PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 08-4138
J.S., a minor, through her parents;
TERRY SNYDER;
STEVEN SNYDER,
Appellants
v.
BLUE MOUNTAIN SCHOOL DISTRICT;
JOYCE ROMBERGER; JAMES McGONIGLE
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. No. 07-cv-00585)
District Judge: Honorable James M. Munley
Argued June 2, 2009
Argued En Banc June 3, 2010
Before: McKEE, Chief Judge, SLOVITER, SCIRICA,
RENDELL,BARRY, AMBRO, FUENTES, SMITH, FISHER,
CHAGARES, JORDAN, HARDIMAN, GREENAWAY, JR.,
and VANASKIE, Circuit Judges.
(Filed: June 13, 2011)
Mary E. Kohart
Aliceson K. Littman
Tara S. Sarosiek
Drinker, Biddle & Reath
18th & Cherry Streets
One Logan Square
Philadelphia, PA 19103
Mary Catherine Roper
American Civil Liberties Union
of Pennsylvania
P.O. Box 40008
Philadelphia, PA 19106
Witold J. Walczak (Argued)
American Civil Liberties Union
313 Atwood Street
Pittsburgh, PA 15213
Attorneys for Appellants
Jonathan P. Riba (Argued)
Sweet, Stevens, Katz & Williams
331 East Butler Avenue
P.O. Box 5069
New Britain, PA 18901
Attorney for Appellees
______________________
OPINION OF THE COURT
______________________
CHAGARES, Circuit Judge, with whom McKEE, Chief Judge,
SLOVITER, AMBRO, FUENTES, SMITH, HARDIMAN, and
GREENAWAY, JR., Circuit Judges, join.
J.S., a minor, by and through her parents, Terry Snyder and
Steven Snyder, individually and on behalf of their daughter, appeal
the District Court’s grant of summary judgment in favor of the
Blue Mountain School District (“the School District”) and denial
of their motion for summary judgment. This case arose when the
School District suspended J.S. for creating, on a weekend and on
her home computer, a MySpace profile (the “profile”) making fun
2
of her middle school principal, James McGonigle. The profile
contained adult language and sexually explicit content. J.S. and her
parents sued the School District under 42 U.S.C. § 1983 and state
law, alleging that the suspension violated J.S.’s First Amendment
free speech rights, that the School District’s policies were
unconstitutionally overbroad and vague, that the School District
violated the Snyders’ Fourteenth Amendment substantive due
process rights to raise their child, and that the School District acted
outside of its authority in punishing J.S. for out-of-school speech.
Because J.S. was suspended from school for speech that
indisputably caused no substantial disruption in school and that
could not reasonably have led school officials to forecast
substantial disruption in school, the School District’s actions
violated J.S.’s First Amendment free speech rights. We will
accordingly reverse and remand that aspect of the District Court’s
judgment. However, we will affirm the District Court’s judgment
that the School District’s policies were not overbroad or void-for-
vagueness, and that the School District did not violate the Snyders’
Fourteenth Amendment substantive due process rights.
I.
J.S. was an Honor Roll eighth grade student who had never
been disciplined in school until December 2006 and February 2007,
when she was twice disciplined for dress code violations by
McGonigle. On Sunday, March 18, 2007, J.S. and her friend K.L.,
another eighth grade student at Blue Mountain Middle School,
created a fake profile of McGonigle, which they posted on
MySpace, a social networking website. The profile was created at
J.S.’s home, on a computer belonging to J.S.’s parents.
The profile did not identify McGonigle by name, school, or
location, though it did contain his official photograph from the
School District’s website. The profile was presented as a self-
portrayal of a bisexual Alabama middle school principal named
“M-Hoe.” The profile contained crude content and vulgar
language, ranging from nonsense and juvenile humor to profanity
and shameful personal attacks aimed at the principal and his
3
family. For instance, the profile lists M-Hoe’s general interests as:
“detention, being a tight ass, riding the fraintrain, spending time
with my child (who looks like a gorilla), baseball, my golden pen,
fucking in my office, hitting on students and their parents.”
Appendix (“App.”) 38. In addition, the profile stated in the “About
me” section:
HELLO CHILDREN[.] yes. it’s your oh so
wonderful, hairy, expressionless, sex addict, fagass,
put on this world with a small dick PRINCIPAL[.] I
have come to myspace so i can pervert the minds of
other principal’s [sic] to be just like me. I know, I
know, you’re all thrilled[.] Another reason I came to
myspace is because - I am keeping an eye on you
students (who[m] I care for so much)[.] For those
who want to be my friend, and aren’t in my school[,]
I love children, sex (any kind), dogs, long walks on
the beach, tv, being a dick head, and last but not least
my darling wife who looks like a man (who satisfies
my needs ) MY FRAINTRAIN. . . .
Id. Though disturbing, the record indicates that the profile was so
outrageous that no one took its content seriously. J.S. testified that
she intended the profile to be a joke between herself and her
friends. At her deposition, she testified that she created the profile
because she thought it was “comical” insofar as it was so
“outrageous.” App. 190.
Initially, the profile could be viewed in full by anyone who
knew the URL (or address) or who otherwise found the profile by
searching MySpace for a term it contained. The following day,
however, J.S. made the profile “private” after several students
approached her at school, generally to say that they thought the
profile was funny. App. 194. By making the profile “private,” J.S.
limited access to the profile to people whom she and K.L. invited
to be a MySpace “friend.” J.S. and K.L. granted “friend” status to
about twenty-two School District students.
The School District’s computers block access to MySpace,
so no Blue Mountain student was ever able to view the profile from
4
school. McGonigle first learned about the profile on Tuesday,
March 20, 2007, from a student who was in his office to discuss an
unrelated incident. McGonigle asked this student to attempt to find
out who had created the profile. He also attempted –
unsuccessfully – to find the profile himself, even contacting
MySpace directly.
At the end of the school day on Tuesday, the student who
initially told McGonigle about the profile reported to him that it
had been created by J.S. McGonigle asked this student to bring
him a printout of the profile to school the next day, which she did.
It is undisputed that the only printout of the profile that was ever
brought to school was one brought at McGonigle’s specific request.
On Wednesday, March 21, 2007, McGonigle showed the
profile to Superintendent Joyce Romberger and the Director of
Technology, Susan Schneider-Morgan. The three met for about
fifteen minutes to discuss the profile. McGonigle also showed the
profile to two guidance counselors, Michelle Guers and Debra
Frain (McGonigle’s wife). McGonigle contacted MySpace to
attempt to discover what computer had been used to create the
profile, but MySpace refused to release that information without a
court order. The School District points to no evidence that anyone
ever suspected the information in the profile to be true.
McGonigle ultimately decided that the creation of the
profile was a Level Four Infraction under the Disciplinary Code of
Blue Mountain Middle School, Student-Parent Handbook, App. 65-
66, as a false accusation about a staff member of the school and a
“copyright” violation of the computer use policy, for using
McGonigle’s photograph. At his deposition, however, McGonigle
admitted that he believed the students “weren’t accusing me. They
were pretending they were me.” App. 327.1
1
In addition, Romberger testified as to her knowledge that
it was actually K.L. and not J.S. who appropriated McGonigle’s
photograph from the School District’s website. App. 305-06.
Further, it was not until March 29, 2007 that the School District
placed a warning on its website prohibiting the duplication of
5
J.S. was absent from school on Wednesday, the day
McGonigle obtained a copy of the profile. When she returned, on
Thursday, March 22, 2007, McGonigle summoned J.S. and K.L. to
his office to meet with him and Guidance Counselor Guers. J.S.
initially denied creating the profile, but then admitted her role.
McGonigle told J.S. and K.L. that he was upset and angry, and
threatened the children and their families with legal action. App.
333-34. Following this meeting, J.S. and K.L. remained in
McGonigle’s office while he contacted their parents and waited for
them to come to school.
McGonigle met with J.S. and her mother Terry Snyder and
showed Mrs. Snyder the profile. He told the children’s parents that
J.S. and K.L. would receive ten days out-of-school suspension,
which also prohibited attendance at school dances. McGonigle
also threatened legal action. J.S. and her mother both apologized
to McGonigle, and J.S. subsequently wrote a letter of apology to
McGonigle and his wife.
McGonigle next contacted MySpace, provided the URL for
the profile and requested its removal, which was done. McGonigle
also contacted Superintendent Romberger to inform her of his
decision regarding J.S. and K.L.’s punishment. Although
Romberger could have overruled McGonigle’s decision, she agreed
with the punishment. On Friday, March 23, 2007, McGonigle sent
J.S.’s parents a disciplinary notice, which stated that J.S. had been
suspended for ten days.2 The following week, Romberger declined
Mrs. Snyder’s request to overrule the suspension.
On the same day McGonigle met with J.S. and her mother,
he contacted the local police and asked about the possibility of
pressing criminal charges against the students. The local police
referred McGonigle to the state police, who informed him that he
could press harassment charges, but that the charges would likely
photographs or other content from the website. See App. 79, 180.
2
McGonigle testified that the other times he imposed a ten-
day suspension were when students brought to school a knife,
razor, alcohol, and marijuana. App. 317.
6
be dropped. McGonigle chose not to press charges. An officer
did, however, complete a formal report and asked McGonigle
whether he wanted the state police to call the students and their
parents to the police station to let them know how serious the
situation was. McGonigle asked the officer to do this, and on
Friday, March 23, J.S. and K.L. and their mothers were summoned
to the state police station to discuss the profile.
The School District asserted that the profile disrupted school
in the following ways. There were general “rumblings” in the
school regarding the profile. More specifically, on Tuesday, March
20, McGonigle was approached by two teachers who informed him
that students were discussing the profile in class. App. 322. Randy
Nunemacher, a Middle School math teacher, experienced a
disruption in his class when six or seven students were talking and
discussing the profile; Nunemacher had to tell the students to stop
talking three times, and raised his voice on the third occasion.
App. 368-73. The exchange lasted about five or six minutes. App.
371. Nunemacher also testified that he heard two students talking
about the profile in his class on another day, but they stopped when
he told them to get back to work. App. 373-74. Nunemacher
admitted that the talking in class was not a unique incident and that
he had to tell his students to stop talking about various topics about
once a week. Another teacher, Angela Werner, testified that she
was approached by a group of eighth grade girls at the end of her
Skills for Adolescents course to report the profile. App. 415-16.
Werner said this did not disrupt her class because the girls spoke
with her during the portion of the class when students were
permitted to work independently. App. 417-18.
The School District also alleged disruption to Counselor
Frain’s job activities. Frain canceled a small number of student
counseling appointments to supervise student testing on the
morning that McGonigle met with J.S., K.L., and their parents.
Counselor Guers was originally scheduled to supervise the student
testing, but was asked by McGonigle to sit in on the meetings, so
Frain filled in for Guers. This substitution lasted about twenty-five
to thirty minutes. There is no evidence that Frain was unable to
reschedule the canceled student appointments, and the students
who were to meet with her remained in their regular classes. App.
7
352-53.
On March 28, 2007, J.S. and her parents filed this action
against the School District, Superintendent Romberger, and
Principal McGonigle. By way of stipulation, on January 7, 2008,
all claims against Romberger and McGonigle were dismissed, and
only the School District remained as a defendant. After discovery,
both parties moved for summary judgment.
After analyzing the above facts, the District Court granted
the School District’s summary judgment motion on all claims,
though specifically acknowledging that Tinker v. Des Moines
Independent Community School District, 393 U.S. 503 (1969),
does not govern this case because no “substantial and material
disruption” occurred. App. 10-12 (refusing to rely on Tinker);
App. 17 (concluding that “a substantial disruption so as to fall
under Tinker did not occur”). Instead, the District Court drew a
distinction between political speech at issue in Tinker, and “vulgar
and offensive” speech at issue in a subsequent school speech case,
Bethel School District v. Fraser, 478 U.S. 675 (1986). App. 11-12.
The District Court also noted the Supreme Court’s most recent
school speech decision, Morse v. Frederick, 551 U.S. 393 (2007),
where the Court allowed a school district to prohibit a banner
promoting illegal drug use at a school-sponsored event.
Applying a variation of the Fraser and Morse standard, the
District Court held that “as vulgar, lewd, and potentially illegal
speech that had an effect on campus, we find that the school did not
violate the plaintiff’s rights in punishing her for it even though it
arguably did not cause a substantial disruption of the school.” App.
15-16. The Court asserted that the facts of this case established a
connection between off-campus action and on-campus effect, and
thus justified punishment, because: (1) the website was about the
school’s principal; (2) the intended audience was the student body;
(3) a paper copy was brought into the school and the website was
discussed in school; (4) the picture on the profile was appropriated
from the School District’s website; (5) J.S. created the profile out
of anger at the principal for disciplining her for dress code
violations in the past; (6) J.S. lied in school to the principal about
creating the profile; (7) “although a substantial disruption so as to
8
fall under Tinker did not occur . . . there was in fact some
disruption during school hours”; and (8) the profile was viewed at
least by the principal at school. App. 17 (emphasis added).
