2008case 2

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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.

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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.

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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. ) ) MARBURY SCHOOL CORPORATION ) And MORRIE POWERS, in his/her ) Individual and Official Capacities as ) Principal of James Madison High School ) ) 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

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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. )

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 "policy handbook", "bylaws", or "rules and regulations." 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

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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.

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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.

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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.

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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

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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

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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

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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.]

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

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

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

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1 I am thankful that Mel Bourne and Ms./Mr. Silver are testifying on my behalf. All the 2 other students and teachers are afraid to speak up because they see the abuse of power and the 3 repercussions if you challenge Powers in even the slightest way. I have spent approximately 4 $23,000 to bring this First Amendment claim. 5

6 7

I affirm under penalty of perjury that the foregoing is true and correct to the best of my 8 belief and knowledge. 9 10 /s/ Chris Cross 11

.

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STATEMENT OF ERIC/ERICA SILVER 1 2

My name is Eric/Erica Silver. I have a doctorate in Music Education from Indiana 3 University. I am a Music teacher at James Madison High School in Marbury, Indiana. I have 4 been a teacher at JMHS for forty years as of this past August. I am seventy-two years old and 5 I’m planning to retire at the end of this school year. My hearing is not so good anymore, and you 6 can’t be a very good Music teacher if you can’t hear. I recognize my limitations. 7

8 I am also the current Advisor or Teacher-Sponsor for Student Council. I have held that 9

position for the past twenty or so years. I really enjoy working with the students in Student 10 Council, especially this year with Chris Cross as the President. I would call Chris one of the 11 “good ones.” In fact, Chris is almost like a son/daughter to me. Chris is such a natural leader, 12 and is gifted and talented in almost every way. Chris is an honor student and excels in all of 13 his/her classes. Chris is industrious and is driven to succeed at whatever he/she does. Chris also 14 is a good citizen at JMHS. Chris is very respectful of the teachers and other students. Chris is 15 well liked, and the students tend to follow Chris’ lead. Chris has a bit of a mischievous side, and 16 occasionally will pull a prank on a friend, but it is never mean-spirited. If Chris sees some 17 injustice, Chris is not afraid to speak up. Given Chris’ experience in speech, debate, and mock 18 trial, he/she can articulate a position to stand up for an injustice that will often leave others 19 speechless. I like that about Chris – he/she stands up for what he/she believes in. 20

21 During my tenure at JMHS, I have seen many Principals and their respective styles for 22

providing a positive educational environment for the students. During the past six years, we 23 have had an incredibly high turnover of principals. Dr. Powers was new last year and is now on 24 his/her second year as Principal at JMHS. Some of the more recent past principals at JMHS have 25 instituted more liberal policies and liberal enforcement of those policies. Admittedly, the liberal 26 policies led to some problems, including graffiti and vandalism at the school. Also teacher 27 retention was a cause for concern. My understanding is that the Superintendent hired Dr. Powers 28 with the objective to implement stricter policies and enforcement, especially to quiet dissonance. 29 However, Dr. Powers came with his/her own set of problems. Dr. Powers often seems insecure 30 and is overly-sensitive to criticism. Dr. Powers wants students to respect him/her but exerts 31 Machiavellian tactics to accomplish that goal. While I have not taken any coursework in School 32 Administration, I think with forty years under my belt as a teacher and under different 33 administrators, I know a thing or two about how to run a school. I think the students are more 34 inclined to respect a principal’s authority if the principal is fair and just, rather than arbitrary in 35 punishments or overreaching in exerting their powers. 36

37 Because I am retiring, I am not afraid to speak up about Dr. Powers’ knee-jerk reaction 38

and unwarranted punishment of Chris Cross which all started with Chris’ attempt to get Dr. 39 Powers to permit open campus lunch periods. Chris was a strong advocate for open campus 40 lunch periods. I encouraged Chris’ pursuit of that objective because I thought it would be a good 41 incentive and motivator for students to behave appropriately, show up for class on time, and be 42 in good standing academically. Every now and then it helps to have a carrot at the end of the 43 stick. Chris did his/her homework on the issue. He/she reported to me regularly as to his/her 44 plan and the status. Chris obtained local business support, and even had them write letters to 45 express their desire for open campus at lunch periods. Chris also researched other schools that 46 had open campus policies. Chris devised different scenarios to implement the policy, for 47 example as a privilege rewarded to “good students.” But, Dr. Powers was unconvinced. In early 48 September, Chris reported at the Student Council that he/she had been unsuccessful in 49 convincing Dr. Powers. I suggested that the Student Council members “get the word out” and to 50 “stand up for what they believed in.” I intended my remarks to encourage students to get a 51

