Lead Opinion
OPINION OF THE COURT
This appeal presents a challenge to J.S.’s suspension from Blue Mountain Middle School after she created from her home computer a MySpace.com Internet profile featuring her principal, James McGonigle. The profile did not state McGonigle’s name, but included his photograph from the website of Blue Mountain School District (the “School District”), as well as profanity-laced statements insinuating that he was a sex addict and pedophile. On appeal, J.S. and her parents assert that the District Court erred in granting summary judgment in favor of the School District, arguing that the School District violated J.S.’s First Amendment free speech rights by punishing her for creating the profile; the School District violated J.S.’s parents’ fundamental right to direct the upbringing of their child by regulating her out-of-school conduct; Pennsylvania law does not permit school districts to discipline students for out-of-school conduct; and the School District’s disciplinary and computer-use policies were unconstitutionally vague and overbroad. Because we believe school authorities could reasonably have forecasted a substantial disruption of or material interference with the school as a result of the MySpace profile, as defined by Tinker v. Des Moines Independent Community School District,
I.
A. Factual History
In Spring 2007, J.S. was a fourteen-year-old eighth grader at Blue Mountain Middle School (the “Middle School”) in Orwigsburg, Pennsylvania, where she lived with her two parents, Terry and Steven Snyder (the “Snyders”). She was an hon- or roll student and had faced discipline at
On Sunday, March 18, 2007, J.S. and her friend K.L., another eighth grader at the Middle School, created a fictitious profile on MySpace.com from J.S.’s house using a computer belonging to J.S.’s parents.
General detention, being a tight ass. riding the fraintrain.2 spending time with my child (who looks like a gorilla), baseball.my golden pen. fucking in my office, hitting on students and their parents.
Music i love all kinds, favorite is techno. Television almost anything, i mainly watch—the playboy channel on directo. OH YEAH BITCH!
Heroes myself, ofcourse.
(App. at 38 (all text and formatting as in original).) Another section, entitled “About me,” stated:
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 to be just like me. I know, I know, you’re all
thrilled
Another reason I came to my space is because-I am
keeping an eye on you students
(who 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
so please, feel free to add me, message me whatever
Id. (all text and formatting as in original). J.S. testified before the District Court at a
J.S. and K.L. initially set the MySpace profile as “public,” which made it accessible by anyone who knew the URL or found it by searching MySpace for a term the profile contained. At school on Monday, March 19, 2007, the day after the profile was created, numerous friends at the Middle School approached J.S. to talk about the profile, generally saying they found it funny. J.S. testified that she made the profile “private” after school that evening, so it could be viewed only by those people whom she and K.L. invited to be “m-hoe=]’s” MySpace online friends. The two students then granted “friend” status to approximately twenty-two other students. Because the Middle School computers block access to MySpace, students could have viewed the profile only from an off-campus location. McGonigle testified that he first learned of the profile on that Monday.
On the morning of Tuesday, March 20, 2007, a student, B, approached McGonigle, informed him of the profile, and told him it contained disturbing comments about him. McGonigle asked B to try to find out who created the profile, and afterwards attempted to find the profile himself from his office computer, which did not block access to MySpace. Unable to locate the profile, McGonigle called MySpace, Inc., which told him it could not direct him to a specific profile without the URL. By Tuesday afternoon, B returned to McGonigle and advised him that J.S. had created the profile. McGonigle asked B to bring him a printout of the MySpace profile.
B brought a printed copy of the profile to McGonigle at the Middle School on the morning of Wednesday, March 21, 2007. To the best of McGonigle’s knowledge, this was the only copy of the profile that entered the school. Because the printout contained the profile’s URL, McGonigle apparently was able to open and view the profile directly from the MySpace website, despite the students having made it private. J.S. was absent from school on that particular day, so McGonigle was unable to discuss the profile with her at that time. McGonigle then approached Superintendent Joyce Romberger and Director of Technology Susan Schneider-Morgan. The three met for approximately ten or fifteen minutes, reviewed the profile, and concluded that it violated the School District’s Acceptable Use Policy (“AUP”) because it violated copyright laws in misappropriating McGonigle’s photograph from the School District’s website without permission. See id. at 39-55. Romberger and Schneider-Morgan did not discuss whether the statements in the profile were true. Although Romberger was required to report any misconduct by the principal to the Board of School Directors, 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.
