                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 12-1727
                        ___________________________

S. J. W., By and Through His Parents, Brian Wilson and Linda Wilson; S. W. W.,
           By and Through His Parents, Brian Wilson and Linda Wilson

                       lllllllllllllllllllll Plaintiffs - Appellees

                                           v.

  Lee's Summit R-7 School District; Dr. David McGehee, Superintendent, In His
 Individual and Official Capacity; Jack Wiley, Board President, In His Individual
    and Official Capacity; Chris Storms, Board Member, In His Individual and
 Official Capacity; Terri Harmon, Board Member, In Her Individual and Official
Capacity; Patti Buie, Board Member, In Her Individual and Official Capacity; Ron
          Baker, Board Member, In His Individual and Official Capacity

                     lllllllllllllllllllll Defendants - Appellants

                             ------------------------------

  ACLU Foundation of Kansas and Western Missouri; ACLU Eastern Missouri

                   lllllllllllllllllllllAmici on Behalf of Appellees
                                       ____________

                    Appeal from United States District Court
               for the Western District of Missouri - Kansas City
                                ____________

                          Submitted: September 19, 2012
                             Filed: October 17, 2012
                                 ____________
Before MELLOY and BENTON, Circuit Judges, and BAKER,1 District Judge.
                          ____________

MELLOY, Circuit Judge

       The Lee's Summit R-7 School District ("the School District") issued 180-day
suspensions to twin brothers Steven and Sean Wilson (together, "the Wilsons") on
January 11, 2012 for disruption caused by a website the Wilsons created. The
Wilsons filed suit against the School District on March 6, 2012, alleging, along with
other claims, that the School District violated their rights to free speech. The Wilsons
also filed a Motion for a Preliminary Injunction to lift their suspensions.2 On March
23, 2012, the District Court entered an Order granting the Wilsons' Motion for a
Preliminary Injunction. The School District filed a Notice of Appeal on March 27,
2012. The School District also filed an Expedited Motion for a Stay Pending Appeal
on March 29, 2012, which we denied.

       The matter currently before this court is the School District's appeal of the
Order granting the Wilsons' Motion for a Preliminary Injunction. We hold that the
District Court's findings do not support a preliminary injunction. Accordingly, we
vacate the District Court's Order and reverse the preliminary injunction.

                                           I.

     In December 2011, the Wilsons were juniors at Lee's Summit North High
School ("Lee's Summit North") in the School District. During the week of December


      1
       The Honorable Kristine Gerhard Baker, United States District Court for the
Eastern District of Arkansas, sitting by designation.
      2
       Although the Wilsons' Amended Complaint contains other claims, their
Motion for a Preliminary Injunction was based solely on their free speech claim.

                                          -2-
12, 2011, the Wilsons created a website called NorthPress. NorthPress contained a
blog. According to the Wilsons, the purpose of the blog was to discuss, satirize, and
"vent" about events at Lee's Summit North. The Wilsons used a Dutch domain site,
which prevented U.S. users from finding NorthPress via a Google search, but any
U.S. user could access NorthPress if she knew the website address. The site was not
password-protected.

      Between Tuesday, December 13 and Friday, December 16, 2011, the Wilsons
added posts to the NorthPress blog. The Wilsons' posts contained a variety of
offensive and racist comments as well as sexually explicit and degrading comments
about particular female classmates, whom they identified by name.3 The racist posts
discussed fights at Lee's Summit North and mocked black students. A third student
added another racist post.

       The parties dispute the extent to which the Wilsons used Lee's Summit North
computers to create, maintain, or access NorthPress. On Tuesday, December 13, one
of the Wilsons used a school computer to upload files needed to create NorthPress.
The School District's computer records also show a person or people accessed
NorthPress using Lee's Summit North computers on Wednesday, December 14 and
Thursday, December 15,4 but the records do not show who accessed the site. The
School District cannot prove whether those users added content to the site or merely
viewed it.

      3
        The record suggests the Wilsons were not equally responsible for the posts;
one of the Wilsons may have authored only a single post. However, all the posts
quoted in the record contained offensive and derogatory language.
      4
       On Wednesday, December 14, at least three Lee's Summit North computers
and a total of six computers within the School District were used to access
NorthPress; on Thursday, December 15, one Lee's Summit North computer and one
computer at a middle school within the School District were used to access
NorthPress.

