No In the SUPREME COURT OF THE UNITED STATES. October Term, 2014 CARROLL PREPARATORY SCHOOL, INC., Petitioner v.

Transcription

1 No In the SUPREME COURT OF THE UNITED STATES October Term, 2014 CARROLL PREPARATORY SCHOOL, INC., Petitioner v. ANNA LYONS, a minor, through her parent, DEBORAH LYONS, Respondent. ON WRIT OF CERTIORARI FROM THE UNITED STATES COURT OF APPEALS FOR THE THIRTEENTH CIRCUIT BRIEF FOR THE PETITIONER

2 QUESTIONS PRESENTED I. Whether a charter school, declared public by state law but privately owned, directed, and operated by a nonprofit corporation employing private teachers and administrators, can be held liable under 42 U.S.C as acting under color of state law for disciplining a student when it is exempted from state regulations affecting school discipline. II. Whether a school s authority to limit the First Amendment rights of its students in order to prohibit disruptive, lewd, and drug-endorsing speech created on campus should extend to speech that while created off campus is posted to the Internet and subsequently enters the school environment. ii

3 Index QUESTIONS PRESENTED... ii TABLE OF AUTHORITIES... v OPINIONS BELOW... 1 STATEMENT OF THE CASE... 1 SUMMARY OF THE ARGUMENT... 4 ARGUMENT... 6 I. CARROLL PREPARATORY SCHOOL DOES NOT ACT UNDER COLOR OF STATE LAW UNDER 42 U.S.C BECAUSE THE SCHOOL DOES NOT FULFILL AN EXCLUSIVE PUBLIC FUNCTION, THE SCHOOL IS NOT ENTWINED WITH THE STATE, AND THERE ARE COUNTERVAILING CONCERNS AGAINST ATTRIBUTING ITS CONDUCT TO THE STATE... 6 A. The Court should reverse the appellate court s ruling that CPS fulfilled a public function because neither providing free education to children of Hoynes nor disciplining a student for causing a disturbance at a charter school has traditionally exclusively reserved to the state Neither providing education nor providing free public education is an exclusive state service Disciplining a student for disrupting a charter school classroom has never been traditionally exclusively reserved to the state... 9 B. CPS is not so entwined with the state that it should be considered a state actor because it does not have a close nexus or a symbiotic relationship with Hoynes CPS s operations and leadership do not have a close nexus with Hoynes Hoynes s financial support does not immediately result in a significant state monetary benefit C. CPS s conduct should not be attributed to the state due to countervailing concerns against chilling private activity and violating principles of federalism Section 1983 was not intended to chill the provision of socially useful charter school education The basic tenet of federalism allows states to act as laboratories of democracy iii

4 II. CARROLL PREPARATORY SCHOOL WAS JUSTIFIED IN PROHIBITING LYONS S OFF-CAMPUS CYBER-BULLYING AS IT AROSE FROM AN ON- CAMPUS ISSUE, WAS AIMED AT ON-CAMPUS STUDENTS, AND RESULTED IN A SUBSTANTIAL ON-CAMPUS DISRUPTION A. Anna Lyons s speech is punishable under the Supreme Court s Tinker, Fraser, and Morse standards Lyons s speech materially and substantially interfered with the operation of the school under Tinker a. At the time of punishment, a substantial disruption had already occurred b. At the time of punishment, an even greater disruption was about to occur Lyons s speech is per se punishable in under Fraser because it was lewd and vulgar Lyons s speech is punishable under Morse because it contains references to cigarettes and alcohol B. A school s right to limit speech should extend to Internet speech when it is reasonably foreseeable that the speech will enter the school environment Off-campus speech is subject to the Tinker test Off-campus speech extends to Fraser and Morse CONCLUSION iv

5 TABLE OF AUTHORITIES Cases Am. Mfrs. Mut. Ins.Co. v. Sullivan, 526 U.S. 40 (1999)... 7, 9 Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675 (1986)... 14, 18 Blum v. Yaretsky, 457 U.S. 991 (1982)... 6, 8, 9, 11 Boucher v. Sch. Bd. of the Sch. Dist. of Greenfield, 134 F.3d 821 (7th Cir. 1998)... 16, 19 Brentwood Acad. v. Tenn. Secondary Sch. Athletic Assn., 531 U.S. 288 (2001)... 6, 10, 12 Burton v. Wilmington Parking Auth., 365 U.S. 715 (1961)... 10, 11 Caviness v. Horizon Community Learning Ctr., Inc., 590 F.3d 806 (9th Cir. 2010)... 8 Lyons v. Carroll Prep. Sch., Inc., 170 F.4th 14 (13th Cir. 2014)... 1, 4, 18 Lyons v. Carroll Prep. Sch., Inc., 509 F. Supp. 4th 3 (N.D. Hoy. 2013)... 1, 4, 7, 9 Doninger v. Niehoff, 527 F.3d 41 (2d Cir. 2008)... 15, 19 Evans v. Newton, 382 U.S. 296 (1966)... 7, 10 Flagg Bros. v. Brooks, 436 U.S. 149 (1978)... 7, 8 Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 685 (1986) J.C. v. Beverly Hills Unified School Dist., 711 F. Supp. 2d 1094 (C.D. Cal. 2010) J.S. v. Bethlehem Area School Dist., 807 A.2d 847 (Pa. 2002)... 16, 19 Jackson v. Metro. Edison Co., 419 U.S. 345 (1974)... 7, 10 Johnson v. Pinkerton Acad., 861 F.2d 335 (1st Cir. 1988)... 9 Killion v. Franklin Regional Sch. Dist., 136 F. Supp. 2d 446 (W.D. Pa. 2001)... 16, 19 Kowalski v. Berkeley Cnty. Sch., 652 F.3d 565, 573 (4th Cir. 2011) LaVine v. Blaine Sch. Dist., 257 F.3d 981 (9th Cir. 2001) Logiodice v. Trustees of Maine C. Inst., 296 F.3d 22 (1st Cir. 2002)... 9 Lorillard Tobacco Co. v. Reilly, 533 U.S. 525 (2001) v

