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1 Case: /16/2012 ID: DktEntry: 6-1 Page: 1 of 67 (1 of 68) Docket No In the United States Court of Appeals For the Ninth Circuit MARK WYNAR, an individual, and as guardian of LW, and LW, a minor, v. Plaintiffs-Appellants DOUGLAS COUNTY SCHOOL DISTRICT a political subdivision of the State of Nevada, CAROL LARK, in her individual and official capacity, NANCY BRYANT, in her individual and official capacity; MARTY SWISHER in his individual and official capacity, DAVID PYLE in his official and individual capacity, KEITH ROMAN, in his individual and official capacity, SHARLA HALES, in her individual and official capacity, and CYNTHIA TRIGG, in her individual and official capacity Appeal from a decision of the United States District Court for the District of Nevada, No. 3:09-cv LRH-VPC Honorable Larry R. Hicks Defendants-Appellees BRIEF OF APPELLANTS Jeffrey S. Blanck, Esq. 485 W. Fifth Street Reno, Nevada (775) (775) (facsimile) Attorney for Appellants, Mark Wynar and LW

2 Case: /16/2012 ID: DktEntry: 6-1 Page: 2 of 67 (2 of 68) TABLE OF CONTENTS I. INTRODUCTION II. JURISDICTIONAL STATEMENT III. STANDARD OF REVIEW IV. ISSUES PRESENTED FOR REVIEW V. STATEMENT OF THE CASE VI. STATEMENT OF FACTS VII. SUMMARY OF ARGUMENT VIII. LW s Online Communications with JP Were Protected Under the First Amendment of the United States Constitution IX. There was no Actual Disruption or any Threat of any Substantial Disruption to the School From LW s Internet Conversations X. The Statute Relied Upon to Expel LW for 90 Days was Vague and Overbroad and Therefore Unconsitutional XI. The Statute is Void for Vagueness XII. LW s Conduct did not Constitute a True Threat, Therefore it Should not be Subject to any Discipline XIII. LW was Denied his Due Process Rights in Regards to the 10-Day Suspension i

3 Case: /16/2012 ID: DktEntry: 6-1 Page: 3 of 67 (3 of 68) TABLE OF CONTENTS (Continued) XIV. LW was Denied Due Process in his Expulsion and Removal From Douglas High School XV. LW s Substantive Due Process Rights Were Violated Because he had no Prior Notice that is Verbal Comments at Home Could Lead to his Expulsion XVI. The Defendants Misapplied State Law to Expel LW XVII. Conclusion CERTIFICATE OF COMPLIANCE STATEMENT OF RELATED CASES CERTIFICATE OF SAMENESS DECLARATION OF SERVICE ii

4 Case: /16/2012 ID: DktEntry: 6-1 Page: 4 of 67 (4 of 68) CASES: TABLE OF AUTHORITIES Alexander v. Underhill, 208 WL Alexander v. Underhill, 416 F.Supp.2d 999, 1011 (D. Nev 2006) Bethel School District No. 403 v. Fraser, 478 U.S. 675, 685; 106 S.CT (1986) th Boim v. Fulton County School District, 494 F.3d 978 (11 Cir. 2007) Bundick v. Bay City Independent School District, 140 F.Supp.2d 735 (SD Texas 2001) Chaplinski v. New Hampshire, 315 U.S. 568, 572 (1942) City of Houston Texas v. Hill, 482 U.S. 451, 458; 107 S. Ct (1987).23, 24 nd Commonwealth v. Simmons, 868 NE 2 158, 161 (MA 2007) th Compton Unified School District v. Addison, 598 F.3d 1181,1184 (9 Cir. 2010) Cuff v. Valley Central School District, 714 F.Supp.2d 462 (SD NY 2010).. 33 Desert Outdoor Advertising, Inc. v. City of Mareno Valley, 103 F. 3d 814, th 818 (9 Cir. 1996) Doe v. Pulaski County Special School District, 306 F.3d 616 th (8 Cir. 2002) iii

5 Case: /16/2012 ID: DktEntry: 6-1 Page: 5 of 67 (5 of 68) Flaherty v. Keystone Oaks School District, 247 F. 2d 698, 706 (WD PA 2003) Fusco v. United States Treasury Department, 695 F.Supp. 1189, 1195 (CIT 1988) th Gashill v. United States, 39 F. 3d 1420, 1429 (9 Cir. 1994) st Gorman v. University of Rhode Island, 837 F.2d 7, 12 (1 Cir. 1988) Goss v. Lopez, 419 US 565, 575 (1975) , 37-39, 43, 46 Great Basin Water Network v. Taylor, 234 P.3d 912, 918 (Nev. 2010) Hardie v. Churchill County, 2009 WL J.C. v. Beverly Hills Unified School District, 711 F. Supp.2d 1094, (CD CA 2010) J.S. v. Blue Mountain School District, 650 F.3d 915, 927 rd (3 Cir. 2011) , 15, 20, 25, 27 Joint Anti-Facious Committee v. McGrath, 341 U.S. 123, 170 (1951) th LaVine v. Blaine School District, 275 F.3d 981 (9 Cir. 2000) , 35 Layshock v. Hermitage School District, 496 F.Supp. 2d 587 iv