The District Court then rejected several other district court
decisions where the courts did not allow schools to punish speech
that occurred off campus, including the decision in Layshock v.
Hermitage School District, 496 F. Supp. 2d 587 (W.D. Pa. 2007),
a case substantially similar to the one before us, and which is also
being considered by this Court. See App. 18-20. In distinguishing
these cases, the District Court made several qualitative judgments
about the speech involved in each. See, e.g., App. 18 (asserting
that the statements in Flaherty v. Keystone Oaks School District,
247 F. Supp. 2d 698 (W.D. Pa. 2003), were “rather innocuous
compared to the offensive and vulgar statements made by J.S. in
the present case”); App. 19 (contending that “[t]he speech in the
instant case . . . is distinguishable” from the speech in Killion v.
Franklin Regional School District, 136 F. Supp. 2d 446 (W.D. Pa.
2001), because of, inter alia, “the level of vulgarity that was
present” in the instant case); App. 20 (claiming that, as compared
to Layshock, “the facts of our case include a much more vulgar and
offensive profile”).
Ultimately, the District Court held that although J.S.’s
profile did not cause a “substantial and material” disruption under
Tinker, the School District’s punishment was constitutionally
permissible because the profile was “vulgar and offensive” under
Fraser and J.S.’s off-campus conduct had an “effect” at the school.
In a footnote, the District Court also noted that “the protections
provided under Tinker do not apply to speech that invades the
rights of others.” App. 16 n.4 (citing Tinker, 393 U.S. at 513).
Next, the District Court held that the School District’s
policies were not vague and overbroad. The District Court first
approached the issue in a somewhat backwards manner: it
concluded that because the punishment was appropriate under the
First Amendment, the policies were not vague and overbroad even
though they can be read to apply to off-campus conduct. App. 21.
Alternatively, the District Court held that the policy language was
“sufficiently narrow . . . to confine the policy to school grounds and
9
school-related activities.” Id. (quoting the Handbook, which
provides that the “[m]aintenance of order applies during those
times when students are under the direct control and supervision of
school district officials,” and noting that the computer use policy
incorporates the limitations of the Handbook).
The District Court also held that the School District did not
violate the Snyders’ parental rights under the Fourteenth
Amendment. The Court concluded that “the school did not err in
disciplining J.S., and her actions were not merely personal home
activities[,]” and that therefore the Snyders’ parental rights were
not violated. The Court did not address directly the plaintiffs’ state
law argument, but did note that Pennsylvania law allows school
districts to “punish students [] ‘during such times as they are under
the supervision of the board of school directors and teachers,
including the time necessarily spent in coming to and returning
from school.’” App. 22 (quoting 24 Pa. Cons. Stat. § 5-510). J.S.
and her parents filed a timely appeal from the District Court’s entry
of summary judgment in favor of the School District and from its
decision to deny their motion for summary judgment.
II.
The District Court had jurisdiction over the federal claims
pursuant to 28 U.S.C. § 1331 and 28 U.S.C. § 1343(a)(3) and (4),
and exercised supplemental jurisdiction over the state law claim
under 28 U.S.C. § 1367. We exercise jurisdiction under 28 U.S.C.
§ 1291.
We review a District Court’s disposition of a summary
judgment motion de novo. Pichler v. UNITE, 542 F.3d 380, 385
(3d Cir. 2008) (citing Marten v. Godwin, 499 F.3d 290, 295 (3d
Cir. 2007)). In conducting this review, we use the same standard
as the District Court should have applied. Farrell v. Planters
Lifesavers Co., 206 F.3d 271, 278 (3d Cir. 2000). “The court shall
grant summary judgment if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law.” Fed. R. Civ. P. 56(a) (setting forth
the legal standard formerly found in Fed. R. Civ. P. 56(c)). All
inferences must be viewed in the light most favorable to the
10
nonmoving party, Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986); Farrell, 206 F.3d at 278, and
where, as was the case here, the District Court considers cross-
motions for summary judgment “the court construes facts and
draws inferences ‘in favor of the party against whom the motion
under consideration is made,’” Pichler, 542 F.3d at 386 (quoting
Samuelson v. LaPorte Cmty. Sch. Corp., 526 F.3d 1046, 1051 (7th
Cir. 2008)).
“A disputed fact is ‘material’ if it would affect the outcome
of the suit as determined by the substantive law.” Gray v. York
Newspapers, Inc., 957 F.2d 1070, 1078 (3d Cir. 1992).
Importantly, the nonmoving party cannot satisfy its requirement of
establishing a genuine dispute of fact merely by pointing to
unsupported allegations found in the pleadings. Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986). Instead, the party must raise
more than “some metaphysical doubt,” Matsushita, 475 U.S. at
586, and the court must determine that “a fair-minded jury could
return a verdict for the [nonmoving party] on the evidence
presented.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252
(1986); see also Bouriez v. Carnegie Mellon Univ., 585 F.3d 765,
770-71 (3d Cir. 2009). It is impermissible for the court to intrude
upon the duties of the fact-finder by weighing the evidence or
making credibility determinations. Pichler, 542 F.3d at 386.
Finally, when the nonmoving party is the plaintiff, he must produce
sufficient evidence to establish every element that he will be
required to prove at trial. Celotex, 477 U.S. at 322.
III.
Although the precise issue before this Court is one of first
impression, the Supreme Court and this Court have analyzed the
extent to which school officials can regulate student speech in
several thorough opinions that compel the conclusion that the
School District violated J.S.’s First Amendment free speech rights
when it suspended her for speech that caused no substantial
disruption in school and that could not reasonably have led school
officials to forecast substantial disruption in school.
A.
11
We begin our analysis by recognizing the “comprehensive
authority” of teachers and other public school officials. Tinker,
393 U.S. at 507. See generally Veronia Sch. Dist. 47J v. Acton,
515 U.S. 646, 655 (1995) (describing the public schools’ power
over public school children as both “custodial and tutelary”).
Those officials involved in the educational process perform
“important, delicate, and highly discretionary functions.” W. Va.
State Bd. of Educ. v. Barnette, 319 U.S. 624, 637 (1943). As a
result, federal courts generally exercise restraint when considering
issues within the purview of public school officials. See Bd. of
Educ., Island Trees Union Free Sch. Dist. v. Pico, 457 U.S. 853,
864 (1982) (“[F]ederal courts should not ordinarily ‘intervene in
the resolution of conflicts which arise in the daily operation of
school systems.’” (quoting Epperson v. Arkansas, 393 U.S. 97, 104
(1968))); see also Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S.
260, 266 (1988) (“[T]he education of the Nation’s youth is
primarily the responsibility of parents, teachers, and state and local
school officials, and not of federal judges.”).
The authority of public school officials is not boundless,
however. The First Amendment unquestionably protects the free
speech rights of students in public school. Morse, 551 U.S. at 396
(“Our cases make clear that students do not ‘shed their
constitutional rights to freedom of speech or expression at the
schoolhouse gate.’” (quoting Tinker, 393 U.S. at 506)). Indeed,
“[t]he vigilant protection of constitutional freedoms is nowhere
more vital than in the community of American schools.” Shelton
v. Tucker, 364 U.S. 479, 487 (1960). The exercise of First
Amendment rights in school, however, has to be “applied in light
of the special characteristics of the school environment,” Tinker,
393 U.S. at 506, and thus the constitutional rights of students in
public schools “are not automatically coextensive with the rights of
adults in other settings,” Fraser, 478 U.S. at 682. Since Tinker,
courts have struggled to strike a balance between safeguarding
students’ First Amendment rights and protecting the authority of
school administrators to maintain an appropriate learning
environment.
The Supreme Court established a basic framework for
assessing student free speech claims in Tinker, and we will assume,
12
without deciding, that Tinker applies to J.S.’s speech in this case.3
The Court in Tinker held that “to justify prohibition of a particular
expression of opinion,” school officials must demonstrate that “the
forbidden conduct would materially and substantially interfere with
the requirements of appropriate discipline in the operation of the
school.” Tinker, 393 U.S. at 509 (emphasis added) (quotation
marks omitted). This burden cannot be met if school officials are
driven by “a mere desire to avoid the discomfort and
unpleasantness that always accompany an unpopular viewpoint.”
Id. Moreover, “Tinker requires a specific and significant fear of
disruption, not just some remote apprehension of disturbance.”
Saxe v. State Coll. Area Sch. Dist., 240 F.3d 200, 211 (3d Cir.
2001). Although Tinker dealt with political speech, the opinion has
never been confined to such speech. See id. at 215-17 (holding that
the school’s anti-harassment policy was overbroad because it
“appears to cover substantially more speech than could be
prohibited under Tinker’s substantial disruption test”); see also
Killion, 136 F. Supp. 2d at 455-58 (holding that the school
overstepped its constitutional bounds under Tinker when it
suspended a student for making “lewd” comments about the
school’s athletic director in an e-mail the student wrote at home
and circulated to the non-school e-mail accounts of several
classmates).
As this Court has emphasized, with then-Judge Alito writing
for the majority, Tinker sets the general rule for regulating school
speech, and that rule is subject to several narrow exceptions. Saxe,
240 F.3d at 212 (“Since Tinker, the Supreme Court has carved out
a number of narrow categories of speech that a school may restrict
even without the threat of substantial disruption.”). The first
exception is set out in Fraser, which we interpreted to permit
school officials to regulate “‘lewd,’ ‘vulgar,’ ‘indecent,’ and
‘plainly offensive’ speech in school.” Id. at 213 (quoting Fraser,
478 U.S. at 683, 685) (emphasis added); see also Sypniewski v.
3
The appellants argue that the First Amendment “limits
school official[s’] ability to sanction student speech to the
schoolhouse itself.” Appellants’ Br. 25. While this argument has
some appeal, we need not address it to hold that the School District
violated J.S.’s First Amendment free speech rights.
13
Warren Hills Reg’l Bd. of Educ., 307 F.3d 243, 253 (3d Cir. 2002)
(quoting Saxe’s narrow interpretation of the Fraser exception). The
second exception to Tinker is articulated in Hazelwood School
District v. Kuhlmeier, which allows school officials to “regulate
school-sponsored speech (that is, speech that a reasonable observer
would view as the school’s own speech) on the basis of any
legitimate pedagogical concern.” Saxe, 240 F.3d at 214.
The Supreme Court recently articulated a third exception to
Tinker’s general rule in Morse. Although, prior to this case, we
have not had an opportunity to analyze the scope of the Morse
exception, the Supreme Court itself emphasized the narrow reach
of its decision. In Morse, a school punished a student for
unfurling, at a school-sponsored event, a large banner containing
a message that could reasonably be interpreted as promoting illegal
drug use. 551 U.S. at 396. The Court emphasized that Morse was
a school speech case, because “[t]he event occurred during normal
school hours,” was sanctioned by the school “as an approved social
event or class trip,” was supervised by teachers and administrators
from the school, and involved performances by the school band and
cheerleaders. Id. at 400-01 (quotation marks omitted). The Court
then held that “[t]he ‘special characteristics of the school
environment,’ Tinker, 393 U.S.[] at 506 [], and the governmental
interest in stopping student drug abuse . . . allow schools to restrict
student expression that they reasonably regard as promoting illegal
drug use.” Id. at 408.
Notably, Justice Alito’s concurrence in Morse further
emphasizes the narrowness of the Court’s holding, stressing that
Morse “stand[s] at the far reaches of what the First Amendment
permits.” 551 U.S. at 425 (Alito, J., concurring). In fact, Justice
Alito only joined the Court’s opinion “on the understanding that
the opinion does not hold that the special characteristics of the
public schools necessarily justify any other speech restrictions”
than those recognized by the Court in Tinker, Fraser, Kuhlmeier,
and Morse. Id. at 422-23. Justice Alito also noted that the Morse
decision “does not endorse the broad argument . . . that the First
Amendment permits public school officials to censor any student
speech that interferes with a school’s ‘educational mission.’ This
argument can easily be manipulated in dangerous ways, and I
14
would reject it before such abuse occurs.” Id. at 423 (citations
omitted). Moreover, Justice Alito engaged in a detailed discussion
distinguishing the role of school authorities from the role of
parents, and the school context from the “[o]utside of school”
context. Id. at 424-25.
B.
There is no dispute that J.S.’s speech did not cause a
substantial disruption in the school. The School District’s counsel
conceded this point at oral argument and the District Court
explicitly found that “a substantial disruption so as to fall under
Tinker did not occur.” App. at 17. Nonetheless, the School
District now argues that it was justified in punishing J.S. under
Tinker because of “facts which might reasonably have led school
authorities to forecast substantial disruption of or material
interference with school activities . . . .” Tinker, 393 U.S. at 514.
