Justin Layshock v. Hermitage Sch Dist

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 07-4465

JUSTIN LAYSHOCK, a minor,

by and through his parents;

DONALD LAYSHOCK;

CHERYL LAYSHOCK, individually

and on behalf of their son

v.

HERMITAGE SCHOOL DISTRICT

KAREN IONTA, District Superintendent;

ERIC W. TROSCH, Principal Hickory High School,

CHRIS GILL, Co-Principal Hickory High School, all in their

official and individual capacity

Hermitage School District,

Appellant

Appeal from the United States District Court

for the Western District of Pennsylvania

(Civ. No. 06-cv-00116)

District Judge: Hon. Terrence F. McVerry

Argued on December 10, 2008

1

Opinion Filed on February 4, 2010

Opinion Vacated and Petition for Rehearing En Banc

Granted on April 9, 2010

Rehearing En Banc Ordered for June 3, 2010

Argued En Banc on June 3, 2010

Before: McKEE, Chief Judge, SLOVITER, SCIRICA,

RENDELL, BARRY,

AMBRO, FUENTES, SMITH, FISHER, CHAGARES,

JORDAN,

GREENAWAY, JR. VANASKIE and ROTH, Circuit Judges.

(Opinion filed: June 13, 2011)

ANTHONY G. SANCHEZ, ESQ. (Argued)

CHRISTINA LANE, ESQ.

Andrews & Price

1500 Ardmore Boulevard, Suite 506

Pittsburgh, PA 15221

Attorneys for Appellant, Hermitage School District

SEAN A. FIELDS, ESQ.

Associate Counsel

Pennsylvania School Boards Association

400 Bent Creek Boulevard

P.O. Box 2042

Mechanicsburg, PA 17055

Attorney for Amicus Curiae, Pennsylvania School

Board Association, filed in support of Appellant,

Hermitage School District

KIM M. WATTERSON, ESQ.

2

RICHARD T. TING, ESQ.

WILLIAM J. SHERIDAN, ESQ.

Reed Smith LLP

435 Sixth Avenue

Pittsburgh, PA 15219

WITWOLD J. WALCZAK, ESQ. (Argued)

SARA J. ROSE, ESQ.

American Civil Liberties Foundation

of Pennsylvania

313 Atwood Street

Pittsburgh, PA 15213

Attorneys for Appellees, Donald Layshock,

Cheryl Layshock

JOHN W. WHITEHEAD, ESQ.

The Rutherford Institute

1440 Sachem Place

Charlottesville, VA 22901

Attorney for Amicus Curiae, The Rutherford

Institute, in support of Appellees,

Donald Layshock, Cheryl Layshock

JOANNA J. CLINE, ESQ.

BRIAN A. BERKLEY, ESQ.

JOSHUA B. HIRSHEY, ESQ.

EMMETT M. HOGAN, ESQ.

Pepper Hamilton LLP

18th & Arch Streets

3000 Two Logan Square

Philadelphia, PA 19103

3

FRANK D. LoMONTE, ESQ.

MICHAEL C. HIESTAND, ESQ.

ADAM GOLDSTEIN, ESQ.

The Student Press Law Center

1101 Wilson Boulevard, Suite 1100

Arlington, VA 22209

Attorneys for Amicus Curiae, The Student Press Law

Center, in support of Appellees, Donald Layshock,

Cheryl Layshock

ROBERT D. RICHARDS, ESQ.

CLAY CALVERT, ESQ.

Pennsylvania Center for the

First Amendment

The Pennsylvania State University

308 James Building

University Park, PA 16802

Attorneys for Amicus Curiae, Pennsylvania

Center for the First Amendment, in support of

Appellees, Donald Layshock, Cheryl Layshock

OPINION OF THE COURT

McKEE, Chief Judge.

We are asked to determine if a school district can punish

a student for expressive conduct that originated outside of the

schoolhouse, did not disturb the school environment and was not

related to any school sponsored event. We hold that, under these

circumstances, the First Amendment prohibits the school from

4

reaching beyond the schoolyard to impose what might otherwise

be appropriate discipline.

It all began when Justin Layshock used his grandmother=s

computer to access a popular social networking internet web site

where he created a fake internet Aprofile@ of his Hickory High

School Principal, Eric Trosch. His parents filed this action

under 42 U.S.C. ' 1983, after the School District punished

Justin for that conduct. The suit alleges, inter alia, that the

School District=s punishment transcended Justin=s First

Amendment right of expression. The district court granted

summary judgment in favor of Justin on his First Amendment

claim. We originally affirmed the district court. See Layshock

v. Hermitage School Dist., 593 F.3d 249 (3d Cir. 2010).

Thereafter, we entered an order vacating that opinion and

granting rehearing en banc. For the reasons that follow, we

once again affirm the district court=s holding that the

school district=s response to Justin=s conduct transcended

the protection of free expression guaranteed by the First

Amendment.

I. FACTUAL BACKGROUND

In December of 2005, Justin Layshock was a seventeen-

year old senior at Hickory High School, which is part of the

Hermitage School District in Hermitage, Pennsylvania.

Sometime between December 10th and 14th, 2005, while Justin

was at his grandmother=s house during non-school hours, he

used her computer to create what he would later refer to as a

Aparody profile@ of his Principal, Eric Trosch. The only school

resource that was even arguably involved in creating the profile

5

was a photograph of Trosch that Justin copied from the School

District=s website. Justin copied that picture with a simple Acut

and paste@ operation using the computer=s internet browser and

mouse. Justin created the profile on AMySpace.@1 MySpace is a

popular social-networking website that Aallows its members to

create online >profiles,= which are individual web pages on

which members post photographs, videos, and information about

their lives and interests.@ Doe v. MySpace, Inc., 474 F.Supp. 2d

843, 845 (W.D. Tex. 2007).2

Justin created the profile by giving bogus answers to

survey questions taken from various templates that were

designed to assist in creating a profile. The survey included

questions about favorite shoes, weaknesses, fears, one=s idea of

a Aperfect pizza,@ bedtime, etc. All of Justin=s answers were

based on a theme of Abig,@ because Trosch is apparently a large

man. For example, Justin answered Atell me about yourself@

questions as follows:

1

MySpace is found at: http://www.myspace.com.

2

Social online networking sites allow members to use Atheir

online profiles to become part of an online community of people

with common interests. Once a member has created a profile,

she can extend >friend invitations= to other members and

communicate with her friends over the MySpace.com platform

via e-mail, instant messaging, or blogs.@ Doe, 474 F. Supp.2d at

846.

