J.s., a minor, through her parents; TERRY SNYDER; STEVEN SNYDER v. Blue Mountain School District

Honorable Paul S. Diamond, United States District*
Judge for the Eastern District of Pennsylvania, sitting by
designation.
PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 08-4138
J.S., a minor, through her parents;
TERRY SNYDER; STEVEN SNYDER,
Appellants
v.
BLUE MOUNTAIN SCHOOL DISTRICT;
JOYCE ROMBERGER; JAMES McGONIGLE
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. No. 07-cv-00585)
District Judge: Honorable James M. Munley
Argued June 2, 2009
Before: FISHER and CHAGARES, Circuit Judges,
and DIAMOND, District Judge.*

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(Filed: February 4, 2010)
Mary E. Kohart
Aliceson K. Littman
Tara S. Sarosiek
Drinker, Biddle & Reath
18th & Cherry Streets
One Logan Square
Philadelphia, PA 19103
Mary Catherine Roper (Argued)
American Civil Liberties Union
of Pennsylvania
P.O. Box 40008
Philadelphia, PA 19106
Witold J. Walczak
American Civil Liberties Union
313 Atwood Street
Pittsburgh, PA 15213
Counsel for Appellants
Jonathan P. Riba (Argued)
Sweet, Stevens, Katz & Williams
331 East Butler Avenue
P.O. Box 5069
New Britain, PA 18901
Counsel for Appellees
Robert D. Richards
Penn State University

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201F Carnegie Building
University Park, PA 16802
Counsel for Amicus Appellant
OPINION OF THE COURT
FISHER, Circuit Judge.
This appeal presents a challenge to J.S.’s suspension
from Blue Mountain Middle School after she created from her
home computer a MySpace.com Internet profile featuring her
principal, James McGonigle. The profile did not state
McGonigle’s name, but included his photograph from the
website of Blue Mountain School District (the “School
District”), as well as profanity-laced statements insinuating that
he was a sex addict and pedophile. On appeal, J.S. and her
parents assert that the District Court erred in granting summary
judgment in favor of the School District, arguing that the School
District violated J.S.’s First Amendment free speech rights by
punishing her for creating the profile; the School District
violated J.S.’s parents’ fundamental right to direct the
upbringing of their child by regulating her out-of-school
conduct; Pennsylvania law does not permit school districts to
discipline students for out-of-school conduct; and the School
District’s disciplinary and computer-use policies were
unconstitutionally vague and overbroad. Because we believe
school authorities could reasonably have forecasted a substantial
disruption of or material interference with the school as a result

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MySpace.com is “a social networking platform that1
allows Members to create unique personal profiles online in
order to find and communicate with old and new friends.”
T e r m s & C o n d i t i o n s , M y S p a c e . c o m ,
http://www.myspace.com/index.cfm?fuseaction=misc.terms
(last visited Aug. 17, 2009).
4
of the MySpace profile, as defined by Tinker v. Des Moines
Independent Community School District, 393 U.S. 503 (1969),
we conclude that the School District did not violate J.S.’s First
Amendment free speech rights by disciplining her for creating
the profile. We also reject J.S.’s additional arguments and,
therefore, we will affirm.
I.
A. Factual History
In Spring 2007, J.S. was a fourteen-year-old eighth
grader at Blue Mountain Middle School (the “Middle School”)
in Orwigsburg, Pennsylvania, where she lived with her two
parents, Terry and Steven Snyder (the “Snyders”). She was an
honor roll student and had faced discipline at school only in the
form of two or three dress code violations, the most recent of
which occurred on February 20, 2007.
On Sunday, March 18, 2007, J.S. and her friend K.L.,
another eighth grader at the Middle School, created a fictitious
profile on MySpace.com from J.S.’s house using a computer
belonging to J.S.’s parents. The profile’s direct URL was1

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This appears to be a reference to McGonigle’s wife,2
Debra Frain, a guidance counselor at the Middle School. Also,
next to McGonigle’s picture on the profile is a quote that reads
as follows: “fraintrain- it’s a slow ride but you’ll get there
eventually.” (App. at 38.)
5
http://www.myspace.com/kidsrockmybed. Although J.S. and
K.L. were at their respective houses, the two girls
communicated over AOL Instant Messenger, and took turns
adding to the profile from their separate locations. The profile
featured McGonigle’s photograph, which the students had
copied and pasted from the website of Blue Mountain School
District (the “School District”). The profile did not identify
McGonigle by name, school, or location, but instead created the
page to appear to be a self-portrayal of a middle school principal
named “m-hoe=].” The profile’s owner described himself as a
married bisexual forty-year-old man, a Virgo, and a “[p]roud
parent” who lived in Alabama with his wife and child. His
“Interests” section read as follows:
General detention. being a tight ass. riding
the fraintrain. spending time with2
my child (who looks like a gorilla).
baseball.my golden pen. fucking in
my office. hitting on students and
their parents.
Music i love all kinds. favorite is techno.
Television almost anything. i mainly watch-

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the playboy channel on directv.
OH YEAH BITCH!
Heroes myself. ofcourse.
(App. at 38 (all text and formatting as in original).) Another
section, entitled “About me,” stated:
HELLO CHILDREN
yes. it’s your oh so wonderful, hairy, expressionless,
sex addict, fagass, put on this world with a small dick
PRINCIPAL
I have come to myspace so i can pervert the minds of other
principal’s to be just like me. I know, I know, you’re all
thrilled
Another reason I came to my space is because- I am
keeping an eye on you students
(who i care for so much)
For those who want to be my friend, and aren’t in my school
I love children, sex (any kind), dogs, long walks on the
beach, tv, being a dick head, and last but not least my
darling wife who looks like a man (who satisfies my needs)
MY FRAINTRAIN
so please, feel free to add me, message me whatever
Id. (all text and formatting as in original). J.S. testified before
the District Court at a preliminary injunction hearing that she
created this profile because she was “mad” at McGonigle due to
the way he treated her during her February 20, 2007 dress code
violation, stating that she believed he handled the situation
inappropriately and yelled at her unnecessarily, and that the

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profile was simply a joke between her and her friends. She
stated that she included in the profile things she had heard other
students say about McGonigle. At her later deposition, J.S.
testified that she and K.L. created the profile thinking “it would
be comical” because “it’s outrageous,” and not really for any
other reason.
J.S. and K.L. initially set the MySpace profile as
“public,” which made it accessible by anyone who knew the
URL or found it by searching MySpace for a term the profile
contained. At school on Monday, March 19, 2007, the day after
the profile was created, numerous friends at the Middle School
approached J.S. to talk about the profile, generally saying they
found it funny. J.S. testified that she made the profile “private”
after school that evening, so it could be viewed only by those
people whom she and K.L. invited to be “m-hoe=]’s” MySpace
online friends. The two students then granted “friend” status to
approximately twenty-two other students. Because the Middle
School computers block access to MySpace, students could have
viewed the profile only from an off-campus location.
McGonigle testified that he first learned of the profile on that
Monday.
On the morning of Tuesday, March 20, 2007, a student,
B, approached McGonigle, informed him of the profile, and told
him it contained disturbing comments about him. McGonigle
asked B to try to find out who created the profile, and afterwards
attempted to find the profile himself from his office computer,
which did not block access to MySpace. Unable to locate the
profile, McGonigle called MySpace, Inc., which told him it
could not direct him to a specific profile without the URL. By

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Tuesday afternoon, B returned to McGonigle and advised him
that J.S. had created the profile. McGonigle asked B to bring
him a printout of the MySpace profile.
B brought a printed copy of the profile to McGonigle at
the Middle School on the morning of Wednesday, March 21,
2007. To the best of McGonigle’s knowledge, this was the only
copy of the profile that entered the school. Because the printout
contained the profile’s URL, McGonigle apparently was able to
open and view the profile directly from the MySpace website,
despite the students having made it private. J.S. was absent
from school on that particular day, so McGonigle was unable to
discuss the profile with her at that time. McGonigle then
approached Superintendent Joyce Romberger and Director of
Technology Susan Schneider-Morgan. The three met for
approximately ten or fifteen minutes, reviewed the profile, and
concluded that it violated the School District’s Acceptable Use
Policy (“AUP”) because it violated copyright laws in
misappropriating McGonigle’s photograph from the School
District’s website without permission. See id. at 39-55.
Romberger and Schneider-Morgan did not discuss whether the
statements in the profile were true. Although Romberger was
required to report any misconduct by the principal to the Board
of School Directors, she did not disclose any of the allegations
in the profile because she believed it consisted of “lies” and
“malicious comments” made by students angry at McGonigle.
McGonigle next showed the profile to two guidance
counselors, Debra Frain (his wife) and Michelle Guers. He
contacted MySpace, Inc. a second time to inquire whether he
could learn the identity of the profile’s creator based on the

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URL, and MySpace informed him that he could not, absent a
court order. By the end of Wednesday, McGonigle sought to
discipline the students responsible for the profile’s creation and
had decided that, in making false accusations about a school
staff member, the profile was a level-four infraction under the
Middle School’s discipline code, as contained in the 2006 –
2007 Student – Parent Handbook (the “Handbook”). Id. at 65-
66. McGonigle testified that he did not believe the profile
launched accusations against him, but rather that it was an
imposter profile, purporting to be created by him.
On Thursday, March 22, 2007, J.S. returned to school and
McGonigle called her and K.L. to his office to meet with him
and Guers regarding the profile. Although J.S. initially denied
creating the profile, she ultimately admitted her role.
McGonigle explained to the girls that he “was very upset and
very angry, hurt, and [he] c[ould]n’t understand why [they] did
this to [him] and [his] family,” and “told them that [he] would
be looking to take legal action against them and their
famil[ies].” J.S. and K.L. remained in McGonigle’s office while
he contacted their parents and waited for both of their mothers
to arrive at the school. McGonigle met with J.S. and her
mother, Terry Snyder (“Snyder”), and showed her the profile.
He informed them that he was punishing J.S. and K.L. with a
ten-day out-of-school suspension, which prohibited attendance
at school functions, and again threatened legal action against
them. J.S. and Snyder apologized to McGonigle, and J.S.
followed this in-person apology with a subsequent apology letter
to McGonigle and Frain.

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Shortly after J.S. and Snyder left his office, McGonigle
called MySpace, Inc., provided it with the appropriate URL, and
requested that it promptly remove the profile, which it did.
McGonigle contacted Romberger to inform her of the
punishment he imposed on J.S. and K.L. and, despite her ability
to overrule his disciplinary decisions, she concurred with his
decision to suspend the students for ten days. Next, McGonigle
contacted the police to look into a criminal action against J.S.
and K.L. The local police referred him to the state police, and
he invited a state police officer to the Middle School to look at
the profile. The officer told McGonigle he could press criminal
harassment charges, but that they would likely be dropped, and
McGonigle then declined to press charges, although he did file
a formal report. The officer asked McGonigle whether he
wanted him to call J.S., K.L., and their parents to the police
station to “let them know how serious [the situation] was.”
McGonigle responded in the affirmative and, on Friday, March
23, 2007, the officer summoned J.S., K.L., and their mothers to
the police station to discuss the profile. The same day,
McGonigle sent J.S.’s parents a disciplinary notice stating that
J.S. had been suspended for ten days. The next week,
Romberger denied Snyder’s request to overrule the suspension,
and J.S. apparently never appealed her suspension to the Board
of School Directors. During the ten-day suspension, J.S.’s
school assignments were brought to her home. Snyder testified
that, in addition to the suspension, the Snyders punished J.S.
“for a very long time” for her role in creating the profile.
Because our legal analysis turns on the interaction
between the profile and the Middle School, we will detail the
relevant facts regarding the effect of the profile on the school.

