Doe v. Hopkinton Public Schools

United States Court of Appeals
For the First Circuit

No. 20-1950

JOHN DOE, by his Mother and Next Friend, JANE DOE; B.B., by his
Mother and Next Friend, JANE BLOGGS,

Plaintiffs, Appellants,

v.

HOPKINTON PUBLIC SCHOOLS,

Defendant, Appellee,

CAROL CAVANAUGH, in her individual capacity and official
capacity as Superintendent of the Hopkinton Public Schools; EVAN
BISHOP, in his individual capacity and official capacity as
Principal of Hopkinton High School,

Defendants.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. William G. Young, U.S. District Judge]

Before

Lynch, Selya, and Barron,
Circuit Judges.

Alexandra H. Deal and Jeffrey P. Wiesner, with whom Jennifer
McKinnon, Paik, Brewington & Deal LLP, and Wiesner McKinnon LLP
were on brief, for appellants.
William G. Creeley, Seth B. Orkand, and Robinson & Cole LLP
on brief for Foundation for Individual Rights in Education, amicus
curiae.
Sophia Cope and Naomi Gilens on brief for Electronic Frontier
Foundation, amicus curiae.
Elizabeth F. Toner and Joshua R. Coleman, with whom Murphy,
Lamere & Murphy, P.C. was on brief, for appellees.
Maura Healey, Attorney General, Abrisham Eshghi, Douglas
Martland, and Joshua Olszewski-Jubelirer, Assistant Attorneys
General, on brief for the Commonwealth of Massachusetts, amicus
curiae.
Francisco M. Negrón, Jr., John Foskett, and Valerio,
Dominello, & Hillman LLC on brief for National School Boards
Association, Maine School Boards Association, Massachusetts
Association of School Committees, New Hampshire School Boards
Association, and Rhode Island Association of School Committees,
amici curiae.
Patience Crozier and Bennett Klein on brief for GLBTQ Legal
Advocates & Defenders and Anti-Defamation League, amici curiae.
Ruth A. Bourquin, Rachel E. Davidson, Rebecca R. Krumholz,
and Matthew R. Segal on brief for the American Civil Liberties
Union of Massachusetts, amicus curiae.
Nicolas Y. Riley and Institute for Constitutional Advocacy &
Protection on brief for Professor Daniel B. Rice, amicus curiae.

November 19, 2021
 LYNCH, Circuit Judge. After an investigation, Hopkinton

High School ("School"), a part of the Hopkinton Public Schools,

found that eight students on the school hockey team, including

plaintiffs/appellants John Doe and Ben Bloggs, had bullied their

fellow hockey team member Robert Roe.1 The School disciplined all

eight students involved in the bullying. Doe was suspended for

three days, and Bloggs was suspended for five days.

Of the disciplined students, Doe and Bloggs chose to sue

in federal court challenging the constitutionality of their

discipline. They argued that they were exercising their First

Amendment rights and that the causal connection between their

conduct and the admitted bullying was insufficient. They further

argued that the "emotional harm" prong of Mass. Gen. Laws ch. 71,

§ 37O is unconstitutional. They also argued that the punishment

violated state law, specifically their student speech rights

guaranteed under Mass. Gen. Laws ch. 71, § 82.

On cross motions for summary judgment, the parties

agreed to proceed on a case stated basis. The district court

rejected Doe's and Bloggs's claims and entered judgment in favor

of Hopkinton Public Schools on all counts. See Doe v. Hopkinton

Pub. Schs., 490 F. Supp. 3d 448, 470 (D. Mass. 2020).

1 John Doe, Ben Bloggs, Robert Roe, and other references
to students are pseudonyms agreed to by the parties. The district
court granted the plaintiffs permission to proceed pseudonymously.

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 We affirm.

I.

We describe the relevant facts supported by the record.

At the time of the disciplinary investigation, plaintiffs Doe and

Bloggs were tenth-grade students at the School. Roe was a ninth-

grade student. Doe, Bloggs, and Roe were members of the School's

hockey team during the 2018-2019 season.

A. Facts

On February 4, 2019, Roe's father filed a bullying

complaint alleging that another high school student and member of

the hockey team, Student 1, had been bullying Roe. The written

complaint was filed on the School's standard bullying complaint

form. The complaint stated that Roe had observed Student 1 video-

recording him without his consent on multiple occasions and that

those video recordings had been circulated amongst other students.

The complaint further stated that Roe's parents had previously

reported Student 1 to the high school hockey coach in December 2018

for taking photos of Roe in the locker room without his consent.

Despite the prior complaint in December 2018, Student 1 had

continued to take photos and videos of Roe without his permission.

The complaint also listed three other members of the hockey team

as witnesses but not Doe or Bloggs.

With the complaint, Roe's parents contemporaneously

emailed School administrators, providing more specific information

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about the bullying but acknowledging that they did not have

complete information. They stated that Student 1 had been video-

recording and photographing Roe without his permission. The

bullying was furthered by the fact that these video recordings and

photographs were circulated in a group chat. They stated that

this bullying had created a hostile environment for Roe and had

impacted his personal rights and well-being. Roe's parents

reported that they believed other students on the team were

involved in bullying Roe and that other team members were part of

the group chat engaged in the bullying. Roe's parents filed the

bullying complaint on the Monday after a weekend incident during

which Student 1 had filmed Roe without his consent on the hockey

team bus. Roe's parents also referenced the December 2018

complaint to the hockey coach and their understanding that this

conduct was not an isolated event but a pattern of repeated

bullying. Roe's parents asked that Roe be moved out of the physics

class in which two of the bullies were present.

Upon receipt of the bullying complaint, the School

promptly investigated the allegations as it was obligated to under

the Hopkinton School Committee Policy on Bullying Prevention &

Intervention ("Hopkinton Bullying Policy"). Massachusetts state

law requires the School to have a bullying policy, and the

Hopkinton Bullying Policy uses nearly the same definition of

"Bullying" as that in the Massachusetts anti-bullying statute.