6

Birthday: too drunk to remember

Are you a health freak: big steroid

freak

In the past month have you

smoked: big blunt3

In the past month have you been on

pills: big pills

In the past month have you gone

Skinny Dipping: big lake, not big

dick

In the past month have you Stolen

Anything: big keg

Ever been drunk: big number of

times

Ever been called a Tease: big

whore

Ever been Beaten up: big fag

Ever Shoplifted: big bag of kmart

3

Justin explained that a Ablunt@ was a marijuana cigarette.

7

Number of Drugs I have taken: big

Under AInterests,@ Justin listed: ATransgender, Appreciators of

Alcoholic Beverages.@ Justin also listed ASteroids International@

as a club Trosch belonged to.

Justin afforded access to the profile to other students in

the School District by listing them as Afriends@ on the MySpace

website, thus allowing them to view the profile. Not

surprisingly, word of the profile Aspread like wildfire@ and soon

reached most, if not all, of Hickory High=s student body.4

During mid-December 2005, three other students also

posted unflattering profiles of Trosch on MySpace. Each of

those profiles was more vulgar and more offensive than Justin=s.

Trosch first learned about one of the other profiles from his

daughter, who was in eleventh grade. On Monday, December

12, 2005, Trosch told his Co-Principal, Chris Gill, and the

District Superintendent, Karen Ionta, about this other profile and

asked the Technology Director, Frank Gingras, to disable it.

However, despite the administration=s best efforts, students

found ways to access the profiles. Trosch discovered Justin=s

profile on Thursday evening, December 15th, and a fourth

profile on Sunday, December 18th.

4

Justin later explained that he made the profile to be funny,

and did not intend to hurt anyone. However, there was

obviously nothing Afunny@ about the profile in the eyes of the

school administration.

8

Trosch believed all of the profiles were Adegrading,@

Ademeaning,@ Ademoralizing,@ and Ashocking.@ He was also

concerned about his reputation and complained to the local

police. Although he was not concerned for his safety, he was

interested in pressing charges against those responsible for the

bogus profiles, and he discussed whether the first profile he

discovered might constitute harassment, defamation, or slander.

However, no criminal charges were ever filed against Justin or

any of the other student authors of profiles.

On December 15th, Justin used a computer in his Spanish

classroom to access his MySpace profile of Trosch. He also

showed it to other classmates, although he did not acknowledge

his authorship. After viewing the profile, the students logged

off of MySpace. Justin again attempted to access the profile

from school on December 16th, purportedly to delete it. School

district administrators were unaware of Justin=s in-school

attempts to access MySpace until their investigation the

following week. Teacher Craig Antush glimpsed the profile in

his computer lab class and told the students who were

congregating around a computer and giggling to shut it down.

The School District administrators were not able to

totally block students from visiting the MySpace web page at

school because Gingras, the Technology Coordinator, was on

vacation on December 16th. However, the school was able to

control students= computer access by limiting the students= use of

computers to computer labs or the library where internet access

could be supervised. School officials continued to limit

computer use from December 16th until December 21st, which

was the last day of school before Christmas recess. Computer

9

programming classes were also cancelled.

According to the district court, the School District=s

investigation revealed how many students had accessed

MySpace before access to the site at school was disabled, but

the school could not determine how many students actually

accessed any of the Trosch profiles, or which Trosch profiles

had been viewed while a student was on the MySpace website.

School District officials first learned that Justin might

have created one of the Trosch profiles on December 21. On

that day, Justin and his mother were summoned to a meeting

with Superintendent Ionta and Co-Principal Gill. During that

meeting, Justin admitted creating a profile, but no disciplinary

action was then taken against him. After the meeting, without

prompting from anyone, Justin went to Trosch=s office and

apologized for creating the profile.5

Justin=s parents were understandably upset over Justin=s

behavior. They discussed the matter with him, expressed their

extreme disappointment, Agrounded@ him, and prohibited him

from using their home computer.

On January 3, 2006, the school district sent a letter to

Justin and his parents giving them notice of an informal hearing

that was to be held. The letter read, in pertinent part, as follows:

5

Trosch later testified that he found Justin=s apology

respectful and sincere. Justin followed up with a written letter

of apology on January 4, 2006.

10

Justin admitted prior to the

informal hearing that he created a

profile about Mr. Trosch.

This infraction is a violation of the

Hermitage School District

Discipline Code: Disruption of the

normal school process; Disrespect;

Harassment of a school

administrator via computer/internet

with remarks that have demeaning

implications; Gross misbehavior;

Obscene, vulgar and profane

language; Computer Policy

violations (use of school pictures

without authorization).

The School District subsequently found Justin guilty of all of

those charges.

In addition to a ten-day, out-of-school suspension,

Justin=s punishment consisted of (1) being placed in the

Alternative Education Program (the AACE@ program) at the high

school for the remainder of the 2005-2006 school year;6 (2)

6

Students assigned to ACE meet in a segregated area of the

high school for three hours each day. The program is typically

reserved for students with behavior and attendance problems

who are unable to function in a regular classroom.

Prior to creating the Myspace profile, Justin was

11

being banned from all extracurricular activities, including

Academic Games and foreign-language tutoring;7 and (3) not

being allowed to participate in his graduation ceremony.8 The

Layshocks were also informed that the School District was

considering expelling Justin. Ironically, Justin, who created the

least vulgar and offensive profile, and who was the only student

to apologize for his behavior, was also the only student punished

for the MySpace profiles.

II. DISTRICT COURT PROCEEDINGS

The Layshocks initiated this action on January 27, 2006,

by filing a three count complaint pursuant to 42 U.S.C. ' 1983

individually, and on Justin=s behalf, against the Hermitage

School District, Karen Ionta, Eric Trosch, and Chris Gill, in

their official and individual capacities (hereinafter collectively

referred to as the ASchool District@ or ADistrict@). The

Layshocks also filed a motion for a temporary restraining order

classified as a gifted student, was enrolled in advanced

placement classes, and had won awards at interscholastic

academic competitions. The record does not reveal how the

School District determined that it was appropriate to place such

a student in a program designed for students who could not

function in a classroom.

7

Justin had been a French tutor to middle school students.

8

Justin did graduate in 2006 and went on to attend a

university in New York City.

