                                         PRECEDENTIAL

        UNITED STATES COURT OF APPEALS
             FOR THE THIRD CIRCUIT

                       No. 07-4465

             JUSTIN LAYSHOCK, a minor,
               by and through his parents;
                DONALD LAYSHOCK;
           CHERYL LAYSHOCK, individually
                and on behalf of their son

                            v.

         HERMITAGE SCHOOL DISTRICT
       KAREN IONTA, District Superintendent;
  ERIC W. TROSCH, Principal Hickory High School,
CHRIS GILL, Co-Principal Hickory High School, all in their
            official and individual capacity


                   Hermitage School District,
                       Appellant

       Appeal from the United States District Court
        for the Western District of Pennsylvania
                  (Civ. No. 06-cv-00116)
        District Judge: Hon. Terrence F. McVerry

              Argued on December 10, 2008

                            1
            Opinion Filed on February 4, 2010
    Opinion Vacated and Petition for Rehearing En Banc
                Granted on April 9, 2010
       Rehearing En Banc Ordered for June 3, 2010
             Argued En Banc on June 3, 2010

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

               (Opinion filed: June 13, 2011)

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

SEAN A. FIELDS, ESQ.
Associate Counsel
Pennsylvania School Boards Association
400 Bent Creek Boulevard
P.O. Box 2042
Mechanicsburg, PA 17055
Attorney for Amicus Curiae, Pennsylvania School
Board Association, filed in support of Appellant,
Hermitage School District
KIM M. WATTERSON, ESQ.

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

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

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

JOANNA J. CLINE, ESQ.
BRIAN A. BERKLEY, ESQ.
JOSHUA B. HIRSHEY, ESQ.
EMMETT M. HOGAN, ESQ.
Pepper Hamilton LLP
18th & Arch Streets
3000 Two Logan Square
Philadelphia, PA 19103

                             3
FRANK D. LoMONTE, ESQ.
MICHAEL C. HIESTAND, ESQ.
ADAM GOLDSTEIN, ESQ.
The Student Press Law Center
1101 Wilson Boulevard, Suite 1100
Arlington, VA 22209
Attorneys for Amicus Curiae, The Student Press Law
Center, in support of Appellees, Donald Layshock,
Cheryl Layshock

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

                 OPINION OF THE COURT

McKEE, Chief Judge.

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

                               4
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 Aprofile@ 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
Aparody profile@ of his Principal, Eric Trosch. The only school
resource that was even arguably involved in creating the profile

                               5
was a photograph of Trosch that Justin copied from the School
District=s website. Justin copied that picture with a simple Acut
and paste@ operation using the computer=s internet browser and
mouse. Justin created the profile on AMySpace.@1 MySpace is a
popular social-networking website that Aallows 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 Aperfect pizza,@ bedtime, etc. All of Justin=s answers were
based on a theme of Abig,@ because Trosch is apparently a large
man. For example, Justin answered Atell me about yourself@
questions as follows:

   1
       MySpace is found at: http://www.myspace.com.
   2
     Social online networking sites allow members to use Atheir
online profiles to become part of an online community of people
with common interests. Once a member has created a profile,
she can extend >friend invitations= to other members and
communicate with her friends over the MySpace.com platform
via e-mail, instant messaging, or blogs.@ Doe, 474 F. Supp.2d at
846.




                               6
              Birthday: too drunk to remember

              Are you a health freak: big steroid
              freak

              In the past month have you
              smoked: big blunt3

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

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

              In the past month have you Stolen
              Anything: big keg

              Ever been drunk: big number of
              times

              Ever been called a Tease: big
              whore

              Ever been Beaten up: big fag

              Ever Shoplifted: big bag of kmart


3
    Justin explained that a Ablunt@ was a marijuana cigarette.


                               7
              Number of Drugs I have taken: big

Under AInterests,@ Justin listed: ATransgender, Appreciators of
Alcoholic Beverages.@ Justin also listed ASteroids International@
as a club Trosch belonged to.

       Justin afforded access to the profile to other students in
the School District by listing them as Afriends@ on the MySpace
website, thus allowing them to view the profile. Not
surprisingly, word of the profile Aspread 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.


   4
    Justin later explained that he made the profile to be funny,
and did not intend to hurt anyone. However, there was
obviously nothing Afunny@ about the profile in the eyes of the
school administration.


                                8
       Trosch believed all of the profiles were Adegrading,@
Ademeaning,@ Ademoralizing,@ and Ashocking.@ 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

                                9
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, Agrounded@ him, and prohibited him
from using their home computer.

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

   5
     Trosch later testified that he found Justin=s apology
respectful and sincere. Justin followed up with a written letter
of apology on January 4, 2006.


                                10
             Justin admitted prior to the
             informal hearing that he created a
             profile about Mr. Trosch.

             This infraction is a violation of the
             Hermitage       School       District
             Discipline Code: Disruption of the
             normal school process; Disrespect;
             Harassment       of     a     school
             administrator via computer/internet
             with remarks that have demeaning
             implications; Gross misbehavior;
             Obscene, vulgar and profane
             language;     Computer        Policy
             violations (use of school pictures
             without authorization).

The School District subsequently found Justin guilty of all of
those charges.