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See Mass. Gen. Laws ch. 71, §§ 37H & 37O. The Hopkinton Bullying

Policy is available on the School's website and is distributed in

the Student Handbook, which must be signed by students' parents or

guardians every school year. The Hopkinton Bullying Policy defines

"Bullying" as:2

the repeated use by one or more students or by
a member of a school staff of a written,
verbal, or electronic expression, or a
physical act or gesture, or any combination
thereof, directed at a target that:
• causes physical or emotional harm to the
target or damage to the target's
property;
• places the target in reasonable fear of
harm to him/herself, or of damage to
his/her property;

2 Massachusetts state law defines "Bullying" as:
the repeated use by one or more students or by
a member of a school staff including, but not
limited to, an educator, administrator, school
nurse, cafeteria worker, custodian, bus
driver, athletic coach, advisor to an
extracurricular activity or paraprofessional
of a written, verbal or electronic expression
or a physical act or gesture or any
combination thereof, directed at a victim
that: (i) causes physical or emotional harm to
the victim or damage to the victim's property;
(ii) places the victim in reasonable fear of
harm to himself or of damage to his property;
(iii) creates a hostile environment at school
for the victim; (iv) infringes on the rights
of the victim at school; or (v) materially and
substantially disrupts the education process
or the orderly operation of a school. For the
purposes of this section, bullying shall
include cyber-bullying.

Mass. Gen. Laws ch. 71, § 37O.

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 • creates a hostile environment at school
for the target;
• infringes on the rights of the target at
school; or
• materially and substantially disrupts
the education process or the orderly
operation of a school.

Pursuant to the Hopkinton Bullying Policy, Josh Hanna and Justin

Pominville, assistant principals at the School, conducted the

investigation into the bullying.3

The investigation covered the various means of bullying,

including Roe's own reports of exclusion and feeling bullied, the

surreptitious audio- and video-recording and photographing of Roe,

the unauthorized sharing of photographs of Roe and his family, the

isolating of Roe, and the group communications between the members

of the hockey team bullying Roe. Hanna and Pominville met with

Roe's parents and Roe. They interviewed ten other members of the

hockey team, starting with those initially named in the bullying

complaint. Hanna and Pominville also met with law enforcement.

The School's athletic director interviewed the hockey coach.

We recount the general course of the investigation and

relevant factual findings made by Hanna and Pominville in the

School's Bullying Investigation Report ("Bullying Report").

3 Doe and Bloggs do not allege bias on the part of Hanna
and Pominville. Neither Hanna nor Pominville was listed as a
defendant in Doe's and Bloggs's lawsuits.

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 During his interview, Roe stated that he was actively

excluded at hockey team spaghetti dinners and on the team bus. He

reported that other team members whispered about him and looked at

him. He stated that as a result, he became aware of the existence

of the Snapchat group, which was discussed in front of him. Roe

told the investigators that the bullying included sneaking photos

and videos of him without his permission and sharing those photos

and videos of him in the group. He reported that he felt alone on

the hockey team bus and at hockey team events. Roe named four

students whose bullying had been evident to him: Student 1,

Student 3, Student 5, and Student 6. Roe reported that Student 1

had attempted to get him to say "I am gay" and "dick" while audio-

and video-recording him.

Hanna interviewed Student 2, one of the students listed

as a witness in the bullying complaint. Student 2 stated that

there was a Snapchat group composed of members of the hockey team.4

Student 2 gave his phone to Hanna to view. Upon viewing, Hanna

4 Snapchat is a social media application, which allows
users to share and edit photos, videos, and messages. Snapchat
servers automatically delete group photos, videos, and messages
after 24 hours. See When Does Snapchat Delete Snaps and Chats?,
Snapchat.com, https://support.snapchat.com/en-US/article/when-
are-snaps-chats-deleted (last visited Sept. 10, 2021). Snapchat
users can take active steps to save a photo, video, or message at
any point. If a user saves a group photo, video, or message, it
remains available to all members of the Snapchat group. See id.

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saw videos, photos, and messages, not yet deleted, communicated by

and among the Snapchat group members, including Doe and Bloggs.

Hanna and Pominville viewed and preserved the photos,

videos, and messages in the Snapchat group that had been saved or

not yet deleted. Hanna learned from those messages that eight

members of the Hopkinton hockey team were members of the group:

Student 1, Student 2, Student 3, Student 4, Student 5, Student 6,

Doe, and Bloggs. The members of the group confirmed as true Roe's

statement that he had been excluded from the Snapchat group. The

group was named "Geoff Da Man."5 Bloggs told the investigators

that the Snapchat group had been created in December 2018. The

group continued until it was broken up when the discipline was

imposed. The School maintains that the group would have continued

absent that discipline. The Snapchat postings were composed not

only of messages from members of the group but also videos and

photos of Roe taken without his consent, dating back to at least

January 19, 2019, and circulated among the members.

The preserved Snapchat messages included demeaning and

expletive-laced comments regarding Roe's appearance, voice,

intimate anatomy, parents, and grandmother. Doe and Bloggs each

received these ongoing exchanges and responded to them. They each

5 The Snapchat group was named after a tenth student,
Student 10, who was also excluded from the group. Roe, Student
10, and the eight members of the Snapchat group shared a locker
room together.

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joined in these exchanges and sent derogatory messages about Roe

in response to photos and messages from other students. For

instance, in one exchange, Bloggs initiated a series of group

messages about Roe's family members:

Bloggs: "Was [Roe]'s grandma in the third
row"
Student 2: "They tied her to the hood"
Bloggs: "With bungee cords?"
. . .
Bloggs: "Are [Roe]'s parents ugly too [o]r
did he just get bad genes"

In response, Student 3 found photos of Roe's parents and shared

those photos with the Snapchat group. Bloggs then responded to

the photos:

Bloggs: "A family of absolute beauties"

Student 5 also posted a different photo of Roe that had been

surreptitiously taken without his consent. In response to that

photo, Doe and Bloggs both messaged the group:

Doe: "[Student 5] and [Roe] were made on the
same day[.] [Student 5] was the starting
product and [Roe] is what it turned into[,]
kinda like a game of telephone in 1st grade"
Bloggs: "[Roe]'s leather shampoo makes up for
the looks though"

Bloggs, in addition, disclosed to the group without Roe's

authorization one of Roe's online usernames.

On February 8, 2019, Hanna and Pominville concluded

their investigation and forwarded the nine-page Bullying Report to

the School's principal and the school district's superintendent.