                                        -3-
      The Wilsons testified they initially told only five or six school friends about
NorthPress. The Wilsons also claimed they intended only their friends to know about
NorthPress. However, whether by accident or intention, word spread quickly. On the
morning of Friday, December 16, the Lee's Summit North student body at large
learned about NorthPress.

       Based on student and faculty reports, Lee's Summit North administrators
quickly linked the Wilsons to NorthPress. Lee's Summit North administrators
immediately suspended the Wilsons for ten days and referred the matter to the School
District. Following a hearing, an appeal by the Wilsons, and a second hearing, the
School District suspended both Wilsons from Lee's Summit North for 180 days but
allowed them to enroll in another school, Summit Ridge Academy, for the duration
of their suspensions. The Wilsons filed suit against the School District and moved
for a preliminary injunction to lift the suspensions.

       The District Court conducted a preliminary injunction hearing on March 19,
21, and 22, 2012. At the hearing, the Wilsons testified they intended the posts on
NorthPress to be satirical rather than serious. The Wilsons denied they were racists.
The Wilsons testified that December 16, 2011 was a normal school day free from
significant disruptions and suggested that the third student's post was the sole cause
of any actual disruption. The Wilsons claimed that the classes at Summit Ridge
Academy were not academically challenging, that Summit Ridge Academy did not
provide honors courses, and that Summit Ridge Academy did not provide ACT
classes. The Wilsons also testified they wanted to pursue careers in music or theater,
and their chances for college band scholarships would be hurt if they could not
participate in the Lee's Summit North band. The Wilsons' parents testified they did
not believe their sons would be in any danger at Lee's Summit North.

     Conversely, the School District's witnesses testified the public discovery of
NorthPress caused substantial disruption on December 16, 2011. The School

                                         -4-
District's computer records from December 16 show numerous Lee's Summit North
computers were used to access or to attempt to access NorthPress.5 Lee's Summit
North teachers testified they experienced difficulty managing their classes because
students were distracted and in some cases upset by NorthPress; at least two teachers
described December 16 as one of the most or the most disrupted day of their teaching
careers. Lee's Summit North administrators testified that local media arrived on
campus and that parents contacted the school with concerns about safety, bullying,
and discrimination, both on December 16 and for some time afterwards.
Additionally, Lee's Summit North administrators expressed concern that the Wilsons'
early return to Lee's Summit North would cause further disruption and might
endanger the Wilsons.

       On March 22, 2012, the District Court granted the Wilsons' Motion for a
Preliminary Injunction in an oral ruling and subsequently issued a written order to the
same effect. In its oral ruling, the District Court considered "likelihood of success,
whether plaintiffs will suffer irreparable harm if relief is denied, whether the balance
of inequities tips in the plaintiffs['] favor, [and] whether injunctive relief is in the
public interest." The District Court observed no Eighth Circuit decision directly
controlled the Wilsons' free speech claim. However, the District Court pointed to two
pertinent Eighth Circuit cases, Doe v. Pulaski County Special School District, 306
F.3d 616 (8th Cir. 2002), and D.J.M. v. Hannibal Public School District #60, 647
F.3d 754 (8th Cir. 2011). The District Court observed that the Wilsons needed to
show a "fair chance" of success on the merits. Citing cases from other circuits, the
District Court concluded, "there does seem to be a distinct possibility that the




      5
       The School District blocked access to NorthPress from its computers when
administrators learned about the website.

                                          -5-
defendants could be exonerated based on the discussion that I've mentioned and the
cases that I have reviewed."6

       The District Court credited the testimony of Lee's Summit North teachers and
concluded NorthPress "caused considerable disturbance and disruption on Friday, the
16th." Although the District Court evidently agreed that the third student's post was
the primary cause of the disturbance on December 16, the District Court also noted
at least one of the Wilsons' posts about a female student "was part of the sensation
that day" and concluded "[t]he greatest school wide problem apparently was created
by several racist blogs, one of the worst of which was authored by the first twin." The
District Court found that the NorthPress blog was "targeted at" Lee's Summit North.

