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J.S., A Minor, Through Her Parents v. Blue Mountain School District; Joyce Romberger; James

June 13, 2011


On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. No. 07-cv-00585) District Judge: Honorable James M. Munley


Argued June 2, 2009; Argued En Banc June 3, 2010



CHAGARES, Circuit Judge, with whom McKEE, Chief Judge, SLOVITER, AMBRO, FUENTES, SMITH, HARDIMAN, and GREENAWAY, JR., Circuit Judges, join.

J.S., a minor, by and through her parents, Terry Snyder and Steven Snyder, individually and on behalf of their daughter, appeal the District Court's grant of summary judgment in favor of the Blue Mountain School District ("the School District") and denial of their motion for summary judgment. This case arose when the School District suspended J.S. for creating, on a weekend and on her home computer, a MySpace profile (the "profile") making fun of her middle school principal, James McGonigle. The profile contained adult language and sexually explicit content. J.S. and her parents sued the School District under 42 U.S.C. § 1983 and state law, alleging that the suspension violated J.S.'s First Amendment free speech rights, that the School District's policies were unconstitutionally overbroad and vague, that the School District violated the Snyders' Fourteenth Amendment substantive due process rights to raise their child, and that the School District acted outside of its authority in punishing J.S. for out-of-school speech.

Because J.S. was suspended from school for speech that indisputably caused no substantial disruption in school and that could not reasonably have led school officials to forecast substantial disruption in school, the School District's actions violated J.S.'s First Amendment free speech rights. We will accordingly reverse and remand that aspect of the District Court's judgment. However, we will affirm the District Court's judgment that the School District's policies were not overbroad or void-for-vagueness, and that the School District did not violate the Snyders' Fourteenth Amendment substantive due process rights.


J.S. was an Honor Roll eighth grade student who had never been disciplined in school until December 2006 and February 2007, when she was twice disciplined for dress code violations by McGonigle. On Sunday, March 18, 2007, J.S. and her friend K.L., another eighth grade student at Blue Mountain Middle School, created a fake profile of McGonigle, which they posted on MySpace, a social networking website. The profile was created at J.S.'s home, on a computer belonging to J.S.'s parents.

The profile did not identify McGonigle by name, school, or location, though it did contain his official photograph from the School District's website. The profile was presented as a self-portrayal of a bisexual Alabama middle school principal named "M-Hoe." The profile contained crude content and vulgar language, ranging from nonsense and juvenile humor to profanity and shameful personal attacks aimed at the principal and his family. For instance, the profile lists M-Hoe's general interests as: "detention, being a tight ass, riding the fraintrain, spending time with my child (who looks like a gorilla), baseball, my golden pen, fucking in my office, hitting on students and their parents." Appendix ("App.") 38. In addition, the profile stated in the "About me" section:

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 [sic] to be just like me. I know, I know, you're all thrilled[.] Another reason I came to myspace is because - I am keeping an eye on you students (who[m] 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. . . .

Id. Though disturbing, the record indicates that the profile was so outrageous that no one took its content seriously. J.S. testified that she intended the profile to be a joke between herself and her friends. At her deposition, she testified that she created the profile because she thought it was "comical" insofar as it was so "outrageous." App. 190.

Initially, the profile could be viewed in full by anyone who knew the URL (or address) 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 School District students.

The School District's computers block access to MySpace, so no Blue Mountain student was ever able to view the profile from school. McGonigle first learned about the profile on Tuesday, March 20, 2007, from a student who was in his office to discuss an unrelated incident. McGonigle asked this student to attempt to find out who had created the profile. He also attempted -- unsuccessfully -- to find the profile himself, even contacting MySpace directly.

At the end of the school day on Tuesday, the student who initially told McGonigle about the profile reported to him that it had been created by J.S. McGonigle asked this student to bring him a printout of the profile to school the next day, which she did. It is undisputed that the only printout of the profile that was ever brought to school was one brought at McGonigle's specific request.

