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United States Court of Appeals,Ninth Circuit.

Sarah LOVELL, a minor, by and through her guardian ad litem, Gregory C. LOVELL;  Gregory C. Lovell, Plaintiffs-Appellees, v. POWAY UNIFIED SCHOOL DISTRICT;  Scott Fisher, in his official capacity;  Mary Heath, in her official capacity, Defendants-Appellants.

Sarah LOVELL, a minor, by and through her guardian ad litem, Gregory C. Lovell;  Gregory C. Lovell, Plaintiffs-Appellants, v. POWAY UNIFIED SCHOOL DISTRICT;  Scott Fisher, in his official capacity;  Mary Heath, in her official capacity, Defendants-Appellees.

No. 94-55715, 94-55717.

Decided: March 29, 1996

Before:  HALL and JOHN T. NOONAN, Jr., Circuit Judges, PHILIP M. PRO, *District Judge. Christopher J. Welsh, Stutz, Gallagher, Artiano, Shinoff & Holtz, San Diego, California, for the defendants-appellants-cross-appellees. Elizabeth Schulman, Schulman & Schulman, San Diego, California, for the plaintiffs-appellees-cross-appellants.

Sarah Lovell, a student at Mt. Carmel High School in the Poway Unified School District (“PUSD”), allegedly threatened Linda Suokko, a school guidance counselor, that she would shoot her if Suokko did not make changes to Lovell's class schedule.   Suokko filed a disciplinary report with school administrators, and the school suspended Lovell for three days.

Lovell denies that she threatened Suokko, and claims that she merely uttered a “figure of speech” under her breath while in Suokko's office.   Lovell and her parents discussed the incident with school officials and requested that the disciplinary report be removed from Lovell's file.   When the school and the PUSD refused to take any action, Lovell instituted this suit against the PUSD and several school officials.   She claimed that, by punishing her as a result of her speech, the school violated her rights under the First Amendment of the United States Constitution and the California Education Code.   Furthermore, she claimed that she was denied procedural and substantive due process.

The district court rejected her due process claim, but found that the defendants did violate her First Amendment rights.   Because she prevailed on one of her claims, the district court awarded her partial attorney's fees under 42 U.S.C. § 1988.

The defendants timely appealed.   Lovell cross-appealed on the due process claim and the amount of attorney's fees awarded.   Her appeal of the due process claim was rejected, however, because it was not timely filed.   The district court had jurisdiction under 28 U.S.C. § 1331, and this court has jurisdiction under 28 U.S.C. § 1291.   We affirm.


In February 1993 Sarah Lovell was a 15-year-old 10th grade student.   On February 2, she visited Linda Suokko, a school counselor, to request changes to her class schedule.   Lovell was shuttled back and forth between the counselor's office and the administrative offices for several hours while she attempted to effect the changes.   When Lovell finally arrived back at Suokko's office around 1:30 in the afternoon she was frustrated and irritable.   This visit to Suokko's office was to have been Lovell's final stop in this brouhaha;  Suokko was to have simply entered the approved changes into the school's computer system.

As she entered the changes, however, Suokko noticed that Lovell had been approved for courses that were already overloaded.   She told Lovell that she may not be able to make the changes.   Lovell, at the end of her patience, made the remark that is the basis of this suit:  Lovell claims she said “I'm so angry, I could just shoot someone,” whereas Suokko claims she said “If you don't give me this schedule change, I'm going to shoot you!” 1  Lovell testified that she immediately apologized for her inappropriate behavior.   Moreover, she did not have a gun and did not appear to Suokko as though she did.   Suokko completed the requested schedule change, and Lovell left the office.

Several hours later, at the end of the day, Suokko reported Lovell's conduct to Assistant Principal Scott Wright.   Suokko told Wright that she felt threatened by the statement and was concerned about some future reprisal by Lovell.   Suokko filled out a Student Office Referral form and reported the threat as a disciplinary incident to Assistant Principal Mary Heath.

On February 4, two days after the incident, Heath called a meeting with Suokko and Lovell to discuss the matter.   At that meeting Lovell admitted making one of the statements given above, although there is some dispute as to what she admitted.   But she also claimed that she did not mean anything by it.   Suokko said that Lovell was “angry, serious and emotionally out of control when the statement was made,” and that she felt threatened.   After Heath met with Lovell, Suokko, and Lovell's parents, Heath decided to suspend Lovell for three days.