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Before the District Court, the School District argued that the
profile disrupted school because (1) two teachers, Randall
Nunemacher and Angela Werner, had to quiet their classes
while students talked about the profile; (2) one guidance
counselor had to proctor a test so another administrator could sit
in on the meetings between McGonigle, J.S., and K.L.; and
(3) two students decorated J.S. and K.L.’s lockers to welcome
them back upon their return to school following the suspension,
and students congregated in the hallway at that time.
Specifically, Nunemacher testified that on Thursday,
March 22, 2007, when McGonigle called J.S. and K.L. into his
office, a group of six or seven students disrupted his second
period eighth-grade Algebra class by talking about the profile
and the girls’ suspensions during their unstructured classroom
work time and by continuing to talk after he told them several
times to stop. Nunemacher quieted them nicely two or three
times, and finally, after he raised his voice, the talking stopped;
the entire incident lasted five or six minutes. Nunemacher also
testified that he overheard at least two students talking about the
profile on Wednesday, March 21, 2007, in his sixth period class.
The students talked for a minute or two, and then quieted down
once he asked them to stop talking. Nunemacher stated that he
typically asks students to quiet down during class about once a
week. In addition to these two incidents, Nunemacher reported
that he heard general “rumblings” that week indicating that
students were discussing the profile, but he did not yet fully
understand the situation when he overheard the comments, and
could not give any specific details about these rumblings.

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Werner testified that during her Skills for Adolescents
class, some eighth-grade girls approached her after the lesson
was finished to tell her about the profile. They mentioned that
they were concerned about some specific comments in the
profile regarding McGonigle and his family. Additionally,
Guers was scheduled to administer a makeup test on the
morning McGonigle met with J.S., K.L., and their mothers, but
had to sit in on the meetings with McGonigle and the girls
instead, and therefore asked Frain to supervise the testing for
twenty-five to thirty minutes. Frain then had to cancel some
student counseling appointments in order to do so. The students
with whom Frain cancelled her meetings would have proceeded
to their normal classes instead, and rescheduled these meetings
with her.
McGonigle also testified that, upon J.S. and K.L.’s return
from suspension, some students decorated the girls’ lockers to
welcome them back with “construction paper with confetti and
ribbons and bows and stuff like that,” and the decorations stated
“congratulations.” McGonigle said these locker decorations
“created quite a buzz and a stir in the eighth grade hallway with
about 20 to 30 students in a circle that had to be broken up by
teachers.” As a result, he “severely reprimanded” the two
students who had decorated the lockers, and called their parents
to inform them of the incident. These two students told
McGonigle they had decorated the lockers to “congratulat[e J.S.
and K.L.] on what they did.” McGonigle stated that the students
who decorated the lockers “didn’t mean to hurt me, but they
didn’t think it was right, the fact that I suspended [J.S. and
K.L.].” The students who merely congregated in the hall were
not reprimanded. Finally, McGonigle testified that he noticed

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a severe deterioration in discipline in the Middle School,
especially among the eighth graders, following the creation of
the profile, his corresponding discipline of J.S. and K.L., and
J.S. and the Snyders’ filing of this lawsuit. He attributed this
change to a new culture of students rallying against the
administration. McGonigle also mentioned that he had
stress-related health problems as a result of the profile and this
litigation.
B. Procedural History
J.S. and her parents filed this 42 U.S.C. § 1983 civil
rights action on March 28, 2007, against the School District,
Superintendent Romberger, and Principal McGonigle. They
argued that the ten-day suspension violated J.S.’s First
Amendment free speech rights, her due process rights, her rights
under Pennsylvania state law, and her parents’ Fourteenth
Amendment substantive due process rights. J.S. and her parents
filed a motion for a temporary restraining order and/or
preliminary injunction, which the District Court denied on
March 29, 2007. J.S. ex rel. Snyder v. Blue Mountain Sch. Dist.,
No. 3:07cv585, 2007 WL 954245 (M.D. Pa. Mar. 29, 2007).
Following discovery, both parties moved for summary
judgment on November 21, 2007. In January 2008, J.S. and the
Snyders stipulated to the dismissal of McGonigle and
Romberger as defendants in the suit. On September 11, 2008,
the District Court denied summary judgment as to J.S. and the
Snyders, but granted it as to the School District. J.S. ex rel.
Snyder v. Blue Mountain Sch. Dist., No. 3:07cv585, 2008 WL
4279517, *9 (M.D. Pa. Sept. 11, 2008). The District Court

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acknowledged that J.S. created the profile at home, id. at *1, and
determined that it did not substantially and materially disrupt
school so as to satisfy the Tinker standard, although it did cause
some disruption, id. at *4, *7. However, the District Court
ultimately held that, based on the facts of the case and “because
the lewd and vulgar off-campus speech had an effect
on-campus,” the School District did not violate J.S.’s First
Amendment rights by disciplining her. Id. at *7-8. The District
Court rejected J.S.’s additional claims, holding that, because the
School District’s discipline was appropriate and J.S.’s First
Amendment claim failed, her other claims must also fail. Id. at
*8-9. J.S. and her parents filed a timely notice of appeal.
II.
The District Court had jurisdiction under 28 U.S.C.
§§ 1331 and 1343. We exercise jurisdiction over the instant
appeal pursuant to 28 U.S.C. § 1291.
Our review of the District Court’s grant of summary
judgment is plenary, and we apply the same standard as the
District Court. See, e.g., Busch v. Marple Newtown Sch. Dist.,
567 F.3d 89, 95 n.7 (3d Cir. 2009); Petruzzi’s IGA
Supermarkets, Inc. v. Darling-Del. Co., 998 F.2d 1224, 1230 (3d
Cir. 1993). Summary judgment should be granted “if the
pleadings, the discovery and disclosure materials on file, and
any affidavits show that there is no genuine issue as to any
material fact and that the [School District] is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(c). “In
reviewing the District Court’s grant of summary judgment, we
view the facts in a light most favorable to the nonmoving party,”

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which, here, is J.S. Combs v. Homer-Ctr. Sch. Dist., 540 F.3d
231, 235 n.5 (3d Cir. 2008) (internal quotation marks omitted).
III.
A. First Amendment Freedom of Speech
At issue in the instant appeal is whether the School
District’s punishment of J.S. for her role in creating the
MySpace profile offends the free speech protections of the First
Amendment. We thus begin with a brief overview of the four
Supreme Court cases that provide the applicable body of law for
determining when school administrators can restrict student
speech although, notably, the Court has not yet spoken on the
relatively new area of student internet speech. In outlining the
overarching principles regarding student speech, the Court has
noted that “[i]t can hardly be argued that either students or
teachers shed their constitutional rights to freedom of speech or
expression at the schoolhouse gate.” Tinker, 393 U.S. at 506.
Nevertheless, “the Court has repeatedly emphasized the need for
affirming the comprehensive authority of the States and of
school officials, consistent with fundamental constitutional
safeguards, to prescribe and control conduct in the schools.” Id.
at 507.
In Tinker, school officials learned of some students’
plans to wear black armbands to express their objection to the
United States’ involvement in the war in Vietnam. Id. at 504.
In response, the officials adopted a policy that any student
wearing a black armband to school would be asked to remove it
and, if he refused, he would be suspended until he returned

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without the armband. Id. The Court, in response to the
students’ subsequent lawsuit, stated that wearing the armbands
was “closely akin to ‘pure speech’” entitled to First Amendment
protection, id. at 505-06, and also noted that this action espoused
a political opinion, id. at 510-11. Despite school officials
advancing prevention of disruption as their justification for the
armband policy, the Court explained that “[c]ertainly where
there is no finding and no showing that engaging in the
forbidden conduct would ‘materially and substantially interfere
with the requirements of appropriate discipline in the operation
of the school,’ the prohibition cannot be sustained.” Id. at 509
(quoting Burnside v. Byars, 363 F.2d 744, 749 (5th Cir. 1966)).
The Court then found that the record did not contain any facts
that indicated the wearing of the armbands “might reasonably
have led school authorities to forecast substantial disruption of
or material interference with school activities, [that] no
disturbances or disorders on the school premises in fact
occurred,” id. at 514, and the case did “not concern speech or
action that intrudes upon the work of the schools or the rights of
other students,” id. at 508-09. Therefore, it held that the policy
violated the students’ First Amendment free speech rights. Id.
at 514.
“Since Tinker, the Supreme Court has carved out a
number of narrow categories of speech that a school may restrict
even without the threat of substantial disruption.” Saxe v. State
Coll. Area Sch. Dist., 240 F.3d 200, 212 (3d Cir. 2001). First,
the Court created an exception in a case in which a high school
student delivered a speech full of “pervasive sexual innuendo”
in front of approximately six hundred high school students at an
in-school assembly while nominating another student for a

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student government position. Bethel Sch. Dist. No. 403 v.
Fraser, 478 U.S. 675, 677-78, 683 (1986). Following the
assembly, a school official notified the student that the school
considered his speech a violation of its rule prohibiting
“obscene, profane language,” suspended him for three days, and
removed his name from a list of candidates for student
graduation speaker. Id. at 678. The Court noted in its opinion
that “the constitutional rights of students in public school are not
automatically coextensive with the rights of adults in other
settings.” Id. at 682. Pointing out that the role of public
education is to “prepare pupils for citizenship in the Republic”
by “inculcat[ing] the habits and manners of civility,” id. at 681
(internal quotation marks omitted), the Court stated that “[t]he
First Amendment does not prevent the school officials from
determining that to permit a vulgar and lewd speech . . . would
undermine the school’s basic educational mission.” Id. at 685.
It then held that, even without engaging in a substantial
disruption analysis, “it was perfectly appropriate for the school
to disassociate itself to make the point to the pupils that vulgar
speech and lewd conduct is wholly inconsistent with the
‘fundamental values’ of public school education.” Id. at 685-86.
We have subsequently interpreted Fraser as establishing that
“there is no First Amendment protection for ‘lewd,’ ‘vulgar,’
‘indecent,’ and ‘plainly offensive’ speech in school.” Saxe, 240
F.3d at 213; accord Sypniewski, Jr. v. Warren Hills Reg’l Bd. of
Educ., 307 F.3d 243, 253 (3d Cir. 2002).
The Supreme Court further limited the application of the
First Amendment in the context of student speech in a case
involving a principal’s decision to withhold two pages of a high
school student-run newspaper from publication. Hazelwood

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Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 262-64 (1988). The
Court recognized that schools “are entitled to exercise greater
control” over speech that appears to be school-sponsored and
held that the Tinker substantial disruption standard does not
apply in such a scenario. Id. at 270-73. Thus, school officials
“do not offend the First Amendment by exercising editorial
control over . . . student speech in school-sponsored expressive
activities so long as their actions are reasonably related to
legitimate pedagogical concerns.” Id. at 273.
Finally, the Supreme Court recently explored whether a
principal violated a student’s First Amendment rights in forcing
him to take down a fourteen-foot banner, unfurled at a school-
sanctioned and school-supervised event, that read “BONG HiTS
4 JESUS.” Morse v. Frederick, 551 U.S. 393, 396-97 (2007).
The Court found that the principal reasonably believed the
banner was advocating the use of illegal drugs despite its
admittedly unclear language, noted schools’ important interest
in deterring illegal drug use by schoolchildren, and held that “a
principal may, consistent with the First Amendment, restrict
student speech at a school event, when that speech is reasonably
viewed as promoting illegal drug use.” Id. at 400-03, 407-10.
1. Student Speech
In the instant appeal, J.S. argues initially that the First
Amendment protects her speech, even if it was lewd and
offensive pursuant to Fraser, because it occurred entirely

