Gordon D.

Schaber
Competition

201516
Moot Court
Artisan, et al
v.
Commonplace School District
 FACT
PATTERN

FACT PATTERN
Gordon D. Schaber 201516 Moot Court
 Artisan, et al v. Commonplace School District
FACTS

Elena Artisan is a senior at Traditional High School, in Commonplace School District. She
is a good student, with a special talent in art, and holds the position of publicity coordinator on
the student council. Intrigued by the July 2015 Vanity Fair cover featuring Caitlyn Jenner,
Artisan drew a portrait depicting herself as a male and posted a photo of the image on the
Instagram. Artisan had created her Instagram account, @artisanforTHSpublicity, during the
course of her campaign for student council and so had a large following of Traditional HS
students. She received a number of positive comments on her illustration and decided to
create a series of drawings portraying her classmates as the opposite gender. She thought the
project would bring attention to transgender issues in a creative manner. She drew eight
additional images and posted a photo of each on her Instagram page over the course of a week.
The images created quite a buzz at school. The majority of the teachers had heard about the
drawings by the end of the week. Artisans art teacher asked to see the images at the end of
class, and Artisan showed her the Instagram posts on her phone. Three students were caught
looking at the images on their phones during class, and were instructed to put their phones
away. Two other students received after-school detention for looking at the images and
discussing them during class.

Brian Umbrage was among the students Artisan depicted as the opposite sex in her
series of illustrations. Umbrage initially saw Artisans image along with her other drawings, and
indicated by marking the heart-shaped icon under the image that he liked it. Cameron
Ruckus also saw Artisans drawing online. Umbrage and Ruckus had a long history of conflict at
school. Umbrage had often been a target of Ruckus jokes and teasing. And the two students
had gotten into a physical altercation the year prior over comments Ruckus made to Umbrage
about Umbrages basketball skills during P.E. class. Both students had received detention as a
result of the altercation. Ruckus saw Artisans drawing as an opportunity to tease Umbrage
further. In the comments under Artisans post, he wrote Briana. Ruckus also printed out fifty
copies of the drawing on his home computer and put them all over Umbrages car when it was
parked at Umbrages house over the weekend, and wrote Briana in lipstick on the windshield.
Additionally, Ruckus created a video of himself with a printout of the drawing in which he
pretended to ask the drawing out to homecoming. He sent the video to five of his friends with
a text that read For your home-viewing pleasure.

Meanwhile, Artisan had been communicating with the president the Tolerance Club, a
student-run organization that was allowed to meet on campus at Traditional HS after school.
The Tolerance Club suggested creating shirts with Artisans images to wear at school in

{00098770; 1} Fact Pattern pg. 1

solidarity with the transgender community. Supportive of the idea, Artisan and the club had
fifty shirts made. They featured five of Artisans drawings, with the image of Umbrage--the
drawing Artisan was most proud of--at the center. The club members agreed to wear the shirts
the following Monday and pass out shirts to other students who wanted to participate. That
Monday, Ruckus arrived at school and saw the shirts with Umbrages image on it. He asked the
Tolerance Club for six shirts. He wore one and distributed the others to his friends. Teachers
heard students talking about the shirts, but no discipline resulted.

Despite his initial positive reaction to Artisans drawing, Umbrage had quickly grown to
hate the image. Umbrage had been extremely upset and embarrassed when he found his car
littered with printouts of Artisans drawing. He had also learned about Ruckus video from a
friend who had seen the video over the weekend. Umbrage had spent the weekend worrying
Ruckus would post the video online. So, when he arrived on campus and saw more than thirty
people, including Ruckus and Artisan, wearing shirts with an image of him depicted as a
woman, his distress compounded. He reported the shirts, the defacing of his car, Ruckus
video, and Artisans Instagram post to the Vice Principal, Evan Keel. Umbrage missed two
classes on Monday while in the office and his parents took him home for the remainder of the
week. The Umbrage family informed Mr. Keel that their son was extremely upset and afraid he
would return to school as the target of continued harassment by his classmates.

Mr. Keel called Artisan and Ruckus into the office. Artisan explained the images and
shirts were intended to celebrate diversity and tolerance, not to bully Umbrage. She told Mr.
Keel that Umbrage had even liked the image. When Mr. Keel asked Artisan to take down the
nine images from her Instagram page, she refused on the grounds the images were her artistic
expression. Upon questioning from Mr. Keel, Ruckus admitted to papering Umbrages car over
the weekend with printouts of Artisans drawing. He also showed Mr. Keel the video. This was
the first time Mr. Keel had seen the video, and there was no indication the video had been
played at all on school grounds prior to that point. However, Mr. Keel had heard several
teachers say they overheard students saying the name Briana when talking about the
Tolerance Club shirts, and Artisans art teacher reported observing Ruckus and his friends acting
out the video in the common area during lunch and laughing. A teacher of a class that was in
session had to step out of her classroom to instruct the group to keep it down.

Artisan and Ruckus were both suspended for five days under Commonplace School
Districts Anti-Bullying Policys zero-tolerance provision for bullying. The policy provides:

Commonplace School District prohibits bullying of any kind. Under this policy,
bullying is defined as any communication, including electronic communication,
that is meant to or has the effect of (1) materially disrupting school operations or
(2) impinging the rights of others, including creating a detrimental effect on the

{00098770; 1} Fact Pattern pg. 2

 students physical or mental health, interfering with a students academic
performance, interfering with a students ability to participate in or benefit from
the services, activities, or privileges provided by the school, in fact causing the
victim emotional distress, or would cause a reasonable person to exhibit
objective signs of emotional distress.

Commonplace School District has a zero-tolerance policy for bullying on the basis
of race, color, national origin, gender, religion, disability, sexual orientation, or
gender identity. Any student who is found to have engaged in bullying as
defined under this policy on the basis of these protected categories will be
suspended for a minimum of five days.

None of the other students who wore the Tolerance Club shirts were disciplined or
asked to change their attire or hide the message on their shirts.

Artisan and Ruckus, who are both currently eighteen-years-old, sued Commonplace
School District for violation of their First Amendment rights to free speech, and alleged that the
Districts policy was unconstitutionally overbroad and vague. The two cases progressed
independently at the federal District Court level. Commonplace District moved for summary
judgment in each case, and in each the District Court judge granted summary judgment on
behalf of the school district. Artisan and Ruckus appealed to the United States Court of
Appeals. The two cases have been consolidated for purposes of oral argument on appeal.

{00098770; 1} Fact Pattern pg. 3



Issues on Appeal
Issue 1: Does the school have a right to regulate Artisans speech/discipline
Artisan or is Artisans speech protected under the 1st Amendment?

Issue 2: Does the school have a right to regulate Ruckus speech/discipline

Ruckus or is Ruckus speech protected under the 1st Amendment?

Issue 3: Is Commonplace Districts Anti-Bullying Policy unconstitutionally

vague or overbroad?

{00098770; 1} Fact Pattern pg. 4

 1
LIBRARY

1
Some of the cases have been edited/altered
for purposes of this competition.

LIBRARY
Gordon D. Schaber 201516 Moot Court


U.S. Const. Amend. I

Congress shall make no law respecting an establishment of religion, or prohibiting
the free exercise thereof; or abridging the freedom of speech, or of the press; or
the right of the people peaceably to assemble, and to petition the government for
a redress of grievances.

{00098843; 1}
 Cases for
Issues 1 & 2

LIBRARY
Gordon D. Schaber 201516 Moot Court
 Thomas v. Bd. of Educ., 607 F.2d 1043
United States Court of Appeals for the Second Circuit

September 6, 1979, Argued ; October 15, 1979, Decided

Opinion

[1044] Public education in America enables our nation's youth to become responsible participants in a
self-governing society. To perform this critical function effectively, professional educators must be
accorded substantial discretion to oversee properly their myriad responsibilities. But our willingness to
defer to the schoolmaster's expertise in administering school discipline rests, in large measure, upon the
supposition that [1045] the arm of authority does not reach beyond the schoolhouse gate. When an
educator seeks to extend his dominion beyond these bounds, therefore, he must answer to the same
constitutional commands that bind all other institutions of government. Where, as in the instant case,
school officials bring their punitive power to bear on the publication and distribution of a newspaper off
the school grounds, that power must be cabined within the rigorous confines of the First Amendment,
the ultimate safeguard of popular democracy. We hold that these limits have been exceeded in the case
before us.

I.

Granville is a small, rural community located some sixty miles north of Albany, in upstate New York. In
this quiet town, Donna Thomas, John Tiedeman, David Jones, and Richard Williams, all students in the
Granville Junior-Senior High School, conceived a plan in November 1978 to produce a satirical
publication addressed to the school community. As their project evolved in succeeding months, the
students decided to emulate National Lampoon, a well-known publication specializing in sexual satire.
After soliciting topics from their fellow students, the editors drafted articles pasquinading school
lunches, cheerleaders, classmates, and teachers. Articles on masturbation and prostitution as well as
puzzles and a cartoon were also prepared. Some of the initial preparation for publication occurred after
school hours in the classroom of a Granville teacher, George Mager. Intermittently, the students
conferred with Mager for advice on isolated questions of grammar and content. At most, it appears that
only an occasional article was composed or typed within the school building, always after classes. Apart
from these scant and insignificant school contacts, however, they worked exclusively in their homes, off
campus and after school hours.

In mid-January, Mager first noticed a draft of an article in the students' papers and immediately
informed Granville's Assistant Principal, Frederick Reed, of his discovery. Shortly thereafter, Reed
summoned Tiedeman and discussed with him the "dangers" of publishing material that might offend or
hurt others. Specifically, he told Tiedeman that a similar publication several years before had culminated
in the suspension of the students involved. Accordingly, Reed cautioned Tiedeman to refrain from
mentioning particular students and to keep the publication off school grounds.

{00098831; 1} Library page 1

In response to Reed's admonition, Tiedeman and his young associates deleted several proposed articles
and excised students' names from others. Moreover, they assiduously endeavored to sever all
connections between their publication and the school. A legend disclaiming responsibility for any copies
found on school property was affixed to the newspaper's cover. Indeed, all 100 copies of the paper were
produced by the facilities of a community business. Once completed, the publication was stored, with
Mager's permission, in his classroom closet. At the end of each school day, the students retrieved a
number of copies and sold each one for twenty-five cents to classmates at Stewart's, a store in Granville.
Within a week, all but seven copies were sold, and receipts totalled $ 11 to $ 13.

The publication, entitled Hard Times, first surfaced within the school on January 24 when a teacher
confiscated a copy from a student and presented it to Granville's principal, William Butler. Butler and
Don [1046] Miller, Superintendent of Schools, initially agreed to take no action, at least until they could
assess the publication's impact. On January 24 and 25, schoolwide examinations were conducted
without incident, demonstrating the soundness of their initial decision. Subsequently, however, Beverly
Tatko, President of the Granville Board of Education, learned of the paper's existence through her son,
Peter. Shocked and offended, Tatko met with Miller and Butler on January 29 to ascertain how the
school officials intended to proceed. Moreover, Tatko intimated her dissatisfaction with the
administrators' inaction, and suggested convening a school board meeting to discuss the episode.
Immediately Butler instituted an investigation. Mager, surrendering the seven remaining copies
deposited for storage in his closet, informed Butler of his limited role in the paper's composition.
Moreover, the principal determined that the four appellants were primarily responsible for publication
and dissemination of the paper. Miller then telephoned each of the students' parents and invited them
to attend a school board meeting that evening.

At the meeting, Butler summarized the results of his investigation and distributed copies of the
publication. Later, Miller and Butler, following consultation with the Board of Education, decided to
impose a number of penalties: (1) five-day suspensions to be reduced to three days if the student
prepared an essay on "the potential harm to people caused by the publication of irresponsible and/or
obscene writing"; (2) segregation from other students during study hall periods, throughout the month
of February and possibly longer if an acceptable essay were not submitted; (3) loss of all student
privileges during the period of suspension; and (4) inclusion of suspension letters in the students' school
files. These sanctions took effect on February 1, when Butler personally informed each student of the
punishment and then telephoned their parents to explain the decision. At the same time, he prepared a
letter to the parents describing Hard Times as "morally offensive, indecent, and obscene," and outlining
the penalties imposed.

On February 6, the students brought this suit under 42 U.S.C. 1983 in the Northern District of New
York seeking injunctive and declaratory relief from alleged deprivations of their First and Fourteenth
Amendment rights. The Granville Board of Education, Butler, Miller, Reed, Tatko, and the other
individual board members were named as defendants. That very day, Judge Foley heard oral argument
on the plaintiffs' application for an order temporarily restraining all punishment. The able district court
judge enjoined the essay requirement, but otherwise denied the requested relief pending a hearing on
the students' motion for a preliminary injunction pursuant to Fed.R.Civ.P. 65. Thus the students had

{00098831; 1} Library page 2

served their full five-day suspensions before Judge Foley heard argument on their request for
preliminary injunctive relief. When the hearing finally was held on February 21, the parties called twelve
witnesses to explain the events relating to the students' suspensions. In addition, both sides submitted
affidavits to assist the court in gauging the paper's likely impact upon Granville's students. Defendants'
experts, three school administrators from neighboring towns, predicted in their affidavits a
"devastating" effect on public education, whereas plaintiffs' expert, an education professor, asserted in
his affidavit that "no competent school administrator" would claim that Hard Times would disrupt the
educational process of high school students.

Judge Foley denied plaintiffs' motion on May 2, ruling there had been an insufficient showing of likely
success on the merits to warrant a preliminary injunction. In support of this conclusion, he noted that
Beverly Tatko's professed "shock" at the paper's [1047] contents, together with Post hoc forecasts of
possible disruption in the affidavits of defendants' experts, satisfied him that Hard Times was potentially
destructive of discipline in Granville Junior-Senior High School, and therefore not protected by the First
Amendment. Although no school rule specifically governed student publications, the district court judge
held that the plaintiffs' activities fell within the scope of a school regulation adopted pursuant to New
York Education Law 3214, subd. 6(1), authorizing suspension of students who are "insubordinate or
disorderly, or whose conduct otherwise endangers the safety, morals, health or welfare of others."

The district court later consolidated the proceedings on the merits, and denied the plaintiffs' request for
a permanent injunction. The plaintiffs have filed timely appeals from the orders denying both temporary
and permanent relief.

II.

The proper resolution of this appeal requires us to measure the sanctions imposed by Granville school
officials against the yardstick of our constitutional commitment to robust expression pursuant to the
First Amendment. It is appropriate, therefore, to review the fundamental principles that buttress our
deeply held preference for free discourse over enforced silence, fully mindful of Judge Newman's
concurring opinion.

A.

