Jason Kutchinski, as parent and next friend to H.K., a minor v. Freeland Community School District

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 23a0117p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
JASON KUTCHINSKI, as parent and next friend to H.K., a
minor,
Plaintiff-Appellant,
v.
FREELAND COMMUNITY SCHOOL DISTRICT; MATTHEW
A. CAIRY and TRACI L. SMITH, in their official and
individual capacities,
Defendants-Appellees.
┐
│
│
│
│
│
│
│
│
│
│
┘
No. 22-1748
Appeal from the United States District Court for the Eastern District of Michigan at Bay City.
No. 1:19-cv-13810—Sean F. Cox, District Judge.
Argued: May 1, 2023
Decided and Filed: June 2, 2023
Before: GILMAN, READLER, and MATHIS, Circuit Judges.
_________________
COUNSEL
ARGUED: Philip L. Ellison, OUTSIDE LEGAL COUNSEL PLC, Hemlock, Michigan, for
Appellant. Jacob G. Lyday, O’NEILL, WALLACE & DOYLE, P.C., Saginaw, Michigan, for
Appellees. ON BRIEF: Philip L. Ellison, OUTSIDE LEGAL COUNSEL PLC, Hemlock,
Michigan, Matthew E. Gronda, GRONDA PLC, St. Charles, Michigan, for Appellant. Gregory
W. Mair, O’NEILL, WALLACE & DOYLE, P.C., Saginaw, Michigan, for Appellees.
>

-- 1 of 13 --

No. 22-1748 Kutchinski v. Freeland Cmty. Sch. Dist. Page 2
_________________
OPINION
_________________
MATHIS, Circuit Judge. H.K., a high-school student at Freeland Community School
District, created a fake Instagram account impersonating one of his teachers. The account was
benign at first, but soon became graphic, harassing, and threatening when two of his friends
added their own posts to the account. News of the account spread fast, fueled by the students’
own efforts. They accepted requests to follow the account and H.K.’s friends tagged teachers in
their posts. H.K. eventually decided that the attention was too much and he deleted the account.
The school traced the account to H.K. and the other two students and imposed an
immediate five-day suspension pending further investigation. After concluding the investigation
and providing H.K. with an administrative hearing on the matter, the school suspended him for
ten days.
H.K.’s father, Jason Kutchinski, then sued the school district, the principal, and the
superintendent under 42 U.S.C. § 1983, claiming that the ten-day suspension violated H.K.’s
free-speech and due-process rights. The district court denied Kutchinski’s motion for partial
summary judgment and granted summary judgment to Defendants. Because Defendants had the
authority to regulate H.K.’s off-campus speech and because the rule Defendants relied on to
discipline H.K. was sufficiently definite, we affirm.
I.
H.K. was at his home as Friday night bled into Saturday morning when he created a fake
Instagram account to impersonate his biology teacher, Steven M. Schmidt. He wrote the
account’s first post—a photograph of a gas pump with a hypodermic needle embedded in it with
the caption “[w]atch out guys, I am concerned for everyone’s safety!” R. 51-3, PageID 1000;
R. 51-16, PageID 1063. Later that night, while H.K. played online games with his two friends,
K.L. and L.F., he told them about the account and shared the log-in information with them.
According to H.K., K.L. or L.F. later added the following biography to the account:

-- 2 of 13 --

No. 22-1748 Kutchinski v. Freeland Cmty. Sch. Dist. Page 3
Steven Schmidt
Biology teacher at Freeland High School
1 Loving Wife #lovers married in 2016
Father of 2 beautiful twins #blessed and one 1 girl
#growingup
R. 51-16, PageID 1063; R. 51-3, PageID 1001.
Soon after receiving the log-in information, K.L. and L.F. wrote several posts about
Schmidt, English teacher Chelsea Howson, substitute teacher/football coach Trey Anderson, and
an unnamed disabled student. The posts displayed:
• A photo of the disabled student with the caption “[g]lad this sicko is
out of our school #ass[a]ult #Blessed”
• A photo of Schmidt and his wife and child with the caption “[j]ust
#gangbanged my wife with 4 other men in the back of an Arby’s
#notmykid #14inches”
• A photo of Schmidt and his wife with the caption “[h]appy 3rd
Anniversary to my beautiful wife! #loving #anniversary #STDs”
• A photo of Howson with the caption “[b]est sex in a Pet Smart #big
#throbbing #14inches #raw”
• A graphic video with the caption “[m]ight have to cheat on my wife
[two winking emojis] #big #14inches”
• A photo of Anderson with two unknown students with the caption
“I will find and kill @_treyanderson__ [I’m] going to strangle him
with my barehands [sic] until he is barely conscious, then let go. Once
he is awake again [I’m] gonna run him over with my fucking car and
crush [h]is skull into a million pieces. #lol @elite_edge”
• A photo of Anderson with his cat with the caption “I could beat up
@_treyanderson__ and anyone else in @elite_edge and then curb
stomp his cat. #gains @peta”
R. 51-3, PageID 997–1005.
K.L. and L.F. tagged Howson and Anderson in the posts referencing them. K.L. told
H.K. about the posts that he had made to the account, and H.K. monitored the account and
viewed the posts himself. H.K. did not delete them. Instead, he joked with K.L. and L.F. about
the posts and the three accepted 18 requests to follow the account.

