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KILLION v. FRANKLIN REGIONAL SCHOOL DIST.

March 22, 2001

JOANNE KILLION, PARENT AND NATURAL GUARDIAN OF ZACHARIAH PAUL, A MINOR, PLAINTIFF,
V.
FRANKLIN REGIONAL SCHOOL DISTRICT, FRANKLIN REGIONAL BOARD OF SCHOOL DIRECTORS, BETTY BUFORD, RUSSELL PORTER, DEBORAH GOOD, MARIE BYATT, LARRY NEWMAN, MICHAEL GIGLIOTTI, REBERTA COOK, W.H. MILLIGAN, LEE REICK, AS SUPERINTENDENT OF FRANKLIN REGIONAL SCHOOL DISTRICT, RICHARD PLUTTO, AS PRINCIPAL OF FRANKLIN REGIONAL HIGH SCHOOL, THOMAS GRAHAM, AS ASSISTANT PRINCIPAL OF FRANKLIN REGIONAL HIGH SCHOOL, AND ROBERT BOZZUTO, ATHLETIC DIRECTOR OF FRANKLIN REGIONAL HIGH SCHOOL, DEFENDANTS.



The opinion of the court was delivered by: Ziegler, District Judge.

  OPINION

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.

I. FACTS

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 school.

Several weeks later, several individuals found copies of the Bozzuto Top Ten list in the Franklin Regional High School teachers' lounge and the Franklin Regional Middle School. An undisclosed student had reformatted Paul's original e-mail and distributed the document on school grounds.

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.

II. STANDARD

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 (1986).

III. DISCUSSION

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.

A. Due Process Violation

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).

22 Pa.Code § 12.6.

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 be avoided.
(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 ...

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