At the heart of the First Amendment is the ineluctable relationship between the free flow of information
and a self-governing people, and courts have not hesitated to remove the occasional boulders that
obstruct this flow. See, e. g., Garrison v. Louisiana, 379 U.S. 64, 74-75, 85 S. Ct. 209, 13 L. Ed. 2d 125
(1964); Edwards v. National Audubon Society, Inc., 556 F.2d 113, 115 (2d Cir.), cert. denied, 434 U.S.
1002, 98 S. Ct. 647, 54 L. Ed. 2d 498 (1977); Kalven, The New York Times Case: A Note on "The Central
Meaning of the First Amendment," 1964 Sup.Ct.Rev. 191, 193-94. Embodied in our democracy is the
firm conviction that wisdom and justice are most likely to prevail in public decisionmaking if all ideas,
discoveries, and points of view are before the citizenry for its consideration. See, e. g., Abrams v. United
States, 250 U.S. 616, 630, 40 S. Ct. 17, 63 L. Ed. 1173 (1919) (Holmes, J., dissenting); United States v.
Associated Press, 52 F. Supp. 362, 372 (S.D.N.Y.1943) (L. Hand, J.), aff'd, 326 U.S. 1, 65 S. Ct. 1416, 89 L.

{00098831; 1} Library page 3

Ed. 2013 (1945). Accordingly, we must remain profoundly skeptical of government claims that state
action affecting expression can survive constitutional objections.

At the same time, we have frankly recognized that not all expression enlightens the body politic, and
that some words are capable of perpetrating grievous harm. Thus, when experience has clearly revealed
that the value of a species of expression is thoroughly exiguous, but its potential for harm is great,
courts have defined narrow categories of words that the state may punish. [1048] See, e. g., Chaplinsky
v. New Hampshire, 315 U.S. 568, 572, 62 S. Ct. 766, 86 L. Ed. 1031 (1942); Gertz v. Robert Welch, Inc.,
418 U.S. 323, 340, 94 S. Ct. 2997, 41 L. Ed. 2d 789 (1974). In this manner, we have excluded libel,
obscenity, and incitement from the First Amendment's protective cloak. See, e. g., New York Times Co.
v. Sullivan, 376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964); Miller v. California, 413 U.S. 15, 93 S. Ct.
2607, 37 L. Ed. 2d 419 (1973); Brandenburg v. Ohio, 395 U.S. 444, 89 S. Ct. 1827, 23 L. Ed. 2d 430 (1969).

In defining these limited enclaves of unprotected speech, however, we have taken great pains to
preserve ample breathing space in which expression may flourish. See New York Times Co. v. Sullivan,
supra, 376 U.S. at 271-72, 84 S. Ct. 710 (citing NAACP v. Button, 371 U.S. 415, 433, 83 S. Ct. 328, 9 L. Ed.
2d 405 (1963)). Indeed, we have granted First Amendment protection to much speech of questionable
worth, rather than force potential speakers to determine at their peril if words are embraced within the
protected zone. To avoid the chilling effect that inexorably produces a silence born of fear, we have
been intentionally frugal in exposing expression to government regulation.

Moreover, the subtle calculus we employ to weigh the quantum of chilling effect a free people can
tolerate rests upon a fundamental axiom speech may not be suppressed nor any speaker punished
unless the final determination that specific words are unprotected is made by an impartial, independent
decisionmaker. See, e. g., Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 561, 95 S. Ct. 1239, 43
L. Ed. 2d 448 (1975); Freedman v. Maryland, 380 U.S. 51, 58, 85 S. Ct. 734, 13 L. Ed. 2d 649 (1965);
Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 66, 83 S. Ct. 631, 9 L. Ed. 2d 584 (1953). We recognize the
realities of life. Thus, when those charged with evaluating expression have a vested interest in its
regulation, the temptation to expand the otherwise precise and narrow boundaries of punishable
speech may prove irresistible. Further, a cautious expositor of controversy may well choose silence over
expression if he knows that his words will be judged by a decisionmaker predisposed to rule against him.
Accordingly, the caselaw explicating the limits of governmental authority over expression counsels, both
implicitly and explicitly, that the constitutional status of speech be determined by the judiciary, the one
institution of government intentionally designed to render dispassionate justice. See, e. g., Southeastern
Promotions, Ltd., supra, 420 U.S. at 560-62, 95 S. Ct. 1239; Freedman, supra, 380 U.S. at 57-60, 85 S. Ct.
734; Bantam Books, Inc., supra, 372 U.S. at 68-70, 83 S. Ct. 631. See generally, Monaghan, First
Amendment "Due Process," 83 Harv.L.Rev. 518 (1970). In the community-at-large, therefore, the First
Amendment dictates that, in cases involving expression, no prior restraint be enforced and no
subsequent punishment be inflicted absent the considered approbation of an independent adjudicator.
Cf. Kaufman, Chilling Judicial Independence, 88 Yale L.J. 681, 681-83 (1979).

{00098831; 1} Library page 4

 B.

These principles presuppose a democratic and free society. Yet we recognize that granting the fullest
measure of individual freedom in every corner of the polity would, in certain settings, necessarily
obstruct fulfillment of vital social functions. Accordingly, although soldiers and prisoners, for example,
enjoy many First Amendment privileges, it is beyond cavil that their rights of expression may be
curtailed in a manner that would be intolerable in the outside community. See, e. g., Parker v. Levy, 417
U.S. 733, 94 S. Ct. 2547, 41 L. Ed. 2d 439 (1974); Pell v. Procunier, 417 U.S. 817, 94 S. Ct. 2800, 41 L. Ed.
2d 495 (1974). Yet, [1049] even in these isolated archipelagos, the Constitution requires government
authorities to permit the maximum degree of unrestrained expression consistent with the maintenance
of institutional integrity. Moreover, since First Amendment freedoms beyond these institutions are
jealously guarded, the more stringent restrictions acceptable within them will in no wise inhibit
expression in the larger community.

Nowhere is this delicate accommodation more vital than in our nation's schools. Obviously, education
would be impossible if teachers were forbidden to sanction incorrect responses or substandard essays
with failing grades. Realistically, our children could not be educated if school officials supervising pre-
college students were without power to punish one who spoke out of turn in class or who disrupted the
quiet of the library or study hall.

These cases, therefore, are not easy of solution and much depends on the specific facts before us. For
example, we have consistently maintained that students and teachers enjoy significant First Amendment
rights even within the school itself. Thus, in West Virginia State Board of Education v. Barnette, 319 U.S.
624, 63 S. Ct. 1178, 87 L. Ed. 1628 (1943), the Supreme Court held that a student could not be forced to
salute the American flag against his will. Moreover, in Tinker v. Des Moines Independent Community
School District, 393 U.S. 503, 89 S. Ct. 733, 21 L. Ed. 2d 731 (1969), the Court ruled that the First
Amendment rights of students were abridged when school officials punished them for wearing black
armbands in symbolic protest of the Vietnam War. And in a subsequent armband case, James v. Board
of Education, 461 F.2d 566 (2d Cir.), Cert. denied, 409 U.S. 1042, 93 S. Ct. 529, 34 L. Ed. 2d 491 (1972),
we applied Tinker To invalidate the discharge of a public school teacher.

But even the Tinker line of cases recognizes that expression in school may be curtailed if it threatens to
"materially and substantially interfere with the requirements of appropriate discipline in the operation
of the school." Tinker, supra, 393 U.S. at 509, 89 S. Ct. at 738. Moreover, school officials must have some
latitude within the school in punishing and prohibiting ordinarily protected speech both out of regard
for fellow students who constitute a captive audience, and in recognition of the fact that the school has
a substantial educational interest in avoiding the impression that it has authorized a specific expression.
Thus, in Trachtman v. Anker, 563 F.2d 512, 516 (2d Cir. 1977), Cert. denied, 435 U.S. 925, 98 S. Ct. 1491,
55 L. Ed. 2d 519 (1978), we upheld the action of high school officials who refused to permit distribution
of a sexually explicit questionnaire within the school.

{00098831; 1} Library page 5

Perhaps the most useful illustration of the delicate balance we have endeavored to strike between
institutional needs and individual rights is our decision in Eisner v. Stamford Board of Education, 440
F.2d 803 (2d Cir. 1971). There we confronted a school board policy that prohibited the distribution of
"any printed or written matter" within the school without the prior approval of school administrators.
Id. at 805. In the adult world, of course, this policy would have succumbed to our heavy presumption
against prior restraints. See Near v. Minnesota, 283 U.S. 697, 51 S. Ct. 625, 75 L. Ed. 1357 (1931); New
York Times Co. v. United States, 403 U.S. 713, 714, 91 S. Ct. 2140, 29 L. Ed. 2d 822 (1971). Yet, because
we recognized the unique requirements of the educational process, we declined to hold that a system of
prior restraint [1050] is presumptively unconstitutional. Eisner, supra, 440 F.2d at 805. Rather, we
interpreted the First Amendment to require that the review process function expeditiously, ensuring
that students could swiftly challenge in a judicial forum an adverse administrative decision. Id. Thus, we
accommodated our concern for the First Amendment rights of students with a cautious deference to the
expertise of educational officials within the academic environment.

III.

The case before us, however, arises in a factual context distinct from that envisioned in Tinker and its
progeny. While prior cases involved expression within the school itself, all but an insignificant amount of
relevant activity in this case was deliberately designed to take place beyond the schoolhouse gate.
Indeed, the appellants diligently labored to ensure that Hard Times was printed outside the school, and
that no copies were sold on school grounds. That a few articles were transcribed on school typewriters,
and that the finished product was secretly and unobtrusively stored in a teacher's closet do not alter the
fact that Hard Times was conceived, executed, and distributed outside the school. At best, therefore,
any activity within the school itself was De minimis.

Thus, the limited abrogation of First Amendment guarantees appropriate in Trachtman and Eisner is
wholly out of place here for in those cases all activities were conducted on school property. Here,
because school officials have ventured out of the school yard and into the general community where the
freedom accorded expression is at its zenith, their actions must be evaluated by the principles that bind
government officials in the public arena. Thus, wholly apart from the ultimate constitutional status of
the words employed, these punishments could only have been decreed and implemented by an
independent, impartial decisionmaker. Because the appellees do not satisfy this standard, we find that
the punishments imposed here cannot withstand the proscription of the First Amendment.

[1051] We may not permit school administrators to seek approval of the community-at-large by
punishing students for expression that took place off school property. Nor may courts endorse such
punishment because the populace would approve. The First Amendment will not abide the additional
chill on protected expression that would inevitably emanate from such a practice. Indeed, experience
teaches that future communications would be inhibited regardless of the intentions of well meaning
school officials. Cf. Eisner, supra, 440 F.2d at 808.

{00098831; 1} Library page 6

In the last analysis, a school official acts as both prosecutor and judge when he moves against student
expression. His intimate association with the school itself and his understandable desire to preserve
institutional decorum give him a vested interest in suppressing controversy. Accordingly, "Under the
guise of beneficent concern for the welfare of school children, school authorities, albeit unwittingly,
might permit prejudices of the community to prevail." James, supra, 461 F.2d at 575; Accord, Shanley v.
Northeast Independent School District, 462 F.2d 960, 966 (5th Cir. 1972). We note, in this connection,
that Granville school administrators failed to discipline the appellants until urged to do so by a
community leader, Board of Education President Tatko. Although we are resigned to condone an added
increment of chilling effect when school officials punish strictly limited categories of speech within the
school, we reject the imposition of such sanctions for off-campus expression.

It is not difficult to imagine the lengths to which school authorities could take the power they have
exercised in the case before us. If they possessed this power, it would be within their discretion to
suspend a student who purchases an issue of National Lampoon, the inspiration for Hard Times, at a
neighborhood newsstand and lends it to a school friend. And, it is conceivable that school officials could
consign a student to a segregated study hall because he and a classmate watched an X-rated film on his
living room cable television. While these activities are certainly the proper subjects of parental
discipline, the First Amendment forbids public school administrators and teachers from regulating the
material to which a child is exposed after he leaves school each afternoon. Parents still have their role to
play in bringing up their children, and school officials, in such instances, are not empowered to assume
the character of Parens patriae.

We therefore [1053] reverse and remand to the district court for further proceedings, consistent with
this opinion.

{00098831; 1} Library page 7

 Wisniewski ex rel. Wisniewski v. Bd. of Educ.,
494 F.3d 34
United States Court of Appeals for the Second Circuit

April 17, 2007, Heard; July 5, 2007, Decided

Opinion

[35] JON O. NEWMAN, Circuit Judge.

This appeal concerns a First Amendment challenge to an eighth-grade student's suspension for sharing
with friends via the Internet a small drawing crudely, but clearly, suggesting that a named teacher
should be shot and killed. Plaintiffs-Appellants Martin and Annette Wisniewski, the parents of Aaron
Wisniewski, appeal from the June 30, 2006, amended judgment of the District Court for the Northern
District of New York (Norman A. Mordue, Chief Judge), dismissing their federal civil rights claims against
the Defendants-Appellees Weedsport Central School District Board of Education and School
Superintendent Richard Mabbett and declining to exercise supplemental jurisdiction over state law
claims. We conclude that the federal claims were properly dismissed because it was reasonably
foreseeable that Wisniewski's communication would cause a disruption within the school environment,
and that it was appropriate not to exercise supplemental jurisdiction. We therefore affirm.

Background

Facts of the episode. This case arose out of an Internet transmission by an eighth-grader at Weedsport
Middle School, in the Weedsport Central School District in upstate New York. In April 2001, the pupil,
Aaron Wisniewski ("Aaron"), was using AOL Instant Messaging ("IM") software on his parents' home
computer. Instant messaging enables a person using a computer with Internet access to exchange
messages in real time with members of a group (usually called "buddies" in IM lingo) who have the same
IM software on their computers. Instant messaging permits rapid exchanges of text between any two
members of a "buddy list" who happen to be on-line at the same time. Different IM programs use
different notations for indicating which members of a user's "buddy list" are on-line at any one time.
Text sent to and from a "buddy" remains on the computer screen during the entire exchange of
messages between any two users of the IM program.

The AOL IM program, like many others, permits the sender of IM messages to display on the computer
screen an icon, created by the sender, which serves as an identifier of the sender, in addition to the
sender's name. The IM icon of the sender and that of the person replying remain on the screen during
the exchange of text messages between the two "buddies," and each can copy the icon of the other and
[36] transmit it to any other "buddy" during an IM exchange.

{00098833; 1} Library page 8

Aaron's IM icon was a small drawing of a pistol firing a bullet at a person's head, above which were dots
representing splattered blood. Beneath the drawing appeared the words "Kill Mr. VanderMolen." Philip
VanderMolen was Aaron's English teacher at the time. Aaron created the icon a couple of weeks after
his class was instructed that threats would not be tolerated by the school, and would be treated as acts
of violence. Aaron sent IM messages, displaying the icon to some 15 members of his IM "buddy list." The
icon was not sent to VanderMolen or any other school official.

The icon was available for viewing by Aaron's "buddies" for three weeks, at least some of whom were
Aaron's classmates at Weedsport Middle School. During that period it came to the attention of another
classmate, who informed VanderMolen of Aaron's icon and later supplied him with a copy of the icon.
VanderMolen, distressed by this information, forwarded it to the high school and middle school
principals, who brought the matter to the attention of the local police, the Superintendent Mabbett, and
Aaron's parents. In response to questioning by the school principals, Aaron acknowledged that he had
created and sent the icon and expressed regret. He was then suspended for five days, after which he
was allowed back in school, pending a superintendent's hearing. VanderMolen asked and was allowed
to stop teaching Aaron's class.

