2008case 2

TO: ALL MOCK TRIAL PARTICIPANTS

FROM: SUSAN K. ROBERTS, PRESIDENT

RE: 2008-09 INDIANA HIGH SCHOOL MOCK TRIAL COMPETITION

On behalf of the Indiana High School Mock Trial Association, we welcome your participation in the

2008-2009 High School Mock Trial competition. This year’s case involves a preliminary injunction

hearing in federal court. The plaintiff, a high school student, will attempt to show that the principal

violated the student’s right to freedom of speech guaranteed under the United States and Indiana

Constitutions. The defense will attempt to show that the student’s speech caused substantial disruption at

the school and therefore is not protected.

Students – Through participation you will experience what it is like to prepare for and present a case

before a judge. Working with your team and coaches, you will learn to evaluate information and respond

quickly. As you prepare, you will sharpen public speaking and presentation skills. The greatest benefit is

the opportunity to learn how the legal system works. By studying and understanding courtroom

procedure, you should become more comfortable with federal and state laws as part of the legal system.

Your interaction with some of Indiana’s finest attorneys and judges will give you a glimpse of the

different interpretations of trial procedure and different approaches of individual members in the legal

arena.

Teacher Coach, Attorney Coach, or Judge – We strongly encourage you to focus on the goal of

participation by students rather than stressing competition while preparing for the competition. Your

contributions of time and talent are making many experiential educational opportunities available

annually to many Indiana students. Your participation is an essential key element to the success of this

program. You can be proud of the impact you have made on the lives of these students.

Good luck and have fun!

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CASE BACKGROUND

Freedom of speech is the freedom to speak freely without censorship or limitation.

Freedom of expression extends the freedom to any act of seeking, receiving, and imparting

information or ideas regardless of the medium used, including the Internet. The Internet has

become a battleground for freedom of speech issues. As some have come to discover to their

chagrin, postings on the Internet are often very public and the statements and information posted

on the Internet can have consequences. One issue, unique to public schools, is under what

circumstances may school officials punish students for the content of postings on the Internet.

This year’s mock trial case explores the boundaries of the freedom of speech when a high school

student is critical of, and mocks, the school’s principal on a video posted on the Internet,

allegedly using the student’s home computer and equipment.

Chris Cross is a senior at James Madison High School. By all accounts, Chris is an over-

achiever. Chris has excelled well academically and is an honor roll student. Chris is expected to

graduate third in a graduating class of 450. Chris also is involved in several extracurricular

activities including mock trial, speech and debate, and is President of Student Council.

In running for Student Council, Chris campaigned to make reforms at Madison High,

including having an open campus during lunch periods. Chris met with Principal Powers on

numerous occasions over the summer, and throughout August to obtain support and pave the

way for an open campus lunch. In early September, Chris realized that Principal Powers was not

receptive to change from a closed campus. So, Chris and all of the Student Council members

organized a week of protest. The protest consisted of wearing black armbands, symbolic of

death to the students’ freedoms, as well as unifying 97% of the student body to boycott the

lunches provided by the school’s cafeteria. Principal Powers was furious at the brazen defiance

to authority by Chris and the Student Council. As such, the September 20th dance, sponsored by

the Student Council, was cancelled.

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Chris, always ready to argue for a cause, decided to make a film criticizing and mocking

the Principal’s authority. The film was posted from Chris’ home computer on the popular

Internet site for Internet videos called I-Film. Several students viewed the video during

computer labs or library periods during the school period. Claiming that the video caused a

substantial disorder and disruption of the school’s learning environment, Principal Powers gave

Chris a ten-day out-of-school suspension. Additional discipline imposed on Chris included (1)

removing Chris as President of Student Council, (2) prohibiting Chris from participating in

commencement ceremonies, and (3) disqualifying Chris from eligibility for the school’s William

Marbury scholarship.

Chris brought this preliminary injunction action in federal court claiming that Madison

High, and specifically Principal Powers, violated Chris’ First Amendment right to free speech.

Chris seeks to enjoin James Madison High School from the punishments instituted against

him/her arising out of this incident. The School contends that Chris Cross was punished for

creating a parody of the principal causing a substantial disruption of the school environment, and

thus did not violate Chris’ right to free speech.

Plaintiff’s Witnesses:
Chris Cross – Student who asserts freedom of speech violated
Eric/Erica Silver – Teacher/Student Council Advisor
Mel Bourne – Student involved in I-Film creation

Defendant’s Witnesses:
Dr. M. Powers – James Madison H.S. Principal
Cory/Corrie Late – Student claiming class disruption due to I-Film
Pat Wright – Teacher claiming class disruption

The Case Background is not to be used as evidence in the case, but rather is provided for
background purposes only. This case is a work of fiction. The names and events described
herein are intended to be fictional. Any similarity or resemblance of any character to an
actual person or entity should be regarded as only fictional for purposes of this mock trial
exercise.

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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION

CHRIS CROSS, )
)
Plaintiff )
) CV NO. 4:08CV000262
vs. )
)
MARBURY SCHOOL CORPORATION )
And MORRIE POWERS, in his/her )
Individual and Official Capacities as )
Principal of James Madison High School )
)
Defendants. )

COMPLAINT

Introduction

Plaintiff Chris Cross brings this action against the Defendants for preliminary and

permanent injunctive relief, damages, and attorneys’ fees and costs, pursuant to 42 U.S.C. § 1983

for the unconstitutional infringement of his/her right to free speech as guaranteed by the First and

Fourteenth Amendments to the Constitution of the United States.

Jurisdiction and Venue

1. This Court has jurisdiction of this action pursuant to 28 U.S.C. §1331 and §1343

(a)(3) in that this is an action arising under the First and Fourteenth Amendments to

the Constitution of the United States and is one brought to redress the deprivation of

federal constitutional rights by the Defendants under color of law, in contravention of

the protections of 42 U.S.C. §1983.

2. This Court has authority to enter a declaratory judgment pursuant to 28 U.S.C. §§

2201-02 and the requested injunctive relief under Rule 65 of the Federal Rules of

Civil Procedure. The Court has authority to award attorneys’ fees and costs pursuant

to 42 U.S.C. §1988.
4

3. Venue is proper in this district and division of the Court, as a substantial part of the

events giving rise to this Complaint occurred in the Northern District of Indiana,

Hammond Division.

Parties

4. Plaintiff, Chris Cross, is 18 years old and is a senior at James Madison High School in

Marbury, Indiana, which is operated and controlled by the Marbury School

Corporation.

5. Defendant Marbury School Corporation is an Indiana public school corporation

organized under Indiana state law, and is the administrative body responsible for all

schools and school employees in the Marbury School Corporation.

6. Marbury School Corporation is responsible for the policies, practices, and actions

complained of by the Plaintiff.

7. Defendant Morrie Powers is a Principal at James Madison High School, and as such

is directly responsible for implementing the policies, practices and actions

complained of by the Plaintiff.

General Allegations

8. Plaintiff was the President of the Student Council at James Madison High School, and

in such capacity attempted to advocate to Defendant Powers on behalf of the student

body for open campus lunch periods.

9. Defendant Powers refused to change the school policy on closed campus lunch

periods.

10. In early September, 2008, Plaintiff and the James Madison High School Student

Council organized a week of protest against the School Administration’s refusal to

change to open campus lunch periods, including wearing black armbands in protest

and staging a boycott of the school’s cafeteria meals.

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11. The week of September 8, 2008, Plaintiff, as well as numerous students protested the

refusal of the open campus lunch period by wearing black armbands.

12. In addition, for the week of September 8, 2008, Plaintiff and 97% of the student body

engaged in a boycott of the meals provided in the school’s cafeteria.

13. The wearing of armbands and boycott of the cafeteria meals did not violate school

policy.

14. On September 12, 2008, Defendant Powers threatened to suspend Plaintiff for the

protest.

15. On September 15, 2008, Defendant Powers cancelled a dance scheduled for

September 20, 2008 and sponsored by the James Madison High School Student

Council.

16. Thereafter, Plaintiff and other James Madison High School students, created a home

movie as a parody of Defendant Powers.

17. On October 4, 2008, said home movie was posted on the Internet website I-Film.

18. Plaintiff did not use school equipment or school computers to create or post the movie

to the Internet.

19. Plaintiff was subjected to discipline for exercising his/her right to free speech.

Count I

20. Plaintiff’s rights to freedom of speech and freedom of expression, guaranteed by the

First and Fourteenth Amendments to the Constitution of the United States, were

violated by the Defendants when Plaintiff was subjected to discipline for wearing

black armbands as a symbol of protest.



violated by the Defendants when Plaintiff was subjected to discipline for organizing

the boycott of the meals provided by the school cafeteria.
6



violated by the Defendants when Plaintiff was subjected to discipline for creating the

parody of Defendant Powers and posting it on the internet, despite doing so from a

home computer and not a school computer.

23. There has been no threat of material and substantial disruption to James Madison

High School related to Plaintiff’s lawful exercise of his/her constitutional rights.

