Justin Layshock v. Hermitage Sch Dist

Filing 48

PRECEDENTIAL OPINION Coram: MCKEE, SMITH and ROTH, Circuit Judges. Total Pages: 54. Judge: MCKEE Authoring. (Vacated as to No. 07-4465 only as rehearing has been granted in No. 07-4465) [07-4465, 07-4555]--[Edited 04/09/2010 by MLR] (TRG) [Entered: 02/04/2010 09:59 AM]

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 07-4465
JUSTIN LAYSHOCK, a minor,
by and through his parents;
DONALD LAYSHOCK;
CHERYL LAYSHOCK, individually
and on behalf of their son
v.
HERMITAGE SCHOOL DISTRICT
KAREN IONTA, District Superintendent;
ERIC W. TROSCH, principal Hickory High School
CHRIS GILL, Co-Principal Hickory High School, all in their
official and individual capacity

Hermitage School District,
Appellant
No. 07-4555
JUSTIN LAYSHOCK, a minor, by and through his parents;
DONALD LAYSHOCK; CHERYL LAYSHOCK,
individually and on behalf
of their son

v.
HERMITAGE SCHOOL DISTRICT;
KAREN IONTA, District Superintendent;
ERIC W. TROSCH, principal Hickory High School;
CHRIS GILL, Co-Principal Hickory High School, all
in their official and individual capacity

Donald Layshock; Cheryl Layshock,
Appellants
Appeal from the United States District Court
for the Western District of Pennsylvania
(Civ. No. 06-cv-00116)
District Judge: Hon. Terrence F. McVerry
Argued: December 10, 2008
Before: McKEE, SMITH and ROTH,
Circuit Judges
(Opinion filed: February 4, 2010 )
ANTHONY G. SANCHEZ, ESQ. (Argued)
CHRISTINA LANE, ESQ.
Andrews & Price
1500 Ardmore Boulevard., Suite 506
Pittsburgh, PA 15221
Attorneys for Appellant/Cross-Appellee,
2

Hermitage School District
SEAN A. FIELDS, ESQ.
Associate Counsel
Pennsylvania School Boards Association
400 Bent Creek Boulevard
P.O. Box 2042
Mechanicsburg, PA 17055
Attorney for Amicus Curiae, Pennsylvania
School Boards Association, filed in support
Appellant/Cross-Appellee, Hermitage
School District
KIM M. WATTERSON, ESQ.
RICHARD T. TING, ESQ.
WILLIAM J. SHERIDAN, ESQ.
Reed Smith LLP
435 Sixth Avenue
Pittsburgh, PA 15219
WITOLD J. WALCZAK, ESQ. (Argued)
SARA J. ROSE, ESQ.
American Civil Liberties Foundation
of Pennsylvania
313 Atwood Street
Pittsburgh, PA 15213
Attorneys for Appellees/Cross-Appellants,
Donald Layshock, Cheryl Layshock
JOHN W. WHITEHEAD, ESQ.
The Rutherford Institute
3

1440 Sachem Place
Charlottesville, VA 22901
Attorney for Amicus Curiae, The Rutherford
Institute, in support of Appellees/Cross-Appellants,
Donald LAYSHOCK, Cheryl LAYSHOCK
JOANNA J. CLINE, ESQ.
BRIAN A. BERKLEY, ESQ.
JOSHUA B. HIRSHEY, ESQ.
EMMETT M. HOGAN, ESQ.
Pepper Hamilton LLP
18th & Arch Streets
3000 Two Logan Square
Philadelphia, PA 19103
FRANK D. LoMONTE, ESQ.
MICHAEL C. HIESTAND, ESQ.
ADAM GOLDSTEIN, ESQ.
The Student Press Law Center
1101 Wilson Boulevard, Suite 1100
Arlington, VA 22209
Attorneys for Amicus Curiae, The Student
Press Law Center, in support of Appellees/CrossAppellants, Donald Layshock, Cheryl Layshock
ROBERT D. RICHARDS, ESQ.
CLAY CALVERT, ESQ.
Pennsylvania Center for the
First Amendment
The Pennsylvania State University
308 James Building
4

University Park, PA 16802
Attorneys for Amicus Curiae, Pennsylvania
Center for the First Amendment, in support
of Appellees/Cross-Appellants, Donald
Layshock, Cheryl Layshock
OPINION
McKEE, Circuit Judge.
In this appeal and cross-appeal, we are asked to
determine if a school district can punish a student for expressive
conduct that originated outside of the classroom, when that
conduct did not disturb the school environment and was not
related to any school sponsored event. We are also asked to
determine the extent to which this school district’s response to
a student posting on the internet interfered with the substantive
due process rights of the student’s parents.
It all began when Justin Layshock used his grandmother’s
computer to access a popular social networking internet web site
where he created a fake internet “profile” of his high school
5

principal, Eric Trosch. His parents filed this action under 42
U.S.C. § 1983, after the School District punished Justin for that
conduct.