6 Lugar v. Edmondson Oil Co., 457 U.S. 922 (1982)... 6, 10, 12 Moose Lodge No. 107 v. Irvis, 407 U.S. 163 (1972) Morse v. Frederick, 551 U.S. 393 (2007)... 14, 15, 18, 19, 20 New State Ice Co. v. Liebmann, 285 U.S. 262 (1932) Pierce v. Socy. of the Sisters of the Holy Names of Jesus & Mary, 268 U.S. 510 (1925)... 8 Porter v. Parish Sch. Bd., 393 F.3d 608 (5th Cir. 2004) Rendell-Baker v. Kohn, 457 U.S. 830 (1982)... 6, 7, 8 San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1 (1973)... 8 S.J.W. v. Lee's Summit R-7 Sch. Dist., 696 F.3d 771, 778 (8th Cir. 2012) Sypniewski v. Warren Hills Regl. Bd. of Educ., 307 F.3d 243 (3d Cir. 2002) Thomas v. Bd. of Educ., 607 F.2d 1043 (2d Cir. 1979) Tinker v. Des Moines Indep. Community Sch. Dist., 393 U.S. 503 (1969)... 14, 15, 16 U.S. v. Drew, 259 F.R.D. 449 (C.D. Cal. 2009) Whalen v. Roe, 429 U.S. 589 (1977) Wisniewski v. Bd. of Educ. of the Weedsport C. Sch. Dist., 494 F.3d 34 (2d Cir. 2007)... 14, 19 Statutes 42 U.S.C (2006)... 4, 6 Hoy. Stat et seq. (2014)... 3, 4 vi

7 No In the SUPREME COURT OF THE UNITED STATES October Term, 2014 CARROLL PREPARATORY SCHOOL, INC., Petitioner v. ANNA LYONS, a minor, through her parent, DEBORAH LYONS, Respondent. BRIEF FOR THE PETITIONER OPINIONS BELOW The opinion of the United States District Court for the Northern District of Hoynes is reported as Lyons v. Carroll Preparatory School, 509 F. Supp. 4th 3 (N.D. Hoy. 2013). The opinion of the United States Court of Appeals for the Thirteenth Circuit is reported as Lyons v. Carroll Preparatory School, 170 F.4th 14 (13th Cir. 2014). RELEVANT STATUTES AND CONSTITUTIONAL PROVISIONS The relevant provisions are set forth in the Appendix. STATEMENT OF THE CASE In the fall of 2011, the pregnancy of three students became the talk of the Carroll Preparatory School (CPS). Lyons v. Carroll Preparatory Sch., 509 F. Supp. 4th 3, 5 (N.D. Hoy. 2013). The three expectant mothers, Breana Phillips, Jenny Cavanaugh, and Tori Howard, celebrated their pregnancies publicly. Id. Rumors surrounding these pregnancies spread to the point where even CPS Principal Zahm knew of the gossip. Id. This buzz was further fueled by a 1

8 popular reality show called Kids Raising Kids, which followed the lives of teen mothers, and became an easy point of comparison for gossiping students. Id. One such comparison was made by Anna Lyons (Lyons), a senior at CPS who decided to express her opinions by bullying. Id. at 11 n.2. Lyons was no stranger to bullying, having been punished under the CPS anti-bullying policy her sophomore year when she called a freshman girl a whore an act that inspired other acts of harassment at CPS, ultimately leading to school- sponsored conferences to calm concerned parents. Id. at 8. Lyons struck again on November 3, 2011, when she posted a modified picture of a magazine cover on her web log (blog), with the modified title CPS Moms Suck. Id. at 6. The original picture was a cover of the magazine WE Bi-Weekly, showing three teen mothers from Kids Raising Kids with their newborns, as well as three side stories: one showing a musician smoking a cigarette, one depicting an alleged drinking and driving incident involving a famous aerobics instructor, and one showing a child actor dancing in a bikini. Id. Lyons modified the picture by superimposing the faces of Breana, Jenny, and Tori onto the faces of the teen mothers. Id. She added pictures of newborns over the faces of the two musicians so that it appeared as though the babies were smoking cigarettes, and wrote the caption This iz ur brain on dirty flirts. Id. Lyons added the slogan I WUZ A 1-NITER to the t-shirt of one of the newborns, and below that she wrote Future Sluts of Hoynes. Id. Lyons made it appear as though Jenny was driving the car and superimposed a picture of a bloody baby carriage at the car s bumper, simulating a collision. Id. Below the car she wrote Jenny luvs her Henny, referencing Hennessy cognac. Id. That night, Lyons forwarded the URL address of her blog post to four CPS students. Id. Other students already knew of her blog, and the post received ten hits that night. Id. On November 5, Breana, Jenny, and Tori arrived at school to find copies of Lyons s picture taped 2