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petition going, and even to get parental support behind their ideas to take to Dr. Powers. I was 1 not present when the members discussed wearing armbands or boycotting the cafeteria meals. I 2 likely would have supported the armbands, as I think that is a respectful way of showing unified 3 support for a cause in a quiet and respectful manner. I likely would have talked the students out 4 of the boycott as I would have predicted that it would create a bit of a stir at the school, and 5 merely serve to undermine Dr. Powers’ authority. 6

7 In any event, the student council members did organize the armband protest and the 8

boycott of the school cafeteria for the week of September 8th. On September 12th, Dr. Powers 9 called me into his/her office, along with Chris Cross. Dr. Powers said that the boycott created a 10 financial strain on the cafeteria’s budget. Dr. Powers was visibly angry. Dr. Powers blamed 11 Chris Cross for the entire protest. Dr. Powers said there were going to be consequences for this 12 stunt that Chris pulled. As we were leaving, I am pretty sure that I heard Dr. Powers tell Chris 13 that he/she intended to suspend him/her for these shenanigans. However, there was some 14 background noise in the hallway just outside of Dr. Powers’ office. I firmly believe that Chris’ 15 current punishment stems from the armband protest and the boycott, on top of the I-Film 16 incident. 17

18 Then on September 15th, Dr. Powers sent me an e-mail stating that the Student Council’s 19

dance after the football game on September 20th had been cancelled due to their inappropriate 20 conduct. The members of the Student Council were all devastated, especially Chris Cross, who 21 assumed responsibility for the dance being cancelled. The students had put a lot of planning into 22 the dance and it was to be one of their major fundraisers for the fall semester. 23

24 Thereafter, Student Council continued to move forward with other agenda items, and it 25

appeared to me that Chris Cross had put the matter behind him/her. That all changed on 26 October 6th . Apparently someone, I heard it might be Chris Cross, had posted a parody on I-27 Film mocking Dr. Powers. Students were talking about it, but it did not disrupt my classroom, 28 and when I passed other classrooms in the hallway, I didn’t notice any disruption. I was able to 29 conduct my class in the same manner as I had always done. I did not have any students attempt 30 to view the I-Film during my class period. Furthermore, no students in my classes laughed 31 during Dr. Powers’ announcements. Even though the computers were down or “off limits” for a 32 few days, I was able to print what I needed, and make copies to distribute to the students, or in a 33 few circumstances, I merely assigned the in-class work for homework. One thing I’ve learned as 34 a teacher of forty years, is one always has to be flexible. 35

36 Chris told me that Dr. Powers had suspended him/her for ten days, and had also removed 37

Chris as President of Student Council and disqualified him/her from receiving a coveted 38 scholarship at our school. I was shocked and dismayed that Dr. Powers had reacted so harshly to 39 a minor prank that caused no problems in the educational environment at the school. I’ve spoken 40 with many other teachers who confirmed that there was no disruption to their classrooms, but 41 they are afraid to speak up for fear of repercussions if they defy Dr. Powers. 42

43 I sent a conciliatory e-mail to Dr. Powers shortly after I heard of Chris’ suspension. I 44

thought perhaps I could persuade Dr. Powers to review his/her punishment and lessen the 45 consequences to Chris. I know that my e-mail sounds like I think Chris’ I-Film was 46 inappropriate, but honestly I don’t think it was. The tone of my e-mail was to try to recognize 47 Dr. Powers’ authority, yet soften him/her up a bit. As my mama use to say, you can attract more 48 bees with honey than vinegar. It didn’t work. Dr. Powers never responded. 49

50

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I believe Chris Cross was within his/her rights to express his/her frustrations with Dr. 1 Powers. Students should be able to express themselves if they disagree with someone, even if it 2 is their Principal, as long as it is not vulgar or crass. I didn’t think Chris’ I-Film was vulgar or 3 crass. I also think that what students do off campus is their own business as long as it doesn’t 4 alter the educational environment of the school. On October 6th, the school continued as normal 5 as any other day. 6

