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

       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 on December 10, 2008
            Opinion Filed on February 4, 2010

                            1
    Opinion Vacated and Petition for Rehearing En Banc
                Granted on April 9, 2010
       Rehearing En Banc Ordered for June 3, 2010
             Argued En Banc on June 3, 2010

   Before: McKEE, Chief Judge, SLOVITER, SCIRICA,
                RENDELL, BARRY,
   AMBRO, FUENTES, SMITH, FISHER, CHAGARES,
                      JORDAN,
  GREENAWAY, VANASKIE and ROTH, Circuit Judges.

               (Opinion filed: June 13, 2011)

ANTHONY G. SANCHEZ, ESQ. (Argued)
CHRISTINA LANE, ESQ.
Andrews & Price
1500 Ardmore Boulevard, Suite 506
Pittsburgh, PA 15221
Attorneys for Appellant, 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
Board Association, filed in support of Appellant,
Hermitage School District

KIM M. WATTERSON, ESQ.

                              2
RICHARD T. TING, ESQ.
WILLIAM J. SHERIDAN, ESQ.
Reed Smith LLP
435 Sixth Avenue
Pittsburgh, PA 15219

WITWOLD J. WALCZAK, ESQ. (Argued)
SARA J. ROSE, ESQ.
American Civil Liberties Foundation
of Pennsylvania
313 Atwood Street
Pittsburgh, PA 15213
Attorneys for Appellees, Donald Layshock,
Cheryl Layshock

JOHN W. WHITEHEAD, ESQ.
The Rutherford Institute
1440 Sachem Place
Charlottesville, VA 22901
Attorney for Amicus Curiae, The Rutherford
Institute, in support of Appellees,
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

                             3
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, Donald Layshock,
Cheryl Layshock

ROBERT D. RICHARDS, ESQ.
CLAY CALVERT, ESQ.
Pennsylvania Center for the
First Amendment
The Pennsylvania State University
308 James Building
University Park, PA 16802
Attorneys for Amicus Curiae, Pennsylvania
Center for the First Amendment, in support of
Appellees, Donald Layshock, Cheryl Layshock

                 OPINION OF THE COURT

McKEE, Chief Judge.

       We are asked to determine if a school district can punish
a student for expressive conduct that originated outside of the
schoolhouse, did not disturb the school environment and was not
related to any school sponsored event. We hold that, under these
circumstances, the First Amendment prohibits the school from
reaching beyond the schoolyard to impose what might otherwise

                               4
be appropriate discipline.

       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 Hickory High
School 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
School District’s punishment transcended Justin’s First
Amendment right of expression. The district court granted
summary judgment in favor of Justin on his First Amendment
claim. We originally affirmed the district court. See Layshock
v. Hermitage School Dist., 

(3d Cir. 2010).
Thereafter, we entered an order vacating that opinion and
granting rehearing en banc. For the reasons that follow, we once
again affirm the district court’s holding that the school district’s
response to Justin’s conduct transcended the protection of free
expression guaranteed by the First Amendment.

               I. FACTUAL BACKGROUND

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

                                 5
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., 

, 845 (W.D. Tex. 2007).2

       Justin created the profile by giving bogus answers to
survey questions taken from various templates that were
designed to assist in creating a 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 “tell me about yourself”
questions as follows:
              Birthday: too drunk to remember



   1
       MySpace is found at: http://www.myspace.com.
  2
       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
communicate with her friends over the MySpace.com platform
via e-mail, instant messaging, or blogs.” 

.



                                 6
              Are you a health freak: big steroid
              freak

              In the past month have you
              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



3
    Justin explained that a “blunt” was a marijuana cigarette.

                               7
Under “Interests,” Justin listed: “Transgender, Appreciators of
Alcoholic Beverages.” Justin also listed “Steroids International”
as a club Trosch belonged to.

       Justin afforded access to the profile to other students in
the School 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 his Co-Principal, Chris Gill,
and the District Superintendent, Karen Ionta, about this other
profile and asked the 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 15th, and a
fourth profile on Sunday, December 18th.

     Trosch believed all of the profiles were “degrading,”
“demeaning,” “demoralizing,” and “shocking.” He was also


  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.

                               8
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 15th, Justin used a computer in his
Spanish classroom to access his MySpace profile of Trosch. He
also 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 16th, 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 December 16th. However, the school was able to
control students’ computer access by limiting the students’ use
of computers to computer labs or the library where internet
access could be supervised. School officials continued to limit
computer use from December 16th until December 21st, which
was the last day of school before Christmas recess. Computer
programming classes were also cancelled.