6 Case: /16/2012 ID: DktEntry: 6-1 Page: 6 of 67 (6 of 68) (WD PA 2007) , 18-20, 25 th Lovell v. Poway Unified School District, 90 F.3d 367 (9 Cir. 1996)... 31, 32 Mardis v. Hannibal Public School District, 684 F.Supp.2d 1114 (ED MO 2010) , 33, 34 Members of City Council v. Taxpayers for Vincent, 466 U.S. 789, 800; 104 S. Ct (1984) Morse v. Frederick, 551 U.S. 393, 396; 127 S.Ct (2007) , 12 O Neal v. Alamo Community College District, 2010 WL th Padfield v. AIG Life Ins. Co., 290 F.3d 1121, 1124 (9 Cir. 2003) th Ponce v. Socorro Independant School District, 508 F.3d 765 (5 Cir 2007).33 th Powell s Books, Inc. v. Krogers, 622 F. 3d 1202, 1215 (9 Cir. 2010) Reno V. ACLU, 521 U.S. 844, 870; 117 S.Ct (1997) Rubino v. Saddlemire, Slip Copy WL (D. Conn. 2007) rd Saxe v. State College Area School District, 240 F. 3d 200, 211 (3 Cir. 2001)1.6 th Scoville v. Board of Education of Joliette Township, 425 F. 2d 10, 14 (7 Cir. 1997) Screws v. United States, 325 U.S. 91, 149; 65 S. Ct (1945) th Soglan v. Kauffman, 418 F.2d 163, 167 (7 Cir. 1969) v

7 Case: /16/2012 ID: DktEntry: 6-1 Page: 7 of 67 (7 of 68) th State v. Chimiel, 11 District OH #96-L-173 (1997) nd State v. Jones, 640 S 2 804, 806 (FL 1994) Sypniewski v. Warren Hills Regional Board of Education, 307 F.3d 243, 258 rd (3 Cir. 2010) T.V. v. Smith Green Community School Corporation, 2011 WL (ND Indiana Aug. 2011) , 14, 17, 18, 22 Thomas v. Board of Education Grandville Central School District, 607 F. 2d nd 1043, 1052 (2 Cir. 1979) , 21 Thorns v. Madison District Public Schools, 2007 WL , 45 Tinker v. Des Moines Independent Community School District, et al., 393 U.S. at 503, ; 89 S.Ct , th United States v. Bagdasarian, 652 F.3d 1113, 1123 (9 Cir. 2011) th United States v. Gilbert, 884 F.2d 454, 457 (9 Cir. 1989) Virginia v. Black, 538 U.S. 343, ; 123 S. Ct (2003) , 32, 33 nd Wisniewski v. Board of Education, 494 F.3d 34 (2 Cir. 2007) Zamecnick v. Indian Prairie School District, 636 F. 3d 874, 876 th (7 Cir. 2011) th Zimmerman v. City of Oakland, 355 F.3d 734 (9 Cir. 2001) vi

8 Case: /16/2012 ID: DktEntry: 6-1 Page: 8 of 67 (8 of 68) RULES: F.R.A.P. Rule STATUTES: 28 U.S.C U.S.C U.S.C. 1343(3) NRS (2)(3) NRS , 8, 10, 24, 26, 28, 37, 47, 50, 51, 54, 55 NRS NRS (1) NRS (1) , 43 NRS , 28, 29, 54 Nevada Constitution, Article 11, Section , 43 vii

9 Case: /16/2012 ID: DktEntry: 6-1 Page: 9 of 67 (9 of 68) I. INTRODUCTION Appellant, LW, was a 16 year old high school student with good grades and had never been in trouble at school. For four months in the evenings at home, LW would exchange MySpace messages with his friend from school, JP. These exchanges always took place from their homes in the evenings on their private computers. LW never shared any of these messages with anyone else. In or about February 2008, JP shows the MySpace messages to a classmate, that student shows them to a teacher, and the teacher shows them to the principal at the high School LW and JP attended. LW is brought in by the principal for questioning with a deputy sheriff. LW is shown the MySpace messages of the past 4 months and LW says they were just between him and JP and they were not serious. LW is arrested and spends 32 days in jail and then put under house arrest for another month before he has a second psychological evaluation that says he is not a threat to himself or others. LW was never charged with a crime. 1

10 Case: /16/2012 ID: DktEntry: 6-1 Page: 10 of 67 (10 of 68) While in jail and without the consent of LW s parents, administrators from the school go to see him for an alleged due process meeting to suspend LW for 10 days. After LW s release, LW s parents receive a notice from the school, dated March 11, 2008, advising them of a hearing to suspend LW for 90 or more days. The hearing is held on March 31, 2008, and LW is expelled for 90 days for the single violation of NRS , Habitual Disciplinary Problem subsection (a) for making a threat to another pupil or teacher. His return is conditioned upon random searches and psychological evaluations. LW never made a threat to any student and never broke any school rule. There was no hit list and he had no weapons or access to weapons; it was all just teenage banter. LW s First Amendment rights to the United States Constitution were violated by his expulsion and he was denied due process. 2

11 Case: /16/2012 ID: DktEntry: 6-1 Page: 11 of 67 (11 of 68) II. JURISDICTIONAL STATEMENT The District Court had jurisdiction of this matter pursuant to 28 U.S.C and 28 U.S.C. 1343(3). This Court has jurisdiction over the present appeal pursuant to 28 U.S.C The District Court entered final judgment in favor of Defendants Motion for Summary Judgment on August 11, Notice of Appeal was timely filed on September 6, 2011 pursuant to F.R.A.P. Rule 4. III. STANDARD OF REVIEW The standard on review for an Appeal from an order granting summary judgment is a De Novo review of all factual and legal issues. th Padfield v. AIG Life Ins. Co., 290 F.3d 1121, 1124 (9 Cir. 2003). IV. ISSUES PRESENTED FOR REVIEW 1. Defendants violated LW s First Amendment free speech rights by punishing him for private, off-campus speech. 3