At first, the Lovells planned to accept the suspension.   But when they received a copy of the Student Referral Form submitted by Suokko, they were extremely upset by her portrayal of the events.   Specifically they felt that Suokko's version of events differed a great deal from their daughter's version, and that Suokko's report was too strongly worded for the events as they understood them.   They wrote a letter to the school principal, Scott Fisher, demanding that the Referral be removed from Sarah's file.   When the school refused to take any action, the Lovells filed this suit against PUSD, Mr. Fisher, and Ms. Heath (hereinafter referred to collectively as “PUSD”).

Lovell asserted a variety of claims that her rights were violated when PUSD suspended her from school.   First, she claimed that the suspension violated her First Amendment free speech rights.   Second, she asserted a California state law claim that she was improperly suspended in violation of her free speech rights under California Education Code Section 48950.   Third, she claimed that PUSD denied her adequate procedural and substantive due process.   Finally, she claimed that PUSD violated 42 U.S.C. § 1983 by imposing discipline on her in contravention of the rights set forth above.

The parties stipulated to a bench trial before a magistrate judge.   The court found that PUSD had provided appropriate procedural and substantive due process.  Lovell v. Poway Unified Sch. Dist., 847 F.Supp. 780, 785 (S.D.Cal.1994).   However, the court also held that PUSD had violated Lovell's free speech rights because her statement did not constitute “the requisite ‘threat’ required by law, under either contention as to the exact words spoken, to allow infringement on her right of free speech.”  Id.  The court awarded Lovell 50% of the requested attorney's fees under 42 U.S.C. § 1988, for work done in furtherance of the successful First Amendment claim.


 This Court reviews a district court's conclusions of law de novo.  United States v. Yacoubian, 24 F.3d 1, 3 (9th Cir.1994).   A district court's findings of fact are reviewed under the clearly erroneous standard.   Exxon Co. v. Sofec, Inc., 54 F.3d 570, 576 (9th Cir.1995).

 Different standards are sometimes used when reviewing district court cases in which the court adjudged the constitutionality of a restriction on speech.   When the district court upholds a restriction on speech as constitutional, this Court conducts a de novo review of the facts.  Daily Herald Co. v. Munro, 838 F.2d 380, 383 (9th Cir.1988).   However, when the district court strikes down a restriction on speech, as in the current case, this Court reviews the findings of fact for clear error.  Id.  “This rule ‘reflects a special solicitude for claims that the protections afforded by the First Amendment have been unduly abridged.’ ” Id. (quoting Planned Parenthood Assoc. v. Chicago Transit Authority, 767 F.2d 1225, 1229 (7th Cir.1985)).

 Lovell asserted both state and federal law claims regarding her free speech rights.   The district court found that PUSD violated her rights under both the California Education Code and the First Amendment of the United States Constitution.   California's Education Code more broadly protects the free speech rights of students than is required under the First Amendment.   Consequently, Lovell's claim does not rely on either theory alone, but instead relies on a combination of both theories.   Although we do not reach the issue of whether PUSD violated Lovell's rights based solely on the First Amendment as applied to student speech, we hold that the PUSD did violate Lovell's rights as guaranteed by the California Education Code in combination with the First Amendment.


In Justice Fortas' oft-quoted words, students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”  Tinker v. Des Moines Indep. Sch. Dist., 393 U.S. 503, 506, 89 S.Ct. 733, 736, 21 L.Ed.2d 731 (1969).   On the other hand, the Court has often emphasized school officials' duty to enforce discipline, and has at times shown great deference to school officials' decisions.  Id. at 504, 89 S.Ct. at 735.   The problems occur at the boundaries “where students in the exercise of First Amendment rights collide with the rules of school authorities.”  Id. at 507, 89 S.Ct. at 737.

In Tinker, the Court upheld the students' right to wear black armbands in protest against the war in Viet Nam.   The Court held that unless the prohibited conduct would “ ‘materially and substantially interfere with the requirements of appropriate discipline in the operation of the school,’ ” the prohibition would violate the First Amendment.  Id. at 509, 89 S.Ct. at 737 (quoting Burnside v. Byars, 363 F.2d 744, 749 (5th Cir.1966)).