McGonigle next showed the profile to two guidance counselors, Debra Frain (his wife) and Michelle Guers. He contacted MySpace, Inc. a second time to inquire whether he could learn the identity of the profile’s creator based on the URL, and
On Thursday, March 22, 2007, J.S. returned to school and McGonigle called her and K.L. to his office to meet with him and Guers regarding the profile. Although J.S. initially denied creating the profile, she ultimately admitted her role. McGonigle explained to the girls that he “was very upset and very angry, hurt, and [he] c[ould]n’t understand why [they] did this to [him] and [his] family,” and “told them that [he] would be looking to take legal action against them and their families].” J.S. and K.L. remained in McGonigle’s office while he contacted their parents and waited for both of their mothers to arrive at the school. McGonigle met with J.S. and her mother, Terry Snyder (“Snyder”), and showed her the profile. He informed them that he was punishing J.S. and K.L. with a ten-day out-of-school suspension, which prohibited attendance at school functions, and again threatened legal action against them. J.S. and Snyder apologized to McGonigle, and J.S. followed this in-person apology with a subsequent apology letter to McGonigle and Frain.
Shortly after J.S. and Snyder left his office, McGonigle called MySpace, Inc., provided it with the appropriate URL, and requested that it promptly remove the profile, which it did. McGonigle contacted Romberger to inform her of the punishment he imposed on J.S. and K.L. and, despite her ability to overrule his disciplinary decisions, she concurred with his decision to suspend the students for ten days. Next, McGonigle contacted the police to look into a criminal action against J.S. and K.L. The local police referred him to the state police, and he invited a state police officer to the Middle School to look at the profile. The officer told McGonigle he could press criminal harassment charges, but that they would likely be dropped, and McGonigle then declined to press charges, although he did file a formal report. The officer asked McGonigle whether he wanted him to call J.S., K.L., and their parents to the police station to “let them know how serious [the situation] was.” McGonigle responded in the affirmative and, on Friday, March 23, 2007, the officer summoned J.S., K.L., and their mothers to the police station to discuss the profile. The same day, McGonigle sent J.S.’s parents a disciplinary notice stating that J.S. had been suspended for ten days. The next week, Romberger denied Snyder’s request to overrule the suspension, and J.S. apparently never appealed her suspension to the Board of School Directors. During the ten-day suspension, J.S.’s school assignments were brought to her home. Snyder testified that, in addition to the suspension, the Snyders punished J.S. “for a very long time” for her role in creating the profile.
Because our legal analysis turns on the interaction between the profile and the Middle School, we will detail the relevant facts regarding the effect of the profile on the school. Before the District Court, the School District argued that the profile disrupted school because (1) two teachers, Randall Nunemacher and Angela Werner, had to quiet their classes while students talked about the profile; (2) one guidance counselor had to proctor a test so another administrator could sit in on the meetings
Specifically, Nunemacher testified that on Thursday, March 22, 2007, when McGonigle called J.S. and K.L. into his office, a group of six or seven students disrupted his second period eighth-grade Algebra class by talking about the profile and the girls’ suspensions during their unstructured classroom work time and by continuing to talk after he told them several times to stop. Nunemacher quieted them nicely two or three times, and finally, after he raised his voice, the talking stopped; the entire incident lasted five or six minutes. Nunemacher also testified that he overheard at least two students talking about the profile on Wednesday, March 21, 2007, in his sixth period class. The students talked for a minute or two, and then quieted down once he asked them to stop talking. Nunemacher stated that he typically asks students to quiet down during class about once a week. In addition to these two incidents, Nunemacher reported that he heard general “rumblings” that week indicating that students were discussing the profile, but he did not yet fully understand the situation when he overheard the comments, and could not give any specific details about these rumblings.
Werner testified that during her Skills for Adolescents class, some eighth-grade girls approached her after the lesson was finished to tell her about the profile. They mentioned that they were concerned about some specific comments in the profile regarding McGonigle and his family. Additionally, Guers was scheduled to administer a makeup test on the morning McGonigle met with J.S., K.L., and their mothers, but had to sit in on the meetings with McGonigle and the girls instead, and therefore asked Frain to supervise the testing for twenty-five to thirty minutes. Frain then had to cancel some student counseling appointments in order to do so. The students with whom Frain cancelled her meetings would have proceeded to their normal classes instead, and rescheduled these meetings with her.