The suit alleges, inter alia, that the District’s

punishment violated Justin’s First Amendment rights of
expression and the parents’ Fourteenth Amendment substantive
due process rights in the care and nurturing of their son. The
district court granted summary judgment in favor of Justin on
his First Amendment claim, but ruled in favor of the School
District on his parents’ due process claim. For the reasons that
follow, we will affirm the district court.
I. FACTUAL BACKGROUND

In December of 2005, Justin Layshock was a seventeenyear old senior at Hickory High School which is part of the
Hermitage School District in Hermitage, Pennsylvania.
Sometime between December 10 and 14, 2005, while Justin
was at his grandmother’s house during non-school hours, he
6

used her computer to create what he would later refer to as a
“parody profile” of his principal, Eric Trosch. The only school
resource that was even arguably involved in creating the profile
was a photograph of Trosch that Justin copied from the school
district’s website. Justin copied that picture with a simple “cut
and paste” operation using the computer’s internet browser and
mouse. Justin created the profile on “MySpace.”1 MySpace is
a popular social-networking website that “allows its members
to create online ‘profiles,’ which are individual web pages on
which members post photographs, videos, and information
about their lives and interests.” Doe v. MySpace, Inc., 474 F.
Supp.2d 843, 845 (W.D. Tex. 2007).2

1

2

MySpace is found at: http://www.myspace.com.
S ocial online networking sites allow members to use “their

online profiles to become part of an online community of
people with common interests. Once a member has created a
profile, she can extend ‘friend invitations’ to other members and
7

Justin created the profile by giving bogus answers to
survey questions taken from various templates that were
designed to assist in creating an online profile. The survey
included questions about favorite shoes, weaknesses, fears,
one’s idea of a “perfect pizza,” bedtime, etc. All of Justin’s
answers were based on a theme of “big,” because Trosch is
apparently a large man. For example, Justin answered the “tell
me about yourself” questions as follows:
Birthday: too drunk to remember
Are you a health freak: big steroid
freak
In the past month have you

communicate with her friends over the MySpace.com platform
via e-mail, instant messaging, or blogs.” Doe, 474 F. Supp.2d
at 846.

8

smoked: big blunt3
In the past month have you been on
pills: big pills
In the past month have you gone
Skinny Dipping: big lake, not big
dick
In the past month have you Stolen
Anything: big keg
Ever been drunk: big number of
times
Ever been called a Tease: big
whore
Ever been Beaten up: big fag
Ever Shoplifted: big bag of kmart
Number of Drugs I have taken: big
Under “Interests,” Justin listed: “Transgender, Appreciators of
Alcoholic Beverages.” Justin also listed “Steroids International”

3

Justin explained that a “blunt” was a marijuana cigarette.
9

as a club Trosch belonged to.

Justin afforded access to the profile to other students in
the District by listing them as “friends” on the MySpace
website, thus allowing them to view the profile.

Not

surprisingly, word of the profile “spread like wildfire” and soon
reached most, if not all, of Hickory High’s student body.4
During mid-December 2005, three other students also
posted unflattering profiles of Trosch on MySpace. Each of
those profiles was more vulgar and more offensive than
Justin’s. Trosch first learned about one of the other profiles
from his daughter who was in eleventh grade. On Monday,
December 12, 2005, Trosch told Co-Principal Chris Gill and
District Superintendent Karen Ionta about this other profile and

4

Justin later explained that he made the profile to be funny,
and did not intend to hurt anyone. However, there was
obviously nothing “funny” about the profile in the eyes of the
school administration.
10

asked Technology Director Frank Gingras to disable it.
However, despite the administration’s best efforts, students
found ways to access the profiles. Trosch discovered Justin’s
profile on Thursday evening, December 15, and a fourth profile
on Sunday, December 18.
Trosch believed all of the profiles were “degrading,”
“demeaning,” “demoralizing,” and “shocking.” He was also
concerned about his reputation and complained to the local
police. Although he was not concerned for his safety, he was
interested in pressing charges against those responsible for the
bogus profiles, and he discussed whether the first profile he
discovered might constitute harassment, defamation, or slander.
However, no criminal charges were ever filed against Justin or
any of the other student authors of profiles.
On December 15, Justin used a computer in his Spanish
classroom to access his MySpace profile of Trosch. He also
11

showed it to other classmates, although he did not acknowledge
his authorship. After viewing the profile, the students logged
off of MySpace. Justin again attempted to access the profile
from school on December 16, purportedly to delete it. School
district administrators were unaware of Justin’s in-school
attempts to access MySpace until their investigation the
following week. Teacher Craig Antush glimpsed the profile in
his computer lab class and told the students who were
congregating around a computer and giggling to shut it down.
The school district administrators were not able to totally
block students from visiting the MySpace web page at school
because Gingras, the Technology Coordinator, was on vacation
on the 16th. Instead, student use of computers was limited to
labs or the library where it could be supervised.