24. Defendants acted under color of law when they implemented and enforced the

policies and practices that abridged Plaintiff’s right to freedom of speech and freedom

of expression, as guaranteed by the First and Fourteenth Amendments to the

Constitution of the United States, in violation of 42 U.S.C. §1983.

25. If allowed to stand, the Plaintiff’s suspension or any other disciplinary action against

him/her for exercising his/her constitutional rights would constitute a permanent part

of Plaintiff’s scholastic record.

26. If allowed to stand, the Plaintiff’s suspension or any other disciplinary action against

him/her for exercising his/her constitutional rights would cause the Plaintiff to miss

educational opportunities including credits for any homework, quizzes or tests missed

on account of the discipline imposed by Defendants.

27. Such disciplinary action will serve as a basis to exclude Plaintiff from extra-curricular

activities that Plaintiff now participates in.

28. Such disciplinary action will serve as a basis to exclude Plaintiff from eligibility for a

school scholarship, and thus will cause substantial financial harm to Plaintiff.

29. Such disciplinary action and its consequences will also serve to affect Plaintiff’s

application for college education and employment.

30. Other students have not been subject to discipline despite their involvement in the

same exercise of free speech as Plaintiff.
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Relief Requested

1. Plaintiff requests that this Court find, declare and determine that the policies, practices,

and actions complained of herein are unconstitutional, and declare that Plaintiff was

deprived of rights guaranteed under the First and Fourteenth Amendments to the United

States Constitution.

2. Plaintiff requests that this Court issue a preliminary and permanent injunction enjoining

each and all of the Defendants from disciplining the Plaintiff in any way for exercising

his/her right to free speech.

3. Defendants should be ordered to abate and expunge the unlawful discipline of the

Plaintiff. Plaintiff requests that this Court grant a preliminary injunction enjoining

Defendants from taking or enforcing the remainder of any disciplinary action against the

Plaintiff.

4. Defendants should be prevented from using the unlawful discipline to exclude Plaintiff

from participation in school extra-curricular activities.

5. Plaintiff has suffered pain, humiliation, embarrassment, and emotional distress due to the

actions of the Defendants in violating Plaintiff’s rights under the First and Fourteenth

Amendments.

6. Plaintiff requests that nominal and compensatory damages for the acts complained of

herein be awarded to Plaintiff and against the Defendants.

7. Plaintiff requests that this Court award Plaintiff his/her costs, including reasonable

attorney’s fees, as authorized by 42 U.S.C. §1983 and §1988.

8. Plaintiff demands the right to a trial by jury.

9. Plaintiff requests that this Court award all other relief to which Plaintiff is entitled.

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WHEREFORE, Plaintiff prays for the foregoing, and for such other relief as the Court

deems equitable and just.

Respectfully submitted,

John Locke, Esquire
Locke, Jefferson & Mason, LLP
One Constitutional Way
Marbury, Indiana

ATTORNEY FOR PLAINTIFF

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HAMMOND DIVISION

CHRIS CROSS, )
)
Plaintiff )
) CV NO. 4:08CV000262
vs. )
)
)
Defendants. )

ANSWER TO COMPLAINT

Defendants, Marbury School Corporation and Morrie Powers, in his/her individual and

official capacities as Principal of James Madison High School, answer the enumerated

paragraphs of plaintiff’s Complaint as follows:

1. Defendants admit the allegations of paragraph 1 of the Complaint.











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14. Defendants deny the allegations of paragraph 14 of the Complaint.


16. Defendants are without knowledge or information sufficient to form a belief

as to admit or deny the truth of the allegations of paragraph 16 of the

Complaint.


18. Defendants are without knowledge or information sufficient to form a belief

as to admit or deny the truth of the allegations of paragraph 18 of the

Complaint.













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AFFIRMATIVE DEFENSES

1. Plaintiff’s Complaint fails to state a claim upon which relief can be granted.

2. Plaintiff’s actions caused material and substantial disruption of the educational

environment of James Madison High School, and as such Defendant Powers was

empowered to implement the disciplinary actions taken against Plaintiff.

WHEREFORE, Defendants pray that Plaintiff take nothing by way of his/her

Complaint, for costs, and all other relief as the Court deems just and proper.

Respectfully submitted,

Alexander Hamilton, Esquire
Hamilton & Henry, LLP
One Federal Road
Marbury, Indiana

ATTORNEY FOR DEFENDANTS

12

HAMMOND DIVISION

CHRIS CROSS, )
)
Plaintiff )
) CV NO. 4:08CV000262
vs. )
)
)
Defendants. )

STIPULATIONS

Note: No witness may contradict or deny knowledge of the facts contained in the stipulations.

1. All exhibits included in these Case Materials are authentic and accurate in all

respects; no objection to the authenticity of these exhibits will be entertained.

Unless stated otherwise herein, the admissibility of the exhibits on other grounds

may be challenged.

2. All witness statements were signed by each witness under oath.

3. I-Film is an Internet online community that allows people to post a movie clip on

the Internet and allows comments by others. I-Film does not require membership

and is open to the general public to post films or to view films posted by others.

4. I-Film tracked the posting of the October 4, 2008 parody film of Dr. M. Powers to

the ISP of the home computer of Chris Cross.

5. No school computers were used to create or post the parody film of Dr. Powers.

6. School policies and communications, via e-mail or otherwise, are kept in the

course of the regularly conducted business activity of the school, and it is the

regular practice to make and retain such records.

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APPLICABLE LAW

Congress shall make no law . . .abridging the freedom of speech, or of the press; or the right of
the people peaceably to assemble, and to petition the Government for a redress of grievances.
United States Constitution, First Amendment.

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are
citizens of the United States and of the State wherein they reside. No State shall make or enforce
any law which shall abridge the privileges or immunities of citizens of the United States; nor
shall any State deprive any person of life, liberty, or property, without due process of law; nor
deny to any person within its jurisdiction the equal protection of the laws. United States
Constitution, Fourteenth Amendment.

No law shall be passed, restraining the free interchange of thought and opinion, or restricting the
right to speak, write, or print, freely, on any subject whatever, but for the abuse of that right,
every person shall be responsible. Indiana Constitution, Article 1, Section 9.

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, . . . 42 U.S.C. § 1983

In any action or proceeding to enforce a provision of section [1983]. . . the court, in its
discretion, may allow the prevailing party, other than the United States, a reasonable attorney's
fee as part of the costs . . .. 42 U.S.C. § 1988 (b)

Ind. Code 20-26-5-4 (18): In carrying out the school purposes of a school corporation, the
governing body acting on the school corporation's behalf has the following specific powers:
To prepare, make, enforce, amend, or repeal rules, regulations, and procedures:
(A) for the government and management of the schools, property, facilities, and activities of the
school corporation, the school corporation's agents, employees, and pupils and for the operation
of the governing body; and
(B) that may be designated by an appropriate title such as quot;policy handbookquot;, quot;bylawsquot;, or quot;rules
and regulations.quot;

Ind. Code 20-33-8-8:
(a) Student supervision and the desirable behavior of students in carrying out school purposes is
the responsibility of:
(1) a school corporation; and
(2) the students of a school corporation.

(b) In all matters relating to the discipline and conduct of students, school corporation personnel:
(1) stand in the relation of parents to the students of the school corporation; and
(2) have the right to take any disciplinary action necessary to promote student conduct that
conforms with an orderly and effective educational system, subject to this chapter.

(c) Students must:
(1) follow responsible directions of school personnel in all educational settings; and
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(2) refrain from disruptive behavior that interferes with the educational environment.

Ind. Code 20-33-8-10: A principal may take action concerning the principal's school or a school
activity within the principal's jurisdiction that is reasonably necessary to carry out or prevent
interference with an educational function or school purposes.

Ind. Code 20-33-8-13.5:
(a) Discipline rules adopted by the governing body of a school corporation . . . must:
(1) prohibit bullying; and
(2) include provisions concerning education, parental involvement, reporting, investigation, and
intervention.

(b) The discipline rules described in subsection (a) must apply when a student is:
(1) on school grounds immediately before or during school hours, immediately after school
hours, or at any other time when the school is being used by a school group;
(2) off school grounds at a school activity, function, or event;
(3) traveling to or from school or a school activity, function, or event; or
(4) using property or equipment provided by the school.

Ind. Code 20-33-8-14:
(a) The following are the grounds for student suspension or expulsion, subject to the procedural
requirements of this chapter and as stated by school corporation rules:
(1) Student misconduct.
(2) Substantial disobedience.

(b) The grounds for suspension or expulsion listed in subsection (a) apply when a student is:
(1) on school grounds immediately before or during school hours, or immediately after school
hours, or at any other time when the school is being used by a school group;
(2) off school grounds at a school activity, function, or event; or
(3) traveling to or from school or a school activity, function, or event.