       The District Court found that the Wilsons' inability to try out for the Lee's
Summit North band or attend the honors classes offered at Lee's Summit North
constituted irreparable harm. It concluded the balance of equities clearly favored the
Wilsons. The District Court concluded an injunction posed no material harm to the
School District. It identified no significant public interests at play "other than in a
fair and reasonable disposition of the motion." Based on these conclusions, the
District Court entered an Order granting the Wilsons' Motion for a Preliminary
Injunction and allowing the Wilsons to return to Lee's Summit North on April 9,
2012.

      The School District appealed the preliminary injunction. Following our denial
of the School District's Expedited Motion for Stay Pending Appeal, the Wilsons
returned to Lee's Summit North. As a result of the preliminary injunction, the
Wilsons have not completed their suspensions.

      6
        The School District suggests the District Court misspoke and meant to say the
Wilsons "could be exonerated"—that is, that the Wilsons had a "distinct possibility"
of success. We have no reason to believe the District Court misspoke; we believe the
District Court was referring to the School District and the other defendants.

                                         -6-
       On appeal, the School District argues the District Court failed to make
sufficient findings of irreparable harm and failed to make an appropriate finding of
the Wilsons' likelihood of success. The School District argues the preliminary
injunction essentially forgave the Wilsons' suspensions—if the Wilsons graduate
before the District Court reaches a final decision on the merits, which is likely, the
School District will not be able to enforce the remainder of the suspensions even if
it prevails on the merits. Thus, the School District argues, the preliminary injunction
gave the Wilsons "substantially all the relief sought" and should have been treated as
a motion requesting a permanent rather than preliminary injunction.7 Finally, the
School District alleges the District Court improperly shifted the burden from the
Wilsons to the School District when the District Court suggested this case could be
resolved by summary judgment motions during summer 2012.

      The Wilsons argue the District Court's findings adequately support the
preliminary injunction. The Wilsons contend their posts on NorthPress were
protected free speech for which the School District could not constitutionally punish
them. The Wilsons claim NorthPress did not cause significant disruption at Lee's
Summit North, but maintain the third student's post was the sole cause of any actual
disruption. Finally, the Wilsons argue the Communications Decency Act insulates
them from punishment altogether.

                                          II.

      "We review the denial of a preliminary injunction for an abuse of discretion,
which occurs when 'the district court rests its conclusion on clearly erroneous factual
findings or erroneous legal conclusions.'" Phelps-Roper v. Troutman, 662 F.3d 485,

      7
        The School District makes much of the fact that the preliminary injunction
altered rather than maintained the status quo. It argues injunctions which alter the
status quo are subject to a higher standard of proof. However, the School District cites
no relevant Eighth Circuit authority in support of this argument.

                                          -7-
488 (8th Cir. 2011) (quoting Planned Parenthood v. Rounds, 530 F.3d 724, 733 (8th
Cir. 2008) (en banc)). "We review the district court's legal conclusions de novo."
Child Evangelism Fellowship of Minn. v. Minneapolis Special Sch. Dist. No. 1, 690
F.3d 996, 1000 (8th Cir. 2012) (citing Grand River Enters. Six Nations, Ltd. v. Beebe,
467 F.3d 698, 701 (8th Cir. 2006)). "Whether a preliminary injunction should issue
involves consideration of (1) the threat of irreparable harm to the movant; (2) the state
of balance between this harm and the injury that granting the injunction will inflict
on other parties litigant; (3) the probability that movant will succeed on the merits;
and (4) the public interest." Dataphase Sys., Inc. v. C L Sys., Inc., 640 F.2d 109, 113
(8th Cir. 1981).

       We do not find that the District Court made inadequate factual findings; rather,
we "conclude that its findings do not support the relief granted." Id. at 114. We hold
that the Wilsons are unlikely to succeed on the merits under the relevant caselaw. We
also conclude the District Court's findings do not establish sufficient irreparable harm
to the Wilsons to justify a preliminary injunction.