9 to their lockers. Id. Student gossip about the incident immediately spread throughout the school causing several teachers to lose up to fifteen minutes of class time trying to quiet the students. Id. at 7. The disturbance required one teacher to abandon her class in order to have an emergency conference with Principal Zahm. Id. Administrators were forced to cancel several meetings that morning to tend to the incident. Id. The administration s efforts to quiet the buzz were unsuccessful. Later that day, the picture reappeared at school as students began accessing the blog via in-school computers. Id. Another copy of the picture appeared on Tori s locker with the words SERIOUSLY, ABORT written across it, causing her boyfriend, Duncan Hall, to march to the commons area and threaten, If I see this stupid crap again, somebody s gonna get it! Id. This led to additional classroom distractions, including a weeklong block on interactive Internet access. Id. Since this was Lyons s second bullying offense, the principal, under advice from a student-run discipline board, suspended her for ten school days. Id. Two days later, on November 8, Lyons permanently removed the blog post. Id. at 8. CPS, the site of this weeklong controversy, is a charter school established in 2005 to empower its graduates to master the challenges of the changing world in a way Hoynes s stifled public education had failed to do. Id. at 4. To that end, CPS heavily emphasizes the global fields of mathematics, computer science, and languages in its curriculum. Id. Moreover, it progressively encourages student involvement in creating an open and collaborative classroom by allowing the student-run discipline board to suggest appropriate discipline to the principal. Id. at 5. These innovations have led to increasing recognition among parents all over Hoynes, who have tried to get their children enrolled in CPS. Id. These innovations are made possible by the Charter School Enabling Act (CSEA), Hoy. Stat et seq. (2014), which was enacted in order to allow private entities to 3

10 establish schools experiment[ing] with new methods of education. Lyons, 509 F. Supp. 4th at 3. While CPS is public under (3) of the CSEA, it is exempt from all state regulation of public schools and from most local regulations. Hoy. Stat (3). This waiver includes a full exemption from any state or local mandate affecting school discipline. Id. Even though most CPS teachers and administrators participate in the state retirement system, they are not public employees (2)(e). CPS currently receives ninety percent of its funding from Hoynes but is owned and operated by Carroll Preparatory Enterprises (CPE), a Hoynes nonprofit corporation. Lyons, 509 F. Supp. 4th at 4 5. CPE hired a five-member board of trustees to direct CPS, which is comprised of four CPE officers and one retired school principal. Id. Its current home is an abandoned public library that was leased from Hoynes without involvement of the Hoynes State Board of Education. Id. at 4. Lyons brought suit in the District Court for the Northern District of Hoynes under 42 U.S.C alleging that CPS s punishment violated her First Amendment right to free speech. Id. at 8. While finding that CPS acted under color of state law under 1983, the District Court granted CPS s motion for summary judgment, holding that CPS s limitations on Lyons speech were justified under the First Amendment. Id. at 13. Lyons appealed, and the Court of Appeals for the Thirteenth Circuit reversed. Lyons v. Carroll Preparatory Sch., 170 F.4th 14, 16 (13th Cir. 2010). CPS then appealed the decision of the appellate court, and the Supreme Court granted certiorari, petition no SUMMARY OF THE ARGUMENT This Court should reverse the opinion of the appellate court and grant summary judgment to Carroll Preparatory School. First, the appellate court erred when it held that CPS acted under color of state law under 42 U.S.C It misapplied two tests: (1) whether a 4

11 private entity has exercised powers traditionally exclusively reserved to the state, and (2) whether private conduct has become entwined with governmental policies. It also failed to consider countervailing concerns against chilling the provision of progressive charter school education and violating basic principles of federalism. This Court has never held that providing education is an exclusive state function, and has already decided free public education is not an exclusive state function. Like the school in Rendell-Baker, CPS is a private, nonprofit school providing alternative educational services services not provided by Hoynes until passage of the CSEA. Moreover, disciplining a student is not an exclusive state function, particularly when Hoynes specifically disclaimed its involvement in charter school discipline. CPS is also not entwined with Hoynes; CPS does not have a close nexus with Hoynes, as its directors, teachers, and administrators including those directly involved in Lyons s discipline are not public employees. Moreover, there is nothing in the record that suggests Hoynes symbiotically receives substantial monetary benefit in exchange for funding CPS. Second, the appellate court erred in reversing the district court s grant of summary judgment, holding that CPS violated the First Amendment in limiting Lyons s speech. The limitation was justified under the Supreme Court s Tinker test, as CPS justly anticipated that Lyons s cyber-bullying would result in a substantial school disruption a disruption that actually occurred. Alternatively, CPS also had the right under Fraser to prohibit speech that is lewd and vulgar, and under Morse to prohibit speech that depicts the use of cigarettes and alcohol. Further, the appellate court erred in refusing to recognize a school s right to limit offcampus speech that makes its way on campus, ignoring the fact that it was reasonably foreseeable 5