On Wednesday, March 21, 2007, McGonigle showed the profile to Superintendent Joyce Romberger and the Director of Technology, Susan Schneider-Morgan. The three met for about fifteen minutes to discuss the profile. McGonigle also showed the profile to two guidance counselors, Michelle Guers and Debra Frain (McGonigle's wife). McGonigle contacted MySpace to attempt to discover what computer had been used to create the profile, but MySpace refused to release that information without a court order. The School District points to no evidence that anyone ever suspected the information in the profile to be true.

McGonigle ultimately decided that the creation of the profile was a Level Four Infraction under the Disciplinary Code of Blue Mountain Middle School, Student-Parent Handbook, App. 65-66, as a false accusation about a staff member of the school and a "copyright" violation of the computer use policy, for using McGonigle's photograph. At his deposition, however, McGonigle admitted that he believed the students "weren't accusing me. They were pretending they were me." App. 327.*fn1

J.S. was absent from school on Wednesday, the day McGonigle obtained a copy of the profile. When she returned, on Thursday, March 22, 2007, McGonigle summoned J.S. and K.L. to his office to meet with him and Guidance Counselor Guers. J.S. initially denied creating the profile, but then admitted her role. McGonigle told J.S. and K.L. that he was upset and angry, and threatened the children and their families with legal action. App. 333-34. Following this meeting, J.S. and K.L. remained in McGonigle's office while he contacted their parents and waited for them to come to school.

McGonigle met with J.S. and her mother Terry Snyder and showed Mrs. Snyder the profile. He told the children's parents that J.S. and K.L. would receive ten days out-of-school suspension, which also prohibited attendance at school dances. McGonigle also threatened legal action. J.S. and her mother both apologized to McGonigle, and J.S. subsequently wrote a letter of apology to McGonigle and his wife.

McGonigle next contacted MySpace, provided the URL for the profile and requested its removal, which was done. McGonigle also contacted Superintendent Romberger to inform her of his decision regarding J.S. and K.L.'s punishment. Although Romberger could have overruled McGonigle's decision, she agreed with the punishment. On Friday, March 23, 2007, McGonigle sent J.S.'s parents a disciplinary notice, which stated that J.S. had been suspended for ten days.*fn2 The following week, Romberger declined Mrs. Snyder's request to overrule the suspension.

On the same day McGonigle met with J.S. and her mother, he contacted the local 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. An officer did, however, complete a formal report and asked McGonigle whether he wanted the state police to call the students and their parents to the police station to let them know how serious the situation was. McGonigle asked the officer to do this, and on Friday, March 23, J.S. and K.L. and their mothers were summoned to the state police station to discuss the profile.

The School District asserted that the profile disrupted school in the following ways. There were general "rumblings" in the school regarding the profile. More specifically, on Tuesday, March 20, McGonigle was approached by two teachers who informed him that students were discussing the profile in class. App. 322. Randy Nunemacher, a Middle School math teacher, experienced a disruption in his class when six or seven students were talking and discussing the profile; Nunemacher had to tell the students to stop talking three times, and raised his voice on the third occasion. App. 368-73. The exchange lasted about five or six minutes. App. 371. Nunemacher also testified that he heard two students talking about the profile in his class on another day, but they stopped when he told them to get back to work. App. 373-74. Nunemacher admitted that the talking in class was not a unique incident and that he had to tell his students to stop talking about various topics about once a week. Another teacher, Angela Werner, testified that she was approached by a group of eighth grade girls at the end of her Skills for Adolescents course to report the profile. App. 415-16. Werner said this did not disrupt her class because the girls spoke with her during the portion of the class when students were permitted to work independently. App. 417-18.

The School District also alleged disruption to Counselor Frain's job activities. Frain canceled a small number of student counseling appointments to supervise student testing on the morning that McGonigle met with J.S., K.L., and their parents. Counselor Guers was originally scheduled to supervise the student testing, but was asked by McGonigle to sit in on the meetings, so Frain filled in for Guers. This substitution lasted about twenty-five to thirty minutes. There is no evidence that Frain was unable to reschedule the canceled student appointments, and the students who were to meet with her remained in their regular classes. App. 352-53.