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It is well-established that J.S.’s status as a minor does3
not affect her First Amendment rights. See Planned Parenthood
of Cent. Mo. v. Danforth, 428 U.S. 52, 74 (1976), overruled on
other grounds in part by Planned Parenthood of Se. Pa. v.
Casey, 505 U.S. 833 (1992) (“Constitutional rights do not
mature and come into being magically only when one attains the
state-defined age of majority. Minors, as well as adults, are
protected by the Constitution and possess constitutional
rights.”); Anspach v. City of Phila., Dep’t of Pub. Health, 503
F.3d 256, 261 (3d Cir. 2007) (same).
The District Court also stated that the profile contained4
“potentially illegal” speech, and both parties dispute on appeal
whether the profile consisted of criminal harassment or tortious
defamation under Pennsylvania law.
19
outside the Middle School. The First Amendment generally3
protects lewd, offensive, and vulgar speech outside the school
context. See Cohen v. California, 403 U.S. 15, 16, 25-26 (1971)
(holding that a state may not make the wearing of a jacket
bearing the words “Fuck the Draft” a criminal offense). But see
Fraser, 478 U.S. at 682 (“‘[T]he First Amendment gives a high
school student the classroom right to wear Tinker’s armband,
but not Cohen’s jacket.’” (quoting Thomas v. Bd. of Educ.,
Granville Cent. Sch. Dist., 607 F.2d 1043, 1057 (2d Cir. 1979)
(Newman, J., concurring))). The District Court characterized
the MySpace profile as “lewd and vulgar,” a finding J.S. does
not dispute, and we agree fully with this characterization. J.S.4
ex rel. Snyder, No. 3:07cv585, 2008 WL 4279517, at *7.
However, J.S. argues that the District Court erred in concluding

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We may affirm the District Court on alternate grounds,5
provided that the record supports the judgment. Rodriguez v.
Our Lady of Lourdes Med. Ctr., 552 F.3d 297, 303 (3d Cir.
2008); Storey v. Burns Int’l Sec. Servs., 390 F.3d 760, 761 n.1
(3d Cir. 2004).
20
that, because the profile was lewd and vulgar under Fraser and
had an effect on campus, McGonigle was free to discipline her
for its creation. See id. at *6-7. We decline today to decide
whether a school official may discipline a student for her lewd,
vulgar, or offensive off-campus speech that has an effect on-
campus because we conclude that the profile at issue, though
created off-campus, falls within the realm of student speech
subject to regulation under Tinker. Indeed, we have held5
previously that “[s]peech falling outside of [the narrow Fraser
and Kuhlmeier exceptions] is subject to Tinker’s general rule:
it may be regulated only if it would substantially disrupt school
operations or interfere with the right of others.” Saxe, 240 F.3d
at 214. Thus, we need not employ the two-step test the District
Court used to determine, first, whether the speech came on-
campus due to its effect on the Middle School and then, only if
factor one is satisfied, whether the School District infringed on
J.S.’s First Amendment rights in punishing her for creating the
profile. Instead, we proceed directly to a Tinker inquiry.
2. Substantial Disruption
Under Tinker, we must determine whether J.S.’s speech
created a significant threat of substantial disruption in the
Middle School. Tinker states that “conduct by the student, in

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We cannot accept the Dissent’s suggestion that Tinker’s6
“in class or out of it” language is intended to only allow school
discipline for those disruptions occurring on the school campus.
Electronic communication allows students to cause a substantial
disruption to a school’s learning environment even without
being physically present. We decline to say that simply because
the disruption to the learning environment originates from a
computer located off campus, the school should be left
powerless to discipline the student.
21
class or out of it [while still under school control] , which for6
any reason – whether it stems from time, place, or type of
behavior – materially disrupts classwork or involves substantial
disorder or invasion of the rights of others is, of course, not
immunized by the constitutional guarantee of freedom of
speech.” 393 U.S. at 513. However, this disruption must be
substantial because “undifferentiated fear or apprehension of
disturbance is not enough to overcome the right to freedom of
expression.” Id. at 508. School officials may not limit student
speech solely on account of a “mere desire to avoid the
discomfort and unpleasantness that always accompany an
unpopular viewpoint.” Id. at 509. Yet, school authorities need
not wait until a substantial disruption actually occurs in order to
curb the offending speech if they are able to “demonstrate any
facts which might reasonably have led [them] to forecast
substantial disruption of or material interference with school
activities.” Id. at 514. We have further clarified that “if a
school can point to a well-founded expectation of disruption –
especially one based on past incidents arising out of similar
speech – the restriction may pass constitutional muster.” Saxe,

-- 21 of 69 --

22
240 F.3d at 212; cf. Sypniewski, 307 F.3d at 253-57 (holding that
a school could not prohibit students from wearing a Jeff
Foxworthy “Top 10 reasons you might be a Redneck Sports
Fan” T-shirt under its racial harassment policy, which arose out
of earlier incidents of racial hostility at the school, because
school authorities failed to demonstrate that the language on the
shirts bore anything more than a “mere” or “general association”
with the earlier precipitating events as opposed to a “particular
and concrete basis” indicating the potential for future
disruption).
Our sister courts of appeals offer further support for the
notion that a school may meet its burden of showing a
substantial disruption through its well-founded belief that future
disruption will occur. See Doninger v. Niehoff, 527 F.3d 41, 51
(2d Cir. 2008) (characterizing as “misguided” the notion “that
Tinker requires a showing of actual disruption to justify a
restraint on student speech”); Lowery v. Euverard, 497 F.3d 584,
591-92, 596 (6th Cir. 2007) (“Tinker does not require school
officials to wait until the horse has left the barn before closing
the door. . . . [It] does not require certainty, only that the forecast
of substantial disruption be reasonable. . . . [As such, s]chool
officials have an affirmative duty to not only ameliorate the
harmful effects of disruptions, but to prevent them from
happening in the first place.”); LaVine v. Blaine Sch. Dist., 257
F.3d 981, 989 (9th Cir. 2001) (“Tinker does not require school
officials to wait until disruption actually occurs before they may
act. . . . [Thus, we look] to all of the circumstances confronting
the school officials that might reasonably portend disruption.”).

-- 22 of 69 --

23
Nevertheless, we balance this exception based on
substantial disruption or invasion of the rights of others against
the protected nature of off-campus student speech. See Morse,
551 U.S. at 405 (“Had Fraser delivered the same speech in a
public forum outside the school context, it would have been
protected.”); Fraser, 478 U.S. at 688 (Brennan, J., concurring)
(“If respondent had given the same speech outside of the school
environment, he could not have been penalized simply because
government officials considered his language to be
inappropriate . . . .”); Saxe, 240 F.3d at 216 n.11 (stating that the
notion that a school’s policy could be applied to students’ off-
campus speech “would raise additional constitutional
questions”).
3. Application of Law to the Facts of the Instant Case
The School District advances, and the District Court
focused on, specific examples of actual disruption that occurred
at the Middle School as a result of the profile, as elicited from
McGonigle’s, Nunemacher’s, and Werner’s deposition
testimony. Were we examining the facts merely for evidence of
a “substantial disruption of or material interference with school
activities” that had already taken place, see Tinker, 393 U.S. at
514, we would have no trouble concluding, as the District Court
did, that these incidents did not amount to a substantial
disruption of the Middle School sufficient to discipline the
students for their speech. The minor inconveniences associated
with the profile, including McGonigle’s meetings related to it,
students talking in class for a few minutes, and some school
officials rearranging their schedules to assist McGonigle, may
have resulted in some disruption, but certainly did not rise to a

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24
substantial one. It is also difficult to separate the effects that the
profile itself had on the school from the effects attributable to
McGonigle’s investigation of the profile and subsequent
punishment of J.S. and K.L.
However, the School District also argues that, given the
immediate impact of the profile on the Middle School, absent
McGonigle’s quick corrective actions to curb its effect, the
profile’s potential to cause a substantial disruption of the school
was reasonably foreseeable. It is apparent that the underlying
cause for McGonigle’s concern about the profile was its
particularly disturbing content, not a petty desire to stifle speech
critical of him, and we proceed with our analysis with this in
mind. Therefore, we are sufficiently persuaded that the profile
presented a reasonable possibility of a future disruption, which
was preempted only by McGonigle’s expeditious investigation
of the profile, which secured its quick removal, and his swift
punishment of its creators. We are especially concerned about
the profile’s blatant allusions to McGonigle engaging in sexual
misconduct, such as: the profile’s URL containing the phrase
“kidsrockmybed”; “m-hoe=]’s” interests including “fucking in
my office,” “hitting on students and their parents,” and “mainly
watch[ing] the playboy channel on directv”; and an “About me”
section in which “m-hoe=]” describes himself as a “sex addict,”
states “I have come to myspace so i [sic] can pervert the minds
of other principal’s [sic] to be just like me,” and says “I love
children[] [and] sex (any kind).” (App. at 38.) J.S. and K.L.
directly targeted McGonigle when they misappropriated his
photograph from the School District’s website by pasting it into
the profile, identifying “m-hoe=]” as a principal even though the
profile did not state his name, and focusing their “jokes” around

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25
“m-hoe=]’s” sexual proclivities, including activities clearly
inappropriate for a Middle School principal and illegal for any
adult. Moreover, the girls disseminated the profile and allowed
other students in the School District’s community (as well as
anyone else who came across it) to access and view the profile
freely initially, and subsequently allowed others to view the
profile by becoming MySpace friends with “m-hoe=].” We find
it doubtful that the connection between the profile’s sexual
innuendo and McGonigle’s role and duties as principal was lost
on J.S. and K.L. or their target audience of other students of the
Middle School and, in any event, it is not lost on us. The girls
embarrassed, belittled, and possibly defamed McGonigle. They
created the profile not as a personal, private, or anonymous
expression of frustration or anger, but as a public means of
humiliating McGonigle before those who knew him in the
context of his role as Middle School principal. Indeed, several
facts the School District elicited during depositions further
support our conclusion regarding the profile’s effect and its
potential for future disruption: Werner testified that some
eighth-grade girls approached her to express their concern about
some specific comments in the profile pertaining to McGonigle
and his family; B originally informed McGonigle of the profile
to convey that it contained disturbing comments about him; and,
most significantly, McGonigle testified that he noticed a severe
deterioration in discipline in the Middle School, and particularly
among the eighth graders, following the publication of the
profile and the punishment of J.S. and K.L.
Undoubtedly, students have made fun of or made
distasteful jokes about school officials, free from the
consequences of school punishment, either out-of-earshot or