Ind. Code 20-33-8-15: In addition to the grounds specified in section 14 of this chapter, a
student may be suspended or expelled for engaging in unlawful activity on or off school grounds
if:
(1) the unlawful activity may reasonably be considered to be an interference with school
purposes or an educational function; or
(2) the student's removal is necessary to restore order or protect persons on school property;
including an unlawful activity during weekends, holidays, other school breaks, and the summer
period when a student may not be attending classes or other school functions.

Ind. Code 20-33-8-18:
(a) A principal may suspend a student for not more than ten (10) school days under section 14,
15 or 16 of this chapter.

(b) A principal may not suspend a student before the principal affords the student an opportunity
for a meeting during which the student is entitled to the following:
(1) A written or an oral statement of the charges against the student.
(2) If the student denies the charges, a summary of the evidence against the student.
(3) An opportunity for the student to explain the student's conduct.

(c) When misconduct requires immediate removal of a student, the meeting under subsection (b)
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must begin as soon as reasonably possible after the student's suspension.

(d) Following a suspension, the principal shall send a written statement to the parent of the
suspended student describing the following:
(1) The student's misconduct.
(2) The action taken by the principal.

From Case Law
The following are excerpts from case law concerning the legal issues raised in this mock trial
case. This is only a portion of the opinion in each cited case. The entire case (including
majority, concurring and dissenting opinions) may be read in preparation for the mock trial and
cited in the course of the trial.

Tinker vs. Des Moines Community School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d
731 (1969) [The United States Supreme Court held that a high school’s regulation prohibiting
students from wearing black armbands to protest the Vietnam War violated the students’ First
Amendment rights.]

First Amendment rights, applied in light of the special characteristics of the school environment,
are available to teachers and students. It can hardly be argued that either students or teachers
shed their constitutional rights to freedom of speech or expression at the schoolhouse gate. This
has been the unmistakable holding of this Court for almost 50 years . . . On the other hand, the
Court has repeatedly emphasized the need for affirming the comprehensive authority of the
States and of school officials, consistent with fundamental constitutional safeguards, to prescribe
and control conduct in the schools . . . Our problem lies in the area where students in the exercise
of First Amendment rights collide with the rules of the school authorities . . . Undifferentiated
fear or apprehension of disturbance is not enough to overcome the right to freedom of
expression.

In order for the State in the person of school officials to justify prohibition of a particular
expression of opinion, it 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 accompany an
unpopular viewpoint. Certainly where there is no finding and no showing that engaging in the
forbidden conduct would “materially and substantially interfere with the requirements of
appropriate discipline in the operation of the school,” the prohibition cannot be sustained.

In our system, state-operated schools may not be enclaves of totalitarianism. School officials do
not possess absolute authority over their students. Students in school as well as out of school are
“persons” under our Constitution. They are possessed of fundamental rights which the State must
respect, just as they themselves must respect their obligations to the State. In our system,
students may not be regarded as closed-circuit recipients of only that which the State chooses to
communicate. They may not be confined to the expression of those sentiments that are officially
approved. In the absence of a specific showing of constitutionally valid reasons to regulate their
speech, students are entitled to freedom of expression of their views.

Under our Constitution, free speech is not a right that is given only to be so circumscribed that it
exists in principle but not in fact. Freedom of expression would not truly exist if the right could
be exercised only in an area that a benevolent government has provided as a safe haven for
crackpots. The Constitution says that Congress (and the States) may not abridge the right to free
speech. This provision means what it says. We properly read it to permit reasonable regulation of
16

speech-connected activities in carefully restricted circumstances. But we do not confine the
permissible exercise of First Amendment rights to a telephone booth or the four corners of a
pamphlet, or to supervised and ordained discussion in a school classroom . . .

Bethel School District No. 403 vs. Fraser, 478 U.S. 675, 106 S.Ct. 3159, 92 L.Ed.2d 549
(1986) [The United States Supreme Court held that the suspension of a high school student for
use of sexual innuendos in a speech at a voluntary school assembly nominating a fellow student
for elective student office did not violate the student’s First Amendment rights.]

Freedom to advocate unpopular and controversial views in schools and classrooms must be
balanced against society’s countervailing interest in teaching students boundaries of socially
appropriate behavior. . .

It is a highly appropriate function of public school education to prohibit the use of vulgar and
offensive terms in public discourse. Nothing in the Constitution prohibits the states from
insisting that certain modes of expression are inappropriate and subject to sanctions. The
inculcation of these values is truly the work of the school, and the determination of what manner
of speech is inappropriate properly rests with the school board. . .

The role and purpose of the American public school system was well described by two
historians, saying “public education must prepare pupils for citizenship in the Republic. . . It
must inculcate the habits and manners of civility as values in themselves conducing to happiness
and as indispensable to the practice of self-government in the community and the nation.” C.
Beard & M. Beard, New Basic History of the United States, 228 (1968). In Ambach vs. Norwick,
99 S.Ct. 1589 (1979), we echoed the essence of this statement of the objectives of public
education as the “inculcation of fundamental values necessary to the maintenance of a
democratic political system.”

These fundamental values of “habits and manners of civility” essential to a democratic society
must, of course, include tolerance of divergent political and religious views, even when the
views expressed may be unpopular. But these “fundamental values” must also take into account
consideration of the sensibilities of others, and, in the case of a school, the sensibilities of fellow
students. The undoubted freedom to advocate unpopular and controversial views in schools and
classrooms must be balanced against the society’s countervailing interest in teaching students the
boundaries of socially appropriate behavior. Even the most heated political discourse in a
democratic society requires consideration for the political sensibilities of the other participants
and audiences. . .

The First Amendment guarantees wide freedom in matters of adult public discourse. . . It does
not follow, however, that simply because the use of an offensive form of expression may not be
prohibited to adults making what the speaker considers a political point, that the same latitude
must be permitted to children in a public school. In New Jersey vs. T.LO., 105 S.Ct. 733 (1985),
we reaffirmed that the constitutional rights of students in public school are not automatically
coextensive with the rights of adults in other settings, . .

Nothing in the Constitution prohibits the states from insisting that certain modes of expression
are inappropriate and subject to sanctions. The inculcation of these values is truly the “work of
the schools.” . . The determination of what manner of speech in the classroom or in school
assembly is inappropriate properly rests with the school board.

17

Hazelwood School District vs. Kuhlmeier, 484 U.S. 260, 108 S.Ct. 562, 98 L.Ed.2d 592 (1988)
[The United States Supreme Court upheld the judgment of the trial court that a high school
principal’s decision to delete certain articles from the school newspaper produced by the
journalism class concerning pregnancy and divorce, which the principal felt were inappropriate,
did not violate the First Amendment rights of student staff members of the newspaper. School
officials can regulate school-sponsored student speech if they have a reasonable educational
reason for doing so.]

We deal first with the question whether [the school newspaper] may appropriately be
characterized as a forum for public expression. The public schools do not possess all of the
attributes of streets, parks, and other traditional public forums that “time out of mind, have been
used for purposes of assembly, communicating thoughts between citizens, and discussing public
questions.” Hence school facilities may be deemed to be public forums only if school authorities
have “by policy or by practice” opened those facilities “for indiscriminate use by the general
public,” or by some segment of the public, such as student organizations. If the facilities have
instead been reserved for other intended purposes, “communicative or otherwise,” then no public
forum has been created, and school officials may impose reasonable restrictions on the speech of
students, teachers, and other members of the school community . . .

One might reasonably infer from the full text of [the School Board Policy and Curriculum
Guide] that school officials retained ultimate control over what constituted “responsible
journalism” in a school-sponsored newspaper. . . School officials did not evince either “by policy
or by practice” any intent to open the pages of [the newspaper] to “indiscriminate use” by its
student reporters and editors, or by the student body generally. Instead, they “reserve[d] the
forum for its intended purpos[e]” as a supervised learning experience for journalism students.
Accordingly, school officials were entitled to regulate the contents of [the newspaper] in any
reasonable manner. It is this standard, rather than our decision in Tinker, that governs this case.
The question whether the First Amendment requires a school to tolerate particular student speech
- the question that we addressed in Tinker - is different from the question whether the First
Amendment requires a school affirmatively to promote particular student speech. The former
question addresses educators’ ability to silence a student’s personal expression that happens to
occur on the school premises. The latter question concerns educators’ authority over school-
sponsored publications, theatrical productions, and other expressive activities that students,
parents, and members of the public might reasonably perceive to bear the imprimatur of the
school. These activities may fairly be characterized as part of the school curriculum, whether or
not they occur in a traditional classroom setting, so long as they are supervised by faculty
members sand designed to impart particular knowledge or skills to student participants and
audiences.

Educators are entitled to exercise greater control over this second form of student expression to
assure that participants learn whatever lessons the activity is designed to teach, that readers or
listeners are not exposed to material that may be inappropriate for their level of maturity, and
that the views of the individual speaker are not erroneously attributed to the school. . .

We hold that educators do not offend the First Amendment by exercising editorial control over
the style and content of student speech in school-sponsored expressive activities so long as their
actions are reasonably related to legitimate pedagogical concerns.