Two subsequent cases further defined the Court's view of the First Amendment in the public school context.   In Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 106 S.Ct. 3159, 92 L.Ed.2d 549 (1986), the Court held that a school acted within its authority when it imposed sanctions in response to a student's offensively lewd and indecent speech given at a school assembly.  Id. at 685, 106 S.Ct. at 3165.   In Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 108 S.Ct. 562, 98 L.Ed.2d 592 (1988), the Court upheld a school decision to censor the content of a school-sponsored newspaper.   The Court held that schools may control “the style and content of student speech in school-sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns.”  Id. at 273, 108 S.Ct. at 571 (emphasis added).

 Through these three cases the Supreme Court has defined the First Amendment protections available to public school students.   See Chandler v. McMinnville Sch. Dist., 978 F.2d 524 (9th Cir.1992).   While students still enjoy First Amendment rights, these rights are curtailed somewhat by the Court's deference to school administrators' judgments as to what speech is appropriate in the school context.


 As the Supreme Court narrowed the First Amendment rights of students in the school context, the California legislature enacted Education Code Sections 48907 and 48950,2 which expand the First Amendment rights of California students.  Section 48907 guarantees students the rights of freedom of speech and of the press “whether or not such publications or other means of expression are supported financially by the school or by use of school facilities.”   California courts have interpreted this section to prevent schools from suppressing school-sponsored speech-by censoring student newspapers, for example-which the Supreme Court allowed in Hazelwood.   See, e.g., Leeb v. DeLong, 198 Cal.App.3d 47, 243 Cal.Rptr. 494 (1988).   Under Section 48907 “[t]he broad power to censor expression in school sponsored publications for pedagogical purposes recognized in [Hazelwood ] is not available to this state's educators.”  Id., 243 Cal.Rptr. at 498.

Section 48950, enacted in 1992, prevents schools from taking disciplinary action against a student based solely on speech or other communication that would be protected outside the school context:

School districts operating one or more high schools and private secondary schools shall not make or enforce any rule subjecting any high school pupil to disciplinary sanctions solely on the basis of conduct that is speech or other communication, that, when engaged in outside of the campus, is protected from governmental restriction by the First Amendment to the United States Constitution or Section 2 of Article 1 of the California Constitution.

Cal. Educ.Code § 48950(a) (emphasis added).   The legislature expressed the clear intent “that a student shall have 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 historical and statutory notes.   Thus, California schools may not enforce content-based restrictions on student speech that is protected by the First Amendment when off campus.

Students' free speech rights are not without bounds, however;  the statute reserves to schools the right to enforce reasonable time, place and manner regulations.  Cal. Educ.Code § 48950(f).   The legislature cited Tinker at length in the statutory notes, suggesting that it intended Tinker 's test, which allows schools to prohibit speech that “materially disrupts classwork or involves substantial disorder, or invasion of the rights of others,” to determine whether a school's suppression of student speech is a reasonable time, place or manner regulation.3  See Cal. Educ.Code § 48950 historical and statutory notes.

PUSD urges this Court not to rely on the Tinker test, but instead to defer to the school officials' judgment, on the basis that the Supreme Court has often displayed such deference with respect to First Amendment challenges to public schools' disciplinary actions.   See, e.g., Fraser, 478 U.S. at 683, 106 S.Ct. at 3164 (“The determination of what manner of speech in the classroom or in school assembly is inappropriate properly rests with the school board.”);  Wood v. Strickland, 420 U.S. 308, 326, 95 S.Ct. 992, 1003, 43 L.Ed.2d 214 (1975) (“It is not the role of the federal courts to set aside decisions of school administrators which the court may view as lacking a basis in wisdom or compassion” unless those errors “rise to the level of violations of specific constitutional guarantees.”).   As PUSD points out, the Supreme Court has indicated that the First Amendment rights of public school students “are not automatically coextensive with the rights of adults in other settings.”  Fraser, 478 U.S. at 682, 106 S.Ct. at 3164.