At the same time, a police investigator who interviewed Aaron concluded that the icon was meant as a
joke, that Aaron fully understood the severity of what he had done, and that Aaron posed no real threat
to VanderMolen or to any other school official. A pending criminal case was then closed. Aaron was also
evaluated by a psychologist, who also found that Aaron had no violent intent, posed no actual threat,
and made the icon as a joke.

The superintendent's hearing. In May 2001 a superintendent's hearing, regarding a proposed long-term
suspension of Aaron, was held before a designated hearing officer, attorney Lynda M. VanCoske. Aaron
was charged under New York Education Law 3214(3) with endangering the health and welfare of other
students and staff at the school.

In her decision of June 2001, VanCoske found that the icon was threatening and should not have been
understood as a joke. Although the threatening act took place outside of school, she concluded that it
was in violation of school rules and disrupted school operations by requiring special attention from
school officials, replacement of the threatened teacher, and interviewing pupils during class time. The
hearing officer acknowledged the opinions of the police investigator and the psychologist that Aaron did
not intend to harm VanderMolen and that he did not pose any real threat, but stated that "intent [is]
irrelevant." Citing the evidentiary standard followed in New York suspension hearings, the decision
concluded:

Substantial and competent evidence exists that Aaron engaged in the act of sending a
threatening message to his buddies, the subject of which was a teacher. He admitted it.
Competent and substantial evidence exists that this message disrupted the educational
environment. . . .

{00098833; 1} Library page 9

 [37] As a result of the foregoing, I conclude that Aaron did commit the act of
threatening a teacher, in violation of page 11 of the student handbook, creating an
environment threatening the health, safety and welfare of others, and his actions
created a disruption in the school environment.

The hearing officer recommended suspension of Aaron for one semester. The recommendation was
presented to the district's Board of Education ("Board"), which approved the one semester suspension
in late September 2001. Aaron was suspended for the first semester of the 2001-2002 school year.
During the period of suspension the school district afforded Aaron alternative education. He returned to
school for the spring term. At oral argument, we were advised that because of school and community
hostility, the family moved from Weedsport.

Discussion

With respect to school officials' authority to discipline a student's expression reasonably understood as
urging violent conduct, we think the appropriate First Amendment standard is the one set forth by the
Supreme Court in Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 89 S. Ct.
733, 21 L. Ed. 2d 731 (1969).

Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 89 S. Ct. 733, 21 L. Ed. 2d
731 (1969), it will be recalled, concerned students (two at a high school and one at a junior high school)
suspended by school authorities for coming to school wearing black armbands signifying their
opposition to the Vietnam War. See id. at 504. Noting that the students' conduct was "a silent, passive
expression of opinion," id. at 508, the Court stated, "In order for the State in the person of school
officials to justify prohibition of a particular expression of opinion, it must be able to show that its action
was caused by something more than a mere desire to avoid the discomfort and unpleasantness that
always accompany an unpopular viewpoint." Id. at 509. The Court used several formulations to describe
student conduct that would merit school discipline: conduct that (1) "would substantially interfere with
the work of the school," id., or (2) would cause "material and substantial interference with schoolwork
or discipline," id. at 511, or (3) "would materially and substantially disrupt the work and discipline of the
school," id. at 513, or (4) "might reasonably have led school authorities to forecast substantial disruption
of or material interference with school activities," id. at 514. Seeing no evidence of any of such risks, the
Court ruled that the students' wearing of the armbands was speech protected against school discipline
by the First Amendment. See id. at 511-14. In its most recent consideration of a First Amendment
challenge to school discipline in response to a student's allegedly protected speech, the Supreme Court
viewed the third formulation as Tinker's holding: "Tinker held that student expression may not be
suppressed unless school officials reasonably conclude that it will 'materially and substantially disrupt
the work and discipline of the school.'" Morse v. Frederick, 551 U.S. 393, 127 S. Ct. 2618, 168 L. Ed. 2d
290, 2007 U.S. LEXIS 8514, 2007 WL 1804317, at *7 (Sup. Ct. 2007) (quoting Tinker, 393 U.S. at 513).

Even if Aaron's transmission of an icon depicting and calling for the killing of his teacher could be viewed
as an expression of opinion within the meaning of Tinker, we conclude that it crosses the boundary of
protected speech and constitutes student conduct that poses a reasonably foreseeable risk that the icon

{00098833; 1} Library page 10

would come to the attention of school authorities and that [39] it would "materially and substantially
disrupt the work and discipline of the school." Id. (internal quotation marks omitted). For such conduct,
Tinker affords no protection against school discipline. See LaVine v. Blaine School District, 257 F.3d 981,
989-92 (9th Cir. 2001) (upholding, under Tinker, suspension of high school student based in part on
poem describing shooting of students); Boucher v. School Board, 134 F.3d 821, 827-28 (7th Cir. 1998)
(upholding, under Tinker, one-year expulsion of high school student for writing article in underground
newspaper outlining techniques for hacking into school computers); J.S., a Minor v. Bethlehem Area
School District, 757 A.2d 412, 422 (Pa. Cmwlth. 2000) (upholding, under Tinker, permanent expulsion of
student for placing on web-site picture of severed head of teacher and soliciting funds for her
execution).

The fact that Aaron's creation and transmission of the IM icon occurred away from school property does
not necessarily insulate him from school discipline. We have recognized that off-campus conduct can
create a foreseeable risk of substantial disruption within a school, see Thomas v. Board of Education,
607 F.2d 1043, 1052 n.17 (2d Cir. 1979) ("We can, of course, envision a case in which a group of students
incites substantial disruption within the school from some remote locale."), as have other courts, see
Pulaski, 306 F.3d at 625-27 (letter, written and kept at home, that threatened killing of fellow student);
Sullivan v. Houston Independent School District, 475 F.2d 1071, 1075-77 (5th Cir. 1973) (underground
newspaper distributed off-campus but near school grounds); J.S., 757 A.2d at 418-22 (material created
on home computer).

In this case, the panel is divided as to whether it must be shown that it was reasonably foreseeable that
Aaron's IM icon would reach the school property or whether the undisputed fact that it did reach the
school pretermits any inquiry as to this aspect of reasonable foreseeability. We are in agreement,
however, that, on the undisputed facts, it was reasonably foreseeable that the IM icon would come to
the attention of school authorities and the teacher whom the icon depicted being shot. The potentially
threatening content of the icon and the extensive distribution of it, which encompassed 15 recipients,
[40] including some of Aaron's classmates, during a three-week circulation period, made this risk at
least foreseeable to a reasonable person, if not inevitable. And there can be no doubt that the icon,
once made known to the teacher and other school officials, would foreseeably create a risk of
substantial disruption within the school environment.

Whether these aspects of reasonable foreseeability are considered issues of law or issues of fact as to
which, on this record, no reasonable jury could disagree, foreseeability of both communication to school
authorities, including the teacher, and the risk of substantial disruption is not only reasonable, but clear.
These consequences permit school discipline, whether or not Aaron intended his IM icon to be
communicated to school authorities or, if communicated, to cause a substantial disruption. As in Morse,
the student in the pending case was not disciplined for conduct that was merely "offensive," Morse,
2007 U.S. LEXIS 8514, 2007 WL 1804317, at *10, or merely in conflict with some view of the school's
"educational mission," id. 2007 U.S. LEXIS 8514, [WL] at *18 (Alito, J., with whom Kennedy, J., joins,
concurring).

{00098833; 1} Library page 11

Although the Appellants contend that the First Amendment barred the imposition of any discipline, they
make no distinct challenge to the extent of the discipline. Thus, we need not determine whether such a
challenge would have to be grounded on the First Amendment itself or the substantive component of
the Due Process Clause of the Fourteenth Amendment. Cf. Graham v. Connor, 490 U.S. 386, 395, 109 S.
Ct. 1865, 104 L. Ed. 2d 443 (1989) ("Because the Fourth Amendment provides an explicit textual source
of constitutional protection against this sort of physically intrusive governmental conduct, that
Amendment, not the more generalized notion of 'substantive due process,' must be the guide for
analyzing these claims."). And we are mindful that "[i]t is not the role of the federal courts to set aside
decisions of school administrators which the court may view as lacking a basis in wisdom or
compassion." Wood v. Strickland, 420 U.S. 308, 326, 95 S. Ct. 992, 43 L. Ed. 2d 214 (1975). However, in
the absence of a properly presented challenge, we do not decide whether the length of the one
semester suspension exceeded whatever constitutional limitation might exist. We rule only that the First
Amendment claims against the School Board and the Superintendent were properly dismissed, and that
the state law claims were properly left for whatever state court adjudication might be available.

Conclusion

The judgment of the District Court is affirmed.

{00098833; 1} Library page 12

 Tinker v. Des Moines Indep. Cmty. Sch. Dist.,
393 U.S. 503
Supreme Court of the United States

November 12, 1968, Argued ; February 24, 1969, Decided

Opinion

[504] MR. JUSTICE FORTAS delivered the opinion of the Court.

Petitioner John F. Tinker, 15 years old, and petitioner Christopher Eckhardt, 16 years old, attended high
schools in Des Moines, Iowa. Petitioner Mary Beth Tinker, John's sister, was a 13-year-old student in
junior high school.

In December 1965, a group of adults and students in Des Moines held a meeting at the Eckhardt home.
The group determined to publicize their objections to the hostilities in Vietnam and their support for a
truce by wearing black armbands during the holiday season and by fasting on December 16 and New
Year's Eve. Petitioners and their parents had previously engaged in similar activities, and they decided to
participate in the program.

The principals of the Des Moines schools became aware of the plan to wear armbands. On December
14, 1965, they met and adopted a policy that any student wearing an armband to school would be asked
to remove it, and if he refused he would be suspended until he returned without the armband.
Petitioners were aware of the regulation that the school authorities adopted.

On December 16, Mary Beth and Christopher wore black armbands to their schools. John Tinker wore
his armband the next day. They were all sent home and suspended from school until they would come
back without their armbands. They did not return to school until after the planned period for wearing
armbands had expired -- that is, until after New Year's Day.

This complaint was filed in the United States District Court by petitioners, through their fathers, under
1983 of Title 42 of the United States Code. It prayed for an injunction restraining the respondent school
officials and the respondent members of the board of directors of the school district from disciplining
the petitioners, and it sought nominal damages. After an evidentiary hearing the District Court dismissed
the complaint. It upheld [505] the constitutionality of the school authorities' action on the ground that
it was reasonable in order to prevent disturbance of school discipline. 258 F.Supp. 971 (1966). The court
referred to but expressly declined to follow the Fifth Circuit's holding in a similar case that the wearing
of symbols like the armbands cannot be prohibited unless it "materially and substantially interfere[s]
with the requirements of appropriate discipline in the operation of the school." Burnside v. Byars, 363
F.2d 744, 749 (1966).

{00098839; 1} Library Page 13

On appeal, the Court of Appeals for the Eighth Circuit considered the case en banc. The court was
equally divided, and the District Court's decision was accordingly affirmed, without opinion. 383 F.2d
988 (1967). We granted certiorari. 390 U.S. 942 (1968).

I.

The District Court recognized that the wearing of an armband for the purpose of expressing certain
views is the type of symbolic act that is within the Free Speech Clause of the First Amendment. See West
Virginia v. Barnette, 319 U.S. 624 (1943); Stromberg v. California, 283 U.S. 359 (1931).Cf. Thornhill v.
Alabama, 310 U.S. 88 (1940); Edwards v. South Carolina, 372 U.S. 229 (1963); Brown v. Louisiana, 383
U.S. 131 (1966). As we shall discuss, the wearing of armbands in the circumstances of this case was
entirely divorced from actually or potentially disruptive conduct by those participating in it. It was
closely akin to "pure speech" [506] which, we have repeatedly held, is entitled to comprehensive
protection under the First Amendment. Cf. Cox v. Louisiana, 379 U.S. 536, 555 (1965); Adderley v.
Florida, 385 U.S. 39 (1966).

First Amendment rights, applied in light of the special characteristics of the school environment, are
available to teachers and students. It can hardly be argued that either students or teachers shed their
constitutional rights to freedom of speech or expression at the schoolhouse gate. This has been the
unmistakable holding of this Court for almost 50 years. In Meyer v. Nebraska, 262 U.S. 390 (1923), and
Bartels v. Iowa, 262 U.S. 404 (1923), this Court, in opinions by Mr. Justice McReynolds, held that the Due
Process Clause of the Fourteenth Amendment prevents States from forbidding the teaching of a foreign
language to young students. Statutes to this effect, the Court held, unconstitutionally interfere with the
liberty of teacher, student, and parent. See also Pierce v. Society of Sisters, 268 U.S. 510 [507] (1925);
West Virginia v. Barnette, 319 U.S. 624 (1943); McCollum v. Board of Education, 333 U.S. 203 (1948);
Wieman v. Updegraff, 344 U.S. 183, 195 (1952) (concurring opinion); Sweezy v. New Hampshire, 354
U.S. 234 (1957); Shelton v. Tucker, 364 U.S. 479, 487 (1960); Engel v. Vitale, 370 U.S. 421 (1962);
Keyishian v. Board of Regents, 385 U.S. 589, 603 (1967); Epperson v. Arkansas, ante, p. 97 (1968).

In West Virginia v. Barnette, supra, this Court held that under the First Amendment, the student in
public school may not be compelled to salute the flag. Speaking through Mr. Justice Jackson, the Court
said:

"The Fourteenth Amendment, as now applied to the States, protects the citizen against the State itself
and all of its creatures -- Boards of Education not excepted. These have, of course, important, delicate,
and highly discretionary functions, but none that they may not perform within the limits of the Bill of
Rights. That they are educating the young for citizenship is reason for scrupulous protection of
Constitutional freedoms of the individual, if we are not to strangle the free mind at its source and teach
youth to discount important principles of our government as mere platitudes." 319 U.S., at 637.

On the other hand, the Court has repeatedly emphasized the need for affirming the comprehensive
authority of the States and of school officials, consistent with fundamental constitutional safeguards, to
prescribe and control conduct in the schools. See Epperson v. Arkansas, supra, at 104; Meyer v.

{00098839; 1} Library Page 14

Nebraska, supra, at 402. Our problem lies in the area where students in the exercise of First Amendment
rights collide with the rules of the school authorities.

II.

The problem posed by the present case does not relate to regulation of the length of skirts or the type
of clothing, [508] to hair style, or deportment. Cf. Ferrell v. Dallas Independent School District, 392 F.2d
697 (1968); Pugsley v. Sellmeyer, 158 Ark. 247, 250 S. W. 538 (1923). It does not concern aggressive,
disruptive action or even group demonstrations. Our problem involves direct, primary First Amendment
rights akin to "pure speech."

The school officials banned and sought to punish petitioners for a silent, passive expression of opinion,
unaccompanied by any disorder or disturbance on the part of petitioners. There is here no evidence
whatever of petitioners' interference, actual or nascent, with the schools' work or of collision with the
rights of other students to be secure and to be let alone. Accordingly, this case does not concern speech
or action that intrudes upon the work of the schools or the rights of other students.

Only a few of the 18,000 students in the school system wore the black armbands. Only five students
were suspended for wearing them. There is no indication that the work of the schools or any class was
disrupted. Outside the classrooms, a few students made hostile remarks to the children wearing
armbands, but there were no threats or acts of violence on school premises.