12 Case: /16/2012 ID: DktEntry: 6-1 Page: 12 of 67 (12 of 68) 2. The statute used to expel LW is over broad and vague. 3. LW never made a true threat as required by the statute. 4. LW was denied procedural due process in his short term and long term suspensions. 5. LW was denied his substantive Due Process rights. 6. Defendants misapplied state law. V. STATEMENT OF THE CASE LW filed his Complaint on October 23, (ER ). LW asserted a first claim of relief for denial of procedural due process, a second claim of relief of denial of substantive due process, a third claim of relief for violation of LW s First Amendment rights, a fourth claim of relief for negligence, and a fifth claim of relief for negligent infliction of emotional distress. Defendants filed an Answer to the Complaint on December 21, 2009 (ER ) and an Amended Answer on March 26, (ER ). On October 18, 2010 LW filed a Motion for Partial Summary Judgment. (ER 602). And on the same date, Defendants filed their Motion 4

13 Case: /16/2012 ID: DktEntry: 6-1 Page: 13 of 67 (13 of 68) for Summary Judgment. (ER 399). After the parties filed the appropriate oppositions and replies, the matter was submitted to the Court. On June 22, 2011, the Court entered its Order denying LW s Motion for Partial Summary Judgment. (ER 10). On August 10, 2011, the Court entered its Order granting Defendants Motion for Summary Judgment. (ER 2). On September 6, 2011, LW filed a timely Notice of Appeal (ER 16) on the Motion for Summary Judgment granted on the denial of procedural due process claim, substantive due process claim, and First Amendment violation. No appeal has been taken on the granting of Summary Judgment of negligence and negligent infliction of emotional distress. VI. STATEMENT OF FACTS From October 2007 into February 2008, LW and JP were sending messages back and forth through MySpace.com from their home computers in the evenings after school (ER ). The boys would joke about make-believe scenarios similar to video games where they would fight, maim, and kill others. They would say: Let me play (ER 301) or 5

14 Case: /16/2012 ID: DktEntry: 6-1 Page: 14 of 67 (14 of 68) Shoot me first (ER 290) and Ha, ha, ha. (ER ). They never identified their school, and rarely used first names of individuals. Through this entire period of time (over three months), there was no disruption to the school as a result of LW s and JP s s (ER 723, 739, and 749). On or about February 6, 2008, JP forwarded some of the s he and LW had written to another boy, RL (ER and ). RL told JP that they should report LW to the school based on the content of the s (ER ). RL and JP told the football coach who then told Defendant Marty Swisher ( Swisher ) about the content of some of the messages between JP and LW (ER345). On February 7, 2008, Swisher told Defendant Dave Pyle ( Pyle ) and Deputy Shields ( Shields ) of the content of the s (ER 327). There was never a hit list and LW had no cache of weapons or access to weapons. LW, JP, and RL were interviewed by Defendants Shields, Swisher, and Pyle (ER 327, 328, and 329). Defendant Douglas County School District (the District ) then had LW arrested for the messages sent by LW to JP from his home computer (ER ). Prior to LW s arrest, the 6

15 Case: /16/2012 ID: DktEntry: 6-1 Page: 15 of 67 (15 of 68) Defendants interrogated LW without contacting his parents (ER 346, 347, and 356). LW was incarcerated in the Douglas County Jail for 32 days based on the allegations made by the Defendants, but he was never charged with any crime. During his time in jail, Swisher and Pyle, without the consent of LW s attorney or parents, interrogated LW at the jail (ER 334, 348, and 349). The Defendants chose not to notify LW s parents that they were going to interrogate him, even though they themselves would want to have been notified if that was their son. (ER 335). Upon arriving at the jail, Defendants did not follow their own Administrative Regulation, No. 529, on the procedures for temporary suspension of 10 days or less (ER 199). Rather than informing LW of the consequences of the allegations made against him, Defendants simply coerced him into telling his alleged version of the incident. Defendants own regulation requires that they ask if he understands the allegations and tell them that there will be consequences, up to and including suspension from school. This was never done by the 7

16 Case: /16/2012 ID: DktEntry: 6-1 Page: 16 of 67 (16 of 68) Defendants (ER 351). On March 6, 2008, almost one month after he was removed by arrest from the school, Defendants notified LW s parents that LW was suspended for ten (10) school days for being a habitual disciplinary problem, even though LW had no prior discipline (ER 355, 357, and 761). On March 11, 2008, LW s parents were notified by mail that Defendants intended on expelling LW from the School, and that an Expulsion Hearing would be held on March 31, 2008 (ER ). The basis for the expulsion was an alleged violation of Policy 529 that prohibits certain actions at school or school functions, specifically No. 5, impairing or threatening the health, safety or welfare of teacher, students or other persons, while on school facilities, school grounds, or during school-sponsored activities, and No. 14, Violation of Established School or District Regulations or Board Policies referring to NRS (1) that only deals with battery. They also alleged violations of NRS and NRS regarding habitual discipline and threats. No student witnesses were listed by the Defendants (ER ). 8