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The Dissent contends this point is not supported by the7
record. Dissenting Op. at Part II.A, n.3. It is inevitable,
however, that as more students and parents learned of the
MySpace profile, greater disruption to the learning environment
would have taken place. There would have been greater concern
with McGonigle’s fitness to continue in his job. While
Superintendent Romberger, who knew McGonigle, may have
quickly concluded the profile was a series of lies, parents
unfamiliar with McGonigle almost certainly would have raised
26
outside the school context since the advent of our modern
educational system. However, due to the technological
advances of the Internet, J.S. and K.L. created a profile that
could be, and in fact was, viewed by at least twenty-two
members of the Middle School community within a matter of
days. Cf. Porter v. Ascension Parish Sch. Bd., 393 F.3d 608,
617-18 (5th Cir. 2004) (holding that a violent drawing concealed
in a student’s night stand for two years, and only inadvertently
taken to school by the student’s brother, removed the speech
from the realm of Tinker because it was not created on-campus
or directed at campus). Students discussed the profile in-school
and undoubtedly talked about it out-of-school as well. It is also
reasonable to infer that some students initiated conversation
about or shared the profile with their parents, or that parents
overheard their children discussing the profile. We find it just
as likely that students and parents inevitably would have begun
to question McGonigle’s demeanor and conduct at school, the
scope and nature of his personal interests, and his character and
fitness to occupy a position of trust with adolescent children, on
account of the profile’s contents. We thus cannot overlook the7

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questions about his supervision over their children. The time
spent by McGonigle and other school and district administrators
alleviating these concerns certainly would have been a
substantial disruption to the educational mission of the school.
The dissent blames the School District’s response to the
MySpace profile for the disruptions that did occur at the Middle
School. Whatever disruption that resulted from punishing the
students who created the profile was mild compared to the
substantial disruption that would have occurred when 50 or 100
students, as opposed to only 22, gained access to the profile and
parents, acting out of concern for their children’s safety
challenged McGonigle’s fitness.
We disagree with our dissenting colleague’s assertion8
that under our standard a school district could punish two
students “for using a vulgar remark to speak about their teacher
27
context of the lewd and vulgar language contained in the profile,
especially in light of the inherent potential of the Internet to
allow rapid dissemination of information. Accordingly, J.S.’s
argument for a strict application of Tinker, limited to the
physical boundaries of school campuses, is unavailing. See
Doninger, 527 F.3d at 48-49 (“‘[T]erritoriality is not necessarily
a useful concept in determining the limit of [school
administrators’] authority.’” (alteration in original) (quoting
Thomas, 607 F.2d at 1058 n.13)). Instead, we hold that off-
campus speech that causes or reasonably threatens to cause a
substantial disruption of or material interference with a school
need not satisfy any geographical technicality in order to be
regulated pursuant to Tinker.8

-- 27 of 69 --

at a private party.” Dissenting Op. at Part II.B. The dissent’s
hypothetical could be correct had we used Fraser’s vulgarity test
as the basis for this opinion. Because unlike the District Court
we rely on Tinker, not Fraser as the basis of our opinion, there
is a principled difference between the dissent’s hypothetical and
this case. Our opinion, reached by applying Tinker, only allows
school discipline when there is a significant risk of substantial
disruption at the school. Since we are expressly not applying
Fraser to conduct off school grounds, there is no risk that a
vulgar comment made outside the school environment will result
in school discipline absent a significant risk of a substantial
disruption at the school.
Tinker leaves open a further avenue for schools to9
regulate student speech when it “involves . . . invasion of the
rights of others.” 393 U.S. at 513. The United States Court of
Appeals for the Eighth Circuit has “read this phrase as including
only that speech [which] could result in tort liability.” Bystrom
v. Fridley High Sch., 822 F.2d 747, 752 (8th Cir. 1987)
(alteration in original) (internal quotation marks omitted); see
also 22 Pa. Code § 12.9(c)(1) (“Students have the responsibility
to obey laws governing libel and obscenity and to be aware of
the full meaning of their expression.”). The parties vigorously
dispute whether J.S.’s speech amounted to criminal harassment
or tortious defamation. Because we have already determined
that J.S.’s speech presented a reasonable threat of substantial
disruption to the Middle School, we need not reach these
28
The District Court also found that the profile contained
“potentially illegal” speech. Regardless of whether J.S.’s9

-- 28 of 69 --

arguments to resolve this appeal and thus decline to do so.
Contrary to the dissent’s characterization, our10
description of the vulgarity of the MySpace page is not an
indication that we are basing any part of our reasoning on
Fraser. Dissenting Op. at Part II.A. Instead we mention
vulgarity as one reason why J.S.’ conduct was likely to cause a
substantial disruption at the school. It is the significant risk that
the conduct would cause a substantial disruption, however, not
the vulgarity of the MySpace page, that serves as the basis for
our opinion.
29
creation of the profile satisfied the elements of criminal
harassment or defamation, we hold that the potential impact of
the profile’s language alone is enough to satisfy the Tinker
substantial disruption test. Though student speech that is critical
of school officials is protected and not something we wish to
censor generally, we distinguish such speech from the profile in
the instant case that contained undoubtedly offensive, potentially
very damaging, and possibly illegal language, including
insinuations that strike at the heart of McGonigle’s fitness to
serve in the capacity of a middle school principal. We simply
cannot agree that a principal may not regulate student speech
rising to this level of vulgarity and containing such reckless and
damaging information so as to undermine the principal’s
authority within the school, and potentially arouse suspicions
among the school community about his character.10
This outcome is in accord with several nonbinding cases
that we find persuasive regarding circumstances under which

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A separate appeal dealing with school discipline of a11
student who created a MySpace profile of his principal was filed
simultaneously in our Court. See Layshock v. Hermitage Sch.
Dist., Nos. 07-4465 & 07-4555, slip op. (3d Cir. Feb. 4, 2010).
However, upon review of the holding in that case, as set forth in
30
schools can regulate students’ off-campus Internet speech. See
Doninger, 527 F.3d at 45, 48-49 (permitting a school to prevent
a student from holding a class officer position because she
posted a message on her public weblog that referred to school
authorities as “douchebags in central office” and contained
potentially misleading information about a school concert,
explaining that her speech was vulgar and offensive under
Fraser, but ultimately deciding that it was punishable under
Tinker because it presented a risk of substantial disruption);
Wisniewski v. Bd. of Educ. of the Weedsport Cent. Sch. Dist.,
494 F.3d 34, 36, 39-40 (2d Cir. 2007) (allowing school
punishment of a student who had an online chat icon depicting
a pistol firing a bullet at someone’s head with the caption “Kill
[the student’s teacher],” because school authorities learned of
the off-campus use of the icon, the icon contained threatening
content, and it created a foreseeable risk of substantial
disruption at school); J.S. ex rel. H.S. v. Bethlehem Area Sch.
Dist., 807 A.2d 847, 850, 865, 869 (Pa. 2002) (holding that there
was a “sufficient nexus” between a student’s website, on which
he made “derogatory, profane, offensive, and threatening”
comments about his teacher and correspondingly caused her
significant health problems, and the school, so as to bring the
speech on-campus, where it then satisfied the applicable Tinker
substantial disruption test).11

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that panel’s opinion, we find the two cases distinguishable.
Unlike the instant case, the school district in Layshock did not
argue on appeal that there was, under Tinker, a nexus between
the student’s speech and a substantial disruption of the school
environment. Id. at Part IV.A.1. This nexus, under Tinker, is
the basis of our holding in the instant case. Rather, the
Layshock panel held that the school district failed to establish
that a sufficient nexus existed between the student’s creation
and distribution of the profile and the school district so that the
district was permitted to regulate the student’s conduct. Id. at
Part IV.A.2. That panel also held, under Frazer, that the
student’s speech could not be considered “on-campus” speech
just because it was targeted at the Principal and other members
of the school community and it was reasonably foreseeable that
school district and Principal would learn about the MySpace
profile. Id. at Part IV.A.3.
31
The dissent argues that the “profile was so outrageous
that no one could have taken it seriously, and no one did” and
therefore it was not reasonable for the school district to foresee
a significant disruption. Dissenting Op. at Part II.A. While
those who knew McGonigle may not have taken the profile
seriously, as the MySpace page spread to concerned parents who
may have had little interaction with McGongile, some would
have believed the principal was unfit to care for their children.
The disruption that would have resulted from the meetings
necessary to alleviate these parents’ concerns and the strong
possibility that some parents would choose to keep their children
away from McGonigle and the school until they could be
assured he was not a threat likens this case to the others cited

-- 31 of 69 --

32
where a significant likelihood of a substantial disruption was
found.
The dissent attempts to distinguish these cases by arguing
that J.S. “did not even intend for the speech to reach the school
– in fact, she took specific steps to make the profile ‘private’ so
that only her friends could access it.” Dissenting Op. at Part
II.A. Rather than showing J.S. did not intend for the speech to
reach the school, the fact that she took action to allow only
chosen Blue Mountain Middle School students to see the profile
demonstrates that her behavior directly targeted the school.
Additionally, McGonigle was able to access the profile by
typing in the URL even after J.S. set the profile to private.
Anyone else who learned the URL would presumably have also
been able to access the profile notwithstanding the private
setting.
Admittedly, no similar events involving Internet speech
had occurred previously at the Middle School that might have
led McGonigle to ascertain the threat of a substantial disruption
based on past incidents, as occurred in Sypniewski. However,
we find the speech in Sypniewski factually dissimilar from the
profile at issue here because the language on the T-shirts in
Sypniewski was not vulgar or offensive itself, but only in
relation to other students’ prior speech. See 307 F.3d at 254-57.
Thus, the school authorities in Sypniewski had to demonstrate a
well-founded fear of future disruption based primarily on the
T-shirts’ relationship to past disruptive incidents at the school.
In contrast, J.S.’s speech was vulgar, lewd, and offensive on its
face and McGonigle did not need to associate it with prior
conduct to perceive its potential for future disruption. We

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The dissent argues that J.S. speech was protected by the12
First Amendment and therefore the school district was
prohibited from punishing her while contending that it “do[es]
not pass upon the viability of other measures the appellees could
have pursued. Dissenting Op. at ¶ 2. One of the options the
dissent raises is pressing criminal charges. It is difficult to see
how this speech would be protected on First Amendment
grounds in the context of school discipline, but unprotected in
the context of a criminal charge, particularly because “the First
Amendment rights of students in public schools are not
automatically coextensive with the rights of adults in other
settings and must be applied in light of the special
characteristics of the school environment.” Hazelwood, 484
U.S. at 266 (citations omitted). If this speech is protected under
a weaker level of First Amendment protection for school
students, then it must be protected under the more stringent First
Amendment protections granted to those facing prosecution for
their speech.
33
therefore conclude, based on the profile’s nature and its threat
of substantial disruption of the Middle School, that the School
District did not offend J.S.’s First Amendment free speech rights
by punishing her for creating the profile.12
B. Interference with Parental Rights
The Snyders argue that the School District interfered with
their Fourteenth Amendment substantive due process right to
direct the upbringing of their child free from government
intervention. See Troxel v. Granville, 530 U.S. 57, 65 (2000)

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34
(“[T]he interest of parents in the care, custody, and control of
their children . . . is perhaps the oldest of the fundamental liberty
interests recognized by this Court.”); Anspach, 503 F.3d at 261
(“The Supreme Court has long recognized that the right of
parents to care for and guide their children is a protected
fundamental liberty interest.”). Schools maintain authority over
their students in acting in loco parentis because, “for some
portions of the day, children are in the compulsory custody of
state-operated school systems. In that setting, the state’s power
is ‘custodial and tutelary, permitting a degree of supervision and
control that could not be exercised over free adults.’” Gruenke
v. Seip, 225 F.3d 290, 304 (3d Cir. 2000) (quoting Vernonia Sch.
Dist. 47J v. Acton, 515 U.S. 646, 655 (1995)). We have further
stated that:
During this custodial time, in order to maintain
order and the proper educational atmosphere, at
times, those authorities ‘may impose standards of
conduct that differ from those approved of by
some parents.’ Where these standards collide, a
court will require the State to demonstrate a
compelling interest that outweighs the parental
liberty interest in raising and nurturing their child.
Anspach, 503 F.3d at 266 (citation omitted) (quoting Gruenke,
225 F.3d at 304).
The Snyders argue that the District Court erred in holding
that if the School District did not violate J.S.’s First Amendment
rights, it could not have violated the Snyders’ parental rights
because these are two separate constitutional rights, worthy of