Although the burden is on school authorities to meet Tinker’s
requirements to abridge student First Amendment rights, the
School District need not prove with absolute certainty that
substantial disruption will occur. Doninger v. Niehoff, 527 F.3d
41, 51 (2d Cir. 2008) (holding that Tinker does not require “actual
disruption to justify a restraint on student speech”); Lowery v.
Euverard, 497 F.3d 584, 591-92 (6th Cir. 2007) (“Tinker does not
require school officials to wait until the horse has left the barn
before closing the door. . . . [It] does not require certainty, only that
the forecast of substantial disruption be reasonable.”); LaVine v.
Blaine Sch. Dist., 257 F.3d 981, 989 (9th Cir. 2001) (“Tinker does
not require school officials to wait until disruption actually occurs
before they may act.”).
The facts in this case do not support the conclusion that a
forecast of substantial disruption was reasonable. In Tinker, the
Supreme Court held that “our independent examination of the
record fails to yield evidence that the school authorities had reason
to anticipate that the wearing of the armbands [to protest the
Vietnam War] would substantially interfere with the work of the
school or impinge upon the rights of other students.” 393 U.S. at
509. Given this holding, it is important to consider the record
15
before the Supreme Court in Tinker and compare it to the facts of
this case.
The relevant events in Tinker took place in December 1965,
the year that over 200,000 U.S. troops were deployed to Vietnam
as part of Operation Rolling Thunder. Justice Black dissented in
Tinker, noting that “members of this Court, like all other citizens,
know, without being told, that the disputes over the wisdom of the
Vietnam war have disrupted and divided this country as few other
issues [e]ver have.” Id. at 524 (Black, J., dissenting). In fact, the
Tinker majority itself noted the school authorities’ concern about
the effect of the protest on friends of a student who was killed in
Vietnam. See id. at 509 n.3. Justice Black also emphasized the
following portions of the record:
the [] armbands caused comments, warnings by other
students, the poking of fun at them, and a warning by
an older football player that other, nonprotesting
students had better let them alone. There is also
evidence that a teacher of mathematics had his
lesson period practically ‘wrecked’ chiefly by
disputes with [a protesting student] who wore her
armband for her ‘demonstration.’
Id. at 517 (Black, J., dissenting). Based on these facts, Justice
Black disagreed with the Tinker majority’s holding that the
armbands did not cause a substantial disruption in school: “I think
the record overwhelmingly shows that the armbands did exactly
what the elected school officials and principals foresaw they
would, that is, took the students’ minds off their classwork and
diverted them to thoughts about the highly emotional subject of the
Vietnam war.” Id. at 518; see also id. at 524 (“Of course students,
like other people, cannot concentrate on lesser issues when black
armbands are being ostentatiously displayed in their presence to
call attention to the wounded and dead of the war, some of the
wounded and the dead being their friends and neighbors.”).
This was the record in Tinker, and yet the majority in that
case held that “the record does not demonstrate any facts which
might reasonably have led school authorities to forecast substantial
16
disruption of or material interference with school activities,” and
thus that the school violated the students’ First Amendment rights.
Id. at 514 (emphasis added). Turning to our record, J.S. created the
profile as a joke, and she took steps to make it “private” so that
access was limited to her and her friends. Although the profile
contained McGonigle’s picture from the school’s website, the
profile did not identify him by name, school, or location.
Moreover, the profile, though indisputably vulgar, was so juvenile
and nonsensical that no reasonable person could take its content
seriously, and the record clearly demonstrates that no one did.4
Also, the School District’s computers block access to MySpace, so
no Blue Mountain student was ever able to view the profile from
school.5 And, the only printout of the profile that was ever brought
4
Indeed, although Superintendent Romberger had a duty to
report allegations of inappropriate sexual contact or other
misconduct by officials in the School District, she did not report
McGonigle, because she believed the content of the profile was not
true. App. 295-307. In fact, Romberger did not even question
McGonigle as to whether any of the content was true. App. 307.
5
We agree with the appellants’ argument that 24 Pa. Cons.
Stat. § 5-510 also barred the School District from punishing J.S. for
her off-campus speech. Section 5-510 limited the authority of the
School District to:
adopt[ing] and enforc[ing] such reasonable rules and
regulations . . . regarding the conduct and
deportment of all pupils attending the public schools
in the district, during such time as they are under the
supervision of the board of school directors and
teachers, including the time necessarily spent in
coming to and returning from school.
24 Pa. Cons. Stat. § 5-510 (emphasis added). The dissent notes
that § 5-510 permits a school district to exercise “such control as
is necessary to prevent infractions of discipline and interference
with the educational process.” D.O.F. v. Lewisburg Area Sch.
Dist. Bd. of Sch. Dirs., 868 A.2d 28, 36 (Pa. Commw. Ct. 2004).
While that may be true, the Pennsylvania Commonwealth Court has
17
to school was one that was brought at McGonigle’s express
request. Thus, beyond general rumblings, a few minutes of talking
in class, and some officials rearranging their schedules to assist
McGonigle in dealing with the profile, no disruptions occurred.6
In comparing our record to the record in Tinker, this Court
cannot apply Tinker’s holding to justify the School District’s
actions in this case. As the Supreme Court has admonished, an
“undifferentiated fear or apprehension of disturbance is not enough
to overcome the right to freedom of expression.” Tinker, 393 U.S.
at 508. If Tinker’s black armbands – an ostentatious reminder of
the highly emotional and controversial subject of the Vietnam war
– could not “reasonably have led school authorities to forecast
substantial disruption of or material interference with school
activities,” id. at 514, neither can J.S.’s profile, despite the
unfortunate humiliation it caused for McGonigle.7
interpreted this provision to prohibit a school district from
punishing students for conduct occurring outside of school hours
– even if such conduct occurs on school property. See id. at 35-36.
All of the integral events in this case occurred outside the
school, during non-school hours. Accordingly, § 5-510 also barred
the School District from punishing J.S.
6
McGonigle testified that after this lawsuit was filed, there
was a general decline in student discipline and that he believed this
litigation itself encouraged other students to misbehave because
they thought they could simply file a lawsuit to alleviate any
trouble. App. 350-51. McGonigle’s testimony in this regard is
irrelevant to the issues before this Court because these disruptions
did not arise out of the creation of the profile itself, but rather, were
the direct result of the School District’s response to the profile and
the ensuing litigation. This testimony, therefore, is not relevant to
determining the level of disruption that the profile caused in the
school.
7
We recognize that vulgar and offensive speech such as that
employed in this case – even made in jest – could damage the
careers of teachers and administrators and we conclude only that
18
Courts must determine when an “undifferentiated fear or
apprehension of disturbance” transforms into a reasonable forecast
that a substantial disruption or material interference will occur.
The School District cites several cases where courts held that a
forecast of substantial and material disruption was reasonable. See,
e.g., Doninger, 527 F.3d at 50-51 (holding that punishment was
justified, under Tinker, where a student’s derogatory blog about the
school was “purposely designed by [the student] to come onto the
campus,” to “encourage others to contact the administration,” and
where the blog contained “at best misleading and at worst false
information” that the school “need[ed] to correct” (quotation marks
and alteration omitted)); Lowery, 497 F.3d at 596 (holding that
punishment was justified, under Tinker, where students circulated
a petition to fellow football players calling for the ouster of their
football coach, causing the school to have to call a team meeting to
ensure “team unity,” and where not doing so “would have been a
grave disservice to the other players on the team”); LaVine, 257
F.3d at 984, 989-90 (holding that the school district did not violate
a student’s First Amendment rights when it expelled him on an
emergency basis “to prevent [] potential violence on campus” after
he showed a poem entitled “Last Words” to his English teacher,
which was “filled with imagery of violent death and suicide” and
could “be interpreted as a portent of future violence, of the
shooting of [] fellow students”).
the punitive action taken by the School District violated the First
Amendment free speech rights of J.S.
To the extent the dissent supports its arguments regarding
material and substantial disruption by speculating about the
possibility of discomfort by the recipients of the speech in this case,
we cite then-Judge Alito’s admonition in Saxe that “[t]he Supreme
Court has held time and time again, both within and outside of the
school context, that the mere fact that someone might take offense
at the content of the speech is not sufficient justification for
prohibiting it.” 240 F.3d at 215; see also Tinker, 393 U.S. at 509
(holding school officials cannot prohibit student speech based upon
the desire to avoid “discomfort and unpleasantness”).
19
The School District likens this case to the above cases by
contending that the profile was accusatory and aroused suspicions
among the school community about McGonigle’s character
because of the profile’s references to his engaging in sexual
misconduct. As explained above, however, this contention is
simply not supported by the record. The profile was so outrageous
that no one could have taken it seriously, and no one did. Thus, it
was clearly not reasonably foreseeable that J.S.’s speech would
create a substantial disruption or material interference in school,
and this case is therefore distinguishable from the student speech
at issue in Doninger, Lowery, and LaVine.
Moreover, unlike the students in Doninger, Lowery, and
LaVine, J.S. did not even intend for the speech to reach the school
– in fact, she took specific steps to make the profile “private” so
that only her friends could access it. The fact that her friends
happen to be Blue Mountain Middle School students is not
surprising, and does not mean that J.S.’s speech targeted the
school. Finally, any suggestion that, absent McGonigle’s actions,
a substantial disruption would have occurred, is directly
undermined by the record. If anything, McGonigle’s response to
the profile exacerbated rather than contained the disruption in the
school.8
8
The dissent concludes that our decision creates a circuit
split with the Court of Appeals for the Second Circuit, positing that
that court has determined “that off-campus hostile and offensive
student internet speech that is directed at school officials results in
a substantial disruption of the classroom environment.” Dissenting
Op. 22. We disagree, largely because the dissent has overstated our
sister circuit’s law. Each case applying Tinker is decided on its
own facts, see Doninger, 527 F.3d at 53 (“We decide only that
based on the existing record, [the student’s] post created a
foreseeable risk of substantial disruption to the work and discipline
of the school . . . .”), Wisniewski v. Bd. of Educ. of Weedsport
Cent. Sch. Dist., 494 F.3d 34, 40 (2d Cir. 2007) (deciding case “on
this record”), so all “off-campus hostile and offensive student
internet speech” will not necessarily create a material and
substantial disruption at school nor will it reasonably lead school
officials to forecast substantial disruption in school. Further, the
20
The facts simply do not support the conclusion that the
School District could have reasonably forecasted a substantial
disruption of or material interference with the school as a result of
J.S.’s profile. Under Tinker, therefore, the School District violated
J.S.’s First Amendment free speech rights when it suspended her
for creating the profile.9
facts of the cases cited by the dissent in support of its proposition
that we have created a circuit split differ considerably from the
facts presented in this case. See, e.g., Doninger, 527 F.3d at 50-51;
Wisniewski, 494 F.3d at 35 (involving a student “sharing with
friends via the Internet a small drawing crudely, but clearly,
suggesting that a named teacher should be shot and killed”).
Accordingly, we do not perceive any circuit split and will continue
to decide each case on its individual facts.
9
The School District seizes upon language in Tinker that is
arguably dicta, claiming that it was justified in abridging J.S.’s
First Amendment rights because the profile defamed McGonigle.
School District Br. 28-33. In Tinker, the Court discussed its
concern with “the rights of other students to be let alone.” 393
U.S. at 508. As a result, the Court appeared to indicate that school
officials could stop conduct that would “impinge upon the rights of
other students.” Id. at 509. Later in the opinion, the Court
reiterated the point, but referred simply to “invasion of the rights
of others.” Id. at 513. Although McGonigle is not a student, the
School District claims J.S’s speech is not immunized by the First
Amendment because McGonigle’s right to be free from defamation
fits within this language in Tinker. We are not aware of any
decisions analyzing whether this language applies to anyone other
than “students,” but we do note that our cases have employed both
of these clauses. See, e.g., Walker-Serrano, 325 F.3d at 416-17;
Sypniewski, 307 F.3d at 264, 265; Saxe, 240 F.3d at 214, 217. We
further note there is a danger in accepting the School District’s
argument: if that portion of Tinker is broadly construed, an
assertion of virtually any “rights” could transcend and eviscerate
the protections of the First Amendment. See generally Snyder v.
Phelps, 131 S. Ct. 1207 (2011) (noting that the First Amendment
imposes limitations on the ability to recover in tort). In any event,
we agree with J.S. that, as a matter of law, McGonigle could not
21
C.