-- 3 of 13 --

No. 22-1748 Kutchinski v. Freeland Cmty. Sch. Dist. Page 4
By Sunday, Schmidt and Howson learned about the account and contacted the school’s
principal, Traci L. Smith (“Principal Smith”), to let her know about the account’s existence.
Schmidt told Principal Smith:
Someone has set up an account and is pretending to be me on Instagram. The
posts they are making are highly inappropriate. I have attached screenshots of
them as of 6:00am 5-12. I filed reports for impersonation, threats of violence, and
harrassment [sic] on Instagram as well. If there is anything else I need to do,
please let me know.
R. 51-2, PageID 996.
The account remained active when school commenced on Monday morning. By this
time, Schmidt’s and Howson’s students had learned about the account. According to Howson,
“students were whispering about the incident, mainly in the afternoon after it had . . . spread
around.” R. 49-3, PageID 924. This made her feel “incredibly humiliated the entire day”
because she “knew that students knew about it . . . [and she] was humiliated to even bring the
topic up.” Id. at 926. A student reported to another teacher that Howson was crying in one of
her classes.
H.K. grew concerned that the account was getting out of control. He deleted the account
during his lunch period after several friends urged him to do so.
Principal Smith investigated the account’s origins throughout the day. She spoke with
teachers, who told her about several “classroom disruptions going on in their rooms,” and called
“multiple students out of the classroom,” one of whom identified H.K., K.L., and L.F. as the
students involved with the account. R. 49-1, PageID 894, 897.
Principal Smith put H.K. on an immediate five-day suspension. According to the notice
letter sent to H.K.’s parents, the basis of his suspension was “impersonating a staff member by
creating a fake on line [sic] account, posting to it, and sharing online log in [sic] information
with others who posted additional inappropriate material.” R. 51-6, PageID 1010. The letter
also notified H.K.’s parents that further investigation could result in additional punishment.
And that is exactly what happened.

-- 4 of 13 --

No. 22-1748 Kutchinski v. Freeland Cmty. Sch. Dist. Page 5
On May 30, 2019, Freeland’s superintendent, Matthew A. Cairy (“Superintendent
Cairy”), notified H.K.’s parents that Principal Smith had recommended H.K.’s expulsion and
that Freeland would conduct a disciplinary hearing.
H.K., his parents, his legal counsel, Principal Smith, and Superintendent Cairy attended
the hearing. On August 6, 2019, Superintendent Cairy notified H.K. that he would receive a ten-
day suspension “for his actions on May 11–13, 2019, including: gross misbehavior for his
posting a fake Instagram account impersonating a teacher (under an assumed name), posting to
that account as the teacher, and sharing the username and password with other students.” R. 51-
15, PageID 1053.
Kutchinski sued Defendants on H.K.’s behalf, alleging that H.K.’s ten-day suspension
violated his First Amendment and Fourteenth Amendment rights.1 The case proceeded to
discovery, after which the parties filed competing motions for summary judgment. The district
court ultimately granted Defendants’ summary judgment motion and denied Kutchinski’s
summary judgment motion.
II.
We review the grant of summary judgment de novo. See Puskas v. Delaware Cnty.,
56 F.4th 1088, 1093 (6th Cir. 2023). Summary judgment is appropriate where “the movant
shows that there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” FED. R. CIV. P. 56(a). In reviewing the motion, we view all
evidence and draw all reasonable inferences in the light most favorable to the nonmoving party.
Palma v. Johns, 27 F.4th 419, 427 (6th Cir. 2022).
III.
This appeal involves two questions. First, whether Defendants could punish H.K. for his
involvement with the Instagram account. And second, whether one of the school rules that
Defendants relied on to suspend H.K. was unconstitutionally vague. The First Amendment’s
1Kutchinski sued Superintendent Cairy and Principal Smith in both their official and individual capacities.