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35
separate analyses. The Snyders argue specifically that the
School District infringed on their rights when it reached into the
family home to punish J.S.’s conduct, and the School District
cannot overcome this with any compelling interest.
The School District, in response, notes that parental
rights are not without limits or beyond regulation: “Courts have
held that in certain circumstances the parental right to control
the upbringing of a child must give way to a school’s ability to
control curriculum and the school environment.” C.N. v.
Ridgewood Bd. of Educ., 430 F.3d 159, 182 (3d Cir. 2005). We
agree that the instant appeal presents such a case. Contrary to
Gruenke, but similar to C.N., we conclude here that
McGonigle’s suspension of J.S. did not “deprive[] [the Snyders]
of their right to make decisions concerning their child,” but that
it “simply . . . complicated the making and implementation of
those decisions.” C.N., 430 F.3d at 184. Further, we note on a
practical level that the School District did not usurp the Snyders’
authority to discipline their daughter, because they testified that
they also punished her “for a very long time” for creating the
profile. In conclusion, we hold that McGonigle appropriately
disciplined J.S. because, as discussed above, he properly
determined that her creation of the profile was conduct subject
to school regulation given that it violated school rules and
threatened to create a substantial disruption in the school.
C. Pennsylvania Law
J.S. argues that Pennsylvania law, in limiting schools’
ability to regulate students’ conduct, makes clear that her

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36
creation of the profile was not subject to punishment by the
School District. The relevant Pennsylvania statute states:
The board of school directors in any school
district may adopt and enforce such reasonable
rules and regulations as it may deem necessary
and proper, . . . regarding the conduct and
deportment of all pupils attending the public
schools in the district, during such time as they
are under the supervision of the board of school
directors and teachers, including the time
necessarily spent in coming to and returning from
school.
24 Pa. Cons. Stat. § 5-510 (emphasis added). J.S. argues that
the Pennsylvania Commonwealth Court has interpreted the
emphasized provision to mean that a school district may not
punish a student for out-of-school conduct. See D.O.F. v.
Lewisburg Area Sch. Dist. Bd. of Sch. Dirs., 868 A.2d 28, 30-31,
35-36 (Pa. Commw. Ct. 2004) (holding that § 5-510 did not
allow for school punishment of a student who purchased
marijuana off campus, then returned to a school playground
after school hours to smoke it, where he was caught by police,
because he was not under the school’s supervision at the time
and the school board did not establish a “sufficient nexus
between the incident and the Board’s supervisory authority”);
Hoke v. Elizabethtown Area Sch. Dist., 833 A.2d 304, 310-11
(Pa. Commw. Ct. 2003) (holding that a public school could not
punish a student who, at the time of the event in question, was
not enrolled in the school district). Because J.S. created the
profile from her home, and was not under school supervision at

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37
that time, she argues that the School District’s relevant
disciplinary and computer policies do not allow for school
punishment of her off-campus speech pursuant to the Middle
School’s statutory authority under § 5-510.
However, as the School District argues, we find D.O.F.
and Hoke distinguishable from the instant appeal. J.S. was
enrolled in the School District at the time she created the profile,
in contrast to the facts of Hoke, and, as previously discussed,
McGonigle punished J.S. “to prevent interference with the
educational process,” which the Pennsylvania Commonwealth
Court has explicitly held is authorized under § 5-510. See
D.O.F., 868 A.2d at 36. J.S. has not cited any case law that
persuades us that students in Pennsylvania have greater free
speech rights under the Pennsylvania Constitution than under the
U.S. Constitution. See Saxe, 240 F.3d at 202 n.1. Nor do we
read § 5-510 as an exhaustive description of all occasions under
which school officials are statutorily authorized to punish
students for infractions of school policies. Accordingly, we do
not believe the statute necessarily excludes school regulation of
out-of-school conduct that threatens to materially interfere with
the educational process. Therefore, because the profile created
the possibility of a substantial disruption of the Middle School,
the School District did not exceed its statutory authority in
punishing J.S. for creating it.
D. Facial Challenge: Overbreadth and Vagueness
J.S. argues that the School District’s disciplinary policy,
as contained in the Handbook, and its computer use policy, as
contained in the AUP, are unconstitutionally vague and

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At oral argument, J.S.’s counsel conceded that the13
overbreadth argument is perhaps derivative of the other claims
on appeal.
38
overbroad. Specifically, J.S. challenges the Handbook’s13
language that states “maintenance of order applies during those
times when students are under the direct control and supervision
of the school district officials,” arguing that it fails to authorize
the punishment she received for her off-campus creation of the
profile. (App. at 58 (emphasis added).) In contrast, the School
District argues that this clause provides a sufficient limit over
the school’s control of students. The AUP incorporates by
reference the Handbook, id. at 55, through which we infer that
the AUP is also subject to the Handbook’s limiting language
regarding the school’s reach over student conduct.
“A regulation is unconstitutional on its face on
overbreadth grounds where there is a [sic] ‘a likelihood that the
statute’s very existence will inhibit free expression’ by
‘inhibiting the speech of third parties who are not before the
Court.’” Saxe, 240 F.3d at 214 (quoting Members of City
Council v. Taxpayers for Vincent, 466 U.S. 789, 799 (1984)).
“To render a law unconstitutional, the overbreadth must be ‘not
only real but substantial in relation to the statute’s plainly
legitimate sweep.’” Id. (quoting Broadrick v. Oklahoma, 413
U.S. 601, 615 (1973)). Additionally, “a policy can be struck
down only if no reasonable limiting construction is available
that would render the policy constitutional.” Sypniewski, 307
F.3d at 259 (citing Saxe, 240 F.3d at 215). We have also noted
that, in light of the special characteristics of the school

-- 38 of 69 --

39
environment, “the overbreadth doctrine warrants a more hesitant
application in this setting than in other contexts,” particularly
with respect to student speech subject to proscription or
regulation under Tinker due to its disruptive nature. Id.
We have no trouble concluding that the Handbook is not
overbroad on its face. The School District’s policy is reasonably
limited to allowing regulation of speech and behavior only when
its students are “under the direct control and supervision of the
school district officials,” and Sypniewski expressly encourages
judicial restraint in this area when the student speech presents
the possibility of substantially disrupting school under Tinker.
Further, we read the Handbook in conjunction with a
Pennsylvania regulation that states: “Students shall have the
right to express themselves unless the expression materially and
substantially interferes with the educational process, threatens
serious harm to the school or community, encourages unlawful
activity or interferes with another individual’s rights.” 22 Pa.
Code § 12.9(b). The fact that we also concluded that
McGonigle did not violate J.S.’s First Amendment free speech
rights in punishing her for creating the profile off-campus in
light of its potential for future disruption of the school only
underscores the conclusion that the Handbook’s language does
not present a chilling effect on free expression, nor is it
unconstitutionally overbroad.
We also reject J.S.’s vagueness argument. A regulation
can be void for vagueness in either of two ways: (1) by
“fail[ing] to provide the kind of notice that will enable ordinary
people to understand what conduct it prohibits”; or (2) by
“authoriz[ing] and even encourag[ing] arbitrary and

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40
discriminatory enforcement.” City of Chi. v. Morales, 527 U.S.
41, 56 (1999); see also Sypniewski, 307 F.3d at 266. Regarding
notice, “‘[i]t is established that a law fails to meet the
requirements of the Due Process Clause if it is so vague and
standardless that it leaves the public uncertain as to the conduct
it prohibits.’” Morales, 527 U.S. at 56 (quoting Giaccio v.
Pennsylvania, 382 U.S. 399, 402 (1966)). Further, overcoming
vagueness “‘require[s] that a legislature establish minimal
guidelines to govern . . . enforcement.’” Id. at 60 (quoting
Kolender v. Lawson, 461 U.S. 352, 358 (1983)). Specific to the
school context, we have noted that “courts have been less
demanding of specificity than they have when assessing the
constitutionality of other regulations.” Sypniewski, 307 F.3d at
266. Accordingly, “because schools need the authority to
control such a wide range of disruptive behavior, ‘school
disciplinary rules need not be as detailed as a criminal code
which imposes criminal sanctions.’” Id. (quoting Fraser, 478
U.S. at 686).
McGonigle testified that he believed J.S.’s conduct
violated the AUP because it ran afoul of copyright laws in
misappropriating his picture from the School District’s website.
(App. at 44.) Also, prior to punishing J.S., he concluded that the
creation of the profile was a level-four disciplinary infraction
according to the Handbook because it made false accusations
about a school staff member. Id. at 65-66. Under the
Handbook, a level-four infraction is punishable by suspension
or expulsion. J.S. argues that the Handbook is vague because it
states that the Middle School may discipline its students only
when the offending behavior occurred while the student was
“under the direct control and supervision” of school officials.

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41
Examining J.S.’s vagueness challenge for proper notice, we
conclude that the Handbook and AUP provide ample
information about student behavioral expectations and the
consequences of breaking rules. We have stated that “school
disciplinary rules will be struck down on this basis only when
the vagueness is especially problematic,” Sypniewski, 307 F.3d
at 266, and we do not deem the Middle School’s disciplinary
rules to be “especially problematic” here. J.S. had ample notice
that school policies prohibited the misappropriation of School
District property in violation of copyright laws, and that the
school would not tolerate false accusations against a school
official. Moreover, we are not concerned here with the
overregulation of off-campus student speech because the profile
exhibited numerous qualities that compel us to conclude that it
presented the reasonable possibility of causing a substantial
disruption of the Middle School. We again reject J.S.’s
arguments for a strict physical or geographical limit to a
school’s authority because it is simply not feasible, given the
possibility of school trips, extracurricular activities or sporting
events, after-hours on-campus events, and, now, the reach of
Internet activity. Because the School District’s students have
sufficient notice of the applicable disciplinary and computer
policies, and the rules are adequately precise so as to prevent
school officials from arbitrarily enforcing them, we cannot agree
with J.S. that they are vague. Therefore, we conclude that the
Handbook and AUP policies are not unconstitutionally
overbroad or vague.

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42
IV.
We hold that Tinker applies to student speech, whether
on- or off-campus, that causes or threatens to cause a substantial
disruption of or material interference with school or invades the
rights of other members of the school community. Therefore,
because J.S.’s Internet profile featuring her principal alluded to
his interest or engagement in sexually inappropriate behavior
and illegal conduct, we conclude that it threatened to
substantially disrupt the Middle School regardless of whether
J.S.’s role in creating the profile was criminal or tortious. While
we maintain great respect for students’ First Amendment free
speech rights, we are also cognizant that school officials are
tasked with making difficult decisions and bear significant
responsibility in educating our children. We conclude that the
Constitution allows school officials the ability to regulate
student speech where, as here, it reaches beyond mere criticism
to significantly undermine a school official’s authority in
challenging his fitness to hold his position by means of baseless,
lewd, vulgar, and offensive language. We also conclude that the
School District did not violate the Snyders’ Fourteenth
Amendment rights to direct and control the upbringing of their
child; that Pennsylvania permits school authorities to discipline
students for conduct akin to J.S.’s creation of the profile; and
that the Middle School’s policies under which J.S. was punished
were not unconstitutionally vague or overbroad. For all of these
reasons, we will affirm the order of the District Court.