12

and/or preliminary injunction. Count I of the complaint alleged

that the District=s punishment of Justin violated his rights under

the First Amendment. Count II alleged that the District=s

policies and rules were unconstitutionally vague and/or

overbroad, both on their face and as applied to Justin. Count III

alleged that the District=s punishment of Justin interfered with,

and continued to interfere with, their right as parents to

determine how to best raise, nurture, discipline and educate their

child in violation of their rights under the Due Process Clause of

the Fourteenth Amendment.

The district court denied the request for a temporary

restraining order, Layshock v. Hermitage Sch. Dist., 412 F.

Supp.2d 502, 508 (W.D. Pa. 2006), and the Layshocks withdrew

their motion for a preliminary injunction pursuant to the district

court=s efforts at mediation.9 On March 31, 2006, the district

court denied the District=s motion to dismiss the Layshocks=

claims. The court ruled that the parents may assert a claim for a

violation of their own due process right to Araise, nurture,

discipline and educate their children@ based on a school district=s

punishment of their child for speech the child uttered in the

family home.

After discovery, both sides moved for summary

9

The Layshocks agreed to withdraw their motion for a

preliminary injunction in exchange for the District=s agreement

to remove Justin from the ACE program, reinstate him to his

regular classes, allow him to participate in Academic Games,

and attend his graduation.

13

judgment, and the court thereafter entered summary judgment in

favor of Justin and against the School District only on the First

Amendment claim.10 The court concluded that a jury trial was

necessary to determine compensatory damages and attorneys=

fees. See id. at 607.

Thereafter, the district court denied the District=s motion

for entry of judgment pursuant to Fed.R.Civ.P. 54(b) or, in the

alternative, for the issuance of a certificate of appealability

pursuant to 28 U.S.C. ' 1292(b).

10

The district court ruled that Trosch was entitled to

summary judgment on all counts because he was not involved in

disciplining Justin. It also held that Ionta and Gill were entitled

to summary judgment on Justin=s First Amendment claim based

on qualified immunity, and that all of the defendants were

entitled to summary judgment on the vagueness/overbreadth

challenge and the parents= substantive due process claim.

14

The parties subsequently filed a joint motion in which

they stipulated to damages and requested entry of final judgment

while preserving all appellate issues pertaining to liability. The

district court then entered a consent judgment, and the School

District appealed the district court=s grant of summary judgment

in favor of Justin on his First Amendment claim.11

III. SUMMARY JUDGMENT

ASummary judgment is proper when the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no genuine

issue as to any material fact and that the moving party is entitled

to judgment as a matter of law.@ Bjorgung v. Whitetail Resort,

LP, 550 F.3d 263, 268 (3d Cir. 2008) (citation and internal

quotation marks omitted). In ruling on a motion for summary

11

The Layshocks filed a cross-appeal (No. 07-4555) from the

district court=s grant of summary judgment in favor of the

School District on their Fourteenth Amendment Due Process

claim. In our opinion filed on February 4, 2010, we affirmed the

district court=s grant of summary judgment to the School District

on that claim, and the Layshocks did not seek rehearing en banc

on that claim. Therefore, although we vacated the February 4,

2010, opinion and judgment as to the School District=s appeal at

No. 07-4464, and granted the School District=s petition for

rehearing en banc, we also, on April 9, 2010, ordered that Athe

opinion and judgment entered by this Court on February 4, 2010

stands with respect to the affirmance of the district court=s grant

of summary judgment to the [School District] on [the

Layshocks=] Fourteenth Amendment Due Process claim.@

15

judgment, the district court must view the facts in the light most

favorable to the non-moving party. Merkle v. Upper Dublin

Sch. Dist., 211 F.3d 782, 788 (3d Cir. 2000). However, Athe

mere existence of some alleged factual dispute between the

parties will not defeat an otherwise properly supported motion

for summary judgment.@ Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 247-48 (1986). AAs our review of a grant of summary

judgment is plenary, we operate under the same legal standards

as the District Court.@ Bjorgung, 550 F.3d at 268.

IV. DISCUSSION

1. The First Amendment=s Application in Public Schools.

In the landmark case of Tinker v. Des Moines Indep.

Cmty. Sch. Dist., 393 U.S. 503 (1969), a group of high school

students decided to wear black arm bands to school to protest

the war in Vietnam. When school officials learned of the

planned protest, they preemptively prohibited students from

wearing armbands. Several students who ignored the ban and

wore armbands to school anyway were suspended. Id. at 504.

Those students brought an action against the school through

their parents under 42 U.S.C. ' 1983, alleging that their First

Amendment rights had been violated. The district court rejected

that claim and upheld the constitutionality of the school

officials= action, finding that it had been reasonable to preserve

discipline. Id. 504-505. The district court=s decision was

affirmed without opinion by an equally divided court of appeals

sitting en banc. Id. at 505.

The case was appealed to the Supreme Court, which held

that student expression may not be suppressed unless school

16

officials reasonably conclude that it will Amaterially and

substantially disrupt the work and discipline of the school.@ Id.

at 513. The Court concluded that the students were doing

nothing more than engaging in political speech, and wearing

armbands to express Atheir disapproval of the Vietnam hostilities

and their advocacy of a truce, to make their views known, and,

by their example, to influence others to adopt them.@ Id. at 514.

The school district=s only interest in banning the speech had

been the Amere desire to avoid the discomfort and

unpleasantness that always accompany an unpopular viewpoint@

or Aan urgent wish to avoid the controversy which might result

from the expression.@ Id. at 509-10. The Court held that this

interest was not enough to justify banning Aa silent, passive

expression of opinion, unaccompanied by any disorder or

disturbance.@ Id. at 508. In one of its most famous passages, the

Court explained:

First Amendment rights, applied in light of the special

characteristics of the school environment, are available to

teachers and students. It can hardly be argued that either

students or teachers shed their constitutional rights to

freedom of speech or expression at the schoolhouse gate.

Id. at 506.

Thus, although the Court concluded that the First

Amendment did reach inside the Aschoolhouse gate,@ it also

recognized that the unique nature of the school environment had

to be part of any First Amendment inquiry. The Court explained

that it Aha[d] repeatedly emphasized the need for affirming the

comprehensive authority of the States and of school officials,

17

consistent with fundamental constitutional safeguards, to

prescribe and control conduct in the schools.@ Id. at 507.