By enacting Sections 48907 and 48950, however, the California legislature explicitly rejected such limitations on students' rights.   Section 48950 clearly and unambiguously prohibits disciplinary sanctions based solely on speech that would be protected if engaged in off campus.   Cal. Educ.Code. § 48950(a).   Likewise, the legislature expressed its intent clearly and unambiguously:  “It is the intent of the Legislature that a student shall have 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 historical and statutory notes.   Because the statutory language and intent are unambiguous, we need not rely on the legislative history for our decision.   The legislative history does, however, support the contention that Section 48950 guarantees expansive protection for California students' free speech rights.

Committee reports of hearings on the bill that became Section 48950 note that “[t]he purpose of this bill is to promote free speech.”   Committee Report for 1991 California Senate Bill No. 1115, Senate Committee on Judiciary, 1991-92 Regular Session (May 14, 1991) (“May 14 Committee Report”).   This bill was “introduced in response to the proliferation of ‘speech codes' on various campuses,” and sought to ensure that California “educational institutions [would] be bastions of unfettered free expression.”   Committee Report for 1991 California Senate Bill No. 1115, Senate Committee on Judiciary, 1991-92 Regular Session (July 10, 1991) (“July 10 Committee Report”).   Furthermore, “[b]y permitting any student speech that would be protected by the First Amendment off campus to be expressed on campus, the bill would return California schools to a standard at least as protective of the First Amendment as that expressed in Tinker.”   May 14 Committee Report.   It follows then that the legislature intended to expand students' freedom of expression beyond that guaranteed to students by the First Amendment, limited by Tinker 's time, place and manner restriction.4

To be sure, the legislature seemed concerned primarily with expression of alternate, and often unpopular or minority viewpoints.   Although the legislature focused on expression such as Tinker 's armbands, it did not, however, exclude protection for statements like Lovell's.   It quite clearly expressed the intent to expand students' rights to the boundaries of speech protected by the First Amendment.   And outside of the school context the First Amendment protects speech that is merely rude and petulant from content-based regulations.   The California legislature quite likely did not consider conduct such as Lovell's when it enacted Section 48950.   But the clear language of the statute invites challenges like this one-it invites students to make federal cases out of school disciplinary actions.

When it enacted Sections 48907 and 48950, the California legislature explicitly rejected content-based limitations on students' freedom of expression.   In so doing, the legislature expressed the clear intent to ensure full First Amendment rights for the state's students.   Accordingly, this Court must defer to the legislature's intent, and afford California students the expansive free speech rights they are guaranteed by the First Amendment in conjunction with the California Education Code.


 The first issue, therefore, is whether PUSD executed a permissible time, place, and manner restriction as allowed by Education Code Section 48950.   PUSD's action might have been a time, place or manner restriction if it was based not on the content of Lovell's statements, but instead on her rude, disrespectful behavior to a school employee.   But the testimony given at trial by Suokko and others focused on the “threat,” and was concerned primarily with what Lovell said and whether Suokko felt threatened.   Much of the record in this case is devoted to the issue of whether Lovell truly threatened Suokko.   Given that, the record supports the contention that PUSD disciplined Lovell based on the content of her statement to Suokko, and not on the time, place or manner in which it was given.

Furthermore, even if this was a time, place or manner restriction, Lovell's conduct does not satisfy the Tinker test.   For PUSD's disciplinary action to be a reasonable time, place and manner restriction Lovell's conduct must have “materially disrupt[ed] class or involv[ed] substantial disorder or invasion of the rights of others.”   From the record and the district court's findings of fact, it is not likely that Lovell's statement could have had a disruptive effect on school activities.   Suokko did not disrupt her counseling activities for the rest of the day, and she continued to meet with other students.   She did not alert others at the school as to any potential danger.   She also continued to carry out her duties for two days before Lovell was suspended.   Furthermore, Lovell did not tell any other students or faculty that she intended harm to Suokko, nor did she threaten anyone else.   This was a single incident that happened in private and was not heard by anyone besides Suokko.   See Lovell, 847 F.Supp. at 782-83.

As a general policy, schools are justified in taking very seriously student threats against faculty or other students.   A pervasive atmosphere of terror imposed by students who threaten physical harm to those around them would clearly be materially disruptive and well within the boundaries of Tinker.   But this isolated incident does not implicate the same concerns.   Certainly Lovell's conduct was petulant, rude, and inappropriate;  but we doubt whether it could be characterized as materially and substantially disruptive.   Therefore, on these facts, PUSD's action was not a reasonable time, place or manner restriction on Lovell's right to freely express herself.