                               9
       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 creating a profile, but no disciplinary
action was then taken against him. After the meeting, without
prompting from anyone, Justin went to 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:



     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.

                              10
             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;
             H ar a s s men t o f a s c h o o l
             administrator via computer/internet
             with remarks that have demeaning
             implications; Gross misbehavior;
             Obscene, vulgar and profane
             language; Computer 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


   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

                              11
(2) being banned from all extracurricular activities, including
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 School 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
referred to as the “School District” or “District”). The
Layshocks also filed a motion for a temporary restraining order



classified as a gifted student, was enrolled in advanced
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.
   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.

                                 12
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,
and continued to interfere with, their right as parents to
determine how to best raise, nurture, discipline and educate
their child in violation of their rights under the Due Process
Clause of the Fourteenth Amendment.

        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
the district court’s efforts at mediation.9 On March 31, 2006,
the district court denied the District’s motion to dismiss the
Layshocks’ claims. 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


    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.

                               13
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
was necessary to determine compensatory damages and
attorneys’ fees. See 

       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 the School District appealed the district court’s grant of
summary judgment in favor of Justin on his First Amendment
claim.11


       10
         The district court ruled that Trosch was entitled to
summary judgment on all counts because he was not involved
in 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 claim.
  11
     The Layshocks filed a cross-appeal (No. 07-4555) from the
district court’s grant of summary judgment in favor of the

                               14
               III. SUMMARY JUDGMENT

       “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, 

, 268 (3d Cir. 2008) (citation
and internal quotation marks 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., 

, 788 (3d Cir. 2000). However,
“the mere existence of some alleged factual dispute between the
parties will not defeat an otherwise properly supported motion
for summary judgment.” Anderson v. Liberty Lobby, Inc., 

, 247-48 (1986). “As our review of a grant of summary
judgment is plenary, we operate under the same legal standards


School District on their Fourteenth Amendment Due Process
claim. In our opinion filed on February 4, 2010, we affirmed the
district court’s grant of summary judgment to the School District
on that claim, and the Layshocks did not seek rehearing en banc
on that claim. Therefore, although we vacated the February 4,
2010, opinion and judgment as to the School District’s appeal at
No. 07-4464, and granted the School District’s petition for
rehearing en banc, we also, on April 9, 2010, ordered that “the
opinion and judgment entered by this Court on February 4, 2010
stands with respect to the affirmance of the district court’s grant
of summary judgment to the [School District] on [the
Layshocks’] Fourteenth Amendment Due Process claim.”

                                15
as the District Court.” 

.

                 IV. DISCUSSION
1. The First Amendment’s Application in Public Schools.

        In the landmark case of Tinker v. Des Moines Indep.
Cmty. Sch. Dist., 

(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. Several students who ignored the ban and
wore armbands to school anyway were suspended. 

Those students brought an action against the school through
their 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 preserve
discipline. 

district court’s decision was
affirmed without opinion by an equally divided court of appeals
sitting en banc. 

        The case was appealed to the Supreme Court, which 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.” 

The Court concluded that the students 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.” 

The school district’s only interest in banning

                               16
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.” 

The Court
held that this interest was not enough to justify banning “a
silent, passive expression of opinion, unaccompanied by any
disorder or disturbance.” 

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.

        Thus, although the Court concluded that the First
Amendment did reach inside the “schoolhouse gate,” it also
recognized that 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.” 

       The Court next addressed the scope of the First
Amendment in the context of student speech in Bethel School
District No. 403 v. Fraser, 

(1986). There, the

                               17
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.” 

The Court explained:

              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
              [Fraser].12

In reaching this conclusion, the Court distinguished
its prior holding in Cohen v. California, 

(1971).
There, the Court had struck down an adult’s conviction for
disorderly conduct that was based on his wearing a jacket,
inside a court house, that had an obscenity about the draft
printed on it. The Fraser Court explained:

              It does not follow . . . that simply
              because the use of an offensive
              form of expression may not be
              prohibited to adults making what


   12
     In Saxe v. State College Area School District, 

, 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.”

                               18
              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.

(citation and internal quotation marks omitted). The
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,’” 

by “insisting that certain modes of
expression are inappropriate and subject to sanctions.” 

Thus, “[t]he determination of what manner of speech in
the classroom or in school assembly is inappropriate properly
rests with the school board.” 