The District Court concluded that the action of the school authorities was reasonable because it was
based upon their fear of a disturbance from the wearing of the armbands. But, in our system,
undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of
expression. Any departure from absolute regimentation may cause trouble. Any variation from the
majority's opinion may inspire fear. Any word spoken, in class, in the lunchroom, or on the campus, that
deviates from the views of another person may start an argument or cause a disturbance. But our
Constitution says we must take this risk, Terminiello v. Chicago, 337 U.S. 1 (1949); and our history says
that it is this sort of hazardous freedom -- this kind of openness -- that is [509] the basis of our national
strength and of the independence and vigor of Americans who grow up and live in this relatively
permissive, often disputatious, society.

In order for the State in the person of school officials to justify prohibition of a particular expression of
opinion, it must be able to show that its action was caused by something more than a mere desire to
avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint. Certainly
where there is no finding and no showing that engaging in the forbidden conduct would "materially and
substantially interfere with the requirements of appropriate discipline in the operation of the school,"
the prohibition cannot be sustained. Burnside v. Byars, supra, at 749.

In the present case, the District Court made no such finding, and our independent examination of the
record fails to yield evidence that the school authorities had reason to anticipate that the wearing of the
armbands would substantially interfere with the work of the school or impinge upon the rights of other

{00098839; 1} Library Page 15

students. Even an official memorandum prepared after the suspension that listed the reasons for the
ban on wearing the armbands made no reference to the anticipation of such disruption.

[510] On the contrary, the action of the school authorities appears to have been based upon an urgent
wish to avoid the controversy which might result from the expression, even by the silent symbol of
armbands, of opposition to this Nation's part in the conflagration in Vietnam. It is revealing, in this
respect, that the meeting at which the school principals decided to issue the contested regulation was
called in response to a student's statement to the journalism teacher in one of the schools that he
wanted to write an article on Vietnam and have it published in the school paper. (The student was
dissuaded.

It is also relevant that the school authorities did not purport to prohibit the wearing of all symbols of
political or controversial significance. The record shows that students in some of the schools wore
buttons relating to national political campaigns, and some even wore the Iron Cross, traditionally a
symbol of Nazism. The order prohibiting the wearing of armbands did not extend to these. Instead, a
particular symbol -- black armbands worn to exhibit opposition to this Nation's involvement [511] in
Vietnam -- was singled out for prohibition. Clearly, the prohibition of expression of one particular
opinion, at least without evidence that it is necessary to avoid material and substantial interference with
schoolwork or discipline, is not constitutionally permissible.

In our system, state-operated schools may not be enclaves of totalitarianism. School officials do not
possess absolute authority over their students. Students in school as well as out of school are "persons"
under our Constitution. They are possessed of fundamental rights which the State must respect, just as
they themselves must respect their obligations to the State. In our system, students may not be
regarded as closed-circuit recipients of only that which the State chooses to communicate. They may not
be confined to the expression of those sentiments that are officially approved. In the absence of a
specific showing of constitutionally valid reasons to regulate their speech, students are entitled to
freedom of expression of their views. As Judge Gewin, speaking for the Fifth Circuit, said, school officials
cannot suppress "expressions of feelings with which they do not wish to contend." Burnside v. Byars,
supra, at 749.

In Meyer v. Nebraska, supra, at 402, Mr. Justice McReynolds expressed this Nation's repudiation of the
principle that a State might so conduct its schools as to "foster a homogeneous people." He said:

"In order to submerge the individual and develop ideal citizens, Sparta assembled the males at seven
into barracks and intrusted their subsequent education and training to official guardians. Although such
measures have been deliberately approved by men of great genius, their ideas touching the relation
between individual and State were wholly different from those upon which our institutions rest; and it
hardly will be affirmed that any legislature could impose such restrictions upon the people of a [512]
State without doing violence to both letter and spirit of the Constitution."

This principle has been repeated by this Court on numerous occasions during the intervening years. In
Keyishian v. Board of Regents, 385 U.S. 589, 603, MR. JUSTICE BRENNAN, speaking for the Court, said:

{00098839; 1} Library Page 16

"'The vigilant protection of constitutional freedoms is nowhere more vital than in the community of
American schools.' Shelton v. Tucker, [364 U.S. 479,] at 487. The classroom is peculiarly the 'marketplace
of ideas.' The Nation's future depends upon leaders trained through wide exposure to that robust
exchange of ideas which discovers truth 'out of a multitude of tongues, [rather] than through any kind of
authoritative selection.'"

The principle of these cases is not confined to the supervised and ordained discussion which takes place
in the classroom. The principal use to which the schools are dedicated is to accommodate students
during prescribed hours for the purpose of certain types of activities. Among those activities is personal
intercommunication among the students. This is not only an inevitable part of the process of attending
school; it is also an important part of the educational process. A student's rights, therefore, do not
embrace merely the classroom hours. When he is in the cafeteria, or on the playing field, or on [513]
the campus during the authorized hours, he may express his opinions, even on controversial subjects
like the conflict in Vietnam, if he does so without "materially and substantially interfer[ing] with the
requirements of appropriate discipline in the operation of the school" and without colliding with the
rights of others. Burnside v. Byars, supra, at 749. But conduct by the student, in class or out of it, which
for any reason -- whether it stems from time, place, or type of behavior -- materially disrupts classwork
or involves substantial disorder or invasion of the rights of others is, of course, not immunized by the
constitutional guarantee of freedom of speech. Cf. Blackwell v. Issaquena County Board of Education,
363 F.2d 749 (C. A. 5th Cir. 1966).

Under our Constitution, free speech is not a right that is given only to be so circumscribed that it exists
in principle but not in fact. Freedom of expression would not truly exist if the right could be exercised
only in an area that a benevolent government has provided as a safe haven for crackpots. The
Constitution says that Congress (and the States) may not abridge the right to free speech. This provision
means what it says. We properly read it to permit reasonable regulation of speech-connected activities
in carefully restricted circumstances. But we do not confine the permissible exercise of First Amendment
rights to a telephone booth or the four corners of a pamphlet, or to supervised and ordained discussion
in a school classroom.

If a regulation were adopted by school officials forbidding discussion of the Vietnam conflict, or the
expression by any student of opposition to it anywhere on school property except as part of a
prescribed classroom exercise, it would be obvious that the regulation would violate the constitutional
rights of students, at least if it could not be justified by a showing that the students' activities would
materially and substantially disrupt the work and discipline of the school. Cf. Hammond [514] v. South
Carolina State College, 272 F.Supp. 947 (D. C. S. C. 1967) (orderly protest meeting on state college
campus); Dickey v. Alabama State Board of Education, 273 F.Supp. 613 (D. C. M. D. Ala. 1967) (expulsion
of student editor of college newspaper). In the circumstances of the present case, the prohibition of the
silent, passive "witness of the armbands," as one of the children called it, is no less offensive to the
Constitution's guarantees.

As we have discussed, the record does not demonstrate any facts which might reasonably have led
school authorities to forecast substantial disruption of or material interference with school activities,

{00098839; 1} Library Page 17

and no disturbances or disorders on the school premises in fact occurred. These petitioners merely went
about their ordained rounds in school. Their deviation consisted only in wearing on their sleeve a band
of black cloth, not more than two inches wide. They wore it to exhibit their disapproval of the Vietnam
hostilities and their advocacy of a truce, to make their views known, and, by their example, to influence
others to adopt them. They neither interrupted school activities nor sought to intrude in the school
affairs or the lives of others. They caused discussion outside of the classrooms, but no interference with
work and no disorder. In the circumstances, our Constitution does not permit officials of the State to
deny their form of expression.

We express no opinion as to the form of relief which should be granted, this being a matter for the
lower courts to determine. We reverse and remand for further proceedings consistent with this opinion.

Reversed and remanded.

{00098839; 1} Library Page 18

 J.C. v. Beverly Hills Unified Sch. Dist., 711 F.
Supp. 2d 1094
United States District Court for the Central District of California

May 6, 2010, Decided; May 6, 2010, Filed

Opinion

I. INTRODUCTION

Plaintiff J.C. brought this action against the Beverly Hills Unified School District, and school
administrators Erik Warren, Cherryne Lue-Sang, and Janice Hart ("the individual Defendants"), for the
alleged violation of her constitutional rights. Plaintiff seeks injunctive relief, as well as damages against
the individual defendants, and nominal damages in the amount of $ 1.00 against the School District.

The parties have brought cross motions for summary adjudication. Plaintiff J.C. seeks summary
adjudication as to her First and Second Causes of Action against the individual Defendants and the
District for the alleged violation of her First Amendment rights under 42 U.S.C. 1983.

For the reasons stated below, the Court GRANTS Plaintiff's motion for summary adjudication as to the
First and Second Causes of Action.

II. FACTS

The following material facts are undisputed. Plaintiff J.C. was a student at [1098] Beverly Vista High
School ("the School") in May 2008. Individual Defendant Erik Warren ("Warren") is, and at all relevant
times was, the principal of the School. Individual Defendants Cherryne Lue-Sang ("Lue Sang") and Janice
Hart ("Hart") are, and at all relevant times, were the administrative principal and counselor at the
School, respectively.

On the afternoon of Tuesday, May 27, 2008, after the students had been dismissed from the School for
the day, Plaintiff and several other students gathered at a local restaurant. (Plaintiff's Statement of
Undisputed Facts in Support of Motion for Summary Adjudication ["PSUF"] 1.) While at the restaurant,
Plaintiff recorded a four-minute and thirty-six second video of her friends talking. (PSUF 7.) The video
was recorded on Plaintiff's personal video-recording device. (Id.) The video shows Plaintiff's friends
talking about a classmate of theirs, C.C. (PSUF 8.) One of Plaintiff's friends, R.S., calls C.C. a "slut," says
that C.C. is "spoiled," talks about "boners," and uses profanity during the recording. (Defendants'
Statement of Uncontroverted Facts in Support of Defendants' Motion for Summary Adjudication
["DSUF"] 7; Declaration of J.C. in Support of Pl.'s Mot. For Summ. Adjudication ["J.C. Supporting Decl."],
Exh. 1 [YouTube video].) R.S. also says that C.C. is "the ugliest piece of shit I've ever seen in my whole
life." (J.C. Supporting Decl., Exh. 1 [YouTube video].) During the video, J.C. is heard encouraging R.S. to
continue to talk about C.C., telling her to "continue with the Carina rant." (DSUF 9.)

{00098834; 1} Library page 19

In the evening on the same day, Plaintiff posted the video on the website "YouTube" from her home
computer. (DSUF 10.) YouTube is a publicly-available website where persons can post video clips for
viewing by the general public. While at home that evening, Plaintiff contacted 5 to 10 students from the
School and told them to look at the video on YouTube. She also contacted C.C. and informed her of the
video. (DSUF 11-12.) C.C. told Plaintiff that she thought the video was mean. (Declaration of John W.
Allen in Opp'n to Pl. Mot. For Summary Judgment ["Allen Opp'n Decl."], Exh. H, [J.C. Depo. at 53:25-
54:17].) Plaintiff asked C.C. whether she would like Plaintiff to take the video off the website, but C.C.
asked her to keep the video up. (Id. at 53:25-54:17.) C.C.'s mother told C.C. to tell Plaintiff to keep the
video on the website so that they could present the video to the School the next day. (DSUF at 17.)

Plaintiff estimates that about 15 people saw the video the night it was posted. The video itself received
90 "hits" on the evening of May 27, 2008, many from Plaintiff herself. (DSUF 13-14.)

On May 28, 2008, at the start of the school day, Plaintiff overheard 10 students discussing the video on
campus. (DSUF 15.) C.C. was very upset about the video and came to the School with her mother on the
morning of May 28, 2008 so they could make the School aware of the video. C.C. spoke with school
counselor Hart about the video. She was crying and told Hart that she did not want to go to class. (DSUF
18, 20.) C.C. said she faced "humiliation" and had "hurt feelings." (PSUF 20.) Hart spent roughly 20-25
minutes counseling C.C. and convincing her to go to class. (DSUF 22.) C.C. did return to class, and the
record indicates that she likely missed only part of a single class that morning. (Id.; Declaration of John
Allen In Support of Def.'s Mot. For Summary Judgment ["Allen Supporting Decl."], Exh. N [Lue Sang
Depo. at 15:4-11] [testifying that she met with C.C. and her mother for, at most, 45 minutes].)

School administrators then investigated the making of the video. Lue-Sang viewed the video while on
the school campus. [1099] (Decl. of S. Martin Keleti in Support of Pl. Mot. ["Keleti Supporting Decl."],
Exh. A ["Lue-Sang Depo. at 95:4-7].) She called Plaintiff to the administrative office to write a statement
about the video. (PSUF 13.) Lue-Sang and Hart also demanded that Plaintiff delete the video from
YouTube, and from her home computer. (PSUF 17.) School administrators questioned the other students
in the video, including R.S., V.G., and A.B., and asked each of them to make a written statement about
the video. (DSUF 25.) R.S.'s father came to the School and watched the video with R.S. on campus. (DSUF
23.) He then took R.S. home for the rest of the day. (Id.)

Lue-Sang and Hart also contacted principal Warren regarding the video. (PSUF 15.) Warren then
contacted Amy Lambert, the Director of Pupil Personnel for the District, regarding whether the School
could take disciplinary action against Plaintiff for posting the video on the Internet. (DSUF 37.) Lambert
discussed the situation with attorneys and advised Warren that Plaintiff could be suspended. (DSUF 38.)
Plaintiff was suspended from school for two days. (PSUF 25.) No disciplinary action was taken against
the other students in the video. (PSUF 27.)

Plaintiff had a prior history of videotaping teachers at the School. In April 2008, Plaintiff was suspended
for secretly videotaping her teachers, and was told not to make further videotapes on campus. (DSUF
43-44.) During the investigation about the YouTube video on May 28, 2008, school administrators also
discovered another video posted by Plaintiff on YouTube of two friends talking on campus. (DSUF 41.) It

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is unclear when this video was recorded or posted on the Internet, but it clearly was made while J.C. was
at School.

Students at the School cannot access YouTube or other social networking websites on the School's
computers, as those websites are blocked by means of a filter. (PSUF 29.) Certain cell phones can access
the Internet, including the YouTube website, and allow the user to view videos. (DSUF 35.) However, the
School is not aware of how many students have cell phones with that capability. (PSUF 31.) Students at
the School are prohibited from using their cell phones on campus in any manner. (PSUF 30.) There is no
evidence that any student viewed the YouTube video on his or her cell phone while at School. The only
instances the video was viewed on campus, to the parties' knowledge, were during the school
administrator's investigation of the video.

III. ANALYSIS

A. Violation of First Amendment Rights

Plaintiff contends that the School District and the school administrators, Hart, Lue-Sang, and Warren,
violated her First Amendment rights by punishing her for making the YouTube video and posting it on
the Internet. Plaintiff argues that the School had no authority to discipline her because her conduct took
place entirely outside of school. To resolve this issue, the Court must first determine the scope of a
school's authority to regulate speech by its students that occurs off campus but has an effect on
campus.