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Hanna and Pominville considered the interviews, the screenshots

and videos from the Snapchat group, and the written complaint

submitted by Roe's father in arriving at their findings. The

Bullying Report included summaries from interviews with ten

individuals: the eight members of the Snapchat group, Roe, and the

hockey coach.6 In addition to the facts described earlier, the

Bullying Report made additional specific findings. Student 1

stated, "we pick on [Roe]," and Student 2 stated that Roe was

"targeted." Student 5 stated that the intent was to "laugh[] at

[Roe]" and apologized for his conduct.

The Bullying Report concluded, based on the

investigation and Doe's and Bloggs's interviews, that they were

aware of, joined, participated in, and encouraged the bullying.

When asked if he had a sense that the students' conduct was not

appropriate, Doe responded, "Yes, I said something but not to the

point to end it." He also stated that he understood the conduct

was harassment.

Bloggs acknowledged that Roe was shy "so some people

take pictures and make fun of him." On February 4, 2019, after he

was interviewed, Bloggs sent an email to the hockey coach

6 Hanna and Pominville also interviewed Student 10 and
another witness, but the summaries of these two interviews were
not included in the Bullying Report.

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apologizing for his conduct and stated, "I should have taken more

of a serious role in preventing anything else from happening."

The Bullying Report found that each of the eight students

"was an active participant in the SnapChat group" and that the

"[s]tudents admitted that [Roe] was excluded from Snapchat." The

Bullying Report detailed other activities by group members when it

stated:

4. The SnapChat group included:
a. Photos of [Roe] taken without his
consent
b. Videos of [Roe] taken and posted
without his consent
c. Photos of [Roe's] parents with
disparaging comments on their appearance
d. Disparaging comments regarding
[Roe's] appearance, voice, and anatomy
e. Attempts to get [Roe] to say
inappropriate statements and record him
doing this

The Bullying Report noted that the students admitted to "taking

videos and photos while on bus rides to away hockey games and while

at team gatherings."

The Bullying Report concluded that "[t]here was a

preponderance of the evidence showing that the 8 students bullied

and harassed [Roe]" as defined by the Hopkinton Bullying Policy.

The Bullying Report found that "[t]he conduct caused emotional

harm to [Roe], created a hostile environment for him during school-

sponsored events and activities and infringed on his rights at

school" in violation of the first, third, and fourth prongs of the

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Hopkinton Bullying Policy and section 37O. The School suspended

all eight members of the Snapchat group from the hockey team for

the remainder of the 2018-2019 season.

On February 12, 2019, School principal Evan Bishop held

individualized suspension hearings for each of the eight students,

including Doe and Bloggs. The students' parents were invited to

the disciplinary hearings. These individualized hearings

constituted each "student's opportunity to provide [his] side of

the story and to dispute the allegations."

After the individual hearings, Bishop found that Doe

"made a disparaging comment regarding [Roe's] appearance." He

identified "[r]eports of additional videos and photos taken of

[Roe] throughout the season that have not been retained" on

Snapchat. He issued Doe a three-day suspension after the findings.

Bishop found that Bloggs participated in "[p]osting

photos of [Roe] without his consent," "[p]osting comments of

[Roe's] parents with disparaging comments on their appearance,"

and "posting of disparaging comments regarding [Roe's]

appearance." Bishop also identified "[r]eports of additional

videos and photos taken of [Roe] throughout the season that have

not been retained" on Snapchat. He issued Bloggs a five-day

suspension.7

7 Given the short length of the suspensions, the
disciplinary process ended with principal Bishop, and there was no

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 After the bullying, Roe obtained counseling from the

School's student therapeutic academy resource team, declined to

try out for the lacrosse team in the spring, and entered formal

mental health treatment. At the end of the 2018-2019 academic

year, Roe left the School to attend school in Quebec, Canada.

B. Procedural History

On August 16, 2019, Doe, by and through his mother Jane

Doe, filed an amended complaint in federal court alleging Hopkinton

Public Schools and its administrators violated his rights to free

speech and association under state and federal law. Doe also

requested a declaration that the "emotional harm" prongs of

Hopkinton's Bullying Policy and the enabling Massachusetts anti-

bullying statute, Mass. Gen. Laws ch. 71, §§ 37H & 37O, are

unconstitutionally overbroad and vague. On September 19, 2019,

Bloggs, by and through his mother Jane Bloggs, filed a complaint

in federal court alleging similar causes of action. On February

5, 2020, the district court consolidated Doe's case with Bloggs's

case.

The parties cross-moved for summary judgment. On

June 29, 2020, during the summary judgment hearing, the parties

agreed to proceed on a case stated basis. Doe, 490 F. Supp. 3d at

appeal to the School's superintendent, who did not play a role in
the disciplinary process. Nonetheless, superintendent Carol
Cavanaugh was named as a defendant in her individual and official
capacities in Doe's and Bloggs's complaints.

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453. In a case stated decision "the parties waive trial and

present the case to the court on the undisputed facts in the pre-

trial record." TLT Constr. Corp. v. RI, Inc., 484 F.3d 130, 135

n.6 (1st Cir. 2007). "The court is then entitled to 'engage in a

certain amount of factfinding, including the drawing of

inferences.'" Id. (quoting United Paperworkers Int'l Union Loc.

14 v. Int'l Paper Co., 64 F.3d 28, 31 (1st Cir. 1995)). On

September 22, 2020, the court issued its Findings of Fact and

Rulings of Law.

The court found that the factual conclusions in the

Bullying Report were well-supported in the record. Doe, 490 F.

Supp. 3d at 456. As to the argument that the imposition of the

discipline violated the First Amendment rights of Doe and Bloggs,

the court ruled in favor of Hopkinton Public Schools on Doe's and

Bloggs's challenges. It held that the School's discipline under

its bullying policy and Massachusetts state law did not violate

Doe's and Bloggs's First Amendment rights to speech and/or

association. The court reviewed the Supreme Court's decision in

Tinker v. Des Moines Independent School District, 393 U.S. 503

(1969), and its holding that speech "may be regulated only if it

would substantially disrupt school operations or interfere with

the right of others." Doe, 490 F. Supp. 3d at 457 (quoting Saxe v.

State Coll. Area Sch. Dist., 240 F.3d 200, 214 (3d Cir. 2001)).