McGonigle also testified that, upon J.S. and K.L.’s return from suspension, some students decorated the girls’ lockers to welcome them back with “construction paper with confetti and ribbons and bows and stuff like that,” and the decorations stated “congratulations.” McGonigle said these locker decorations “created quite a buzz and a stir in the eighth grade hallway with about 20 to 30 students in a circle that had to be broken up by teachers.” As a result, he “severely reprimanded” the two students who had decorated the lockers, and called their parents to inform them of the incident. These two students told McGonigle they had decorated the lockers to “congratulate J.S. and K.L.] on what they did.” McGonigle stated that the students who decorated the lockers “didn’t mean to hurt me, but they didn’t think it was right, the fact that I suspended [J.S. and K.L.].” The students who merely congregated in the hall were not reprimanded. Finally, McGonigle testified that he noticed a severe deterioration in discipline in the Middle School, especially among the eighth graders, following the creation of the profile, his corresponding discipline of J.S. and K.L., and J.S. and the Snyders’ filing of this lawsuit. He attributed this change to a new culture of students rallying against the administration. McGonigle also mentioned that he had stress-related health problems as a result of the profile and this litigation.
B. Procedural History
J.S. and her parents filed this 42 U.S.C. § 1983 civil rights action on March 28,
Following discovery, both parties moved for summary judgment on November 21, 2007. In January 2008, J.S. and the Snyders stipulated to the dismissal of McGonigle and Romberger as defendants in the suit. On September 11, 2008, the District Court denied summary judgment as to J.S. and the Snyders, but granted it as to the School District. J.S. ex rel. Snyder v. Blue Mountain Sch. Dist., No. 3:07cv585,
II.
The District Court had jurisdiction under 28 U.S.C. §§ 1331 and 1343. We exercise jurisdiction over the instant appeal pursuant to 28 U.S.C. § 1291.
Our review of the District Court’s grant of summary judgment is plenary, and we apply the same standard as the District Court. See, e.g., Busch v. Marple Newtown Sch. Dist.,
III.
A. First Amendment Freedom of Speech
At issue in the instant appeal is whether the School District’s punishment of J.S. for her role in creating the MySpace profile offends the free speech protections of the First Amendment. We thus begin with a brief overview of the four Supreme Court cases that provide the applicable body of law for determining when school administrators can restrict student speech although, notably, the Court has not yet spoken on the relatively new area of student internet speech. In outlining the overarching principles regarding student speech, the Court has noted that “[i]t can hardly be argued that either students or teachers shed their constitutional rights to
In Tinker, school officials learned of some students’ plans to wear black armbands to express their objection to the United States’ involvement in the war in Vietnam. Id. at 504,
“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.” Saxe v. State Coll. Area Sch. Dist.,
The Supreme Court further limited the application of the First Amendment in the context of student speech in a case involving a principal’s decision to withhold two pages of a high school student-run newspaper from publication. Hazelwood Sch. Dist. v. Kuhlmeier,
Finally, the Supreme Court recently explored whether a principal violated a student’s First Amendment rights in forcing him to take down a fourteen-foot banner, unfurled at a school-sanctioned and school-supervised event, that read “BONG HiTS 4 JESUS.” Morse v. Frederick,
1. Student Speech
In the instant appeal, J.S. argues initially that the First Amendment protects her speech, even if it was lewd and offensive pursuant to Fraser, because it occurred entirely outside the Middle School.