12 that Lyons s speech would make its way into the school environment. Finally, the appellate court s holding sets a dangerous precedent by preventing schools from addressing a new form of bullying that can lead to grave results. For these reasons, the appellate court s decision should be reversed and petitioner s motion for summary judgment granted. ARGUMENT I. CARROLL PREPARATORY SCHOOL DOES NOT ACT UNDER COLOR OF STATE LAW UNDER 42 U.S.C BECAUSE THE SCHOOL DOES NOT FULFILL AN EXCLUSIVE PUBLIC FUNCTION, THE SCHOOL IS NOT ENTWINED WITH THE STATE, AND THERE ARE COUNTERVAILING CONCERNS AGAINST ATTRIBUTING ITS CONDUCT TO THE STATE. This Court should reverse the decision of the appellate court and hold that Carroll Preparatory School (CPS) is not liable under 42 U.S.C for acting under color of state law when it disciplined Anna Lyons (Lyons). 42 U.S.C holds liable anyone who, under color of any statute... of any State... depriv[es]... any rights... secured by the Constitution. 42 U.S.C (2006). In determining whether a private party is subject to suit under 1983, courts consider whether the alleged infringement of federal rights [is] fairly attributable to the State[] Rendell-Baker v. Kohn, 457 U.S. 830, 838 (1982) (quoting Lugar Edmondson Oil Co., 457 U.S. 922, 937 (1982)). Although the Charter School Enabling Act (CSEA) provides here that all charter schools are public schools, Hoy. Stat (3) (2014), this Court has identified a host of facts that can bear on the fairness of such an attribution. Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass n, 531 U.S. 288, 296 (2001). First, this Court has evaluated whether a state has exercised coercive power over the private party. Blum v. Yaretsky, 457 U.S. 991, 1005 (1982). Second, this Court has found state action present in the exercise by a private entity of powers traditionally exclusively reserved to 6

13 the State. Jackson v. Metro. Edison Co., 419 U.S. 345, 353 (1974); see also Flagg Bros. v. Brooks, 436 U.S. 149, 157 (1978). Finally, this Court has found state action when private conduct has become so entwined with governmental policies. Evans v. Newton, 382 U.S. 296, 299 (1966). Lyons does not allege, and the appellate court did not rule, that the State of Hoynes coerced CPS to discipline her. Lyons v. Carroll Preparatory Sch., 509 F. Supp. 4th 3, 8 (N.D. Hoy. 2013). The only issues are whether CPS was fulfilling a public function traditionally exclusively reserved to the State of Hoynes, and whether CPS s conduct was entwined with governmental policies. The appellate court erred in applying both tests, and in failing to consider countervailing concerns that weigh against attributing CPS s conduct to Hoynes. A. The Court should reverse the appellate court s ruling that CPS fulfilled a public function because neither providing free education to children of Hoynes nor disciplining a student for causing a disturbance at a charter school has traditionally exclusively reserved to the state. The appellate court erred when it held that CPS is a state actor under the public function test. In Rendell-Baker, this Court already decided this issue when it refused to hold that a private school educating maladjusted high school students provided a public function traditionally exclusively reserved to the state, even when provided at public expense. 457 U.S. at 842. Moreover, when applying the public function test to private conduct, this Court looks to the gravamen of the plaintiff s complaint when defining the private conduct. See American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, (1999). Thus, the appellate court erred when it failed to apply the public function test to Lyons s allegations of a First Amendment violation when CPS disciplined her for disrupting class. 1. Neither providing education nor providing free public education is an exclusive state service. According to this Court, While many functions have been traditionally performed by 7

14 governments, very few have been exclusively reserved to the State. Flagg Bros., 436 U.S. at 158, 163 (describing the public function test as having carefully confined bounds ). These carefully confined bounds have never included providing education. Pierce v. Soc y of the Sisters of the Holy Names of Jesus & Mary, 268 U.S. 510, 513 (1925) (finding no general power of the state to... forc[e] [children] to accept instruction from public teachers only ); San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 35 (1973) (stating education is not a protected Constitutional right). To the extent that Lyons argues that free public education is an exclusive public function, that argument is foreclosed by Rendell-Baker. Caviness v. Horizon Cmty. Learning Ctr., Inc., 590 F.3d 806, 815 (9th Cir. 2010). In Rendell-Baker, this Court held that a nonprofit private school, despite being required by a state statute to provide free public education and receiving ninety percent of its funding from the state, did not fulfill an exclusive public function. 457 U.S. at , 842. Instead, this Court found it dispositive that Massachusetts had only recently undertaken to provide education to maladjusted students. Id. Similar to the school in Rendell-Baker, CPS is a private, nonprofit school providing alternative educational services in the global fields of mathematics, computer science, and languages. Even though it also receives ninety percent of its operating budget from Hoynes, that legislative policy choice codified in the CSEA in no way makes CPS s educational services the exclusive province of the state. Indeed, the passage of the CSEA in 2003 shows that Hoynes had only recently undertaken to provide these alternative education services, making it impossible for those services to be traditional exclusive public functions. Instead, these facts suggest that CPS, as a privately owned enterprise[] providing services that the State would not necessarily provide, Blum, 457 U.S. at 1011, is not different from that of many contractors performing services for the government. Rendell-Baker, 457 U.S. at