17 Case: /16/2012 ID: DktEntry: 6-1 Page: 17 of 67 (17 of 68) Both Defendants Swisher and Pyle admit that LW was not a habitual disciplinary problem (ER 340 and 358). No definition of threat was ever given to the expulsion hearing panel (ER 393 and 394). The students were never told by the school what constituted a threat and what off campus language was prohibited (ER 361 and 362). The students were never informed that talk of violence outside of school to other individuals could lead to suspension or expulsion. On March 31, 2008, the hearing was conducted before a board panel of Defendants, Keith Roman, Sharla Hales and Cynthia Trigg. Also in attendance were Defendants, Carol Lark, Swisher, and Pyle. Prior to the hearing, no evidence or documents were submitted to Plaintiffs for them to review. At the hearing, no students were called to testify by the Defendants (ER 367). At said hearing, no evidence was offered by the Defendants that LW communicated any alleged threat to a victim, or directed that any threat be communicated to a victim. When Deputy Shaller testified at the hearing on behalf of the Defendants, he considered that if students sat in a room all by themselves and stated they wanted to 9

18 Case: /16/2012 ID: DktEntry: 6-1 Page: 18 of 67 (18 of 68) shoot somebody, those statements constituted a threat, even though it was never communicated to any other individual (ER 617). At the conclusion of the hearing, Defendants expelled LW from the District for a period of ninety (90) days pursuant to NRS (ER ). LW was not allowed to return to school for any reason for the rest of that semester nor allowed to participate in any school activities. Defendants do not have any facts to dispute that LW was only joking in his messages and had no intent of actually doing any of the acts set forth therein (ER 330, 333, 339, 342, 352, 353, 359, 360, 743, and 365). LW never communicated any alleged threats to any alleged victims. VII. SUMMARY OF ARGUMENT This case is about two teenage boys carrying on a conversation online talking about sex and violence as teenagers are bound to do. The conversations all occurred from home and were never brought to school by LW. No one was ever threatened. The process and statute used to punish LW is overbroad and vague and violated LW s constitutional rights. There 10

19 Case: /16/2012 ID: DktEntry: 6-1 Page: 19 of 67 (19 of 68) was no disruption to the school or even the plausible threat of disruption to justify Defendants actions. LW was never told what speech was appropriate and what speech was not appropriate. The Defendants cannot even agree on what is a threat. LW had no notice that his comments could result in discipline. The procedures used by the school to suspend LW denied LW of due process. The statute ultimately relied on by the Defendants to punish LW is overbroad and vague and is, therefore, unconstitutional. VIII. LW s online communications with JP were protected under the First Amendment of the United States Constitution. The Supreme Court has made it clear that First Amendment protections for speech extend fully to communications made through the medium of the Internet. Reno v. ACLU, 521 U.S. 844, 870; 117 S.Ct (1997). The First Amendment also unquestionably protects the free speech rights of students in public school. Morse v. Frederick, 551 U.S. 393, 396; 127 S.Ct (2007). Speech at school or at school functions can be 11

20 Case: /16/2012 ID: DktEntry: 6-1 Page: 20 of 67 (20 of 68) regulated if it is vulgar and lewd and would undermine the school s basic educational mission. Bethel School District No. 403 v. Fraser, 478 U.S. 675, 685; 106 S.CT (1986). In the present case, LW s speech was not made at school or at a school function. And even though the speech ultimately made it to school, it was not brought to school by LW. As stated by Justice Brennan in Fraser If Defendant had given the same speech outside of the school environment, he could not have been penalized simply because government officials considered his language to be inappropriate. Id. at 688. In Morse the court reiterated this position by stating had Fraser delivered the same speech in a public forum outside the school context, it would have been protected. Id. at 405. LW s off-campus speech deserves the same protection. The court in Morse went on to state that it has not considered whether the Tinker standard of actual or potential disruption to school applies to speech taking place off school grounds and not during a school activity. Id. at 441. The Third Circuit has recently held that a school district could not punish a student for the use of profane language outside of the school 12

21 Case: /16/2012 ID: DktEntry: 6-1 Page: 21 of 67 (21 of 68) during non-school hours and that the student s lewd, vulgar, and offensive speech that had been made off-campus had not been turned into on-campus speech when another student brought a printed copy of that speech to the rd school. J.S. v. Blue Mountain School District, 650 F.3d 915, 927 (3 Cir. 2011). The court further stated that it did not need to address if the power to regulate student speech was restricted to the school itself because the district violated the student s free speech rights, even if Tinker applied. Id. at 926. In the J.S. case, five of eight judges signed onto a concurrence endorsing a conclusion that Tinker does not apply to off-campus speech at all, and that the First Amendment protects students engaging in off-campus speech to the same extent it protects speech by citizens in the community at large. Id. at The J.S. case was relied on heavily in the case of T.V. v. Smith Green Community School Corporation, 2011 WL (ND Indiana Aug. 2011). In T.V., the District Court concurred basically finding in that case that the student s speech was not done at school, but on the Internet and MySpace text. T.V. allegedly posted offensive photographs on her MySpace or Facebook accounts accessible only to her Friends. None of 13