2. Substantial Disruption
Under Tinker, we must determine whether J.S.’s speech created a significant threat of substantial disruption in the Middle School. Tinker states that “conduct by the student, in class or out of it [while still under school control]
Our sister courts of appeals offer further support for the notion that a school may meet its burden of showing a substantial disruption through its well-founded belief that future disruption will occur. See Doninger v. Niehoff,
Nevertheless, we balance this exception based on substantial disruption or invasion of the rights of others against the protected nature of off-campus student speech. See Morse,
3. Application of Law to the Facts of the Instant Case
The School District advances, and the District Court focused on, specific examples of actual disruption that occurred at the Middle School as a result of the profile, as elicited from McGonigle’s, Nunemacher’s, and Werner’s deposition testimony. Were we examining the facts merely for evidence of a “substantial disruption of or material interference with school activities” that had already taken place, see Tinker,
However, the School District also argues that, given the immediate impact of the profile on the Middle School, absent McGonigle’s quick corrective actions to curb its effect, the profile’s potential to cause a substantial disruption of the school was reasonably foreseeable. It is apparent that the underlying cause for McGonigle’s concern about the profile was its particularly disturbing content, not a petty desire to stifle speech critical of him, and we proceed with our analysis with this in mind. Therefore, we are sufficiently persuaded that the profile presented a reasonable possibility of a future disruption, which was preempted only by McGonigle’s expeditious investigation of the profile, which secured its quick removal, and his swift punishment of its creators. We are especially concerned about the profile’s blatant allusions to McGonigle engaging in sexual misconduct, such as: the profile’s URL containing the phrase “kidsrockmybed”; “m-hoe=]’s” interests including “fucking in my office,” “hitting on students and their parents,” and “mainly watch[ing] the playboy channel on directv”; and an “About me” section in which “m-hoe=]” describes himself as a “sex addict,” states “I have come to myspace so i[sic] can pervert the minds of other principal’s [sic] to be just like me,” and says “I love children[ ][and] sex (any kind).” (App. at 38.) J.S. and K.L. directly targeted McGonigle when they misappropriated his photograph from the School District’s website by pasting it into the profile, identifying “m-hoe=]” as a principal even though the profile did not state his name, and focusing their “jokes” around “m-hoe=]’s” sexual proclivities, including activities clearly inappropriate for a Middle School principal and illegal for any adult. Moreover, the girls disseminated the profile and allowed other students in the School District’s community (as well as anyone else who came across it) to access and view the profile freely initially, and subsequently allowed others to view the profile by becoming MySpace friends with “m-hoe=].” We find it doubtful that the connection between the profile’s sexual innuendo and McGonigle’s role and duties as principal was lost on J.S. and K.L. or their target audience of other students of the Middle School and, in any event, it is not lost on us. The girls embarrassed, belittled, and possibly defamed McGonigle. They created the profile not as a personal, private, or anonymous expression of frustration or anger, but as a public means of humiliating McGonigle before those who knew him in the context of his role as Middle School principal. Indeed, several facts the School District elicited during depositions further support our conclusion regarding the profile’s effect and its potential for future disruption: Werner testified that some eighth-grade girls approached her to express their concern about some specific comments in the profile pertaining to McGonigle and his family; B originally informed McGonigle of the profile to convey that it contained disturbing comments about him; and, most significantly, McGonigle testified that he noticed a severe deterioration in discipline in the Middle School, and particularly among the eighth graders, following the publication of the profile and the punishment of J.S. and K.L.
Undoubtedly, students have made fun of or made distasteful jokes about school officials, free from the consequences of school punishment, either out-of-earshot or outside the school context since the advent of our modern educational system. However, due to the technological advances of the Internet, J.S. and K.L. created a profile that could be, and in fact was, viewed by at least twenty-two members of
The District Court also found that the profile contained “potentially illegal” speech.
This outcome is in accord with several nonbinding cases that we find persuasive regarding circumstances under which schools can regulate students’ off-campus Internet speech. See Doninger,
The dissent attempts to distinguish these cases by arguing that 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.” Dissenting Op. at Part II.A. Rather than showing J.S. did not intend for the speech to reach the school, the fact that she took action to allow only chosen Blue Mountain Middle School students to see the profile demonstrates that her behavior directly targeted the school. Additionally, McGonigle was able to access the profile by typing in the URL even after J.S. set the profile to private. Anyone else who learned the URL would presumably have also been able to access the profile notwithstanding the private setting.
Admittedly, no similar events involving Internet speech had occurred previously at the Middle School that might have led McGonigle to ascertain the threat of a substantial disruption based on past incidents, as occurred in Sypniewski. However, we find the speech in Sypniewski factually dissimilar from the profile at issue here because the language on the T-shirts in Sypniewski was not vulgar or offensive itself, but only in relation to other students’ prior speech. See
The Snyders argue that the School District interfered with their Fourteenth Amendment substantive due process right to direct the upbringing of their child free from government intervention. See Troxel v. Granville,
During this custodial time, in order to maintain order and the proper educational atmosphere, at times, those authorities ‘may impose standards of conduct that differ from those approved of by some parents.’ Where these standards collide, a court will require the State to demonstrate a compelling interest that outweighs the parental liberty interest in raising and nurturing their child.
Anspach,
The Snyders argue that the District Court erred in holding that if the School District did not violate J. S.’s First Amendment rights, it could not have violated the Snyders’ parental rights because these are two separate constitutional rights, worthy of separate analyses. The Snyders argue specifically that the School District infringed on their rights when it reached into the family home to punish J.S.’s conduct, and the School District cannot overcome this with any compelling interest.