      A. Likelihood of Success of the Merits

       "In deciding whether to grant a preliminary injunction, 'likelihood of success
on the merits is most significant.'" Minn. Ass'n of Nurse Anesthetists v. Unity Hosp.,
59 F.3d 80, 83 (8th Cir. 1995) (quoting S & M Constructors, Inc. v. Foley Co., 959
F.2d 97, 98 (8th Cir. 1992)). The Wilsons' success on the merits will depend on what
standard the District Court applies. The School District argues Tinker v. Des Moines
Independent Community School District, 393 U.S. 503 (1969), should control. The
Wilsons argue otherwise. First, the Wilsons argue all off-campus speech is protected
and cannot be the subject of school discipline, even if the speech is directed at the
school or specified students. Alternatively, they argue that if Tinker applies, the
speech was not directed at the school and did not create a substantial disruption.



                                          -8-
       "It 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. However, in the school environment, some speech is not protected by the
First Amendment, and school officials may lawfully punish some forms of
unprotected student speech. Under Tinker, "conduct by the student, in class or out
of it, which for 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 . . . not immunized by the constitutional guarantee of freedom
of speech." 393 U.S. at 513. Thus, student speech that causes a substantial disruption
is not protected. Based on the cases below and on the District Court's finding that
NorthPress was "targeted at" Lee's Summit North, we believe Tinker is likely to
apply. Further, because the District Court found the Wilsons' posts caused a
substantial disruption, the Wilsons are unlikely to succeed on the merits under Tinker.

       In D.J.M. v. Hannibal Public School District #60, we indicated that Tinker
applies to off-campus student speech where it is reasonably foreseeable that the
speech will reach the school community and cause a substantial disruption to the
educational setting. 647 F.3d 754, 766 (8th Cir. 2011). In instant messages to a
school friend, plaintiff D.J.M. threatened to obtain a gun and shoot students at his
school. Id. at 756. D.J.M. sent the instant messages from his home. Id. D.J.M.'s
friend reported the instant messages to the school principal, and D.J.M. was
suspended. Id. Following Tinker, we determined D.J.M.'s speech was not protected
by the First Amendment.8 Id. at 766. Because it was "reasonably foreseeable"
D.J.M.'s speech "would be brought to the attention of school authorities and create
a risk of substantial disruption within the school environment," and because the
speech did actually cause substantial disruption, the school could lawfully punish
D.J.M. Id.


      8
      We also concluded D.J.M.'s instant messages constituted true threats, which
we analyze under a different standard. See D.J.M., 647 F.3d at 761–66.

                                           -9-
       Cases from other circuits support our conclusion that Tinker should apply and
that the Wilsons are unlikely to succeed on the merits under Tinker. First, in
Doninger v. Niehoff, the Second Circuit refused to enjoin the punishment of a student
who used her home computer to post rude comments about an administrator online.
527 F.3d 41, 46 (2d Cir. 2008). As punishment for her posts, the school barred
plaintiff Doninger from participation in student government, and Doninger filed suit
on First Amendment grounds. Id. at 46–47. The district court refused to
preliminarily enjoin Doninger's punishment and the Second Circuit affirmed. Id. at
43–44. The Second Circuit concluded Doninger's speech was "'purposely designed'"
to reach the school's campus because "[t]he blog posting directly pertained to events
at LMHS, and [Doninger's] intent in writing it was specifically 'to encourage her
fellow students to read and respond." Id. at 50 (quoting Doninger v. Niehoff, 514 F.
Supp. 2d 199, 216, 206 (D. Conn. 2007). The Second Circuit held "that a student
may be disciplined for expressive conduct, even conduct occurring off school
grounds, when this conduct 'would foreeseably create a risk of substantial disruption
within the school environment,' at least when it was similarly foreseeable that the off-
campus expression might also reach campus." Id. at 48 (quoting Wisniewski v. Bd.
of Educ., 494 F.3d 34, 40 (2d. Cir. 2007)).