School

officials continued to limit computer use from December 16
until December 21, which was the last day of school before
12

Christmas recess, and computer programming classes were
cancelled.
According to the district court, the school district’s
investigation revealed how many students had accessed
MySpace before access to the site at school was disabled, but
the school could not determine how many students actually
accessed any of the Trosch profiles, or which Trosch profiles
had been viewed while a student was on the MySpace website.
School district officials first learned that Justin might
have created one of the Trosch profiles on December 21. On
that day, Justin and his mother were summoned to a meeting
with Superintendent Ionta and Co-Principal Gill. During that
meeting, Justin admitted to creating a profile, but no
disciplinary action was then taken against him. After the
meeting, without prompting from anyone, Justin went to

13

Trosch’s office and apologized for creating the profile.5
Justin’s parents were understandably upset over Justin’s
behavior. They discussed the matter with him, expressed their
extreme disappointment, “grounded” him, and prohibited him
from using their home computer.
On January 3, 2006, the school district sent a letter to
Justin and his parents giving them notice of an informal hearing
that was to be held. The letter read, in pertinent part as follows:
Justin admitted prior to the informal hearing that
he created a profile about Mr. Trosch.
This infraction is a violation of the Hermitage
School District Discipline Code: Disruption of
the normal school process; Disrespect;
Harassment of a school administrator via
computer/internet with remarks that have
demeaning implications; Gross misbehavior;
Obscene, vulgar and profane language; Computer

5

Trosch later testified that he found Justin’s apology
respectful and sincere. Justin followed up with a written letter
of apology on January 4, 2006.
14

Policy violations (use of school pictures without
authorization).
The school district subsequently found Justin guilty of all of
those charges.
In addition to a ten-day, out-of-school suspension;
Justin’s punishment consisted of (1)

being placed in the

Alternative Education Program (the “ACE” program) at the
high school for the remainder of the 2005-2006 school year;6
(2) being banned from all extracurricular activities, including

6

Students assigned to ACE meet in a segregated area of the
high school for three hours each day. The program is typically
reserved for students with behavior and attendance problems
who are unable to function in a regular classroom.
Prior to creating the Myspace profile, Justin was
classified as a gifted student, was enrolled in advance placement
classes, and had won awards at interscholastic academic
competitions. The record does not reveal how the school district
determined that it was appropriate to place such a student in a
program designed for students who could not function in a
classroom.
15

Academic Games and foreign-language tutoring;7 and (3) not
being allowed to participate in his graduation ceremony.8 The
Layshocks were also informed that the district was considering
expelling Justin. Ironically, Justin, who created the least vulgar
and offensive profile, and who was the only student to
apologize for his behavior, was also the only student punished
for the MySpace profiles.
II. DISTRICT COURT PROCEEDINGS.
The Layshocks initiated this action on January 27, 2006,
by filing a three count complaint pursuant to 42 U.S.C. § 1983
individually, and on Justin’s behalf, against the Hermitage
School District, Karen Ionta, Eric Trosch, and Chris Gill, in
their official and individual capacities (hereinafter collectively

7

Justin had been a French tutor to middle school students.
8

Justin did graduate in 2006 and went on to attend a
university in New York City.
16

referred to as the “School District” or

“District”).

The

Layshocks also filed a motion for a temporary restraining order
and/or preliminary injunction. Count I of the complaint alleged
that the District’s punishment of Justin violated his rights under
the First Amendment. Count II alleged that the District’s
policies and rules were unconstitutionally vague and/or
overbroad, both on their face and as applied to Justin. Count III
alleged that the District’s punishment of Justin interfered with
the Layshocks’ parental right of determining how best to raise,
nurture, discipline and educate their child.
The district court denied the request for a temporary
restraining order, Layshock v. Hermitage Sch. Dist., 412 F.
Supp.2d 502, 508 (W.D. Pa. 2006), and the Layshocks
withdrew their motion for a preliminary injunction pursuant to

17

the district court’s efforts at mediation.9 On March 31, 2006,
the district court denied the District’s motion to dismiss the
Layshocks’ claim. The court ruled that the parents may assert
a claim for a violation of their own due process right to “raise,
nurture, discipline and educate their children” based on a school
district’s punishment of their child for speech the child uttered
in the family home.
After discovery, both sides moved for summary
judgment, and the court thereafter entered summary judgment
in favor of Justin and against the School District only on the
First Amendment claim.10 The court concluded that a jury trial

9

The Layshocks agreed to withdraw their motion for a
preliminary injunction in exchange for the District’s agreement
to remove Justin from the ACE program, reinstate him to his
regular classes, allow him to participate in Academic Games
and attend his graduation.
10

The court ruled that Trosch was entitled to summary
judgment on all counts because he was not involved
18

was necessary to determine compensatory damages and
attorneys’ fees. See id. at 607.
Thereafter, the district court denied the District’s motion
for entry of judgment pursuant to Fed.R.Civ.P. 54(b) or, in the
alternative, for the issuance of a certificate of appealability
pursuant to 28 U.S.C. § 1292(b).
The parties subsequently filed a joint motion in which
they stipulated to damages and requested entry of final
judgment while preserving all appellate issues pertaining to
liability. The district court then entered a consent judgment,
and this appeal and cross- appeal followed.