18

Morse v. Frederick, 551 U.S. ___, 127 S.Ct. 2618, 168 L.Ed.2d 290 (2007) [The United States
Supreme Court held that school officials did not violate the First Amendment by confiscating a
pro-drug banner (“Bong Hits 4 Jesus”) at a school sponsored class trip to view the Olympic torch
relay.]

Schools may take steps to safeguard those entrusted to their care from speech that can reasonably
be regarded as encouraging illegal drug use. We conclude that school officials in this case did
not violate the First Amendment by confiscating the pro-drug banner and suspending the student
responsible for it.

We reject Frederick’s argument that this is not a school speech case. . . . The event occurred
during normal schools hours. It was sanctioned by Principal Morse as an approved social event
or class trip and the school district’s rules expressly provide that pupils in approved social events
and class trips are subject to district rules for student conduct. Fraser’s holding demonstrates
that the constitutional rights of students in public schools are not automatically coextensive with
the rights of adults in other settings. Had Fraser delivered the same speech in a public forum
outside the school context, it would have been protected.

Deterring drug use by school children is an important – indeed perhaps compelling interest. The
special characteristics of the school environment and the government interest in stopping student
drug use . . . allows schools to restrict student expression that they reasonably regard as
promoting illegal drug use. School principals have a difficult job, and a vitally important one.
When Frederick suddenly and unexpectedly unfurled his banner, Morse had to decide to act – or
not act – on the spot. It was reasonable for her to conclude that the banner promoted illegal drug
use – in violation of established school policy – and that failing to act would send a powerful
message to the students in her charge about how serious the school was about the dangers of
illegal drug use. The First Amendment does not require schools to tolerate at school events
student expression that contributes to those dangers.

Reno v. ACLU, 52 U.S. 844, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997) [Uniteds States Supreme
Court held that speech on the internet is entitled to the highest level of protection, on a par with
the print medium.]

Nuxoll v. Indiana Prairie School District, 523 F.3d 668 (7th Cir. April 23, 2008) [Seventh
Circuit held that a student was likely to succeed on the merits of his claim that the school
violated his free speech rights by preventing him from wearing a T-shirt with the slogan “Be
Happy, not Gay.”]

A heavy federal constitutional hand on the regulation of student speech by school authorities
would make little sense. The contribution that kids can make to the marketplace in ideas and
opinions is modest and a school’s countervailing interest in protecting students from offensive
speech by their classmates is undeniable. Granted, because 18 year olds can now vote, high
school students should not be raised in an intellectual bubble.

Of course a school can – often it must – protect students from the invasion of their legal rights by
other students. But peole do not have a legal right to prevent criticism of their belieffs or for that
matter their way of life. There is no indication that the negative comments that the plaintiff
wants to make about homosexuals or homsexuality names or targets an individual or is
defamatory.

19

Lowry v. Watson Chapel School District, 540 F.3d 752 (8th Cir. Sept. 2, 2008) [Eighth
Circuit Court of Appeals held that the school violated the students’ First and Fourteenth
Amendments by disciplining them for wearing black armbands to signify their disagreement with
the student dress code, where the wearing of the black armbands caused no material disruption or
substantial interference with the school.]

Defendants attempt to distinguish Tinker by emphasizing that the Tinker students protested the
federal government’s Vietnam war policy, whereas here the protest was merely a school dress
code. This distinction is immaterial. Whether student speech protests national foreign policy or
local school board policy is not constitutionally significant.

We hold that Tinker is so similar in all constitutionally relevant facts that its holding is
dispositive. In both cases, a school district punished students based on their non-disruptive
protest of a government policy. The district court was correct to find that . . a violation of
plaintiffs’ First Amendment rights has been established.

Beussink v. Woodland R-IV School District, 30 F. Supp.2d 1175 (E.D. Mo. 1998) [ Missouri
District Court ruled that school officials violated the First Amendment rights of a high school
student when they suspended him for 10 days for his home page, created on his home computer,
which used vulgar language to criticize the principal and school, even though the school
computer was used to apparently access the Web page.]

Disliking or being upset by the content of a student’s speech is not an acceptable justification for
limiting student speech under Tinker. The public interest is not only served by allowing [the
student’s] message to be free from censure, but also by giving the students . . . this opportunity to
see the protections of the United States Constitution and the Bill of Rights at work.”

Emmett v. Kent School District, 92 F. Supp.2d 1088 (W.D. Wa. 2000) [ Washington District
Court held that the student’s Internet speech that contained mock obituaries of two of his
friends, created off campus, is “entirely outside of the school’s supervision or control,” even
though the website became a big topic at school and a rumor started that the site contained a hit
list.]

The defendant has presented no evidence that the mock obituaries . . . were inteded to threaten
anyone, did actually threaten anyone, or manifested any violent tendenceis whatsoever.

J.S. v. Bethlehem Area School District (807 A.2d 847) (Pa. 2002) [Pennsylvania Supreme
Court held that the First Amendment was not violated when an 8th grade student was expelled for
a websight created at home which contained derogatory comments about an algebra teacher and
the principal and contained a phrase saying “give me $20 to help pay for the hitman.” The court
determined the speech occurred on-campus because the student accessed the site at school,
showed it to a fellow student, and informed other students of the site.]

We find that there is a sufficient nexus between the website and the school campus to consider
the speech as occurring on-campus. We hold that where speech that is aimed at a specific school
and/or its personnel is brought onto the school campus or accessed at school by its originator, the
speech will be considered on-campus speech.

Layshock v. Hermitage School District, 496 F. Supp.2d 587 (W.D. Pa. 2007) [Pennsylvania
District Court ruled that the student’s First Amendment rights were violated when the student
was disciplined for creating a parody profile of his principal on MySpace, using his
20

grandmother’s computer from her home. The Co-principal did not personally witness any
disruptive behavior, but 5 teachers reported that sudents wanted to discuss the profile during
class. The Co-principal spent most of one morning talking to several students to find out who
had created the profiles and cautioned the students not to discuss the topic in class. Also the
school’s computers could not be used temporarily and teachers had to revise lesson plans if they
had intended to use the computer lab. The School’s technology administrator spent
apporximately 25% of his time one week working on computer issues related to the Web page.
The Court determined that there was no nexus existed between the creation of the parody and
any substantial disruption of the school environment.]

This is an important and difficult case, in which the Court must balance the freedom of
expression of a student with the right and responsibility of a public school to maintain an
environment conducive to learning. This case began with purely out-of-court conduct which
subsequently carried over into the school setting.

The public school setting demands a special approach to First Amendment disputes. Most
students are minors and school administrators must have authority to provide and facilitate
education and to maintain order. . . . A mere desire to avoid discomfort or unpleasantness will
not suffice. A bedrock principle underlying the First Amendment is that expression may not be
prohibited simply because society finds the idea offensive or disagreeable. Government may
not prohibit student speech based solely on the emotive impact that its offensive content may
have on a listener. Rather, a school must point to a well-founded expectation of disruption . . .

It is clear that the test for school authority is not geographical. The reach of school
administrators is not strictly limited to the school’s physical property. . . It is well within a
school board’s discretion to punish inappropriate behavior to maintain the discipline and welfare
of students, but only where those students are in the district’s charge at school functions.
Regardless of whether the source of the school’s authority is based on timing, function, context
or interference with its operations, it is incumbent upon the school to establish that it had the
authority to punish the student. In cases involving off-campus speech, the school must
demonstrate an appropriate nexus.

The School District is unable to connect the alleged disruption to the plaintiff’s conduct insofar
as there were three other profiles [of the Principal] that were available on MySpace.com during
the same timeframe. In addition, a reasonable jury could not concude that the “substantial
disruption” standard could be met on this record. The actual disruption was rather minimal – no
classes were cancelled, no widespread disorder occurred, there was no violence or student
disciplinary action. The only in-school conduct in which plaintiff engaged was showing the
profile to other students in the Spanish classroom.

Doninger v. Niehoff, 514 F.Supp.2d 199 (D.Ct. 2007) [Connecticut District Court held that a
student did not have a First Amendment right to run for a voluntary extracurricular position as a
student leader, and thus the school did not violate her rights when it barred her from running for
class office as a disciplne for writing a vulgar blog about high school officials. The student
received no other punishment; she was not suspended or expelled, she did not receive any written
dicipline in her permanent school file and she continued as a member of student counceil and as
a leader of her student music class.]

Ordinarily, to obtain a preliminary injunction, a plaintiff must establish the following: (1)
irreparable harm and (2) either (a) a likelihood of success on the merits or (b) sufficiently serious
questions going to the merits to make them a fair ground for litigation and a balance of hardships
21

tipping decidedly in her favor. In this case, however, Avery seeks an injunction requiring the
school to remove the current Senior Class Secretary and to hold a new election . . . in which
Avery would be allowed to participate. Because this is a mandatory injunction that alters (rather
than merely maintaining) the existing status quo, an even high legal standard applies. Avery
must show a “clear” or “substantial” likelihood of success on the merits.