The Court next addressed the scope of the First

Amendment in the context of student speech in Bethel School

District No. 403 v. Fraser, 478 U.S. 675 (1986). There, the

Court upheld the school=s suspension of a high school student

for delivering a nominating speech at a school assembly using

Aan elaborate, graphic, and explicit sexual metaphor.@ Id. at 678.

The Court explained:

The schools, as instruments of the

state, may determine that the

essential lessons of civil, mature

conduct cannot be conveyed in a

school that tolerates lewd, indecent,

or offensive speech and conduct

such as that indulged in by

[Fraser].12

Id. at 683. In reaching this conclusion, the Court distinguished

its prior holding in Cohen v. California, 403 U.S. 15 (1971).

There, the Court had struck down an adult=s conviction for

disorderly conduct that was based on his wearing a jacket, inside

a court house, that had an obscenity about the draft printed on it.

12

In Saxe v. State College Area School District, 240 F.3d 200,

213 (3d Cir. 2001), we interpreted Fraser as establishing that

Athere is no First Amendment protection for >lewd,= >vulgar,=

>indecent,= and >plainly offensive= speech in school.@

18

The Fraser Court explained:

It does not follow . . . that simply

because the use of an offensive

form of expression may not be

prohibited to adults making what

the speaker considers a political

point, the same latitude must be

permitted to children in public

school. . . . [T]he First Amendment

gives a high school student the

classroom right to wear Tinker=s

armband, but not Cohen=s jacket.

Id. at 682 (citation and internal quotation marks omitted). The

Court concluded that the school could punish Fraser for his

offensive nominating speech during a school assembly because

the First Amendment does not prevent schools from

encouraging the Afundamental values of >habits and manners of

civility,=@ id. at 681, by Ainsisting that certain modes of

expression are inappropriate and subject to sanctions.@ Id. at

683. Thus, A[t]he determination of what manner of speech in the

classroom or in school assembly is inappropriate properly rests

with the school board.@ Id.

Similarly, in Hazelwood School District. v. Kuhlmeier,

484 U.S. 260 (1988), the Court held that a principal=s deletion of

student articles on teen pregnancy from a school-sponsored

newspaper did not violate the First Amendment. The Court

distinguished Tinker by noting that because the school had not

opened the newspaper up as a public forum, the school could

19

Aexercis[e] editorial control over the style and content of student

speech in school-sponsored expressive activities so long as [its]

actions are reasonably related to legitimate pedagogical

concerns.@ Id. at 273. The Court explained:

The question whether the First

Amendment requires a school to

tolerate particular student speech B

the question that we addressed in

Tinker B is different from the

question whether the First

Amendment requires a school

affirmatively to promote particular

student speech. The former

question addresses educators=

ability to silence a student=s

personal expression that happens to

occur on the school premises. The

latter question concerns educators=

authority over school-sponsored . . .

expressive activities that students,

parents, and members of the public

might reasonably perceive to bear

the imprimatur of the school. . . .

Educators are entitled to exercise

greater control over this second

form of student expression.

Id. at 270-71.

The extent to which First Amendment protections apply

20

in the public school context was most recently addressed in

Morse v. Frederick, 551 U.S. 393 (2007). There, A[a]t a school-

sanctioned and school-supervised event, a high school principal

[Morse] saw some of her students unfurl a large banner

conveying a message she reasonably regarded as promoting

illegal drug use.@ Id. at 396. The banner read: ABONG HiTS 4

JESUS.@ Id. at 397. AConsistent with established school policy

prohibiting such messages at school events, [Morse] directed the

students to take down the banner.@ Id. at 396. Frederick, one of

the students who brought the banner to the event, refused to

remove it, and Morse Aconfiscated the banner and later

suspended [Frederick].@ Id. Frederick sued Morse and the

school district pursuant to 42 U.S.C. ' 1983, alleging a violation

of his First Amendment right of expression. The district court

granted summary judgment to the school district and Morse,

holding that they were entitled to qualified immunity and that

they had not infringed Frederick=s First Amendment rights. Id. at

399. The Court of Appeals for the Ninth Circuit reversed.

The Supreme Court granted certiorari to determine

Awhether Frederick had a First Amendment right to wield his

banner, and, if so, whether that right was so clearly established

that the principal may be held liable for damages.@ Id. at 400.13

The Court Aresolve[d] the first question against Frederick,@ and,

therefore, did not have to reach the second. Id. The Court

explained that its Fourth Amendment jurisprudence recognized

that Adeterring drug use by school children is an important B

13

The court of appeals had ruled that the principal was not

entitled to qualified immunity.

21

indeed, perhaps compelling interest.@ Id. at 407 (citation

omitted). The Aspecial characteristics of the school

environment, and the governmental interest in stopping student

drug abuse allow schools to restrict student expression that they

reasonably regard as promoting such abuse.@ Id. at 408. Thus,

Aa principal may, consistent with the First Amendment, restrict

student speech at a school event, when that speech is reasonably

viewed as promoting illegal drug use.@ Id. at 402. The Court

rejected Frederick=s claim that since he was across the street

from the school and not on school property, he was not inside

Tinker=s Aschoolhouse gate,@ and school officials therefore had

lost authority over him. The Court reasoned that the event

where the banner was unfurled occurred during school hours,

and it had been approved by the school=s principal as a school

event. Id. at 400. School events and field trips off school

grounds were subject to the school=s rules for student conduct.

Id. at 400-01.

It is against this legal backdrop that we must determine

whether the District=s actions here violated Justin=s First

Amendment rights.

At the outset, it is important to note that the district court

found that the District could not Aestablish[] a sufficient nexus

between Justin=s speech and a substantial disruption of the

school environment[,]@ Layshock, 496 F. Supp. 2d at 600, and

the School District does not challenge that finding on appeal.

Therefore, the School District is not arguing that it could

properly punish Justin under the Tinker exception for student

speech that causes a material and substantial disruption of the

school environment. See Tinker, 393 U.S. at 513. Rather, the

22

District=s argument is twofold:

[A] sufficient nexus exists between

Justin=s creation and distribution of

the vulgar and defamatory profile

of Principal Trosch and the School

District to permit the School

District to regulate this conduct.

The Aspeech@ initially began on-

campus: Justin entered school

property, the School District web

site, and misappropriated a picture

of the Principal. The Aspeech@ was

aimed at the School District

community and the Principal and

was accessed on campus by Justin.

It was reasonably foreseeable that

the profile would come to the

attention of the School District and

the Principal.