Hazelwood School District. v. Kuhlmeier,

(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 because the school had not
opened the newspaper up as a public forum, the school could
“exercis[e] editorial control over the style and content of student
speech in school-sponsored expressive activities so long as [its]
actions are reasonably related to legitimate pedagogical
concerns.” 

The Court explained:

              The question whether the First

                                19
                 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 . .
                 . 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.

        The extent to which First Amendment protections apply
in the public school context was most recently addressed in
Morse v. Frederick, 

(2007). There, “[a]t a school-
sanctioned 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.” 

The banner read: “BONG HiTS

                                  20
4 JESUS.” 

“Consistent with established school
policy prohibiting such messages at school events, [Morse]
directed the students to take down the banner.” 

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].” 

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
Amendment rights. 

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.” 

The Court “resolve[d] the first question against Frederick,” and,
therefore, did not have to reach the second. 

explained that its Fourth Amendment jurisprudence recognized
that “deterring drug use by school children is an important –
indeed, perhaps compelling interest.” 

(citation
omitted).      The “special characteristics of the school
environment, and the governmental interest in stopping student
drug abuse allow schools to restrict student expression that they
reasonably regard as promoting such abuse.” 

Thus,


   13
      The court of appeals had ruled that the principal was not
entitled to qualified immunity.

                               21
“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.” 

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. 

School events and field trips off school
grounds were subject to the school’s rules for student conduct.

      It is against this legal backdrop that we must determine
whether the District’s actions here violated Justin’s First
Amendment rights.

       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[,]” 

, and
the School District does not challenge that finding on appeal.
Therefore, the School District is not arguing that it could
properly punish Justin under the Tinker exception for student
speech that causes a material and substantial disruption of the
school environment. See 

. Rather, the
District’s argument is twofold:

               [A] sufficient nexus exists between
               Justin’s creation and distribution of
               the vulgar and defamatory profile

                                 22
               of Principal Trosch and the School
               District to permit the School
               District to regulate this conduct.
               The “speech” initially began on-
               campus: 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.

District’s Br. at 9.

      2. Justin’s “Entry” Onto the District’s Website.

       The School District’s attempt to forge a nexus between
the School and Justin’s profile by relying upon his “entering”
the District’s website 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.,

(2d Cir. 1979).

       We find the reasoning in Thomas v. Board of Educ., 607


                               

(2d Cir. 1979), far more persuasive.20 Thomas
involved a group of students who were suspended for
producing “a satirical publication addressed to the school
community.” 

The articles included such topics as
masturbation and prostitution, as well as more standard fare
such as “school lunches, cheerleaders, classmates, and
teachers.” 

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.” 

“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.

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.” 

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


   20
        Thomas was decided after Tinker but before Fraser.
   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

                                24
the students’ publication of “an allegedly ‘morally offensive,
indecent, and obscene,’ tabloid.” 

n.12.

        The students sued the school board and other school
officials under 42 U.S.C. § 1983. They sought “injunctive and
declaratory relief from alleged deprivations of their First and
Fourteenth Amendment rights.” 

The district court
denied the students’ request for injunctive relief based upon its
conclusion that the publication “was potentially destructive of
discipline in [the school], and therefore not protected by the
First Amendment.” 

       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


after being contacted by the President of the Board of Education.

.

                               25
               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.

.

       The court reached that conclusion even though the
students 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. We agree with the analysis in
Thomas. Accordingly, because the School District concedes that
Justin’s profile did not cause disruption in the school, we do not
think that the First Amendment can tolerate the School District
stretching its authority into Justin’s grandmother’s home and
reaching Justin while he is sitting at her computer after school
in order to punish him for the expressive conduct that he
engaged in there.

       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 concept of the “school yard” is not without boundaries and
the reach of school authorities is not without limits. In Morse,

                                26
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 

(emphasis added). Nevertheless,
with regard to expressive conduct that occurs outside of the
school context, the Court, referring to its earlier decision in
Fraser, was careful to note that “[h]ad Fraser delivered the
same speech in a public forum outside the school context, it
would have been 

(citations
omitted).

       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 it can control that child when he/she participates in
school sponsored activities. Allowing the District to punish
Justin for conduct he engaged in while at his grandmother’s
house using his grandmother’s computer 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 Cannot Punish Justin Merely Because
         His Speech Reached Inside the School.

       As noted above, the School District also claims that
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

                                27
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.” 

.      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.” 

       The School District does not dispute the district court’s
finding that its punishment of Justin was not appropriate under
Tinker; it rests its argument on the Supreme Court’s 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


  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 offensive terms in
       public discourse.”