        In addition to a ten-day, out-of-school suspension,
Justin=s punishment consisted of (1) being placed in the
Alternative Education Program (the AACE@ program) at the high
school for the remainder of the 2005-2006 school year;6 (2)
   6
    Students assigned to ACE meet in a segregated area of the
high school for three hours each day. The program is typically
reserved for students with behavior and attendance problems
who are unable to function in a regular classroom.
       Prior to creating the Myspace profile, Justin was

                              11
being banned from all extracurricular activities, including
Academic Games and foreign-language tutoring;7 and (3) not
being allowed to participate in his graduation ceremony.8 The
Layshocks were also informed that the School District was
considering expelling Justin. Ironically, Justin, who created the
least vulgar and offensive profile, and who was the only student
to apologize for his behavior, was also the only student punished
for the MySpace profiles.

            II. DISTRICT COURT PROCEEDINGS

        The Layshocks initiated this action on January 27, 2006,
by filing a three count complaint pursuant to 42 U.S.C. ' 1983
individually, and on Justin=s behalf, against the Hermitage
School District, Karen Ionta, Eric Trosch, and Chris Gill, in
their official and individual capacities (hereinafter collectively
referred to as the ASchool District@ or ADistrict@). The
Layshocks also filed a motion for a temporary restraining order


classified as a gifted student, was enrolled in advanced
placement classes, and had won awards at interscholastic
academic competitions. The record does not reveal how the
School District determined that it was appropriate to place such
a student in a program designed for students who could not
function in a classroom.
   7
       Justin had been a French tutor to middle school students.
   8
     Justin did graduate in 2006 and went on to attend a
university in New York City.


                                 12
and/or preliminary injunction. Count I of the complaint alleged
that the District=s punishment of Justin violated his rights under
the First Amendment. Count II alleged that the District=s
policies and rules were unconstitutionally vague and/or
overbroad, both on their face and as applied to Justin. Count III
alleged that the District=s punishment of Justin interfered with,
and continued to interfere with, their right as parents to
determine how to best raise, nurture, discipline and educate their
child in violation of their rights under the Due Process Clause of
the Fourteenth Amendment.

        The district court denied the request for a temporary
restraining order, Layshock v. Hermitage Sch. Dist., 412 F.
Supp.2d 502, 508 (W.D. Pa. 2006), and the Layshocks withdrew
their motion for a preliminary injunction pursuant to the district
court=s efforts at mediation.9 On March 31, 2006, the district
court denied the District=s motion to dismiss the Layshocks=
claims. The court ruled that the parents may assert a claim for a
violation of their own due process right to Araise, nurture,
discipline and educate their children@ based on a school district=s
punishment of their child for speech the child uttered in the
family home.

       After discovery, both sides moved for summary

   9
     The Layshocks agreed to withdraw their motion for a
preliminary injunction in exchange for the District=s agreement
to remove Justin from the ACE program, reinstate him to his
regular classes, allow him to participate in Academic Games,
and attend his graduation.


                                13
judgment, and the court thereafter entered summary judgment in
favor of Justin and against the School District only on the First
Amendment claim.10 The court concluded that a jury trial was
necessary to determine compensatory damages and attorneys=
fees. See id. at 607.

       Thereafter, the district court denied the District=s motion
for entry of judgment pursuant to Fed.R.Civ.P. 54(b) or, in the
alternative, for the issuance of a certificate of appealability
pursuant to 28 U.S.C. ' 1292(b).




   10
       The district court ruled that Trosch was entitled to
summary judgment on all counts because he was not involved in
disciplining Justin. It also held that Ionta and Gill were entitled
to summary judgment on Justin=s First Amendment claim based
on qualified immunity, and that all of the defendants were
entitled to summary judgment on the vagueness/overbreadth
challenge and the parents= substantive due process claim.


                                14
        The parties subsequently filed a joint motion in which
they stipulated to damages and requested entry of final judgment
while preserving all appellate issues pertaining to liability. The
district court then entered a consent judgment, and the School
District appealed the district court=s grant of summary judgment
in favor of Justin on his First Amendment claim.11
                 III. SUMMARY JUDGMENT

       ASummary judgment is proper when the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled
to judgment as a matter of law.@ Bjorgung v. Whitetail Resort,
LP, 550 F.3d 263, 268 (3d Cir. 2008) (citation and internal
quotation marks omitted). In ruling on a motion for summary

   11
     The Layshocks filed a cross-appeal (No. 07-4555) from the
district court=s grant of summary judgment in favor of the
School District on their Fourteenth Amendment Due Process
claim. In our opinion filed on February 4, 2010, we affirmed the
district court=s grant of summary judgment to the School District
on that claim, and the Layshocks did not seek rehearing en banc
on that claim. Therefore, although we vacated the February 4,
2010, opinion and judgment as to the School District=s appeal at
No. 07-4464, and granted the School District=s petition for
rehearing en banc, we also, on April 9, 2010, ordered that Athe
opinion and judgment entered by this Court on February 4, 2010
stands with respect to the affirmance of the district court=s grant
of summary judgment to the [School District] on [the
Layshocks=] Fourteenth Amendment Due Process claim.@


                                15
judgment, the district court must view the facts in the light most
favorable to the non-moving party. Merkle v. Upper Dublin
Sch. Dist., 211 F.3d 782, 788 (3d Cir. 2000). However, Athe
mere existence of some alleged factual dispute between the
parties will not defeat an otherwise properly supported motion
for summary judgment.@ Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 247-48 (1986). AAs our review of a grant of summary
judgment is plenary, we operate under the same legal standards
as the District Court.@ Bjorgung, 550 F.3d at 268.