22 Case: /16/2012 ID: DktEntry: 6-1 Page: 22 of 67 (22 of 68) the images identify any of the girls as students of the high school, and T.V. never brought the images to school in any format. In T.V., the parents brought printouts to the school and that is how the school learned of the incident. T.V. went through an extensive discussion without deciding Tinker of what is or is not a substantial disruption. T.V. was limiting and distinguished off-campus speech versus speech on-campus. These facts are similar to the present case. LW did not bring the speech to school. The speech was brought to school by a third party. Also, only one parent was upset. In Layshock v. Hermitage School District, 496 F.Supp. 2d 587 (WD PA 2007), the court held that when a student alleges a free speech violation it is incumbent upon the school to establish that it had the authority to punish the student. In Layshock, the court stated that the off-campus speech had to have some appropriate nexus between the speech and a substantial disruption of the school environment, and that was a threshold jurisdictional question for the court. 14

23 Case: /16/2012 ID: DktEntry: 6-1 Page: 23 of 67 (23 of 68) Reviewing these recent cases, it is LW s position that the reach of the school cannot go into the private homes of its students without there being a nexus to the school. In the present case, it is undisputed that the MySpace messaging was between LW and JR, and LW had no intent of sending these messages to anyone else besides JR. LW never brought it to school and never intended that it be brought to school. In J.S. v. Blue Mountain School District, the court refused to adopt a rule that would allow school officials to punish any speech by a student that takes place anywhere at any time even if it is about the school or a school official, even if it is brought to the attention of the school official, and is deemed offensive by the prevailing authority. The court held that under this standard, two students can be punished for using vulgar remarks to speak about their teachers at a private party if another student overhears the remark, reports it to the school authorities, and the school authorities find the remark offensive. There is no distinction in the present case of LW s comments from the hypothetical set forth in J.S. v. Blue Mountain School District. Id. at 933. The Defendants should not be allowed to punish LW for speech that occurred in his own 15

24 Case: /16/2012 ID: DktEntry: 6-1 Page: 24 of 67 (24 of 68) home and it was eventually overheard by another student. It is irrelevant that the Defendants did not like the content of LW s speech. IX. There was no actual disruption or any threat of any substantial disruption to the school from LW s Internet conversations. The Tinker standard requires a specific significant fear of disruption, not just some remote apprehension of disturbance. Saxe v. State College rd Area School District, 240 F. 3d 200, 211 (3 Cir. 2001). The only evidence regarding any disruption was the fact that after the MySpace messages were brought to school, the school informed the parent of a girl who said that they were upset and had fear for the daughter attending school if LW came back to school. There was no other incident of any disruption whatsoever. In our system, undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression, and when there is no finding or showing that engaging in the forbidden conduct would materially and substantially interfere with the requirements of appropriate discipline and the operation of the school, the prohibition 16

25 Case: /16/2012 ID: DktEntry: 6-1 Page: 25 of 67 (25 of 68) cannot be sustained. In order for the state and the person or school official to justify prohibition of a particular expression of opinion, they must be able to show that its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompanies an unpopular viewpoint. Tinker v. Des Moines Independent Community School District, et al., 393 U.S. at 503, ; 89 S.Ct. 733, T.V. v. Smith Green Community School Corporation, supra at 12. T.V. went on to give some examples that showed a lack of substantial disruption. It stated that petty disagreements among players on a team or participants in clubs is utterly routine. A YouTube video where students engaged in trash talking about a fellow student where that student refused to go to class and five students missed some undetermined portion of their classes did not rise to the level of a substantial disruption. Citing J.C. v. Beverly Hills Unified School District, 711 F.Supp.2d 1094, (CD CA 2010). Examples of substantial disruption were a deluge of phone calls and s and disrupted schedules by many students. 17

26 Case: /16/2012 ID: DktEntry: 6-1 Page: 26 of 67 (26 of 68) LW s case is very similar to T.V. where there was no showing of any disruption during any school activity except for the complaint of a parent confirmed by the principal and a coach. There is no evidence of any kind of serious issues enumerated recently by the Seventh Circuit as indicative of substantial disruption such as a decline in students test scores, an upsurge in truancy, or other symptoms of a sick school. Zamecnick v. Indian Prairie th School District, 636 F. 3d 874, 876 (7 Cir. 2011). To have any reasonable limits, the Tinker standard of substantial disruption must be linked to something more than ordinary personality conflicts among students that may leave one student feeling hurt or insecure. Scoville v. Board of th Education of Joliette Township, 425 F. 2d 10, 14 (7 Cir. 1997). It would be an unseemly and dangerous precedent to allow the state and school authorities to reach into a child s home and control his or her actions, there, to the same extent that it can control the child when he or she participates in school sponsored activities. Layshock v. Hermitage School District, supra 496 F.Supp.2d 587, 597. Also, as stated in Thomas v. Board of Education nd Grandville Central School District, 607 F. 2d 1043, 1052 (2 Cir. 1979): 18

27 Case: /16/2012 ID: DktEntry: 6-1 Page: 27 of 67 (27 of 68) When school officials are authorized only to punish speech on school property, the student is free to speak his mind when the school day ends. In this manner the community is not deprived of the salutary effects of expression, and the educational authorities are free to establish an academic environment in which the teaching and learning process can proceed free of disruption. Indeed, our willingness to grant school officials substantial autonomy within their academic domain rests in part of the confinement of that part within the meets and bounds of the school itself. This has been expanded to also cover school activities and functions, but what has happened in the present case with LW is it is reaching into the home and private lives of the students. Also, in Layshock there was no actual disruption. No classes were cancelled, no disorder occurred, and there was no violence or disciplinary action. In Layshock, the student created an Internet parody of the principal. Further evidence of no disruption is the fact that LW s comments were going on for several months and there was no incident at the school one way or the other, because it was 19