The court found that:

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 the Students' messages did not take place in
isolation; the students in "Geoff da Man" were
engaging in bullying. A reasonable official
could have found that Roe did suffer from the
speech and actions of the members of the
hockey team, coordinated through the Snapchat
group. This "repeated" conduct and speech "by
one or more students" was "directed" at Roe,
causing him "emotional . . . harm." Mass.
Gen. Laws ch. 71, § 37O. A reasonable
official could have found this bullying was
"severe or pervasive." Norris, 969 F.3d at 29
n.18. This bullying therefore constituted an
infringement of Roe's rights and is not
protected by Tinker whether or not it caused
a substantial disruption. Id. at 29.

Doe, 490 F. Supp. 3d at 461. The court found that "[a] reasonable

official could have found Doe and Bloggs to be participants in

group bullying that invaded Roe's rights." Id. at 465.

Doe and Bloggs contended that there was a lack of

causality between their actions and the bullying and that they

were thus being subjected to "guilt by association." See NAACP v.

Claiborne Hardware Co., 458 U.S. 886, 918-19 (1982); see also

Humanitarian L. Project v. U.S. Dep't of Treasury, 463 F. Supp. 2d

1049, 1070 (C.D. Cal. 2006). The district court rejected those

arguments, reasoning that "th[o]se precedents do not require

school officials to ignore the group context in which Doe's and

Bloggs' comments were made" and finding Doe and Bloggs "did not

merely 'associate' in the Snapchat but were active -- albeit minor

-- participants in the group targeting of Roe." Doe, 490 F. Supp.

3d at 463. The court cited to similar cases in which federal

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courts had rejected the lack of causality argument. Id. at 463-

64; see Taylor v. Metuchen Pub. Sch. Dist., No. 18-cv-1842, 2019

WL 1418124, at *5-6 (D.N.J. Mar. 28, 2019); Shen v. Albany Unified

Sch. Dist., Nos. 3:17-cv-02478, 3:17-cv-02767, 3:17-cv-03418,

3:17-cv-03657, 2017 WL 5890089, at *9-10 (N.D. Cal. Nov. 29, 2017).

After discussing those cases, the court made further

findings:

A reasonable official could conclude that both
Doe and Bloggs made derogatory comments about
Roe in the group conversation. That official
could easily find that Bloggs' comment about
the "game of telephone," amidst a litany of
insults against Roe's appearance, was not
innocuous. Snapchat Screenshots PO000036.
Doe's messages speak for themselves. Id. at
PO000034-36. Thus an official could find that
by posting these comments -- even if they were
themselves minor relative to the surrounding
nastiness -- Doe and Bloggs had signaled their
approval and encouragement of the bullying by
the other hockey teams members. Their
punishment would not have been constitutional
under the First Amendment if they were merely
members of the Snapchat group, cf. Shen, 2017
WL 5890089, at *9-10, but by actively
encouraging the group bullying, they could be
permissibly disciplined for its results.

This conclusion is consistent with the
causality analysis in Norris. In Norris,
"[t]he defendants do not assert that A.M.
directly participated in the bullying of
Student 1 at school, or that she was
responsible for the video or any of the rumors
being circulated about Student 1." 969 F.3d
at 31. Here, Doe and Bloggs were participants
in the bullying. This Court is persuaded by
Shen that the proper inquiry is whether the
group caused an invasion of Roe's rights and
whether Doe and Bloggs participated in the

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 group by encouraging its behavior. 2017 WL
5890089, at *9-10. A reasonable official
could have found these facts, and these
reasons align with the schools' explanations
at the time. See Doe Suspension, Bloggs
Suspension.

Lastly, the Massachusetts law contemplates
discipline of collective action. Section 37O
defines bullying as action "by one or more
students . . . directed at a victim" that cause
the listed harms. Mass. Gen. Laws. ch. 71,
§ 37O. If the isolated conduct of each
student in the group had to individually meet
all the elements of "bullying," the words "or
more" in the statute would be read out.
Children often bully as a group. The children
who stand on the sidewalk and cheer as one of
their friends shakes down a smaller student
for his lunch money may not be as culpable,
but they are not entirely blameless.
Similarly, the "Geoff Da Man" group's conduct
as a whole was directed at Roe, and
Massachusetts law allows School officials to
consider Doe and Bloggs as members of that
group.

Doe, 490 F. Supp. 3d at 464-65.

The court also ruled that the "emotional harm" prong of

section 37O and the Hopkinton Bullying Policy is neither overbroad

nor vague. Id. at 465-69. Lastly, the court ruled that Hopkinton

Public Schools did not violate Mass. Gen. Laws ch. 71, § 82. Id.

at 470.

Doe and Bloggs timely appealed.8

8 We acknowledge the amici curiae for their submissions in
this matter. The following amici submitted briefs in support of
Doe and Bloggs: the Foundation for Individual Rights in Education
and the Electronic Frontier Foundation. The following amici
submitted briefs in support of Hopkinton Public Schools: the

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 II.

A. Standard of Review

We review the district court's legal conclusions de

novo. See United Paperworkers, 64 F.3d at 32. In a case stated

decision, "the parties waive trial and present the case to the

court on the undisputed facts in the pre-trial record." TLT

Constr. Corp., 484 F.3d at 135 n.6. We review the district court's

factual findings and inferences for clear error. United

Paperworkers, 64 F.3d at 31.

B. The School Did Not Violate Doe's and Bloggs's First Amendment
Rights.

To prevail on a First Amendment claim under 42 U.S.C.

§ 1983, Doe and Bloggs bear the burden of showing that (1) they

were engaged in constitutionally protected conduct, (2) they were

subjected to adverse actions by the School, and (3) the protected

conduct was a substantial or motivating factor in the adverse

actions. See D.B. ex rel. Elizabeth B. v. Esposito, 675 F.3d 26,

43 (1st Cir. 2012). The parties do not dispute that the second

Commonwealth of Massachusetts; the National School Boards
Association, Maine School Boards Association, Massachusetts
Association of School Committees, New Hampshire School Boards
Association, and Rhode Island Association of School Committees;
and GLBTQ Legal Advocates & Defenders and the Anti-Defamation
League. The following amici submitted briefs in support of neither
party: Daniel B. Rice and the American Civil Liberties Union of
Massachusetts.