-- 5 of 13 --

No. 22-1748 Kutchinski v. Freeland Cmty. Sch. Dist. Page 6
Free Speech Clause controls the first question. The Fourteenth Amendment’s Due Process
Clause controls the second. We address each question in turn.
A.
Applicable to the States through the Fourteenth Amendment, the First Amendment
prohibits the government from “abridging the freedom of speech.” U.S. CONST. amend. I;
Grosjean v. Am. Press Co., 297 U.S. 233, 243 (1936). Specifically, the Free Speech Clause
protects “the right to speak freely and the right to refrain from speaking at all.” Wooley v.
Maynard, 430 U.S. 705, 714 (1977). Though broadly phrased, the freedom of speech is not
unlimited. For example, “[e]xpression, whether oral or written or symbolized by conduct, is
subject to reasonable time, place, or manner restrictions.” Clark v. Cmty. for Creative Non-
Violence, 468 U.S. 288, 293 (1984). The schoolhouse is one such restriction. Although students
do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse
gate,” Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506 (1969), their First
Amendment rights “are not automatically coextensive with the rights of adults in other settings,”
Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 682 (1986). As such, students’ free-speech
rights apply “in light of the special characteristics of the school environment.” Tinker, 393 U.S.
at 506.
The Supreme Court has outlined four categories of student speech that schools may
regulate: (1) indecent, offensively lewd, or vulgar speech uttered during a school assembly on
school grounds, see Fraser, 478 U.S. at 683–85; (2) speech during school or at a school-
sponsored event that schools “reasonably regard as promoting illegal drug use,” see Morse v.
Frederick, 551 U.S. 393, 408 (2007); (3) “speech in school-sponsored expressive activities” if
the schools’ “actions are reasonably related to legitimate pedagogical concerns,” see Hazelwood
Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 273 (1988); and (4) on-campus and some off-campus
speech that “materially disrupts classwork or involves substantial disorder or invasions of the
rights of others,” see Tinker, 393 U.S. at 513; Mahanoy Area Sch. Dist. v. B.L. ex rel. Levy, 141
S. Ct. 2038, 2045 (2021). Because this case involves off-campus speech, it implicates the fourth
category.

-- 6 of 13 --

No. 22-1748 Kutchinski v. Freeland Cmty. Sch. Dist. Page 7
Mahanoy guides our analysis. In Mahanoy, a high-school student who was passed over
for her school’s varsity cheerleading team reacted by posting on Snapchat with a caption that
contained “vulgar language and gestures criticizing both the school and the school’s cheerleading
team.” Id. at 2042–43. The student made the post over the weekend while she was not at school.
Id. at 2043. The school later discovered the post and suspended her from the junior varsity
cheerleading squad. See id. The Court found that the suspension violated the student’s free-
speech rights. See id.
Although a “school’s regulatory interests remain significant in some off-campus
circumstances,” such as “serious or severe bullying or harassment targeting particular individuals
[or] threats aimed at teachers or other students,” schools do not have the same authority to
regulate off-campus speech as they do on-campus speech. Id. at 2045. Mahanoy identified three
features of off-campus speech that “diminish the strength of the unique educational
characteristics that might call for special First Amendment leeway.” Id. at 2046.
First, for off-campus speech, the school rarely stands in loco parentis. Id. “The doctrine
of in loco parentis treats school administrators as standing in the place of students’ parents under
circumstances where the children’s actual parents cannot protect, guide, and discipline them.”
Id. Thus, “off-campus speech will normally fall within the zone of parental, rather than school-
related, responsibility.” Id. Second, off-campus regulations, coupled with on-campus
regulations, cover “all the speech a student utters during the full 24-hour day.” Id. “That means
courts must be more skeptical of a school’s efforts to regulate off-campus speech, for doing so
may mean the student cannot engage in that kind of speech at all.” Id. Third, “the school itself
has an interest in protecting a student’s unpopular expression, especially when the expression
takes place off campus.” Id. American democracy works only if we protect the “marketplace of
ideas.” Id. “That protection must include the protection of unpopular ideas, for popular ideas
have less need for protection.” Id. “[T]hese three features of much off-campus speech mean that
the leeway the First Amendment grants to schools in light of their special characteristics is
diminished.” Id.
As Justice Alito’s concurrence points out, we can view a school’s ability to regulate off-
campus speech on a spectrum. At one end of the spectrum, schools can probably regulate