The School

District appeals the district court’s entry of summary judgment

disciplining Justin. It also held that Ionta and Gill were entitled
to summary judgment on Justin’s First Amendment claim based
on qualified immunity, and that all of the defendants were
entitled to summary judgment on the vagueness/overbreadth
challenge and the parents’ substantive due process claims.
19

in Justin’s favor on his First Amendment claims (No. 07-4465),
and the Layshock parents cross-appeal the district court’s entry
of summary judgment against them on their Fourteenth
Amendment due process claims (No. 07-4555).
III. STANDARD OF REVIEW.
“Summary judgment is proper when the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party
is entitled to judgment as a matter of law.” Bjorgung v.
Whitetail Resort, LP, 550 F.3d 263, 268 (3d Cir. 2008) (citation
and internal quotations omitted). In ruling on a motion for
summary judgment, the district court must view the facts in the
light most favorable to the non-moving party. Merkle v. Upper
Dublin Sch. Dist., 211 F.3d 782, 788 (3d Cir. 2000). However,
“the mere existence of some alleged factual dispute between the
20

parties will not defeat an otherwise properly supported motion
for summary judgment.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 247-48 (1986). “As our review of a grant of summary
judgment is plenary, we operate under the same legal standards
as the District Court.” Bjorgung, 550 F.3d at 268.
IV. DISCUSSION
A. The School District’s Appeal (No. 07-4465).
1. The First Amendment’s Application in Public Schools.
In the landmark case of Tinker v. Des Moines Indep.
Cmty. Sch. Dist., 393 U.S. 503 (1969), a group of high school
students decided to wear black arm bands to school to protest
the war in Vietnam. When school officials learned of the
planned protest, they preemptively prohibited students from
wearing armbands, and several students who ignored the ban
and wore armbands to school anyway were suspended. Id. at
504. Those students then brought an action through their
21

parents under 42 U.S.C. § 1983, alleging that their First
Amendment rights had been violated.

The district court

rejected that claim and upheld the constitutionality of the school
officials’ action finding that it had been reasonable to prevent
disturbance of school discipline. Id. 504-505. The district
court’s decision was affirmed without opinion by an equally
divided court of appeals sitting en banc. Id. at 505.
The Supreme Court ultimately 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.” Id. at 513. The
Court concluded that the students before it were doing nothing
more than engaging in political speech, and wearing armbands
to express “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.” Id. at 514. The
22

school district’s only interest in banning the speech had been
the “mere desire to avoid the discomfort and unpleasantness that
always accompany an unpopular viewpoint” or “an urgent wish
to avoid the controversy which might result from the
expression.” Id. at 509-10. The Court held that that interest
was not enough to justify banning “a silent, passive expression
of opinion, unaccompanied by any disorder or disturbance.” Id.
at 508.

In one of its most famous passages, the Court

explained:
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.
Id. at 506.
Although the Court concluded that the First Amendment
did reach inside the “schoolhouse gate,” it also recognized that

23

the unique nature of the school environment had to be part of
any First Amendment inquiry. The Court explained that it
“ha[d] 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.” Id. at 507.
The Court next addressed the scope of the First
Amendment in the context of student speech in Bethel School
District No. 403 v. Fraser, 478 U.S. 675 (1986). There, the
Court upheld the school’s suspension of a high school student
for delivering a nominating speech at a school assembly using
“an elaborate, graphic, and explicit sexual metaphor.” Id. at
678. The Court explained:
[t]he 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
24

[Fraser].11
Id. at 683. In reaching this conclusion, the Court distinguished
its prior holding in Cohen v. California, 403 U.S. 15 (1971).
There, the Court had struck down an adult’s conviction for
disorderly conduct based on his having worn a jacket in a
courthouse that bore an obscenity pertaining to the draft. The
Fraser Court explained:
[i]t 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. . . .
[T]he First Amendment gives a high school
student the classroom right to wear Tinker’s
armband, but not Cohen’s jacket.
Id. at 682 (citation and internal quotation marks omitted). The

11

In Saxe v. State College Area School District, 240 F.3d
200, 213 (3d Cir. 2001), we interpreted Fraser as establishing
that “there is no First Amendment protection for ‘lewd,’
‘vulgar,’ ‘indecent,’ and ‘plainly offensive’ speech in school.”
25

Court concluded that the school could punish Fraser for his
offensive nominating speech during a school assembly because
the First Amendment does not prevent schools from
encouraging the “fundamental values of ‘habits and manners of
civility’” id. at 681, by “insisting that certain modes of
expression are inappropriate and subject to sanctions.” Id. at
683. Thus, “[t]he determination of what manner of speech in
the classroom or in school assembly is inappropriate properly
rests with the school board.” Id.
Similarly, in Hazelwood School District. v. Kuhlmeier,
484 U.S. 260 (1988), the Court held that a principal’s deletion
of student articles on teen pregnancy from a school-sponsored
newspaper did not violate the First Amendment. The Court
distinguished Tinker by noting that since the school had not
opened the newspaper up as a public forum in the case before
it, the school could “exercis[e] editorial control over the style
26

and content of student speech in school-sponsored expressive
activities so long as [its] actions are reasonably related to
legitimate pedagogical concerns.” Id. at 273.