If PUSD's action is analyzed as a content-based restriction on speech rather than a time, place or manner restriction, then PUSD would prevail if it could show that the punished speech is not protected under the First Amendment.   Because the district court did not clearly err in its determination that Lovell's speech is protected speech, we affirm the district court's judgment.

PUSD suspended Lovell under authority of Education Code Section 48900, which allows a school to suspend a student if he or she “[c]aused, attempted to cause, or threatened to cause physical injury to another person,” Cal. Educ.Code § 48900(a).   In addition, Section 48950 permits disciplinary sanctions for threats:  “Nothing in this section prohibits the imposition of discipline for harassment, threats, or intimidation, unless constitutionally protected.”  Cal. Educ.Code § 48950(d) (emphasis added).   Thus, these statutes permit content-based regulation of a form of “pure speech”-in other words, they permit punishment for mere words.   But reading and applying these provisions together, Section 48950 prohibits punishment under Section 48900 for threatening statements that are otherwise entitled to First Amendment protection.

 The issue, then, is whether Lovell's statement was a threat that is outside the scope of protected speech.   In general, threats are not protected by the First Amendment.  Watts v. United States, 394 U.S. 705, 89 S.Ct. 1399, 22 L.Ed.2d 664 (1969) (holding that the statement, “If they ever make me carry a rifle the first man I want to get in my sights is L.B.J.,” was political hyperbole and not a “true threat” given its context).   Statutes punishing threats “must be interpreted with the commands of the First Amendment clearly in mind.   What is a threat must be distinguished from what is constitutionally protected speech.”  Id. at 707, 89 S.Ct. at 1401.

 The Ninth Circuit set forth an objective test for determining whether a threat is a “true threat” and, thus, falls outside the protection of the First Amendment:  “whether a reasonable person would foresee that the statement would be interpreted by those to whom the maker communicates the statement as a serious expression of intent to harm or assault.”  United States v. Orozco-Santillan, 903 F.2d 1262 (9th Cir.1990).   Furthermore, “[a]lleged threats should be considered in light of their entire factual context, including the surrounding events and the reaction of the listeners.”   Id. (citing United States v. Gilbert, 884 F.2d 454, 457 (9th Cir.1989), cert. denied, 493 U.S. 1082, 110 S.Ct. 1140, 107 L.Ed.2d 1044 (1990) and United States v. Mitchell, 812 F.2d 1250, 1255 (9th Cir.1987));  accord United States v. Kelner, 534 F.2d 1020 (2d Cir.) (“So long as the threat on its face and in the circumstances in which it is made is so unequivocal, unconditional, immediate and specific ․ as to convey a gravity of purpose and imminent prospect of execution, the statute may properly be applied.”), cert. denied, 429 U.S. 1022, 97 S.Ct. 639, 50 L.Ed.2d 623 (1976).

The California courts have not yet interpreted threats in the context of Sections 48900 and 48950.   They have, however, considered threats under state criminal statutes.   See, e.g., In re M.S., 10 Cal.4th 698, 42 Cal.Rptr.2d 355, 896 P.2d 1365 (1995) (upholding the constitutionality of state hate crimes statutes that punish threats if the speaker has the apparent ability to carry out the threat and has reasonably induced fear of violence in the victim);  People v. Fisher, 12 Cal.App.4th 1556, 15 Cal.Rptr.2d 889 (1993) (upholding a conviction under a criminal statute that punishes threats, even though the defendant had no intent to carry out the threat, “as long as the circumstances are such that the threats are so unambiguous and have such immediacy that they convincingly express an intention of being carried out.”).   In these cases, the California courts rely on both Orozco-Santillan and Kelner to determine whether a threat is a “true threat” and therefore may be criminalized.   Thus, federal law and California state law substantially agree with respect to First Amendment protection of threats.