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and third requirements have been satisfied. We thus focus our

analysis on the first requirement.

Doe and Bloggs contend that the School violated their

First Amendment rights to speech and association by punishing them

for what they call their "private messages" that they sent to their

friends over the Snapchat platform. They primarily argue that the

court's finding that there was a causal relationship between their

participation in the group and each of the three reasons given by

the school for imposition of the discipline was clear error.

1. The School's Decisions Regarding Student Speech and
Bullying Are Entitled to Deference.

The School's findings that Doe and Bloggs violated

school policy and the Massachusetts anti-bullying statute are

entitled to deference if they are reasonable.9 The Supreme Court

9 The amicus brief submitted by the American Civil
Liberties Union ("ACLU") of Massachusetts argues that the district
court's textual reading of the Massachusetts anti-bullying statute
was erroneous. The ACLU argues that the district court erroneously
read the statute expansively to encompass a theory of group
bullying. Doe and Bloggs thus could not be disciplined under the
statute as a matter of law based on the district court's factual
findings.
We do not address this argument because Doe and Bloggs
did not plead that the School exceeded its authority under the
Massachusetts anti-bullying statute, nor did they raise this
argument on appeal. We do not consider an argument raised by
amicus curiae where the "argument was not raised by the parties or
passed on by the lower court[]." FTC v. Phoebe Putney Health Sys.,
Inc., 568 U.S. 216, 226 n.4 (2013); see Weaver's Cove Energy,
LLC v. R.I. Coastal Res. Mgmt. Council, 589 F.3d 458, 467 (1st
Cir. 2009). The ACLU also does not argue that the School could
not act beyond the authority of the Massachusetts anti-bullying
statute as long as it did not violate the constitutional

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has long held that schools have a special interest in regulating

speech that "materially disrupts classwork or involves substantial

disorder or invasion of the rights of others." Tinker, 393 U.S.

at 513. "Courts generally defer to school administrators'

decisions regarding student speech so long as their judgment is

reasonable." Norris ex rel. A.M. v. Cape Elizabeth Sch. Dist.,

969 F.3d 12, 30 (1st Cir. 2020); see Morse v. Frederick, 551 U.S.

393, 403 (2007) ("Tinker held that student expression may not be

suppressed unless school officials reasonably conclude that it

will 'materially and substantially disrupt the work and discipline

of the school.'" (quoting Tinker, 393 U.S. at 513)); Hazelwood

Sch. Dist. v. Khulmeier, 484 U.S. 260, 273 (1988); Bethel Sch.

Dist. No. 403 v. Fraser, 478 U.S. 675, 683 (1986) ("The

determination of what manner of speech in the classroom or in

school assembly is inappropriate properly rests with the school

board."); Norris, 969 F.3d at 29 n.18 ("[S]chool administrators

must be permitted to exercise discretion in determining when

certain speech crosses the line from merely offensive to more

severe or pervasive bullying or harassment.").

At the time of the imposition of the discipline, the

School provided three justifications for Doe's and Bloggs's

suspensions and does not vary from those justifications in this

protections of the First Amendment.

- 21 -
litigation. Cf. Norris, 969 F.3d at 25-26 (requiring school

administrators to adhere to rationale provided at time of

discipline in litigation defending discipline). The School

determined that Doe's and Bloggs's "conduct [1] caused emotional

harm to [Roe], [2] created a hostile environment for him during

school-sponsored events and activities and [3] infringed on his

rights at school."

Tinker holds that schools have a special interest in

regulating speech that involves the "invasion of the rights of

others." Tinker, 393 U.S. at 513. The Supreme Court made clear

in Mahanoy Area School District v. B.L. ex rel. Levy that schools

have a significant interest in regulating "serious or severe

bullying or harassment" that invades the rights of others.10 141

S. Ct. 2038, 2045 (2021). This pedagogical interest remains even

in off-campus circumstances.11 In Mahanoy Area School District,

10 The amicus brief submitted by the GLBTQ Legal Advocates
& Defenders and the Anti-Defamation League cites to social science
research showing that bullying is an extensive and pervasive
problem amongst adolescents. The Centers for Disease Control and
Prevention has concluded that a considerable number of youth are
bullied. See Gladden et al., Ctrs. for Disease Control &
Prevention, Bullying Surveillance Among Youths: Uniform
Definitions for Public Health and Recommended Data Elements (1st
ed. 2014). National surveys estimate that anywhere from 11% to
28% of adolescents are victims of bullying. Id. at 5.
11 There is no merit to Doe and Bloggs's argument that their
speech is not subject to punishment because it did not occur on
campus. In Mahanoy Area School District, the Supreme Court
rejected the Third Circuit's on-campus/off-campus speech
distinction. 141 S. Ct. at 2045. Instead, the Supreme Court held
that "[t]he school's regulatory interests remain significant in

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B.L. was disciplined for off-campus Snapchat posts, which were not

directed at any individual. The Supreme Court found that the

speech was more accurately characterized as "criticism of the rules

of a community of which B.L. forms a part," id. at 2046, and that

it did not satisfy the "substantial disruption" prong of Tinker,

id. at 2047-48. A general statement of discontent is vastly and

qualitatively different from bullying that targets and invades the

rights of an individual student. See Mahanoy Area Sch. Dist., 141

S. Ct. at 2045; Norris, 969 F.3d at 29 ("[B]ullying is the type of

conduct that implicates the governmental interest in protecting

against the invasion of the rights of others, as described in

Tinker.").

2. Doe's and Bloggs's Speech and Conduct Are Not Protected
by the First Amendment.

Doe and Bloggs contend that their speech and conduct

were protected by the First Amendment and could not be disciplined

some off-campus circumstances. . . . These include serious or
severe bullying or harassment targeting particular
individuals. . . ." Id.
Further, the School found that Doe's and Bloggs's speech
and conduct occurred both on campus and off campus and took place
during school-affiliated events. The district court agreed and
did not clearly err in this factual determination. Doe, 490 F.
Supp. 3d at 463. The students admitted to taking videos and photos
while in the locker room, on bus rides to school hockey games, and
at team gatherings. Doe's and Bloggs's speech and conduct were thus
unlike B.L.'s Snapchat message that was posted on her own time outside
of school at a convenience store. See Mahanoy Area Sch. Dist., 141
S. Ct. at 2043.