                                28
 Similarly, the School District argues that under our decision in
Saxe, see 

, there is no First Amendment protection
for lewd, vulgar, indecent or plainly offensive speech in
schools.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., 

(Pa. 2002);
Wisniewski v. Bd. of Educ. of Weedsport Cent. Sch. Dist., 

(2d Cir. 2007); and Doninger v. Niehoff, 

(2d Cir. 2008). However, as we will explain, each of those
cases involved off campus expressive conduct that resulted in


District’s Br. at 10 (ellipsis in original).

          However, we reject out of hand any suggestion that
          schools can police students’ out-of-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.
     23
        In Saxe, we did state: “Under Fraser, a school may
categorically prohibit lewd, vulgar or profane 

. However, when read in context, it is clear that we
were there referring only to speech inside Tinker’s schoolhouse
gate. Thus, we summarized the holding in Fraser as follows:
“According to Fraser, . . . there is no First Amendment
protection for ‘lewd,’ ‘vulgar,’ ‘indecent,’ and ‘plainly
offensive’ speech in school.” 

(emphasis added).

                                 29
a substantial disruption of the school, and the courts allowed the
schools to respond to the substantial disruption that the
student’s out of school conduct caused.

        In J.S., an eighth grade student created a threatening
website aimed at his algebra teacher that went so far as to
explain “[w]hy Should She Die,” and requested money “to help
pay for the 

. 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.” 

“In sum, the web site created disorder
and significantly and adversely impacted the delivery of
instruction.” 

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
created the website from his home.24

      Similarly, the school suspended the student in
Wisniewski, for creating an image on the internet from his home


    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.

                               30
computer that depicted a pistol firing a bullet at a teacher’s head
with dots representing splattered blood above the 

. 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
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 

. 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 boundary of protected speech and pose[d] a
reasonably foreseeable risk [of] materially and substantially
disrupting the work and discipline of the school.” 

(internal quotation marks omitted).

        Finally, in Doninger, a student, who was a class officer,
posted a message on her publicly accessible web log or “blog”
that resulted in school authorities not allowing her to participate
in an election for class office.25 

In her message, she


   25
    “A blog (a contraction of the term ‘web log’) is a type of
website, usually maintained by an individual with regular entries

                                 31
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.”
 

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.” 

The student and her parents then sought injunctive relief in
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.” 

“ [The student] herself
testified that . . . students were ‘all riled up’ and that a sit-in
was threatened.” 

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. 

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 September 23,
2010).
   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.

                                32
        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
consequence than disqualification from student office would
raise constitutional concerns.” 

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.

       As noted earlier, the District’s January 3, 2006, 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, we have taken care to stress that the District does not
now challenge the district court’s finding that Justin’s conduct
did not result in any 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, and not arguing that it
created any substantial disruption in the school. However, as
noted above, Fraser does not allow the School District to
punish Justin for expressive conduct which occurred outside of
the school context. See 

(“Had Fraser
delivered the same speech in a public forum outside the school
context, it would have been protected.”) (citations omitted).
Moreover, we have found no authority that would support

                                33
punishment for creating such a profile unless it results in
foreseeable and substantial disruption of school.

       We believe the cases relied upon by the School District
stand for nothing more than the rather unremarkable 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 

. We need not now define
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 Layshock
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

                               34
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
considered lewd and offensive.

                               35
Layshock v. Hermitage School District, No. 07-4465
JORDAN, Circuit Judge, concurring, with whom
VANASKIE, Circuit Judge, joins.

       Our Court today issues en banc decisions in two cases
with similar fact patterns. In both the case presently before us
and in J.S. v. Blue Mountain School District, No. 08-4138, we
are asked whether school administrators can, consistent with
the First Amendment, discipline students for speech that
occurs off campus.1 Unlike the fractured decision in J.S., we
have reached a united resolution in this case, but there
remains an issue of high importance on which we are
evidently not agreed and which I note now, lest there be any
misperception that it has been resolved by either J.S. or our
decision here. The issue is whether the Supreme Court’s
decision in Tinker v. Des Moines Independent Community
School Dist., 

(1969), can be applicable to off-
campus speech. I believe it can, and no ruling coming out
today is to the contrary.2

       1
        This case and J.S. are not related cases in the sense of
being linked on our docket, but they raise nearly identical
First Amendment issues. It is no accident that they were
taken en banc at the same time, were argued on the same date,
and are being decided simultaneously.
       2
          I readily acknowledge that “[t]here is some
uncertainty at the outer boundaries as to when courts should
apply school speech precedents” Morse v. Frederick, 

, 401 (2007), and my conclusion about Tinker’s
applicability in this case and in J.S. does not account for
permutations that may make Tinker inapposite. Whether the
test framed by Tinker will always be applicable is not a matter




                               1
        In Tinker, the Supreme Court emphasized that student
speech, “in class or out of it, which for any reason …
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.” 