 The district court applied the appropriate tests, as set forth above, and found that Lovell's conduct did not constitute a “true threat.”   It based its judgment on the surrounding events:  Lovell did not act physically threatening toward Suokko;  she had spoken to Suokko several other times on the same day about the schedule change so her frustration at their final meeting should not have been entirely unexpected;  and she apologized immediately after making the disputed statement.   Furthermore, the court also considered the effect of the threat on the listener:  Suokko did not act afraid, shaken, or apprehensive at any time;  she did not seek immediate assistance or speak to anyone about the threat for three hours;  after she reported the incident to Scott Wright later that day she refused his offer to escort her to her car;  and she did not disrupt her work habits at all after the threat and before Lovell was suspended.5  All of these contentions are supported by the record, and the district court's findings of fact are not clearly in error.

When frustrated and irritable, people sometimes use figures of speech such as “I'm going to kill you” or “I could just shoot someone.”   Given the circumstances surrounding Lovell's statement to Suokko-her frustrating day spent in line, her immediate apology, and her lack of any physical action-a reasonable person would not likely have understood her to be expressing a serious intent to harm.  “As inappropriate and impatient as Sarah Lovell's conduct and words appeared to be, the overriding interest in the right of free expression prohibits the penalties imposed by PUSD in this case.”  Lovell, 847 F.Supp. at 785.

The district court did not clearly err when it found that Lovell's statement to Suokko was not a threat that fell outside the scope of First Amendment protection.   We therefore affirm the district court's judgment that the PUSD violated Lovell's rights as guaranteed by the First Amendment and the California Education Code.


Lovell prevailed on her First Amendment claim in the district court, but her due process claim failed.   The district court ruled that she is entitled to attorney's fees under 42 U.S.C. § 1988, “limited, as far as practicable, to the case with regard to the free speech violation.”  Lovell, 847 F.Supp. at 786.   Lovell claimed $22,727.50 in fees, but noted that it was impracticable to apportion the hours between the two claims.   The court determined that it was practicable to apportion the fees, and it found that approximately 50% of the work expended had been in furtherance of the due process claim;  thus, it awarded Lovell 50% of the requested fees, $11,976.25.   Lovell appeals this amount, claiming she is entitled to the full award.

 Section 1988 authorizes an award of reasonable attorney's fees to the prevailing party in civil rights litigation.   This Court reviews a district court's award of attorney's fees under Section 1988 for abuse of discretion.  Hensley v. Eckerhart, 461 U.S. 424, 437, 103 S.Ct. 1933, 1941, 76 L.Ed.2d 40 (1983);  Corder v. Gates, 947 F.2d 374, 377 (9th Cir.1991).   Thus, the award will not be overturned unless it is based on an incorrect conclusion of law or a clearly erroneous finding of fact.  Corder, 947 F.2d at 377.

 In Hensley, the Court addressed the issue of whether a partially prevailing plaintiff may recover attorney's fees for time spent in furtherance of unsuccessful claims.   The Court held that the “extent of a plaintiff's success is a crucial factor in determining the proper amount of [an award under Section 1988].”  Hensley, 461 U.S. at 440, 103 S.Ct. at 1943.   Furthermore, when a plaintiff does not prevail on a claim that is “distinct in all respects from his successful claims,” then the hours spent on the unsuccessful claim must be deducted from the fee award.  Id.  If, however, the claims are related, then “a plaintiff who has won substantial relief should not have his attorney's fee reduced simply because the district court did not adopt each contention raised.”  Id.  The party requesting an award of fees bears the burden of proving the amount to which he or she is entitled.  Id. at 437, 103 S.Ct. at 1941.   Thus, the fee applicant must maintain records sufficient for the district court to identify the fees related to distinct claims.  Id.

To determine whether claims are related this Court has considered whether the claims arose from a “common core of facts” and whether they are “based on related legal theories.”  Corder, 947 F.2d at 379 (citing Hensley, 461 U.S. at 435, 103 S.Ct. at 1940).   The test for relatedness of claims was further defined as “whether the unsuccessful and successful claims arose out of the same ‘course of conduct.’ ” Schwarz v. Secretary of Health and Human Serv., 73 F.3d 895, 903 (9th Cir. 1995);  Thorne v. City of El Segundo, 802 F.2d 1131, 1141 (9th Cir.1986).