Because Tinker does not justify the School District’s
suspension of J.S., the only way for the punishment to pass
constitutional muster is if we accept the School District’s argument
– and the District Court’s holding – that J.S.’s speech can be
prohibited under the Fraser exception to Tinker.10 The School
District argues that although J.S.’s speech occurred off campus, it
was justified in disciplining her because it was “lewd, vulgar, and
offensive [and] had an effect on the school and the educational
mission of the District.” School District Br. 7. The School
District’s argument fails at the outset because Fraser does not apply
to off-campus speech. Specifically in Morse, Chief Justice
Roberts, writing for the majority, emphasized that “[h]ad Fraser
delivered the same speech in a public forum outside the school
context, it would have been protected.” 551 U.S. at 405 (citing
Cohen v. Cal., 403 U.S. 15 (1971)).11 The Court’s citation to the
Cohen decision is noteworthy. The Supreme Court in Cohen held,
succeed in his claim that the profile violated his right to be free
from defamation. See Hustler Magazine, Inc. v. Falwell, 485 U.S.
46, 57 (1988) (holding that a libel claim cannot survive where no
reasonable observer can understand the statements to be describing
actual facts or events); Wecht v. PG Publ’g Co., 510 A.2d 769, 774
(Pa. Super Ct. 1986) (“Even the most inattentive reader would not
accept this article as a factual narrative. Considering the totality of
the printed material . . . we find this publication incapable of
defamatory meaning.”); see also Davis v. Monroe County Bd. of
Educ., 526 U.S. 629, 652 (1999) (holding “simple acts of teasing
and name-calling” are not actionable).
10
Indisputably, neither Kuhlmeier nor Morse governs this
case.
11
Notably, in Morse, Chief Justice Roberts also cited Justice
Brennan’s concurrence in Fraser, which noted, “[i]f respondent had
given the same speech outside of the school environment, he could
not have been penalized simply because government officials
considered his language to be inappropriate.” Fraser, 478 U.S. at
688 (Brennan, J., concurring) (citing Cohen, 403 U.S. 15).
22
in a non-school setting, that a state may not make a “single four-
letter expletive a criminal offense.” 403 U.S. at 26. Accordingly,
Chief Justice Roberts’s reliance on the Cohen decision reaffirms
that a student’s free speech rights outside the school context are
coextensive with the rights of an adult.
Thus, under the Supreme Court’s precedent, the Fraser
exception to Tinker does not apply here. In other words, Fraser’s
“lewdness” standard cannot be extended to justify a school’s
punishment of J.S. for use of profane language outside the school,
during non-school hours.12
The School District points out that “a hard copy or printout
of the profile actually came into the school.” School District Br.
22. However, the fact that McGonigle caused a copy of the profile
to be brought to school does not transform J.S.’s off-campus
speech into school speech. The flaws of a contrary rule can be
illustrated by extrapolating from the facts of Fraser itself. As
discussed above, the Supreme Court emphasized that Fraser’s
speech would have been protected had he delivered it outside the
12
The School District notes that the courts in Doninger and
Bethlehem Area School District suggested that Fraser applies to
vulgar off-campus speech. See Doninger, 527 F.3d at 49 (“It is not
clear . . . [whether] Fraser applies to off-campus speech.”);
Bethlehem Area Sch. Dist., 807 A.2d at 867 (“[W]e are not
convinced that reliance solely on Tinker is appropriate.”). Not only
are these cases not binding on this Court, but also both Doninger
and Bethlehem Area School District ultimately relied on Tinker,
not Fraser, in upholding school censorship. Thus, the courts’
suggestion that the Fraser standard may apply to off-campus speech
is dicta. Most importantly, that dicta is undermined directly by
Chief Justice Roberts’s statement in Morse: “Had Fraser delivered
the same speech in a public forum outside the school context, it
would have been protected.” 551 U.S. at 405 (citing Cohen, 403
U.S. 15). The most logical reading of Chief Justice Roberts’s
statement prevents the application of Fraser to speech that takes
place off-campus, during non-school hours, and that is in no way
sponsored by the school.
23
school. Presumably, this protection would not be lifted if a school
official or Fraser’s fellow classmate overheard the off-campus
speech, recorded it, and played it to the school principal.13
Similarly here, the fact that another student printed J.S.’s profile
and brought it to school at the express request of McGonigle does
not turn J.S.’s off-campus speech into on-campus speech.
Under these circumstances, to apply the Fraser standard to
justify the School District’s punishment of J.S.’s speech would be
to adopt a rule that allows school officials to punish any speech by
a student that takes place anywhere, at any time, as long as it is
about the school or a school official, is brought to the attention of
a school official, and is deemed “offensive” by the prevailing
authority. Under this standard, two students can be punished for
using a vulgar remark to speak about their teacher at a private
party, if another student overhears the remark, reports it to the
school authorities, and the school authorities find the remark
“offensive.” There is no principled way to distinguish this
hypothetical from the facts of the instant case.
Accordingly, we conclude that the Fraser decision did not
give the School District the authority to punish J.S. for her off-
campus speech.
* * * * *
Neither the Supreme Court nor this Court has ever allowed
schools to punish students for off-campus speech that is not school-
sponsored or at a school-sponsored event and that caused no
substantial disruption at school. We follow the logic and letter of
these cases and reverse the District Court’s grant of summary
judgment in favor of the School District and denial of J.S.’s motion
for summary judgment on her free speech claim. An opposite
holding would significantly broaden school districts’ authority over
student speech and would vest school officials with dangerously
13
Note that the question of whether a school has the
authority to punish a student who brings vulgar speech into school
is separate from whether the school can punish the source of that
speech.
24
overbroad censorship discretion. We will remand to the District
Court to determine appropriate relief on this claim.
IV.
We next turn to the argument of J.S.’s parents that the
School District violated their Fourteenth Amendment due process
right to raise their child in the manner that they saw fit.
Specifically, they argue that, in disciplining J.S. for conduct that
occurred in her parents’ home during non-school hours, the School
District interfered with their parental rights.
As the Supreme Court has noted, “it cannot now be doubted
that the Due Process Clause of the Fourteenth Amendment protects
the fundamental right of parents to make decisions concerning the
care, custody, and control of their children.” Troxel v. Granville,
530 U.S. 57, 66 (2000). This liberty interest, however, is not
absolute, Anspach v. City of Phila., 503 F.3d 256, 261 (3d Cir.
2007), and “there may be circumstances in which school
authorities, in order to maintain order and a proper educational
atmosphere in the exercise of police power, may impose standards
of conduct on students that differ from those approved by some
parents,” Gruenke v. Seip, 225 F.3d 290, 304 (3d Cir. 2000).
Should the school policies conflict with the parents’ liberty interest,
the policies may only prevail if they are “tied to a compelling
interest.” Id. at 305.
A conflict with the parents’ liberty interest will not be
lightly found, and, indeed, only occurs when there is some
“manipulative, coercive, or restraining conduct by the State.”
Anspach, 503 F.3d at 266. In other words, the parents’ liberty
interest will only be implicated if the state’s action “deprived them
of their right to make decisions concerning their child,” and not
when the action merely “complicated the making and
implementation of those decisions.” C.N. v. Ridgewood Bd. of
Educ., 430 F.3d 159, 184 (3d Cir. 2005). On the other hand,
however, the level of interference required to find a conflict
between the school district’s policy and the parents’ liberty interest
may vary depending on the significance of the subject at issue, and
25
the threshold for finding a conflict will not be as high when the
school district’s actions “strike at the heart of parental decision-
making authority on matters of the greatest importance.” Id.
In this case, J.S.’s parents allege that the School District
interfered with their ability to determine what out-of-school
behavior warranted discipline and what form that discipline took.
This, however, is not an accurate description of the impact that the
School District’s actions had upon J.S.’s parents’ ability to make
decisions concerning their daughter’s upbringing. The School
District’s actions in no way forced or prevented J.S.’s parents from
reaching their own disciplinary decision, nor did its actions force
her parents to approve or disapprove of her conduct. Further, there
was no triggering of the parents’ liberty interest due to the subject
matter of the School District’s involvement; a decision involving
a child’s use of social media on the internet is not a “matter[] of the
greatest importance.” Compare C.N., 430 F.3d at 184-85
(determining that no due process violation occurred when a school,
without first receiving permission from parents, distributed surveys
to students that included questions about sexual activity and
substance abuse), with Gruenke, 225 F.3d at 306-07 (finding a due
process violation when a school coach did not inform a student’s
parents of their daughter’s positive pregnancy test). Under these
circumstances, we cannot find that J.S.’s parents’ liberty interest
was implicated, and will affirm the District Court’s grant of
summary judgment on their Fourteenth Amendment due process
claim.
V.
Finally, J.S. challenges the Blue Mountain Student-Parent
Handbook (“Handbook”) and the Acceptable Use of the
Computers, Network, Internet, Electronic Communications System
and Information Policy (“AUP”) as unconstitutionally overbroad
and vague. Relying largely on the testimony of McGonigle and
Romberger, J.S. encourages this Court to strike down these School
District policies.
26
“A regulation is unconstitutional on its face on overbreadth
grounds where there is []‘a likelihood that the statute’s very
existence will inhibit free expression’ by ‘inhibiting the speech of
third parties who are not before the Court.’” Saxe, 240 F.3d at 214
(quoting Members of City Council v. Taxpayers for Vincent, 466
U.S. 789, 799 (1984)). “[T]he overbreadth doctrine is not casually
employed,” Sypniewski, 307 F.3d at 258 (quoting L.A. Police
Dep’t v. United Reporting Publ’g Corp., 528 U.S. 32, 39 (1999)),
and before concluding that a law is unconstitutionally overbroad,
the court must first determine that the regulation is not “susceptible
to a reasonable limiting construction,” Saxe, 240 F.3d at 215.
Further, a law will only be struck down as overbroad if the
overbreadth is “not only real but substantial in relation to the
statute’s plainly legitimate sweep.” Broadrick v. Oklahoma, 413
U.S. 601, 615 (1973). In undertaking this analysis in the public
school setting, however, it is important to recognize that the school
district may permissibly regulate a broader range of speech than
could be regulated for the general public, giving school regulations
a larger plainly legitimate sweep. Sypniewski, 307 F.3d at 259.
Due to this consideration and concerns about the responsibilities
with which public schools are tasked, we have adopted a “more
hesitant application,” id. at 259, of the overbreadth doctrine within
public schools. Accordingly, “a school disciplinary policy will be
struck down as overbroad only after consideration of the special
needs of school discipline has been brought to bear together with
the law’s general hesitation to apply this ‘strong medicine.’” Id. at
260.
J.S.’s argument that the School District’s policies are
overbroad in that they reach out-of-school speech fails on factual
grounds, as the policies are explicitly limited to in-school speech.
The Handbook states that the authority of the principals and
teachers within the District is limited to “those times when students
are under the direct control and supervision of school district
officials.” App. 58. In addition, the specific policy on computer
usage in the Handbook states that “[s]tudents may not create, copy,
receive, or use data, language or graphics which are obscene,
threatening, abusive, or otherwise inappropriate at school or on
sign out equipment at home.” App. 61. The AUP is similarly
limited in scope, and defines “computer” as
27
any school district owned, leased or licensed or
employee, student and guest owned personal
hardware, software or other technology used on
school district premises or at school district events,
or connected to the school district network,
containing school district programs or school district
or student data . . . attached or connected to, installed
in, or otherwise used in connection with a computer.
App. 40. We need not give these regulations a limiting
construction, therefore, as the School District has already limited
the reach of its policies.
What J.S. challenges here is not the policies themselves, but
the interpretation of these policies that allows the School District
to apply its regulations beyond the times when she was within the
direct control and supervision of the School District, or beyond
times when she was using a school computer. The
misinterpretation of these policies by specific individuals, however,
does not make the policies overbroad. Although the Handbook and
AUP can be applied in a way that violates a student’s constitutional
rights, as happened in this case, the regulations themselves are not
constitutionally infirm on the basis of being overbroad. For this
reason, we will affirm the District Court’s grant of summary
judgment on this issue.
Our vagueness inquiry is grounded in the notice requirement
of the Fourteenth Amendment’s due process clause. City of
Chicago v. Morales, 527 U.S. 41, 56 (1999). A statute will be
considered void for vagueness if it does not allow a person of
ordinary intelligence to determine what conduct it prohibits, or if
it authorizes arbitrary enforcement. Hill v. Colorado, 530 U.S.
703, 732 (2000). This standard, however, is more relaxed in the
school environment: “Given the school’s need to be able to impose
disciplinary sanctions for a wide range of unanticipated conduct
disruptive of the educational process, the school disciplinary rules
need not be as detailed as a criminal code which imposes criminal
sanctions.” Fraser, 478 U.S. at 686. This Court has declared that
school disciplinary rules should be struck down “only when the
vagueness is especially problematic,” Sypniewski, 307 F.3d at 266,
28
and has upheld a school disciplinary policy that required students
to conform to “‘an imprecise but comprehensible normative
standard,’” id. (quoting Coates v. City of Cincinnati, 402 U.S. 61,
614 (1971)).