The Court

explained:
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 schoolsponsored . . . 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.
The extent to which First Amendment protections apply
in the public school context was most recently addressed in

27

Morse v. Frederick, 551 U.S. 393 (2007). There, at a schoolsanctioned and school-supervised event, a high school principal
[Morse] saw some of her students unfurl a large banner
conveying a message she reasonably regarded as promoting
illegal drug use.” Id. at 396. The banner read: “BONG HiTS
4 JESUS.” Id. at 397. “Consistent with established school
policy prohibiting such messages at school events, [Morse]
directed the students to take down the banner.” Id. at 396.
Frederick, one of the students who brought the banner to the
event, refused to remove it, and Morse “confiscated the banner
and later suspended [Frederick].” Id. Frederick sued Morse and
the school district pursuant to 42 U.S.C. § 1983, alleging a
violation of his First Amendment right of expression. The
district court granted summary judgment to the school district
and Morse, holding that they were entitled to qualified
immunity and that they had not infringed Frederick’s First
28

Amendment rights. Id. at 399. The Court of Appeals for the
Ninth Circuit reversed.
The Supreme Court granted certiorari to determine
“whether Frederick had a First Amendment right to wield his
banner, and, if so, whether that right was so clearly established
that the principal may be held liable for damages.” Id. at 400.12
The Court “resolve[d] the first question against Frederick,” and,
therefore, did not have to reach the second. Id. The Court
explained that its Fourth Amendment jurisprudence recognized
that “deterring drug use by schoolchildren is an important –
indeed, perhaps compelling interest.”
omitted).

Id. at 407 (citation

The “special characteristics of the school

environment, and the governmental interest in stopping student
drug abuse allow schools to restrict student expression that they

12

The court of appeals had ruled that the principal was not
entitled to qualified immunity.
29

reasonably regard as promoting such abuse.” Id. at 408. Thus,
“a principal may, consistent with the First Amendment, restrict
student speech at a school event, when that speech is reasonably
viewed as promoting illegal drug use.” Id. at 402. The Court
rejected Frederick’s claim that since he was across the street
from the school and not on school property, he was not inside
Tinker’s “schoolhouse gate,” and school officials therefore had
lost authority over him. The Court reasoned that the event
where the banner was unfurled occurred during school hours,
and it had been approved by the school’s principal as a school
event. Id. at 400. School events and field trips off school
grounds were subject to the school’s rules for student conduct.
Id. at 400-01.
It is against this legal backdrop that we must determine
whether the District’s actions here violated Justin’s First
Amendment rights, and whether the District’s actions violated
30

the substantive due process rights afforded his parents under the
Fourteenth Amendment.
At the outset, it is important to note that the district court
found that the District could not “establish[] a sufficient nexus
between Justin’s speech and a substantial disruption of the
school environment[,]” Layshock, 496 F. Supp. 2d at 600, and
the School District’s does not challenge that finding on appeal.
Rather, the District argument is twofold. The District argues
that:
a sufficient nexus exists between Justin’s creation
and distribution of the vulgar and defamatory
profile of Principal Trosch and the School District
to permit the School District to regulate this
conduct. The “speech” initially began oncampus: Justin entered school property, the
School District web site, and misappropriated a
picture of the Principal. The “speech” was aimed
at the School District community and the
Principal and was accessed on campus by Justin.
It was reasonably foreseeable that the profile
would come to the attention of the School district
and the Principal.
31

District’s Br. at 9.

2. Justin’s “Entry” Onto the District’s Web
Site.
The School District’s attempt to forge a nexus between
the school and Justin’s profile by relying upon his “entering” the
District’s web site to “take” the District’s photo of Trosch is
unpersuasive at best. The argument equates Justin’s act of
signing onto a web site with the kind of trespass he would have
committed had he broken into the principal’s office or a
teacher’s desk; and we reject it. See Thomas v. Board of Educ.,

607 F.2d 1043 (2d Cir. 1979).
We find the reasoning in Thomas v. Board of Education,
607 F.3d 1043 (2d Cir. 1979), far more persuasive.20 Thomas
involved a group of students who were suspended for

20

Thomas was decided after Tinker but before Fraser.
32

producing “a satirical publication addressed to the school
community.” Id. at 1045. The articles included such topics as
masturbation and prostitution, as well as more standard fare
such as “school lunches, cheerleaders, classmates, and
teachers.” Id. “Some of the initial preparation for publication
occurred after school hours in the classroom” of a teacher
whom the students consulted “for advice on isolated questions
of grammar and content.” Id.

In addition, “an occasional

article was composed or typed within the school building,
always after classes,” and the finished magazine was stored in
a “classroom closet” with the classroom teacher’s permission.
Id.
However, the students were very careful to distribute the
periodical only after school and off campus, and the vast
majority of their work on the publication was done “in their
homes, off campus and after school hours.” Id. The school
33

principal learned of the magazine when a teacher confiscated a
copy from another student on campus, and “following
consultation with the Board of Education,” the principal
imposed penalties that included: a five-day suspension of the
students involved.21

The punishment was based on the

students’ publication of “an allegedly ‘morally offensive,
indecent, and obscene,’ tabloid.” Id. at 1050 n.12.
The students brought a suit under 42 U.S.C. § 1983
against the school board and other school officials “seeking
injunctive and declaratory relief from alleged deprivations of
their First and Fourteenth Amendment rights.” Id. at 1046. The
district court denied the students’ request for injunctive relief