1. The Supreme Court Student Speech Precedents

In 1969, the Supreme Court held in Tinker v. DesMoines Independent Community School District that a
school may regulate a student's speech or expression if such speech causes or is reasonably likely to
cause a "material and substantial" disruption to school activities or to the work of the school. 393 U.S.
503, 89 S. Ct. 733, 21 L. Ed. 2d 731 (1969). In Tinker, two high school students and one junior high school
student wore black armbands to school in protest of the Vietnam War. School officials asked them to
remove the armbands, and they refused. Pursuant to a school policy adopted just days before in
anticipation of a protest, the students were suspended until they would return to school without the
armbands. Id. at 504. The lower court upheld the suspension, but the Supreme Court reversed. Id. at
514.

In an oft-quoted passage, the Court noted: "It can hardly be argued that either students or teachers
shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." Id. at 506.
The Court found that the students' expression constituted political speech. Although the issues raised by
such speech were undoubtedly controversial -- the propriety of the Vietnam War - the students' conduct
was "a silent, passive expression of opinion, unaccompanied by any disorder or disturbance on [their]
[1101] part." Id. at 508. The Court held that a student may express his opinions, even on controversial
subjects, so long as doing so does not materially and substantially "interfer[e] with the requirements of

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appropriate discipline in the operation of the school" or "collid[e] with the rights of others." Id. at 513
(quoting Burnside v. Byars, 363 F.2d 744, 749 (5th Cir. 1966)). Conversely, school discipline is
appropriate where the facts "reasonably [lead] school authorities to forecast substantial disruption of or
material interference with school activities" as a result of the student's speech. Id. at 514.

Applying this test to the facts in Tinker, the Court concluded that no actual disruption occurred and
there was no reason to believe that the students' wearing of the armbands would cause a substantial
disruption to the school's activities. Thus, the school's disciplinary action violated the students' First
Amendment rights. Id.

In 1988, the Court carved out an exception from Tinker for school-sponsored speech. Hazelwood School
District v. Kuhlmeier, 484 U.S. 260, 108 S. Ct. 562, 98 L. Ed. 2d 592 (1988). In Hazelwood, the Court
upheld a school principal's decision [1102] to delete two articles discussing teen pregnancy and divorce
from the school-sponsored newspaper. The Court held that the school could "exercis[e] editorial
content over the style and content of student speech in school-sponsored expressive activities as long as
[doing so is] reasonably related to legitimate pedagogical concerns." Id. at 273. Distinguishing Tinker,
the Court explained that the issue of whether a school must tolerate particular student speech is
different from whether the school must affirmatively promote particular speech. Id. at 270. In sum,
"educators are entitled to exercise greater control" over speech that might reasonably be perceived to
"bear the imprimatur of the school." Id. at 271.

2. Application of the Student Speech Precedents by Lower Courts

The Supreme Court has yet to address the factual situation presented by the case at hand - that is,
whether a school can regulate student speech or expression that occurs outside the school gates, and is
not connected to a school-sponsored event, but that subsequently makes its way onto campus, either
by the speaker or by other [1103] means. Several lower courts, including the Ninth Circuit, however,
have held that a school may regulate such speech under Tinker, if the speech causes or is reasonably
likely to cause a material and substantial disruption of school activities.

In LaVine v. Blaine School District, the Ninth Circuit upheld a school's emergency expulsion of a student,
James, who wrote a graphic and violent poem about killing his classmates. 257 F.3d 981 (9th Cir. 2000).
The poem was written off campus, in the evening, and not as part of any school project. Id. at 983.
James later brought the poem to campus to show one of his teachers. The teacher was disturbed by the
poem and brought it to the school counselor and eventually to the principal. After an investigation
regarding the poem and James' history, James was expelled. Id. at 986.

The Ninth Circuit analyzed the speech under Tinker, without giving any consideration to the fact that the
poem was drafted outside of school and independent of any school activities. The court outlined the
following framework for applying the Supreme Court student speech precedents: "(1) school-sponsored
speech is governed by Hazelwood; and (2) speech that does not fall into the category of school-
sponsored speech is governed by Tinker." Id. at 988-89. Finding that James's poem clearly fell in the

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second category, "all other speech," the court applied the substantial disruption test from Tinker. Id. at
989. The Ninth Circuit ultimately concluded that the school was reasonable to portend a substantial
disruption and upheld James's expulsion. Id. at 992.

The courts have directly applied the Tinker substantial disruption test to determine if a First Amendment
violation occurred, without first considering the geographic origin of the speech. As the district court for
the Central District of California recently explained in O.Z. v. Board of Trustees: "[T]he fact that Plaintiff's
creation and transmission of the [speech or expression] occurred away from school property does not
necessarily insulate her from school discipline. . . . [O]ff-campus conduct can create a foreseeable risk of
substantial disruption within a school." 2008 U.S. Dist. LEXIS 110409, 2008 WL 4396895, *4. In sum, the
substantial weight of authority indicates that geographic boundaries generally carry little weight in the
student-speech analysis. Where the foreseeable risk of a substantial disruption is established, discipline
for such speech is permissible. See J.S. v. Blue Mt. Sch. Dist., 593 F.3d 286, 301 (3d Cir. 2010) ("[W]e hold
that off-campus speech that causes or reasonably threatens to cause a substantial disruption . . . with a
school need not satisfy any geographical technicality in order to be regulated pursuant to Tinker.")
Killion, 136 F. Supp. 2d at 455 (holding that the court need not consider plaintiff's argument that a
heightened standard applies to speech occurring off school grounds because "[t]he overwhelming
weight of authority has analyzed student speech (whether on or off campus) in accordance with
Tinker").

Some courts (primarily the Second Circuit), however, have considered the location of the speech to be
an important threshold issue for the court to resolve before applying the Supreme Court's student
speech precedents. For example, in a recent case involving communication over the Internet, the
Second Circuit considered the nexus between the speech and the school campus. Wisniewski ex rel.
Wisniewski v. Bd. of Educ., 494 F.3d 34 (2d. Cir. 2007). In Wisniewski, a middle school student, Aaron,
was using AOL Instant Messaging ("IM") software on his home computer. Aaron created an icon used to
identify himself when sending instant messages to his friends. The icon was a small drawing of a pistol
firing a bullet at a man's head above which were dots indicating splattered blood. Beneath the drawing
were the words "Kill Mr. Vander-Molen." Mr. Vander-Molen was Aaron's English teacher. Id. at 35-36.
Another student printed a copy of the icon and gave it to Mr. Vander-Molen at school, who later
brought the matter to the school principal. Id. at 36. After disciplinary hearings, Aaron was suspended.

The Second Circuit applied Tinker to the school's decision, but first discussed the nexus between Aaron's
icon and the school campus. The court noted that "the panel is divided as to whether it must be shown
that it was reasonably foreseeable that Aaron's IM icon would reach the [1105] school property or
whether the undisputed fact that it did reach the school pretermits any [such] inquiry." Id. at 39.

Ultimately, however, the court concluded that the violent nature of the icon and the fact that Aaron
transmitted it via the Internet to 15 of his friends over a three week period made it foreseeable that the
icon would eventually come to the attention of the school authorities and Mr. Vander-Molen. Id. at 39-
40. Thus, Tinker applied.

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In J.S. v. Bethlehem Area School District, the Supreme Court of Pennsylvania analyzed whether J.S. could
be disciplined for a website he created, which contained violent and derogatory comments about school
officials. 569 Pa. 638, 807 A.2d 847 (Pa. 2002). In deciding whether school discipline was appropriate,
the court noted that the "location" of the speech is the first inquiry. That is, the court must determine if
the speech was on-campus speech subject to Tinker, or purely off-campus speech, "which would
arguably be subject to some higher level of First Amendment protection." Id. at 864.

Applying the facts of the specific case, the court in Bethlehem concluded that there was "a sufficient
nexus" between the website and the school campus to warrant application of the Supreme Court's
student speech precedents. Id. at 865. Notably, J.S. had accessed the website during class and informed
other students about it. Also, members of the faculty accessed the website at school, and school officials
were the subjects of the website. Id. In light of these facts, "it was inevitable that the contents of the
website would pass from students to teachers." Id. The court therefore applied Tinker and found that
the website created a substantial disruption. Id. at 869.

Plaintiff argues in her motion for summary adjudication that the location of the speech (whether on or
off campus) is wholly dispositive. Plaintiff contends that "if the publication of a student's speech does
not take place on school grounds, at a school function, or by means of school resources, a school cannot
punish the student without violating her First Amendment rights." (Mot. at 8.) Thus, Plaintiff contends
that because she made the video and posted it on the Internet while off campus and without using the
School's equipment, the School had no authority to regulate her conduct.

This argument is not supported by the long line of cases discussed above. See, e.g., Doninger, 527 F.3d
at 50 (where off-campus speech creates a foreseeable risk of substantial disruption within a school,
[1106] "its off-campus character does not necessarily insulate the student from school discipline.").
Indeed, even those cases in the Second Circuit that analyze the origin of the speech as a relevant
consideration have not gone so far as to hold that speech originating off campus can never be regulated.
Nonetheless, the Court will address the authority cited by Plaintiff.

In support of her argument, Plaintiff cites the Second Circuit case Thomas v. Board of Educ., 607 F.2d
1043 (2d. Cir. 1979). In Thomas, several students created an independent non-school-sponsored
newspaper modeled after National Lampoon, a publication specializing in sexual satire. The publication
was created in the students' homes, off campus, and after school hours. Id. at 1045. However, one
teacher was aware of the publication and allowed the students to store copies of the newspaper in a
classroom closet. Id. Apart from the storage on-campus, the authors "assiduously endeavored to sever
all connections between their publication and the school." Id. They included a disclaimer on the
newspaper disclaiming responsibility for copies found on campus. They printed the papers outside the
school and sold the papers after school hours at a store away from the school grounds. Id. Despite these
efforts, a student brought the paper to school, and the authors were punished for its sexual content. Id.
at 1045-46.

The Second Circuit found that Tinker was not applicable because "all but an insignificant amount of
relevant activity in this case was deliberately designed to take place beyond the schoolhouse gate." Id.

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at 1050 (emphasis added). The court held that, on these facts, the school's authority to punish the
speech was governed by the same principals that "bind government officials in the public arena." Id. The
court concluded that the "school officials [were] powerless to impose sanctions for expression beyond
school property in this case." Id. at 1050 n.13.

While Thomas undoubtedly supports a threshold consideration of the origin of the speech and its
relationship to on-campus activity, the holding does not stretch as far as Plaintiff contends. First, the
Thomas court specifically limited its holding to the facts in that case -- i.e., where the students took
specific efforts to segregate their speech from campus. Id. at 1049. Second, although the court found
that Tinker did not apply given the "de minimis" connections between the speech and the school, the
court was careful to note that Tinker could apply in a case "in which a group of students incites
substantial disruption within the school from some remote locale." Id. at 1052 n.17. The court went on
to find that no disruption (or foreseeable risk thereof) existed, thus obviating the need for any such
analysis. Id. Finally, Thomas was decided in 1979, before schools were confronted by the unique
problems presented by student expression conducted over the Internet. Subsequent cases interpreting
Thomas find that "territoriality is not necessarily a useful concept in determining the limit of [school
administrators'] authority." Doninger, 527 F.3d at 48-49 (citing Thomas, 607 F.2d at 1058 n.13 (Newman,
J., concurring in the result)); see Layshock v. Hermitage Sch. Dist. 496 F. Supp. 2d 587, 598 (W.D. Penn.
2007)("It is clear that the test for school authority is not geographical."), affirmed, Layshock v.
Hermitage Sch. Dist., 593 F.3d 249 (3d Cir. 2010). This is especially true today where students routinely
"participate in . . . expressive activity . . . via blog postings, instant messaging, and other forms of
electronic communication." Doninger, 527 F.3d at 49.

Given this background, the Court can draw several general conclusions regarding the application of the
Supreme Court's precedents to student expression originating off campus. First, the majority of courts
will apply Tinker where speech originating off campus is brought to school or to the attention of school
authorities, whether by the author himself or some other means. The end result established by these
cases is that any speech, regardless of its geographic origin, which causes or is foreseeably likely to
cause a substantial disruption of school activities can be regulated by the school. Second, some courts
will apply the Supreme Court's student speech precedents, including Tinker, only where there is a
sufficient nexus between the off-campus speech and the school. It is unclear, however, when such a
nexus exists. The Second Circuit has held that a sufficient nexus exists where it is "reasonably
foreseeable" that the speech would reach campus. The mere fact that the speech was brought on
campus may or may not be sufficient. Third, in unique cases where the speaker took specific efforts to
keep the speech off campus (Thomas), or clearly did not intend the speech to reach campus and
publicized it in such a manner that it was unlikely to do so, the student speech precedents likely should
not apply. In these latter scenarios, school officials have no authority, beyond the general principles
governing speech in a public arena, to regulate such speech.

Applying these principles to the case at hand, the Court finds that Plaintiff's geography-based argument
- i.e., that the School could not regulate the YouTube [1108] video because it originated off campus -
unquestionably fails. First, under the majority rule, and the rule established by the Ninth Circuit in

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LaVine, the geographic origin of the speech is not material; Tinker applies to both on-campus and off-
campus speech.

Moreover, even if the Court were to apply the Second Circuit's approach, which requires that some
threshold consideration be given to the location of the speech, the YouTube video clearly has a
sufficient connection to the Beverly Vista campus. Here, there is no dispute that the YouTube video
actually made its way to the School. The subject of the video, C.C., came to the School with her mother
on May 28, 2008 specifically to make the School aware of the video. The video was viewed at least two
times on the school campus, once by Lue-Sang and once by R.S. and her father in the administration
offices. Thus, the speech was brought to campus.

Further, it was reasonably foreseeable that Plaintiff's video would make its way to campus. Plaintiff
posted her video on the Internet, on a site readily accessible to the general public. Cases considering the
relationship between off-campus speech and the school campus more readily find a sufficient nexus
exists where speech over the Internet is involved. See Wisniewski, 494 F.3d 34; Doninger, 527 F.3d 41.
Additionally, Plaintiff posted the video on a week night and deliberately contacted 5 to 10 students from
the School and told them to watch the video on YouTube. See Wisniewski, 494 F.3d at 38-39 (the fact
that student transmitted his icon to 15 classmates increased the likelihood that it would reach the
school campus). Plaintiff also contacted the subject of the video, C.C., and told her to watch the video.
Plaintiff knew that C.C. was upset by the video.

Finally, the content of the video increases the foreseeability that the video would reach the School. The
students in the video make derogatory, sexual, and defamatory statements about a thirteen-year-old
classmate. One student calls C.C. "a slut," "spoiled," and an "ugly piece of shit." J.C. specifically
encourages the mean-spirited discussion, telling R.S. "to continue with the Carina rant." The students
collectively gang up on C.C. to the point where one of them even asks, "Am I the only one that doesn't
hate Carina?" (J.C. Supporting Decl., Exh. A [YouTube video].) Given this commentary, it is not surprising
that a parent made aware of the video would be sufficiently upset to bring the matter to the attention
of the School.

Plaintiff argues that it was not foreseeable that the video would come to campus because students are
not able to access the YouTube website on the School's computers. (Pl. Mot. for Summ. Judgmt. at 9.)
Although some students may be able to access the Internet on their cell phones, it is undisputed that
students are also prohibited from using their cell phones while at school. (Id.) Defendants have not
produced any evidence that a student accessed the video on his or her cell phone while at school.

