Bruce Lavine, as Next Friend of James Lavine James Lavine v. Blaine School District, a Municipal Corporation Tim Haney Dan Newell Karen Mulholland

dissenting from denial of rehearing en banc:

While I agree with most of what Judge Kleinfeld says and therefore join his dissent, I do not share his bleak view of the effect of this decision on the rights of students in this circuit. I do not agree that the erroneous result arrived at in this case compels or authorizes this court, or district courts, in future cases, to uphold discipline that impinges on the First Amendment activities of students, even when those students are emotionally disturbed. I read the panel’s opinion essentially as approving only a brief suspension of a student pending determination of the existence of a safety question. Because the Washington statute contained no express provision for immediate “suspension,” the panel treated the “emergency expulsion” section as if it were such a provision. As Judge Kleinfeld so eloquently points out, in doing so, the panel erred — in my opinion, largely because it left the impression that it approved of the imposition of discipline, discipline that simply was not warranted and that violated the student’s First Amendment rights.

Specifically, I do not join in the introductory paragraph of Judge Kleinfeld’s dissent or in…

Order; Dissent by Judge REINHARDT; Dissent by Judge KLEINFELD

ORDER

The panel has unanimously voted to deny appellees’ petition for rehearing filed August 3, 2001. Judge Fisher voted to reject the suggestion for rehearing en banc, and Judge Fletcher and Judge Schwarzer recommended rejection of the suggestion for rehearing en banc.

The full court was advised of the suggestion for rehearing en banc. An active judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc consideration. Fed. R.App. P. 35(b).

The petition for rehearing is denied and the suggestion for rehearing en banc is rejected.

279 F.3d 719 Bruce LaVINE, as next friend of James LaVINE; James LaVine, Plaintiffs-Appellees, v. BLAINE SCHOOL DISTRICT, a municipal corporation; Tim Haney; Dan Newell; Karen Mulholland, Defendants-Appellants. No. 00-35303. United States Court of Appeals, Ninth Circuit. January 29, 2002. 1 Before: B. FLETCHER and FISHER, Circuit Judges, and SCHWARZER, * District Judge. 2 Order; Dissent by Judge REINHARDT; Dissent by Judge KLEINFELD ORDER 3 The panel has unanimously voted to deny appellees' petition for rehearing filed August 3, 2001. Judge Fisher voted to reject the suggestion for rehearing en banc, and Judge Fletcher and Judge Schwarzer recommended rejection of the suggestion for rehearing en banc. 4 The full court was advised of the suggestion for rehearing en banc. An active judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc consideration. Fed. R.App. P. 35(b). 5 The petition for rehearing is denied and the suggestion for rehearing en banc is rejected. 6 REINHARDT, Circuit Judge, dissenting from denial of rehearing en banc: 7 While I agree with most of what…