- 23 -
by the School. They argue that they were punished solely for

sending messages over Snapchat and participating in the Snapchat

group -- and that they engaged in no offending conduct directed

towards Roe.

For the School to discipline Doe's and Bloggs's speech,

there must be a causal connection between their speech and the

bullying that invaded Roe's rights. Norris, 969 F.3d at 28, 31.12

Doe and Bloggs do not dispute that other group members directly

bullied Roe, such as by taking nonconsensual photos and videos of

him, attempting to get him to say inappropriate statements on

camera, and isolating him from the hockey team. They do not

dispute that this bullying could be regulated consistent with the

First Amendment. They challenge only whether their conduct

reasonably could be viewed as a ground for treating them as active

participants in such regulable conduct. As such, the relevant

question is whether the School reasonably concluded that Doe's and

Bloggs's messages and active participation in the group were

12 The causal connection concerns from Norris are not
present in Doe's and Bloggs's situations. In Norris, the
plaintiff, student A.M., posted a sticky note, which read "THERE'S
A RAPIST IN OUR SCHOOL AND YOU KNOW WHO IT IS;" it was not widely
distributed or viewed by members of the school community. Norris,
969 F.3d at 14-15. The note was in the girls' bathroom for a few
minutes and seen by two students. Id. at 32. Here, the School
reasonably concluded that Doe's and Bloggs's messages were viewed
by the members of the Snapchat group, who were all active
participants in the group. In Norris, the sticky note contained
several ambiguities. Included among those ambiguities was the
"rapist" and whether the "rapist" was even a student. Id.

- 24 -
causally connected to the direct bullying because they encouraged

other group members to continue bullying Roe.

As the district court stated: "Children often bully as

a group. The children who stand on the sidewalk and cheer as one

of their friends shakes down a smaller student for his lunch money

may not be as culpable, but they are not entirely blameless." Doe,

490 F. Supp. 3d at 464-65; see e.g., Taylor, 2019 WL 1418124, at

*6 (dismissing First Amendment claim where student had been

punished for encouraging his friend to publish a caricature of

another student on a social media website); Shen, 2017 WL 5890089,

at *9 (upholding school discipline against students that "liked"

or expressed approval of derogatory and racist Instagram posts

that targeted specific students).13

Here, the School and the district court both concluded

as a matter of fact that Doe's and Bloggs's speech and Snapchat

participation were causally connected to the other members'

bullying of Roe. That conclusion was reasonable, and we see no

clear error.

13 The amicus brief submitted by the National School Boards
Association, Maine School Boards Association, Massachusetts
Association of School Committees, New Hampshire School Boards
Association, and Rhode Island Association of School Committees
cites to social science research finding that "bullying is a 'group
process', and many researchers and policymakers share the belief
that interventions against bullying should be targeted at the peer-
group level rather than at individual bullies and victims."
Salmivalli, Bullying and the Peer Group: A Review, 15 Aggression
& Violent Behavior 112, 117 (2010) (citations omitted).

- 25 -
 Doe and Bloggs both made derogatory comments about Roe

in the Snapchat group conversation. Doe stated, "[Student 5] and

[Roe] were made on the same day[.] [Student 5] was the starting

product and [Roe] is what it turned into kinda like a game of

telephone in 1st grade." Bloggs initiated an exchange about Roe's

family that led another student to post photos of Roe's parents.

Bloggs then made numerous derogatory comments about Roe's family

members and his appearance, including "Are [Roe]'s parents ugly

too [o]r did he just get bad genes" and "[Roe]'s leather shampoo

makes up for [his] looks though." Bloggs also sent a photo of

another student to the Snapchat group and shared with the group

one of Roe's online usernames without his consent.

Importantly, as the district court noted, Doe's and

Bloggs's messages demeaning Roe's appearance and family -- and

their continuous, active participation in the Snapchat group --

"did not take place in isolation." Doe and Bloggs both admitted

that they were aware that members of the group were bullying Roe.

They were aware that members of the group were taking nonconsensual

photos and videos of Roe and circulating them in the group. The

Snapchat group was formed in December 2018 and continued to exist

until at least the date of the investigation in early February

2019, months after Roe's parents filed their initial complaint

with the hockey coach that Student 1 had taken photos and videos

of Roe in the locker room without his consent. Doe and Bloggs

- 26 -
nonetheless continued to send demeaning messages about Roe and his

family. They were participants in an extensive back-and-forth

between the eight students that included numerous derogatory

comments and nonconsensual photos and videos. The students in the

Snapchat group continued to bully Roe during this time, until at

least February 2, 2019, when Student 1 again attempted to video-

record Roe on the hockey team bus without his consent and replayed

a video of Roe on his phone in front of him -- two days before

Roe's parents filed their bullying complaint.

The School reasonably concluded that Doe's and Bloggs's

messages and participation in the group fostered an environment

that emboldened the bullies and encouraged others in the invasion

of Roe's rights. The evidence shows that they were well aware of

the effects of that conduct on Roe. The School reasonably

concluded that this speech and conduct itself constituted,

contributed to, and encouraged the bullying.

To be sure, there may be circumstances in which

encouragement is so minimal or ambiguous, the chain of

communication so attenuated, or knowledge of direct bullying so

lacking, that a school's punishment of certain speech would be

unreasonable. See Shen, 2017 WL 5890089, at *10 (finding certain

students' participation in online group containing racist content

not sufficiently active to warrant punishment). The speech and

conduct of the defendants in this case, though, actively and

- 27 -
extensively encouraged bullying and fostered an atmosphere where

bullying was accepted. Consequently, it does not present those

concerns and, thus, we have no occasion to explore those limits.