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I agree with my colleagues’ conclusion that the School14
District’s policies were not overbroad or void-for-vagueness,
and that the District Court correctly determined that the School
District did not violate the Snyders’ Fourteenth Amendment
substantive due process rights. As discussed infra note 11,
however, I disagree with my colleagues that 24 Pa. Cons. Stat.
§ 5-510 did not bar the School District from punishing J.S. for
her off-campus speech.
J.S. v. Blue Mountain School District
No. 08-4138
CHAGARES, Circuit Judge, concurring in part and dissenting
in part.
J.S. was suspended from school for speech that took
place outside the schoolhouse gates, during non-school hours,
and that indisputably caused no substantial disruption in school.
Because I believe that the School District’s actions violated
J.S.’s First Amendment free speech rights, I respectfully dissent
from the majority’s conclusion to the contrary. Neither the14
Supreme Court nor this Court has ever allowed schools to
punish students for off-campus speech that is not school-
sponsored and that caused no substantial disruption at school.
I would follow the logic and letter of these cases and reverse the

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44
District Court’s grant of summary judgment in favor of the
School District and denial of J.S.’s motion for summary
judgment on her free speech claim. The majority’s opposite
holding significantly broadens school districts’ authority over
student speech; I believe that this holding vests school officials
with dangerously overbroad censorship discretion.
In reaching this conclusion, I recognize the
comprehensive authority of schools and school officials to
prescribe and regulate conduct within schools. Nonetheless,
people of all ages are entitled to the freedoms guaranteed by the
First Amendment and such freedoms must be respected. I
further recognize that speech such as that employed in this case
– even made in jest – could damage the careers of teachers and
school administrators. Aggrieved schools and school officials
may well seek redress through civil lawsuits and perhaps even
by pressing criminal charges. I conclude only that the punitive
action taken by the School District in this case violated the First
Amendment rights of J.S. I do not pass upon the viability of
other measures the appellees could have pursued.
I.
J.S., an Honor Roll eighth grade student, was punished
for creating a fake profile of her middle school principal, James
McGonigle, which she and her friend, K.L., posted on MySpace,
a social networking website. J.S. and K.L. created the profile on

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45
Sunday, March 18, 2007, from J.S.’s house, using a computer
belonging to J.S.’s parents. The profile did not identify
McGonigle by name, school, or location, though it did contain
his official photograph from the School District’s website. J.S.
testified that she intended the profile to be a joke between
herself and her friends. Appendix (“App.”) 190.
The profile contained crude content and vulgar language,
ranging from nonsense and juvenile humor to profanity and
personal attacks aimed at the principal and his family.
Particularly disturbing were the profile’s references to
pedophilia. However, the record indicates that the profile was
so outrageous that no one took its content seriously. In fact,
McGonigle himself acknowledged that he believed the students
“weren’t accusing me. They were pretending they were me.”
App. 327. Moreover, McGonigle showed the profile to
Superintendent Joyce Romberger, who was required to report
any suspected misconduct by the school principal to the Board
of School Directors. As the majority acknowledges, however,
Romberger took no such action “because she believed [the
profile] consisted of ‘lies’ and ‘malicious comments’ made by
students angry at McGonigle.” Majority Op. 8.
Initially, the profile could be viewed in full by anyone
who knew the URL or who otherwise found the profile by
searching MySpace for a term it contained. The following day,
however, J.S. made the profile “private” after several students

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46
approached her at school, generally to say that they thought the
profile was funny. App. 194. By making the profile “private,”
J.S. limited access to the profile to people whom she and K.L.
invited to be a MySpace “friend.” J.S. and K.L. granted
“friend” status to about twenty-two Blue Mountain School
District students.
Notably, the School District’s computers block access to
MySpace, so no Blue Mountain student was ever able to view
the profile from school. Moreover, as the majority
acknowledges, the only printout of the profile that was ever
brought to school was one brought at McGonigle’s specific
request. Majority Op. 8. McGonigle then used the URL on the
printout to view the profile from his office computer, which did
not block access to MySpace.
After meeting with J.S., K.L., and their parents, and
informing them that the children would receive a ten-day out-of-
school suspension for creating the profile, McGonigle also
contacted the police and asked about the possibility of pressing
criminal charges against the students. The local police referred
McGonigle to the state police, who informed him that he could
press harassment charges, but that the charges would likely be
dropped. McGonigle chose not to press charges, and instead
completed a formal report and asked the police to speak to the
students to let them know how serious the situation was.

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47
In an attempt to justify punishment, the School District
asserts that the profile disrupted school. As the majority
concedes, the School District only points to three instances of
alleged “disruptions”:
(1) two teachers, Randall Nunemacher and
Angela Werner, had to quiet their classes while
students talked about the profile; (2) one guidance
counselor had to proctor a test so another
administrator could sit in on the meetings between
McGonigle, J.S., and K.L.; and (3) two students
decorated J.S. and K.L.’s lockers to welcome
them back upon their return to school following
the suspension, and students congregated in the
hallway at that time.
Majority Op. 11. Notably, Nunemacher acknowledged that the
talking in class was not a unique occurrence, and admitted that
he had to tell his students to stop talking about various topics
approximately once a week. Similarly, Werner stated that the
incident she was involved in did not disrupt class because the
students spoke to her during the portion of the class when
students were permitted to work independently. The
substitution of a guidance counselor to proctor a test also did not
cause any major inconveniences in school because the meetings
only lasted about twenty-five to thirty minutes, and the student

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48
counseling appointments that had to be cancelled during that
time were all rescheduled.
The majority also notes that McGonigle testified that
when J.S. and K.L. returned from suspension, some students
decorated the girls’ lockers to welcome them back to school,
which created “a buzz and a stir” in the hallway. McGonigle
punished the two students who decorated the lockers. The
majority also emphasizes McGonigle’s testimony that he
“noticed a severe deterioration in discipline in the Middle
School . . . following the creation of the profile, his
corresponding discipline of J.S. and K.L., and . . . this lawsuit,”
and that “he had stress-related health problems as a result of the
profile and this litigation.” Majority Op. 13. I believe that this
testimony is irrelevant to the issues before this Court because
these disruptions did not arise out of the creation of the profile
itself, but rather, were the direct result of the School District’s
response to the profile and the ensuing litigation. This
testimony, therefore, is not relevant to determining the level of
disruption that the profile caused in the school.
After analyzing the above facts, the District Court
granted the School District’s summary judgment motion on all
claims, though specifically acknowledging that Tinker v. Des
Moines Independent Community School District, 393 U.S. 503
(1969), does not govern this case because no “substantial and
material disruption” occurred. App. 10-12 (refusing to rely on

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49
Tinker); App. 17 (concluding that “a substantial disruption so as
to fall under Tinker did not occur”). Instead, the District Court
drew a distinction between political speech at issue in Tinker,
and “vulgar and offensive” speech at issue in a subsequent
school speech case, Bethel School District v. Fraser, 478 U.S.
675 (1986). App. 11-12. The District Court also noted the
Supreme Court’s most recent school speech decision, Morse v.
Frederick, 551 U.S. 393 (2007), where the Court allowed a
school district to prohibit a banner promoting illegal drug use at
a school-sponsored event.
Applying a variation of the Fraser and Morse standard,
the District Court held that “as vulgar, lewd, and potentially
illegal speech that had an effect on campus, we find that the
school did not violate the plaintiff’s rights in punishing her for
it even though it arguably did not cause a substantial disruption
of the school.” App. 15-16. The Court asserted that the facts of
this case established a connection between off-campus action
and on-campus effect, and thus justified punishment, because:
(1) the website was about the school’s principal; (2) the intended
audience was the student body; (3) a paper copy was brought
into the school and the website was discussed in school; (4) the
picture on the profile was appropriated from the School
District’s website; (5) J.S. created the profile out of anger at the
principal for disciplining her for dress code violations in the
past; (6) J.S. lied in school to the principal about creating the
profile; (7) “although a substantial disruption so as to fall under
Tinker did not occur . . . there was in fact some disruption

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50
during school hours”; and (8) the profile was viewed at least by
the principal at school. App. 17 (emphasis added).
The District Court then rejected several other district
court decisions where the courts did not allow school
punishment of speech that occurred off campus, including the
decision in Layshock v. Hermitage School District, 496 F. Supp.
2d 587 (W.D. Pa. 2007), aff’d, Nos. 07-4465, 07-4555 (3d Cir.
Feb. , 2010), a case substantially similar to the one before us
today. See App. 17-20. In distinguishing these cases, the
District Court made several qualitative judgments about the
speech involved in each of the cases. See, e.g., App. 18
(asserting that the statements in Flaherty v. Keystone Oaks
School District, 247 F. Supp. 2d 698 (W.D. Pa. 2003), were
“rather innocuous compared to the offensive and vulgar
statements made by J.S. in the present case”); App. 19
(contending that “[t]he speech in the instant case . . . is
distinguishable” from the speech in Killion v. Franklin Regional
School District, 136 F. Supp. 2d 446 (W.D. Pa. 2001), because
of, inter alia, “the level of vulgarity that was present” in the
instant case); App. 20 (claiming that as compared to Layshock,
“the facts of our case include a much more vulgar and offensive
profile”).
Ultimately, the District Court held that although J.S.’s
profile did not cause a “substantial and material” disruption
under Tinker, the School District’s punishment was

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51
constitutionally permissible because the profile was “vulgar and
offensive” under Fraser and J.S.’s off-campus conduct had an
“effect” at the school. In a footnote, the District Court also
noted that “the protections provided under Tinker do not apply
to speech that invades the rights of others.” App. 16 n.5 (citing
Tinker, 393 U.S. at 513).
II.
Although the precise issue before this Court is one of first
impression, the Supreme Court and this Court have analyzed the
extent to which school officials can regulate student speech in
several thorough opinions, all of which compel the conclusion
that the School District violated J.S.’s First Amendment free
speech rights when it suspended her for speech that took place
outside the school, during non-school hours, and that caused no
substantial disruption in school.
Unquestionably, the First Amendment protects the free
speech rights of students in school. Morse, 551 U.S. at 396
(“Our cases make clear that students do not ‘shed their
constitutional rights to freedom of speech or expression at the
schoolhouse gate.’” (quoting Tinker, 393 U.S. at 506)). The
exercise of First Amendment rights in school, however, has to
be “applied in light of the special characteristics of the school

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52
environment,” Tinker, 393 U.S. at 506, and thus the
constitutional rights of students in public schools “are not
automatically coextensive with the rights of adults in other
settings,” Fraser, 478 U.S. at 682. Since Tinker, courts have
struggled to strike a balance between safeguarding students’
First Amendment rights and protecting the authority of school
administrators to maintain an appropriate learning environment.
The Supreme Court established a basic framework for
student free speech claims in Tinker, holding that “to justify
prohibition of a particular expression of opinion,” school
officials must demonstrate that “the forbidden conduct would
materially and substantially interfere with the requirements of
appropriate discipline in the operation of the school.” Tinker,
393 U.S. at 509 (quotation marks and citation omitted)
(emphasis added). This burden cannot be met if school officials
are driven by “a mere desire to avoid the discomfort and
unpleasantness that always accompany an unpopular viewpoint.”
Id. Moreover, “Tinker requires a specific and significant fear of
disruption, not just some remote apprehension of disturbance.”
Saxe v. State Coll. Area Sch. Dist., 240 F.3d 200, 211 (3d Cir.
2001). Although Tinker dealt with political speech, the opinion
has never been confined to such speech. Cf. id. at 215-17
(holding that the school’s anti-harassment policy was overbroad
because it “appears to cover substantially more speech than
could be prohibited under Tinker’s substantial disruption test”).
See also Killion, 136 F. Supp. 2d at 455-58 (holding that the
school overstepped its constitutional bounds underTinker when
it suspended a student for making “lewd” comments about the

