The opinion of the court was delivered by: Ziegler, District Judge.
Pending before the court are the parties' cross-motions for
summary judgment, pursuant to Rule 56(c) of the Federal Rules of
Civil Procedure. Plaintiffs, Zachariah Paul (a minor) and Joanne
Killion (Paul's parent and natural guardian), commenced this
Section 1983 civil action alleging violations of the First and
Fourteenth Amendments, and due process violations. For the
following reasons, plaintiffs' motion for "partial summary
judgment" will be granted, and defendants' motion for summary
judgment will be denied.
The facts are not in dispute and can be summarized as follows.
Plaintiff, Zachariah Paul ("Paul"), was a student at Franklin
Regional High School during the 19981999 school year. During
March of 1999, Paul, apparently angered by a denial of a student
parking permit and the imposition of various rules and
regulations for members of the track team (Paul was a member),
compiled a "Top Ten" list about the athletic director, Robert
Bozzuto. The Bozzuto list contained, inter alia, statements
regarding Bozzuto's appearance, including the size of his
genitals.*fn1 After consulting with friends, Paul composed
and assembled the list while at home after school hours.
Thereafter, in late March or early April, Paul e-mailed the list
to friends from his home computer. However, Paul did not print
or copy the list to bring it on school premises because, after
copying and distributing similar lists in the past, he had been
warned that he would be punished if he brought another list to
On or about May 3, 1999, Paul was called to a meeting with
Richard Plutto (principal), Thomas Graham (assistant principal),
and Robert Bozzuto (athletic director). Upon questioning, Paul
admitted that he had created the contents of the Top Ten list,
and that he had e-mailed it to the home computers of several
friends from his home computer; however, Paul steadfastly denied
bringing the list on school grounds. Plutto or Graham instructed
Paul to bring a copy of the original e-mail message the next
day. Paul agreed and was allowed to return to his class.
The next day, shortly before Paul was scheduled to leave for a
track meet, Plutto called Paul to his office. Paul, apparently
anticipating that he might be disciplined, called his mother,
who arrived shortly thereafter. Paul and Mrs. Killion went to
the administrative offices where they met with Graham and
Bozzuto. Graham and Bozzutto showed Mrs. Killion the Top Ten
list, asked if she had seen it, and informed her that Paul was
being suspended for ten days because the list contained
offensive remarks about a school official, was found on school
grounds, and that Paul admitted creating the list. Graham
further informed Mrs. Killion that Paul could not participate in
any school-related activities, including track and field events
during the ten-day suspension. The next day, plaintiffs received
a certified letter from Plutto advising them of the ten-day
suspension for "verbal/written abuse of a staff member."
On or about May 10, 1999, plaintiffs commenced an action in
the Westmoreland County Court of Common Pleas, Pennsylvania,
against the School District seeking immediate reinstatement. The
parties subsequently entered a settlement agreement wherein
plaintiffs agreed to withdraw the complaint in exchange for the
School District's agreement to provide Paul with the due process
outlined in the Pennsylvania School Code. That evening, at about
10:15 p.m., plaintiffs' counsel received a faxed letter
notifying plaintiffs of a suspension hearing the following
morning at 9:00 a.m.
On May 12, plaintiffs, Plutto and Graham met for the
suspension hearing, which resulted in a ten day suspension. The
same day, plaintiffs commenced a civil action in this court
seeking a preliminary injunction for First and Fourteenth
Amendment violations, and requesting that Paul be allowed to
return to school immediately. The parties entered into a consent
order which allowed Paul to return to school. The parties have
filed cross-motions for summary judgment.
Summary judgment is appropriate when there are no genuine
issues of material fact and the moving party is entitled to
judgment as a matter of law. See Celotex Corp. v. Catrett,
477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the
party seeking summary judgment has demonstrated the absence of a
genuine issue of material fact, its opponent must do more than
simply show that there is some "metaphysical doubt" as to the
material facts. In other words, the nonmoving party must present
"specific facts showing that there is a genuine issue for
trial." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538
(1986). Thus, in considering a motion for summary judgment, the
court must examine the evidence in the light most favorable to
the nonmoving party and draw all reasonable
inferences in favor of that party. See Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202
Plaintiffs seek summary judgment contending that defendants
violated Paul's First Amendment right of free expression by
suspending Paul for speech that was made off school grounds and
in the privacy of his home. Plaintiffs further seek a
declaration that the school policy at issue is
unconstitutionally vague and overbroad because, "[a]bsent a
definition of abuse, the policy is capable of unlimited, and
unrestricted, number of unconstitutional applications." Pls.'
Br. Supp. Mot. Partial Summ. J. at 31. Finally, plaintiffs argue
that defendants violated Paul's procedural due process rights as
guaranteed by the Pennsylvania School Code.
Defendants seek summary judgment contending that, pursuant to
Supreme Court precedent, Paul was properly suspended for
violating school policy. Further, defendants argue that
qualified immunity protects the administrators because, "[i]n
May of 1999, there was no clearly established law that a public
school student could not be suspended for the publication and
dissemination of a patently offensive, lewd and vulgar email
message about a school official, and distributed on school
property which had the potential of disrupting school
administration." Defs.' Br. Supp. Mot. Summ. J. at 12.
As an initial matter, we note that the parties entered into a
consent agreement whereby plaintiffs agreed to dismiss the
claims against defendants Plutto, Graham, Bozzuto and Reick in
exchange for the District's agreement to "be responsible, as a
municipal government entity, for the payment of any and all
damages that may be awarded to the plaintiffs as a result of the
actions of" these defendants. Pls. Mem. Opp'n Defs.' Mot. Summ.
J. at 2. According to plaintiffs, this agreement moots any
claims or arguments with respect to qualified immunity and
municipal liability. Pls.' Mem. Opp'n Defs.' Mot. Summ. J. at 2.
As the parties have resolved these issues, we turn to consider
the motions for summary judgment with respect to the asserted
Due Process and First Amendment claims.
Plaintiffs contend that the District violated Paul's rights to
procedural due process as provided in 22 Pa.Code §§ 12.6 and
12.8. Section 12.6 provides, in relevant part:
(b) Exclusion from school may take the form of
suspension or expulsion.
(1) Suspension is exclusion from school for a period
of from 1 to 10 consecutive school days.
(ii) No student shall be suspended until the student
has been informed of the reasons for the suspension
and given an opportunity to respond. Prior notice of
the intended suspension need not be given when it is
clear that the health, safety or welfare of the
school community is threatened.
(iii) The parents and the superintendent of the
district shall be notified immediately in writing
when the student is suspended.
(iv) When the suspension exceeds 3 school days, the
student and parent shall be given the opportunity for
an informal hearing consistent with the requirements
set forth in § 12.8(c) (relating to hearings).
Section 12.8(c) provides:
(1) The informal hearing is meant to encourage the
student's parents or guardian to meet with the
principal to discuss ways by which future offense can
(2) The following due process requirements are to be
observed in regard to the informal hearing:
(i) Notification of the reasons for the suspension
shall be given in writing to the parents or ...