Doe and Bloggs point to a finding by the district court

that "[t]here is no evidence in the record of any non-speech

conduct by Bloggs or Doe directed at Roe, except for their failure

to intervene when other students mistreated him, which is certainly

insufficient alone to constitute bullying." Doe, 490 F. Supp. 3d

at 461. But this reliance is misplaced because speech that

actively encourages such direct or face-to-face bullying conduct

is not constitutionally protected. Doe and Bloggs ignore the

district court's further conclusion that "an official could find

that by posting these comments -- even if they were themselves

minor relative to the surrounding nastiness -- Doe and Bloggs had

signaled their approval and encouragement of the bullying by the

other hockey teams members." Id. at 464. The record supports the

School's finding that Doe and Bloggs were participants in

encouraging the group and its bullying of Roe, and that bullying

went beyond speech and included activities such as taking

nonconsensual photos and videos of Roe, attempting to get him to

say inappropriate statements on camera, and isolating him from the

hockey team. The district court did not clearly err in finding

that Doe and Bloggs, through their active participation in the

- 28 -
Snapchat group, encouraged the bullying that -- they do not dispute

-- others engaged in that went beyond speech.

We reject Doe and Bloggs's argument that their speech,

though offensive, did not rise to the level of invading the rights

of others and thus could not be disciplined under Tinker and the

Massachusetts anti-bullying statute. Doe and Bloggs were not

punished because Roe was offended by the content of their messages.

As Doe and Bloggs themselves point out, Roe never saw the Snapchat

messages from them. Doe and Bloggs were punished because the

School reasonably found that their speech and participation in the

Snapchat group actively encouraged the repeated bullying that

occurred throughout the 2018-2019 season.

We also reject Doe and Bloggs's argument that they did

not intend or expect their messages to be viewed by Roe because

they expected the messages to be deleted. But there is no intent

requirement under Tinker. The test under Tinker is objective,

focusing on the reasonableness of the school's response, not the

intent of the student. See Norris, 969 F.3d at 25; Shen, 2017 WL

5890089, at *10.

In light of the evidence in the record, the district

court did not clearly err in finding that "Doe and Bloggs had

signaled their approval and encouragement of the bullying by the

- 29 -
other hockey teams members." Doe, 490 F. Supp. 3d at 464.14 Speech

or conduct that actively and pervasively encourages bullying by

others or fosters an environment in which bullying is acceptable

and actually occurs -- as in this case -- is not protected under

the First Amendment.

C. Doe's and Bloggs's Facial Overbreadth and Vagueness
Challenges to the "Emotional Harm" Prong of the School Policy
and Massachusetts Statute Are Moot.

Doe and Bloggs in addition seek declarations that the

"emotional harm" prong of the Hopkinton Bullying Policy and section

37O are unconstitutionally vague and overbroad. They contend that

these provisions have "chilled" their speech because they are open

to expansive and potentially arbitrary enforcement.

Under "First Amendment overbreadth doctrine, a statute

is facially invalid if it prohibits a substantial amount of

protected speech." United States v. Williams, 553 U.S. 285, 292

(2008). The doctrine rests on the notion that "the threat of

enforcement of an overbroad law deters people from engaging in

constitutionally protected speech," a chilling effect that

inhibits the free exchange of ideas. Id. The void-for-vagueness

doctrine, by contrast, is derived from the Due Process Clause of

14 The district court also correctly rejected Doe and
Bloggs's argument that their punishments violated their First
Amendment rights to free association. Doe and Bloggs were not
punished for associating with other members of the hockey team.
The School punished Doe and Bloggs for their conduct. They were
active members of the Snapchat group and encouraged the bullying.

- 30 -
the Fifth Amendment and is concerned with circumstances in which

a law is so vague that it does not provide fair notice of what

conduct it prohibits and creates a risk of arbitrary enforcement.

See Grayned v. City of Rockford, 408 U.S. 104, 108-09 (1972).

Courts have long recognized that when a vague law implicates First

Amendment interests, the injuries can be similar to and overlapping

with those in overbreadth claims, but the analysis takes place

under distinct tests. See Holder v. Humanitarian L. Project, 561

U.S. 1, 20 (2010); Vill. of Hoffman Ests. v. Flipside, Hoffman

Ests., Inc., 455 U.S. 489, 494 (1982); see also Wright & Miller,

13A Fed. Prac. & Proc. Juris. § 3531.9.4 (3d ed. 2021).

Doe's and Bloggs's claims as to facial overbreadth and

vagueness seek prospective relief, and they have presented no

argument that these claims are integrally intertwined with their

discipline claims.15 That being so, the facial overbreadth and

15 The facial overbreadth and vagueness claims, as pleaded
and argued, seek only prospective relief in the form of a
declaration of rights and injunctive relief against future
enforcement of the "emotional harm" prong. Doe's and Bloggs's
First Amendment Tinker claims, by contrast, request injunctive
relief to remove the discipline from their records. The district
court understood the claims as we do.
To the extent Doe and Bloggs challenge either the
Hopkinton Bullying Policy or section 37O insofar as they relate to
removing the past discipline from their records, those arguments
are waived. See United States v. Rodrigues, 850 F.3d 1, 13 n.6
(1st Cir. 2017).

- 31 -
vagueness claims as to the "emotional harm" prong of the Hopkinton

Bullying Policy and section 37O are moot.

"The traditional rule is that a person to whom a statute

may constitutionally be applied may not challenge that statute on

the ground that it may conceivably be applied unconstitutionally

to others in situations not before the Court." New York v. Ferber,

458 U.S. 747, 767 (1982). First Amendment overbreadth challenges

are an exception to that general rule against third-party standing.

See Osediacz v. City of Cranston, 414 F.3d 136, 140-41 (1st Cir.

2005); see also United States v. Smith, 945 F.3d 729, 736 (2d Cir.

2019). "Litigants, therefore, are permitted to challenge a statute

not because their own rights of free expression are violated, but

because of a judicial prediction or assumption that the statute's

very existence may cause others not before the court to refrain

from constitutionally protected speech or expression."

Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973).

Even so, the overbreadth doctrine does not dispose of

the requirement that a plaintiff demonstrate Article III

constitutional standing. Osediacz, 414 F.3d at 141; see Serv.

Emps. Int'l Union, Local 3 v. Mun. of Mt. Lebanon, 446 F.3d 419,

423 (3d Cir. 2006) ("[L]itigants [asserting a First Amendment

overbreadth challenge], of course, must still meet the

constitutional requirement of injury-in-fact because their own

constitutionally unprotected interests will be adversely affected

- 32 -
by application of the statute." (first citing Note, Standing to

Assert Constitutional Jus Tertii, 88 Harv. L. Rev. 423, 424 (1974);

and then citing Fallon, Making Sense of Overbreadth, 100 Yale L.J.