Again, we will affirm the District Court’s determination that
the School District’s policies were not facially unconstitutional.
The policies clearly define when and where they apply. Further,
the content of the regulations is not impermissibly vague.
Although the AUP prohibits a broad range of uses of the School
District’s computers (including accessing or transmitting “material
likely to be offensive or objectionable to recipients,” App. 47), the
addition of specific examples of impermissible usages draws this
policy within the purview of Sypniewski, and articulates a
comprehensible normative standard. For example, under the
general prohibition against offensive material, the AUP specifically
prohibits defamatory, sexually explicit, discriminatory, and violent
material. App. 47-48. There can be no doubt that J.S. would have
expected to have been punished under the Handbook and the AUP
had she taken the same actions from a school computer or while on
school grounds. In this sense, they establish a comprehensible
normative standard that is appropriate for use in disciplining
student misconduct.
As with the discussion of overbreadth above, J.S.’s
argument seems to rely on specific individuals’ misinterpretations
of the policies, and not the invalidity of the policies themselves. It
was the extension and application of these policies to speech
undertaken from her personal computer at her parents’ home to
which she objects here. This punishment, however, was not
allowed by the vagueness of the policies. Instead, it was
implemented despite the fact that these policies quite clearly did
not extend to the conduct at issue. As the policies are not
unconstitutionally vague, much less vague in a manner that is
“especially problematic,” we will affirm the District Court’s grant
of summary judgment on this issue.
29
VI.
For the foregoing reasons, the District Court’s judgment
will be affirmed in part, reversed in part and remanded.
30
J.S. v. Blue Mountain School District, No. 08-4138
SMITH, Circuit Judge, concurring, with whom McKEE,
Chief Judge, SLOVITER, FUENTES, and HARDIMAN,
Circuit Judges, join.
Because the school district suspended J.S. for speech
that she engaged in at home on a Sunday evening, I fully
agree with the majority‘s conclusion that it violated J.S.‘s
First Amendment rights. I write separately to address a
question that the majority opinion expressly leaves open:
whether Tinker applies to off-campus speech in the first
place. I would hold that it does not, and that the First
Amendment protects students engaging in off-campus speech
to the same extent it protects speech by citizens in the
community at large.
As a general matter, the First Amendment strictly
protects speech regardless of whether it is disruptive,
offensive, vulgar, or insulting. See Texas v. Johnson, 491
U.S. 397, 408–10, 414 (1989); Hustler Magazine v. Falwell,
485 U.S. 46, 54–57 (1988); Cohen v. California, 403 U.S. 15,
25–26 (1971). In Tinker v. Des Moines Independent
Community School District, 393 U.S. 503 (1969), the
Supreme Court considered whether different rules should
govern student speech inside public schools. Although it
observed that students do not ―shed their constitutional rights
to freedom of speech or expression at the schoolhouse gate,‖
the Court determined that, ―in light of the special
characteristics of the school environment‖ and the need to
defer to school officials‘ authority ―to prescribe and control
conduct in the schools,‖ the First Amendment‘s ordinarily
strict protection of speech rights should be relaxed in the
public-school context. Id. at 506–08. The Court thus
1
concluded that some otherwise-protected speech can be
suppressed in the school setting, but only if it ―would
materially and substantially disrupt the work and discipline of
the school.‖ Id. at 513.
In later cases, the Court recognized exceptions to
Tinker, holding that even non-disruptive school speech can be
restricted if it is lewd or vulgar, Bethel Sch. Dist. 403 v.
Fraser, 478 U.S. 675, 685 (1986), if it is school-sponsored
and the restriction is ―reasonably related to legitimate
pedagogical concerns,‖ Hazelwood Sch. Dist. v. Kuhlmeier,
484 U.S. 260, 273 (1988), or if it is reasonably viewed as
promoting the use of illegal drugs, Morse v. Frederick, 551
U.S. 393, 403 (2007).
Courts agree that Fraser, Kuhlmeier, and Morse apply
solely to on-campus speech (I use the phrase ―on-campus
speech‖ as shorthand for speech communicated at school or,
though not on school grounds, at a school-sanctioned event,
see Morse, 551 U.S. at 400–01). Indeed, the Supreme Court
has expressly recognized that Fraser does not extend ―outside
the school context,‖ id. at 405 (citing Cohen), and three
justices have observed (without objection from the other six)
that speech promoting illegal drug use, even if proscribable in
a public school, would ―unquestionably‖ be protected if
uttered elsewhere, id. at 434 (Stevens, J., joined by Souter and
Ginsburg, JJ., dissenting). Lower courts, however, are
divided on whether Tinker‘s substantial-disruption test
governs students‘ off-campus expression. Compare Porter v.
Ascension Parish Sch. Bd., 393 F.3d 608, 615, 620 (5th Cir.
2004) (Tinker does not apply to students‘ off-campus speech),
Thomas v. Bd. of Educ., Granville Cent. Sch. Dist., 607 F.2d
1043, 1050, 1053 n.18 (2d Cir. 1979) (distinguishing Tinker
in a case involving off-campus expression), and Klein v.
2
Smith, 635 F. Supp. 1440, 1441 (D. Me. 1986), with
Wisniewski v. Bd. of Educ. of the Weedsport Cent. Sch. Dist.,
494 F.3d 34, 39 & n.4 (2d Cir. 2007) (Tinker applies to off-
campus speech in certain circumstances), J.C. ex rel. R.C. v.
Beverly Hills Unified Sch. Dist., 711 F. Supp. 2d 1094, 1104,
1107 (C.D. Cal. 2010) (same), and Killion v. Franklin Reg’l
Sch. Dist., 136 F. Supp. 2d 446, 454–55 (W.D. Pa. 2001). In
my view, the decisions holding that Tinker does not apply to
off-campus speech have the better of the argument.
Tinker‘s holding is expressly grounded in ―the special
characteristics of the school environment,‖ 393 U.S. at 506,
and the need to defer to school officials‘ authority ―to
prescribe and control conduct in the schools,‖ id. at 507.1
The Court‘s later school-speech cases underscored Tinker‘s
narrow reach. Tinker, according to the Court‘s decision in
Fraser, rests on the understanding that ―the constitutional
rights of students in public school are not automatically
coextensive with the rights of adults in other settings,‖ see
478 U.S. at 682, and that students are a captive audience
while at school, see id. at 684. See also id. at 688 n.1
1
Tinker did say that the substantial-disruption standard governs
student speech ―in class or out of it.‖ 393 U.S. at 513. Read in
context, though, it is clear that the phrase ―or out of it‖ does not
mean ―out of school‖ but rather ―in the cafeteria, or on the playing
field, or on the campus during the authorized hours.‖ Id. at 512–
13. See also id. at 508 (―Any word spoken, in class, in the
lunchroom, or on the campus, that deviates from the views of
another person may start an argument or cause a disturbance. But
our Constitution says we must take this risk . . . .‖) (emphasis
added). Had the Court intended to vest schools with the
unprecedented authority to regulate students‘ off-campus speech,
surely it would have done so unambiguously.
3
(Brennan, J., concurring in judgment) (stating that the Court‘s
school-speech cases ―obviously do not [apply] outside of the
school environment‖). Kuhlmeier, moreover, described
Tinker as ―address[ing] educators‘ ability to silence a
student‘s personal expression that happens to occur on the
school premises.‖ 484 U.S. at 271. Finally, in Morse, the
Court took care to refute the contention that the plaintiff‘s
speech, which took place at a school field trip, did not occur
―at school.‖ 551 U.S. at 401. In concluding that the
plaintiff‘s suit was governed by the Tinker line of cases, the
Court stressed that the field trip ―occurred during normal
school hours,‖ that it ―was sanctioned by [the principal] as an
approved social event or class trip,‖ that ―[t]eachers and
administrators were interspersed among the students and
charged with supervising them,‖ and that the ―high school
band and cheerleaders performed.‖ Id. at 400–01. If Tinker
and the Court‘s other school-speech precedents applied to off-
campus speech, this discussion would have been unnecessary.
See also id. at 406 (―‗First . . . Amendment rights [] are
different in public schools than elsewhere.‘‖) (quoting
Veronia Sch. Dist. 47J v. Acton, 515 U.S. 646, 656 (1995)).
Indeed, in his Morse concurrence, Justice Alito essentially
recognized that Tinker‘s substantial-disruption test does not
apply to students‘ off-campus expression. See id. at 422
(Alito, J., concurring) (noting that Tinker allows schools to
regulate ―in-school student speech . . . in a way that would not
be constitutional in other settings‖). Accord Sypniewski v.
Warren Hills Reg’l Bd. of Educ., 307 F.3d 243, 259 (3d Cir.
2002) (stating that under Tinker, a ―broader . . . area of speech
can be regulated at school than outside school‖).
The Second Circuit addressed a school‘s punishment
of off-campus speech in Thomas v. Board of Education,
4
Granville Central School District, supra. There, a public
high school suspended students for publishing an
―underground‖ newspaper, which was ―saturated with
distasteful sexual satire, including an editorial on
masturbation and articles alluding to prostitution, sodomy,
and castration.‖ 607 F.2d at 1045 n.3. Although the students
had composed ―an occasional article‖ in the school building
after classes, the rest of the publication process, including
printing and distribution of the newspaper, had occurred off
campus after school hours. Id. at 1045. The students were
suspended after a teacher confiscated a copy of the newspaper
that another student had taken to school. In the ensuing §
1983 suit, the Second Circuit concluded that Tinker did not
control because the newspaper was best viewed as off-
campus speech. Id. at 1050. The court therefore applied
general First Amendment law, determined that the school‘s
actions were unconstitutional, and invalidated the students‘
suspensions. Id. at 1050–53.
The Fifth Circuit followed suit in Porter v. Ascension
Parish School Board, supra. There, while sitting in the
privacy of his own home, a high school student drew a picture
of his school being attacked by missiles, helicopters, and
armed assailants. 393 F.3d at 611. The student stored the
picture in his closet. The school learned of the drawing when
the student‘s younger brother inadvertently took it there. The
school expelled the student. In the civil-rights action that
followed, the Fifth Circuit determined that the picture
amounted to off-campus speech and thus declined to apply
Tinker, holding that it governs only ―student expression ‗that .
. . occur[s] on the school premises.‘‖ Id. at 615, 619 (quoting
Kuhlmeier, 484 U.S. at 271). Applying general First
Amendment principles, the court concluded that the picture
5
was not a ―true threat,‖ see Watts v. United States, 394 U.S.
705 (1969), and therefore was protected expression. Id. at
617–18. See also Bystrom v. Fridley High Sch., Indep. Sch.
Dist. No. 14, 822 F.2d 747, 750 (8th Cir. 1987) (Arnold, J.);
Lee Goldman, Student Speech and the First Amendment: A
Comprehensive Approach, 63 Fla. L. Rev. 395, 430 (2011)
(arguing that Tinker should not be applied to students‘ off-
campus speech); Mary-Rose Papandrea, Student Speech
Rights in the Digital Age, 60 Fla. L. Rev. 1027, 1093 (2008)
(―[T]he Tinker approach to student speech is ill-suited to deal
with off-campus expression.‖).
I agree with Thomas and Porter, and I believe that
various post-Tinker pronouncements of the Supreme Court
support their ratio decidendi. Applying Tinker to off-campus
speech would create a precedent with ominous implications.
Doing so would empower schools to regulate students‘
expressive activity no matter where it takes place, when it
occurs, or what subject matter it involves—so long as it
causes a substantial disruption at school. Tinker, for example,
authorizes schools to suppress political speech—speech ―at
the core of what the First Amendment is designed to protect,‖
Morse, 551 U.S. at 403—if it substantially disrupts school
activities. See 393 U.S. at 513. Suppose a high school
student, while at home after school hours, were to write a
blog entry defending gay marriage. Suppose further that
several of the student‘s classmates got wind of the entry, took
issue with it, and caused a significant disturbance at school.
While the school could clearly punish the students who acted
disruptively, if Tinker were held to apply to off-campus
speech, the school could also punish the student whose blog
entry brought about the disruption. That cannot be, nor is it,
the law.
6
To be sure, this case does not involve political speech.
J.S. simply published an insulting (and, I would say, mean-
spirited) parody of her principal on Myspace. But the lack of
political content is irrelevant for First Amendment purposes.
There is no First Amendment exception for offensive speech
or for speech that lacks a certain quantum of social value.
Snyder v. Phelps, 131 S. Ct. 1207, 1219–20 (2011); United
States v. Stevens, 130 S. Ct. 1577, 1586, 1591 (2010); Hustler
Magazine, 485 U.S. at 55; Cohen, 403 U.S. at 25–26; FCC v.