On March 28, 2007, J.S. and her parents filed this action against the School District, Superintendent Romberger, and Principal McGonigle. By way of stipulation, on January 7, 2008, all claims against Romberger and McGonigle were dismissed, and only the School District remained as a defendant. After discovery, both parties moved for summary judgment.

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, 393 U.S. 503 (1969), does not govern this case because no "substantial and material disruption" occurred. App. 10-12 (refusing to rely on Tinker); App. 17 (concluding that "a substantial disruption so as to fall under Tinker did not occur"). Instead, the District Court drew a distinction between political speech at issue in Tinker, and "vulgar and offensive" speech at issue in a subsequent school speech case, Bethel School District v. Fraser, 478 U.S. 675 (1986). App. 11-12. The District Court also noted the Supreme Court's most recent school speech decision, Morse v. Frederick, 551 U.S. 393 (2007), where the Court allowed a school district to prohibit a banner promoting illegal drug use at a school-sponsored event.

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 plaintiff's 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 violations in the past; (6) J.S. lied in school to the principal about creating the profile; (7) "although a substantial disruption so as to fall under Tinker did not occur . . . there was in fact some disruption during school hours"; and (8) the profile was viewed at least by the principal at school. App. 17 (emphasis added).

The District Court then rejected several other district court decisions where the courts did not allow schools to punish speech that occurred off campus, including the decision in Layshock v. Hermitage School District, 496 F. Supp. 2d 587 (W.D. Pa. 2007), a case substantially similar to the one before us, and which is also being considered by this Court. See App. 18-20. In distinguishing these cases, the District Court made several qualitative judgments about the speech involved in each. See, e.g., App. 18 (asserting that the statements in Flaherty v. Keystone Oaks School District, 247 F. Supp. 2d 698 (W.D. Pa. 2003), were "rather innocuous compared to the offensive and vulgar statements made by J.S. in the present case"); App. 19 (contending that "[t]he speech in the instant case . . . is distinguishable" from the speech in Killion v. Franklin Regional School District, 136 F. Supp. 2d 446 (W.D. Pa. 2001), because of, inter alia, "the level of vulgarity that was present" in the instant case); App. 20 (claiming that, as compared to Layshock, "the facts of our case include a much more vulgar and offensive profile").

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.4 (citing Tinker, 393 U.S. at 513).

Next, the District Court held that the School District's policies were not vague and overbroad. The District Court first approached the issue in a somewhat backwards manner: it concluded that because the punishment was appropriate under the First Amendment, the policies were not vague and overbroad even though they can be read to apply to off-campus conduct. App. 21. Alternatively, the District Court held that the policy language was "sufficiently narrow . . . to confine the policy to school grounds and school-related activities." Id. (quoting the Handbook, which provides that the "[m]aintenance of order applies during those times when students are under the direct control and supervision of school district officials," and noting that the computer use policy incorporates the limitations of the Handbook).

The District Court also held that the School District did not violate the Snyders' parental rights under the Fourteenth Amendment. The Court concluded that "the school did not err in disciplining J.S., and her actions were not merely personal home activities[,]" and that therefore the Snyders' parental rights were not violated. The Court did not address directly the plaintiffs' state law argument, but did note that Pennsylvania law allows school districts to "punish students [] 'during such times 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.'" App. 22 (quoting 24 Pa. Cons. Stat. § 5-510). J.S. and her parents filed a timely appeal from the District Court's entry of summary judgment in favor of the School District and from its decision to deny their motion for summary judgment.


The District Court had jurisdiction over the federal claims pursuant to 28 U.S.C. § 1331 and 28 U.S.C. § 1343(a)(3) and (4), and exercised supplemental jurisdiction over the state law claim under 28 U.S.C. § 1367. We exercise jurisdiction under 28 U.S.C. § 1291.