 The due process claim, which is not before this Court on appeal, was based on events after Lovell was suspended.6  Although the claims are marginally related-both stem from Lovell's suspension for her speech activity-they do not arise from a common core of facts.   The district court noted in its Memorandum of Decision that the case “clearly had two aspects,” and that Lovell presented evidence and witnesses that were “related solely to the due process aspects of the claim.”   Furthermore, the claims were not based on related legal theories.   Although both claims were constitutional in nature, the free speech claim was based on the First Amendment and the California Education Code, while the Due Process claim was based on the Due Process clause of the Fourteenth Amendment, and on 42 U.S.C. § 1983.   Finally, these claims did not stem from the same course of conduct.   The First Amendment claim arose from PUSD's decision to suspend Lovell based solely on her speech.   But the Due Process claim arose from the PUSD's handling of the subsequent inquiries by Lovell's parents, and sought to remedy PUSD's procedural policies regarding student appeals of disciplinary actions.   Thus, these claims are unrelated and distinct, and the district court was within its discretion to deduct the time spent on the due process claim from the fee award.

The final issue, then, is whether the district court abused its discretion by reducing the award by half.   We find that it did not.   Lovell bore the burden of identifying to the court the appropriate apportionment of fees between the claims.   She chose not to give the court any guidance on this issue.   PUSD did, however, suggest the 50% apportionment the district court adopted.   The district court sufficiently set forth its reasons for ruling as it did, noting that the claims were distinct.   See Corder, 947 F.2d at 378 (indicating that the court must “carefully calculate hours and rates and fully articulate [its] reasoning”).

Given that Lovell's claims were unrelated and, moreover, that she did not identify to the court any appropriate apportioning of the fees, the district court did not abuse its discretion in awarding her 50% of the requested fees.   Therefore, we affirm the district court's award of attorney's fees.


When enacting the relevant portions of the Education Code, the California legislature sought to ensure that the state's public and private high schools and colleges would be “bastions of unfettered free expression.”   July 10 Committee Report.   In so doing, the legislature balanced the rights of schools to discipline their students against the rights of the students to freely express themselves, and tipped the scales in favor of the students.   On the facts of this case, the school district did not overcome this balance.


Sarah Lovell sassed her guidance counsellor.   To me, three years and hundreds of miles from the events, it looks like the school authorities took with undue literalness a figure of speech and overreacted with a penalty that might have had adverse implications for Lovell's later application to college.   It is no doubt remarkable that such an error in administrative judgment may be redressed by the federal courts.   But I cannot avoid the feeling that this federal act of vindication robs the school of its rightful responsibilities, trivializes the First Amendment, and contributes to the overload of the federal courts by rewarding attorneys such as Lovell's with a fee of over $11,000.

The contours of the constitutional rights of children in public schools are circumscribed by “the schools' custodial and tutelary responsibility for children.”  Vernonia School Dist. 47J v. Acton, 515 U.S. 646, ----, 115 S.Ct. 2386, 2392, 132 L.Ed.2d 564 (1995).   The United States Supreme Court has recognized:  That maintaining order in schools has never been easy and that in recent years “school disorder has often taken particularly ugly forms.”  New Jersey v. T.L.O., 469 U.S. 325, 339, 105 S.Ct. 733, 741, 83 L.Ed.2d 720 (1985);  that “events calling for discipline are frequent occurrences and sometimes require immediate, effective action.”  Goss v. Lopez, 419 U.S. 565, 580, 95 S.Ct. 729, 739, 42 L.Ed.2d 725 (1975);  that the maintenance of order in the schools “requires a certain degree of flexibility in school disciplinary procedures.”  New Jersey v. T.L.O., 469 U.S. at 340, 105 S.Ct. at 742.

If a student stands up in class and calls the teacher an ignoramus or makes some remark slighting the teacher's race, ethnicity, gender, sexual orientation, or maternal origin, the student will be exercising her right of free speech, but I shouldn't doubt the school's power to suspend her even if the class remained absolutely quiet.   See Hazelwood School District v. Kuhlmeier, 484 U.S. 260, 266, 108 S.Ct. 562, 567, 98 L.Ed.2d 592 (1988) (“A school need not tolerate student speech that is inconsistent with its ‘basic educational mission, ․ even though the government could not censor similar speech outside the school.’ ”).   The school has the duty and the right to maintain respect for a teacher in the classroom even if there is no “substantial disruption” of order.   I dare say the same duty and right of the school exists as to the maintenance of respect for a counsellor in a school setting outside of the classroom.   Would anyone doubt that if Lovell's impatience had been expressed to Suokko with one of the above abusive slurs she would have been a candidate for discipline?   She expressed herself somewhat differently, but even her version exhibited truculence and Suokko testified that she was threatened.   Who is to say what happened?   Who is to say if Suokko felt threatened?   Who is to draw the line on the appropriate penalty?