      Second, in Kowalski v. Berkeley County Schools, the Fourth Circuit concluded
a school district did not violate plaintiff Kowalski's First Amendment rights when it
suspended Kowalski for creating a website on which other students posted
defamatory information about a classmate. 652 F.3d 565, 567 (4th Cir. 2011), cert
denied, 132 S. Ct. 1095 (2012). Even though Kowalski created the website at home,

      she knew that the electronic response would be, as it in fact was,
      published beyond her home and could reasonably be expected to reach
      the school or impact the environment. She also knew that the dialogue
      would and did take place among Mussleman High School students
      whom she invited to join [the online group] and that the fallout from her


                                         -10-
       conduct and the speech within the group would be felt in the school
       itself.

Id. at 573. Therefore, "the School District was authorized by Tinker to discipline
Kowalski, regardless of where her speech originated, because the speech was
materially and substantially disruptive in that it 'interfer[ed] . . . with the schools' [sic]
work [and] colli[ded] with the rights of other students to be secure and to be let
alone.'" Id. at 573–74 (alterations in original) (quoting Tinker, 393 U.S. at 508).

      Finally, in J.S. v. Blue Mountain School District, the Third Circuit found that
a school district had violated the First Amendment rights of plaintiff J.S. when it
suspended J.S. for creating, outside of school, an online profile for the school
principal that mocked the principal and contained "adult language and sexually
explicit content." 650 F.3d 915, 920 (3d Cir. 2011), cert denied, 132 S. Ct. 1097
(2012). Unlike Kowalski's speech, "[t]here [was] no dispute that J.S.'s speech did not
cause a substantial disruption in the school." Id. at 928. "The profile was so
outrageous that no one could have taken it seriously . . . . Thus, it was clearly not
reasonably foreseeable that J.S.'s speech would create a substantial disruption or
material interference in school . . . ." Id. at 930. Therefore, "the School District's
actions violated J.S.'s First Amendment free speech rights." Id. at 920. The Third
Circuit "assum[ed], without deciding," that Tinker applied. Id. at 926.

       Based on these cases, we expect Tinker will apply here because the Wilsons'
speech was, in the District Court's words, "targeted at" Lee's Summit North. The
parties dispute the extent to which the Wilsons' speech was "off-campus," but the
location from which the Wilsons spoke may be less important than the District Court's
finding that the posts were directed at Lee's Summit North. Just like the online
speech in Kowalski and Doninger, the NorthPress posts "could reasonably be
expected to reach the school or impact the environment." Kowalski, 652 F.3d at 573.
Furthermore, unlike in J.S., the District Court found that the NorthPress postings


                                            -11-
"caused considerable disturbance and disruption on Friday, the 16th." Under Tinker,
speech which actually caused a substantial disruption to the educational environment
is not protected by the First Amendment. Therefore, the Wilsons are unlikely to
succeed on the merits.

      B. Irreparable Harm

       "To succeed in demonstrating a threat of irreparable harm, 'a party must show
that the harm is certain and great and of such imminence that there is a clear and
present need for equitable relief.'" Roudachevski v. All-Am. Care Ctrs., Inc., 648
F.3d 701,706 (8th Cir. 2011) (quoting Iowa Utils. Bd. v. Fed. Commc'ns Comm'n,
109 F.3d 418, 425 (8th Cir. 1996)). "The Dataphase court noted that a failure to
demonstrate irreparable harm, standing alone, may be a sufficient basis to deny
preliminary injunctive relief." Caballo Coal Co. v. Ind. Mich. Power Co., 305 F.3d
796, 800 (8th Cir. 2002) (citing Dataphase, 640 F.3d at 114 n.9). The District Court's
findings do not show that the Wilsons would have suffered irreparable harm in the
absence of an injunction.

       In finding irreparable harm, the District Court relied in part on the Wilsons'
argument that the academic work at Summit Ridge Academy was insufficiently
challenging. But Summit Ridge Academy is an accredited school in the same district
as Lee's Summit North. While attending Summit Ridge Academy, the Wilsons earned
academic credit and stayed on track for graduation in May 2013. Moreover, although
the Wilsons claim they were harmed because Summit Ridge Academy did not offer
honors courses, the preliminary injunction was issued too late in the semester for
them to receive credit at Lee's Summit North—the injunction could not prevent any
potential harm resulting from the Wilsons' loss of honors credit. See CDI Energy
Servs. v. W. River Pumps, Inc., 567 F.3d 398, 403 (8th Cir. 2009) (irreparable harm
factor weighed against preliminary injunction because the harm "to a large extent,


                                        -12-
ha[d] already occurred."). Under these facts, we are not convinced the Wilsons were
at risk of any real academic harm, much less any "certain and great" harm that could
be prevented by an injunction. Iowa Utils. Bd., 109 F.3d at 425.