-- 7 of 13 --

No. 22-1748 Kutchinski v. Freeland Cmty. Sch. Dist. Page 8
“speech that takes place during or as part of what amounts to a temporal or spatial extension of
the regular school program, e.g., online instruction at home, assigned essays or other homework,
and transportation to and from school.” Id. at 2054 (Alito, J., concurring). At the other end of
the spectrum, schools generally cannot regulate “speech that is not expressly and specifically
directed at the school, school administrators, teachers, or fellow students and that addresses
matters of public concern[.]” Id. at 2055 (Alito, J., concurring). The middle of the spectrum
includes “speech that criticizes or derides school administrators, teachers, or other staff
members” or “involves criticism or hurtful remarks about other students.” Id. at 2057 (Alito, J.,
concurring).
The student speech at issue here involves serious or severe harassment of three teachers
and a Freeland student. See id. at 2045 (majority opinion). Therefore, Defendants could regulate
the speech and discipline H.K. so long as he bore some responsibility for the speech and the
speech substantially disrupted classwork (or Defendants reasonably believed the speech would
disrupt classwork). See id. at 2052 (Alito, J., concurring) (“[A] school must have the authority to
protect everyone on its premises, and therefore schools must be able to prohibit threatening and
harassing speech.”).
1.
Whether H.K. was responsible for the subject speech. To recap, H.K. created an
Instagram account mimicking Schmidt and made one innocuous post on the account. Hours after
creating the account, H.K. provided the account’s log-in information to K.L. and L.F. so that
they could post on the account. K.L. and L.F. made the incendiary posts and, in fact, K.L. told
H.K. when K.L. was posting on the account. H.K. joked with K.L. and L.F. about their posts and
accepted requests to follow the account.
We have not had the occasion to address when one student can be held responsible for the
speech of others, but some of our sister circuits have. In Doe v. Hopkinton Public Schools, after
a high school disciplined eight students on a hockey team for bullying one of their teammates,
two of the students sued, arguing that the discipline violated their free-speech rights because they
were not active participants in the bullying. 19 F.4th 493, 498, 507 (1st Cir. 2021). The Doe

-- 8 of 13 --

No. 22-1748 Kutchinski v. Freeland Cmty. Sch. Dist. Page 9
court found that the two students’ derogatory comments in a Snapchat group conversation about
the bullied student “were causally connected to the direct bullying because they encouraged
other group members to continue” the bullying. Id. at 505–07. As the Doe court aptly observed:
“Children often bully as a group. The children who stand up on the sidewalk and cheer as one of
their friends shakes down a smaller student for his lunch money may not be as culpable, but they
are not entirely blameless.” Id. at 507 (citation omitted).
Similarly, in Chen ex rel. Chen v. Albany Unified School District, a student sued after a
high school disciplined the student for “liking” and commenting on Instagram posts about other
students that were highly insulting or racist. 56 F.4th 708, 711–12 (9th Cir. 2022). Because the
student “egg[ed] on a bully who torment[ed] classmates,” the Chen court found that the
student was an “affirmative participa[nt] in what ended up . . . as abusive harassment targeted at
particular students.” Id. at 723; see also Kowalski v. Berkeley Cnty. Schs., 652 F.3d 565, 567,
572–74 (4th Cir. 2011) (upholding the suspension of a student who created a MySpace page to
bully another student and subsequently commented on friends’ posts which made derogatory
comments about the student).
Like the First, Fourth, and Ninth Circuits, we hold that when a student causes, contributes
to, or affirmatively participates in harmful speech, the student bears responsibility for the
harmful speech. And because H.K. contributed to the harmful speech by creating the Instagram
account, granting K.L. and L.F. access to the account, joking with K.L. and L.F. about their
posts, and accepting followers, he bears responsibility for the speech related to the Instagram
account.
Kutchinski disagrees and makes two arguments. First, Kutchinski argues that Section
230 of the Communications Decency Act, 47 U.S.C. § 230, bars Defendants from disciplining
H.K. for the posts made by K.L. and L.F. This is incorrect. Under § 230(c)(1), “[n]o provider or
user of an interactive computer service shall be treated as the publisher or speaker of any
information provided by another information content provider.” To the extent § 230 applies, we
do not treat H.K. as the “publisher or speaker” of the posts made by K.L. and L.F. Instead, we
have found that H.K. contributed to the harmful speech through his own actions.

