Barnett v. Tipton County Bd. Of Educ., No. 07-02055 (W.D. Tenn. Feb. 13, 2007)

The U,S, District Court for the Western District of Tennessee denied a motion for a preliminary injunction by students who were disciplined for creating a parody MySpace profile of a school administrator off-campus, after school hours without utilizing school resources. Christopher Barnett, Kevin Black, and Gary Moses, students at Brighton High School (BHS), hatched a plot during their lunch period at school to create a fake personal profile on the MySpace website of Assistant Principal Earl LeFlore. The profile was created on the home computer of one of the students. However, it appears the profile was accessed at some point from a computer that Christopher was using during class. When word spread among the student population about the profile, several students accessed the profile and posted comments to the page. Some of the comments posted to Mr. LeFlore’s profile and to those of some students’ MySpace profiles suggested Mr. LeFlore had engaged in inappropriate behavior with female students at BHS. Shortly after, the creator of the profile deleted it. By that time it was receiving widespread attention from BHS students to the point that one teacher stated her class was interrupted because students were asking questions about what they believed were actual comments or statements made by Mr. LeFlore. BHS officials launched an investigation under the apparent belief that profile was actually Mr. LeFlore’s. They quickly discovered that the profile was created by Christopher, Kevin, and Gary. They all admitted to taking part in creating the profile and received some type of limited suspension, including in-school suspension. However, Christopher gained renewed attention when he created a "Wanted" poster on his MySpace website directed at the student he believed had exposed him as creator of Mr. LeFlore’s profile. He also had a physical confrontation with the other student. Because of the continuing "buzz" about Mr. LeFlore’s profile, students began asking school officials to "take teaching time to answer questions about the website and Mr. LeFlore." A hearing was held to determine what disciplinary measures should be taken in regard to Christopher and Kevin. Christopher was assign to the alternative learning center (ALC) for the remainder of the school year. Kevin was placed on "zero tolerance" probation, which carried the threat of placement at the ALC if there was a further infraction. Gary, who is a special education student, was not subject to any further disciplinary action after his IEP meeting concluded. It appears Christopher never attended the ALC because his parents enrolled him in private school.

The students filed suit in federal court against the Tipton County Board of Education (TCBOE) and various school district and BHS officials. The suit alleged that the students had been subjected to disciplinary action in retaliation for exercising their constitutionally protected right to free speech. It also alleged that the ALC was not an "appropriate educational placement" for Christopher. In their motion for a preliminary injunction, the students argued that the defendants had deprived them of "their rights, privileges and immunities" protected under § 1983 and the First, Fourth, Fifth, and Fourteenth Amendments of the U.S. Constitution. The students requested the court order the defendants to: 1) allow Christopher to return to BHS; 2) lift Kevin’s "zero tolerance" probationary status; and 3) refrain from taking any further action against the students in retaliation for filing the suit. Because the evidence established that Kevin’s probationary status had expired and the students had failed to provide any evidence that the defendants would retaliate against them for filing the suit, the court only considered the relief requested on behalf of Christopher. The district court then turned its attention to whether the students had satisfied their burden to demonstrate that the circumstances of the case warranted the issuance of the injunction. It pointed out that courts are required to consider four factors when deciding whether to issue a preliminary injunction: 1) the likelihood of success on the merits; 2) the irreparable harm to the moving party if the injunction is not issued’ 3) the impact on the public interest; and 4) the possibility of substantial harm to others.

Addressing the likelihood of success on the merits factor, it concluded that the students had failed to present evidence sufficient to suggest they would prevail on the merits. In reaching its conclusion, the court relied on the holding in Tinker v, Des Moines Indep. Cmty. Sch. Dist., 93 U.S. 503 (1969), that school officials may regulate student speech if it would substantially disrupt school operations. In particular, it found that the analysis and conclusions in Layshock v. Hermitage Sch. Dist., 412 F.Supp.2d 502 (W.D. Pa. 2006), persuasive. Like the present case, Layshock involved the suspension of a high school student, who created a fake MySpace profile of the school’s principal off-campus on a home computer during non-school hours. The profile also caused a "buzz" on campus and resulted in various disruptions to the school routine. The student was suspended and placed in the alternative school. The Pennsylvania district court found that, even though the incident began with purely out of school conduct, it spilled over to the school setting causing a substantial disruption to school operations justifying school officials’ decision to impose disciplinary measures in accordance with Tinker’s principles. The Tennessee district court found Layshock directly on point. It pointed out that even after the profile was taken down in the instant case Christopher’s actions continued to draw attention to the profile with further disruptions occurring. It found that it appeared that the students’ speech "substantially disrupted school operations" justifying regulation of that speech. The court, therefore, concluded the students had failed to demonstrate a likelihood of success on the merits in regard to their First amendment claim.

Turning the irreparable harm factor, it again found the reasoning in Layshock persuasive. Specifically, it agreed with Layshock that while placement in alternative school might not be academically ideal, it did not "find it so onerous that harm to the [student] will truly be irreparable." Regarding the impact on public interest, the district court found this factor also weighed in favor of the defendants because the public interest is best served by allowing school officials to administer their school and discipline students as they determine. Turning to the final factor of the possibility of substantial harm to others, the court found that factor weighed in the defendants’ favor because granting an injunction at this stage might substantially damage the school system authority and school officials’ ability to maintain order, especially if students develop the belief that disruptive behavior will go unpunished.

[Editor’s Note: To view a summary of the Layshock opinion, along with links to additional background on the case, see the first link below. Off-campus student speech on websites, such as MySpace, has become a serious issue for school officials as that speech spills over into the hallways, cafeterias, and classrooms. When school officials act to regulate that speech, the issue often ends up being litigated, as in the cases of Barnett and Layshock. For more discussion on regulating off-campus student speech, see the second link below.]
NSBA School Law pages on Layshock v. Hermitage Sch. Dist.
NSBA School Law pages on school regulating off-campus speech

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