District=s Br. at 9.

2. Justin=s AEntry@ Onto the District=s Website.

The School District=s attempt to forge a nexus between

the School and Justin=s profile by relying upon his Aentering@ the

District=s website to Atake@ the District=s photo of Trosch is

unpersuasive at best. The argument equates Justin=s act of

signing onto a web site with the kind of trespass he would have

committed had he broken into the principal=s office or a

23

teacher=s desk; and we reject it. See Thomas v. Board of Educ.,

607 F.2d 1043 (2d Cir. 1979).

We find the reasoning in Thomas v. Board of Educ., 607

F.3d 1043 (2d Cir. 1979), far more persuasive.20 Thomas

involved a group of students who were suspended for producing

Aa satirical publication addressed to the school community.@ Id.

at 1045. The articles included such topics as masturbation and

prostitution, as well as more standard fare such as Aschool

lunches, cheerleaders, classmates, and teachers.@ Id. ASome of

the initial preparation for publication occurred after school hours

in the classroom@ of a teacher whom the students consulted Afor

advice on isolated questions of grammar and content.@ Id. In

addition, Aan occasional article was composed or typed within

the school building, always after classes,@ and the finished

magazine was stored in a Aclassroom closet@ with the classroom

teacher=s permission. Id.

20

Thomas was decided after Tinker but before Fraser.

24

However, the students were very careful to distribute the

periodical only after school and off campus, and the vast

majority of their work on the publication was done Ain their

homes, off campus and after school hours.@ Id. The school

principal learned of the magazine when a teacher confiscated a

copy from another student on campus, and Afollowing

consultation with the Board of Education,@ the principal

imposed penalties that included a five-day suspension of the

students involved.21 Id. at 1046. The punishment was based on

the students= publication of Aan allegedly >morally offensive,

indecent, and obscene,= tabloid.@ Id. at 1050 n.12.

The students sued the school board and other school

officials under 42 U.S.C. ' 1983. They sought Ainjunctive and

declaratory relief from alleged deprivations of their First and

Fourteenth Amendment rights.@ Id. at 1046. The district court

denied the students= request for injunctive relief based upon its

conclusion that the publication Awas potentially destructive of

discipline in [the school], and therefore not protected by the

First Amendment.@ Id. at 1047.

The Court of Appeals for the Second Circuit concluded

that the students= conduct was not sufficiently related to the

school to justify the school=s exercise of authority. The court

21

The Principal and Superintendent of Schools had initially

decided to take no action pending assessment of the

publication=s impact. However, they ultimately decided to act

after being contacted by the President of the Board of Education.

Thomas, 607 F.2d at 1045-46.

25

explained:

[A]ll but an insignificant amount of

relevant activity in this case was

deliberately designed to take place

beyond the schoolhouse gate.

Indeed, the [students] diligently

labored to ensure that [the

magazine] was printed outside the

school, and that no copies were

sold on school grounds. That a few

articles were transcribed on school

typewriters, and that the finished

product was secretly and

unobtrusively stored in a teacher=s

closet do not alter the fact that [the

magazine] was conceived,

executed, and distributed outside

the school. At best, therefore, any

activity within the school itself was

De minimis.

Id. at 1050.

The court reached that conclusion even though the

students actually stored the offending publication inside a

classroom and did some minimal amount of work on the

periodical in school using school resources. Here, the

relationship between Justin=s conduct and the school is far

more attenuated than in Thomas. We agree with the

analysis in Thomas. Accordingly, because the School

26

District concedes that Justin=s profile did not cause

disruption in the school, we do not think that the First

Amendment can tolerate the School District stretching its

authority into Justin=s grandmother=s home and reaching

Justin while he is sitting at her computer after school in

order to punish him for the expressive conduct that he

engaged in there.

We realize, of course, that it is now well established

that Tinker=s Aschoolhouse gate@ is not constructed solely

of the bricks and mortar surrounding the school yard.

Nevertheless, the concept of the Aschool yard@ is not

without boundaries and the reach of school authorities is

not without limits. In Morse, the Court held that the First

Amendment does not prevent a principal from Arestrict[ing]

student speech at a school event, when that speech is

reasonably viewed as promoting illegal drug use.@ 551

U.S. at 403 (emphasis added). Nevertheless, with regard

to expressive conduct that occurs outside of the school

context, the Court, referring to its earlier decision in

Fraser, was careful to note that A[h]ad Fraser delivered the

same speech in a public forum outside the school context, it

would have been protected.@ 551 U.S. at 404 (citations omitted).

It would be an unseemly and dangerous precedent

to allow the state, in the guise of school authorities, to

reach into a child=s home and control his/her actions there

to the same extent that it can control that child when

he/she participates in school sponsored activities.

Allowing the District to punish Justin for conduct he

engaged in while at his grandmother=s house using his

27

grandmother=s computer would create just such a

precedent, and we therefore conclude that the district

court correctly ruled that the District=s response to Justin=s

expressive conduct violated the First Amendment

guarantee of free expression.

3. The District Cannot Punish Justin Merely Because

His Speech Reached Inside the School.

As noted above, the School District also claims that

Justin=s speech can be treated as Aon-campus@ speech because it

Awas aimed at the School District community and the Principal

and was accessed on campus by Justin [and] [i]t was reasonably

foreseeable that the profile would come to the attention of the

School District and the Principal.@

The district court held that the School District=s

punishment of Justin was not appropriate under Fraser

because A[t]here is no evidence that Justin engaged in any

lewd or profane speech while in school.@ Layshock, 496 F.

Supp.2d at 599-600. It also held that Justin=s punishment

was not appropriate under Tinker because the School

District did Anot establish[] a sufficient nexus between

Justin=s speech and a substantial disruption of the school

environment.@ Id. at 600.

The School District does not dispute the district

court=s finding that its punishment of Justin was not

appropriate under Tinker; it rests its argument on the

Supreme Court=s analysis in Fraser. In the School

District=s view, Justin=s speech B his MySpace profile of

Trosch B was unquestionably vulgar, lewd and offensive,

28

and therefore not shielded by the First Amendment

because it ended up inside the school community.22

Similarly, the School District argues that under our

decision in Saxe, see n.12, supra, there is no First

Amendment protection for lewd, vulgar, indecent or plainly

offensive speech in schools.23

22

The District=s argument in this regard is not crystal clear as

its brief suggests that it can react to Justin=s profile merely

because it was lewd and vulgar. For example, the District

summarizes one of its arguments as follows:

The School District did not violate the First Amendment

by punishing Justin for engaging in conduct which

interfered with the School District=s Ahighly appropriate

function . . . to prohibit the use of vulgar and offensive

terms in public discourse.@

District=s Br. at 10 (ellipsis in original).

