JS Ex Rel. Snyder v. Blue Mountain School Dist.

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

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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

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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

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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.

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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.

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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

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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