[The plaintiff] is entitled to a preliminary injunction if he has shown a reasonable probablility
that his right to free speech is being violated. The Supreme Court believes that “the loss of First
Amendment freedoms, for even minimal periods of time, unquestionabley constitutes irreparable
injury.”

The process of educating our youth for citizenship in public schools is not confined to books, the
curriculum, and the civics class; schools must teach by example the shared values of a civilized
social order. Consciously or otherwise, teachers – and indeed older students demonstrate the
appropriate form of civil discourse and political expression by their conduct and deportment in
and out of class.

[The plaintiff] is free to express her opinions about the school administration and their decisions
in any manner she wishes . . . However, [she] does not have a First Amendment right to run for a
voluntary extracurricular postion as a student leader while engaging in uncivil and offensive
communications regarding school administrators.

The Court believes that Avery’s blog entry may be considered on-campus speech for the
purposes of the First Amendment. Most importantly, the content of the blog was related to
school issues and it was reasonably forseeable that other students would view the blog and that
school administrators would become aware of it.

J.S. v. Blue Mountain School District, 2008 Westlaw 4279517 (M.D. Pa. September 11, 2008)
[A student was not entitled to First Amendment protections for an Internet posting on MySpace,
created on a home computer during non-school hours, when the web posting contained a fake
profile indicating that the Principal was a pedophile and a sex addict.]

The Tinker analysis [requiring a showing of a substantial disruption] is not always applicable to
freedom of speech in public school settings. A school can validly restrict speech that is vlugar
and lewd and also it can restrict speech that promotes unlawful behavior. In the instant case,
there can be no doubt that the speech used is vulgar and lewd. The speech does not make any
type of political statement. It is merely an attack on the school’s principal. As vulgar, lewd and
potentially illegal speech that has an effect on campus, we find that the school did not violate the
plaintiff’s rights in punishing her for it even thouth it arguably did not cause a substantial
disruption of the school.

We acknowledge that the line between on-campus and off-campus speech is blurred with
increased use of the internet and the ability of students to access the internet at school, on their
own personal computers, school computers, or even cellular telephones. As technology allows
such access, it requires school administrators to be more concerned about speech created off
campus – which almost inevitably leaks onto campus - than they would have been in years past.

The facts that we are presented with establish much more of a connection between the off-
campus action and on-campus effect. The website addresses the pincipal of the school. Its
audience is students at the school. A paper copy of the website was brought into school, and the

22

website was discussed in school. On these facts, and because the lewd and vulgar off-campus
speech had an effect on-campus, we find no error in the school administering discipline to J.S.

A.B. v. State of Indiana, 885 N.E.2d 1223 (Ind. May 13, 2008) [Juvenile was adjudicated a
delinquent based on six counts of harassment arising from a MySpace posting containing and
lewd comments regarding the school’s principal. Although the Indiana Court of Appeals
reversed the adjudication of the juvenile as a delinquent on the basis that the harassing messages
were protected political speech, the Indiana Supreme Court disagreed with the rationale, and
instead reversed the trial court for the reason that the State failed to prove all of the elements for
the offense of Harassment.]

23

1 STATEMENT OF CHRIS CROSS
2
3
4 My name is Chris Cross. I am 18 years old and I am a senior at James Madison High
5 School. I have excelled well academically. I will graduate with honors, and I have been on
6 honor roll every semester throughout high school. I have also taken, and am currently enrolled
7 in, advanced placement classes. I am currently ranked third in my graduating class of 450, and
8 expect to graduate third in the class. I also scored a perfect score on my ACT, and I am in
9 contention for a National Merit Scholarship. I guess one could describe me as an over-achiever.
10 I have worked hard to do well in school because my family can’t afford to pay for me to attend
11 college, so I need to make high enough grades and score well on my admissions tests to get a
12 scholarship. I am intending to attend college and major in political science. I want to go to law
13 school after college.
14
15 I am also involved in several extra curricular activities, including mock trial, speech and
16 debate. I have won numerous awards at speech, debate and mock trial competitions, and I have
17 advanced to the National Competition in Mock Trial. Also, the student body of James Madison
18 High School (JMHS) elected me as President of Student Council. At the end of my junior year
19 at JMHS, I decided to run for Student Council at the urging of several of my friends because they
20 thought I am a natural born leader and many of the underclassmen look up to me and would
21 follow my lead. Cory/Corrie Late was also running for President of Student Council. It was a
22 hotly contested campaign. I believe my success was due to my platform and commitment to the
23 student body to make reforms at Madison High, including having an open campus during lunch
24 periods. When the results were tallied and the announcement made, Cory/Corrie seemed visibly
25 upset that I was elected as President of Student Council. Although they don’t announce the
26 results, I heard I won by a landslide. Dr. Powers congratulated me on the election, but I think
27 Powers wanted Cory/Corrie to win because I was campaigning on making changes to the school
28 and Cory/Corrie was fine with the status quo. Cory/Corrie just wanted the position to put on
29 his/her college applications.
30
31 Throughout the summer and in August after school started, I met frequently with Dr.
32 Powers to discuss some of my ideas for change at Madison High. Dr. Powers always agreed to
33 meet with me, even though I don’t think he/she was receptive to making any changes. I spent the
34 majority of those meetings attempting to pave the way for open campus lunch periods. I
35 provided letters from local businesses near the school that supported the idea to increase income
36 to their businesses. I also provided information and policies from other schools that had an open
37 campus lunch period policy. For example, I became aware that some schools permit students to
38 leave campus during lunch provided they are in good academic standing, no absences or
39 tardiness, and do not have any current disciplinary measures against them. I thought this would
40 show Dr. Powers that it should be utilized as a privilege to reward students for good behavior.
41 By the end of August, however, I realized that Dr. Powers was never going to concede to an
42 open campus lunch based upon my pitches alone.
43
44 I reported the progress of my regular meetings with Dr. Powers to Eric/Erica Silver, the
45 advisor/teacher-sponsor for Student Council and the other members of Student Council. In early
46 September, Ms./Mr. Silver told the Student Council members that we needed to “stand up for
47 what you believe in” and “to get the word out.” I interpreted that to mean that we should protest
48 in a non-disruptive manner the denial of our request for open campus lunch periods. I suggested
49 the idea of wearing black armbands to symbolize death of any hope of reform at JMHS. I also
50 suggested that we organize the student body to boycott the cafeteria meals for the week of
51 September 8th. All of the Student Council members were fully behind the protest. I can’t recall
24

1 if Ms./Mr. Silver was at the meeting when we discussed the protest. I don’t believe we ever got
2 his/her approval. I thought he/she implied from his/her earlier remarks that a protest would be
3 appropriate. The Student Council members passed the word of the protest to the student body.
4 The week of September 8th, the Student Council distributed black armbands to the students as
5 they were entering the school building. Also, 97% of the student body participated in the boycott
6 of the cafeteria meals that week.
7
8 Dr. Powers was furious. On September 12th, Powers called me into his/her office, along with
9 Mr./Ms. Silver. Powers said that the boycott created a financial strain on the cafeteria’s budget,
10 and he/she blamed me as the leader of the revolt. Powers was so angry that spittle spewed from
11 his/her mouth, and his/her face was contorted with rage. Powers said he/she “was tired of my
12 attitude and insolence and would not tolerate it any longer” and that my “brazen defiance to
13 authority would do me in.” I remember specifically that Dr. Powers said, “I’ve had my eye on
14 you, Cross, and this time you’ve screwed up once too often. Don’t be surprised if I have you
15 suspended.” I didn’t get a suspension at that time, however. Instead, on September 15th, Dr.
16 Powers sent an e-mail to Ms./Mr. Silver stating that the Student Council’s dance scheduled for
17 September 20th had been cancelled due to the inappropriate protest of his/her decision to refuse
18 to permit an open campus lunch period.
19
20 The more I thought about Powers’ actions, the angrier I became. I viewed Dr. Powers’
21 latest withdrawal of privileges for the student body as just another example of a power monger. I
22 suppose I’m one that likes to always get the last word in, and I’m always ready to argue for a
23 cause, so I decided to make a film criticizing Dr. Powers and mocking his/her authority and then
24 post it on the popular Internet site I-Film. I used my home computer to post the video on I-Film.
25 I borrowed some film equipment from my cousin Vinnie, and asked some students to participate
26 in the film. One of those students who participated in my I-film project was Mel Bourne. The I-
27 film is entitled “Tyranny” and starts with a picture of the United State flag flapping in the wind
28 in the early morning with the sun rising and then zooms out to a picture of JMHS. In the
29 background is my voice quoting Thomas Jefferson: “Enlighten the people, generally, and
30 tyranny and oppressions of body and mind will vanish like spirits at the dawn of the day.” The
31 video then shows a couple of students wearing orange jumpsuits, like the kind prisoners wear,
32 and they are hobbling along, as if beaten down. They are put behind what appears to be bars of a
33 prison cell while I impersonate the jailer, who has similar idiosyncrasies like Dr. Powers. For
34 example, Dr. Powers has a slight limp on his/her left side, and so I limp in an exaggerated
35 fashion in the video. Also, I repeated some language that Dr. Powers frequently repeats. For
36 example, he/she ends nearly every other sentence with “and so on and so forth.” However,
37 nowhere in the film does it state Dr. Powers’ name. In the video, the jailer, cracks a whip into
38 the air enjoying the power. The jailer makes the prisoners bark on command, sit-up and beg, and
39 forces them to eat food that is on a tray which looks similar to the cafeteria meals, all the while
40 saying “if you don’t follow my exact rules, I’ll cancel another dance. I’ll cancel Homecoming
41 festivities. I’ll lock you up and keep you here.” Then, the jailer laughs an evil, maniacal laugh.
42 There is also another scene where one of the JMHS students is wearing black and white striped
43 prison garb and is carrying a ball and chain. And I have a voiceover that says “We need to end
44 this ball and chain.” At the end of the film, the picture turns completely black and then we used
45 several lasers to make a shower of laser lights. Principal Powers is known for using a laser to
46 “mark” students in the hallway at school if their conduct is not in keeping with his/her rigid
47 principles. While the laser showers are depicted in the film I have a voiceover quoting Winston
48 Churchill in his first address as the newly appointed Prime Minister: “You ask, ‘What is our
49 Policy?’ I will say ‘It is to wage war, by sea, land and air, with all our might and with all the
50 strength that God can give us to wage war against a monstrous tyranny never surpassed in the
51 dark lamentable catalogue of human crime.’ You ask ‘What is our aim?” I can answer with one
25