853, 860 n.33 (1991))). Nor does the void-for-vagueness doctrine

excuse a plaintiff from establishing the constitutional

requirement of injury-in-fact as to their own interests.16 See

Holder, 561 U.S. at 20 ("A plaintiff who engages in some conduct

that is clearly proscribed cannot complain of the vagueness of the

law as applied to the conduct of others." (quoting Vill. of Hoffman

Ests., 455 U.S. at 495) (quotation omitted)). To establish Article

III standing, a plaintiff must show: "(i) that he suffered an

injury in fact that is concrete, particularized, and actual or

imminent; (ii) that the injury was likely caused by the defendant;

and (iii) that the injury would likely be redressed by judicial

relief." TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2203 (2021).

16 In addition, we note that Doe and Bloggs do not challenge
the third or fourth prongs that cover conduct that "creates a
hostile environment at school for the target" or "infringes on the
rights of the target at school." Hopkinton Bullying Policy; see
Mass. Gen. L. ch. 71 § 37O. The School determined that the conduct
for which discipline was imposed independently satisfied each of
the three prongs of the School policy and the Massachusetts
statute. Even assuming Doe and Bloggs could challenge their past
discipline by challenging the "emotional harm" prong as overbroad
and vague, the result would be the invalidation of the "emotional
harm" prong of the Hopkinton Bullying Policy and section 37O. Doe
and Bloggs would receive no relief from their injury because the
School had two separate and independent grounds for finding that
they engaged in bullying. See Signs for Jesus v. Town of Pembroke,
N.H., 977 F.3d 93, 100-01 (1st Cir. 2020).

- 33 -
The plaintiff must thus show "whether the risk that the Policy

will have a chilling effect on the speech of others is a sufficient

injury to the plaintiff to meet the first prong of the

constitutional test for standing." Osediacz, 414 F.3d at 142

(emphasis in original). "[A] chill on speech sometimes may be a

cognizable injury," but "in order to have standing, the plaintiff

must be within the class of persons potentially chilled." Id.

Having graduated -- and thus no longer subject to the

Hopkinton Bullying Policy or section 37O -- Doe and Bloggs do not

fall within the "class of persons potentially chilled." See Powell

v. McCormack, 395 U.S. 486, 496 (1969) ("[A] case is moot when the

issues presented are no longer 'live' or the parties lack a legally

cognizable interest in the outcome.").

An exception to the mootness doctrine exists for cases

that are "capable of repetition, yet evading review." Murphy v.

Hunt, 455 U.S. 478, 482 (1982). But this exception applies only

when: "(1) the challenged action was in its duration too short to

be fully litigated prior to its cessation or expiration, and (2)

there [i]s a reasonable expectation that the same complaining party

w[ill] be subjected to the same action again." Id. (quoting

Weinstein v. Bradford, 423 U.S. 147, 149 (1975)) (emphasis added).

Doe and Bloggs fail to satisfy the second prong of the

exception. They are no longer students at the School, and there

is no reasonable expectation that they will be subject to the same

- 34 -
discipline again under the challenged policy and statute. See

Corder v. Lewis Palmer Sch. Dist. No. 38, 566 F.3d 1219, 1225 (10th

Cir. 2009) ("[T]here is no reasonable expectation that [plaintiff]

will be subjected, post-graduation, to [the challenged policy].");

Donovan ex rel. Donovan v. Punxsutawney Area Sch. Bd., 336 F.3d

211, 217 (3d Cir. 2003); Cole v. Oroville Union High Sch. Dist.,

228 F.3d 1092, 1098 (9th Cir. 2000).

D. The School Did Not Violate Doe's and Bloggs's Rights Under
the Massachusetts Student Speech Statute.

Doe and Bloggs further contend that the School violated

their rights under Mass. Gen. Laws ch. 71, § 82, which provides in

relevant part: "The right of students to freedom of expression in

the public schools of the commonwealth shall not be abridged,

provided that such right shall not cause any disruption or disorder

within the school." They argue that the statute protects the free

speech rights of students limited only by the requirement that the

speech be nondisruptive. Doe and Bloggs argue that they thus

cannot be punished for speech that invaded the rights of another

but was not found to "cause any disruption or disorder within the

school."17

17 The district court correctly held that the School may
not rely on the "substantial disruption" prong of Tinker to justify
its actions. Doe, 490 F. Supp. 3d at 460. In Norris, we held
that the school "must rely only on the reasons originally provided
to A.M. for her suspension" and "may not rely on post hoc
rationalizations for the speech restrictions." Norris, 969 F.3d
at 25-26. Here, the Bullying Report found that Doe's and Bloggs's

- 35 -
 Doe and Bloggs ask us to interpret section 82 in a manner

that directly conflicts with the plain text of the later-enacted

Massachusetts anti-bullying statute. When Massachusetts enacted

the anti-bullying statute in 2010, it adopted the language from

Tinker, and the plain text of the statute permits discipline based

on "Bullying" that "infringes on the rights of the victim at

school." Mass. Gen. L. ch. 71, § 37O(a). If Doe and Bloggs's

interpretation of section 82 were correct, entire paragraphs of

section 37O would conflict directly with section 82. We do not so

interpret section 82. See Town of Hadley v. Town of Amherst, 360

N.E.2d 623, 626 (Mass. 1977).

Doe and Bloggs's sole response is that the anti-bullying

statute states that it does not "supersede or replace existing

rights or remedies." Mass. Gen. L. ch. 71, § 37O(i). But

subsection 37O(i) is not plausibly read to limit school discipline

of bullying to the constraints provided for in section 82, as that

would render much of the anti-bullying statute meaningless. Given

the anti-bullying statute's focus on victims of bullying and the

responsibilities of school administrators in addressing bullying,

the more natural reading of subsection 37O(i) is that insofar as

"conduct caused emotional harm to [Roe], created a hostile
environment for him during school-sponsored events and activities
and infringed on his rights at school." The School may rely only
on these justifications for rationalizing the speech restrictions.
See id.

- 36 -
bullying covered by section 37O was already actionable under

Massachusetts law, it remains so.

We do not adopt Doe and Bloggs's reading of section 82.

The School did not violate either section 82 or Tinker in

suspending Doe and Bloggs for their speech and conduct.

III.

Affirmed.

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