The School District, in response, notes that parental rights are not without limits or beyond regulation: “Courts have held that in certain circumstances the parental right to control the upbringing of a child must give way to a school’s ability to control curriculum and the school environment.” C.N. v. Ridgewood Bd. of Educ.,
C. Pennsylvania Law
J.S. argues that Pennsylvania law, in limiting schools’ ability to regulate students’ conduct, makes clear that her creation of the profile was not subject to punishment by the School District. The relevant Pennsylvania statute states:
The board of school directors in any school district may adopt and enforce such reasonable rules and regulations as it may deem necessary and proper, ... 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. Stat. § 5-510 (emphasis added). J.S. argues that the Pennsylvania Commonwealth Court has interpreted the emphasized provision to mean that a school district may not punish a student for out-of-school conduct. See D.O.F. v. Lewisburg Area Sch. Dist. Bd. of Sch. Dirs.,
However, as the School District argues, we find D.O.F. and Hoke distinguishable from the instant appeal. J.S. was enrolled in the School District at the time she created the profile, in contrast to the facts of Hoke, and, as previously discussed, 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.,
D. Facial Challenge: Overbreadth and Vagueness
J.S. argues that the School District’s disciplinary policy, as contained in the
“A regulation is unconstitutional on its face on overbreadth grounds where there is a[sic] ‘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,
We have no trouble concluding that the Handbook is not overbroad on its face. The School District’s policy is reasonably limited to allowing regulation of speech and behavior only when its students are “under the direct control and supervision of the school district officials,” and Sypniewski expressly encourages judicial restraint in this area when the student speech presents the possibility of substantially disrupting school under Tinker. Further, we read the Handbook in conjunction with a Pennsylvania regulation that states: “Students shall have the right to express themselves unless the expression materially and substantially interferes with the educational process, threatens serious harm to the school or community, encourages unlawful activity or interferes with another individual’s rights.” 22 Pa. Code § 12.9(b). The fact that we also concluded that McGonigle did not violate J.S.’s First Amendment free speech rights in punishing her for creating the profile off-campus in light of its potential for future disruption of the school only underscores the conclusion that the Handbook’s language does not present a chilling effect on free expression, nor is it unconstitutionally overbroad.
We also reject J.S.’s vagueness argument. A regulation can be void for vagueness in either of two ways: (1) by “failing] to provide the kind of notice that will enable ordinary people to understand what conduct it prohibits”; or (2) by “authorizing] and even encouraging] arbitrary and discriminatory enforcement.”
McGonigle testified that he believed J.S.’s conduct violated the AUP because it ran afoul of copyright laws in misappropriating his picture from the School District’s website. (App. at 44.) Also, prior to punishing J. S., he concluded that the creation of the profile was a level-four disciplinary infraction according to the Handbook because it made false accusations about a school staff member. Id. at 65-66,
IV.
We hold that Tinker applies to student speech, whether on- or off-campus, that causes or threatens to cause a substantial disruption of or material interference with school or invades the rights of other mem
Notes
. MySpace.com is "a social networking platform that allows Members to create unique personal profiles online in order to find and communicate with old and new friends.” Terms & Conditions, MySpace.com, http:// www.myspace.com/index.cfm?fuseaction= misc.terms (last visited Aug. 17, 2009).
. This appears to be a reference to McGonigle’s wife, Debra Frain, a guidance counselor at the Middle School. Also, next to McGonigle’s picture on the profile is a quote that reads as follows: "fraintrain- it's a slow ride but you’ll get there eventually.” (App. at 38.)
. It is well-established that J.S.’s status as a minor does not affect her First Amendment rights. See Planned Parenthood of Cent. Mo. v. Danforth,
. The District Court also stated that the profile contained "potentially illegal” speech, and both parties dispute on appeal whether the profile consisted of criminal harassment or tortious defamation under Pennsylvania law.
. We may affirm the District Court on alternate grounds, provided that the record supports the judgment. Rodriguez v. Our Lady of Lourdes Med. Ctr.,
. We cannot accept the Dissent’s suggestion that Tinker's “in class or out of it” language is intended to only allow school discipline for those disruptions occurring on the school campus. Electronic communication allows students to cause a substantial disruption to a school’s learning environment even without being physically present. We decline to say that simply because the disruption to the learning environment originates from a computer located off campus, the school should be left powerless to discipline the student.