1 word – Victory. Victory at all costs, victory in spite of all terror, victory however long and hard
2 the road may be; for without victory there is no survival.” And then I end with “Let’s end this
3 tyranny and put the lights out.” The film then turns completely black and is silent. I was pleased
4 with the project. I thought I got my point across, and I felt satisfied that I was able to stand up
5 for what I perceived as injustice and a misuse of power. I posted the movie on I-Film on October
6 4th and called some of my friends to view it. Word quickly spread about the movie.
7
8 On Monday, October 6th, the school was abuzz about the I-Film. Students approached
9 me in the hallways between classes to ask me how to access the movie. I was in computer lab
10 during third hour, when a student accessed the video on one of the school’s computers.
11 Although I was standing around the computer, I was not the person who accessed the I-Film
12 website. In fact, I don’t know if the group of students even saw my movie at that time because
13 Mr./Ms. Wright walked over to the computer, and someone switched the computer quickly over
14 to another website, I think it was Wikpedia. The following day, there was even more talk about
15 the I-Film. When Dr. Powers made the morning announcements over the intercom on Tuesday,
16 October 7th, the students in my Spanish class started imitating a maniacal laugh in unison. Also
17 on Tuesday, we were watching a movie in U.S. Government and a group of ten students or so, all
18 pulled out lasers and started pointing the lights at the film. Our teacher, calmly told the students
19 to put the lasers away, and everyone complied and we continued watching the film.
20
21 Then the following day, came the big blow. Dr. Powers called me down to his/her office
22 around 9:00 am and provided me with a written statement of the charges against me. Dr. Powers
23 was cool, calm and collected, but he/she had this smug look on his/her face – as if to say – I told
24 you that I would see that you get suspended. I was told that the charges against me were for
25 causing substantial disorder and disruption of the school’s learning environment. When I denied
26 the charges, Principal Powers stated that the evidence against me was that the I-Film incited
27 students to disrespect him/her and challenged his/her authority. The disruption to the school,
28 according to Powers during that meeting, included charges that students disrupted the reading of
29 the announcements, the school’s computer system was disrupted, teachers had to revise lesson
30 plans while the computer system was down, and class periods were disrupted due to student
31 discussions regarding the movie. Dr. Powers asked me if I had any explanation for my conduct.
32 I said “How can I be punished for something that I did at home in my own free time? How can
33 the school extend their powers into my own home and what I do in my personal free time? This
34 is completely bogus.” I was then given a ten-day out of school suspension. I also received the
35 following additional punishments: removing me as President of Student Council, prohibiting me
36 from attending graduation ceremonies, and disqualifying me from eligibility for the William
37 Marbury scholarship of $5,000.00 annually. If I do not reverse these disciplinary actions, they
38 will be part of my permanent school record, and my abilityt to get into the colleges of my
39 choosing may be limited. This is so unfair!
40
41 I have never had any serious problems either with the law or at school. As a junior, I was
42 given a one-day in-school suspension for an incident in one of my classes. We had a guest
43 lecture one day talking about a protest the year before regarding a local power plant. The
44 speaker talked about how our local government had resolved the issue. I challenged the
45 speaker’s portrayal of the events. I probably came off a bit rude, but I was angry because I knew
46 what had really happened from my parents. Dr. Powers said I was disruptive and told me that I
47 had embarrassed the school. I don’t think Dr. Powers has liked me much since then. I realize
48 that what I said to the guest speaker that day was probably a stupid thing for me to do, and I
49 accepted the punishment that I received. But, I should never be punished for something that
50 wasn’t on school property. I heard Powers was going to have me charged with a crime, but the
51 prosecutor has not done so.
26

1
2 I am thankful that Mel Bourne and Ms./Mr. Silver are testifying on my behalf. All the
3 other students and teachers are afraid to speak up because they see the abuse of power and the
4 repercussions if you challenge Powers in even the slightest way. I have spent approximately
5 $23,000 to bring this First Amendment claim.
6
7
8 I affirm under penalty of perjury that the foregoing is true and correct to the best of my
9 belief and knowledge.
10
11 /s/ Chris Cross
.

27

1 STATEMENT OF ERIC/ERICA SILVER
2
3 My name is Eric/Erica Silver. I have a doctorate in Music Education from Indiana
4 University. I am a Music teacher at James Madison High School in Marbury, Indiana. I have
5 been a teacher at JMHS for forty years as of this past August. I am seventy-two years old and
6 I’m planning to retire at the end of this school year. My hearing is not so good anymore, and you
7 can’t be a very good Music teacher if you can’t hear. I recognize my limitations.
8
9 I am also the current Advisor or Teacher-Sponsor for Student Council. I have held that
10 position for the past twenty or so years. I really enjoy working with the students in Student
11 Council, especially this year with Chris Cross as the President. I would call Chris one of the
12 “good ones.” In fact, Chris is almost like a son/daughter to me. Chris is such a natural leader,
13 and is gifted and talented in almost every way. Chris is an honor student and excels in all of
14 his/her classes. Chris is industrious and is driven to succeed at whatever he/she does. Chris also
15 is a good citizen at JMHS. Chris is very respectful of the teachers and other students. Chris is
16 well liked, and the students tend to follow Chris’ lead. Chris has a bit of a mischievous side, and
17 occasionally will pull a prank on a friend, but it is never mean-spirited. If Chris sees some
18 injustice, Chris is not afraid to speak up. Given Chris’ experience in speech, debate, and mock
19 trial, he/she can articulate a position to stand up for an injustice that will often leave others
20 speechless. I like that about Chris – he/she stands up for what he/she believes in.
21
22 During my tenure at JMHS, I have seen many Principals and their respective styles for
23 providing a positive educational environment for the students. During the past six years, we
24 have had an incredibly high turnover of principals. Dr. Powers was new last year and is now on
25 his/her second year as Principal at JMHS. Some of the more recent past principals at JMHS have
26 instituted more liberal policies and liberal enforcement of those policies. Admittedly, the liberal
27 policies led to some problems, including graffiti and vandalism at the school. Also teacher
28 retention was a cause for concern. My understanding is that the Superintendent hired Dr. Powers
29 with the objective to implement stricter policies and enforcement, especially to quiet dissonance.
30 However, Dr. Powers came with his/her own set of problems. Dr. Powers often seems insecure
31 and is overly-sensitive to criticism. Dr. Powers wants students to respect him/her but exerts
32 Machiavellian tactics to accomplish that goal. While I have not taken any coursework in School
33 Administration, I think with forty years under my belt as a teacher and under different
34 administrators, I know a thing or two about how to run a school. I think the students are more
35 inclined to respect a principal’s authority if the principal is fair and just, rather than arbitrary in
36 punishments or overreaching in exerting their powers.
37
38 Because I am retiring, I am not afraid to speak up about Dr. Powers’ knee-jerk reaction
39 and unwarranted punishment of Chris Cross which all started with Chris’ attempt to get Dr.
40 Powers to permit open campus lunch periods. Chris was a strong advocate for open campus
41 lunch periods. I encouraged Chris’ pursuit of that objective because I thought it would be a good
42 incentive and motivator for students to behave appropriately, show up for class on time, and be
43 in good standing academically. Every now and then it helps to have a carrot at the end of the
44 stick. Chris did his/her homework on the issue. He/she reported to me regularly as to his/her
45 plan and the status. Chris obtained local business support, and even had them write letters to
46 express their desire for open campus at lunch periods. Chris also researched other schools that
47 had open campus policies. Chris devised different scenarios to implement the policy, for
48 example as a privilege rewarded to “good students.” But, Dr. Powers was unconvinced. In early
49 September, Chris reported at the Student Council that he/she had been unsuccessful in
50 convincing Dr. Powers. I suggested that the Student Council members “get the word out” and to
51 “stand up for what they believed in.” I intended my remarks to encourage students to get a
28