While these facts certainly are part of the analysis, they are far from dispositive. Plaintiff ignores the fact
that school administrators had the ability to access the video at School; thus, once an administrator
became aware of the video, it could be played on the school campus. Indeed, this is exactly what
happened here. A student was upset about the video and specifically brought it to the school's
attention. Several cases have applied Tinker where speech published or transmitted via the Internet
subsequently comes to the attention of school administrators, even where there is no evidence that

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students accessed the speech while at school. See, e.g., Wisniewski, 494 F.3d 34 (applying Tinker [1109]
where a friend of plaintiff's printed his violent AOL Instant Message icon off the computer and brought it
to a teacher); Killion, 136 F. Supp. 2d 446 (applying Tinker where student emailed friends a degrading
top ten list and one recipient printed the list and brought it to school); O.Z., 2008 U.S. Dist. LEXIS
110409, 2008 WL 4396895 (teacher discovered a violent and disturbing video created by students and
posted on the Internet by searching her own name on Google.com, and later brought it to the attention
of school authorities). Thus, it is not necessary that students access the speech while at school. Further,
the fact that Plaintiff encouraged students to watch the video and specifically alerted C.C. about it,
makes it reasonably likely that someone would alert the School officials about the video.

Finally, this case is easily distinguishable from Thomas. The plaintiffs in Thomas made concerted efforts
to keep their newspaper off campus. Plaintiff here made no such effort; instead, she deliberately
contacted some of her classmates to tell them about the video. This fact alone brings this case outside
the ambit of Thomas. Here, the method of transmission, over the Internet, was also much broader than
in Thomas and designed in such a manner to reach many persons at once. Finally, because Plaintiff
contacted her classmates, it cannot be said that she "took no action that would increase the chances
that [the speech] would find its way to school." Porter, 393 F.3d at 615.

In sum, the Court finds that the YouTube video clearly falls into the "all other speech" category,
governed by Tinker. See LaVine, 257 F.3d at 989. The final issue for the Court to resolve, therefore, is
whether J.C.'s speech created, or was reasonably likely to have created, a substantial disruption of
school activities.

3. Substantial Disruption

The Supreme Court in Tinker established that a school can regulate student speech if such speech
"materially and substantially disrupt[s] the work and discipline of the school." 393 U.S. at 513. This
standard does not require that the school authorities wait until an actual disruption occurs; where
school authorities can "reasonably portend disruption" in light of the facts presented to them in the
particular situation, regulation of student expression is permissible. Id. at 514; LaVine v. Blaine Sch. Dist.,
257 F.3d 981, 989 (9th Cir. 2001) ("Tinker does not require school officials to wait until disruption
actually occurs before they may act."). As the Sixth Circuit recently explained, "[s]chool officials have an
affirmative duty to not only ameliorate the harmful effects of disruptions, but to prevent them from
happening in the first [1111] place." Lowery v. Euverard, 497 F.3d 584, 596 (6th Cir. 2007).

Although an actual disruption is not required, school officials must have more than an "undifferentiated
fear or apprehension of disturbance" to overcome the student's right to freedom of expression. Tinker,
393 U.S. at 508. In other words, the decision to discipline speech must be supported by the existence of
specific facts that could reasonably lead school officials to forecast disruption. LaVine, 257 F.3d at 989.
Finally, school officials must show that the regulation or prohibition of student speech was caused by
something more than "a mere desire to avoid the discomfort and unpleasantness that always
accompany an unpopular viewpoint." Tinker, 393 U.S. at 509. As the Supreme Court explained: "Any

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word spoken in a class, in the lunchroom, or on the campus, that deviates from the views of another
person may start an argument or cause a disturbance. But our Constitution says we must take this risk."
Id. (citing Terminiello v. Chicago, 337 U.S. 1, 69 S. Ct. 894, 93 L. Ed. 1131 (1949)).

a. Application to the Current Record on Summary Judgment

Based on the undisputed facts, and viewing all reasonable inferences in favor of the Defendants, the
Court finds that no reasonable jury could conclude that J.C.'s YouTube video caused a substantial
disruption to school activities, or that there was a reasonably foreseeable risk of substantial disruption
as a result of the YouTube video.

First, what the Defendants contend was an actual disruption is entirely too de minimis as a matter of law
to constitute a substantial disruption. Interpreting the facts in the most favorable light for Defendants,
at most, the record shows that the School had to address the concerns of an upset parent and a student
who temporarily refused to go to class, and that five students missed some undetermined portion of
their classes on May 28, 2008. This does not rise to the level of a substantial disruption.

Unlike in the many cases in which courts have found a substantial disruption (LaVine, Wisniewski, O.Z.,
and Bethlehem) J.C.'s video was not violent or threatening. There was no reason for the School to
believe that C.C.'s safety was in jeopardy or that any student would try to harm C.C. as a result of the
video. Certainly, C.C. never testified that she feared any type of physical attack as a result of the video.
Instead, C.C. felt embarrassed, her feelings were hurt, and she temporarily did not want to go to class.
These concerns cannot, without more, warrant school discipline. The Court does not take issue with
Defendants' argument that young students often say hurtful things to each other, and that students
with limited maturity may have emotional conflicts over even minor comments. However, to allow the
School to cast this wide a net and suspend a student simply because another student takes offense to
her speech, without any evidence that such speech caused a substantial disruption of the school's
activities, runs afoul of Tinker.

Moreover, the evidence demonstrates that C.C.'s hurt feelings did not cause any type of school
disruption. C.C. did not confront J.C. or any of the other students involved in the video, either verbally or
physically, while at school, nor did she indicate any intention to do so. Further, while C.C. was
undoubtedly upset, it took the school counselor, at most, 20-25 minutes to calm C.C. down and convince
her to go to class. (Def. ACF 10.) Although the time line is not entirely clear, C.C. likely missed no more
than a single class on the morning of May 28, 2008. (Allen Supporting Decl., Exh. N [Lue Sang Depo. at
15:4-11].)

Other students also missed some of their classes on May 28, 2008 as a result of the School's
investigation of the YouTube video. However, there is no evidence that the school's investigation had
any ripple effects on class activities or the work of the School. For example, it appears that the students
involved in the video simply left class when asked, quietly and without incident. Hart testified that the
entire investigation was resolved and all the students returned to class before the lunch recess on May
28, 2008. (Declaration of [1118] John Allen In Support of Def.'s Mot. For Summary Judgment ["Allen
Supporting Decl."], Exh. Q. [Hart Depo. at 20:14-23] [testifying that J.C. was called the administrative

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office between 9:30 a.m. and 10:15 a.m., and the whole incident related to the video was over before
lunch that day].) Further, there appears to have been no classroom disruption upon these students
returning to class.

There is also no evidence that the video itself had any effect on classroom activities. No widespread
whispering campaign was sparked by the video; no students were found gossiping about C.C. or about
the video while in class. As far as the record demonstrates, not a single student watched the video while
at school. Moreover, while J.C. testified that she saw 5 to 10 students talking about the video on campus
on the morning of May 28, there is no evidence that this discussion occurred during class or that it
otherwise disrupted school work. More importantly, the record is silent as to whether the individual
Defendants, or even C.C., were aware of the discussion among those 5 to 10 students on May 28, 2008;
thus, the discussion could not have informed the School's decision to suspend J.C.

It appears that the most significant effects of the video were that J.C. and R.S. were sent home from
school, and that J.C. was suspended for two days. Clearly, however, the School cannot point to the
discipline itself as a substantial disruption.

Defendants argue, in part, that a substantial disruption occurred, as in Doninger, because the three
individual defendants "were taken away from other tasks in order to deal with the disruption created by
Plaintiff's conduct." (Opp'n at 9.) The Court disagrees. Doninger is readily distinguishable from the
present case because, in Doninger, the school officials introduced evidence that, over the course of two
days, they had to miss or arrive late to several other school events to deal with the controversy caused
by Avery's speech. 527 F.3d at 51. For several days, the school officials had to respond to "a deluge" of
calls and emails from angry students and parents and had to take action to quell a threatened "sit-in" by
the students. Id. Thus, the disruption created in Doninger was highly out of the ordinary, not a response
to the every day emotional conflicts that students often get into.

Here, in contrast, Defendants have presented no evidence that they missed or were late to any other
school activities, nor have Defendants shown that the actions they took to resolve the situation created
by the video were outside the realm of ordinary school activities. Instead, the record demonstrates that
Hart and Lue-Sang took steps to investigate the nature of the conflict between J.C. and C.C., to counsel
C.C. when she was upset, and to decide, along with Warren's input, whether to impose discipline. That is
what school administrators do. As long as students have attended school, some get sent to the
principal's office for possible discipline, some seek counseling from the school [1119] counselors, and
upset parents on occasion voice concerns to the school, whether it be about a child's poor grades, a
student-teacher personality conflict, or otherwise. There is nothing in the record to demonstrate that
J.C.'s conduct presented an unusual or extraordinary situation like that in Doninger, or even in Boucher.
See Blue Mountain Sch. Dist., 593 F.3d at 299 (holding that, "[t]he minor inconveniences associated with
the [speech], including [the principal's] meetings related to it, students talking in class for a few minutes,
and some school officials rearranging their schedules to assist [the principal] may have resulted in some
disruption, but certainly did not rise to a substantial one.")

{00098834; 1} Library page 29

In sum, Defendants have not presented any evidence demonstrating that they were pulled away from
their ordinary activities as a result of the YouTube video.

For the Tinker test to have any reasonable limits, the word "substantial" must equate to something
more than the ordinary personality conflicts among middle school students that may leave one student
feeling hurt or insecure. Likewise, the Court finds that the mere fact that a handful of students are
pulled out of class for a few hours at most, without more, cannot be sufficient. Tinker establishes that a
material and substantial disruption is one that affects "the work of the school" or "school activities" in
general. See Tinker, 393 U.S. at 509, 514. Thus, while the precise scope of the substantial disruption test
is still being sketched by lower courts, where discipline is based on actual disruption (as opposed to a
fear of pending disruption), the School's decision must be anchored in something greater than one
individual student's difficult day (or hour) on campus. See, e.g., J.S. v. Bethlehem, 807 A.2d at 852 (the
effect of the website on the morale of the students and staff in general were comparable to the death of
a student or staff member); Doninger, 527 F.3d at 51 (plaintiffs' speech had the entire school all "riled-
up" and students were threatening a protest). The record on summary judgment does not present a
disruption of sufficient magnitude to satisfy Tinker.

4. Speech that Impinges On the Rights of Others

The Court will briefly address one additional school speech argument that appears to be raised by
Defendants here. In addition to the substantial disruption test, Tinker held that a school may regulate
student speech that interferes with the "the school's work or [collides] with the rights of other students
to be secure and be let alone." 393 U.S. at 508. Thus, it appears that speech that "impinge[s] upon the
rights of other students" may be prohibited even if a substantial disruption to school activities is not
reasonably foreseeable. Id. at 509. That said, the precise scope of Tinker's "interference with the rights
of others" language is unclear, as the Court's analysis in Tinker focused primarily on whether a
substantial disruption was reasonably foreseeable. Moreover, lower courts have not often applied the
"rights of others" prong from Tinker.

Defendants rely, in part, on Ninth Circuit case interpreting the Tinker rights of others prong, Harper v.
Poway Unified School District. (Mot. at 10-11.) In Harper, the Ninth Circuit held that a student's decision
to wear a T-shirt with a religious message condemning homosexuality during the school's "Day of
Silence" impinged upon the rights of other students under Tinker. 445 F.3d 1166 (9th Cir. 2006). [1123]
The Day of Silence was intended to "teach tolerance of others, particularly those of a different sexual
orientation." Id. at 1171 (internal citations to the record omitted). On that day (and the day after),
student Tyler Harper came to school wearing a T-shirt on which the words "Homosexuality is Shameful"
were handwritten. Id. Harper was sent to the administrative offices and was not permitted to return to
class for the rest of the day. Id. at 1172-73. Shortly thereafter, Harper brought suit against the School
District, alleging (among other things) a violation of his First Amendment rights. Id. at 1173.

The district court denied Harper's request for a preliminary injunction, and the Ninth Circuit affirmed.
Analyzing the case under the rights of others prong from Tinker, the Ninth Circuit found that the speech
constituted a "verbal assault [to public school students] on the basis of a core identifying characteristic

{00098834; 1} Library page 30

such as race, religion, or sexual orientation." Id. at 1178. The court found that: "It is simply not a novel
[or disputed] concept, however, that such attacks on young minority students can be harmful to their
self-esteem and to their ability to learn." Id. at 1180. Thus, the court held that student speech that
attacks "particularly vulnerable" students on the grounds of "a core characteristic" - namely, race,
religion, and sexual orientation - impinged on the rights of others and could be regulated under Tinker.
Id. at 1182. The court, however, expressly limited its holding to speech attacking students on those
three grounds, and even declined to extend its holding to remarks based on gender.

Defendants argue that Harper demonstrates that "California schools have an obligation to protect
students from psychological assaults that cause them to question their self worth." (Mot. at 11.) This is
undoubtedly true; however, California schools cannot exercise this obligation in a manner that infringes
upon other student's First Amendment rights. The task for this Court is not to assess whether the
School's intentions were noble; no one could dispute that the School was attempting to protect C.C.
from psychological harm. That said, the Court is not aware of any authority, including Harper, that
extends the Tinker rights of others prong so far as to hold that a school may regulate any speech that
may cause some emotional harm to a student. This Court declines to be the first.

In sum, the Court finds that the rights of others test from Tinker is not applicable to the present case.

In sum, the Court finds that, based on the undisputed facts, Plaintiff is entitled to judgment as a matter
of law on her First Amendment claims. Plaintiff's motion for summary judgment as to the First and
Second causes of action for violation of the First Amendment is therefore GRANTED.

{00098834; 1} Library page 31

 Cases for
Issue 3

LIBRARY
Gordon D. Schaber 201516 Moot Court
 Killion v. Franklin Reg'l Sch. Dist., 136 F. Supp.
2d 446
United States District Court for the Western District of Pennsylvania

March 22, 2001, Decided

Opinion

[448] Ziegler, District Court 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.

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 1998-1999 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. After consulting with friends, Paul composed and
assembled the list while at home after school hours. Thereafter, in late March of 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' [449] 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.

{00098842; 1} Library page 32

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. DISCUSSION

Overbreadth and Vagueness

We need not tarry long in addressing plaintiffs' final challenge, as defendants have failed to address the
matter. Plaintiffs challenge the Franklin Regional School District's Retaliatory Policy arguing that the
policy is unconstitutionally vague and overbroad. An overbroad statute is one that is designed to punish
activities that are not constitutionally protected, but which prohibits protected activities as well. See
City of Houston v. Hill, 482 U.S. 451, 458, 96 L. Ed. 2d 398, 107 S. Ct. 2502 (1987). Plaintiffs argue that
the policy is overbroad because it could "encompass critical comments in the nature of whistle-blowing
activities, e.g., criticism that a teacher is incompetent, allegations that a gym teacher improperly hit a
student, or that a staff member sexually groped a student in a remote area of school." Pls.' Mem. Supp.
Mot. Partial Summ. J. at 31. Further, "without limiting language that (1) confines the policy to school
grounds and school-related activities and (2) requires that offending speech create a 'substantial
disruption,' the policy is overbroad." Pls.' Mem. Supp. Mot. Partial Summ. J. at 31.