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

        In the landmark case of Tinker v. Des Moines Indep.
Cmty. Sch. Dist., 393 U.S. 503 (1969), a group of high school
students decided to wear black arm bands to school to protest
the war in Vietnam. When school officials learned of the
planned protest, they preemptively prohibited students from
wearing armbands. Several students who ignored the ban and
wore armbands to school anyway were suspended. Id. at 504.
Those students brought an action against the school through
their parents under 42 U.S.C. ' 1983, alleging that their First
Amendment rights had been violated. The district court rejected
that claim and upheld the constitutionality of the school
officials= action, finding that it had been reasonable to preserve
discipline. Id. 504-505. The district court=s decision was
affirmed without opinion by an equally divided court of appeals
sitting en banc. Id. at 505.

       The case was appealed to the Supreme Court, which held
that student expression may not be suppressed unless school

                               16
officials reasonably conclude that it will Amaterially and
substantially disrupt the work and discipline of the school.@ Id.
at 513. The Court concluded that the students were doing
nothing more than engaging in political speech, and wearing
armbands to express Atheir disapproval of the Vietnam hostilities
and their advocacy of a truce, to make their views known, and,
by their example, to influence others to adopt them.@ Id. at 514.
 The school district=s only interest in banning the speech had
been the Amere desire to avoid the discomfort and
unpleasantness that always accompany an unpopular viewpoint@
or Aan urgent wish to avoid the controversy which might result
from the expression.@ Id. at 509-10. The Court held that this
interest was not enough to justify banning Aa silent, passive
expression of opinion, unaccompanied by any disorder or
disturbance.@ Id. at 508. In one of its most famous passages, the
Court explained:

   First Amendment rights, applied in light of the special
   characteristics of the school environment, are available to
   teachers and students. It can hardly be argued that either
   students or teachers shed their constitutional rights to
   freedom of speech or expression at the schoolhouse gate.

Id. at 506.

         Thus, although the Court concluded that the First
Amendment did reach inside the Aschoolhouse gate,@ it also
recognized that the unique nature of the school environment had
to be part of any First Amendment inquiry. The Court explained
that it Aha[d] repeatedly emphasized the need for affirming the
comprehensive authority of the States and of school officials,

                               17
consistent with fundamental constitutional safeguards, to
prescribe and control conduct in the schools.@ Id. at 507.

       The Court next addressed the scope of the First
Amendment in the context of student speech in Bethel School
District No. 403 v. Fraser, 478 U.S. 675 (1986). There, the
Court upheld the school=s suspension of a high school student
for delivering a nominating speech at a school assembly using
Aan elaborate, graphic, and explicit sexual metaphor.@ Id. at 678.
 The Court explained:

              The schools, as instruments of the
              state, may determine that the
              essential lessons of civil, mature
              conduct cannot be conveyed in a
              school that tolerates lewd, indecent,
              or offensive speech and conduct
              such as that indulged in by
              [Fraser].12

Id. at 683. In reaching this conclusion, the Court distinguished
its prior holding in Cohen v. California, 403 U.S. 15 (1971).
There, the Court had struck down an adult=s conviction for
disorderly conduct that was based on his wearing a jacket, inside
a court house, that had an obscenity about the draft printed on it.

   12
     In Saxe v. State College Area School District, 240 F.3d 200,
213 (3d Cir. 2001), we interpreted Fraser as establishing that
Athere is no First Amendment protection for >lewd,= >vulgar,=
>indecent,= and >plainly offensive= speech in school.@


                                18
The Fraser Court explained:

              It does not follow . . . that simply
              because the use of an offensive
              form of expression may not be
              prohibited to adults making what
              the speaker considers a political
              point, the same latitude must be
              permitted to children in public
              school. . . . [T]he First Amendment
              gives a high school student the
              classroom right to wear Tinker=s
              armband, but not Cohen=s jacket.

Id. at 682 (citation and internal quotation marks omitted). The
Court concluded that the school could punish Fraser for his
offensive nominating speech during a school assembly because
the First Amendment does not prevent schools from
encouraging the Afundamental values of >habits and manners of
civility,=@ id. at 681, by Ainsisting that certain modes of
expression are inappropriate and subject to sanctions.@ Id. at
683. Thus, A[t]he determination of what manner of speech in the
classroom or in school assembly is inappropriate properly rests
with the school board.@ Id.

       Similarly, in Hazelwood School District. v. Kuhlmeier,
484 U.S. 260 (1988), the Court held that a principal=s deletion of
student articles on teen pregnancy from a school-sponsored
newspaper did not violate the First Amendment. The Court
distinguished Tinker by noting that because the school had not
opened the newspaper up as a public forum, the school could

                               19
Aexercis[e] editorial control over the style and content of student
speech in school-sponsored expressive activities so long as [its]
actions are reasonably related to legitimate pedagogical
concerns.@ Id. at 273. The Court explained:

                 The question whether the First
                 Amendment requires a school to
                 tolerate particular student speech B
                 the question that we addressed in
                 Tinker B is different from the
                 question whether the First
                 Amendment requires a school
                 affirmatively to promote particular
                 student speech.        The former
                 question addresses educators=
                 ability to silence a student=s
                 personal expression that happens to
                 occur on the school premises. The
                 latter question concerns educators=
                 authority over school-sponsored . . .
                 expressive activities that students,
                 parents, and members of the public
                 might reasonably perceive to bear
                 the imprimatur of the school. . . .
                 Educators are entitled to exercise
                 greater control over this second
                 form of student expression.

Id. at 270-71.