It also suggested that if there are “facts
which might reasonably have led school authorities to
forecast substantial disruption of or material interference with
school activities,” that too can result in disciplinary measures.

Given those statements, the applicability of Tinker
here seems straight-forward, although it gives no shelter to
the defendant school district in this case because, as the
opinion for our Court notes, “the [Hermitage School] District
does not now challenge the … finding that [the student’s]
conduct did not result in any substantial disruption[,]” Slip
Op. at 33, nor did the School District demonstrate that the
student’s speech or conduct created a reasonable
apprehension of substantial disruption.

       Tinker ought likewise to be viewed as providing the
governing rule of law in J.S., but that has been thrown into
question by the competing opinions that have emerged in en
banc review. The Majority opinion in J.S. takes the position
that whether Tinker is applicable to off-campus speech is
something that can be assumed without being decided since,
in the Majority’s view, there was no substantial disruption
and hence the school administrators could not lawfully mete
out discipline for the despicable speech and behavior detailed


to be answered in the abstract. It is enough for present
purposes to observe that it is an analytical approach the
Supreme Court has employed for decades and that it is both
sensible and salutary to apply it in cases like these.




                               2
in that case. Judge Smith’s concurring opinion in J.S. argues
that Tinker does not apply. He appears to conclude that, with
the exceptions of speech specifically directed at the school
and of speech while at school-sanctioned events, speech that
takes place off-campus is beyond the reach of school
discipline. See J.S. Concurrence, slip op. at 3-4. The
concurrence does acknowledge, however, that whether Tinker
applies “cannot turn solely on where the speaker was sitting
when the speech was originally uttered[,]” because “[s]uch a
standard would fail to accommodate the somewhat
‘everywhere at once’ nature of the internet[,]” 

Judge
Fisher then skillfully demonstrates in his dissent in J.S., that
the heavy focus in the concurrence on an “off-campus versus
on-campus” distinction is artificial and untenable in the world
we live in today. See J.S. Dissent, slip op. at n.4. For better
or worse, wireless internet access, smart phones, tablet
computers, social networking services like Facebook, and
stream-of-consciousness communications via Twitter give an
omnipresence to speech that makes any effort to trace First
Amendment boundaries along the physical boundaries of a
school campus a recipe for serious problems in our public
schools.

        Tinker teaches that schools are not helpless to enforce
the reasonable order necessary to accomplish their mission.
Again, school officials may curtail speech if they can show
“facts which might reasonably have led [them] to forecast
substantial disruption of or material interference with school

. We have similarly stressed that,
“if a school can point to a well-founded expectation of
disruption ... the restriction may pass constitutional muster.”
Saxe v. State College Area Sch. Dist., 

, 212 (3d
Cir. 2001). Trying to limit that principle along real property




                               3
lines is bound to run into trouble, as the J.S. concurrence
concedes by saying that there can be difficulty in knowing
whether speech has occurred on or off campus. J.S.
Concurrence, slip op. at 8. That concession, though, fails to
get at the fundamental difficulty in cases like these. The
problem is not in knowing where a speaker was when uttering
or otherwise creating speech. Like other historical facts,
where a speaker said something is a matter that can be
decided by typical fact-finding techniques. If the point of the
J.S. concurrence is not to question where the speaker was
physically so much as to question how to characterize the
speech itself, i.e., as having on-campus or off-campus effects,
then the definitional exercise only obscures the effort to
answer the central dilemma, which is how to balance the need
for order in our public schools with respect for free speech.
That is the problem Tinker aimed to address and it is the
problem we are confronting too, so we should be applying
rather than avoiding Tinker.3

       3
         The J.S. concurrence cites Morse, as supporting the
conclusion that Tinker is inapplicable to off-campus speech,
noting that the Morse Court “took care to refute the
contention that the plaintiff’s speech … did not occur ‘at
school’” which “would have been unnecessary” if Tinker
were meant to apply to off-campus speech. J.S. Concurrence,
slip op. at 4. That argument mistakes the import of both
Morse and Tinker, however. The subject of the speech in
Morse, which was an odd reference to illegal drug use, had no
relation to the school or school 