15 Because Rendell-Baker controls the issue here, the appellate court erred in dismissing it from its analysis on the grounds that it concerned a teacher suing and not a student. Lyons, 509 F. Supp. 4th at 10. There is no simply no indication in the opinion that such a distinction would be meaningful. Logiodice v. Trs. of Maine Cent. Inst., 296 F.3d 22, 27 (1st Cir. 2002). While states do require its children be educated and do not require its teachers be employed, the mechanics of providing the education is not an exclusive public function. Johnson v. Pinkerton Acad., 861 F.2d 335, 338 (1st Cir. 1988). 2. Disciplining a student for disrupting a charter school classroom has never been traditionally exclusively reserved to the state. The appellate court erred in failing to consider the gravamen of the plaintiff s complaint, as directed by this Court. Blum, 457 U.S. at In Blum, this Court focused on the plaintiff s characterization of the State s duties, stating that it would not follow decisions made in the day-to-day administration of a nursing home are the kind of decisions traditionally and exclusively made by the sovereign for and on behalf of the public. Id. at ; see also Sullivan, 526 U.S. at 51, 56. Here, the gravamen of Lyons s complaint is that CPS suspended her for causing a disturbance in a charter school. Had the appellate court considered whether this disciplinary action was an exclusive public function, it would have reached the opposite result. Like the health insurer in Sullivan, CPS can discipline any student without any involvement of Hoynes. Indeed, Hoynes specifically disclaimed all involvement in charter school discipline when it exempted charter schools from any state or local disciplinary mandates. Hoy. Stat (3). Thus, the decision to discipline a student, part of the day-to- day administration of a charter school, is not the kind of decision traditionally exclusively made by the sovereign for and on behalf of the public. 9

16 B. CPS is not so entwined with the state that it should be considered a state actor because it does not have a close nexus or a symbiotic relationship with Hoynes. The appellate court also erred when it held that CPS is a state actor under the entwinement test. This Court has found entwinement in two factual situations: (1) if there is such a sufficiently close nexus between the State and the challenged action of the regulated entity, Jackson, 419 U.S. at 350, and (2) if the State has... insinuated itself into a position of interdependence with [the private actor], Burton v. Wilmington Parking Auth., 365 U.S. 715, 725 (1961). The appellate court erred in misapplying the first test, and erred in failing to apply the second. 1. CPS s operations and leadership do not have a close nexus with Hoynes. The appellate court erred in finding that there is a sufficiently close nexus between the State and the challenged action of the regulated entity. Jackson, 419 U.S. at 350. Analyzing whether a close nexus exists is a necessarily fact- bound inquiry. Lugar, 457 U.S. at 939. The facts here do not support a close nexus finding. CPS is directed by a five-member board of trustees, none of whom act in any sort of public capacity. Moreover, since CPS is exempt from most state and local regulations, its teachers and administrators are not public employees of the state. Hoy. Stat These facts, as acknowledged by this Court, are dispositive. See Brentwood, 531 U.S. at (finding an athletic association entwined with the state because state officials serve ex officio on its board of directors and public school officials overwhelmingly perform all but purely ministerial functions); Evans, 382 U.S. at 301 (finding a public park entwined with the state because it was maintained by public employees). Moreover, the appellate court did not consider whether any entwinement between CPS 10

17 and Hoynes resulted in the specific act of discipline challenged by Lyons. See Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 175 (1972). Here, none of the support given to CPS by Hoynes resulted in the specific disciplinary action since neither the student-run disciplinary board nor Principal Zahm are public employees, and Hoynes has disclaimed any involvement in school discipline. 2. Hoynes s financial support does not immediately result in a significant state monetary benefit. The appellate court erred by failing to consider whether the State of Hoynes has insinuated itself into a position of interdependence with CPS. Burton, 365 U.S. at 725. While state funding and licensing are relevant to the symbiosis analysis, this Court has not found them dispositive. See Blum, 457 U.S. at Instead, when evaluating symbiosis, this Court focuses on whether state support of the private actor immediately leads to a significant state monetary benefit. Compare Burton, 365 U.S. at (finding symbiosis in a restaurant s acts of racial discrimination because it was leased from the state in a publicly-owned building and its profits were indispensable elements in the financial success of the building) with Blum, 457 U.S. at 1011 (not finding symbiosis when nursing homes discharged patients despite the homes being heavily subsidized and financed by the state). Here, despite Hoynes providing ninety percent of CPS s funding, no significant monetary benefit accrues to Hoynes. While Hoynes does receive rent from Van Zandt Enterprises lease of a state-owned library for CPS s site, the library was originally abandoned, and the Hoynes State Board of Education had no role in the lease transaction. See also Burton, 365 U.S. at (finding it significant that the publicly-owned parking building was not surplus state property, but constituted a[n]... indispensable part of the State s plan ). These facts fail to suggest that income received from Van Zandt Enterprises is an indispensable 11

