Layshock v. Hermitage Sch. Dist.

Decision Date13 June 2011
Docket NumberNo. 07–4465.,07–4465.
PartiesJustin LAYSHOCK, a minor, by and through his parents; Donald LAYSHOCK; Cheryl Layshock, individually and on behalf of their sonv.HERMITAGE SCHOOL DISTRICT, Karen Ionta, District Superintendent; Eric W. Trosch, Principal Hickory High School, Chris Gill, Co–Principal Hickory High School, all in their official and individual capacityHermitage School District, Appellant.
CourtU.S. Court of Appeals — Third Circuit

650 F.3d 205
271 Ed.
Law Rep. 638

Justin LAYSHOCK, a minor, by and through his parents; Donald LAYSHOCK; Cheryl Layshock, individually and on behalf of their son
v.
HERMITAGE SCHOOL DISTRICT, Karen Ionta, District Superintendent; Eric W. Trosch, Principal Hickory High School, Chris Gill, Co–Principal Hickory High School, all in their official and individual capacityHermitage School District, Appellant.

No. 07–4465.

United States Court of Appeals, Third Circuit.

Argued Dec. 10, 2008.Opinion Filed Feb. 4, 2010.Opinion Vacated and Petition for Rehearing En Banc Granted April 9, 2010.Rehearing En Banc Ordered June 3, 2010.Argued En Banc June 3, 2010.Opinion filed: June 13, 2011.


[650 F.3d 206]

Anthony G. Sanchez, Esq. (Argued), Christina Lane, Esq., Andrews & Price, Pittsburgh, PA, for Appellant, Hermitage School District.Sean A. Fields, Esq., Associate Counsel, Pennsylvania School Boards Association, Mechanicsburg, PA, for Amicus Curiae, Pennsylvania School Board Association,

[650 F.3d 207]

filed in support of Appellant, Hermitage School District.Kim M. Watterson, Esq., Richard T. Ting, Esq., William J. Sheridan, Esq., Reed Smith LLP, Witwold J. Walczak, Esq. (Argued), Sara J. Rose, Esq., American Civil Liberties Foundation of Pennsylvania, Pittsburgh, PA, for Appellees, Donald Layshock, Cheryl Layshock.John W. Whitehead, Esq., The Rutherford Institute, Charlottesville, VA, for Amicus Curiae, The Rutherford Institute, in support of Appellees, Donald Layshock, Cheryl Layshock.Joanna J. Cline, Esq., Brian A. Berkley, Esq., Joshua B. Hirshey, Esq., Emmett M. Hogan, Esq., Pepper Hamilton LLP, Philadelphia, PA, Frank D. LoMonte, Esq., Michael C. Hiestand, Esq., Adam Goldstein, Esq., The Student Press Law Center, Arlington, VA, for Amicus Curiae, The Student Press Law Center, in support of Appellees, Donald Layshock, Cheryl Layshock.Robert D. Richards, Esq., Clay Calvert, Esq., Pennsylvania Center for the First Amendment, University Park, PA, for Amicus Curiae, Pennsylvania Center for the First Amendment, in support of Appellees, Donald Layshock, Cheryl Layshock.Before: McKEE, Chief Judge, SLOVITER, SCIRICA, RENDELL, BARRY, AMBRO, FUENTES, SMITH, FISHER, CHAGARES, JORDAN, GREENAWAY, JR., VANASKIE and ROTH, Circuit Judges.
OPINION OF THE COURT
McKEE, Chief Judge.

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

It all began when Justin Layshock used his grandmother's computer to access a popular social networking internet web site where he created a fake internet “profile” of his Hickory High School Principal, Eric Trosch. His parents filed this action under 42 U.S.C. § 1983, after the School District punished Justin for that conduct. The suit alleges, inter alia, that the School District's punishment transcended Justin's First Amendment right of expression. The district court granted summary judgment in favor of Justin on his First Amendment claim. We originally affirmed the district court. See Layshock v. Hermitage School Dist., 593 F.3d 249 (3d Cir.2010). Thereafter, we entered an order vacating that opinion and granting rehearing en banc. For the reasons that follow, we once again affirm the district court's holding that the school district's response to Justin's conduct transcended the protection of free expression guaranteed by the First Amendment.