1 petition going, and even to get parental support behind their ideas to take to Dr. Powers. I was
2 not present when the members discussed wearing armbands or boycotting the cafeteria meals. I
3 likely would have supported the armbands, as I think that is a respectful way of showing unified
4 support for a cause in a quiet and respectful manner. I likely would have talked the students out
5 of the boycott as I would have predicted that it would create a bit of a stir at the school, and
6 merely serve to undermine Dr. Powers’ authority.
7
8 In any event, the student council members did organize the armband protest and the
9 boycott of the school cafeteria for the week of September 8th. On September 12th, Dr. Powers
10 called me into his/her office, along with Chris Cross. Dr. Powers said that the boycott created a
11 financial strain on the cafeteria’s budget. Dr. Powers was visibly angry. Dr. Powers blamed
12 Chris Cross for the entire protest. Dr. Powers said there were going to be consequences for this
13 stunt that Chris pulled. As we were leaving, I am pretty sure that I heard Dr. Powers tell Chris
14 that he/she intended to suspend him/her for these shenanigans. However, there was some
15 background noise in the hallway just outside of Dr. Powers’ office. I firmly believe that Chris’
16 current punishment stems from the armband protest and the boycott, on top of the I-Film
17 incident.
18
19 Then on September 15th, Dr. Powers sent me an e-mail stating that the Student Council’s
20 dance after the football game on September 20th had been cancelled due to their inappropriate
21 conduct. The members of the Student Council were all devastated, especially Chris Cross, who
22 assumed responsibility for the dance being cancelled. The students had put a lot of planning into
23 the dance and it was to be one of their major fundraisers for the fall semester.
24
25 Thereafter, Student Council continued to move forward with other agenda items, and it
26 appeared to me that Chris Cross had put the matter behind him/her. That all changed on
27 October 6th . Apparently someone, I heard it might be Chris Cross, had posted a parody on I-
28 Film mocking Dr. Powers. Students were talking about it, but it did not disrupt my classroom,
29 and when I passed other classrooms in the hallway, I didn’t notice any disruption. I was able to
30 conduct my class in the same manner as I had always done. I did not have any students attempt
31 to view the I-Film during my class period. Furthermore, no students in my classes laughed
32 during Dr. Powers’ announcements. Even though the computers were down or “off limits” for a
33 few days, I was able to print what I needed, and make copies to distribute to the students, or in a
34 few circumstances, I merely assigned the in-class work for homework. One thing I’ve learned as
35 a teacher of forty years, is one always has to be flexible.
36
37 Chris told me that Dr. Powers had suspended him/her for ten days, and had also removed
38 Chris as President of Student Council and disqualified him/her from receiving a coveted
39 scholarship at our school. I was shocked and dismayed that Dr. Powers had reacted so harshly to
40 a minor prank that caused no problems in the educational environment at the school. I’ve spoken
41 with many other teachers who confirmed that there was no disruption to their classrooms, but
42 they are afraid to speak up for fear of repercussions if they defy Dr. Powers.
43
44 I sent a conciliatory e-mail to Dr. Powers shortly after I heard of Chris’ suspension. I
45 thought perhaps I could persuade Dr. Powers to review his/her punishment and lessen the
46 consequences to Chris. I know that my e-mail sounds like I think Chris’ I-Film was
47 inappropriate, but honestly I don’t think it was. The tone of my e-mail was to try to recognize
48 Dr. Powers’ authority, yet soften him/her up a bit. As my mama use to say, you can attract more
49 bees with honey than vinegar. It didn’t work. Dr. Powers never responded.
50

29

1 I believe Chris Cross was within his/her rights to express his/her frustrations with Dr.
2 Powers. Students should be able to express themselves if they disagree with someone, even if it
3 is their Principal, as long as it is not vulgar or crass. I didn’t think Chris’ I-Film was vulgar or
4 crass. I also think that what students do off campus is their own business as long as it doesn’t
5 alter the educational environment of the school. On October 6th, the school continued as normal
6 as any other day.
7
8 I am aware that Dr. Powers took medical leave shortly after suspending Chris. Since Dr.
9 Powers did not respond to my e-mail to reduce Chris’ punishment, I went to his/her office later
10 that day. His/her secretary let me stay in the office, while I waited for him/her to arrive. While I
11 was in his/her office, I saw two tickets to Aruba on his/her desk. I waited for 15 minutes, and
12 then returned to my classroom, without having the opportunity to speak to Dr. Powers.
13
16
17 /s/ Eric/Erica Silver

30

1 STATEMENT OF MEL BOURNE
2
3 My name is Melvin/ Melanie Bourne. Everyone calls me “Mel.” I am 18 years old. I
4 was borne and raised in Sydney, Australia. I am a foreign exchange student this year at James
5 Madison High School. I arrived in the States on August 4, 2008. One of the first people I met,
6 other than my sponsors, was Chris Cross. Chris had apparently received a list of all new students
7 that would be attending JMHS in the fall, and made it a point to meet every one and introduce
8 himself/herself and offer assistance in transitioning to a new school. I immediately liked Chris.
9 Chris was smart and out-going. Chris duxed, i.e. was at the top of, all of his/her classes. Chris
10 was also a bit of a larrikin, a bloke/sheila who is always enjoying himself/herself and is a bit of a
11 harmless prankster. He/she would tease me about my accent and some of the words we use.
12 Chris introduced me to a lot of his/her friends, and so when I started school at JMHS, I felt right
13 at home.
14
15 I will always be indebted to Chris for befriending me, when I had no one else. Although
16 I am loyal to Chris, I am testifying in this matter to tell the truth and to stand up for justice. I
17 think the punishment given to Chris was really unfair. I think you have to give a bloke/sheila a
18 fair go. My statements in this affidavit are based only on facts. I would not lie to help Chris.
19 Also, I am not afraid to speak up. As a foreign exchange student, I don’t have anything to lose
20 really.
21
22 Chris was quite involved with Student Council and other school activities. I know that
23 Chris was trying to persuade Dr. Powers to permit the students to leave school during the lunch
24 schedule. I think that would have been a great incentive to do well in classes and to avoid
25 discipline problems. Apparently, Dr. Powers was not in agreement. I was one of the students
26 who participated in the protest of Dr. Powers refusal to change the closed campus policy. I
27 proudly wore my black armband on the week of September 8th, along with the majority of the
28 school body. I also had no problem boycotting the cafeteria meals that week, which for a Vegan
29 like myself, offered little choice anyway. Nearly all of the student body supported the cause.
30
31 When Dr. Powers cancelled the Student Council dance because of the protest, Chris was
32 upset. Chris blamed himself/herself for the cancellation of the dance. Chris thought it would be
33 humorous to do a parody of Dr. Powers and post it on I-Film, imitating the words he/she says,
34 his/her limp, while barking orders to empower himself/herself and exert his/her authority. I was
35 willing to participate. I didn’t think in my wildest imagination that there could be any
36 consequences since we were using Chris’ home computer. I do not know where Chris got the
37 filming equipment. I didn’t notice any labels saying it was the property of JMHS. Anyway, I
38 dressed up like a prisoner in an orange jumpsuit and Chris portrayed the jailer. For the film, I
39 tried to look tired and downtrodden while Chris yelled commands at us. We barked, and begged,
40 like we were dogs as Chris yelled “there will be no more dances if you don’t do what I say.” It
41 was all in good fun.
42
43 I can be seen very clearly on the I-Film. My face was not disguised, and there are several
44 shots where I am facing the camera directly. It’s hard not to recognize my accent in the film.
45 Also, I posted a comment on the website that said “Dr. Powers is powerless.” That’s what
46 surprises me about this whole deal. I received no punishment. None of the other students who
47 participated in making or acting in the film received any punishment either. Sure, the idea was
48 Chris’ to start, but we all contributed our ideas and things portrayed in the film. Dr. Powers
49 singled out Chris. It’s as if Dr. Powers was punishing Chris for something other than the film. I
50 think Dr. Powers didn’t punish me because it would create poor relations between JMHS and the
51 foreign exchange program. Dr. Powers didn’t even bring me down to his/her office to reprimand
31