18 element of Hoynes s treasury. C. CPS s conduct should not be attributed to the state due to countervailing concerns against chilling private activity and violating principles of federalism. The appellate court also erred by failing to consider whether socially valuable private activity may be chilled or principles of federalism may be violated by attributing CPS s conduct to Hoynes. These concerns represent countervailing reason[s] against attributing activity to the government even if CPS does satisfy the public function or entwinement tests. Brentwood, 531 U.S. at Section 1983 was not intended to chill the provision of socially useful charter school education. This Court and others have harbored concerns that only parties who may fairly be said to be a state actor face liability under 1983, for otherwise private parties could face constitutional litigation whenever they seek to rely on some state rule governing their interactions with the community surrounding them. Lugar, 457 U.S. at 937. Extending the scope of 1983 over CPS would make 1983 a font of tort law, requiring CPS and others like it to factor the unquantifiable risk of constitutional litigation into their decision-making. In such an environment, nonprofit corporations may well decide that facing the specter of tort liability under 1983 would make the continued or future operation of charter schools economically impossible. Thus, extending 1983 liability here would likely chill the provision of socially valuable charter school educational services. This consequence would be detrimental to the education of our children given the country s stifled public schools, and specifically given CPS s increasing popularity with parents across Hoynes. 2. The basic tenet of federalism allows states to act as laboratories of democracy. In an oft-quoted dissent, Justice Brandeis wrote, It is one of the happy incidents of the 12

19 federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country. New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting). This Court has continued to echo this basic tenet of federalism. See, e.g., Whalen v. Roe, 429 U.S. 589, 597 (1977). Here, the State of Hoynes drafted, voted on, and enacted the CSEA precisely in order to allow [c]harter schools... to experiment with new methods of education. Recognizing that the process of providing school discipline can be a valuable method of education, the State of Hoynes enacted an exemption from any state or local mandate affecting school discipline. Hoy. Stat (3). Exercising this freedom to experiment, CPS s student-run discipline board suggested a punishment for Lyons aimed at creating an open and collaborative classroom. Holding CPS liable under 1983 for progressively disciplining a student would deprive CPS, and the State of Hoynes, of the freedom to experiment and innovate in any area of the vitally important field of education. II. CARROLL PREPARATORY SCHOOL WAS JUSTIFIED IN PROHIBITING LYONS S OFF-CAMPUS CYBER-BULLYING AS IT AROSE FROM AN ON- CAMPUS ISSUE, WAS AIMED AT ON-CAMPUS STUDENTS, AND RESULTED IN A SUBSTANTIAL ON-CAMPUS DISRUPTION. 13

20 The appellate court erred in finding that CPS violated the First Amendment when punishing Lyons for cyber-bullying three of her classmates. The appellate court misapplied Supreme Court precedent in failing to recognize a school s right to limit vulgar and disruptive speech, and erroneously regarded the geographic origin of the speech instead of its in-school effect. While this Court has made clear that students do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gate, it has simultaneously held that the constitutional rights of students in public school are not automatically coextensive with the rights of adults in other settings. Morse v. Frederick, 551 U.S. 393, (2007) (quoting Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506 (1969) and Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 685, 682 (1986)). This limitation arises from the need to prepare pupils for citizenship in the Republic, which requires that schools set and enforce policies that teach[] students the boundaries of socially appropriate behavior. Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 681 (1986) (internal quotations omitted). More, [t]he inculcation of these values is truly the work of the schools. Id. at 683. To limit a student s speech, a school must first show that the prohibited speech falls into one of the four punishable categories defined by this Court. See Tinker, 393 U.S. at 514; Fraser, 478 U.S. at 687; Kuhlmeier, 484 U.S. at 276; Morse, 551 U.S. at 510. Second, if the speech originated off-campus, the school must show that it was reasonably foreseeable that the speech would reach the school. See Wisniewski v. Bd. of Educ. of the Weedsport Cent. Sch. Dist., 494 F.3d 34, 39 (2d Cir. 2007). Lyons s speech satisfies the Tinker test as it caused a significant, multi-day disruption at CPS. Since it contains lewd images and references to cigarettes and alcohol, it also satisfies the Fraser and Morse tests. More, as Lyons s speech arose from events at the school, was aimed at 14

21 students in the school, and entered the school, its geographical origin is irrelevant, and the speech should be viewed no differently than speech created on-campus. Ultimately, CPS s limitation of Lyons s speech is authorized on multiple grounds, and therefore this Court should reverse the decision of the appellate court. A. Anna Lyons s speech is punishable under the Supreme Court s Tinker, Fraser, and Morse standards. 1. Lyons s speech materially and substantially interfered with the operation of the school under Tinker. Under Tinker, student expression may not be suppressed unless school officials reasonably conclude that it will materially and substantially disrupt the work and discipline of the school. Morse, 551 U.S. at 403 (quoting Tinker, 393 U.S. at 513). School authorities need not wait until a substantial disruption occurs in order to censor the offensive speech if they are able to demonstrate any facts which might reasonably have led [them] to forecast substantial disruption of or material interference with school activities. Tinker, 393 U.S. at 514. Thus, schools can act on potentially incendiary speech before it takes effect, such that actual disruption only serves to legitimize the school s suppositions. At the point Lyons was punished, not only had a substantial disruption had already occurred, but the action taken by CPS officials properly anticipated a continuing and increasing disruption to come. a. At the time of punishment, a substantial disruption had already occurred. At the time Lyons was punished, CPS had already undergone a significant disruption. While the inquiry is highly fact-based, courts have found substantial disruptions based on diminished control of students and disruption with classroom study and teaching. See Doninger v. Niehoff, 527 F.3d 41, 51 (2d Cir. 2008) (holding that a blog post falsely announcing the cancellation of a school event created a substantial disruption as school officials were forced to 15