       The extent to which First Amendment protections apply

                                  20
in the public school context was most recently addressed in
Morse v. Frederick, 551 U.S. 393 (2007). There, A[a]t a school-
sanctioned and school-supervised event, a high school principal
[Morse] saw some of her students unfurl a large banner
conveying a message she reasonably regarded as promoting
illegal drug use.@ Id. at 396. The banner read: ABONG HiTS 4
JESUS.@ Id. at 397. AConsistent with established school policy
prohibiting such messages at school events, [Morse] directed the
students to take down the banner.@ Id. at 396. Frederick, one of
the students who brought the banner to the event, refused to
remove it, and Morse Aconfiscated the banner and later
suspended [Frederick].@ Id. Frederick sued Morse and the
school district pursuant to 42 U.S.C. ' 1983, alleging a violation
of his First Amendment right of expression. The district court
granted summary judgment to the school district and Morse,
holding that they were entitled to qualified immunity and that
they had not infringed Frederick=s First Amendment rights. Id. at
399. The Court of Appeals for the Ninth Circuit reversed.

        The Supreme Court granted certiorari to determine
Awhether Frederick had a First Amendment right to wield his
banner, and, if so, whether that right was so clearly established
that the principal may be held liable for damages.@ Id. at 400.13
The Court Aresolve[d] the first question against Frederick,@ and,
therefore, did not have to reach the second. Id. The Court
explained that its Fourth Amendment jurisprudence recognized
that Adeterring drug use by school children is an important B

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


                               21
indeed, perhaps compelling interest.@ Id. at 407 (citation
omitted).      The Aspecial characteristics of the school
environment, and the governmental interest in stopping student
drug abuse allow schools to restrict student expression that they
reasonably regard as promoting such abuse.@ Id. at 408. Thus,
Aa 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 402. The Court
rejected Frederick=s claim that since he was across the street
from the school and not on school property, he was not inside
Tinker=s Aschoolhouse gate,@ and school officials therefore had
lost authority over him. The Court reasoned that the event
where the banner was unfurled occurred during school hours,
and it had been approved by the school=s principal as a school
event. Id. at 400. School events and field trips off school
grounds were subject to the school=s rules for student conduct.
Id. at 400-01.

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

       At the outset, it is important to note that the district court
found that the District could not Aestablish[] a sufficient nexus
between Justin=s speech and a substantial disruption of the
school environment[,]@ Layshock, 496 F. Supp. 2d at 600, and
the School District does not challenge that finding on appeal.
Therefore, the School District is not arguing that it could
properly punish Justin under the Tinker exception for student
speech that causes a material and substantial disruption of the
school environment. See Tinker, 393 U.S. at 513. Rather, the

                                 22
District=s argument is twofold:

               [A] sufficient nexus exists between
               Justin=s creation and distribution of
               the vulgar and defamatory profile
               of Principal Trosch and the School
               District to permit the School
               District to regulate this conduct.
               The Aspeech@ initially began on-
               campus: Justin entered school
               property, the School District web
               site, and misappropriated a picture
               of the Principal. The Aspeech@ was
               aimed at the School District
               community and the Principal and
               was accessed on campus by Justin.
                It was reasonably foreseeable that
               the profile would come to the
               attention of the School District and
               the Principal.

District=s Br. at 9.

       2. Justin=s AEntry@ Onto the District=s Website.

       The School District=s attempt to forge a nexus between
the School and Justin=s profile by relying upon his Aentering@ the
District=s website to Atake@ the District=s photo of Trosch is
unpersuasive at best. The argument equates Justin=s act of
signing onto a web site with the kind of trespass he would have
committed had he broken into the principal=s office or a

                                23
teacher=s desk; and we reject it. See Thomas v. Board of Educ.,
607 F.2d 1043 (2d Cir. 1979).
        We find the reasoning in Thomas v. Board of Educ., 607
F.3d 1043 (2d Cir. 1979), far more persuasive.20 Thomas
involved a group of students who were suspended for producing
Aa satirical publication addressed to the school community.@ Id.
at 1045. The articles included such topics as masturbation and
prostitution, as well as more standard fare such as Aschool
lunches, cheerleaders, classmates, and teachers.@ Id. ASome of
the initial preparation for publication occurred after school hours
in the classroom@ of a teacher whom the students consulted Afor
advice on isolated questions of grammar and content.@ Id. In
addition, Aan occasional article was composed or typed within
the school building, always after classes,@ and the finished
magazine was stored in a Aclassroom closet@ with the classroom
teacher=s permission. Id.




   20
        Thomas was decided after Tinker but before Fraser.


                                24
       However, the students were very careful to distribute the
periodical only after school and off campus, and the vast
majority of their work on the publication was done Ain their
homes, off campus and after school hours.@ Id. The school
principal learned of the magazine when a teacher confiscated a
copy from another student on campus, and Afollowing
consultation with the Board of Education,@ the principal
imposed penalties that included a five-day suspension of the
students involved.21 Id. at 1046. The punishment was based on
the students= publication of Aan allegedly >morally offensive,
indecent, and obscene,= tabloid.@ Id. at 1050 n.12.

        The students sued the school board and other school
officials under 42 U.S.C. ' 1983. They sought Ainjunctive and
declaratory relief from alleged deprivations of their First and
Fourteenth Amendment rights.@ Id. at 1046. The district court
denied the students= request for injunctive relief based upon its
conclusion that the publication Awas potentially destructive of
discipline in [the school], and therefore not protected by the
First Amendment.@ Id. at 1047.

       The Court of Appeals for the Second Circuit concluded
that the students= conduct was not sufficiently related to the
school to justify the school=s exercise of authority. The court

   21
      The Principal and Superintendent of Schools had initially
decided to take no action pending assessment of the
publication=s impact. However, they ultimately decided to act
after being contacted by the President of the Board of Education.
Thomas, 607 F.2d at 1045-46.


