Lovell v. Poway Unified School District

Concurrence in part — Noonan

NOONAN, Circuit Judge, concurring and dissenting:

I concur in the judgment of the court that Sarah Lovell has not proven her federal claim, but I do not believe the court is correct in analyzing Lovell’s federal and state claims by a single “threat” analysis.

Lovell’s federal claim is based on the First Amendment, which affords students in schools a right of expression limited by then-educational environment and accords appropriate deference to school officials in carrying out their educational mission. See Bethel School District No. 403 v. Fraser, 478 U.S. 675, 682-83, 106 S.Ct. 3159, 3163-64, 92 L.Ed.2d 549 (1986). Sarah Lovell sassed her guidance counsellor. It was within the school district’s discretion to find Lovell’s expression inappropriate for school discourse and to discipline her for it after a fair hearing. Id.

Lovell’s state claim, however, is based on California Education Code § 48950, which provides a high school student “the same right to exercise his or her right to free speech on campus as he or she enjoys when off campus.” Cal. Educ.Code § 48950 note (b). For this claim we must consider Lovell’s conduct as though it was “engaged in outside of the campus.” Id. § 48950(a). The scope of this recently enacted statute will no doubt be narrowed in the courts of California; but this task is better left in the first instance to those courts. See 28 U.S.C. § 1367(c)(1). The district court could now decide not to exercise its supplemental jurisdiction.

If the district court does retain jurisdiction, what is crucial for determining whether Lovell’s expression was a true threat is what Lovell uttered. The magistrate judge’s findings on this issue are incomplete. Remand of the state claim is appropriate. True, the magistrate judge stated that neither party preponderated in proving what expression Lovell used; he did so on the assumption that he need not determine those words in order to find ultimately that Lovell had proven her case. Lovell v. Poway Unified School District, 847 F.Supp. 780, 783 (S.D.Cal.1994) (“Neither party preponderated in their evidence, nor are the exact words necessary to the Court’s findings.”). As that assumption was mistaken, the trial court should reconsider the state claim, with the clear understanding of what facts are dispositive. See, e.g., Starsky v. Williams, 512 F.2d 109, 117-18 (9th Cir.1975). Remand would also enable the district court, if it chooses to exercise its supplemental jurisdiction, to reconsider its findings solely under the state statute and the appropriate test analyzing the speech as if it occurred outside of school.