Pacifica Found., 438 U.S. 726, 763 (1978) (Brennan, J.,
dissenting) (observing that the Court has consistently
―refuse[d] to embrace the notion, completely antithetical to
basic First Amendment values, that the degree of protection
the First Amendment affords protected speech varies with the
social value ascribed to that speech by five [justices]‖). It is
worth pointing out, as well, that although speech like J.S.‘s
may appear to be worthless, it does enable citizens to vent
their frustrations in nonviolent ways. We ought not to
discount the importance in our society of such a ―safety
valve.‖ See Rodney A. Smolla, Free Speech in an Open
Society 13 (1992).
Furthermore, if Tinker were applied to off-campus
speech, there would be little reason to prevent school officials
from regulating adult speech uttered in the community. Cf.
Planned Parenthood of Cent. Mo. v. Danforth, 428 U.S. 52,
74 (1976) (noting that adults and children generally enjoy the
same constitutional rights). Adults often say things that give
rise to disruptions in public schools. Those who championed
desegregation in the 1950s and 60s caused more than a minor
disturbance in the southern schools. Of course, the prospect
of using Tinker to silence such speakers is absurd. But the
absurdity stems not from applying Tinker to off-campus
7
speech uttered by adults and students alike, but from the
antecedent step of extending Tinker beyond the public-school
setting to which it is so firmly moored. See Clay Calvert, Off-
Campus Speech, On-Campus Punishment: Censorship of the
Emerging Internet Underground, 7 B.U. J. Sci. & Tech. L.
243, 280–81 (2001). I would hold that Tinker does not
govern a student‘s off-campus expression.2
But that is only half the battle. The other half: how
can one tell whether speech takes place on or off campus?
Answering this question will not always be easy. See Morse,
551 U.S. at 401. The answer plainly cannot turn solely on
where the speaker was sitting when the speech was originally
uttered. Such a standard would fail to accommodate the
somewhat ―everywhere at once‖ nature of the internet. So,
for example, I would have no difficulty applying Tinker to a
case where a student sent a disruptive email to school faculty
from his home computer. Regardless of its place of origin,
speech intentionally directed towards a school is properly
considered on-campus speech. On the other hand, speech
originating off campus does not mutate into on-campus
speech simply because it foreseeably makes its way onto
campus. See Layshock v. Hermitage Sch. Dist., --- F.3d ---
(3d Cir. 2011) (en banc); Papandrea, supra, at 1090–92. A
bare foreseeability standard could be stretched too far, and
would risk ensnaring any off-campus expression that
happened to discuss school-related matters. See Thomas, 607
F.2d at 1053 n.18.
2
Assuming arguendo that Tinker did apply to students‘ out-of-
school speech, I agree with the majority that the school district has
failed to satisfy the substantial-disruption test.
8
In any event, this case does not require us to precisely
define the boundary between on- and off-campus speech,
since it is perfectly clear that J.S.‘s speech took place off
campus. J.S. created the Myspace profile at home on a
Sunday evening; she did not send the profile to any school
employees; and she had no reason to know that it would make
its way onto campus. In fact, she took steps to limit
dissemination of the profile, and the Myspace website is
blocked on school computers. If ever speech occurred
outside of the school setting, J.S.‘s did so.
Having determined that J.S.‘s speech took place off
campus, I would apply ordinary First Amendment principles
to determine whether it was protected. I agree with the
majority that this was protected speech. The speech was not
defamatory, obscene, or otherwise unprotected. See Hustler
Magazine, 485 U.S. at 57; Miller v. California, 413 U.S. 15
(1973). J.S.‘s suspension, then, violated the First
Amendment.
* * *
J.S. said vulgar, offensive things about her principal on
Myspace. And she went beyond that. She wrote cutting,
mean-spirited things about members of his family. If we
could suppress her speech without silencing other, more
deserving speakers, public discourse would suffer no harm.
But courts have long disclaimed the ability to draw a
principled distinction between ―worthless‖ and ―valuable‖
speech. We must tolerate thoughtless speech like J.S.‘s in
order to provide adequate breathing room for valuable, robust
speech—the kind that enriches the marketplace of ideas,
promotes self-government, and contributes to self-
determination. Without condoning her disrespectful and
9
mean-spirited tone, I support J.S.‘s right to say the things she
said free from government punishment.
10
1
FISHER, Circuit Judge, dissenting, with whom SCIRICA,
RENDELL, BARRY, JORDAN, and VANASKIE, Circuit
Judges, join.
Today‟s holding severely undermines schools‟
authority to regulate students who “materially and
substantially disrupt the work and discipline of the school.”
Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503,
513 (1969). While I agree with the majority‟s apparent
adoption of the rule that off-campus student speech can rise to
the level of a substantial disruption, I disagree with the
Court‟s application of that rule to the facts of this case. The
majority misconstrues the facts. In doing so, it allows a
student to target a school official and his family with
malicious and unfounded accusations about their character in
vulgar, obscene, and personal language. I fear that our Court
leaves schools defenseless to protect teachers and school
officials against such attacks and powerless to discipline
students for the consequences of their actions.
J.S., an eighth-grade student at Blue Mountain Middle
School, was upset with her principal James McGonigle for
disciplining her for dress-code violations, and she created a
MySpace page in retaliation. At the URL
http://www.myspace.com/kidsrockmybed, J.S. accused her
principal of having sex in his office, “hitting on students and
their parents,” and being a “sex addict.” She called him a
“dick head,” stated that he was “put on this world with a
small dick,” and called him a “fagass.” She stated that his
wife “looks like a man” and that his son “looks like a gorilla.”
She stated that the principal enjoys “riding the fraintrain,” – a
reference to his wife Debra Frain, who worked at the school
1
as a guidance counselor – and that “it‟s a slow ride but you‟ll
get there eventually.”
I respectfully dissent from the majority‟s ruling that
the Blue Mountain School District‟s ten-day suspension of
J.S. for making false accusations against McGonigle violated
her First Amendment right to free speech. The majority holds
that “[t]he facts in this case do not support the conclusion that
a forecast of substantial disruption was reasonable.” Maj. Op.
at 15. But the majority makes light of the harmful effects of
J.S.‟s speech and the serious nature of allegations of sexual
misconduct. Broadcasting a personal attack against a school
official and his family online to the school community not
only causes psychological harm to the targeted individuals
but also undermines the authority of the school. It was
permissible for the School District to discipline J.S. because
substantial disruption was reasonably foreseeable.
I.
I disagree with the majority‟s assessment that the four
opinions of the Supreme Court on student speech “compel the
conclusion that the School District violated J.S.‟s First
Amendment free speech rights.” Maj. Op. at 11. In fact, the
Supreme Court has never addressed whether students have
the right to make off-campus speech that targets school
officials with malicious, obscene, and vulgar accusations. In
Tinker, the Court examined whether a school had the
authority to prevent students from wearing black arm bands
on campus in protest of the Vietnam War. 393 U.S. 503. In
Bethel School District v. Fraser, the Court held that a school
could suspend a student for giving an obscene and vulgar
2
speech on campus at a school-sponsored event. 478 U.S. 675,
685 (1986). The Court in Hazelwood School District v.
Kuhlmeier ruled that a school could exercise editorial control
over the contents of a student newspaper so long as it was
“reasonably related to legitimate pedagogical concerns.” 484
U.S. 260, 273 (1988). And in Morse v. Frederick, the Court
determined that a school could sanction a student for
unfurling a banner that promoted illegal drug use at a school-
approved event. 551 U.S. 393, 403 (2007). None of these
decisions control the facts of this case nor do they compel a
conclusion in favor of J.S.
The Supreme Court has only briefly and ambiguously
considered whether schools have the authority to regulate
student off-campus speech. See Emily Gold Waldman,
Badmouthing Authority: Hostile Speech About School
Officials and the Limits of School Restrictions, 19 Wm. &
Mary Bill Rts. J. 591, 617-18 (2011). In Tinker, the Court
stated that “conduct by the student, in class or out of it, which
for any reason – whether it stems from time, place, or type of
behavior – materially disrupts classwork or involves
substantial disorder or invasion of rights of others is, of
course, not immunized by constitutional guarantee of freedom
of speech.” 393 U.S. at 513. But it is unclear if “in class or
out of it” means to distinguish the classroom from the world
beyond the schoolhouse gates, or if it simply means out of
class but in the cafeteria, schoolyard, or other areas on school
grounds. Again, in Kuhlmeier, the Court stated that,
We have . . . recognized that the First
Amendment rights of students in the public
schools “are not automatically coextensive with
3
the rights of adults in other settings,” Bethel
School District No. 403 v. Fraser, 478 U.S.
675, 682[] (1986), and must be “applied in light
of the special characteristics of the school
environment.” Tinker, []393 U.S.[] at 506[.] A
school need not tolerate student speech that is
inconsistent with its “basic educational
mission,” Fraser,[] 478 U.S.[] at 685,[] even
though the government could not censor similar
speech outside the school.
484 U.S. at 266. But the Court‟s meaning was left unclear.
Either the Court meant to distinguish the school‟s authority to
regulate student speech on campus from the school‟s
authority to regulate off-campus speech, or the Court was
simply contrasting the school‟s authority to regulate student
speech with the government‟s authority to regulate adult
speech. In Morse, the Court declined the opportunity to
determine whether schools have the authority to regulate off-
campus speech. Even though the student created the banner
at issue off campus and was off school grounds when he
unfurled it, the Court held that it was a school speech case
because the banner was displayed at a school-approved event
during normal school hours. Morse, 551 U.S. at 400-01. The
Court, however, did state in dicta that schools have more
limited authority to regulate obscene speech outside of the
school environment when it claimed that “[h]ad Fraser
delivered the same speech in a public forum outside the
school context, it would have been protected.” Id. at 404
(citing Cohen v. California, 403 U.S. 15 (1971)). But the
Court did not address the issue of whether schools can
4
regulate off-campus speech which causes substantial on-
campus disruption under Tinker.
II.
I believe that the rule adopted by the Supreme Court in
Tinker should determine the outcome of this case. Under
Tinker, we must examine whether J.S.‟s speech created a
significant threat of substantial disruption at the Middle
School. School authorities need not wait until the disruption
actually occurs if they are able to “demonstrate any facts
which might reasonably have led [them] to forecast
substantial disruption of or material interference with school
activities.” Tinker, 393 U.S. at 514. If the Middle School
reasonably forecasted substantial disruption, then it had the
authority to regulate J.S.‟s speech. The majority seems to
acknowledge just as much, but finds that “[t]he facts simply
do not support the conclusion that the School District could
have reasonably forecasted a substantial disruption of or
material interference with the school as a result of J.S.‟s
profile.” Maj. Op. at 21.
The majority reaches this conclusion by contrasting the
facts of Tinker with those of our case. It notes that at the time
of Tinker the United States had over 200,000 troops deployed
in Vietnam and the country was divided over the issue. The
majority cites the dissenting opinion of Justice Black who
argued that the record demonstrated that the black arm bands
worn by students in protest of the Vietnam War would
distract students and disrupt the classroom. And yet, notes
the majority, the Court in Tinker held that “„the record does
not demonstrate any facts which might reasonably have led
5
school authorities to forecast substantial disruption of or
material interference with school activities.‟” Maj. Op. at 15
(emphasis in original) (quoting Tinker, 593 U.S. at 514).
From a comparison with the facts of this case, the majority
draws the conclusion that J.S.‟s speech did not cause a
substantial disruption at the Middle School nor was it
reasonable to forecast a substantial disruption.
The majority is correct in finding it appropriate to
distinguish the facts of Tinker, but it fails to heed several
salient distinctions that compel the opposite conclusion. The
speech in Tinker was political speech, was not directed at the
school or at school officials, and was not vulgar, obscene,
malicious, or harmful. Moreover, the majority misconstrues
the facts of this case, making light of J.S.‟s accusations and
underestimating its impact.
A.
The speech at issue in Tinker did “not concern
aggressive, disruptive action or even group demonstrations. . .
. [It was] a silent, passive expression of opinion,
unaccompanied by any disorder or disturbance.” 393 U.S. at
508. The Court was concerned that peaceful and nonintrusive
political speech was censored by the school. The Court was
motivated by a fear of totalitarianism and the need to protect
freedom of expression to preserve the foundations of a
democratic system. What made the school‟s prohibition so
troubling was that it appeared to be a content-based regulation
of political speech. The school prohibited students from
protesting the war, whereas other students were permitted to
wear political buttons. Some even wore the Iron Cross, a
6
symbol traditionally associated with Nazism. “Clearly, the
prohibition of expression of one particular opinion, at least
without evidence that it is necessary to avoid material and
substantial interference with schoolwork or discipline, is not
constitutionally permissible.” Id. at 511. A government
entity regulating political speech that it did not agree with
was eerily similar to that of totalitarian regimes. “In our
system, state-operated schools may not be enclaves of
totalitarianism. . . . [Students] may not be confined to the
expression of those sentiments that are officially approved.”