                               25
explained:

               [A]ll but an insignificant amount of
               relevant activity in this case was
               deliberately designed to take place
               beyond the schoolhouse gate.
               Indeed, the [students] diligently
               labored to ensure that [the
               magazine] was printed outside the
               school, and that no copies were
               sold on school grounds. That a few
               articles were transcribed on school
               typewriters, and that the finished
               product     was      secretly     and
               unobtrusively stored in a teacher=s
               closet do not alter the fact that [the
               magazine]        was      conceived,
               executed, and distributed outside
               the school. At best, therefore, any
               activity within the school itself was
               De minimis.

Id. at 1050.

       The court reached that conclusion even though the
students actually stored the offending publication inside a
classroom and did some minimal amount of work on the
periodical in school using school resources. Here, the
relationship between Justin=s conduct and the school is far
more attenuated than in Thomas. We agree with the
analysis in Thomas. Accordingly, because the School

                                26
District concedes that Justin=s profile did not cause
disruption in the school, we do not think that the First
Amendment can tolerate the School District stretching its
authority into Justin=s grandmother=s home and reaching
Justin while he is sitting at her computer after school in
order to punish him for the expressive conduct that he
engaged in there.

       We realize, of course, that it is now well established
that Tinker=s Aschoolhouse gate@ is not constructed solely
of the bricks and mortar surrounding the school yard.
Nevertheless, the concept of the Aschool yard@ is not
without boundaries and the reach of school authorities is
not without limits. In Morse, the Court held that the First
Amendment does not prevent a principal from Arestrict[ing]
student speech at a school event, when that speech is
reasonably viewed as promoting illegal drug use.@ 551
U.S. at 403 (emphasis added). Nevertheless, with regard
to expressive conduct that occurs outside of the school
context, the Court, referring to its earlier decision in
Fraser, was careful to note that A[h]ad Fraser delivered the
same speech in a public forum outside the school context, it
would have been protected.@ 551 U.S. at 404 (citations omitted).

       It would be an unseemly and dangerous precedent
to allow the state, in the guise of school authorities, to
reach into a child=s home and control his/her actions there
to the same extent that it can control that child when
he/she participates in school sponsored activities.
Allowing the District to punish Justin for conduct he
engaged in while at his grandmother=s house using his

                              27
grandmother=s computer would create just such a
precedent, and we therefore conclude that the district
court correctly ruled that the District=s response to Justin=s
expressive conduct violated the First Amendment
guarantee of free expression.

3. The District Cannot Punish Justin Merely Because
       His Speech Reached Inside the School.

        As noted above, the School District also claims that
Justin=s speech can be treated as Aon-campus@ speech because it
Awas aimed at the School District community and the Principal
and was accessed on campus by Justin [and] [i]t was reasonably
foreseeable that the profile would come to the attention of the
School District and the Principal.@

       The district court held that the School District=s
punishment of Justin was not appropriate under Fraser
because A[t]here is no evidence that Justin engaged in any
lewd or profane speech while in school.@ Layshock, 496 F.
Supp.2d at 599-600. It also held that Justin=s punishment
was not appropriate under Tinker because the School
District did Anot establish[] a sufficient nexus between
Justin=s speech and a substantial disruption of the school
environment.@ Id. at 600.
       The School District does not dispute the district
court=s finding that its punishment of Justin was not
appropriate under Tinker; it rests its argument on the
Supreme Court=s analysis in Fraser. In the School
District=s view, Justin=s speech B his MySpace profile of
Trosch B was unquestionably vulgar, lewd and offensive,

                              28
             and therefore not shielded by the First Amendment
             because it ended up inside the school community.22
             Similarly, the School District argues that under our
             decision in Saxe, see n.12, supra, there is no First
             Amendment protection for lewd, vulgar, indecent or plainly
             offensive speech in schools.23

                 22
                   The District=s argument in this regard is not crystal clear as
             its brief suggests that it can react to Justin=s profile merely
             because it was lewd and vulgar. For example, the District
             summarizes one of its arguments as follows:

                   The School District did not violate the First Amendment
                   by punishing Justin for engaging in conduct which
                   interfered with the School District=s Ahighly appropriate
                   function . . . to prohibit the use of vulgar and offensive
                   terms in public discourse.@
District=s Br. at 10 (ellipsis in original).
       However, we reject out of hand any suggestion that schools can police students= out-
of-school speech by patrolling Athe public discourse.@ Accordingly, we will assume that the
District is arguing that it can control lewd and vulgar speech as authorized under Fraser.
                 23
                   In Saxe, we did state: AUnder Fraser, a school may
             categorically prohibit lewd, vulgar or profane language.@ 240
             F.3d at 214. However, when read in context, it is clear that we
             were there referring only to speech inside Tinker=s schoolhouse
             gate. Thus, we summarized the holding in Fraser as follows:
             AAccording to Fraser, . . . there is no First Amendment
             protection for >lewd,= >vulgar,= >indecent,= and >plainly offensive=
             speech in school.@ Id. at 213 (emphasis added).