The First Amendment does not answer these questions.   I'd say that the school is the right place to decide all the facts if the procedure the school offers is as fair as the one provided here;  and the school is to decide the penalty if it is as far from being immoderate as the one imposed here.   See Goss v. Lopez, 419 U.S at 581-82, 95 S.Ct. at 739-40 (due process for a student facing suspension requires only that the student be informed of the charges and be afforded an opportunity to present an explanation);  Bethel School Dist. No. 403 v. Fraser, 478 U.S. 675, 683, 106 S.Ct. 3159, 3164, 92 L.Ed.2d 549 (1986) ( “The determination of what manner of speech in the classroom or in school assembly is inappropriate properly rests with the school board.”).   Civilized persons don't want to return to the days of corporal punishment;  it is a sign of social improvement that such severity has disappeared from California schools.   But the schools need some disciplinary tools.   If a three-day suspension propels a principal into federal court, the disciplinary resources have been immoderately shrunk.

I am not sure by what magic the court has metamorphosed a case involving at best a student's rights under California Education Code § 48950 into a case under the First Amendment.   States can provide greater protections under their own constitutions and laws, as apparently California has done here;  such protections are the province of state, not federal, law.   The case allegedly involves federal civil rights.   The briefing and opinion of the court have leaped over the federal statute, 42 U.S.C. § 1983, that imposes liability.   I fail to see that this statute incorporates every violation of California Education Code § 48950.   I know of no rule of law that says that when a state employs the criteria of the Constitution of the United States in a state statute the reference makes interpretation of the statute a federal issue.   To interpret California Education Code we not only have to interpret this state statute but also to interpret California criminal law on what constitutes a threat.   We are very far from our federal functions.   Federal judges recite a litany of complaints about the increase in the federal caseload that endangers the functioning of our courts.   This needless excursion into school discipline invites litigation under the California Education Code into a federal forum with a federally-awarded fee for the lawyers who win.


1.   The district court found that neither side prevailed in its proof on this point.   However, it also indicated that the exact words were not necessary to its findings.  Lovell v. Poway Unified Sch. Dist., 847 F.Supp. 780, 783 (S.D.Cal.1994).

2.   Further statutory references are to the California Education Code.

3.   The committee report for the Senate Committee on Judiciary's hearing of May 14, 1991, confirms this interpretation:Under the Tinker standard, speech on a school campus, just as any other speech, is subject to reasonable time, place and manner restrictions.   In the context of the school environment this means that conduct by the student which “materially disrupts classwork or involves substantial disorder or invasion of the rights of others” is not protected by the First Amendment.   Thus a student had the right under Tinker to speak or write in favor of the most unpopular viewpoint ․ but could not do so in a manner which created substantial disorder in the school.Committee Report for 1991 California Senate Bill No. 1115, Senate Committee on Judiciary, 1991-92 Regular Session (May 14, 1991).

4.   One committee report further defined permissible and impermissible restrictions:It is not always clear when a particular regulation of speech is permissible.   However, a reasonable time, place and manner regulation could, for example, prohibit a student from getting up in a math class to express his political beliefs.   On the other hand, a student could not be disciplined for stating an unpopular belief in a classroom discussion about the political system or before a group of students at the lunch hour.A regulation which is reasonable and goes to the manner of speech or expression is probably permissible.   One that goes solely to content probably is not, except for unprotected speech such as obscenity, ‘fighting words' and libel.May 14 Committee Report.

5.   Suokko testified that she had reported a student threat against her on one other occasion.   A student became disruptive in class while she was teaching and she immediately sought help from a teacher in a neighboring classroom.   RT Vol. I at 241-43.

6.   Lovell claimed that PUSD violated her procedural and substantive due process rights by refusing to inform her of the school district's policy that would have enabled her to seek administrative recourse.