1 me. I wonder if Dr. Powers even looked at the I-Film at all or if he/she just went by what others
2 said was on it. And this bit about Dr. Powers needing medical leave of absence for being so
3 emotionally distressed from the incident is just balderdash! I am certain that Dr. Powers is
4 faking the emotional distress in order to make Chris look worse, and to get a nice vacation out of
5 the whole deal. Dr. Powers is as cunning as a Dunny rat.
6
7 When Chris told me that he/she had been suspended I said “Holy Dooley!” I could not
8 believe it. I should have known though that Chris was going to suffer at the wrath of Dr. Powers.
9 What I don’t get is Powers trying to say that the I-Film caused disruption to the educational
10 environment at JMHS. What a joke! I tell you here and now, emphatically, there was no
11 disruption in any classroom or in the entire school for that matter. I am in Pat Wright’s class
12 when Principal Powers makes the daily announcements. I know for a fact that the
13 announcements were clearly audible. There might have been one or two people that imitated the
14 maniacal laugh that Chris used in the parody, but it was very limited and non-disruptive. Back
15 home in Australia, we would call Mr./Ms. Wright a Wowser – a prude, puritan, spoilsport. Some
16 people are too uptight and nitpick over the smallest issues. At the beginning of the semester, I
17 accidentally dropped my book on the floor in Wright’s class, and you would have thought I had
18 committed a heinous crime by the look he/she gave me. In any event, JMHS carried on its day-
19 to-day affairs like any other day before the Tyranny I-Film was posted. I never heard any
20 students talk about it in class and I never saw any student looking at the I-Film at school.
21
22 I have had a few problems of my own. I am currently on academic probation at JMHS
23 due to low grades in my English class. Chris has offered to help me, which I know will do me a
24 lot of good because Chris is so smart. If I don’t pull my grade up, I might not be able to
25 complete my foreign exchange program here. I also was caught for underage drinking and using
26 a false ID. I pled guilty to both counts. This was my first brush with the law, so I only had to do
27 20 hours of community service and no time served. I learned my lesson, and have been on the
28 straight and narrow since. Being away from home, I made a foolish mistake when given too
29 much freedom.
30
31
34
35 /s/ Mel Bourne

32

1 STATEMENT OF DR. M. POWERS

2 My name is Maurice/Maureen, or “Morrie,” Powers. I have just completed my 24th year
3 with the Marbury School Corporation, and I am starting my second year as principal at James
4 Madison High School. During that time, I have had the pleasure of working with several
5 exceptional leaders that have been very influential in my professional development. Those
6 opportunities, coupled with successful experiences as a teacher, coach, assistant athletic director,
7 assistant principal, and associate principal have prepared me to lead the faculty and staff,
8 students, parents, and community of James Madison High School, and so on and so forth.

9 Continued educational growth and life-long learning is essential to sustaining effective
10 leadership. I earned bachelors and masters degrees from Purdue University and graduated from
11 the Indiana Principals Leadership Academy in the spring of 2000. I completed my Doctoral
12 Program at Purdue University in 2004. My time as an administrator has required an active role
13 in running a school. Through working with discipline, I have been very pro-active in dealing
14 with students and their parents to bring about positive changes in behavior, and so on and so
15 forth. I have worked extensively with curriculum and instructional development. Prior to
16 pursuing administration, I taught mathematics at Thomas Jefferson High School, which is also
17 part of the Marbury School Corporation. In 1989, I was selected as “An Outstanding Teacher of
18 America” and in 1995 was honored in “Who’s Who Among America’s Teachers”.

19 Organizational excellence is a result of leadership that articulates a clear vision for the
20 future, has meticulous attention to detail, and can effectively cultivate a positive and
21 collaborative relationship among the staff, students, parents, and community. As the educational
22 leader of James Madison High School, I strive to show professionalism that is above reproach, a
23 tireless work ethic, accountability, cooperation, and a passion for providing exemplary leadership
24 for those that I serve, and so on and so forth.

25 Chris Cross was elected to President of Student Council for the 2008-09 school year
26 during my first year as Principal at JMHS. I was surprised that Cory/Corrie Late did not win the
27 election because he/she seems to have the qualities of what it takes to be a leader. In any event,
28 the student body spoke and I accepted their decision. Chris and I, probably had a little rough start
29 at first because during my first year as Principal, when Chris was a junior, Chris embarrassed
30 the school by rudely challenging a guest speaker about a local power plant. Although Chris is
31 extremely intelligent, he/she doesn’t use common sense in approaching authority figures, but
32 rather challenges authority and is argumentative. Some teachers and administrators enjoy the
33 stimulation of an intellectual exchange, even if combative. I do not. I made a note to myself to
34 keep an eye on Chris’ potentially disruptive behavior. While Chris and I did not get off to a
35 good start, I put that aside when he/she became President of Student Council.

36 I was very open to listening to Chris’ ideas for Student Council. I made every effort to
37 meet with Chris whenever he/she requested a meeting. I do not recall ever not having an open
38 door to Chris. Chris’ major agenda was to persuade me to change the school policy to allow
39 open campus during the lunch periods. I had several meetings with Chris on the subject during
40 the summer and through August. I don’t recall Chris providing me with letters form local
41 businesses supporting the idea, but I suppose it’s possible. I listened, with an open mind, to
42 every pitch made my Chris for the open campus idea. However, I had concerns of pedestrian
43 and vehicular safety and the misuse of free time, including drug and alcohol use and so on and so
44 forth. When students leave campus they are more likely to fall prey to peer pressure and get into
45 trouble that could be avoided if the campus were closed. In our last meeting on the issue, I told
46 Chris “I have a responsibility for the kids during the school day,'' ''When they're in school, I want
33

1 them in school.'' Chris doesn’t seem to take rejection well. He/she left our last meeting in a
2 huff, which I thought was very disrespectful since I had given the matter a lot of thought and had
3 afforded a significant time commitment away from my other administrative duties to provide an
4 open forum for Chris to discuss the issue with me.

5 Naturally, I was surprised, and I suppose miffed, that Chris and the Student Council,
6 organized a protest of my decision to deny the request for open campus lunch periods. I thought
7 the black armbands were an affront to me. The repercussions of the boycott created a financial
8 strain on the cafeteria budget. I estimated that we lost approximately $12,000 as a result of the
9 boycott. If they thought that the protest would change my mind, they had another thing coming.
10 I called Mr./Ms. Silver to my office along with Chris Cross. I explained to them that the boycott
11 created a financial strain for the cafeteria and that I was disappointed by their actions. I never
12 stated that I intended to suspend Chris, or anyone else, for the open campus protest. I did intend
13 for there to be consequences, but since this was an action by the Student Council, I thought the
14 punishment was more appropriate for the group itself. So, on September 15th , I sent an e-mail to
15 Mr./Ms. Silver announcing that I was canceling the Student Council sponsored dance scheduled
16 for September 20th. An eye for an eye. I knew that the dance was a significant fundraiser for
17 Student Counsel for the Fall semester. So, just like they hurt the school’s pocketbook, I hurt
18 theirs. I have heard that some think that I held a grudge against Chris for the protest. That’s a
19 ridiculous accusation. This was a small pimple on my nose. As the school administrator, there
20 were far more crucial issues than whether the students protested one of my decisions. And, once
21 I showed the students who was boss by canceling the dance, I knew that I had regained control,
22 which is critical for any principal.

23 Much to my chagrin, however, Chris could not leave well enough alone. On the morning
24 of October 4, 2008, Cory/Corrie Late reported to me that there was a parody film about me on I-
25 Film called Tyranny. He/she said the students were mocking my authority and me. Cory/Corrie
26 also reported to me that he/she was certain that Chris Cross was behind the creation and posting
27 of the I-Film. Cory/Corrie told me that Chris Cross had checked out the school’s video
28 equipment to make the film.

29 Shortly thereafter, Mr./Ms. Wright came to my office all upset and exclaiming “the
30 students were disrupting his/her classroom because that’s all the students were talking about.”
31 Mr./Ms. Wright also reported to me that when he/she took his/her class to the computer lab, that
32 he/she caught students accessing the website for I-Film using the school’s computers, and that
33 he/she believed Chris was directing the students to access the website using the school
34 computers. Thereafter, I accessed the website for I-Film and viewed the video. The film was
35 upsetting to me. The students made fun of my limp in the film, which I injured last year
36 slipping on an ice patch in a parking lot and dislocating my ankle. They also made me out to be
37 a ruthless dictator. As a result, I believed my ability to effectively do my job was undermined as
38 my integrity and professionalism were challenged in the film. This, in and of itself, was
39 disruptive to the educational environment, in my opinion. When viewing the film, I recognized
40 Chris Cross as the jailer and also the person who did the voiceovers on quotes about tyranny. I
41 did not recognize any of the other students in the film.

42 Upon seeing the film and receiving e-mails or calls from 4or 5 more teachers, I decided
43 to put a stop to it. I personally did not see any disruption of any classrooms. In any event, I
44 contacted the school’s network administrator and efforts were made to block the numerous
45 addresses from which the students were attempting to access the website on the school’s
46 computers. The network administrator also attempted to install an additional firewall protection
47 on the school’s computer system. When those efforts were unsuccessful, the school’s computer
34

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