                                             29
        The District rests this argument primarily on three
cases which it claims allow it to respond to a student=s
vulgar speech when that speech is posted on the internet.
 The District cites J.S. v. Bethlehem Area Sch. Dist., 807 A.2d
847 (Pa. 2002); Wisniewski v. Bd. of Educ. of Weedsport Cent.
Sch. Dist., 494 F.3d 34 (2d Cir. 2007); and Doninger v. Niehoff,
527 F.3d 41 (2d Cir. 2008). However, as we will explain, each
of those cases involved off campus expressive conduct that
resulted in a substantial disruption of the school, and the courts
allowed the schools to respond to the substantial disruption that
the student=s out of school conduct caused.
        In J.S., an eighth grade student created a threatening
website aimed at his algebra teacher that went so far as to
explain A[w]hy Should She Die,@ and requested money Ato help
pay for the hitman.@ 807 A.2d at 851. The site frightened
several students and parents and the algebra teacher was so
badly frightened that she ended up having to take medical leave
from her teaching responsibilities. As a result of her inability to
return to teaching, Athree substitute teachers were required to be
utilized which disrupted the educational process of the students.@
 Id. at 852.      AIn sum, the web site created disorder and
significantly and adversely impacted the delivery of instruction.@
Id. at 869. The Supreme Court of Pennsylvania concluded that
the resulting disruption of instruction and the educational
environment allowed the school to punish the student for his
expressive conduct even though the student created the website
from his home.24

   24
      The district court believed that J.S. was Aon point@ but
Arespectfully reache[d] a slightly different balance between

                                30
        Similarly, the school suspended the student in
Wisniewski, for creating an image on the internet from his home
computer that depicted a pistol firing a bullet at a teacher=s head
with dots representing splattered blood above the head. 494
F.3d at 36. The words: AKill Mr. VanderMolen@ were printed
beneath the drawing. VanderMolen was the student=s English
teacher. The student created the image a couple of weeks after
his class was instructed that threats would not be tolerated at the
school, and would be treated as acts of violence. The court of
appeals affirmed the district court=s grant of summary judgment
in favor of the school district in a suit alleging a violation of the
First Amendment based on the school=s suspension of the
student for the out-of-school conduct. The court reasoned that
A[t]he fact that [the student=s] creation and transmission of the
icon occurred away from school property [did] not necessarily
insulate him from school discipline.@ 494 F.3d at 39. The court
reasoned that Aeven if [the student=s] transmission of an [image]
depicting and calling for the killing of his teacher could be
viewed as an expression of opinion within the meaning of
Tinker,@ it was not protected by the First Amendment because Ait
cross[ed] the boundary of protected speech and pose[d] a
reasonably foreseeable risk [of] materially and substantially
disrupting the work and discipline of the school.@ Id. at 38-9
(internal quotation marks omitted).

student expression and school authority.@ Layshock, 496 F.
Supp. 2d at 602. However, we do not think J.S. is Aon point@ or
the least bit helpful because there is no comparison between the
impact of the conduct there and the impact of the conduct here.


                                 31
        Finally, in Doninger, a student, who was a class officer,
posted a message on her publicly accessible web log or Ablog@
that resulted in school authorities not allowing her to participate
in an election for class office.25 Id. at 43. In her message, she
complained about a school activity that was cancelled Adue to
douchebags in central office,@ and encouraged others to contact
the central office to Apiss [the district superintendent] off more.@
 Id. at 45. When the principal learned of the student=s posting,
she prohibited her from running for senior class secretary
Abecause [the student=s] conduct had failed to display the civility
and good citizenship expected of class officers.@ Id. at 46. The
student and her parents then sought injunctive relief in the form
of a court order allowing her to run for class office. The court
of appeals affirmed the district court=s denial of relief because
the student=s out of school expressive conduct Acreated a
foreseeable risk of substantial disruption to the work and
discipline of the school.@ Id. at 53.26 A [The student] herself

   25
     AA blog (a contraction of the term >web log=) is a type of
website, usually maintained by an individual with regular entries
or commentary, descriptions of events, or other material such as
graphics or video. . . . >Blog= can also be used as a verb,
meaning to maintain or add content to a blog.@
(http://en.wikipedia.org/wiki/Blog) (last visited September 23,
2010).
   26
     The blog had resulted in numerous calls and emails to the
principal, and the court of appeals noted that the blog also used
inaccurate and misleading information to rally those who read it
to contact the school principal.

                                32
testified that . . . students were >all riled up= and that a sit-in was
threatened.@ Id. at 51. Accordingly, the court of appeals held
that the student=s mother Afailed to show clearly that [the
student=s] First Amendment rights were violated when she was
disqualified from running@ for class office. Id. at 53.

       However, for our purposes, it is particularly important to
note that the court in Doninger was careful to explain that it
A[had] no occasion to consider whether a different, more serious
consequence than disqualification from student office would
raise constitutional concerns.@ Id. at 53. Of course, Justin=s
consequences were more serious; he was suspended.
Moreover, in citing Doninger, we do not suggest that we
agree with that court=s conclusion that the student=s out of
school expressive conduct was not protected by the First
Amendment there. Rather, we cite Doninger only to
respond to the School District=s contention that that case
supports its actions against Justin.

        As noted earlier, the District=s January 3, 2006, letter to
the Layshocks advising them of Justin=s suspension reads, in
relevant part, that it was punishing Justin because AJustin
admitted prior to the informal hearing that he created a profile
about Mr. Trosch.@ Although the letter also mentions disruption,
we have taken care to stress that the District does not now
challenge the district court=s finding that Justin=s conduct did not
result in any substantial disruption. Moreover, when pressed at
oral argument, counsel for the School District conceded that the
District was relying solely on the fact that Justin created the
profile of Trosch, and not arguing that it created any substantial
disruption in the school. However, as noted above, Fraser does

                                  33
not allow the School District to punish Justin for expressive
conduct which occurred outside of the school context. See
Morse, 551 U.S. at 404 (AHad Fraser delivered the same speech
in a public forum outside the school context, it would have been
protected.@) (citations omitted). Moreover, we have found no
authority that would support punishment for creating such a
profile unless it results in foreseeable and substantial disruption
of school.