. The Dissent contends this point is not supported by the record. Dissenting Op. at Part II.A, n. 3. It is inevitable, however, that as more students and parents learned of the MySpace profile, greater disruption to the learning environment would have taken place. There would have been greater concern with McGonigle's fitness to continue in his job. While Superintendent Romberger, who knew McGonigle, may have quickly concluded the profile was a series of lies, parents unfamiliar with McGonigle almost certainly would have raised questions about his supervision over their children. The time spent by McGonigle and other school and district administrators alleviating these concerns certainly would have been a substantial disruption to the educational mission of the school.
The dissent blames the School District's response to the MySpace profile for the disruptions that did occur at the Middle School. Whatever disruption that resulted from punishing the students who created the profile was mild compared to the substantial disruption that would have occurred when 50 or 100 students, as opposed to only 22, gained access to the profile and parents, acting out of concern for their children’s safety challenged McGonigle’s fitness.
. We disagree with our dissenting colleague’s assertion that under our standard a school district could punish two students "for using a vulgar remark to speak about their teacher at a private party.” Dissenting Op. at Part II.B. The dissent’s hypothetical could be correct had we used Fraser s vulgarity test as the basis for this opinion. Because unlike the District Court we rely on Tinker, not Fraser as the basis of our opinion, there is a principled difference between the dissent's hypothetical and this case. Our opinion, reached by applying Tinker, only allows school discipline when there is a significant risk of substantial disruption at the school. Since we are expressly not applying Fraser to conduct off school grounds, there is no risk that a vulgar comment made outside the school environment will result in school discipline absent a significant risk of a substantial disruption at the school.
. Tinker leaves open a further avenue for schools to regulate student speech when it “involves ... invasion of the rights of others.”
. Contrary to the dissent’s characterization, our description of the vulgarity of the MySpace page is not an indication that we are basing any part of our reasoning on Fraser. Dissenting Op. at Part II.A. Instead we mention vulgarity as one reason why J.S.’ conduct was likely to cause a substantial disruption at the school. It is the significant risk that the conduct would cause a substantial disruption, however, not the vulgarity of the MySpace page, that serves as the basis for our opinion.
. A separate appeal dealing with school discipline of a student who created a MySpace profile of his principal was filed simultaneously in our Court. See Layshock v. Hermitage Sch. Dist.,
. The dissent argues that J.S. speech was protected by the First Amendment and therefore the school district was prohibited from punishing her while contending that it "do[es] not pass upon the viability of other measures the appellees could have pursued”. Dissenting Op. at ¶ 2. One of the options the dissent
. At oral argument, J.S.'s counsel conceded that the overbreadth argument is perhaps derivative of the other claims on appeal.
Concurrence Opinion
concurring in part and dissenting in part.
J.S. was suspended from school for speech that took place outside the schoolhouse gates, during non-school hours, and that indisputably caused no substantial disruption in school. Because I believe that file School District’s actions violated J.S.’s First Amendment free speech rights, I respectfully dissent from the majority’s conclusion to the contrary.
In reaching this conclusion, I recognize the comprehensive authority of schools and school officials to prescribe and regulate conduct within schools. Nonetheless, people of all ages are entitled to the freedoms guaranteed by the First Amendment and such freedoms must be respected. I further recognize that speech such as that employed in this case—even made in jest—could damage the careers of teachers and school administrators. Aggrieved schools and school officials may well seek redress through civil lawsuits and perhaps even by pressing criminal charges. I conclude only that the punitive action taken by the School District in this case violated the First Amendment rights of J.S. I do not pass upon the viability of other measures the appellees could have pursued.
I.
J.S., an Honor Roll eighth grade student, was punished for creating a fake
The profile contained crude content and vulgar language, ranging from nonsense and juvenile humor to profanity and personal attacks aimed at the principal and his family. Particularly disturbing were the profile’s references to pedophilia. However, the record indicates that the profile was so outrageous that no one took its content seriously. In fact, McGonigle himself acknowledged that he believed the students “weren’t accusing me. They were pretending they were me.” App. 327. Moreover, McGonigle showed the profile to Superintendent Joyce Romberger, who was required to report any suspected misconduct by the school principal to the Board of School Directors. As the majority acknowledges, however, Romberger took no such action “because she believed [the profile] consisted of ‘lies’ and ‘malicious comments’ made by students angry at McGonigle.” Majority Op. 292.
Initially, the profile could be viewed in full by anyone who knew the URL 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 Blue Mountain School District students.
Notably, the School District’s computers block access to MySpace, so no Blue Mountain student was ever able to view the profile from school. Moreover, as the majority acknowledges, the only printout of the profile that was ever brought to school was one brought at McGonigle’s specific request. Majority Op. 292. McGonigle then used the URL on the printout to view the profile from his office computer, which did not block access to MySpace.
