Appeal from the United States District Court for the Western District of Pennsylvania (Civ. No. 06-cv-00116) District Judge: Hon. Terrence F. McVerry.
The opinion of the court was delivered by: McKEE, Circuit Judge.
Argued: December 10, 2008
Before: McKEE, SMITHand ROTH, Circuit Judges
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 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.
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 10 and 14, 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 and paste" operation using the computer's internet browser and mouse. Justin created the profile on "MySpace."*fn1 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).*fn2
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 smoked: big blunt*fn3
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" 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.*fn4
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 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 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 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 Trosch's office and apologized for creating the profile.*fn5
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 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;*fn6
(2) being banned from all extracurricular activities, including
Academic Games and foreign-language tutoring;*fn7 and (3) not being allowed to participate in his graduation ceremony.*fn8 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 ...