28 Case: /16/2012 ID: DktEntry: 6-1 Page: 28 of 67 (28 of 68) a private conversation. The substantial disruption standard cannot be met through a fear of future disturbances. Layshock, supra at 601. Substantial disruption has been held to occur in cases where a student s derogatory blog about the school was purposely designed by the student to come onto campus, student circulated a petition to fellow football players calling for the ouster of their football coach, and where a poem was shown to an English teacher full of imagery of violent death and suicide. In the present case, LW never submitted any of these things to any other individuals and did not even intend for them to reach the school. In fact, he took steps to make the profile private. J.S. v. Blue Mountain School District supra at 930, 931. As held in J.S. v. Blue Mountain School District, this Court should hold that Fraser decision does not give the School District the authority to punish LW for his off-campus speech. As stated therein, neither the Supreme Court nor this court has ever allowed schools to punish students for offcampus speech that is not school sponsored, or at a school sponsored event, and that caused no substantial disruption at school. 20

29 Case: /16/2012 ID: DktEntry: 6-1 Page: 29 of 67 (29 of 68) Also, as stated in Thomas v. Board of Education Grandville Central nd School District, 607 F. 2d 1043, 1052 (2 Cir. 1979): When school officials are authorized only to punish speech on school property, the student is free to speak his mind when the school day ends. In this manner the community is not deprived of the salutary effects of expression, and the educational authorities are free to establish an academic environment in which the teaching and learning process can proceed free of disruption. Indeed, our willingness to grant school officials substantial autonomy within their academic domain rests in part of the confinement of that part within the meets and bounds of the school itself. This has been expanded to also cover school activities and functions, but what has happened in the present case with LW is it is reaching into the home and private lives of the students. 21

30 Case: /16/2012 ID: DktEntry: 6-1 Page: 30 of 67 (30 of 68) X. The statute relied upon to expel LW for 90 days was vague and overbroad and therefore unconstitutional. A statute or ordinance offends the First Amendment when it grants a public official unbridled discretion such that the official s decision to limit speech is not constrained by objective criteria but may rest on ambiguous and subjective reasons. T.V. v. Smith Green Community School Corporation, 2011 WL (ND Indiana 2011) citing Desert Outdoor th Advertising, Inc. v. City of Mareno Valley, 103 F. 3d 814, 818 (9 Cir. 1996). In Flaherty v. Keystone Oaks School District, 247 F. 2d 698, 706 (WD PA 2003). The terms offend, abuse, harass, and inappropriate were not defined in a sufficient manner and did not provide the students with adequate warnings of the conduct that was prohibited. The court found the student handbook policies to be unconstitutionally over broad and vague because they permitted a school official to discipline a student for an abusive, offensive, harassing, or inappropriate expression that occurs outside of school premises and not tied to a school-related activity. That is 22

31 Case: /16/2012 ID: DktEntry: 6-1 Page: 31 of 67 (31 of 68) what occurred in the present action. No one ever informed LW as to what an appropriate or inappropriate comment that could be made amongst friends, and more specifically, no one ever defined what a threat was. All three of the Board members on the hearing panel had different definitions as to what constituted a threat, and no such definition was ever conveyed to the students in any way, shape, or form. On the contrary, the school rule and regulation dealing with inappropriate language and conduct was limited to school facilities or school events or functions. Therefore, by its own rules and regulations, the school is admitting it cannot control the totally off-campus speech of its students. Additionally, LW was expelled under the habitual discipline statute when there was only a single occurrence. This on its face, shows an ambiguity that cannot be reconciled by any court. Unconstitutional over breath may occur where a regulation or statute is directed at activities that are not constitutionally protected, but structured so as to prohibit protected activities as well. City of Houston Texas v. Hill, 23

32 Case: /16/2012 ID: DktEntry: 6-1 Page: 32 of 67 (32 of 68) 482 U.S. 451, 458; 107 S. Ct (1987). Over breath creates a likelihood that the statue s very existence will inhibit free expression by inhibiting the speech of third parties who are not before the court. Members of City Council v. Taxpayers for Vincent, 466 U.S. 789, 800; 104 S. Ct (1984). To be held unconstitutional, the statute or rule must challenge language that is shown to reach a substantial amount of constitutionally protected conduct. City of Houston supra 482 U.S. at 459. In this case, there is no limit to the reach of the statute used to expel LW. NRS does not define a threat nor does it state any geographic limitations. Defendants used this statute to invade the homes of children and pull them into the school for punishment. The students have no idea of what is or is not prohibited speech. Before striking a statute that is facially over broad, the court must consider whether the language is susceptible to a reasonable limiting interpretation that would render it constitutional. Powell s Books, Inc. v. th Krogers, 622 F. 3d 1202, 1215 (9 Cir. 2010). Defendants herein offer no reasonable interpretation or limiting instruction on what is a threat. 24

33 Case: /16/2012 ID: DktEntry: 6-1 Page: 33 of 67 (33 of 68) Without defining what a threat is, there is no way for LW to know what conduct was or was not prohibited and there are no boundaries on what the school can regulate. The statute is extremely overbroad. XI. The statute is void for vagueness A statute will be void for vagueness if it does not allow a person of ordinary intelligence to determine what conduct it prohibits or if it authorizes arbitrary enforcement. J.S. v. Blue Mountain School District, 650 F.3d 915, 935. However, even though there might be more latitude in a school setting, vagueness will void a policy that fails to give a student adequate warning that his conduct is unlawful or if it fails to set adequate standards of enforcement such that it represents an unrestricted delegation of power to school officials. Layshock v. Hermitage School District, 496 F.Supp.2d 587, 606 (WD PA 2007). In the present action, the policies of the school limited the ability for the school to punish students to on-campus or school-sponsored events. However, when LW was at the expulsion hearing, Defendants arbitrarily expanded the school policy to off-campus 25