After meeting with J.S., K.L., and then-parents, and informing them that the children would receive a ten-day out-of school suspension for creating the profile, McGonigle also contacted the 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 be dropped. McGonigle chose not to press charges, and instead completed a formal report and asked the police to speak to the students to let them know how serious the situation was.
In an attempt to justify punishment, the School District asserts that the profile disrupted school. As the majority concedes, the School District only points to three instances of alleged “disruptions”:
(1) two teachers, Randall Nunemacher and Angela Werner, had to quiet then-classes while students talked about the profile; (2) one guidance counselor had to proctor a test so another administrator could sit in on the meetings between McGonigle, J.S., and K.L.; and (3) two students decorated J.S. and KL.’s lockers to welcome them back upon their return to school following the suspension, and students congregated in the hallway at that time.
Majority Op. 293-94. Notably, Nunemacher acknowledged that the talking in class was not a unique occurrence, and admitted that he had to tell his students to stop talking about various topics approximately once a week. Similarly, Werner stated that the incident she was involved in did not disrupt class because the students spoke to her during the portion of the class when students were permitted to work independently. The substitution of a guidance counselor to proctor a test also did not cause any major inconveniences in school because the meetings only lasted about twenty-five to thirty minutes, and the student counseling appointments that had to be cancelled during that time were all rescheduled.
The majority also notes that McGonigle testified that when J.S. and K.L. returned from suspension, some students decorated the girls’ lockers to welcome them back to school, which created “a buzz and a stir” in the hallway. McGonigle punished the two students who decorated the lockers. The majority also emphasizes McGonigle’s testimony that he “noticed a severe deterioration in discipline in the Middle School ... following the creation of the profile, his corresponding discipline of J.S. and K.L., and ... this lawsuit,” and that “he had stress-related health problems as a result of the profile and this litigation.” Majority Op. 294. I believe that this testimony 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.
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,
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 plaintiffs 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
The District Court then rejected several other district court decisions where the courts did not allow school punishment of speech that occurred off campus, including the decision in Layshock v. Hermitage School District,
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. 5 (citing Tinker,
II.
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, all of which compel the conclusion that the School District violated J.S.’s First Amendment free speech rights when it suspended her for speech that took place outside the school, during non-school hours, and that caused no substantial disruption in school.
Unquestionably, the First Amendment protects the free speech rights of students in school. Morse,
The Supreme Court established a basic framework for student free speech claims in Tinker, holding that “to justify prohibition of a particular expression of opinion,” school officials must demonstrate that “the
As this Court 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,
The Supreme Court recently articulated a third exception to Tinker’s general rule in Morse. Although, prior to the instant 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.
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.”
Here, the majority declines to decide whether the School District could have punished J.S.’s speech under the Fraser standard, Majority Op. 298, but concludes that the School District did not violate J.S.’s First Amendment rights because “school authorities could reasonably have forecasted a substantial disruption of or material interference with the school as a result of the MySpace profile, as defined by Tinker,” Id. 290. Because I do not believe that either Tinker or Fraser justifies the School District’s actions in this case, I dissent.
A.
I believe that the District Court correctly concluded that the School District’s suspension of J.S. was unlawful under Tinker. 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, the District Court explicitly found that “a substantial disruption so as to fall under Tinker did not occur,” App. at 17, and the majority has “no trouble concluding ... that [the specific examples of actual disruption that the School District points to] did not amount to a substantial disruption of the Middle School sufficient to discipline the students for their speech,” Majority Op. 299. Yet, the majority attempts to overcome this considerable hurdle by adopting the standard put forth by several of our sister courts of appeals, which allows schools to meet the Tinker test by showing that a substantial disruption was “reasonably foreseeable.” Id. 299 (citing Doninger v. Niehoff,
I assume, without expressing an opinion, that the “foreseeability” standard is consistent with Tinker;
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.”
