the District and the law enforcement [officers] who had personally observed him, there were insufficient grounds for anyone to make a determination that James LaVine was in imminent danger of causing serious harm to himself and others." Dr. Dewitt accordingly decided not to commit James.

On Sunday, Haney met with Principal Dan Newell regarding James and informed him of James' background. By then, Newell had been informed that the sheriff and mental health professionals had decided not to commit James. That Sunday, based upon the information he had, Newell decided to"emergency expel" James under Washington Administrative Code §§ 180-40-295.³ Haney left a message with James' parents that day telling them to attend a meeting the...