We review a District Court's disposition of a summary judgment motion de novo. Pichler v. UNITE, 542 F.3d 380, 385 (3d Cir. 2008) (citing Marten v. Godwin, 499 F.3d 290, 295 (3d Cir. 2007)). In conducting this review, we use the same standard as the District Court should have applied. Farrell v. Planters Lifesavers Co., 206 F.3d 271, 278 (3d Cir. 2000). "The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a) (setting forth the legal standard formerly found in Fed. R. Civ. P. 56(c)). All inferences must be viewed in the light most favorable to the nonmoving party, Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Farrell, 206 F.3d at 278, and where, as was the case here, the District Court considers cross-motions for summary judgment "the court construes facts and draws inferences 'in favor of the party against whom the motion under consideration is made,'" Pichler, 542 F.3d at 386 (quoting Samuelson v. LaPorte Cmty. Sch. Corp., 526 F.3d 1046, 1051 (7th Cir. 2008)).

"A disputed fact is 'material' if it would affect the outcome of the suit as determined by the substantive law." Gray v. York Newspapers, Inc., 957 F.2d 1070, 1078 (3d Cir. 1992). Importantly, the nonmoving party cannot satisfy its requirement of establishing a genuine dispute of fact merely by pointing to unsupported allegations found in the pleadings. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Instead, the party must raise more than "some metaphysical doubt," Matsushita, 475 U.S. at 586, and the court must determine that "a fair-minded jury could return a verdict for the [nonmoving party] on the evidence presented." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986); see also Bouriez v. Carnegie Mellon Univ., 585 F.3d 765, 770-71 (3d Cir. 2009). It is impermissible for the court to intrude upon the duties of the fact-finder by weighing the evidence or making credibility determinations. Pichler, 542 F.3d at 386. Finally, when the nonmoving party is the plaintiff, he must produce sufficient evidence to establish every element that he will be required to prove at trial. Celotex, 477 U.S. at 322.


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 that compel the conclusion that the School District violated J.S.'s First Amendment free speech rights when it suspended her for speech that caused no substantial disruption in school and that could not reasonably have led school officials to forecast substantial disruption in school.


We begin our analysis by recognizing the "comprehensive authority" of teachers and other public school officials. Tinker, 393 U.S. at 507. See generally Veronia Sch. Dist. 47J v. Acton, 515 U.S. 646, 655 (1995) (describing the public schools' power over public school children as both "custodial and tutelary"). Those officials involved in the educational process perform "important, delicate, and highly discretionary functions." W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 637 (1943). As a result, federal courts generally exercise restraint when considering issues within the purview of public school officials. See Bd. of Educ., Island Trees Union Free Sch. Dist. v. Pico, 457 U.S. 853, 864 (1982) ("[F]ederal courts should not ordinarily 'intervene in the resolution of conflicts which arise in the daily operation of school systems.'" (quoting Epperson v. Arkansas, 393 U.S. 97, 104 (1968))); see also Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 266 (1988) ("[T]he education of the Nation's youth is primarily the responsibility of parents, teachers, and state and local school officials, and not of federal judges.").

The authority of public school officials is not boundless, however. The First Amendment unquestionably protects the free speech rights of students in public school. Morse, 551 U.S. at 396 ("Our cases make clear that students do not 'shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.'" (quoting Tinker, 393 U.S. at 506)). Indeed, "[t]he vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools." Shelton v. Tucker, 364 U.S. 479, 487 (1960). The exercise of First Amendment rights in school, however, has to be "applied in light of the special characteristics of the school environment," Tinker, 393 U.S. at 506, and thus the constitutional rights of students in public schools "are not automatically coextensive with the rights of adults in other settings," Fraser, 478 U.S. at 682. Since Tinker, courts have struggled to strike a balance between safeguarding students' First Amendment rights and protecting the authority of school administrators to maintain an appropriate learning environment.