However, we reject out of hand any suggestion that schools can police students= out-

of-school speech by patrolling Athe public discourse.@ Accordingly, we will assume that the

District is arguing that it can control lewd and vulgar speech as authorized under Fraser.

23

In Saxe, we did state: AUnder Fraser, a school may

categorically prohibit lewd, vulgar or profane language.@ 240

F.3d at 214. However, when read in context, it is clear that we

were there referring only to speech inside Tinker=s schoolhouse

gate. Thus, we summarized the holding in Fraser as follows:

AAccording to Fraser, . . . there is no First Amendment

protection for >lewd,= >vulgar,= >indecent,= and >plainly offensive=

speech in school.@ Id. at 213 (emphasis added).

29

The District rests this argument primarily on three

cases which it claims allow it to respond to a student=s

vulgar speech when that speech is posted on the internet.

The District cites J.S. v. Bethlehem Area Sch. Dist., 807 A.2d

847 (Pa. 2002); Wisniewski v. Bd. of Educ. of Weedsport Cent.

Sch. Dist., 494 F.3d 34 (2d Cir. 2007); and Doninger v. Niehoff,

527 F.3d 41 (2d Cir. 2008). However, as we will explain, each

of those cases involved off campus expressive conduct that

resulted in a substantial disruption of the school, and the courts

allowed the schools to respond to the substantial disruption that

the student=s out of school conduct caused.

In J.S., an eighth grade student created a threatening

website aimed at his algebra teacher that went so far as to

explain A[w]hy Should She Die,@ and requested money Ato help

pay for the hitman.@ 807 A.2d at 851. The site frightened

several students and parents and the algebra teacher was so

badly frightened that she ended up having to take medical leave

from her teaching responsibilities. As a result of her inability to

return to teaching, Athree substitute teachers were required to be

utilized which disrupted the educational process of the students.@

Id. at 852. AIn sum, the web site created disorder and

significantly and adversely impacted the delivery of instruction.@

Id. at 869. The Supreme Court of Pennsylvania concluded that

the resulting disruption of instruction and the educational

environment allowed the school to punish the student for his

expressive conduct even though the student created the website

from his home.24

24

The district court believed that J.S. was Aon point@ but

Arespectfully reache[d] a slightly different balance between

30

Similarly, the school suspended the student in

Wisniewski, for creating an image on the internet from his home

computer that depicted a pistol firing a bullet at a teacher=s head

with dots representing splattered blood above the head. 494

F.3d at 36. The words: AKill Mr. VanderMolen@ were printed

beneath the drawing. VanderMolen was the student=s English

teacher. The student created the image a couple of weeks after

his class was instructed that threats would not be tolerated at the

school, and would be treated as acts of violence. The court of

appeals affirmed the district court=s grant of summary judgment

in favor of the school district in a suit alleging a violation of the

First Amendment based on the school=s suspension of the

student for the out-of-school conduct. The court reasoned that

A[t]he fact that [the student=s] creation and transmission of the

icon occurred away from school property [did] not necessarily

insulate him from school discipline.@ 494 F.3d at 39. The court

reasoned that Aeven if [the student=s] transmission of an [image]

depicting and calling for the killing of his teacher could be

viewed as an expression of opinion within the meaning of

Tinker,@ it was not protected by the First Amendment because Ait

cross[ed] the boundary of protected speech and pose[d] a

reasonably foreseeable risk [of] materially and substantially

disrupting the work and discipline of the school.@ Id. at 38-9

(internal quotation marks omitted).

student expression and school authority.@ Layshock, 496 F.

Supp. 2d at 602. However, we do not think J.S. is Aon point@ or

the least bit helpful because there is no comparison between the

impact of the conduct there and the impact of the conduct here.

31

Finally, in Doninger, a student, who was a class officer,

posted a message on her publicly accessible web log or Ablog@

that resulted in school authorities not allowing her to participate

in an election for class office.25 Id. at 43. In her message, she

complained about a school activity that was cancelled Adue to

douchebags in central office,@ and encouraged others to contact

the central office to Apiss [the district superintendent] off more.@

Id. at 45. When the principal learned of the student=s posting,

she prohibited her from running for senior class secretary

Abecause [the student=s] conduct had failed to display the civility

and good citizenship expected of class officers.@ Id. at 46. The

student and her parents then sought injunctive relief in the form

of a court order allowing her to run for class office. The court

of appeals affirmed the district court=s denial of relief because

the student=s out of school expressive conduct Acreated a

foreseeable risk of substantial disruption to the work and

discipline of the school.@ Id. at 53.26 A [The student] herself

25

AA blog (a contraction of the term >web log=) is a type of

website, usually maintained by an individual with regular entries

or commentary, descriptions of events, or other material such as

graphics or video. . . . >Blog= can also be used as a verb,

meaning to maintain or add content to a blog.@

(http://en.wikipedia.org/wiki/Blog) (last visited September 23,

2010).

26

The blog had resulted in numerous calls and emails to the

principal, and the court of appeals noted that the blog also used

inaccurate and misleading information to rally those who read it

to contact the school principal.

32

testified that . . . students were >all riled up= and that a sit-in was

threatened.@ Id. at 51. Accordingly, the court of appeals held

that the student=s mother Afailed to show clearly that [the

student=s] First Amendment rights were violated when she was

disqualified from running@ for class office. Id. at 53.

However, for our purposes, it is particularly important to

note that the court in Doninger was careful to explain that it

A[had] no occasion to consider whether a different, more serious

consequence than disqualification from student office would

raise constitutional concerns.@ Id. at 53. Of course, Justin=s

consequences were more serious; he was suspended.

Moreover, in citing Doninger, we do not suggest that we

agree with that court=s conclusion that the student=s out of

school expressive conduct was not protected by the First

Amendment there. Rather, we cite Doninger only to

respond to the School District=s contention that that case

supports its actions against Justin.