21

The principal and Superintendent of Schools had initially
decided to take no action pending assessment of the
publication’s impact. However, they ultimately decided to act
after being contacted by the President of the Board of Education.
Thomas, 607 F.2d at 1045-46.
34

based upon its conclusion that the publication “was potentially
destructive of discipline in [the school], and therefore not
protected by the First Amendment.” Id. at 1047.
The Court of Appeals for the Second Circuit concluded
that the students’ conduct was not sufficiently related to the
school to justify the school’s exercise of authority. The court
explained:
[A]ll but an insignificant amount of relevant
activity in this case was deliberately designed to
take place beyond the schoolhouse gate. Indeed,
the [students] diligently labored to ensure that
[the magazine] 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 [the magazine]
was conceived, executed, and distributed outside
the school. At best, therefore, any activity within
the school itself was De minimis.
Id. at 1050.
The court reached that conclusion even though the
35

students there actually stored the offending publication inside
a classroom and did some minimal amount of work on the
periodical in school using school resources.

Here, the

relationship between Justin’s conduct and the school is far more
attenuated than in Thomas, and we will not allow the School
District to stretch its authority so far that it reaches Justin while
he is sitting in his grandmother’s home after school.
We realize, of course, that it is now well established that
Tinker’s “schoolhouse gate” is not constructed solely of the
bricks and mortar surrounding the school yard. Nevertheless,
the reach of school authorities is not without limits. In Morse,
the Court held that the First Amendment does not prevent a
principal from “restrict[ing] student speech at a school event,
when that speech is reasonably viewed as promoting illegal
drug use.” 551 U.S. at 403 (emphasis added). Nevertheless, the
Court was careful to note that “[h]ad [the student] delivered the
36

same speech in a public forum outside the school context, it
would have been protected.” 551 U.S. at 404.
It would be an unseemly and dangerous precedent to
allow the state in the guise of school authorities to reach into a
child’s home and control his/her actions there to the same extent
that they can control that child when he/she participates in
school sponsored activities. Allowing the District to punish
Justin for conduct he engaged in using his grandmother’s
computer while at his grandmother’s house would create just
such a precedent and we therefore conclude that the district
court correctly ruled that the District’s response to Justin’s
expressive conduct violated the First Amendment guarantee of
free expression.
3. The District Can Not Punish Justin Merely Because His
Speech Reached Inside the School.
As noted above, the School District also claims that

37

Justin’s speech can be treated as “on-campus” speech because
it “was aimed at the School District community and the
Principal and was accessed on campus by Justin [and] [i]t was
reasonably foreseeable that the profile would come to the
attention of the School District and the Principal.”
The district court held that the School District’s
punishment of Justin was not appropriate under Fraser because
“[t]here is no evidence that Justin engaged in any lewd or
profane speech while in school.” Layshock, 496 F. Supp.2d at
599-600.

It also held that Justin’s punishment was not

appropriate under Tinker because the School District did “not
establish[] a sufficient nexus between Justin’s speech and a
substantial disruption of the school environment.” Id. at 600.
The School District does not dispute the district court’s
finding that its punishment of Justin was not appropriate under
Tinker. However, it rests its argument on the Supreme Court’s
38

analysis in Fraser. In the School District’s view, Justin’s speech
- his MySpace profile of Trosch - was unquestionably vulgar,
lewd and offensive, and therefore not shielded by the First
Amendment because it ended up inside the school community.22
Similarly, the School District argues that under our decision in
Saxe, see n.11, supra, there is no First Amendment protection
for lewd, vulgar, indecent or plainly offensive speech in schools.

22

The District’s argument in this regard is not crystal clear as
its brief suggests that it can react to Justin’s profile merely
because it was lewd and vulgar. For example, the District
summarizes one of its arguments as follows:
The School District did not violate the First Amendment by punishing
Justin for engaging in conduct which interfered with the School
District’s “highly appropriate function . . . to prohibit the use of vulgar
and offense terms in public discourse.”
District’s Br. at 10 (ellipsis in original).
However, we reject out of hand any suggestion that schools can police students’ outof-school speech by patrolling “the public discourse.” Accordingly, we will assume that the
District is arguing that it can control lewd and vulgar speech as authorized under Fraser.
39

23

The District rests this argument primarily on three cases
which it claims allow it to respond to a student’s vulgar speech
when that speech is posted on the internet. The District cites
J.S. v. Bethlehem Area Sch. Dist., 807 A.2d 847 (Pa. 2002);
Wisniewski v. Bd. of Educ. of Weedsport Central Sch. Dist., 494
F.3d 34 (2d Cir. 2007); and Doninger v. Niehoff, 527 F.3d 41
(2d Cir. 2008). However, as we will explain, each of those
cases involved off campus expressive conduct that resulted in
a substantial disruption of the school, and the courts allowed the
schools to respond to the substantial disruption that the