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53
school’s athletic director in an e-mail the student wrote at home
and circulated to the non-school e-mail accounts of several
classmates).
As this Court emphasized, with then-Judge Alito writing
for the majority, Tinker sets the general rule for regulating
school speech, and that rule is subject to several narrow
exceptions. Saxe, 240 F.3d at 212 (“Since Tinker, the Supreme
Court has carved out a number of narrow categories of speech
that a school may restrict even without the threat of substantial
disruption.”). The first exception is set out in Fraser, which we
interpreted as prohibiting “‘lewd,’ ‘vulgar,’ ‘indecent,’ and
‘plainly offensive’ speech in school.” Id. at 213 (emphasis
added); see also Sypniewski v. Warren Hills Reg’l Bd. of Educ.,
307 F.3d 243, 253 (3d Cir. 2002) (quoting Saxe’s narrow
interpretation of the Fraser exception). The second exception to
Tinker is articulated in Hazelwood School District v. Kuhlmeier,
which allows school officials to “regulate school-sponsored
speech (that is, speech that a reasonable observer would view as
the school’s own speech) on the basis of any legitimate
pedagogical concern.” Saxe, 240 F.3d at 214 (citing Kuhlmeier,
484 U.S. 260 (1988)).
The Supreme Court recently articulated a third exception
to Tinker’s general rule in Morse. Although, prior to the instant
case, we have not had an opportunity to analyze the scope of the
Morse exception, the Supreme Court itself emphasized the

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54
narrow reach of its decision. In Morse, a school punished a
student for unfurling, at a school-sponsored event, a large
banner containing a message that could reasonably be
interpreted as promoting illegal drug use. 551 U.S. at 396. The
Court emphasized that Morse was a school speech case, noting
that “[t]he event occurred during normal school hours,” was
sanctioned by the school “as an approved social event or school
trip,” was supervised by teachers and administrators from the
school, and involved performances by the school band and
cheerleaders. Id. at 400-01 (quotation marks and citation
omitted). The Court then held that “[t]he ‘special characteristics
of the school environment,’ Tinker, 393 U.S.[] at 506 [], and the
governmental interest in stopping student drug abuse . . . allow
schools to restrict student expression that they reasonably regard
as promoting illegal drug use.” Id. at 408.
Notably, Justice Alito’s concurrence in Morse further
emphasizes the narrowness of the Court’s holding, stressing that
Morse “stand[s] at the far reaches of what the First Amendment
permits.” 551 U.S. at 425 (Alito, J., concurring). In fact, Justice
Alito only joined the Court’s opinion “on the understanding that
the opinion does not hold that the special characteristics of the
public schools necessarily justify any other speech restrictions,”
or restrictions outside of those recognized by the Court in
Tinker, Fraser, Kuhlmeier, and Morse. Id. at 423. Justice Alito
also noted that the Morse decision “does not endorse the broad
argument . . . that the First Amendment permits public school
officials to censor any student speech that interferes with a
school’s ‘educational mission.’ This argument can easily be

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55
manipulated in dangerous ways, and I would reject it before
such abuse occurs.” Id. at 423 (citations omitted). Moreover,
Justice Alito engaged in a detailed discussion distinguishing the
role of school authorities from the role of parents, and the school
context from the “[o]utside of school” context. Id. at 424-25.
Here, the majority declines to decide whether the School
District could have punished J.S.’s speech under the Fraser
standard, Majority Op. 20, but concludes that the School District
did not violate J.S.’s First Amendment rights because “school
authorities could reasonably have forecasted a substantial
disruption of or material interference with the school as a result
of the MySpace profile, as defined by Tinker,” id. 4. Because
I do not believe that either Tinker or Fraser justifies the School
District’s actions in this case, I dissent.
A.
I believe that the District Court correctly concluded that
the School District’s suspension of J.S. was unlawful under
Tinker. There is no dispute that J.S.’s speech did not cause a
substantial disruption in the school. The School District’s
counsel conceded this point at oral argument, the District Court
explicitly found that “a substantial disruption so as to fall under
Tinker did not occur,” App. at 17, and the majority has “no

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The question of whether Tinker’s “substantial15
disruption” standard applies to off-campus speech in the first
place is not settled. I submit that the majority of the courts
answered this question in the affirmative, often citing the
following passage in Tinker: “conduct by the student, in class or
out of it, which for any reason – whether it stems from time,
56
trouble concluding . . . that [the specific examples of actual
disruption that the School District points to] did not amount to
a substantial disruption of the Middle School sufficient to
discipline the students for their speech,” Majority Op. 23. Yet,
the majority attempts to overcome this considerable hurdle by
adopting the standard put forth by several of our sister courts of
appeals, which allows schools to meet the Tinker test by
showing that a substantial disruption was “reasonably
foreseeable.” Id. 22 (citing Doninger v. Niehoff, 527 F.3d 41,
51 (2d Cir. 2008) (holding that Tinker does not require “actual
disruption to justify a restraint on student speech”)); Lowery v.
Euverard, 497 F.3d 584, 591-92, 596 (6th Cir. 2007) (“Tinker
does not require school officials to wait until the horse has left
the barn before closing the door. . . . [It] does not require
certainty, only that the forecast of substantial disruption be
reasonable.”); LaVine v. Blaine Sch. Dist., 257 F.3d 981, 989
(9th Cir. 2001) (“Tinker does not require school officials to wait
until disruption actually occurs before they may act.”)).
I assume, without expressing an opinion, that the
“foreseeability” standard is consistent with Tinker;15

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place or type of behavior – materially disrupts classwork or
involves substantial disorder or invasion of the rights of others
is, of course, not immunized by the constitutional guarantee of
freedom of speech.” 393 U.S. at 513 (emphasis added). I note,
however, that the phrase “in class or out of it” does not
necessarily indicate the Supreme Court’s approval of the
application of Tinker to restrict speech that takes place off-
campus and that is not sponsored by the school. Instead, it
appears that Tinker was referring to on-campus student speech
that occurs outside of the actual classroom, like Fraser’s speech
at a student assembly. See id. at 514 (concluding that “the
record does not demonstrate any facts which might reasonably
have led school authorities to forecast substantial disruption of
or material interference with school activities, and no
disturbance or disorders on the school premises in fact
occurred,” even though the students “caused discussion outside
of the classrooms” (emphasis added)).
Interestingly, the majority appears to concede that
Tinker’s reference to “out of class” speech only encompasses
speech that occurs when a student is “still under school control.”
Majority Op. 21. Here, conversely, J.S. was not under “school
control” when she created the profile on her parents’ computer
on a Sunday. Moreover, in Saxe, this Court emphasized the
importance of “geographical and contextual limitations” in
confining school districts’ authority over student speech. Saxe,
240 F.3d at 216 & n.11 (concluding that the school’s anti-
harassment policy was constitutionally overbroad because, inter
alia, “the Policy does not contain any geographical or contextual
57

-- 57 of 69 --

limitations” and could “even be read to cover conduct occurring
outside the school premises . . . . [which] would raise additional
constitutional questions”). I do not believe we have to answer
the difficult question of whether J.S.’s speech constitutes school
speech to hold that the School District violated her First
Amendment rights in this case.
58
nevertheless, I believe that to justify the School District’s
punishment of J.S. under this test is contrary to Tinker itself. I
also believe that the cases on which the majority relies are
distinguishable from the instant case. Ultimately, I submit that
the facts here do not support the conclusion that a forecast of
substantial disruption was reasonable, and I respectfully
disagree with my colleagues’ conclusion to the contrary.
In Tinker, the Supreme Court held that “our independent
examination of the record fails to yield evidence that the school
authorities had reason to anticipate that the wearing of the
armbands [to protest the Vietnam War] would substantially
interfere with the work of the school or impinge upon the rights
of other students.” 393 U.S. at 509. Given this holding, it is
important to consider the record before the Supreme Court in
Tinker and compare it to the facts of this case. The relevant
events in Tinker took place in December 1965, the year that over
200,000 U.S. troops were deployed to Vietnam as part of
Operation Rolling Thunder. Justice Black dissented in Tinker
noting that “members of this Court, like all other citizens, know,
without being told, that the disputes over the wisdom of the

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59
Vietnam war have disrupted and divided this country as few
other issues ever have.” Id. at 524 (Black, J., dissenting). In
fact, the Tinker majority itself noted the school authorities’
concern about the effect of the protest on friends of a student
who was killed in Vietnam. See id. at 509 n.3. Justice Black
also emphasized the following portions of the record:
the [] armbands caused comments, warnings by
other students, the poking of fun at them, and a
warning by an older football player that other,
nonprotesting students had better let them alone.
There is also evidence that a teacher of
mathematics had his lesson period practically
‘wrecked’ chiefly by disputes with [a protesting
student] who wore her armband for her
‘demonstration.’
Id. at 517-18 (Black, J., dissenting). Based on these facts,
Justice Black disagreed with the Tinker majority’s holding that
the armbands did not cause a substantial disruption in school:
“I think the record overwhelmingly shows that the armbands did
exactly what the elected school officials and principals foresaw
they would, that is, took the students’ minds off their classwork
and diverted them to thoughts about the highly emotional
subject of the Vietnam war.” Id. at 518; see also id. at 524 (“Of
course students, like other people, cannot concentrate on lesser
issues when black armbands are being ostentatiously displayed

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I reject the majority’s assertion that “students and16
parents inevitably would have begun to question McGonigle’s
demeanor and conduct at school, the scope and nature of his
personal interests, and his character and fitness to occupy a
position of trust with adolescent children, on account of the
profile’s contents.” Majority Op. 26 (emphasis added). This
contention is simply not supported by the record.
60
in their presence to call attention to the wounded and dead of the
war, some of the wounded and the dead being their friends and
neighbors.”).
This was the record in Tinker, and yet the majority in that
case held that “the record does not demonstrate any facts which
might reasonably have led school authorities to forecast
substantial disruption of or material interference with school
activities,” and thus that the school violated the students’ First
Amendment rights. Id. at 514 (emphasis added). Now I turn to
our record. J.S. created the profile as a joke, and she took steps to
make it “private” so that access was limited to her and her friends.
Although the profile contained McGonigle’s picture from the
school’s website, the profile did not identify him by name, school,
or location. Moreover, the profile, though indisputably vulgar,
was so juvenile and nonsensical that no reasonable person could
take its content seriously, and the record clearly demonstrates16
that no one did. See, e.g., App. 327 (demonstrating that
McGonigle recognized that the students “weren’t accusing me”);
Majority Op. 8 (acknowledging that Romberger had a duty to