-- 9 of 13 --

No. 22-1748 Kutchinski v. Freeland Cmty. Sch. Dist. Page 10
Second, Kutchinski argues that disciplining H.K. for the posts emanating from the
Instagram account violates H.K.’s First Amendment freedom-of-association rights. “The First
Amendment . . . restricts the ability of the State to impose liability on an individual solely
because of his association with another.” NAACP v. Claiborne Hardware Co., 458 U.S. 886,
918–19 (1982). “The right to associate does not lose all constitutional protection merely because
some members of the group may have participated in conduct or advocated doctrine that itself is
not protected.” Id. at 908. But Defendants did not discipline H.K. because he associated with
K.L. and L.F. They determined that H.K. jointly participated in the wrongful behavior. Thus,
Defendants did not impinge on H.K.’s freedom-of-association rights.
2.
Substantial disruption. Having determined that H.K. bears responsibility for the harmful
speech, we next consider whether the subject speech caused, or had the potential to cause,
substantial disruption at Freeland. Substantial disruption is a “demanding standard.” Mahanoy,
141 S. Ct. at 2047–48. To justify barring speech, a school must “show that its action was caused
by something more than a mere desire to avoid the discomfort and unpleasantness that always
accompany an unpopular viewpoint.” Tinker, 393 U.S. at 509. “[U]ndifferentiated fear or
apprehension . . . is not enough to overcome the right to freedom of expression.” Id. at 508.
That said, “Tinker does not require disruption to have actually occurred.” Lowery v.
Euverard, 497 F.3d 584, 593 (6th Cir. 2007). “Nor does Tinker ‘require certainty that disruption
will occur.’” Id. at 592 (quoting Pinard v. Clatskanie Sch. Dist. 6J, 467 F.3d 755, 767 n.17 (9th
Cir. 2006)). Instead, we must decide whether Defendants reasonably forecast that the posts from
the Instagram account “would cause material and substantial disruption to schoolwork and
school discipline.” See Barr v. Lafon, 538 F.3d 554, 565 (6th Cir. 2008). “The rationale for this
standard lies in the fact that requiring evidence of disruption caused by the banned speech would
place ‘school officials . . . between the proverbial rock and hard place: either they allow
disruption to occur, or they are guilty of a constitutional violation.’” Id. (quoting Lowery,
497 F.3d at 596) (alteration in original).

-- 10 of 13 --

No. 22-1748 Kutchinski v. Freeland Cmty. Sch. Dist. Page 11
Defendants reasonably forecasted that a fake Instagram account that impersonated a
Freeland teacher and directed sexual and violent posts at three Freeland teachers and a student
would substantially disrupt normal school proceedings. When school resumed after the
weekend, Principal Smith tried to get out ahead of the anticipated disruptions by investigating
the account’s origins throughout the school day. And, in fact, one could reasonably argue that
actual disruption occurred. A student saw one of the targeted teachers crying in one of her
classes. Students whispered about the posts during the day with each other. Multiple teachers
reported disruptions in their classes. See Mahanoy, 141 S. Ct. at 2052–53 (Alito, J., concurring)
(“An effective instructional atmosphere could not be maintained in a school, and good teachers
would be hard to recruit and retain, if students were free to abuse or disrespect them.”).
Interestingly, Kutchinski suggests that Principal Smith’s investigation of the Instagram
account during the school day caused the disruption. But because Principal Smith reasonably
believed that disruption would take place, she was permitted to take steps to thwart the
disruption. See Barr, 538 F.3d at 565.
“[S]chool officials need a degree of flexible authority to respond to disciplinary
challenges.” Morse, 551 U.S. at 428 (Breyer, J. concurring in the judgment in part and
dissenting in part). Courts thus provide educators a high degree of deference in the exercise of
their professional judgment lest they “substitute their own notions of sound educational policy
for those of the school authorities which they review.” Bd. of Educ. of Hendrick Hudson Cent.
Sch. Dist. v. Rowley, 458 U.S. 176, 206 (1982); see Safford Unified Sch. Dist. No. 1 v. Redding,
557 U.S. 364, 377 (2009).
Defendants did not violate H.K.’s free-speech rights by disciplining him. The district
court properly granted summary judgment to Defendants on Kutchinski’s First Amendment
claim.
B.
Kutchinski also asserts that even if H.K.’s suspension did not violate H.K.’s free-speech
rights, the suspension was still improper because Defendants relied on an unconstitutionally
vague rule in the Freeland Middle/High School Student Handbook as the basis for the