23

In Saxe, we did state: “Under Fraser, a school may
categorically prohibit lewd, vulgar or profane language.” 240
F.3d at 214. However, when read in context, it is clear that we
were there referring only to in school speech. Thus, we
summarized the holding in Fraser as follows: “[a]ccording to
Fraser, . . . there is no First Amendment protection for ‘lewd,’
‘vulgar,’ indecent,’ and ‘plainly offensive’ speech in school.”
Id., at 213 (emphasis added).
40

student’s out of school conduct caused.
In J.S., an eighth grade student created a threatening
web site aimed at his algebra teacher that went so far as to
explain “[w]hy Should She Die,” and requested money to “to
help pay for the hitman.” 807 A.2d at 851. The site frightened
several students and parents and the algebra teacher was so
badly frightened that she ended up having to take medical leave
from her teaching responsibilities. As a result of her inability to
return to teaching, “three substitute teachers were required to be
utilized which disrupted the educational process of the
students.” Id., at 852. “In sum, the web site created disorder
and significantly and adversely impacted the delivery of
instruction.” Id., at 869. The Supreme Court of Pennsylvania
concluded that the resulting disruption of instruction and the
educational environment allowed the school to punish the
student for his expressive conduct even though the student
41

created the web site from his home.24
Similarly, the school suspended the student in
Wisniewski, for creating an image on the internet from his home
computer that depicted a pistol firing a bullet at a teacher’s head
with dots representing splattered blood above the head. 494
F.3d at 36. The words: “Kill Mr. VanderMolen” were printed
beneath the drawing. VanderMolen was the student’s English
teacher. The student created the image a couple of weeks after
his class was instructed that threats would not be tolerated at the
school, and would be treated as acts of violence. The court of
appeals affirmed the district court’s grant of summary judgment
in favor of the school district in a suit alleging a violation of the

24

The district court believed that J.S. was “on point” but
“respectfully reache[d] a slightly different balance between
student expression and school authority.” Layshock, 496 F.
Supp. 2d at 602. However, we do not think J.S. is “on point” or
the least bit helpful because there is no comparison between the
impact of the conduct there and the impact of the conduct here.
42

First Amendment based on the school’s suspension of the
student for the out of school conduct. The court reasoned that
“[t]he fact that [the student’s] creation and transmission of the
icon occurred away from school property [did] not necessarily
insulate him from school discipline.” 494 F.3d at 39. The court
reasoned that “even if [the student’s] transmission of an [image]
depicting and calling for the killing of his teacher could be
viewed as an expression of opinion within the meaning of
Tinker,” it was not protected by the First Amendment because
“it cross[ed] the boundry of protected speech and pose[d] a
reasonably foreseeable risk [of] materially and substantially
disrupting the work and discipline of the school”. Id., at 38-9
(internal quotation marks omitted).
Finally, in Doninger, a student who was a class officer

43

posted a message on her publicly accessible web log or blog25
that resulted in school authorities not allowing her to participate
in an election for class office. Id. at 43. In her message, she
complained about a school activity that was cancelled “due to
douchebags in central office,” and encouraged others to contact
the central office to “piss [the district superintendent] off more.”
Id. at 45. When the principal learned of the student’s posting,
she prohibited her from running for senior class secretary
“because [the student’s] conduct had failed to display the
civility and good citizenship expected of class officers.” Id., at
46. The student and her parents then sought injunctive relief in

25

“A blog (a contraction of the term ‘web log’) is a type of
website, usually maintained by an individual with regular entries
or commentary, descriptions of events, or other material such as
graphics or video. . . . ‘Blog’ can also be used as a verb,
meaning to maintain or add content to a blog.”
(http://en.wikipedia.org/wiki/Blog) (last visited November 19,
2009).
44

the form of a court order allowing her to run for class office.
The court of appeals affirmed the district court’s denial of relief
because the student’s out of school expressive conduct “created
a foreseeable risk of substantial disruption to the work and
discipline of the school.” Id. at 53.26 “ [The student] herself
testified that . . . students were ‘all riled up’ and that a sit-in
was threatened.” Id. at 51. Accordingly, the court of appeals
held that the student’s mother “failed to show clearly that [the
student’s] First Amendment rights were violated when she was
disqualified from running” for class office. Id. at 53.
However, for our purposes, it is particularly important to
note that the court in Doninger was careful to explain that it
“[had] no occasion to consider whether a different, more serious

26

The blog had resulted in numerous calls and emails to the
principal, and the court of appeals noted that the blog also used
inaccurate and misleading information to rally those who read
it to contact the school principal.
45

consequence than disqualification from student office would
raise constitutional concerns.” Id. at 53. Of course, Justin’s
consequences were more serious; he was suspended. Moreover,
in citing Doninger, we do not suggest that we agree with that
court’s conclusion that the student’s out of school expressive
conduct was not protected by the First Amendment there.
Rather, we cite Doninger only to respond to the School
District’s contention that that case supports its actions against
Justin here.

As noted earlier, the District’s January letter to the
Layshocks advising them of Justin’s suspension reads, in
relevant part, that it was punishing Justin because: “Justin
admitted prior to the informal hearing that he created a profile
about Mr. Trosch.”