As noted earlier, the District=s January 3, 2006, letter to

the Layshocks advising them of Justin=s suspension reads, in

relevant part, that it was punishing Justin because AJustin

admitted prior to the informal hearing that he created a profile

about Mr. Trosch.@ Although the letter also mentions disruption,

we have taken care to stress that the District does not now

challenge the district court=s finding that Justin=s conduct did not

result in any substantial disruption. Moreover, when pressed at

oral argument, counsel for the School District conceded that the

District was relying solely on the fact that Justin created the

profile of Trosch, and not arguing that it created any substantial

disruption in the school. However, as noted above, Fraser does

33

not allow the School District to punish Justin for expressive

conduct which occurred outside of the school context. See

Morse, 551 U.S. at 404 (AHad Fraser delivered the same speech

in a public forum outside the school context, it would have been

protected.@) (citations omitted). Moreover, we have found no

authority that would support punishment for creating such a

profile unless it results in foreseeable and substantial disruption

of school.

We believe the cases relied upon by the School District

stand for nothing more than the rather unremarkable proposition

that schools may punish expressive conduct that occurs outside

of school, as if it occurred inside the Aschoolhouse gate,@ under

certain very limited circumstances, none of which are present

here.

As the court of appeals explained in Thomas: A[O]ur

willingness to defer to the schoolmaster=s expertise in

administering school discipline rests, in large measure,

upon the supposition that the arm of authority does not

reach beyond the schoolhouse gate.@ 607 F.2d at 1045.

We need not now define the precise parameters of when

the arm of authority can reach beyond the schoolhouse

gate because, as we noted earlier, the district court found

that Justin=s conduct did not disrupt the school, and the

District does not appeal that finding. Thus, we need only

hold that Justin=s use of the District=s web site does not

constitute entering the school, and that the District is not

empowered to punish his out of school expressive conduct

under the circumstances here.

Based on those two conclusions, we will affirm the

34

district court=s grant of summary judgment to Justin Layshock

on his First Amendment claim.27

JORDAN, Circuit Judge, concurring, with whom VANASKIE,

Circuit Judge, joins.

Our Court today issues en banc decisions in two cases

with similar fact patterns. In both the case presently before us

and in J.S. v. Blue Mountain School District, No. 08-4138, we

are asked whether school administrators can, consistent with the

First Amendment, discipline students for speech that occurs off

campus.14 Unlike the fractured decision in J.S., we have

reached a united resolution in this case, but there remains an

27

The District argues in the alternative that it did not violate

the First Amendment by punishing Justin because his speech

was defamatory and not protected by the First Amendment. The

Layshocks respond by arguing that Justin=s profile is a parody

that cannot constitute defamation. However, whether or not we

accept the characterization of a Aparody,@ the issue before us is

limited to whether the District had the authority to punish Justin

for expressive conduct outside of school that the District

considered lewd and offensive.

14 This

case and J.S. are not related cases in the sense of

being linked on our docket, but they raise nearly identical First

Amendment issues. It is no accident that they were taken en

banc at the same time, were argued on the same date, and are

being decided simultaneously.

35

issue of high importance on which we are evidently not agreed

and which I note now, lest there be any misperception that it has

been resolved by either J.S. or our decision here. The issue is

whether the Supreme Court‟s decision in Tinker v. Des Moines

Independent Community School Dist., 393 U.S. 503 (1969), can

be applicable to off-campus speech. I believe it can, and no

ruling coming out today is to the contrary.15

In Tinker, the Supreme Court emphasized that student

speech, “in class or out of it, which for any reason … materially

disrupts classwork or involves substantial disorder or invasion

of the rights of others is, of course, not immunized by the

constitutional guarantee of freedom of speech.” Id. at 513. It

also suggested that if there are “facts which might reasonably

have led school authorities to forecast substantial disruption of

or material interference with school activities,” that too can

result in disciplinary measures. Id. at 514. Given those

statements, the applicability of Tinker here seems straight-

forward, although it gives no shelter to the defendant school

district in this case because, as the opinion for our Court notes,

15 I readily acknowledge that “[t]here is some uncertainty

at the outer boundaries as to when courts should apply school

speech precedents” Morse v. Frederick, 551 U.S. 393, 401

(2007), and my conclusion about Tinker‟s applicability in this

case and in J.S. does not account for permutations that may

make Tinker inapposite. Whether the test framed by Tinker will

always be applicable is not a matter to be answered in the

abstract. It is enough for present purposes to observe that it is

an analytical approach the Supreme Court has employed for

decades and that it is both sensible and salutary to apply it in

cases like these.

36

“the [Hermitage School] District does not now challenge the …

finding that [the student‟s] conduct did not result in any

substantial disruption[,]” Slip Op. at 33, nor did the School

District demonstrate that the student‟s speech or conduct created

a reasonable apprehension of substantial disruption.

Tinker ought likewise to be viewed as providing the

governing rule of law in J.S., but that has been thrown into

question by the competing opinions that have emerged in en

banc review. The Majority opinion in J.S. takes the position that

whether Tinker is applicable to off-campus speech is something

that can be assumed without being decided since, in the

Majority‟s view, there was no substantial disruption and hence

the school administrators could not lawfully mete out discipline

for the despicable speech and behavior detailed in that case.

Judge Smith‟s concurring opinion in J.S. argues that Tinker does

not apply. He appears to conclude that, with the exceptions of

speech specifically directed at the school and of speech while at

school-sanctioned events, speech that takes place off-campus is

beyond the reach of school discipline. See J.S. Concurrence,

slip op. at 3-4. The concurrence does acknowledge, however,

that whether Tinker applies “cannot turn solely on where the

speaker was sitting when the speech was originally uttered[,]”

because “[s]uch a standard would fail to accommodate the

somewhat „everywhere at once‟ nature of the internet[,]” id. at 8.

Judge Fisher then skillfully demonstrates in his dissent in J.S.,

that the heavy focus in the concurrence on an “off-campus

versus on-campus” distinction is artificial and untenable in the

world we live in today. See J.S. Dissent, slip op. at n.4. For

better or worse, wireless internet access, smart phones, tablet

computers, social networking services like Facebook, and

37

stream-of-consciousness communications via Twitter give an

omnipresence to speech that makes any effort to trace First

Amendment boundaries along the physical boundaries of a

school campus a recipe for serious problems in our public

schools.

Tinker teaches that schools are not helpless to enforce the

reasonable order necessary to accomplish their mission. Again,

school officials may curtail speech if they can show “facts

which might reasonably have led [them] to forecast substantial

disruption of or material interference with school activities.”