       We believe the cases relied upon by the School District
stand for nothing more than the rather unremarkable proposition
that schools may punish expressive conduct that occurs outside
of school, as if it occurred inside the Aschoolhouse gate,@ under
certain very limited circumstances, none of which are present
here.
       As the court of appeals explained in Thomas: A[O]ur
willingness to defer to the schoolmaster=s expertise in
administering school discipline rests, in large measure,
upon the supposition that the arm of authority does not
reach beyond the schoolhouse gate.@ 607 F.2d at 1045.
We need not now define the precise parameters of when
the arm of authority can reach beyond the schoolhouse
gate because, as we noted earlier, the district court found
that Justin=s conduct did not disrupt the school, and the
District does not appeal that finding. Thus, we need only
hold that Justin=s use of the District=s web site does not
constitute entering the school, and that the District is not
empowered to punish his out of school expressive conduct
under the circumstances here.

       Based on those two conclusions, we will affirm the

                                34
district court=s grant of summary judgment to Justin Layshock
on his First Amendment claim.27


JORDAN, Circuit Judge, concurring, with whom VANASKIE,
Circuit Judge, joins.

       Our Court today issues en banc decisions in two cases
with similar fact patterns. In both the case presently before us
and in J.S. v. Blue Mountain School District, No. 08-4138, we
are asked whether school administrators can, consistent with the
First Amendment, discipline students for speech that occurs off
campus.14 Unlike the fractured decision in J.S., we have
reached a united resolution in this case, but there remains an

   27
     The District argues in the alternative that it did not violate
the First Amendment by punishing Justin because his speech
was defamatory and not protected by the First Amendment. The
Layshocks respond by arguing that Justin=s profile is a parody
that cannot constitute defamation. However, whether or not we
accept the characterization of a Aparody,@ the issue before us is
limited to whether the District had the authority to punish Justin
for expressive conduct outside of school that the District
considered lewd and offensive.

        14 This
              case and J.S. are not related cases in the sense of
being linked on our docket, but they raise nearly identical First
Amendment issues. It is no accident that they were taken en
banc at the same time, were argued on the same date, and are
being decided simultaneously.


                                35
issue of high importance on which we are evidently not agreed
and which I note now, lest there be any misperception that it has
been resolved by either J.S. or our decision here. The issue is
whether the Supreme Court‟s decision in Tinker v. Des Moines
Independent Community School Dist., 393 U.S. 503 (1969), can
be applicable to off-campus speech. I believe it can, and no
ruling coming out today is to the contrary.15
        In Tinker, the Supreme Court emphasized that student
speech, “in class or out of it, which for any reason … materially
disrupts classwork or involves substantial disorder or invasion
of the rights of others is, of course, not immunized by the
constitutional guarantee of freedom of speech.” Id. at 513. It
also suggested that if there are “facts which might reasonably
have led school authorities to forecast substantial disruption of
or material interference with school activities,” that too can
result in disciplinary measures. Id. at 514. Given those
statements, the applicability of Tinker here seems straight-
forward, although it gives no shelter to the defendant school
district in this case because, as the opinion for our Court notes,

       15 I readily acknowledge that “[t]here is some uncertainty
at the outer boundaries as to when courts should apply school
speech precedents” Morse v. Frederick, 551 U.S. 393, 401
(2007), and my conclusion about Tinker‟s applicability in this
case and in J.S. does not account for permutations that may
make Tinker inapposite. Whether the test framed by Tinker will
always be applicable is not a matter to be answered in the
abstract. It is enough for present purposes to observe that it is
an analytical approach the Supreme Court has employed for
decades and that it is both sensible and salutary to apply it in
cases like these.

                               36
“the [Hermitage School] District does not now challenge the …
finding that [the student‟s] conduct did not result in any
substantial disruption[,]” Slip Op. at 33, nor did the School
District demonstrate that the student‟s speech or conduct created
a reasonable apprehension of substantial disruption.

       Tinker ought likewise to be viewed as providing the
governing rule of law in J.S., but that has been thrown into
question by the competing opinions that have emerged in en
banc review. The Majority opinion in J.S. takes the position that
whether Tinker is applicable to off-campus speech is something
that can be assumed without being decided since, in the
Majority‟s view, there was no substantial disruption and hence
the school administrators could not lawfully mete out discipline
for the despicable speech and behavior detailed in that case.
Judge Smith‟s concurring opinion in J.S. argues that Tinker does
not apply. He appears to conclude that, with the exceptions of
speech specifically directed at the school and of speech while at
school-sanctioned events, speech that takes place off-campus is
beyond the reach of school discipline. See J.S. Concurrence,
slip op. at 3-4. The concurrence does acknowledge, however,
that whether Tinker applies “cannot turn solely on where the
speaker was sitting when the speech was originally uttered[,]”
because “[s]uch a standard would fail to accommodate the
somewhat „everywhere at once‟ nature of the internet[,]” id. at 8.
 Judge Fisher then skillfully demonstrates in his dissent in J.S.,
that the heavy focus in the concurrence on an “off-campus
versus on-campus” distinction is artificial and untenable in the
world we live in today. See J.S. Dissent, slip op. at n.4. For
better or worse, wireless internet access, smart phones, tablet
computers, social networking services like Facebook, and

                               37
stream-of-consciousness communications via Twitter give an
omnipresence to speech that makes any effort to trace First
Amendment boundaries along the physical boundaries of a
school campus a recipe for serious problems in our public
schools.