34 Case: /16/2012 ID: DktEntry: 6-1 Page: 34 of 67 (34 of 68) speech without ever giving a definition of what was a threat or specifically defined what conduct is prohibited. They failed to set adequate standards of enforcement and it was an unrestricted delegation of power to school officials. Sypniewski v. Warren Hills Regional Board of Education, 307 F.3d rd 243, 258 (3 Cir. 2010). NRS is unconstitutionally vague in that it never defines what a threat is or informs students what conduct is prohibited. Defendants never told LW what he could or could not say in a private message to a friend that would or would not violate NRS LW had no adequate warning that he could be punished for his private comments to his friend. XII. LW s conduct did not constitute a true threat, therefore, it should not be subject to any discipline. True threats are not protected speech under the First Amendment. Mardis v. Hannibal Public School District, 684 F.Supp.2d 1114 (ED MO 2010), citing Chaplinski v. New Hampshire, 315 U.S. 568, 572 (1942). The Supreme Court has defined a true threat as those statements where the 26

35 Case: /16/2012 ID: DktEntry: 6-1 Page: 35 of 67 (35 of 68) speaker needs to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual... with the intent of placing the victim in fear of bodily harm or death. Virginia v. Black, 538 U.S. 343, ; 123 S. Ct (2003). Several states have held that a true threat is one that is intended to be communicated to the victim. The delivery of the message by a third or fourth party is insufficient to constitute a true threat. State v. Chimiel, 11 th District OH #96-L-173 (1997). A true threat is when the defendant knew that the threat would be communicated to the intended victim. State v. nd Jones, 640 S 2 804, 806 (FL 1994); the threat must be communicated to the victim or intended to be communicated, Commonwealth v. Simmons, 868 nd NE 2 158, 161 (MA 2007). LW never intended for his communications with JP to be brought to school. As stated in JS v. Blue Mountain school District, 650 F.3d at 930, the student cannot be blamed for speech that ultimately reaches the school if that was never his intent and his speech was private. That is precisely what the Defendants did to LW in this case. 27

36 Case: /16/2012 ID: DktEntry: 6-1 Page: 36 of 67 (36 of 68) The sole basis for LW s expulsion was NRS which gives no definition of a threat. However, during the expulsion proceedings Defendants relied on NRS which gives a criminal definition of a threat. There is no applicable school rule or policy dealing with off-campus threats other than what was set forth by statute. The expulsion panel stated that they were never given a definition of a threat. In the present action, it is undisputed that LW was only communicating with JP. Had he known JP was going to forward the messages, he would not have written them. As far as LW knew, he was only communicating with his best friend. LW never sent any message to any alleged victim nor did he direct anyone else to do so. (ER ). LW had no intent to put anyone in fear for their life. The lack of any intent was confirmed by Defendant Swisher in his deposition: Question: Mr. Swisher, when you talked to LW at the jail and LW said he was joking, did you have any - or, ever uncover any evidence to show that he was not joking? Answer: No. (ER 342). 28

37 Case: /16/2012 ID: DktEntry: 6-1 Page: 37 of 67 (37 of 68) Defendant Bryant also confirmed that LW lacked the requisite intent in her deposition: Question: LW had always professed he had no intent to carry out the act on MySpace. Is that your understanding? Answer: Yes. Question: Do you have any evidence to counter that LW had any different intent himself? Answer: No. (ER 222 and 365). Defendants suggest that they relied on NRS for the definition of a threat. That statute states there must be an associated intent to intimidate a person, cause panic, or interfere with school operations. Defendants admit they have no evidence that shows that LW was not just joking, and they have no evidence of any intent to intimidate any victim. (ER 223). LW never sent s to any alleged female victim or told anyone else to do so. He never communicated any threat to any alleged victim. Defendants are attempting to use a strict liability standard to simply say that if you say certain words they are by themselves a threat, and that is not the law. But, it is fundamental that a person is not criminally responsible unless criminal intent accompanies the wrongful act. Gashill v. United th States, 39 F. 3d 1420, 1429 (9 Cir. 1994). LW had no intent to harm anyone 29

38 Case: /16/2012 ID: DktEntry: 6-1 Page: 38 of 67 (38 of 68) and never stated a true threat. He should not suffer the punishment of a long-term suspension. The communications are replete with jokes and laughter. How serious is it when JP says shoot me first or ha ha ha or let me play. Defendants cite to cases from Texas, Pennsylvania, and Michigan to assert that because LW continued with his schooling there was no harm. The holding in Bundick v. Bay City Independent School District, 140 F.Supp.2d 735 (SD Texas 2001) is directly contrary to the holding in Goss v. Lopez where the Supreme Court stated that based on charges of misconduct a student suspended for up to ten days would be prejudiced because the charges could seriously damage the students standing with other students and teachers as well as interfere with the later opportunities for higher education and employment. Goss V. Lopez, 419 US 565, 575 (1975). There is not a no harm no foul standard when it comes to a student s education. Defendants also misapplied Thorns v. Madison District Public Schools, 2007 WL , not reported in F.Supp.2d. In Thorns, there was 30

