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Layshock v. Hermitage School District

January 31, 2006


The opinion of the court was delivered by: McVerry, J.


Before the Court for consideration and disposition is Plaintiffs' MOTION FOR TEMPORARY RESTRAINING ORDER AND/OR PRELIMINARY INJUNCTION ("Motion") (Document No. 2). The Court held a hearing on the Motion on January 30, 2006. For the reasons that follow, the Motion will be denied.


Plaintiff Justin Layshock ("Justin") is a seventeen-year old senior at Hickory High School in the Hermitage School District. Justin fares well academically and is enrolled in advanced placement classes. He has won honors and awards at language competitions and has been a French tutor to middle school students. Justin also participates in Academic Games Leagues of America ("Academic Games"), in which students attempt to out-think each other in the subjects of math, language arts and social studies. Justin anticipates attending college, and has submitted applications for admission to four universities, including The Pennsylvania State University.

While Justin is generally an academic success, his out-of-school conduct has led to in-school punishment by Defendants. On or about December 10, 2005, Justin created what he characterizes as a parody profile (the "parody") of defendant Eric Trosch ("Trosch"), the Principal of Hickory High School, on a website called "" (, which is an Internet site where users can share photos, journals, personal interests and the like with other users of the Internet. Plaintiff's exh. 3. The parody was created by using the website's template for profiles, which allows website users to fill in background information and include answers to specific questions. Justin's answers to the questions centered on the theme of "big." The answers range from nonsensical answers to silly questions, on the one hand, to crude juvenile language, on the other. For example, in response to the question "in the past month have you smoked?," the website says "big blunt." In response to a question regarding alcohol use, the parody says "big keg behind my desk." In response to the question, "ever been beaten up?," the parody says "big fag." The answer to the question "in the past month have you gone on a date?" is "big hard-on." The parody also reflected that Trosch was "too drunk to remember" the date of his birthday. Id. Finally, the parody included a photo image of Trosch which Justin had copied from the school's website.

Justin created the parody by using his grandmother's computer during non-school hours; no school resources were used to create the parody but for the photo. Justin informed a few close friends at school of his parody, and eventually word of the parody (as well as a few other more vulgar parodies of unknown origin) soon reached most, if not all, of the student body of Hickory High School.

On December 21, 2005 Justin and Plaintiff Cheryl Layshock, Justin's mother, were summoned to a meeting with defendants Karen Ionta, the District Superintendent, and Chris Gill, the Co-Principal, regarding the parody.*fn1 At the meeting Justin admitted to having created the parody. No disciplinary action was taken against Justin at that time. By letter dated January 3, 2006, Justin and his parents were advised that an informal hearing would be held at Hickory High School on January 6, 2006 to consider disciplinary action against Justin. The specific violations of the Hermitage School District's disciplinary codes were described as follows: "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 violation; (use of school pictures without authorization). Verified Complaint, exh. 1. At the January 6, 2006 hearing, Justin received a ten-day out-of-school suspension. Additional discipline imposed on Justin included 1) placing him in the Alternative Curriculum Education Program at Hickory High School for the remainder of the 2005-2006 school year; 2) banning him from attendance or participation in any events sponsored by or participated in by the Hermitage School District, including the Academic Games and tutoring in which Justin had participated, and 3) prohibiting him from participating in the June 2, 2006 high school graduation ceremony.

The Alternative Curriculum Education Program appears to be fairly onerous. The assigned students meet in a segregated area of Hickory High School for three hours each school day, and the Program is typically reserved for students with behavior and attendance problems who are unable to function in a regular classroom. Suffice it to say that Justin appears to be out of place in the program.

On January 27, 2006 Plaintiff filed a three-count Verified Complaint pursuant to 42 U.S.C. § 1983, as well as a Motion for Temporary Restraining Order and/or Preliminary Injunction pursuant to Federal Rule of Civil Procedure 65. Count I alleges that "Defendant's (sic) punishment of Justin Layshock for his parody website of Head Principal Trosch violates his rights under the First Amendment to the United States Constitution ..." Verified Complaint at ¶ 57. Count II alleges that "Defendants' policies and rules are unconstitutionally vague and/or overbroad, both on their face and as applied to Justin Layshock, and thus violate the First Amendment to the United States Constitution ... Id. at ¶ 58. Count III alleges that "Defendants' punishment of Justin Layshock for constitutionally protected speech in his own home interfered with, and continues to interfere with, Mr. and Mrs. Layshock's rights as parents to determine how best to raise, nurture, discipline and educate their children in violation of their rights under the Fourteenth Amendment to the U.S. Constitution ..." Id. at ¶ 59.*fn2 The Motion requests that Defendants be enjoined "from any continuing punishment or sanction against Justin Layshock on account of his constitutionally protected speech ..." Motion at p. 3. The issue of whether a temporary restraining order should issue is ripe for review.

Standard of Review

Federal Rule of Civil Procedure 65(b) provides, in pertinent part, as follows: A temporary restraining order may be granted without written or oral notice to the adverse party or that party's attorney only if (1) it clearly appears from specific facts shown by affidavit or by the verified complaint that immediate and irreparable injury, loss, or damage will result to the applicant before the adverse party or that party's attorney can be heard in opposition, and (2) the applicant's attorney certifies to the court in writing the efforts, if any, which have been made to give the notice and the reasons supporting the claim that notice should not be required.

Fed.R.Civ.P. 65(b).

A party who seeks a temporary restraining order must demonstrate the following four factors: "(1) a likelihood of success on the merits; (2) that it will suffer irreparable harm if the injunction is denied; (3) that granting preliminary relief will not result in even greater harm to the nonmoving party; and (4) that the public interest favors such relief." KOS Pharmaceuticals, Inc. v. Andrx Corp., 369 F.3d 700 (3d Cir. 2004) (discussing the nearly identical requirements for a preliminary injunction under Fed.R.Civ.P. 65(a)). Preliminary injunctive relief is "an extraordinary remedy" and "should be granted only in limited circumstances." American Tel. & Tel. Co. v. Winback & Conserve Program, Inc., 42 F.3d 1421, 1427 (3d Cir. 1994), cert. denied, 514 U.S. 1103 (1995). "The injunction should issue only if the plaintiff produces ...

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