I. FACTUAL BACKGROUND

In December of 2005, Justin Layshock was a seventeen-year old senior at Hickory High School, which is part of the Hermitage School District in Hermitage, Pennsylvania. Sometime between December 10th and 14th, 2005, while Justin was at his grandmother's house during non-school hours, he used her computer to create what he would later refer to as a “parody profile” of his Principal, Eric Trosch. The only school resource that was even arguably involved in creating the profile was a photograph of Trosch that Justin copied from the School District's website. Justin

[650 F.3d 208]

copied that picture with a simple “cut and paste” operation using the computer's internet browser and mouse. Justin created the profile on “MySpace.” 1 MySpace is a popular social-networking website that “allows its members to create online ‘profiles,’ which are individual web pages on which members post photographs, videos, and information about their lives and interests.” Doe v. MySpace, Inc., 474 F.Supp.2d 843, 845 (W.D.Tex.2007).2

Justin created the profile by giving bogus answers to survey questions taken from various templates that were designed to assist in creating a profile. The survey included questions about favorite shoes, weaknesses, fears, one's idea of a “perfect pizza,” bedtime, etc. All of Justin's answers were based on a theme of “big,” because Trosch is apparently a large man. For example, Justin answered “tell me about yourself” questions as follows:

Birthday: too drunk to remember

Are you a health freak: big steroid freak

In the past month have you smoked: big blunt 3

In the past month have you been on pills: big pills

In the past month have you gone Skinny Dipping: big lake, not big dick

In the past month have you Stolen Anything: big keg

Ever been drunk: big number of times

Ever been called a Tease: big whore

Ever been Beaten up: big fag

Ever Shoplifted: big bag of kmart

Number of Drugs I have taken: big

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

Justin afforded access to the profile to other students in the School District by listing them as “friends” on the MySpace website, thus allowing them to view the profile. Not surprisingly, word of the profile “spread like wildfire” and soon reached most, if not all, of Hickory High's student body.4

During mid-December 2005, three other students also posted unflattering profiles of Trosch on MySpace. Each of those profiles was more vulgar and more offensive than Justin's. Trosch first learned about one of the other profiles from his daughter, who was in eleventh grade. On Monday, December 12, 2005, Trosch told his Co–Principal, Chris Gill, and the District Superintendent, Karen Ionta, about this other profile and asked the Technology Director, Frank Gingras, to disable it. However, despite the administration's best efforts, students found ways to access the profiles. Trosch discovered Justin's profile on Thursday evening, December 15th, and a fourth profile on Sunday, December 18th.

[650 F.3d 209]

Trosch believed all of the profiles were “degrading,” “demeaning,” “demoralizing,” and “shocking.” He was also concerned about his reputation and complained to the local police. Although he was not concerned for his safety, he was interested in pressing charges against those responsible for the bogus profiles, and he discussed whether the first profile he discovered might constitute harassment, defamation, or slander. However, no criminal charges were ever filed against Justin or any of the other student authors of profiles.

On December 15th, Justin used a computer in his Spanish classroom to access his MySpace profile of Trosch. He also showed it to other classmates, although he did not acknowledge his authorship. After viewing the profile, the students logged off of MySpace. Justin again attempted to access the profile from school on December 16th, purportedly to delete it. School district administrators were unaware of Justin's in-school attempts to access MySpace until their investigation the following week. Teacher Craig Antush glimpsed the profile in his computer lab class and told the students who were congregating around a computer and giggling to shut it down.

The School District administrators were not able to totally block students from visiting the MySpace web page at school because Gingras, the Technology Coordinator, was on vacation on December 16th. However, the school was able to control students' computer access by limiting the students' use of computers to computer labs or the library where internet access could be supervised. School officials continued to limit computer use from December 16th until December 21st, which was the last day of school before Christmas recess. Computer programming classes were also cancelled.

According to the district court, the School District's investigation revealed how many students had accessed MySpace before access to the site at school was disabled, but the school could not determine how many students actually accessed any of the Trosch profiles, or which Trosch profiles had been viewed while a student was on the MySpace website.

School District officials first learned that Justin might have created one of the Trosch profiles on December 21. On that day, Justin and his mother were summoned to a meeting with Superintendent Ionta and Co–Principal Gill. During that meeting, Justin admitted creating a profile, but no disciplinary action was then taken against him. After the meeting, without prompting from anyone, Justin went to Trosch's office and apologized for creating the profile. 5

Justin's parents were understandably upset over Justin's behavior. They discussed the matter with him, expressed their extreme disappointment, “grounded” him, and prohibited him from using their home computer.

On January 3, 2006, the school district sent a letter to Justin and his parents giving them notice of an informal hearing that was to be held. The letter read, in pertinent part, as follows:

Justin admitted prior to the informal hearing that he created a profile about Mr. Trosch.

This infraction is a violation of the Hermitage School District Discipline Code: Disruption of the normal school process; Disrespect;...

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