Id.
In order to maintain a thriving democracy, students
cannot be unreasonably encumbered in their freedom to
express moral, political, and social ideals and beliefs. “„The
classroom is peculiarly the “marketplace of ideas.” The
Nation‟s future depends upon leaders trained through wide
exposure to that robust exchange of ideas which discovers
truth “out of a multitude of tongues, (rather) than through any
kind of authoritative selection.”‟” Id. at 512 (quoting
Keyishian v. Board of Regents, 385 U.S. 589, 603 (1967)
(internal citations omitted)). Schools should foster an
environment of learning that is vital to the functioning of a
democratic system and the maturation of a civic body.
Allowing for the expression of beliefs and opinions in
a robust but respectful environment encourages engagement,
promotes self-improvement, and furthers the search for truth.
The Court in Tinker embraced the freedom of speech as an
essential component of the educational system. “When he is
in the cafeteria, or on the playing field, or on the campus
during the authorized hours, he may express his opinions,
7
even on controversial subjects like the conflict in Vietnam, if
he does so without „materially and substantially interefer(ing)
with the requirements of appropriate discipline in the
operation of the school‟ and without colliding with the rights
of others.” Id. at 512-13 (alteration in original) (citation
omitted).
B.
J.S., by contrast, targeted her principal and her
principal‟s family with lewd, vulgar, and offensive speech.
She created a MySpace page using a photograph of
McGonigle that she had taken from the School District
website, and she publicly disseminated numerous hurtful
accusations. She accused McGonigle of sexual misconduct:
“fucking in [his] office,” “hitting on students and their
parents,” and being a “sex addict.” She insulted McGonigle
by calling him a “dick head,” stating that he was “put on this
world with a small dick,” and calling him a “fagass.” And
J.S. insulted his family. She stated that his wife “looks like a
man” and that his son “looks like a gorilla.” She stated that
the principal enjoys “riding the fraintrain” and that “it‟s a
slow ride but you‟ll get there eventually.”
The School found this speech to be in violation of
school policy because J.S. made “false accusations about the
school principal” and violated copyright law in using
McGonigle‟s picture. App. A70. This constituted a level IV
infraction because it involved “making a false accusation
about a school staff member,” id. A66, and the School
imposed a ten-day suspension.
8
J.S.‟s speech is not the type of speech that the Tinker
Court so vehemently protected. I agree with the majority that
the facts in the record fail to demonstrate substantial
disruption at the School. But the profile‟s potential to cause
disruption was reasonably foreseeable, and that is sufficient.1
Tinker, 393 U.S. at 514. Two forms of disruption were
foreseeable. First, the MySpace page posed a reasonably
foreseeable threat of interference with the educational
environment. If J.S.‟s speech went unpunished, it would
undermine McGonigle‟s authority and disrupt the educational
process. Second, J.S.‟s speech posed a reasonably
foreseeable threat of disrupting the operations of the
1
Today, our Court releases a separate opinion dealing
with school discipline of a student who created a MySpace
profile of his principal. See Layshock v. Hermitage Sch.
Dist., -- F.3d -- (3d Cir. 2011) (en banc). However, I find the
two cases distinguishable. Unlike the instant case, the school
district in Layshock did not argue on appeal that there was,
under Tinker, a nexus between the student‟s speech and a
substantial disruption of the school environment. Id. at Part
IV.2. This nexus, under Tinker, is the basis of my dissent in
this case. The Court in Layshock also holds, under Fraser,
that the student‟s speech could not be considered “on-
campus” speech just because it was targeted at the Principal
and other members of the school community and it was
reasonably foreseeable that school district and Principal
would learn about the MySpace profile. Id. at Part IV.3.
Layshock‟s holding, therefore, does not speak to the facts of
this case to which I believe Tinker applies.
9
classroom. It was foreseeable that J.S.‟s false accusations and
malicious comments would disrupt McGonigle and Frain‟s
ability to perform their jobs. I handle both forms of
disruption in turn. Finally, I discuss how the majority
misconstrues the facts to underestimate the foreseeable
impact of J.S.‟s speech.
1.
J.S.‟s speech posed a threat of substantial disruption to
the educational environment. The majority fails to recognize
the effects of accusations of sexual misconduct. J.S. created
the profile at the URL ending in: “kidsrockmybed.” She
accused McGonigle of having sex in his office, “hitting on
students and their parents,” and being a “sex addict.” The
profile stated that “I love children[ and] sex (any kind).”
Such accusations interfere with the educational process
by undermining the authority of school officials to perform
their jobs. In a case where a student referred to his assistant
principal as a “dick,” the district court noted:
Insubordinate speech always interrupts the
educational process because it is contrary to
principles of civility and respect that are
fundamental to a public school education.
Failing to take action in response to such
conduct would not only encourage the
offending student to repeat the conduct, but also
would serve to foster an attitude of disrespect
towards teachers and staff.
10
Posthumus v. Bd. of Educ. of the Mona Shores Pub. Sch., 380
F. Supp. 2d 891, 902 (W.D. Mich. 2005). J.S. did not only
refer to her principal as a “dick” but launched a vulgar attack
on his character and accused him of sexual misconduct. J.S.
embarrassed, belittled, and possibly defamed McGonigle. If
J.S. were not disciplined, it would demonstrate to the student
body that this form of speech is acceptable behavior –
whether on or off campus.
Further, accusing school officials of sexual misconduct
poses a foreseeable threat of diverting school resources
required to correct the misinformation and remedy confusion.
It was reasonably foreseeable that the accusations made in the
MySpace profile would be shared with parents and teachers.
McGonigle‟s character would come under investigation, and
his fitness to occupy a position of trust with adolescent
children would be questioned. It is inevitable that as more
students and parents learned of the profile, the School would
experience disruption. While Superintendent Joyce
Romberger may have dismissed the accusations as false
because she knew him,2 students and parents unfamiliar with
McGonigle may have had serious questions about
McGonigle‟s character and actions. Parents would become
concerned that their children were supervised by a man
accused of having sex in his office, being a “sex addict,” and
“hitting on” their children. It was reasonably foreseeable that
2
Romberger stated that she did not disclose any of the
allegations in the profile because she believed it consisted of
“lies” and “malicious comments” made by students angry at
McGonigle.
11
school administrators would have to spend a substantial
amount of time alleviating these concerns. The Middle
School acted reasonably in requesting the removal of the
MySpace page, contacting J.S.‟s parents, and suspending J.S.
for ten days. If such steps were not taken, it is likely that the
Middle School would have suffered substantial disruptions
because McGonigle‟s authority would have been severely
undermined and school resources would have been diverted
to alleviate the inevitable concerns.
2.
The majority also overlooks the substantial disruptions
to the classroom environment that follow from personal and
harmful attacks on educators and school officials. J.S.‟s
speech attacked McGonigle and Frain in personal and vulgar
terms and broadcasted it to the school community. This kind
12
of harassment has tangible effects on educators.3 It may
cause teachers to leave the school and stop teaching
altogether, and those who decide to stay are oftentimes less
effective. See Jina S. Yoon, Teacher Characteristics as
Predictors of Teacher-Student Relationships: Stress, Negative
Affect, and Self-Efficacy, 30 Soc. Behav. & Personality 485,
3
It is worth noting that these forms of online personal
attacks by students occur with some degree of frequency.
They are often directed at other students and have been called
“cyberbullying.” In a 2010 study, 20.8 percent of students
ages 10 to 18 years old stated that they had been
“cyberbullied” in their lifetime, and 7.5 percent stated that
they were “cyberbullied” within the previous 30 days, where
“cyberbullying” was defined as “when someone repeatedly
harasses, mistreats, or makes fun of another person online or
while using cell phones or other electronic devices.” Sameer
Hinduja & Justin W. Patchin, Cyberbullying Research Center,
available at http://www.cyberbullying.us/research.php. In a
different study from 2007 – perhaps reflecting the nebulous
concept of “cyberbullying” – 7 percent of students stated that
they had been victims of “self-defined cyberbullying.”
National School Board Association, Creating & Connecting:
Research and Guidelines on Online Social – And Educational
– Networking 6 (2007); see also M.I. Ybarra & J.K. Mitchell,
Online Aggressor/Targets, Aggressors and Targets: A
Comparison of Associated Youth Characteristics, 45 J. Child
Psychol. & Psychiatry 1308 (2004) (19 percent of youth were
on the giving or receiving end of online aggression in the
previous year).
13
491 (2002) (“Not only does teacher stress affect teachers‟
general attitude toward teaching, but also it is likely to
influence the quality of their relationships with students.”);
Suzanne Tochterman & Fred Barnes, Sexual Harassment in
the Classroom: Teachers as Targets, 7 Reclaiming Child &
Youth 21, 22 (1998) (noting that educators who are subject to
sexual harassment feel: “detachment; shame; horror;
uncertainty; demoralization; fear; feelings of being
unappreciated, targeted, objectified, belittled, and victimized;
sadness; anger; avoidance; feeling defeated; blame;
separation; and attack”). Educators become anxious and
depressed and feel unable to relate to their students. Id. They
lose their motivation to teach, and their students suffer as a
result. “Even if the school official remains at the school,
„anxious, depressed or disengaged teachers are less able to
sustain the academic engagement of their students,‟ thus
harming student motivation and behavior.” Waldman, supra
at 646 (quoting Benoit Galand, et al., School Violence and
Teacher Professional Disengagement, 77 Brit. J. of Educ.
Psychol. 465, 467 (2007)).
These studies are consistent with cases involving
hostile, vulgar, and obscene student speech directed at school
officials. In Wisniewski v. Board of Education of Weedsport
Central School District, the Second Circuit noted that a
teacher who was subjected to hostile student speech became
distressed and had to stop teaching the student‟s class. 494
F.3d 34, 35-36 (2d Cir. 2007). Similarly, in J.S. v. Bethlehem
Area School District, the teacher,
suffered stress, anxiety, loss of appetite, loss of
sleep, loss of weight, and a general sense of loss
14
of well being as a result of viewing the [hostile
and offensive student] web site. She suffered
from short-term memory loss and an inability to
go out of the house and mingle with crowds.
[The teacher] suffered headaches and was
required to take anti-anxiety/anti-depressant
medication.
807 A.2d 847, 852 (Pa. 2002). The teacher was unable to
return to school, and the “web site had a demoralizing impact
on the school community.” Id. In Schroeder v. Hamilton
School District, a teacher was subjected to anti-homosexual
speech from students and parents and suffered a “nervous
breakdown that ultimately resulted in his termination.” 282
F.3d 946, 950 (7th Cir. 2002). In our case, McGonigle stated
that he became distressed after viewing J.S.‟s MySpace
profile. He stated, “I was very upset and very angry, hurt,
and I can‟t understand why [J.S.] did this to me and my
family.” App. A333.
J.S.‟s speech had a reasonably foreseeable effect on
the classroom environment. In addition to causing a
diminution in respect for authority and a diversion of school
resources, J.S.‟s speech posed reasonably foreseeable
psychological harm to McGonigle and Frain that would
impact their ability to perform their jobs. Being subject to
such personal attacks, they may have been discouraged to
interact with students and perhaps even motivated to leave
without the institutional support of the School. Without
effective punishment, McGonigle and Frain would have been
less effective in fulfilling the educational mission of their
positions. Furthermore, if the Middle School did not punish
15
J.S., it was foreseeable that other students may have decided
to personally attack McGonigle, Frain, or other members of
the school. Cf. Morse, 551 U.S. at 409-10 (noting the
“difficult” and “vitally important” role that school principals
play and reasoning that “failing to act would send a powerful
message to the students” in affirming school‟s 10-day
suspension of student for speech promoting illegal drug use).
The Middle School protected its employees against such a
vicious and personal attack, thereby preventing substantial
disruption of the classroom environment. I believe our Court
errs in precluding schools from protecting teachers and
officials against such harassment.
3.
I question the majority‟s assessment of the facts of this
4
case. Its conclusion that a substantial disruption was not
4
My disagreement with the majority is principally
with respect to its interpretation of the facts. I am not in
disagreement with the majority‟s assumption that Tinker
applies to off-campus speech. We simply disagree about
whether J.S.‟s speech rises to the level of a substantial
disruption. By sharp contrast, the concurring opinion by
Judge Smith embraces the position that Tinker does not apply
to off-campus speech. The concurring judges state that off-
campus student speech should receive the same protections as
adult speech “in the community at large.” Conc. Op. at 1.
While certainly a defensible position, I find it unpersuasive.