39 Case: /16/2012 ID: DktEntry: 6-1 Page: 39 of 67 (39 of 68) no suspension whatsoever, not even for 10 days. In the present case, LW was suspended for 10 days. There was damage to LW s reputation as well as a loss of a property interest. His 90-day expulsion included the ten days. In Hardie v. Churchill County, 2009 WL , the student was given evidence prior to the hearing. In LW s case, he had no idea what evidence was going to be used or ignored. Defendants now say, after the fact, that LW had all the evidence in his possession. But LW should not have to guess on what will and will not be submitted. He was never informed of what evidence the District had in its possession. Defendants cited to Lovell v. Poway Unified School District, 90 F.3d th 367 (9 Cir. 1996) to allegedly support their position but it does not. In Lovell, the court stated alleged threats should be considered in light of their entire factual context, including the surrounding events and the reactions of the listeners. citing United States v. Gilbert, 884 F.2d 454, 457 th (9 Cir. 1989). In LW s case, he had no prior history of violence or any misconduct. The conversations were from home and made only to his friend. None of the comments made by LW were so unequivocal, 31

40 Case: /16/2012 ID: DktEntry: 6-1 Page: 40 of 67 (40 of 68) unconditional, immediate, and specific as to convey a gravity of purpose and immanent prospect of execution; therefore, they were not threats. Lovell, supra at 372. Defendants also cited to LaVine v. Blaine School District, 275 F.3d 981 th (9 Cir. 2000) to support their position, but it does not. In LaVine, the court again stated that it must look at the entire set of circumstances. In LaVine, the student had suicidal tendencies, was stalking his ex-girlfriend, was kicked out of his home, and had previous instances of violence at school. Id. at 989. The LaVine case was not just a speech issue. The court held that the standard to control on-campus speech is lower than for off-campus speech. Id. at 990. Defendants also cited to O Neal v. Alamo Community College District, 2010 WL , but this case is also not on point. In O Neal, the court found that the student was violent, unstable, and had made terrorist threats as defined by Virginia v. Black. Also, the student had violated a student conduct code. In our case, the Defendants did not apply the Virginia standard for true threats, and LW s conduct took place off 32

41 Case: /16/2012 ID: DktEntry: 6-1 Page: 41 of 67 (41 of 68) campus and did not violate any school rule. Defendants feel that Ponce v. Socorro Independant School District 508 th F.3d 765 (5 Cir 2007) is dispositive, but it is not. In Ponce, the student s speech occurred at school and the student was only transferred, not suspended or expelled. Also in Cuff v. Valley Central School District, 714 F.Supp.2d 462 (SD NY 2010) cited by Defendants, the court applied a standard that allowed the school to expel a student if it was reasonably able to conclude that the speech would cause a substantial and material disruption. In Cuff, the student made the threat to blow up the school and all the teachers in it at school. The student had a history of violent discipline and had violent tendencies know by the principal. In LW s case, the principal knew that LW was not violent and a good student. The comments were also made off-campus. In Mardis v. Hannibal Public School District, 684 F.Supp.2d 1114 (ED MO 2010), the court determined that the student s instant message was a true threat, naming specific individuals and citing Virginia v. Black, 538 US 343 (2003). In Mardis, the student named the people he was going to kill 33

42 Case: /16/2012 ID: DktEntry: 6-1 Page: 42 of 67 (42 of 68) and then said he would kill himself. Id. at Unlike LW s communications that had been going on for months, the student in Mardis only had this one instant message that was credible given his current state of mind and recent break up with his girlfriend. Defendants also cite to Boim v. Fulton County School District, 494 th F.3d 978 (11 Cir. 2007) which is also misplaced. Boim only dealt with on- campus speech.. In Doe v. Pulaski County Special School District, 306 F.3d th 616 (8 Cir. 2002) cited by Defendants, the court stated that it must view the relevant facts to determine whether the recipient of the alleged threat could reasonably conclude that it expresses a determination or intent to injure presently or in the future. Id. at 622. LW only told his thoughts to his friend JR. They had been talking trash for months. LW had no history of violence and the threat was not communicated to any intended victim. These factors were not considered by Defendants, but were used by the court in Pulaski. Id. at 623. JR was fine with LW s comments and asked to be shot and killed first, laughing and wanting to play. 34

43 Case: /16/2012 ID: DktEntry: 6-1 Page: 43 of 67 (43 of 68) The Defendants also cite to Wisniewski v. Board of Education, 494 nd F.3d 34 (2 Cir. 2007) but did not state all the relevant facts. In Wisniewski, for three weeks, the student posted a threat to shoot a specific teacher on a cite available to over 15 students. Id. at 36. LW s comments were made only in a one-on-one communication, not a chat group. When determining whether a defendant s speech represents a threat our analysis is not confine[d]...to the defendant s statements alone, United th States v. Bagdasarian, 652 F.3d 1113, 1123 (9 Cir. 2011), but must consider the context in which the communication was made as well. This is precisely the case herein. In context, LW s speech was not a threat at all but just teenage banter. Looking at all the facts in context, LW s comments were not threats and therefore protected by the First Amendment. The standard for on-campus conduct should be higher than for offcampus speech. LaVine v. Blaine School District, supra. at 990. The Defendants take a strict liability approach for off-campus speech that is not appropriate or supported by case law. On campus, LW was not a problem. 35