. In
none of the opinions issued today is it suggested that such
speech, if it took place off campus and apart from a school
sanctioned event, would be covered by Tinker. Speech that
neither relates to school nor occurs on campus or during a




                               4
        We cannot sidestep the central tension between good
order and expressive rights by leaning on property lines.
With the tools of modern technology, a student could, with
malice aforethought, engineer egregiously disruptive events
and, if the trouble-maker were savvy enough to tweet the
organizing communications from his or her cellphone while
standing one foot outside school property, the school
administrators might succeed in heading off the actual
disruption in the building but would be left powerless to
discipline the student. Perhaps all of us participating in these
en banc decisions would agree on that being problematic. It
is, after all, a given that “[t]he most stringent protection of
free speech would not protect a man in falsely shouting fire in
a theatre and causing a panic.” Schenck v. United States, 

, 52 (1919), and no one supposes that the rule would
be different if the man were standing outside the theater,
shouting in. Thus it is hard to see how words that may cause
pandemonium in a public school would be protected by the
First Amendment simply because technology now allows the
timing and distribution of a shout to be controlled by
someone beyond the campus boundary.




school sanctioned event will in all likelihood lack a
reasonable nexus to school and so will be divorced from the
question of good order in the school, which is the reach of
Tinker. Thus, I do not share the concern expressed in the J.S.
concurrence that applying Tinker to off-campus speech would
“empower schools to regulate students’ expressive activities,”
or to “suppress political speech” such as “a blog entry
defending gay marriage.” J.S. Concurrence, slip op. at 6.




                               5
       If it is accepted that the First Amendment would not
protect such a deliberate disturbance, we should acknowledge
that we are weighing competing interests and do so in the
straightforward though sometimes challenging way directed
by Tinker. Just as society’s interest in public safety
surmounts any claim of right to raise a false fire alarm, by the
same token any claimed right to spread scurrilous falsehoods
about school administrators may well be outweighed by
society’s legitimate interest in the orderly administration of
public schools. Tinker outlines the approach the Supreme
Court has given for undertaking that weighing process.

       I worry that the combination of our decisions today in
this case and in J.S. may send an “anything goes” signal to
students, faculties, and administrators of public schools. To
the extent it appears we have undercut the reasoned discretion
of administrators to exercise control over the school
environment, we will not have served well those affected by
the quality of public education, which is to say everyone. By
way of some little reassurance, then, it bears emphasis that,
whatever else may be drawn from these decisions, we have
not declared that Tinker is inapplicable to off-campus speech
simply because it occurs off-campus. Despite differing views
on what may constitute a substantial disruption, I hope and
believe that we are all mindful of the challenges school
administrators face in providing a safe environment,
conducive to learning and civic development, for children and
young adults. Those challenges have never been greater than
they are today. Modern communications technology, for all
its positive applications, can be a potent tool for distraction
and fomenting disruption. Tinker allows school officials to
discipline students based on a reasonable forecast of




                               6
substantial disruption, without waiting for the chaos to
actually hit the hallways.

       In short, nothing in the First Amendment requires
administrators to check their common sense at the school
house door. When they must forecast how poisonous
accusations lobbed over the internet are likely to play out
within the school community, if they “can point to a well-
founded expectation of disruption,” 

, we
ought to be supportive of their reasonable efforts to maintain
appropriate order. I concur in the Court’s decision in this
case, but do not subscribe to any implication that Tinker is
inapplicable and that school officials would have been
powerless to head off a substantial disruption.4

      4
         I take comfort from certain caveats in the opinion.
While putting distance between our Court and the decisions
of the United States Court of Appeals for the Second Circuit
in Wisniewski v. Board of Educ. of Weedsport Cent. School
Dist., 

(2d Cir. 2007), and Doninger v. Niehoff,

(2d Cir. 2008), the opinion for the Court in this
case nonetheless acknowledges that those Second Circuit
precedents “stand for … the unremarkable proposition that
schools may punish expressive conduct that occurs outside of
school … .” Slip Op. at 34. It is noteworthy too that the
Majority opinion in J.S. distinguishes the character of the
student speech at issue in the Second Circuit cases from the
speech in J.S. but it does not make any distinction based on
the location of the speaker. In any event, I agree with the
Second Circuit’s ultimate conclusion in Wisniewski that
Tinker can have applicability to student speech that occurs
off-campus. See 

(Ruling on
internet speech communicated by a student from a home




                              7
computer, and holding, “[w]ith 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 ... .”).




                             8