         Tinker teaches that schools are not helpless to enforce the
reasonable order necessary to accomplish their mission. Again,
school officials may curtail speech if they can show “facts
which might reasonably have led [them] to forecast substantial
disruption of or material interference with school activities.”
393 U.S. at 514. We have similarly stressed that, “if a school
can point to a well-founded expectation of disruption ... the
restriction may pass constitutional muster.” Saxe v. State
College Area Sch. Dist., 240 F.3d 200, 212 (3d Cir. 2001).
Trying to limit that principle along real property lines is bound
to run into trouble, as the J.S. concurrence concedes by saying
that there can be difficulty in knowing whether speech has
occurred on or off campus. J.S. Concurrence, slip op. at 8. That
concession, though, fails to get at the fundamental difficulty in
cases like these. The problem is not in knowing where a speaker
was when uttering or otherwise creating speech. Like other
historical facts, where a speaker said something is a matter that
can be decided by typical fact-finding techniques. If the point of
the J.S. concurrence is not to question where the speaker was
physically so much as to question how to characterize the speech
itself, i.e., as having on-campus or off-campus effects, then the
definitional exercise only obscures the effort to answer the
central dilemma, which is how to balance the need for order in
our public schools with respect for free speech. That is the
problem Tinker aimed to address and it is the problem we are

                                38
confronting too, so we should be applying rather than avoiding
Tinker.16
       We cannot sidestep the central tension between good
order and expressive rights by leaning on property lines. With
the tools of modern technology, a student could, with malice
aforethought, engineer egregiously disruptive events and, if the
trouble-maker were savvy enough to tweet the organizing
communications from his or her cellphone while standing one
foot outside school property, the school administrators might

       16  The J.S. concurrence cites Morse, as supporting the
conclusion that Tinker is inapplicable to off-campus speech,
noting that the Morse Court “took care to refute the contention
that the plaintiff‟s speech … did not occur „at school‟” which
“would have been unnecessary” if Tinker were meant to apply to
off-campus speech. J.S. Concurrence, slip op. at 4. That
argument mistakes the import of both Morse and Tinker,
however. The subject of the speech in Morse, which was an odd
reference to illegal drug use, had no relation to the school or
school activities. 551 U.S. at 396. In none of the opinions
issued today is it suggested that such speech, if it took place off
campus and apart from a school sanctioned event, would be
covered by Tinker. Speech that neither relates to school nor
occurs on campus or during a school sanctioned event will in all
likelihood lack a reasonable nexus to school and so will be
divorced from the question of good order in the school, which is
the reach of Tinker. Thus, I do not share the concern expressed
in the J.S. concurrence that applying Tinker to off-campus
speech would “empower schools to regulate students‟ expressive
activities,” or to “suppress political speech” such as “a blog
entry defending gay marriage.” J.S. Concurrence, slip op. at 6.

                                39
succeed in heading off the actual disruption in the building but
would be left powerless to discipline the student. Perhaps all of
us participating in these en banc decisions would agree on that
being problematic. It is, after all, a given that “[t]he most
stringent protection of free speech would not protect a man in
falsely shouting fire in a theatre and causing a panic.” Schenck
v. United States, 249 U.S. 47, 52 (1919), and no one supposes
that the rule would be different if the man were standing outside
the theater, shouting in. Thus it is hard to see how words that
may cause pandemonium in a public school would be protected
by the First Amendment simply because technology now allows
the timing and distribution of a shout to be controlled by
someone beyond the campus boundary.




                               40
       If it is accepted that the First Amendment would not
protect such a deliberate disturbance, we should acknowledge
that we are weighing competing interests and do so in the
straightforward though sometimes challenging way directed by
Tinker. Just as society‟s interest in public safety surmounts any
claim of right to raise a false fire alarm, by the same token any
claimed right to spread scurrilous falsehoods about school
administrators may well be outweighed by society‟s legitimate
interest in the orderly administration of public schools. Tinker
outlines the approach the Supreme Court has given for
undertaking that weighing process.

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

                                41
reasonable forecast of substantial disruption, without waiting for
the chaos to actually hit the hallways.

        In short, nothing in the First Amendment requires
administrators to check their common sense at the school house
door. When they must forecast how poisonous accusations
lobbed over the internet are likely to play out within the school
community, if they “can point to a well-founded expectation of
disruption,” Saxe, 240 F.3d at 212, we ought to be supportive of
their reasonable efforts to maintain appropriate order. I concur
in the Court‟s decision in this case, but do not subscribe to any
implication that Tinker is inapplicable and that school officials
would have been powerless to head off a substantial
disruption.17

       17  I take comfort from certain caveats in the opinion.
While putting distance between our Court and the decisions of
the United States Court of Appeals for the Second Circuit in
Wisniewski v. Board of Educ. of Weedsport Cent. School Dist.,
494 F.3d 34 (2d Cir. 2007), and Doninger v. Niehoff, 527 F.3d
41 (2d Cir. 2008), the opinion for the Court in this case
nonetheless acknowledges that those Second Circuit precedents
“stand for … the unremarkable proposition that schools may
punish expressive conduct that occurs outside of school … .”
Slip Op. at 34. It is noteworthy too that the Majority opinion in
J.S. distinguishes the character of the student speech at issue in
the Second Circuit cases from the speech in J.S. but it does not
make any distinction based on the location of the speaker. In
any event, I agree with the Second Circuit‟s ultimate conclusion
in Wisniewski that Tinker can have applicability to student
speech that occurs off-campus. See Wisniewski, 494 F.3d at 38

                               42
(Ruling on internet speech communicated by a student from a
home computer, and holding, “[w]ith respect to school officials‟
authority to discipline a student‟s expression reasonably
understood as urging violent conduct, we think the appropriate
First Amendment standard is the one set forth by the Supreme
Court in Tinker.”)

                              43