Although the letter also mentions

disruption, the District does not now challenge the district
court’s finding that Justin’s conduct did not result in any
46

substantial disruption. Moreover, when pressed at oral
argument, counsel for the School District conceded that the
District was relying solely on the fact that Justin created the
profile of Trosch. We have found no authority that would
support punishment for creating such a profile unless it results
in foreseeable and substantial disruption of school.
We believe the cases relied upon for the District stand
for nothing more than the proposition that schools may punish
expressive conduct that occurs outside of school as if it
occurred inside the “schoolhouse gate,” under certain very
limited circumstances, none of which are present here.
As the court of appeals explained in Thomas: “[O]ur
willingness to defer to the schoolmaster’s expertise in
administering school discipline rests, in large measure, upon the
supposition that the arm of authority does not reach beyond the
schoolhouse gate.” 607 F.2d at 1045. We need not now define
47

the precise parameters of when the arm of authority can reach
beyond the schoolhouse gate because, as we noted earlier, the
district court found that Justin’s conduct did not disrupt the
school, and the District does not appeal that finding. Thus, we
need only hold that Justin’s use of the District’s web site does
not constitute entering the school, and that the District is not
empowered to punish his out of school expressive conduct under
the circumstances here.
Based on those two conclusions, we will affirm the

district court’s grant of summary judgment to Justin on his First
Amendment Claim.27

27

The District argues in the alternative that it did not violate
the First Amendment by punishing Justin because his speech
was defamatory and not protected by the First Amendment. The
Layshocks respond by arguing that Justin’s profile is a parody
that cannot constitute defamation. However, whether or not we
accept the characterization of a “parody,” the issue before us is
limited to whether the District had the authority to punish Justin
for expressive conduct outside of school that the District
48

B. The Layshock Parents’ Appeal (No. 07-4555).
As noted, earlier, in Count III of the complaint, Justin’s
parents alleged that the District’s punishment of Justin for
conduct he engaged in in his grandmother’s home interfered
with their right to determine how to best raise, nurture,
discipline and educate their children. As also noted, the district
court granted summary judgment to the District on that claim.
The parents stated in their depositions that they brought their
Due Process claim because they did not believe that the District
had a right to punish Justin for creating the profile outside of
school.

The district court did not believe the parents had

explained how the District’s punishment of Justin interfered
with their ability to discipline their son. The court therefore
concluded that the parental claim the parents

considered lewd and offensive.
49

were asserting was merely “duplicative of Justin’s First
Amendment claim,” Layshock, 496 F. Supp.2d at 606, and not
an independent claim of their own.
The Due Process Clause of the Fourteenth Amendment
provides that “[n]o state shall . . . deprive any person of life,
liberty, or property, without due process of law.” U.S. Const.
Amend. XIV. The Due Process Clause “guarantees more than
fair process,” it also includes a substantive component that
“provides heightened protection against government interference
with certain fundamental rights and liberty interests.” Troxel v.
Granville, 530 U.S. 57, 65 (2000) (citations and internal
quotation marks omitted). Indeed, “it cannot now be doubted
that the Due Process Clause of the Fourteenth Amendment
protects the fundamental right of parents to make decisions
concerning the care, custody, and control of their children.” Id.
at 67. In fact, “the interest of parents in the care, custody, and
50

control of their children [] is perhaps one of the most
fundamental liberty interests recognized” by the

Supreme

Court. Id. at 65. Thus, “the custody, care and nurture of the
child reside first in the parents, whose primary function and
freedom include preparation for obligations the state can neither
supply nor hinder.” Prince v. Massachusetts, 321 U.S. 158, 166
(1944).
However, in C.N. v. Ridgewood Bd. of Educ., 430 F.3d
159, 182 (3d Cir. 2005), we noted that “[t]he Supreme Court has
never been called upon to define the precise boundaries of a
parent’s right to control a child’s upbringing and education,”
and those boundaries remain undefined. Nevertheless, despite
the rather ambiguous nature of those boundaries, we agree that
the parents have not shown how the School District’s action in
any way interfered with their ability to control Justin’s
“upbringing [or] education.”
51

Although we can envision

situations where a school’s reaction to a student’s conduct could
interfere with the parents’ ability to exercise appropriate control
and authority over their child and his/her upbringing and
education, nothing on this record would support such a finding
here. Here the parental assertion of a due process violation is
based on nothing more than the parents’ conclusory allegations
of interference. They rest their claim on these assertions even
though it appears that they were able to take the action they
thought necessary to communicate their displeasure with their
son’s actions and the inappropriateness of his behavior.

We

therefore fail to see how the school’s inappropriate response to
Justin’s actions in any way interfered with the Layshocks’
liberty interest in raising their son.
Accordingly, although a child’s constitutional rights will
not always be coterminous with his/her parents’ liberty interest,
we believe the district court correctly concluded that the
52

Layshocks have not shown how their liberty interest was
infringed by the School District’s violation of their son’s First
Amendment right of expression.

V. CONCLUSION
For the reasons we have set forth above, we will affirm
the district court’s grant of summary judgment to Justin on his
First Amendment claim and the district court’s grant of
summary judgment to the District on Justin’s parents’
Fourteenth Amendment Claim.28

28

The School District makes several other arguments in
response to both the First Amendment claim, and the parents’
substantive due process claim. However, we conclude that they
are without merit and do not warrant further discussion given
our analysis of the First Amendment claim.
53

54