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 517-18,
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 disruption of or material interference with school activities,” and thus that the school violated the students’ First Amendment rights. Id. at 514,
My colleagues acknowledge that the “actual disruption[s]” that the School District points to are no more than “minor inconveniences.” Majority Op. 299. They also concede that it is “difficult to separate the effects that the profile itself had on the school from the effects attributable to McGonigle’s investigation of the profile and subsequent punishment of J.S. and K.L.” Id. 299-300. Yet the majority concludes that a substantial disruption was reasonably foreseeable, given the content
Moreover, I believe that a comparison of our record to that of Tinker demonstrates that to apply the foreseeability standard adopted by our sister courts of appeals in a principled manner, courts need to define “foreseeability” in a way that is harmonious with Tinker. That is, 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 majority cites several cases where courts held that a forecast of substantial and material disruption was reasonably foreseeable. See, e.g., Doninger,
The majority likens this case to the above cases by contending that the profile was accusatory and capable of “arous[ing] suspicions among the school community about [McGonigle’s] character” because of the “profile’s blatant allusions to McGonigle engaging in sexual misconduct.” Majority Op. 300, 302. 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 LdVine, 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, the majority’s suggestion that “absent McGonigle’s quick corrective actions to curb [the profile’s] ef
Finally, I am particularly troubled by the majority’s “hold[ing] that the potential impact of the profile’s language alone is enough to satisfy the Tinker substantial disruption test.” Majority Op. 302. This statement is disconcerting because it sounds like an application of the Fraser standard rather than the Tinker standard. Specifically, the majority appears to be more concerned with the level of vulgarity of J.S.’s speech, than its potential impact. See id. (“We simply cannot agree that a principal may not regulate student speech rising to this level of vulgarity .... ” (emphasis added)).
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.
B.
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.
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.
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 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.
Under these circumstances, to apply the Fraser standard to justify the School District’s punishment of J.S.’s speech is 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, I conclude that the Fraser decision did not give the School District the authority to punish J.S. for her offcampus speech.
For the foregoing reasons, I would reverse the District Court’s judgment and grant summary judgment to J.S. on her First Amendment free-speech claim.
. I agree with my colleagues' conclusion that the School District’s policies were not overbroad or void-for-vagueness, and that the District Court correctly determined that the School District did not violate the Snyders’ Fourteenth Amendment substantive due process rights. As discussed infra note 11, however, I disagree with my colleagues that 24 Pa. Cons.Stat. § 5-510 did not bar the School District from punishing J.S. for her off-campus speech.
. The question of whether Tinker's “substantial disruption” standard applies to off-campus speech in the first place is not settled. I submit that the majority of the courts answered this question in the affirmative, often citing the following passage in Tinker: "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 the rights of others is, of course, not immunized by the constitutional guaran
Interestingly, the majority appears to concede that Tinker’s reference to "out of class” speech only encompasses speech that occurs when a student is "still under school control.” Majority Op. 298. Here, conversely, J.S. was not under “school control” when she created the profile on her parents’ computer on a Sunday. Moreover, in Saxe, this Court emphasized the importance of "geographical and contextual limitations” in confining school districts’ authority over student speech. Saxe,
. I reject the majority’s assertion that “students and parents inevitably would have begun to question McGonigle's demeanor and conduct at school, the scope and nature of his personal interests, and his character and fitness to occupy a position of trust with adolescent children, on account of the profile’s contents.” Majority Op. 301 (emphasis added). This contention is simply not supported by the record.
. My colleagues also emphasize that McGonigle "noticed a severe deterioration in discipline in the Middle School ... following the publication of the profile and the punishment of J.S. and K.L.” Majority Op. 300. The facts that McGonigle cites to support this proposition, see supra, p. 290, demonstrate that these disruptions were not ones that arose 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. As set forth earlier, I do not believe that the deterioration in discipline that followed McGonigle’s punishment of J.S. and K.L. is relevant to determining the level of disruption that the profile caused, or could reasonably have been expected to cause, in the school.
. To draw distinctions based on "levels of vulgarity” is generally antithetical to the First Amendment. See Cohen v. California,
. Indisputably, neither Kuhlmeier nor Morse governs this case.
. 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,
. 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,
. 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.
. I disagree with the majority's holding that 24 Pa. Cons.Stat. § 5-510 did not bar the School District from punishing J.S. for her off-campus speech. Section 5-510 limited the authority of the School District to:
adopt and enforce such reasonable rules and regulations ... regarding the conduct and deportment of all pupils attending thepublic schools in the district, during such time as they are under the supervision of the board of school directors and teachers, including the time necessary spent in coming to and returning from school.
Id. (emphasis added). The Pennsylvania Commonwealth Court has 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 D.O.F. v. Lewisburg Area Sch. Dist. Bd. of Sch. Dirs.,
All of the integral events in this case occurred outside the school, during non-school hours. Accordingly, I believe that § 5-510 barred the School District from punishing J.S.