Only a statute that is substantially overbroad may be invalidated on its face. See City of Houston v. Hill,
482 U.S. 451, 458, 96 L. Ed. 2d 398, 107 S. Ct. 2502 (1987). The Supreme Court has never held that a
statute should be invalidated merely because it is possible to conceive of a single impermissible
application. Id. 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 conduct.

{00098842; 1} Library page 33

Id. (citing Hoffman Estates v. The Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494, 71 L. Ed. 2d 362, 102
S. Ct. 1186 (1982)).

The policy at issue provides that "it must be clearly understood that if a student verbally or otherwise
abuses a staff member, he or she will be immediately suspended from school. It may then be the
recommendation of the administration to the Board of School Directors that they indefinitely suspend
or expel the student involved." J.A. 105. The policy, however, does not contain a definition of "abuse"
and fails to include any specificity or limitations.

Yet, in discerning the reach of the policy, we must consider any limiting constructions placed on the
policy by defendants. See Ward v. Rock Against Racism, 491 U.S. 781, 795-96, 105 L. Ed. 2d 661, 109 S.
Ct. 2746 (1989) ("Administrative interpretation and implementation of a regulation are . . . highly
relevant to" whether the regulation is overbroad). In this regard, [459] we note that defendants have
failed to offer any limiting constructions that they have placed on the policy, such as factors not included
in the policy that are routinely considered in determining whether a student has violated the policy.

Absent any indication by the school district as to how the policy has actually been applied, we conclude
that the policy is overbroad because it could be interpreted (and indeed, was interpreted) to prohibit
protected speech. Moreover, the policy "does not contain any geographical or contextual limitations;
rather, it purports to cover [all "abuse" of teachers whether the "abuse"] . . . occurs in a school
sponsored assembly, in the classroom, in the hall between classes, or in a playground or athletic
facility." Saxe, 240 F.3d at 216; see also Shanley v. Northeast Independent School, 462 F.2d 960, 976.
Indeed, the policy could be read (and was read) to cover speech occurring without school premises. In
addition, the policy is overbroad because it is not limited to speech that causes substantial disruption or
interference with the work of the school, as required by Tinker. See Saxe, 240 F.3d at 216 (same). For
these reasons, we conclude that the Retaliatory Policy is unconstitutionally overbroad. Accord Shanley,
462 F.2d at 976 (school policy was overbroad because it "sweeps protected activity wholly outside of the
school context along with proscribed activity").

Plaintiffs also argue that the Retaliatory Policy is void because it is unconstitutionally vague. Under the
"void for vagueness doctrine," a governmental regulation may be declared void if it fails to give a person
adequate warning that his conduct is prohibited or if it fails to set out adequate standards to prevent
arbitrary and discriminatory enforcement. See Chicago v. Morales, 527 U.S. 41, 56, 144 L. Ed. 2d 67, 119
S. Ct. 1849 (1999); Kolender v. Lawson, 461 U.S. 352, 357, 103 S. Ct. 1855, 75 L. Ed. 2d 903 (1983).

As with the overbreadth challenge, we conclude that the policy is unconstitutionally vague. We do not
read plaintiffs' brief to argue that the policy was too vague for him to understand. Rather, plaintiffs
apparently rely on the second prong, i.e., unrestricted delegation of power to school officials. Under the
policy, school officials can only discipline students for "abuse" directed towards a teacher or
administrator. However, to determine what constitutes "abuse," punishable under the policy, one must
make a subjective reference. Admittedly, "some statements might be seen as universally . . . [abusive;
however], different people find different things abusive." Dambrot v. Central Michigan Univ., 55 F.3d
1177, 1184 (6th Cir. 1995). This leads to the danger that school officials will interpret the policy

{00098842; 1} Library page 34

arbitrarily. Id. (facts of the case demonstrated the necessity of subjective reference in identifying
prohibited speech under the policy). This unrestricted delegation of power gives rise to the second type
of vagueness. See Morales, 527 U.S. at 60.

The Supreme Court has held that, "given the school's need to be able to impose disciplinary sanctions
for a wide range of unanticipated conduct disruptive of the educational process, the school disciplinary
rules need not be as detailed as a criminal code which imposes criminal sanctions." Fraser, 478 U.S. at
686. However, the Court did not hold that school rules could be devoid of any detail, as here. For the
reasons discussed, we find that defendants' Retaliatory Policy is unconstitutionally overbroad and
vague.

An appropriate order will follow.

DATED: March 22, 2001

Donald E. Ziegler

United States District Judge

{00098842; 1} Library page 35

 Saxe v. State College Area Sch. Dist., 240 F.3d
200
United States Court of Appeals for the Third Circuit

May 23, 2000, Argued ; February 14, 2001, Filed

OPINION OF THE COURT

ALITO, Circuit Judge:

The plaintiffs in this case challenge the constitutionality of a public school district's "anti-harassment"
policy, arguing that it violates the First Amendment's guarantee of freedom of speech. The District
Court, concluding that the policy prohibited no more speech than was already unlawful under federal
and state anti-discrimination laws, held that the policy is constitutional and entered judgment for the
school district. We reverse.

I.

A.

In August 1999, the State College Area School District ("SCASD") adopted an Anti-Harassment Policy
("the Policy"). The full text of the Policy is reproduced in the Appendix to this opinion; we will briefly
review the most relevant portions here.

The Policy begins by setting forth its goal--"providing all students with a safe, secure, and nurturing
school environment"--and noting that "disrespect among members of the school community is
unacceptable behavior which threatens to disrupt the school environment and well being of the
individual." The second paragraph contains what appears to be the Policy's operative definition of
harassment:

Harassment means verbal or physical conduct based on one's actual or perceived race,
religion, color, national origin, gender, sexual orientation, disability, or other personal
characteristics, and which has the purpose or effect of substantially interfering with a
student's educational performance or creating an intimidating, hostile or offensive
environment.

The Policy continues by providing several examples of "harassment":

Harassment can include any unwelcome verbal, written or physical conduct [203]
which offends, denigrates or belittles an individual because of any of the characteristics
described above. Such conduct includes, but is not limited to, unsolicited derogatory
remarks, jokes, demeaning comments or behaviors, slurs, mimicking, name calling,

{00098841; 1} Library page 36

 graffiti, innuendo, gestures, physical contact, stalking, threatening, bullying, extorting or
the display or circulation of written material or pictures.

These examples are followed by a lengthy section captioned "Definitions," which defines various types
of prohibited harassment, including "Sexual harassment," "Racial and color harassment, " "Harassment
on the basis of religion," "Harassment based on national origin," "Disability harassment," and "Other
harassment" on the basis of characteristics such as "clothing, physical appearance, social skills, peer
group, intellect, educational program, hobbies or values, etc." The definitions state that harassment
"can include unwelcome verbal, written or physical conduct directed at" the particular characteristic.
Examples of specific types of harassment are also provided. For example, "Racial and color harassment"
is said to include "nicknames emphasizing stereotypes, racial slurs, comments on manner of speaking,
and negative references to racial customs." Religious harassment reaches "derogatory comments
regarding surnames, religious tradition, or religious clothing, or religious slurs or graffiti." National
origins harassment includes "negative comments regarding surnames, manner of speaking, customs,
language, or ethnic slurs." Harassment on the basis of sexual orientation extends to "negative name
calling and degrading behavior." Disability harassment encompasses "imitating manner of speech or
movement."

The Policy provides that "any harassment of a student by a member of the school community is a
violation of this policy." It establishes procedures for the reporting, informal mediation, and formal
resolution of complaints. In addition, the Policy sets a list of punishments for harassment, "including but
not limited to warning, exclusion, suspension, expulsion, transfer, termination, discharge . . ., training,
education, or counseling."

B.

Plaintiff David Saxe is a member of the Pennsylvania State Board of Education and serves as an unpaid
volunteer for SCASD. He is the legal guardian of both student-plaintiffs, who are enrolled in SCASD
schools. After the Anti-Harassment Policy was adopted, Saxe filed suit in District Court, alleging that the
Policy was facially unconstitutional under the First Amendment's free speech clause. In his Complaint,
he alleged that

all Plaintiffs openly and sincerely identify themselves as Christians. They believe, and
their religion teaches, that homosexuality is a sin. Plaintiffs further believe that they
have a right to speak out about the sinful nature and harmful effects of homosexuality.
Plaintiffs also feel compelled by their religion to speak out on other topics, especially
moral issues.

(App. 27.) Plaintiffs further alleged that they feared that they were likely to be punished under the Policy
for speaking out about their religious beliefs, engaging in symbolic activities reflecting those beliefs, and
distributing religious literature. (App. 27-28.) They sought to have the Policy declared unconstitutionally
vague and [204] overbroad and its operation permanently enjoined.

{00098841; 1} Library page 37

The District Court found that Saxe had standing to mount a facial challenge but granted SCASD's motion
to dismiss on the pleadings, holding that the Policy was facially constitutional. See Saxe v. State College
Area School District, 77 F. Supp. 2d 621 (M.D. Pa. 1999). The Court found that the Policy's operative
definition of harassment was contained in its second paragraph, which, as the Court read it, prohibited
"language or conduct which is based on specified characteristics and which has the effect of
'substantially interfering with a student's educational performance' or which creates a hostile
educational atmosphere." Id. at 625. The Court went on to observe that this standard is similar to "that
used by courts and agencies to define harassment for purposes of Title VII, Title IX, the Pennsylvania
Human Relations Act, etc." Id. Consequently, the Court held that the Policy does not prohibit "anything
that is not already prohibited by law" and therefore cannot be unconstitutional. Id. at 626. Rejecting the
plaintiffs' vagueness argument, the Court asserted that "a more precise definition of harassment, like
Justice Stewart's famous description of 'pornography,' may be virtually impossible." Id. at 625. Plaintiffs
appealed.

II.

Accordingly, we must examine whether the Policy may be justified as a permissible regulation of speech
within the schools.

A.

We begin by reviewing the Supreme Court's cases demarcating the scope of a student's right to freedom
of expression while in school. The Court set out the framework for student free speech claims in Tinker
v. Des Moines Independent Community School District, 393 U.S. 503, 21 L. Ed. 2d 731, 89 S. Ct. 733
(1969). In Tinker, a group of students was suspended for wearing black armbands to protest American
involvement in the Vietnam War. The Court held that the wearing of the armbands to make a political
statement was "closely akin to 'pure speech' " and thus was constitutionally protected. Id. at 505. Taking
as its premise that "it can hardly be argued that either students or teachers shed their constitutional
rights to freedom of speech or expression at the schoolhouse gate," id. at 506, the Court reasoned that

the school officials banned and sought to punish petitioners for a silent, passive
expression of opinion, unaccompanied by any disorder or disturbance on the part of the
petitioners. There is here no evidence whatever of the petitioners' interference, actual
or nascent, with the school's work or of collision with the rights of other students to be
secure and left alone. Accordingly, this case does not concern speech or action that
intrudes upon the work of the school or the rights of other students.

Id. at 504. HN17 Significantly, the Court emphasized that "undifferentiated fear or apprehension of
disturbance is not enough to overcome the right to freedom of expression." Id. at 508.

HN18 Under Tinker, then, regulation of student speech is generally permissible only when the speech
would substantially disrupt or interfere with the work of the school or the rights of other students. As
subsequent federal cases have made clear, Tinker requires a specific and significant fear of disruption,
not just some remote apprehension of disturbance. In Chandler v. McMinnville School District, 978 F.2d

{00098841; 1} Library page 38

524 (9th Cir. 1992), for example, a middle school punished students who wore "SCAB" buttons to
protest replacement teachers during a strike. Because the school had failed to present any evidence that
the buttons were "inherently disruptive" to school activities, the court held that students could proceed
with their First Amendment claim. In Chalifoux v. New Caney Independent School District, 976 F. Supp.
659 (S.D. Tex. 1997), a high [212] school student challenged his school's policy against gang-related
apparel. The school applied the ban to prohibit the plaintiff, a devout Catholic, from wearing a rosary to
school on the ground that some gangs had adopted the rosary as their identifying symbol. The court
held that the ban failed to satisfy Tinker's substantial disruption test:

Although Plaintiffs wore their rosaries outside their shirts for several months, they were
never misidentified as gang members nor approached by gang members. There also was
no evidence that they attracted the attention of other students because of their
rosaries. . . . Accordingly, the Court finds that there was insufficient evidence of actual
disruption at New Caney High School, or that there was substantial reason for NCISD to
anticipate a disruption, to justify the infringement on Plaintiffs' religiously-motivated
speech.

Chalifoux, 976 F. Supp. at 667. Finally, in Clark v. Dallas Independent School District, 806 F. Supp. 116,
120 (N.D. Tex. 1992), the court held that a high school could not prohibit its students from distributing
religious tracts on school grounds. Again citing Tinker, the court held that "Defendants have failed to
establish that Plaintiffs' distribution of the religious tracts gave rise to a material or substantial
disruption of the operation" of the school. Id. at 120. Noting that the only evidence of disruption was
the objection of several other students, the court observed that "if school officials were permitted to
prohibit expression to which other students objected, absent any further justification, the officials would
have a license to prohibit virtually every type of expression." Id.

The Tenth Circuit's recent decision in West v. Derby Unified School District No. 260, 206 F.3d 1358 (10th
Cir. 2000), which reached a different result, nevertheless confirms Tinker's requirements of specificity
and concreteness. In West, a middle school student was suspended for drawing a Confederate flag in
math class under a school policy providing that a "student shall not racially harass or intimidate another
student by name calling, using racial or derogatory slurs,[or] wearing or possession of items depicting or
implying racial hatred or prejudice." Id. at 1361. The Court upheld the suspension under Tinker's
substantial disruption standard, finding that the school had demonstrated a concrete threat of
substantial disruption:

Based upon recent past events, Derby School District officials had reason to believe that
a student's display of the Confederate flag might cause disruption and interfere with the
rights of other students to be secure and let alone. . . . The district experienced a series
of racial incidents [including "hostile confrontations" and at least one fight] in 1995,
some of which were related to the Confederate flag. . . . The Racial Harassment policy
enacted in response to this situation was clearly something more than a mere desire to
avoid the discomfort and unpleasantness that always accompany an unpopular
viewpoint. The history of racial tension in the district made administrators' and parents'

{00098841; 1} Library page 39

 concerns about future substantial disruptions from possession of Confederate flag
symbols at school reasonable.

Id. at 1366 (citation omitted). HN19 As West makes clear, the mere desire to avoid "discomfort" or
"unpleasantness" is not enough to justify restricting student speech under Tinker. However, if a school
can point to a well-founded expectation of disruption--especially one based on past incidents arising out
of similar speech--the restriction may pass constitutional muster.