       The other harm the District Court identified was the Wilsons' inability to try
out for the Lee's Summit North band during their suspension. The Wilsons argued
they might pursue careers in music; if they did not participate in band, they might
jeopardize their music careers in college and beyond. But any future harm to the
Wilsons' careers was speculative. Speculative harm does not support a preliminary
injunction. See, e.g., Minn. Ass'n of Health Care Facilities, Inc. v. Minn. Dep't of
Pub. Welfare, 602 F.2d 150, 154 (8th Cir. 1979) ("[T]he speculative nature of the
threatened harm support[s] the denial of injunctive relief."). Therefore, the harms the
District Court identified do not constitute irreparable harm sufficient to sustain a
preliminary injunction.

       Since we conclude the District Court's findings of irreparable harm and the
Wilsons' likelihood of success on the merits do not support a preliminary injunction,
we need not address in detail the parties' arguments as to the remaining Dataphase
factors. However, our decision not to analyze the interests of the School District, its
students, and the public does not mean those interests are unimportant; they are
important. The specter of cyber-bullying hangs over this case. The repercussions of
cyber-bullying are serious and sometimes tragic. The parties focus their arguments
on the disruption caused by the racist comments, but possibly even more significant
is the distress the Wilsons' return to Lee's Summit North could have caused the
female students whom the Wilsons targeted.




                                         -13-
      C. Additional Arguments

       The parties make several additional arguments we wish to address. First, the
Wilsons argue they can prevail on the merits based on the Communications Decency
Act ("CDA"). Under the CDA, "[n]o provider or user of an interactive computer
service shall be treated as the publisher or speaker of any information provided by
another information content provider." 47 U.S.C. § 230(c)(1). The Wilsons argue
that they were merely providers of a computer service, namely, NorthPress, and that
they cannot be treated as the "publisher or speaker" of the third student's post. Since
the Wilsons claim the third student's racist post was the cause of any actual
disruption, they argue they were unlawfully punished for the third student's speech.

       We make no comment as to whether the CDA protects high school students
from school discipline. However, the District Court's findings do not support the
Wilsons' contention that the disruption stemmed exclusively from the third student's
post. The District Court expressly found that the Wilsons' own posts contributed to
the disruption. Thus, the CDA would not necessarily protect the Wilsons even if it
applied.

      Second, we disagree with the School District's argument that the District Court
should have evaluated the Wilsons' Motion for a Preliminary Injunction under the
standard for a permanent injunction. As the District Court stated, the preliminary
injunction did not reduce or forgive the Wilsons' suspensions. Moreover, a movant
must show "actual success on the merits" to obtain a permanent injunction. Cmty. of
Christ Copyright Corp. v. Devon Park Restoration Branch of Jesus Christ's Church,
634 F.3d 1005, 1012 (8th Cir. 2011) (citation omitted). At the pre-trial stage, it
would have been impossible for the Wilsons to show actual success. Thus, it was
appropriate for the District Court to apply the preliminary injunction test under
Dataphase.


                                         -14-
       Finally, we reject the School District's argument that the District Court
improperly shifted the burden from the Wilsons to the School District when the
District Court suggested this case could be resolved on summary judgment during
summer 2012. The District Court did not shift the evidentiary burden to the School
District, and its comments were not improper. The District Court's comments simply
indicated its belief that an early resolution was in the best interests of all parties.

                                         III.

      We leave to the District Court the unenviable task of fashioning a remedy
several months after the entry of the injunction and the Wilsons' return to school.
However, based on the record and findings of the District Court, we conclude the
entry of the injunction in March 2012 was in error. We vacate the District Court's
Order and reverse the preliminary injunction.
                       ______________________________




                                         -15-
