conversation and posting the messages both at home and school, Defendants punished Jack Flaherty, Jr. pursuant to their policies set forth in the Student Handbook.
Plaintiffs in this case, Jack Flaherty, Jr., Jack Flaherty, Sr. and Carol Flaherty, parents and natural guardians of Jack Flaherty, Jr., filed a Complaint and subsequently an Amended Complaint (Docket No. 37) against Defendants.*fn2 Therein, Plaintiffs allege, inter alia, that the policies used to punish Jack Flaherty, Jr. for expressions that occurred off campus and at home are vague and overbroad in violation of Plaintiffs' constitutionally protected rights under the First and Fourteenth Amendments to the United States Constitution, as well as Article I, § 7 of the Pennsylvania Constitution. See, Amended Complaint. The particular policies identified are contained with in the Discipline, the Student Responsibility, and the Technology provisions. Plaintiffs' Exhibit 1, pp. 4-5, 17-18. Said provisions contain the terms "abuse" or "abusive," "harassment," "in appropriate," and "offend" which Plaintiffs argue are vague and over broad.*fn3
Defendants have filed a Brief in Opposition to Plaintiffs' Motion for Summary Judgment and Plaintiffs' filed a Reply Brief. The issue is now ripe for review.
II. LEGAL ANALYSIS
A. Standard Of Review
Summary judgment may only be granted if 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. Fed.R.Civ.P. 56(c). Rule 56 mandates the entry of summary judgment, after adequate time for discovery and upon motion, against the party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
In considering a motion for summary judgment, this Court must examine the facts in a light most favorable to the party opposing the motion. International Raw Materials, Ltd. v. Stauffer Chemical Co., 898 F.2d 946, 949 (3d Cir. 1990). The burden is on the moving party to demonstrate that the evidence creates no genuine issue of material fact. Chipollini v. Spencer Gifts, Inc., 814 F.2d 893, 896 (3d Cir. 1987). The dispute is genuine if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is material when it might affect the outcome of the suit under the governing law. Id.
Where the non-moving party will bear the burden of proof at trial, the party moving for summary judgment may meet its burden by showing that the evidentiary materials of record, if reduced to admissible evidence, would be insufficient to carry the non-movant's burden of proof at trial. Celotex, 477 U.S. at 322. Once the moving party satisfies its burden, the burden shifts to the nonmoving party, who must go beyond its pleadings, and designate specific facts by the use of affidavits, depositions, admissions, or answers to interrogatories showing that there is a genuine issue for trial. Id. at 324. Summary judgment must therefore be granted "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." White v. Westinghouse Electric Co., 862 F.2d 56, 59 (3d Cir. 1988), quoting Celotex, 477 U.S. at 322.
B. Overbroad and Vague
Plaintiffs seek a declaration that portions of the KOSD Student Handbook are unconstitutionally overbroad and vague because particular portions allow for punishment of speech that school officials deem to be "inappropriate, harassing, offensive or abusive" without defining those terms or limiting them in relation to geographic boundaries (at school or school sponsored events) or to speech that causes a material and substantial disruption to the school day in violation of Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503 (1969).*fn4 See, Plaintiffs' Brief, p. 7-8. A statute may be declared unconstitutional when it is sufficiently overbroad. Sypniewski v. Warran Hills Regional Bd. of Educ., 307 F.3d 243, 258 (3d Cir. 2002). "An overbroad statute is one that is designed to punish activities that are not constitutionally protected, but which prohibits protected activities as well." Killion v. Franklin Regional School Dist., 136 F. Supp.2d 446, 458 (W.D.Pa. 2001).
Only a statute that is substantially overbroad may be
invalidated on its face. The Supreme Court has never
a statute should be invalidated merely
because it is possible to conceive of a single
impermissible application. Instead in a facial
challenge to overbreadth and vagueness of a law, a
court must determine whether the enactment reaches a
substantial amount of constitutionally protected