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My colleagues also emphasize that McGonigle17
“noticed a severe deterioration in discipline in the Middle
School . . . following the publication of the profile and the
punishment of J.S. and K.L.” Majority Op. 25. The facts that
McGonigle cites to support this proposition, see supra, pp. 3-4,
demonstrate that these disruptions were not ones that arose out
of the creation of the profile itself, but rather, were the direct
result of the School District’s response to the profile and the
ensuing litigation. As set forth earlier, I do not believe that the
deterioration in discipline that followed McGonigle’s
punishment of J.S. and K.L. is relevant to determining the level
of disruption that the profile caused, or could reasonably have
been expected to cause, in the school.
61
report suspected misconduct, but that she believed the profile was
full of “lies and malicious comments” (quotation marks omitted)).
Also, the School District’s computers block access to MySpace,
so no Blue Mountain student was ever able to view the profile
from school. And, the only printout of the profile that was ever
brought to school was one that was brought at McGonigle’s
express request. Thus, beyond general rumblings, a few minutes
of talking in class, and some officials rearranging their schedules
to assist McGonigle in dealing with the profile, no disruptions
occurred.17
My colleagues acknowledge that the “actual disruption[s]”
that the School District points to are no more than “minor
inconveniences.” Majority Op. 23. They also concede that it is
“difficult to separate the effects that the profile itself had on the
school from the effects attributable to McGonigle’s investigation
of the profile and subsequent punishment of J.S. and K.L.” Id. 24.
Yet the majority concludes that a substantial disruption was
reasonably foreseeable, given the content of J.S.’s speech. I

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62
disagree. In comparing our record to the record in Tinker, I do not
believe that this Court can apply Tinker’s holding to justify the
School District’s actions in this case. As my colleagues
acknowledge, an “undifferentiated fear or apprehension of
disturbance is not enough to overcome the right to freedom of
expression.” Tinker, 393 U.S. at 508. If Tinker’s black armbands
– an ostentatious reminder of the highly emotional and
controversial subject of the Vietnam war – could not “reasonably
have led school authorities to forecast substantial disruption of or
material interference with school activities,” id. at 514, neither can
J.S.’s profile, despite the unfortunate humiliation it caused for
McGonigle.
Moreover, I believe that a comparison of our record to that
of Tinker demonstrates that to apply the foreseeability standard
adopted by our sister courts of appeals in a principled manner,
courts need to define “foreseeability” in a way that is harmonious
with Tinker. That is, courts must determine when an
“undifferentiated fear or apprehension of disturbance” transforms
into a reasonable forecast that a substantial disruption or material
interference will occur. The majority cites several cases where
courts held that a forecast of substantial and material disruption
was reasonably foreseeable. See, e.g., Doninger, 527 F.3d at 50-
51 (holding that punishment was justified, under Tinker, where a
student’s derogatory blog about the school was “purposely
designed by [the student] to come onto the campus,” to
“encourage others to contact the administration,” and where the
blog contained “at best misleading and at worst false information”
that the school “need[ed] to correct” (quotation marks and
alteration omitted)); Lowery, 497 F.3d at 596 (holding that
punishment was justified, under Tinker, where students circulated
a petition to fellow football players calling for the ouster of their
football coach, causing the school to have to call a team meeting
to ensure “team unity,” and where not doing so “would have been

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63
a grave disservice to the other players on the team”); LaVine, 257
F.3d at 984, 989-90 (holding that the school district did not violate
a student’s First Amendment rights when it expelled him on an
emergency basis “to prevent [] potential violence on campus”
after he showed a poem entitled “Last Words” to his English
teacher, which was “filled with imagery of violent death and
suicide” and could “be interpreted as a portent of future violence,
of the shooting of [] fellow students”).
The majority likens this case to the above cases by
contending that the profile was accusatory and capable of
“arous[ing] suspicions among the school community about
[McGonigle’s] character” because of the “profile’s blatant
allusions to McGonigle engaging in sexual misconduct.” Majority
Op. 24, 29. As explained above, however, this contention is
simply not supported by the record. The profile was so
outrageous that no one could have taken it seriously, and no one
did. Thus, it was clearly not reasonably foreseeable that J.S.’s
speech would create a substantial disruption or material
interference in school, and this case is therefore distinguishable
from the student speech at issue in Doninger, Lowery, and
LaVine.
Moreover, unlike the students in Doninger, Lowery, and
LaVine, J.S. did not even intend for the speech to reach the school
– in fact, she took specific steps to make the profile “private” so
that only her friends could access it. The fact that her friends
happen to be Blue Mountain Middle School students is not
surprising, and does not mean that J.S.’s speech targeted the
school. Finally, the majority’s suggestion that “absent
McGonigle’s quick corrective actions to curb [the profile’s]
effect,” a substantial disruption would occur, Majority Op. 24, is

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To draw distinctions based on “levels of vulgarity” is18
generally antithetical to the First Amendment. See Cohen v.
California, 403 U.S. 15, 25 (1971) (noting “one man’s vulgarity
is another’s lyric. Indeed, we think it is largely because
governmental officials cannot make principled distinctions in
this area that the Constitution leaves matters of taste and style
largely to the individual.”); see also Morse, 551 U.S. at 409
(declining to extend Fraser to cover all speech deemed
“offensive” and noting that “much political and religious speech
might be perceived as offensive to some.”).
64
directly undermined by the record. If anything, McGonigle’s
response to the profile exacerbated rather than contained the
disruption in the school. See id. (admitting that it is “difficult to
separate the effects that the profile itself had on the school from
the effects attributable to McGonigle’s investigation of the profile
and subsequent punishment of J.S. and K.L.” ).
Finally, I am particularly troubled by the majority’s
“hold[ing] that the potential impact of the profile’s language alone
is enough to satisfy the Tinker substantial disruption test.”
Majority Op. 29. This statement is disconcerting because it
sounds like an application of the Fraser standard rather than the
Tinker standard. Specifically, the majority appears to be more
concerned with the level of vulgarity of J.S.’s speech, than its
potential impact. See id. (“We simply cannot agree that a
principal may not regulate student speech rising to this level of
vulgarity . . . .” (emphasis added)). In light of the facts of this18
case – and, specifically, the fact that the profile was so outrageous
that no one could have taken it seriously – to focus on the
vulgarity of the language is to allow the Fraser exception to
swallow the Tinker rule.

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Indisputably, neither Kuhlmeier nor Morse governs this19
case.
Notably, in Morse, Chief Justice Roberts also cited20
Justice Brennan’s concurrence in Fraser, which noted, “[i]f
respondent had given the same speech outside of the school
65
The facts simply do not support the conclusion that the
School District could have reasonably forecasted a substantial
disruption of or material interference with the school as a result of
J.S.’s profile. Under Tinker, therefore, the School District
violated J.S.’s First Amendment free speech rights when it
suspended her for creating the profile.
B.
Because Tinker does not justify the School District’s
suspension of J.S., the only way for the punishment to pass
constitutional muster is if we accept the School District’s
argument – and the District Court’s holding – that J.S.’s speech
can be prohibited under the Fraser exception to Tinker. The19
majority notes that the exceptions to Tinker are “narrow,” and yet
it “decline[s] [] to decide whether a school official may discipline
a student for her lewd, vulgar, or offensive off-campus speech that
has an effect on-campus” under Fraser. Majority Op. 20. I submit
that this question has already been decided by the Supreme Court
– Fraser does not apply to off-campus speech. Specifically in
Morse, Chief Justice Roberts, writing for the majority,
emphasized that “[h]ad Fraser delivered the same speech in a
public forum outside the school context, it would have been
protected.” 551 U.S. at 405 (citing Cohen). The Court’s citation20

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environment, he could not have been penalized simply because
government officials considered his language to be
inappropriate.” Fraser, 478 U.S. at 688 (Brennan, J.,
concurring) (citing Cohen).
The School District notes that the courts in Doninger21
and Bethlehem Area School District suggested that Fraser
applies to vulgar off-campus speech. See Doninger, 527 F.3d at
49 (“It is not clear . . . [whether] Fraser applies to off-campus
speech.”); Bethlehem Area Sch. Dist., 807 A.2d at 867 (“[W]e
are not convinced that reliance solely on Tinker is
appropriate.”). These cases are not only not binding on this
Court, but also both Doninger and Bethlehem Area School
District ultimately relied on Tinker, not Fraser, in upholding
school censorship. Thus, the courts’ suggestion that the Fraser
standard may apply to off-campus speech is dicta. Most
importantly, that dicta is undermined directly by Chief Justice
Roberts’s statement in Morse: “Had Fraser delivered the same
speech in a public forum outside the school context, it would
have been protected.” 551 U.S. at 405 (citing Cohen, 403 U.S.
66
to the Cohen decision is noteworthy. The Supreme Court in
Cohen held that a state may not make a “single four-letter
expletive a criminal offense.” 403 U.S. at 26. Accordingly, Chief
Justice Roberts’s reliance on the Cohen decision reaffirms that a
student’s free speech rights outside the school context are
coextensive with the rights of an adult, such as Cohen.
Thus, under the Supreme Court’s precedent, the Fraser
exception to Tinker does not apply here. In other words, Fraser’s
“lewdness” standard cannot be extended to justify a school’s
punishment of J.S. for use of profane language outside the school,
during non-school hours.21

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at 15)). The most logical reading of Chief Justice Roberts’s
statement prevents the application of Fraser to speech that takes
place off-campus, during non-school hours, and that is in no
way sponsored by the school.
Note that the question of whether a school has the22
authority to punish a student who brings vulgar speech into
school is separate from whether the school can punish the source
of that speech.
67
The fact that McGonigle caused a copy of the profile to be
brought to school does not transform J.S.’s off-campus speech
into school speech. The flaws of a contrary rule can be illustrated
by extrapolating from the facts of Fraser itself. As discussed
above, the Supreme Court emphasized that Fraser’s speech would
have been protected had he delivered it outside the school.
Presumably, this protection would not be lifted if a school official
or Fraser’s fellow classmate overheard the off-campus speech,
recorded it, and played it to the school principal. Similarly here,22
the fact that another student printed J.S.’s profile at the express
request of McGonigle does not turn J.S.’s off-campus speech into
on-campus speech.
Under these circumstances, to apply the Fraser standard to
justify the School District’s punishment of J.S.’s speech is to
adopt a rule that allows school officials to punish any speech by
a student that takes place anywhere, at any time, as long as it is
about the school or a school official, is brought to the attention of
a school official, and is deemed “offensive” by the prevailing
authority. Under this standard, two students can be punished for
using a vulgar remark to speak about their teacher at a private
party, if another student overhears the remark, reports it to the
school authorities, and the school authorities find the remark

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I disagree with the majority’s holding that 24 Pa. Cons.23
Stat. § 5-510 did not bar the School District from punishing J.S.
for her off-campus speech. Section 5-510 limited the authority
of the School District to:
adopt and enforce such reasonable rules and
regulations . . . regarding the conduct and
deportment of all pupils attending the public
schools in the district, during such time as they
are under the supervision of the board of school
directors and teachers, including the time
necessary spent in coming to and returning from
school.
Id. (emphasis added). The Pennsylvania Commonwealth Court
has interpreted this provision to prohibit a school district from
punishing students for conduct occurring outside of school hours
– even if such conduct occurs on school property. See D.O.F.
v. Lewisburg Area Sch. Dist. Bd. of Sch. Dirs., 868 A.2d 28 (Pa.
Commw. Ct. 2004).
All of the integral events in this case occurred outside the
school, during non-school hours. Accordingly, I believe that §
5-510 barred the School District from punishing J.S.
68
“offensive.” There is no principled way to distinguish this
hypothetical from the facts of the instant case.
Accordingly, I conclude that the Fraser decision did not
give the School District the authority to punish J.S. for her off-
campus speech.23
III.

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69
For the foregoing reasons, I would reverse the District
Court’s judgment and grant summary judgment to J.S. on her First
Amendment free-speech claim.

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