-- 11 of 13 --

No. 22-1748 Kutchinski v. Freeland Cmty. Sch. Dist. Page 12
suspension. The Fourteenth Amendment prohibits the States from depriving “any person of life,
liberty, or property, without due process of law.” U.S. CONST. amend. XIV, § 1. “[T]he State is
constrained to recognize a student’s legitimate entitlement to a public education as a property
interest which is protected by the Due Process Clause and which may not be taken away for
misconduct without adherence to the minimum procedures required by that Clause.” Goss v.
Lopez, 419 U.S. 565, 574 (1975). But “maintaining security and order in the schools requires a
certain degree of flexibility in school disciplinary procedures.” New Jersey v. T.L.O., 469 U.S.
325, 340 (1985). “Given the school’s need to be able to impose disciplinary sanctions for a wide
range of unanticipated conduct disruptive of the educational process, the school disciplinary
rules need not be as detailed as a criminal code which imposes criminal sanctions.” Fraser,
478 U.S. at 686.
A school’s policy is unconstitutionally vague “when it either (1) fails to inform ordinary
people what conduct is prohibited, or (2) allows for arbitrary and discriminatory enforcement.”
Meriwether v. Hartop, 992 F.3d 492, 517–18 (6th Cir. 2021) (citing Kolender v. Lawson, 461
U.S. 352, 357 (1983)). The analysis depends on the context. For example, “[t]here is
substantially more room for imprecision in regulations bearing only civil, or employment,
consequences, than would be tolerated in a criminal code.” Id. at 518 (citation and quotation
marks omitted). Moreover, “a plaintiff who engages in some conduct that is clearly proscribed
cannot complain of the vagueness of the law as applied to the conduct of others.” Id. (quoting
Holder v. Humanitarian L. Project, 561 U.S. 1, 18–19 (2010)).
Kutchinski challenges Rule 10 of the Handbook, which states that “[s]tudents guilty of
gross misbehavior, persistent disobedience or having habits detrimental to the school will be
suspended or excluded from [the school].” R. 51-17, PageID 1082. According to Kutchinski,
Rule 10 is unconstitutionally vague because a prohibition on “gross misbehavior fails to give
students of ordinary intelligence the reasonable opportunity to know what is prohibited.”
The Oxford English Dictionary defines misbehavior as “improper conduct.”
Misbehavior, OXFORD ENGLISH DICTIONARY (3d ed. 2022). The same dictionary defines gross
as “flagrant” and “[g]laring.” Gross, OXFORD ENGLISH DICTIONARY (3d ed. 2022). Thus, a

-- 12 of 13 --

No. 22-1748 Kutchinski v. Freeland Cmty. Sch. Dist. Page 13
student engages in gross misbehavior when his actions constitute flagrant or glaring improper
conduct. The conduct at issue fits the bill.
“The root of the vagueness doctrine is a rough idea of fairness. It is not a principle
designed to convert into a constitutional dilemma the practical difficulties in drawing [school
policies.]” Colten v. Kentucky, 407 U.S. 104, 110 (1972); see Green Party of Tenn. v. Hargett,
700 F.3d 816, 825 (6th Cir. 2012). There is certainly some imprecision or subjectivity as to what
constitutes “gross misbehavior.” But schools are not held to the utmost specificity in drafting
their disciplinary rules. See Fraser, 478 U.S. at 686 (finding that a school rule barring “obscene”
language did not violate a student’s due-process rights); Ward v. Rock Against Racism, 491 U.S.
781, 794 (1989) (noting that “perfect clarity and precise guidance have never been required even
of regulations that restrict expressive activity”). More imprecise or subjective prohibitions have
survived our review. See Fowler v. Bd. of Educ. of Lincoln Cnty., 819 F.2d 657, 665–66 (6th
Cir. 1987) (finding a statute proscribing “conduct unbecoming a teacher” was not
unconstitutionally vague). Given this latitude, Rule 10 is not unconstitutionally vague and the
district court did not err in granting Defendants’ motion for summary judgment and denying
Kutchinski’s motion for partial summary judgment on the due-process claim.
IV.
For the aforementioned reasons, we AFFIRM the district court’s judgment.

-- 13 of 13 --