Student speech that targets school officials, is publicly
broadcasted to the school community, and has a reasonably
foreseeable substantial disruption on the classroom
16
reasonably foreseeable rests on several mischaracterizations:
that J.S.‟s MySpace profile should be regarded as a “joke”;
that her profile should not have been taken seriously; that
because J.S. did not identify McGonigle by name, it lessened
the impact of her profile; and that J.S. took steps to ensure
that her profile remained private and did not reach the school.
Each of these findings is flawed.
First, the majority makes light of J.S.‟s post,
characterizing it as a “joke” that, while “indisputably vulgar,”
was “juvenile and nonsensical.” Maj. Op. at 17. The
majority goes so far as to state that we should take J.S.‟s
speech less seriously because she intended it as a “joke.” See
id. This is not the test adopted by Tinker. The intent of the
environment is regulable by schools, whether it occurs on- or
off-campus. The regulation of J.S.‟s speech was grounded in
“the special characteristics of the school environment,”
Tinker, 393 U.S. at 506, because it served the purposes of
preserving the authority and respect of school officials,
averting the need to utilize school resources to correct
misinformation and remedy confusion, and protecting school
officials against the psychological effects of student
harassment. The concurring judges advocate for an artificial
distinction that belies the fact that off-campus student speech
can have a very real impact on the classroom environment.
17
speaker is of no consequence.5 What determines the
permissibility of the School‟s response under the First
Amendment is whether it was reasonable to foresee
substantial disruption.
Moreover, it is not our role to determine how schools
should treat accusations of sexual misconduct and personal
attacks on school officials. School administrators, not judges,
are best positioned to assess the potential for harm in cases
like this one, and we should be loath to substitute our
judgments for theirs. See Morse, 551 U.S. at 427 (Breyer, J.,
concurring in part and dissenting in part) (warning against the
dangers of interfering “with reasonable school efforts to
maintain discipline”); cf. Fraser, 478 U.S. at 683 (“The
determination of what manner of speech in the classroom or
in school assembly is inappropriate properly rests with the
school board.”). Thus, even if J.S.‟s post can be treated as a
juvenile joke, it does not mean that the School District had to
treat it as such. For it is also eminently reasonable to treat
accusations of sexual misconduct seriously. I believe our
Court errs when it tells a school district how it should handle
5
Even if J.S.‟s intent were at issue, it is not so clear
that the profile was intended to be a joke. While she at one
point stated that the profile was created for comical reasons,
J.S. also stated that she created the profile because she was
“mad” at McGonigle for disciplining her. She claimed that
McGonigle unnecessarily yelled at her for committing dress
code violations. It is therefore fair to say that J.S. created the
profile in retaliation.
18
violations of its policy that are of as serious and grave a
matter as false accusations of sexual misconduct.6
The majority also draws conclusions from the fact that
Superintendent Romberger had a duty to report allegations of
misconduct and did not do so in this particular case. But the
fact that Superintendent Romberger chose not to report the
misconduct does not mean that it should not have been
reported. Moreover, other schools who face this situation
may properly choose to report allegations of misconduct. Our
Court does a disservice when it treats allegations of sexual
misconduct lightly and condones school districts for not
taking action. The majority claims that no one could take the
contents of J.S.‟s post seriously. Id. But stating that the
principal of a middle school has sex in his office and is a “sex
6
Similarly, even though the majority might have
reached a different conclusion on these facts, it certainly
cannot be said that the School District acted unreasonably by
suspending J.S. for ten days. Cf. Morse, 551 U.S. at 398,
409-10 (affirming ten-day suspension of student who
displayed a banner encouraging illegal drug use at a school
event). Indeed, the reasonableness of the School District‟s
response to J.S.‟s behavior further distinguishes this case
from Layshock, where, in addition to being suspended for ten
days, the student was (1) transferred to a special academic
program for “students with behavior and attendance problems
who are unable to function in a regular classroom,” (2)
banned from all extracurricular activities, and (3) prohibited
from participating in his graduation ceremony. See Layshock,
Part I & n.6.
19
addict” who enjoys “hitting on children and their parents” are
serious allegations that cannot be taken lightly by any school
official or by our Court.
The majority states that the profile did not identify
McGonigle by name, school, or location. Maj. Op. 22. But
this in no way lessens the gravity of harm. The profile
identified McGonigle by posting his picture. There are no
facts in the record demonstrating that anyone was at a loss as
to who the profile was about.
The majority claims that J.S. did not intend for her
accusations to reach the school. Maj. Op. at 17. Even if this
is true, it is an unreasonable expectation that should not carry
weight in our analysis. J.S. created a profile on a social
networking site using McGonigle‟s photograph, accused him
of sexual misconduct, insulted his family members, and used
exceptionally vulgar and obscene language. She then made
the profile public and shared it with classmates. It was only a
matter of time before the subject of her attack found out. And
he did, two days later. The majority claims that J.S. “took
specific steps to make the profile „private‟ so that only her
friends could access it.” Maj. Op. at 20. But there is another
way to read this. After hearing from her fellow students
about the buzz her profile had created, she made it “private,”
but then continued to send the profile to her classmates,
sharing it with twenty-two students. J.S. evinced an
expectation that she could somehow share the profile amongst
members of the school without the subject of her vehement
attack finding out. The majority embraces this unreasonable
expectation.
20
The majority also finds that the School District was
barred by state law from punishing J.S. for off-campus
speech. Maj. Op. at 17 n.5. Pennsylvania law states that a
School District has the authority to:
adopt and enforce such reasonable rules and
regulations as it may deem necessary and
proper, regarding the management of its school
affairs . . . as well as regarding the conduct and
deportment of all pupils attending the public
schools in the district, during such time as they
are under the supervision of the board of school
directors and teachers, including the time
necessarily spent in coming to and returning
from school.
24 Pa. Const. Stat. § 5-510. The majority relies on D.O.F. v.
Lewisburg Area School District Board of School Directors,
868 A.2d 28 (Pa. Commw. Ct. 2004), for the proposition that
schools lack the authority to regulate conduct that occurs
outside of school during non-school hours. But this case is
unrelated to the case before us. It involves a student‟s use of
drugs during non-school hours that had no effect on the
school. Here, by contrast, a student directed speech about the
school at members of the school and had a foreseeable impact
on the operations of the classroom. McGonigle punished J.S.
“to prevent interference with the educational process,” which
the Pennsylvania Commonwealth Court has explicitly held is
authorized under § 5-510. See D.O.F., 868 A.2d at 36; see
also Bethlehem Area Sch. Dist., 807 A.2d at 852 (holding that
a school district‟s punishment of a student for creating a
website at home during non-school hours was permissible).
21
Accordingly, I do not believe the statute excludes school
regulation of out-of-school conduct that threatens to
materially interfere with the educational process.7 Because
the profile created a reasonably foreseeable substantial
disruption of the Middle School, the School District did not
exceed its statutory authority in punishing J.S.
C.
Our decision today causes a split with the Second
Circuit. In applying Tinker, the Second Circuit has held that
off-campus hostile and offensive student internet speech that
is directed at school officials results in a substantial disruption
of the classroom environment. In Wisniewski, a middle
school student sent messages to fifteen fellow students via an
instant messenger program from his home computer during
non-school hours. 494 F.3d at 35-36. The program used an
icon depicting one of his teachers being shot in the head with
text below reading “Kill Mr. VanderMolen.” Id. The Second
Circuit stated that “off-campus conduct can create a
foreseeable risk of substantial disruption within a school,” id.
at 39 (citing Thomas v. Board of Education, 607 F.2d 1043,
1052 n.17 (2d Cir. 1979)), and held that it was reasonably
foreseeable that the depiction would come to the attention of
school authorities and the teacher who was the subject of the
drawing. Id. at 39-40. The court reasoned that:
7
I also believe it is improper to read § 5-510 as an
exhaustive description of all occasions under which school
officials are statutorily authorized to punish students for
infractions of school policies.
22
The potentially threatening content of the icon
and the extensive distribution of it, which
encompassed 15 recipients, including some of
Aaron‟s classmates, during a three-week
circulation period, made this risk at least
foreseeable to a reasonable person, if not
inevitable. And there can be no doubt that the
icon, once made known to the teacher and other
school officials, would foreseeably create a risk
of substantial disruption within the school
environment.
Id. The Second Circuit held that hostile and offensive off-
campus student speech posed a reasonably foreseeable threat
of substantial disruption within the school. Id.
The Second Circuit confronted a similar scenario in
Doninger v. Niehoff, 527 F.3d 41 (2d Cir. 2008) (Doninger I)
and Doninger v. Niehoff, -- F.3d --, 2011 WL 1532289 (2d
Cir. April 25, 2011) (Doninger II). A member of the high
school student council, upset by scheduling conflicts
regarding a student event, posted a message on her blog from
her home computer during non-school hours. She stated that
the student event was “cancelled due to douchebags in the
central office.” Doninger I, 527 F.3d at 45. She urged people
to call or write a school official “to piss her off more.” Id.
The school received numerous calls and emails, some of
which were from students who were upset. As a result of the
blog post, the school refused to allow the student to run for
Junior Class Secretary. The student challenged the school‟s
sanction, but the Second Circuit stated that the student‟s post,
“although created off-campus, was purposely designed by
23
[the student] to come onto the campus.” Doninger I, 527
F.3d at 50. The Court reasoned that her post “foreseeably
create[d] a risk of substantial disruption within the school
environment.” Id. at 50. It was reasonably foreseeable that
“administrators and teachers would be further diverted from
their core educational responsibilities by the need to dissipate
misguided anger or confusion over [the student event‟s]
purported cancellation.” Id. at 51-52.
The majority claims that these cases are
distinguishable. It argues that no one could have taken J.S.‟s
accusations seriously and that “J.S. did not even intend for the
speech to reach the school.” Maj. Op. at 20. The majority
misses the mark. As discussed above, J.S.‟s post was at least
potentially psychologically harmful to McGonigle and Frain,
it was vicious in its accusations of sexual misconduct, and it
posed the potential to undermine McGonigle‟s authority at
the Middle School and to divert School resources in
tempering the inevitable anger and confusion amongst parents
and the community following a public accusation of sexual
misconduct. It is of no consequence if J.S. in fact did not
intend to reach the Middle School. She directed obscene and
harmful speech at McGonigle and his family, disseminated it
to members of the School, and made unfounded accusations.
For these reasons, it was reasonably foreseeable that her
speech would cause a substantial disruption of the educational
process and the classroom environment. And it is on this
point that the majority parts ways with the Second Circuit.
* * *
24
The majority‟s approach does not offer a promising
way forward. Internet use among teenagers is nearly
universal. See Amanda Lenhart, et al., Pew Internet &
American Life Project: Teens and Social Media 2 (2007)
(stating that 93 percent of teenagers use the internet and 61
percent use it daily). And social networking sites have
become one of the main vehicles of social interaction. See
Amanda Lenhart, et al., Pew Internet and American Life:
Teens and Mobile Phones 59 (2010) (stating that 73 percent
of teenagers use a social networking site); National School
Board Association, Creating & Connecting: Research and
Guidelines on Online Social – And Educational – Networking
(2007) (stating that teenagers spend an average of 9 hours per
week on social networking sites).
The line between “on-campus” and “off-campus”
speech is not as clear as it once was. Today, students
commonly carry cell phones with internet capabilities onto
school grounds. Approximately 66 percent of students
receive a cell phone before the age of 14, and slightly less
than 75 percent of high school students have cell phones.
Amanda Lenhart, et al., Pew Internet and American Life:
Teens and Mobile Phones 9 (2010). Twenty-three percent of
teenagers between the ages of 12 and 17 who own cell phones
use them to access social networking sites like MySpace and
Facebook. Id. at 56. The majority embraces a notion that
student hostile and offensive online speech directed at school
officials will not reach the school. But with near-constant
student access to social networking sites on and off campus,
when offensive and malicious speech is directed at school
officials and disseminated online to the student body, it is
25
reasonable to anticipate an impact on the classroom
environment. I fear that our Court has adopted a rule that will
prove untenable.
IV.
I concur in the Court‟s decision that the School District
did not violate J.S.‟s parents‟ rights under the Fourteenth
Amendment to raise their child in the manner which they saw
fit as discussed in Part IV of the majority opinion, and I
concur in the decision that the School District‟s policies were
not unconstitutionally overbroad and vague as discussed in
Part V of the majority opinion.
But I respectfully dissent from the decision that the
suspension of J.S. for making false and malicious accusations
against her principal in the form of lewd and offensive speech
violated her First Amendment rights. In student free speech
cases, courts must grapple with the issue of promoting
freedom of expression while maintaining a conducive
learning environment. I believe the majority has unwisely
tipped the balance struck by Tinker, Fraser, Kuhlmeier, and
Morse, thereby jeopardizing schools‟ ability to maintain an
orderly learning environment while protecting teachers and
school officials against harmful attacks.
26