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. In Bethel School District No. 403 v. Fraser,
478 U.S. 675, 92 L. Ed. 2d 549, 106 S. Ct. 3159 (1986), the Court upheld the school's suspension of a high
school student [213] who, at a school assembly, nominated a peer for class office through "an
elaborate, graphic, and explicit sexual metaphor." Id. at 677. Holding that the student's expression was
not protected by the First Amendment, the Court reasoned that

the schools, as instruments of the state, may determine that the essential lessons of
civil, mature conduct cannot be conveyed in a school that tolerates lewd, indecent, or
offensive speech and conduct such as that indulged in by this confused boy.

Id. at 683. Distinguishing Cohen v. California, 403 U.S. 15, 29 L. Ed. 2d 284, 91 S. Ct. 1780 (1971), in
which the Court struck down an adult's conviction for wearing a jacket bearing an obscenity in a public
courthouse, the Court explained that

it does not follow . . . that, simply because the use of an offensive form of expression
may not be prohibited to adults making what the speaker considers a political point, the
same latitude must be permitted to children in public school. . . . "The First Amendment
gives a high school student the classroom right to wear Tinker's armband, but not
Cohen's jacket."

Fraser, 478 U.S. at 683 (citations omitted). HN20 According to Fraser, then, there is no First Amendment
protection for "lewd," "vulgar," "indecent," and "plainly offensive" speech in school. Fraser permits a
school to prohibit words that "offend for the same reasons that obscenity offends"--a dichotomy neatly
illustrated by the comparison between Cohen's jacket and Tinker's armband. Fraser, 478 U.S. at 685
(quoting FCC v. Pacifica Foundation, 438 U.S. 726, 746, 57 L. Ed. 2d 1073, 98 S. Ct. 3026 (1978)); see also
Hazelwood School District v. Kuhlmeier, 484 U.S. 260, 286 n.2, 98 L. Ed. 2d 592, 108 S. Ct. 562 (Brennan,
J., dissenting) (Fraser exception limited "to the appropriateness of the manner in which the message is
conveyed, not of the message's content"); East High Gay/Straight Alliance v. Board of Educ. of Salt Lake
City Sch. Dist., 81 F. Supp. 2d 1166, 1193 (D. Utah 1999) ("Fraser speaks to the form and manner of
student speech, not its substance. It addresses the mode of expression, not its content or viewpoint.").

Finally, in Hazelwood School District v. Kuhlmeier, 484 U.S. 260, 108 S. Ct. 562, 98 L. Ed. 2d 592 (1988),
the Court upheld, against First Amendment challenge, a principal's deletion of student articles on teen
pregnancy from a school-sponsored newspaper. Distinguishing Tinker, the Court noted the school had
not opened the newspaper up as a public forum and therefore could "exercise editorial control over the

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style and content of student speech in school-sponsored expressive activities as long as [its] actions are
reasonably related to legitimate pedagogical concerns." Id. at 273 (emphasis added). As the Court
reasoned,

the question whether the First Amendment requires a school to tolerate particular
student speech--the question that we addressed in Tinker --is different from the
question whether the First Amendment requires a school affirmatively to promote
particular student speech. The former question addresses educators' ability to silence a
student's personal expression that happens to occur on the school premises. The latter
question concerns educators' authority over school-sponsored publications, theatrical
productions, and other expressive activities that students, parents, and members of the
public might reasonably perceive to bear the imprimatur of the school. . . . Educators
are entitled to exercise greater control over this second form of student expression . . . .

Id. at 270-71. In Rosenberger v. Rector & Visitors of University of Virginia, 515 U.S. 819, 132 L. Ed. 2d
700, 115 S. Ct. 2510 (1995), the Court made clear that Hazelwood's permissive "legitimate pedagogical
concern" test governs only when a student's school-sponsored speech [214] could reasonably be
viewed as speech of the school itself:

When the State is the speaker, it may make content-based choices. When the University
determines the content of the education it provides, it is the University speaking, and
we have permitted the government to regulate the content of what is or is not
expressed when it is the speaker or when it enlists private entities to convey its own
message. . . . It does not follow, however . . . that viewpoint-based restrictions are
proper when the University does not itself speak or subsidize transmittal of a message it
favors but instead encourages a diversity of views from private speakers. A holding that
the University may not discriminate based on the viewpoint of private persons whose
speech it facilitates does not restrict the University's own speech, which is controlled by
different principles. See, e.g., . . . Hazelwood School Dist. v. Kuhlmeier, [484 U.S. at 270-
72].

Rosenberger, 515 U.S. at 834. Similarly, a post-Hazelwood case from the Seventh Circuit illustrates that
school "sponsorship" of student speech is not lightly to be presumed. See Hedges v. Wauconda Comm.
Unit Sch. Dist. No. 118, 9 F.3d 1295, 1299 (7th Cir. 1993). In striking down a blanket prohibition against
distributing religious materials on school grounds, the Hedges Court rejected the argument that the ban
was justified under Hazelwood because observers might "infer that the school endorses whatever it
permits":

[The School District] proposes to throw up its hands, declaring that because
misconceptions are possible it may silence its pupils, that the best defense against
misunderstanding is censorship. . . . Public belief that the government is partial does not
permit the government to become partial. Students therefore may hand out literature

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 even if the recipients would misunderstand its provenance. The school's proper
response is to educate the audience rather than squelch the speaker.

Hedges, 9 F.3d at 1299; see also Burch v. Barker, 861 F.2d 1149, 1159 (9th Cir. 1998) ("under ground
newspaper" distributed on school grounds could not reasonably be viewed as school-sponsored).

To summarize: HN23 Under Fraser, a school may categorically prohibit lewd, vulgar or profane language.
Under Hazelwood, a school may 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.
Speech falling outside of these categories is subject to Tinker's general rule: it may be regulated only if it
would substantially disrupt school operations or interfere with the right of others. See Chandler, 978
F.2d at 529; Pyle v. South Hadley Sch. Comm., 861 F. Supp. 157, 166 (D. Mass. 1994).

III.

We turn now to the SCASD Policy itself. Saxe levies facial challenges against the Policy on both
overbreadth and vagueness grounds. Because we hold that the Policy, even narrowly read, is
unconstitutionally overbroad, we do not reach the merits of Saxe's vagueness claim.

A.

A regulation is unconstitutional on its face on overbreadth grounds where there is a "a likelihood that
the statute's very existence will inhibit free expression" by "inhibiting the speech of third parties who
are not before the Court." Members of City Council v. Taxpayers for Vincent, 466 U.S. 789, 799, 80 L. Ed.
2d 772, 104 S. Ct. 2118 (1984). To render a law unconstitutional, the overbreadth must be "not only real
but substantial in relation to the statute's plainly legitimate sweep." Broadrick v. Oklahoma, 413 U.S.
601, 615, 37 L. Ed. 2d 830, 93 S. Ct. 2908 (1973).

On first reading, the Policy on its face appears both unconstitutionally vague [215] and overbroad. As
an initial matter, the Policy contains several separate passages, each of which could be read as
embodying its operative definition of banned speech. The Policy's second paragraph sets forth one
definition:

Harassment means verbal or physical conduct based on one's actual or perceived race,
religion, color, national origin, gender, sexual orientation, disability, or other personal
characteristics, and which has the purpose or effect of substantially interfering with a
student's educational performance or creating an intimidating, hostile or offensive
environment.

This, however, is immediately followed two paragraphs later by a statement that harassment under the
Policy "can include any unwelcome verbal, written or physical conduct which offends, denigrates or
belittles an individual because of any of the characteristics described above." In addition, in a separate
section, the Policy purports to set out "definitions" for various categories of harassment that do not
always coincide with the above-quoted language. Religious harassment, for example, is defined as
"unwelcome verbal, written or physical conduct directed at the characteristics of a person's religion,

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such as derogatory comments regarding surnames, religious tradition, or religious clothing, or religious
slurs, or graffiti."

Certainly, some of these purported definitions of harassment are facially overbroad. No one would
suggest that a school could constitutionally ban "any unwelcome verbal . . . conduct which offends . . .
an individual because of " some enumerated personal characteristics. Nor could the school
constitutionally restrict, without more, any "unwelcome verbal . . . conduct directed at the
characteristics of a person's religion. " HN25 The Supreme Court has held time and again, both within
and outside of the school context, that the mere fact that someone might take offense at the content of
speech is not sufficient justification for prohibiting it. See Tinker, 393 U.S. at 509 (school may not
prohibit speech based on the "mere desire to avoid the discomfort and unpleasantness that always
accompany an unpopular viewpoint"); Texas v. Johnson, 491 U.S. 397, 414, 105 L. Ed. 2d 342, 109 S. Ct.
2533 (1989) ("If there is a bedrock principle underlying the First Amendment, it is that the government
may not prohibit the expression of an idea simply because society finds the idea itself offensive or
disagreeable."); Street v. New York, 394 U.S. 576, 592, 22 L. Ed. 2d 572, 89 S. Ct. 1354 (1969) ("It is firmly
settled that . . . the public expression of ideas may not be prohibited merely because the ideas are
themselves offensive to some of their hearers."); see also Doe v. University of Michigan, 721 F. Supp.
852, 863 (E.D. Mich. 1989) (striking down university speech code: "Nor could the University proscribe
speech simply because it was found to be offensive, even gravely so, by large numbers of people.").

Before declaring the Policy unconstitutional, however, we must first determine whether it is susceptible
to a reasonable limiting construction: HN26 "the elementary rule is that every reasonable construction
must be resorted to, in order to save a statute from unconstitutionality." Stretton v. Disciplinary Bd. of
the Supreme Court of Pennsylvania, 944 F.2d 137, 144 (3d Cir. 1991) (citations [216] omitted); see also
Hoffman Estates v. Flipside, Hoffman Estates, 455 U.S. 489, 494 n.4, 71 L. Ed. 2d 362, 102 S. Ct. 1186
(1982) ("In evaluating a facial challenge to a state law, a federal court must, of course, consider any
limiting construction."); Broadrick, 413 U.S. at 617 n.16 ("a federal court must determine what a state
statute means before it can judge its facial unconstitutionality").

When the Policy is read as a whole, it appears that its operative definition of prohibited harassment is
contained in the above-quoted second paragraph, which requires that speech either "substantially
interfere with a student's educational performance or create an intimidating, hostile or offensive
environment." The Policy's fourth paragraph and "Definitions" section could reasonably be read as
merely listing examples of conduct that might (but would not necessarily) violate this operative
definition. On this narrow reading, the second paragraph would supply the Policy's "formal" definition of
prohibited harassment, but the other sections of the Policy could still be relevant in clarifying vague or
ambiguous terms in that operative definition.

So narrowed, the Policy would require the following elements before speech could be deemed
harassing: (1) verbal or physical conduct (2) that is based on one's actual or perceived personal
characteristics and (3) that has the purpose or effect of either (3a) substantially interfering with a
student's educational performance or (3b) creating an intimidating hostile, or offensive environment.

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It is apparent from these elements that SCASD cannot take solace in the relatively more per missive
Fraser or Hazelwood standards. First, the Policy does not confine itself merely to vulgar or lewd speech;
rather, it reaches any speech that interferes or is intended to interfere with educational performance or
that creates or is intended to create a hostile environment. While some Fraser-type speech may fall
within this definition, the Policy's scope is clearly broader. Second, the Policy does not contain any
geographical or contextual limitations; rather, it purports to cover "any harassment of a student by a
member of the school community." Thus, its strictures presumably apply whether the harassment
occurs in a school sponsored assembly, in the classroom, in the hall between classes, or in a playground
or athletic facility. Obviously, the Policy covers far more than just Hazelwood-type school-sponsored
speech; it also sweeps in private student speech that merely "happens to occur on the school premises."
Hazelwood, 484 U.S. at 271. As a result, SCASD cannot rely on Hazelwood's more lenient "legitimate
pedagogical concern" test in defending the Policy from facial attack.

In short, the Policy, even narrowly read, prohibits a substantial amount of non-vulgar, non-sponsored
student speech. SCASD must therefore satisfy the Tinker test by showing that the Policy's restrictions
are necessary to prevent substantial disruption or interference with the work of the school or the rights
of other students. Applying this test, we conclude that the Policy is substantially overbroad.

As an initial matter, the Policy punishes not only speech that actually causes disruption, but also speech
that merely intends to do so: by its terms, it covers speech "which has the purpose or effect of "
interfering with educational performance [217] or creating a hostile environment. This ignores Tinker's
requirement that a school must reasonably believe that speech will cause actual, material disruption
before prohibiting it.

In addition, even if the "purpose" component is ignored, we do not believe that prohibited
"harassment," as defined by the Policy, necessarily rises to the level of a substantial disruption under
Tinker. We agree that the Policy's first prong, which prohibits speech that would "substantially interfere
with a student's educational performance," may satisfy the Tinker standard. The primary function of a
public school is to educate its students; conduct that substantially interferes with the mission is, almost
by definition, disruptive to the school environment.

The Policy's second criterion, however--which prohibits speech that "creates an intimidating, hostile or
offensive environment"--poses a more difficult problem. There are several possible grounds on which
SCASD could attempt to justify this prohibition. First, SCASD could argue that it has an interest in
avoiding liability for harassment under Franklin and Davis. However, because the Policy prohibits
substantially more conduct than would give rise to liability under these cases, this justification is
unavailing.

Second, SCASD could argue that speech creating a "hostile environment" may be banned because it
"intrudes upon . . . the rights of other students." Tinker, 393 U.S. at 504. The precise scope of Tinker's
"interference with the rights of others" language is unclear; at least one court has opined that it covers
only independently tortious speech like libel, slander or intentional infliction of emotional distress. See
Slotterback v. Interboro Sch. Dist., 766 F. Supp. 280, 289 n.8 (E.D. Pa. 1991); see also Kuhlmeier v.

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Hazelwood Sch. Dist., 795 F.2d 1368, 1375 (8th Cir.), rev'd on other grounds, 484 U.S. 260, 98 L. Ed. 2d
592, 108 S. Ct. 562 (1986). In any case, it is certainly not enough that the speech is merely offensive to
some listener. See, e.g., Rivera v. East Otero School Dist., 721 F. Supp. 1189, 1191 (D. Colo. 1989).
Because the Policy's "hostile environment" prong does not, on its face, require any threshold showing of
severity or pervasiveness, it could conceivably be applied to cover any speech about some enumerated
personal characteristics the content of which offends someone. This could include much "core" political
and religious speech: the Policy's "Definitions" section lists as examples of covered harassment
"negative" or "derogatory" speech about such contentious issues as "racial customs," "religious
tradition," "language," "sexual orientation," and "values." Such speech, when it does not pose a realistic
threat of substantial disruption, is within a student's First Amendment rights.

Finally, SCASD might argue that the "hostile environment" prohibition is required to maintain an orderly
and non-disruptive educational environment. However, as Tinker made clear, the "undifferentiated fear
or apprehension of disturbance" is not enough to justify a restriction on student speech. Although
SCASD correctly asserts that it has a compelling interest in promoting an educational environment that
is safe and conducive to learning, it fails to provide any particularized reason as to why it anticipates
substantial disruption from the broad swath of student speech prohibited under the Policy.

The Policy, then, appears to cover substantially more speech than could be prohibited under Tinker's
substantial disruption test. Accordingly, we hold that the Policy is unconstitutionally overbroad. [218]

VI.

For the foregoing reasons, the judgment of the District Court is reversed.

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