The Supreme Court established a basic framework for assessing student free speech claims in Tinker, and we will assume, without deciding, that Tinker applies to J.S.'s speech in this case.*fn3 The Court in Tinker held that "to justify prohibition of a particular expression of opinion," school officials must demonstrate that "the forbidden conduct would materially and substantially interfere with the requirements of appropriate discipline in the operation of the school." Tinker, 393 U.S. at 509 (emphasis added) (quotation marks omitted). This burden cannot be met if school officials are driven by "a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint." Id. Moreover, "Tinker requires a specific and significant fear of disruption, not just some remote apprehension of disturbance." Saxe v. State Coll. Area Sch. Dist., 240 F.3d 200, 211 (3d Cir. 2001). Although Tinker dealt with political speech, the opinion has never been confined to such speech. See id. at 215-17 (holding that the school's anti-harassment policy was overbroad because it "appears to cover substantially more speech than could be prohibited under Tinker's substantial disruption test"); see also Killion, 136 F. Supp. 2d at 455-58 (holding that the school overstepped its constitutional bounds under Tinker when it suspended a student for making "lewd" comments about the school's athletic director in an e-mail the student wrote at home and circulated to the non-school e-mail accounts of several classmates).

As this Court has 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, 240 F.3d at 212 ("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."). The first exception is set out in Fraser, which we interpreted to permit school officials to regulate "'lewd,' 'vulgar,' 'indecent,' and 'plainly offensive' speech in school." Id. at 213 (quoting Fraser, 478 U.S. at 683, 685) (emphasis added); see also Sypniewski v. Warren Hills Reg'l Bd. of Educ., 307 F.3d 243, 253 (3d Cir. 2002) (quoting Saxe's narrow interpretation of the Fraser exception). The second exception to Tinker is articulated in Hazelwood School District v. Kuhlmeier, which allows school officials to "regulate school-sponsored speech (that is, speech that a reasonable observer would view as the school's own speech) on the basis of any legitimate pedagogical concern." Saxe, 240 F.3d at 214.

The Supreme Court recently articulated a third exception to Tinker's general rule in Morse. Although, prior to this 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. 551 U.S. at 396. The Court emphasized that Morse was a school speech case, because "[t]he event occurred during normal school hours," was sanctioned by the school "as an approved social event or class trip," was supervised by teachers and administrators from the school, and involved performances by the school band and cheerleaders. Id. at 400-01 (quotation marks omitted). The Court then held that "[t]he 'special characteristics of the school environment,' Tinker, 393 U.S.[] at 506 [], and the governmental interest in stopping student drug abuse . . . allow schools to restrict student expression that they reasonably regard as promoting illegal drug use." Id. at 408.

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." 551 U.S. at 425 (Alito, J., concurring). In fact, Justice Alito only joined the Court's opinion "on the understanding that the opinion does not hold that the special characteristics of the public schools necessarily justify any other speech restrictions" than those recognized by the Court in Tinker, Fraser, Kuhlmeier, and Morse. Id. at 422-23. Justice Alito also noted that the Morse decision "does not endorse the broad argument . . . that the First Amendment permits public school officials to censor any student speech that interferes with a school's 'educational mission.' This argument can easily be manipulated in dangerous ways, and I would reject it before such abuse occurs." Id. at 423 (citations omitted). Moreover, Justice Alito engaged in a detailed discussion distinguishing the role of school authorities from the role of parents, and the school context from the "[o]utside of school" context. Id. at 424-25.


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 and the District Court explicitly found that "a substantial disruption so as to fall under Tinker did not occur." App. at 17. Nonetheless, the School District now argues that it was justified in punishing J.S. under Tinker because of "facts which might reasonably have led school authorities to forecast substantial disruption of or material interference with school activities . . . ." Tinker, 393 U.S. at 514. Although the burden is on school authorities to meet Tinker's requirements to abridge student First Amendment rights, the School District need not prove with absolute certainty that substantial disruption will occur. Doninger v. Niehoff, 527 F.3d 41, 51 (2d Cir. 2008) (holding that Tinker does not require "actual disruption to justify a restraint on student speech"); Lowery v. Euverard, 497 F.3d 584, 591-92 (6th Cir. 2007) ("Tinker does not require school officials to wait until the horse has left the barn before closing the ...

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