393 U.S. at 514. We have similarly stressed that, “if a school

can point to a well-founded expectation of disruption ... the

restriction may pass constitutional muster.” Saxe v. State

College Area Sch. Dist., 240 F.3d 200, 212 (3d Cir. 2001).

Trying to limit that principle along real property lines is bound

to run into trouble, as the J.S. concurrence concedes by saying

that there can be difficulty in knowing whether speech has

occurred on or off campus. J.S. Concurrence, slip op. at 8. That

concession, though, fails to get at the fundamental difficulty in

cases like these. The problem is not in knowing where a speaker

was when uttering or otherwise creating speech. Like other

historical facts, where a speaker said something is a matter that

can be decided by typical fact-finding techniques. If the point of

the J.S. concurrence is not to question where the speaker was

physically so much as to question how to characterize the speech

itself, i.e., as having on-campus or off-campus effects, then the

definitional exercise only obscures the effort to answer the

central dilemma, which is how to balance the need for order in

our public schools with respect for free speech. That is the

problem Tinker aimed to address and it is the problem we are

38

confronting too, so we should be applying rather than avoiding

Tinker.16

We cannot sidestep the central tension between good

order and expressive rights by leaning on property lines. With

the tools of modern technology, a student could, with malice

aforethought, engineer egregiously disruptive events and, if the

trouble-maker were savvy enough to tweet the organizing

communications from his or her cellphone while standing one

foot outside school property, the school administrators might

16 The J.S. concurrence cites Morse, as supporting the

conclusion that Tinker is inapplicable to off-campus speech,

noting that the Morse Court “took care to refute the contention

that the plaintiff‟s speech … did not occur „at school‟” which

“would have been unnecessary” if Tinker were meant to apply to

off-campus speech. J.S. Concurrence, slip op. at 4. That

argument mistakes the import of both Morse and Tinker,

however. The subject of the speech in Morse, which was an odd

reference to illegal drug use, had no relation to the school or

school activities. 551 U.S. at 396. In none of the opinions

issued today is it suggested that such speech, if it took place off

campus and apart from a school sanctioned event, would be

covered by Tinker. Speech that neither relates to school nor

occurs on campus or during a school sanctioned event will in all

likelihood lack a reasonable nexus to school and so will be

divorced from the question of good order in the school, which is

the reach of Tinker. Thus, I do not share the concern expressed

in the J.S. concurrence that applying Tinker to off-campus

speech would “empower schools to regulate students‟ expressive

activities,” or to “suppress political speech” such as “a blog

entry defending gay marriage.” J.S. Concurrence, slip op. at 6.

39

succeed in heading off the actual disruption in the building but

would be left powerless to discipline the student. Perhaps all of

us participating in these en banc decisions would agree on that

being problematic. It is, after all, a given that “[t]he most

stringent protection of free speech would not protect a man in

falsely shouting fire in a theatre and causing a panic.” Schenck

v. United States, 249 U.S. 47, 52 (1919), and no one supposes

that the rule would be different if the man were standing outside

the theater, shouting in. Thus it is hard to see how words that

may cause pandemonium in a public school would be protected

by the First Amendment simply because technology now allows

the timing and distribution of a shout to be controlled by

someone beyond the campus boundary.

40

If it is accepted that the First Amendment would not

protect such a deliberate disturbance, we should acknowledge

that we are weighing competing interests and do so in the

straightforward though sometimes challenging way directed by

Tinker. Just as society‟s interest in public safety surmounts any

claim of right to raise a false fire alarm, by the same token any

claimed right to spread scurrilous falsehoods about school

administrators may well be outweighed by society‟s legitimate

interest in the orderly administration of public schools. Tinker

outlines the approach the Supreme Court has given for

undertaking that weighing process.

I worry that the combination of our decisions today in

this case and in J.S. may send an “anything goes” signal to

students, faculties, and administrators of public schools. To the

extent it appears we have undercut the reasoned discretion of

administrators to exercise control over the school environment,

we will not have served well those affected by the quality of

public education, which is to say everyone. By way of some

little reassurance, then, it bears emphasis that, whatever else

may be drawn from these decisions, we have not declared that

Tinker is inapplicable to off-campus speech simply because it

occurs off-campus. Despite differing views on what may

constitute a substantial disruption, I hope and believe that we are

all mindful of the challenges school administrators face in

providing a safe environment, conducive to learning and civic

development, for children and young adults. Those challenges

have never been greater than they are today. Modern

communications technology, for all its positive applications, can

be a potent tool for distraction and fomenting disruption. Tinker

allows school officials to discipline students based on a

41

reasonable forecast of substantial disruption, without waiting for

the chaos to actually hit the hallways.

In short, nothing in the First Amendment requires

administrators to check their common sense at the school house

door. When they must forecast how poisonous accusations

lobbed over the internet are likely to play out within the school

community, if they “can point to a well-founded expectation of

disruption,” Saxe, 240 F.3d at 212, we ought to be supportive of

their reasonable efforts to maintain appropriate order. I concur

in the Court‟s decision in this case, but do not subscribe to any

implication that Tinker is inapplicable and that school officials

would have been powerless to head off a substantial

disruption.17

17 I take comfort from certain caveats in the opinion.

While putting distance between our Court and the decisions of

the United States Court of Appeals for the Second Circuit in

Wisniewski v. Board of Educ. of Weedsport Cent. School Dist.,

494 F.3d 34 (2d Cir. 2007), and Doninger v. Niehoff, 527 F.3d

41 (2d Cir. 2008), the opinion for the Court in this case

nonetheless acknowledges that those Second Circuit precedents

“stand for … the unremarkable proposition that schools may

punish expressive conduct that occurs outside of school … .”

Slip Op. at 34. It is noteworthy too that the Majority opinion in

J.S. distinguishes the character of the student speech at issue in

the Second Circuit cases from the speech in J.S. but it does not

make any distinction based on the location of the speaker. In

any event, I agree with the Second Circuit‟s ultimate conclusion

in Wisniewski that Tinker can have applicability to student

speech that occurs off-campus. See Wisniewski, 494 F.3d at 38

42

(Ruling on internet speech communicated by a student from a

home computer, and holding, “[w]ith respect to school officials‟

authority to discipline a student‟s expression reasonably

understood as urging violent conduct, we think the appropriate

First Amendment standard is the one set forth by the Supreme

Court in Tinker.”)

43