22 answer a deluge of calls and s ); Boucher v. Sch. Bd. of the Sch. Dist. of Greenfield, 134 F.3d 821, 827 (7th Cir. 1998) (finding disruption where an underground newspaper endorsing hacking the school s computers required four hours of technical tests and password changing); J.S. v. Bethlehem Area Sch. Dist., 807 A.2d 847, 868 (Pa. 2002) (requiring more than a mild distraction or curiosity created by the speech but less than complete chaos ). In its first day at CPS, Lyons s posting caused extended disruptions in multiple classrooms, it required increased limits on Internet access as well as the closing of the school computer lab, and it led to threats of student violence. More, teenage pregnancy was already the buzz of the school at the time Lyons s post was released, making Lyons s speech particularly disruptive in the CPS environment. This is not the discomfort and unpleasantness that always accompanies an unpopular viewpoint, but rather a paradigmatic example of substantial classroom interference. Tinker, 393 U.S. at 509. b. At the time of punishment, an even greater disruption was about to occur. Although the existing disruption justifies CPS s speech limitations under Tinker, the school was also justified in anticipating a continuing and increasing risk beyond what had already occurred. In anticipating disruption ex ante, schools can rely on past disruptions arising out of similar speech, evidence of facts indicating a foreseeable risk of disruption, or notable ripple effects emanating from an existing disruption. Compare Sypniewski v. Warren Hills Reg l Bd. of Educ., 307 F.3d 243, 256 (3d Cir. 2002) (finding that, based on past acts, a t-shirt with the word Rednecks might incite violence by a gang called The Hicks ), with Killion v. Franklin Regional Sch. Dist., 136 F. Supp. 2d 446, (W.D. Pa. 2001) (requiring more factual evidence of risk of disruption where a student s rude top-ten list had been on-campus for a week resulting only in two upset teachers), and J.C. v. Beverly Hills Unified Sch. Dist., 711 F. 16

23 Supp. 2d 1094, (C.D. Cal. 2010) (holding that a while a YouTube video depicting one student calling another student ugly and spoiled resulted in an in-school investigation, there were no ripple effects such as retaliation, effect on classroom activity, or widespread whispering campaign[s] ). First, CPS was justified in relying on past acts of bullying to justify their anticipation of future disruption. Indeed, Lyons s first bullying offense, where she called one student a whore, acted as a catalyst for new instances of harassment by other students. Here, Lyons s speech likewise inspired additional punishable acts ripple effects such as student threats of physical violence and additional bullying of the pregnant girls by other students. Second, increasing disruption was justly anticipated based on the content of Lyons s speech in light of the CPS environment at that time. Principal Zahm was well aware that teen pregnancy was a hot-button issue at CPS, thus indicating that the ripple effects stemming from Lyons s speech would have a greater and more sustained impact. CPS also had to consider the effects that this continuing harassment might have had on Breana, Jenny, and Tori, who, now in their second trimesters, were being called irresponsible sluts by peers who were lobbying for abortion. Were the continued degradation to result in bodily harm or loss of life to mother or child, substantial disruption would be imminent. Cyberbullying of students can have grave results. See U.S. v. Drew, 259 F.R.D. 449 (C.D. Cal. 2009) (litigating criminal issues arising from a cyber-bullying incident that resulted in the suicide of 13-year old Megan Meier). These are realities that CPS had to face when anticipating future disruption, making their punishment valid under Tinker. 2. Lyons s speech is per se punishable in under Fraser because it was lewd and vulgar. In Fraser, a case involving a student delivering a sexually-explicit speech at a 17

24 school assembly, the Court held speech that is lewd, vulgar, indecent, or plainly offensive is per se punishable. 478 U.S. at 685. Both lower courts recognized that Lyons s speech, with images of infant death and vulgar phrases such as Future Sluts of Hoynes, was sophomoric, vulgar, and hurtful, and thus properly falls under the Fraser per se rule. Lyons, 170 F.4th at Lyons s speech is punishable under Morse because it contains references to cigarettes and alcohol. While the appellate court correctly cited the need for vigilant protection of constitutional freedoms in schools, it failed to consider that the nature of those rights is what is appropriate for children. Morse, 551 U.S. at 406. In Morse, the Court addressed the need to deter drug use by children a concern far more serious and palpable than what was addressed in Tinker. Id. at 408 (concerning the unveiling of a banner reading BONG HiTS 4 JESUS ). Morse held that speech promoting illegal drug use is per se punishable by schools, as a failure to act would send a powerful and undesirable message to students. Id. at 410. It follows that this governmental interest in stopping student drug abuse must also incorporate an interest in stopping student alcohol and tobacco use. Id. at 408. Lyons s speech is punishable under Morse because it contained both alcohol and cigarette references. Lyons wrote under a picture of Jenny Cavanaugh, Jenny luvs her Henny, referencing Hennessy cognac. Lyons s magazine also depicted images of newborn babies smoking cigarettes. Whereas Morse centered on the illegal drug of marijuana, the Supreme Court has also recognized the deleterious effects of tobacco and alcohol on children. See Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 589 (2001) ( Like underage tobacco use, underage drinking has effects that cannot be undone later in life. ). Thus, in addition to being punishable under Tinker and Fraser, Lyons s speech is also per se punishable under the Morse 18

25 prohibition on drug-related speech. B. A school s right to limit speech should extend to Internet speech when it is reasonably foreseeable that the speech will enter the school environment. 1. Off-campus speech is subject to the Tinker test. While the Supreme Court has not addressed the rights of schools to prohibit off-campus speech that enters the classroom, the Court has hinted that a school s rights do not end at the four corners of the schoolhouse. Morse, 551 U.S. at 401 ( There is some uncertainty at the outer boundaries as to when courts should apply school speech precedents. ). Indeed, courts have regularly applied Tinker to off-campus speech without regard to its geographic origins. See Boucher, 134 F.3d at ; LaVine v. Blaine Sch. Dist., 257 F.3d 981, (9th Cir. 2001). At most, courts have required that it be reasonably foreseeable that the speech will reach the school. See S.J.W. v. Lee's Summit R-7 Sch. Dist., 696 F.3d 771, 778 (8th Cir. 2012). In reviewing reasonable foreseeability, courts consider if the speech concerns in-school matters and if it is aimed at the school. See Kowalski v. Berkeley Cnty. Sch., 652 F.3d 565, 573 (4th Cir. 2011) (holding it reasonably foreseeable that a MySpace discussion page about a student s sexually transmitted disease sent to classmates would reach school); Wisniewski, 494 F.3d at 39 (holding it was reasonably foreseeable that student s instant messenger icon would reach school as it concerned the school principal and it was ed to students in the school); Doninger, 527 F.3d at 50 (same); Bethlehem, 807 A.2d at 864 (finding a sufficient nexus between studentcreated website and the school as the speech pertained to in-school matters and was sent to other students). Whether the speech reaches the school by the speech s creator or by a third party is inconsequential. Killion, 136 F. Supp. 2d at 455 (applying Tinker to an drafted off-campus where only one copy was brought into school). 19

26 The circuit court opinions where Tinker was not applied to off-campus speech are also informative, as they provide clear examples of what is not reasonably foreseeable. Thomas v. Bd. of Educ., 607 F.2d 1043, 1045 (2d Cir. 1979) (holding that an underground newspaper was not subject to Tinker as the students assiduously endeavored to sever all connections between their publication and the school, resulting in a de minimis connection); Porter v. Parish Sch. Bd., 393 F.3d 608 (5th Cir. 2004) (holding it unforeseeable that a student s sketch pad would reach the school when he put it in his closet, only to have his younger brother bring it to school two years later). It was reasonably foreseeable that Lyons s blog post would reach the school as the subject matter concerned a prevalent in- school issue and was designed for and aimed at CPS students. The subject matter was directly related to an in-school matter: three pregnant CPS students at a time when rumors surrounding the pregnancies were ubiquitous at the school. Further, the post was aimed at CPS: Lyons s post was posted for five days on a public blog that was visited by CPS students, and she also ed the URL to four CPS students. Thus, it was reasonably foreseeable that the blog post would reach CPS. 2. Off-campus speech extends to Fraser and Morse. Neither the Supreme Court nor any lower court has articulated a rational justification as to why off-campus speech is subject only to the Tinker test, and not to Fraser, Kuhlmeier, and Morse. The major justification arises from Morse, where the Court wrote, Had Fraser delivered the same speech in a public forum outside the school context, it would have been protected. 551 U.S. at 405. CPS does not contest this statement as written, but it does contest the inference that it somehow indicates that off-campus speech that appears on campus is immune from school prohibition. That is, while a verbal speech delivered in a public forum ends when the speaker finishes speaking, that same speech, if recorded, posted on the Internet, and 20

27 subsequently viewed by students in the school, would then become just as in-school as the original. Lyons s speech, although created off-campus, was brought on campus, thus having the same effect on the student body as it would have were it created within the school itself. The Court rationalizes the abridgement of students First Amendment rights by citing the need for schools to safeguard those entrusted to their care from [prohibited] speech. Id. at 396. To ignore the effects of student speech on the school in lieu of an analysis of its geographical origins is a clear misstep from the overarching intentions of school speech limitations. Therefore, the same tests that allow a school to limit off-campus Tinker speech should apply to all forms of prohibited student speech. To do otherwise would incentivize students to simply step outside the schoolhouse gate before uploading their hate speech and cyber-bullying, thus obviating the protections necessary to maintain order and discipline in our schools. CONCLUSION For the foregoing reasons, this Court should reverse the decision of the Thirteenth Circuit and grant petitioner s motion for summary judgment. 21

28 APPENDIX Constitutional Provisions U.S. CONST. amend. I. Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for redress of grievances. Statutes 42 U.S.C (2006). Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.