7 I am aware that Dr. Powers took medical leave shortly after suspending Chris. Since Dr. 8

Powers did not respond to my e-mail to reduce Chris’ punishment, I went to his/her office later 9 that day. His/her secretary let me stay in the office, while I waited for him/her to arrive. While I 10 was in his/her office, I saw two tickets to Aruba on his/her desk. I waited for 15 minutes, and 11 then returned to my classroom, without having the opportunity to speak to Dr. Powers. 12 13

I affirm under penalty of perjury that the foregoing is true and correct to the best of my 14 belief and knowledge. 15 16 /s/ Eric/Erica Silver 17

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STATEMENT OF MEL BOURNE 1 2

My name is Melvin/ Melanie Bourne. Everyone calls me “Mel.” I am 18 years old. I 3 was borne and raised in Sydney, Australia. I am a foreign exchange student this year at James 4 Madison High School. I arrived in the States on August 4, 2008. One of the first people I met, 5 other than my sponsors, was Chris Cross. Chris had apparently received a list of all new students 6 that would be attending JMHS in the fall, and made it a point to meet every one and introduce 7 himself/herself and offer assistance in transitioning to a new school. I immediately liked Chris. 8 Chris was smart and out-going. Chris duxed, i.e. was at the top of, all of his/her classes. Chris 9 was also a bit of a larrikin, a bloke/sheila who is always enjoying himself/herself and is a bit of a 10 harmless prankster. He/she would tease me about my accent and some of the words we use. 11 Chris introduced me to a lot of his/her friends, and so when I started school at JMHS, I felt right 12 at home. 13

14 I will always be indebted to Chris for befriending me, when I had no one else. Although 15

I am loyal to Chris, I am testifying in this matter to tell the truth and to stand up for justice. I 16 think the punishment given to Chris was really unfair. I think you have to give a bloke/sheila a 17 fair go. My statements in this affidavit are based only on facts. I would not lie to help Chris. 18 Also, I am not afraid to speak up. As a foreign exchange student, I don’t have anything to lose 19 really. 20

21 Chris was quite involved with Student Council and other school activities. I know that 22

Chris was trying to persuade Dr. Powers to permit the students to leave school during the lunch 23 schedule. I think that would have been a great incentive to do well in classes and to avoid 24 discipline problems. Apparently, Dr. Powers was not in agreement. I was one of the students 25 who participated in the protest of Dr. Powers refusal to change the closed campus policy. I 26 proudly wore my black armband on the week of September 8th, along with the majority of the 27 school body. I also had no problem boycotting the cafeteria meals that week, which for a Vegan 28 like myself, offered little choice anyway. Nearly all of the student body supported the cause. 29

30 When Dr. Powers cancelled the Student Council dance because of the protest, Chris was 31

upset. Chris blamed himself/herself for the cancellation of the dance. Chris thought it would be 32 humorous to do a parody of Dr. Powers and post it on I-Film, imitating the words he/she says, 33 his/her limp, while barking orders to empower himself/herself and exert his/her authority. I was 34 willing to participate. I didn’t think in my wildest imagination that there could be any 35 consequences since we were using Chris’ home computer. I do not know where Chris got the 36 filming equipment. I didn’t notice any labels saying it was the property of JMHS. Anyway, I 37 dressed up like a prisoner in an orange jumpsuit and Chris portrayed the jailer. For the film, I 38 tried to look tired and downtrodden while Chris yelled commands at us. We barked, and begged, 39 like we were dogs as Chris yelled “there will be no more dances if you don’t do what I say.” It 40 was all in good fun. 41

42 I can be seen very clearly on the I-Film. My face was not disguised, and there are several 43

shots where I am facing the camera directly. It’s hard not to recognize my accent in the film. 44 Also, I posted a comment on the website that said “Dr. Powers is powerless.” That’s what 45 surprises me about this whole deal. I received no punishment. None of the other students who 46 participated in making or acting in the film received any punishment either. Sure, the idea was 47 Chris’ to start, but we all contributed our ideas and things portrayed in the film. Dr. Powers 48 singled out Chris. It’s as if Dr. Powers was punishing Chris for something other than the film. I 49 think Dr. Powers didn’t punish me because it would create poor relations between JMHS and the 50 foreign exchange program. Dr. Powers didn’t even bring me down to his/her office to reprimand 51

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me. I wonder if Dr. Powers even looked at the I-Film at all or if he/she just went by what others 1 said was on it. And this bit about Dr. Powers needing medical leave of absence for being so 2 emotionally distressed from the incident is just balderdash! I am certain that Dr. Powers is 3 faking the emotional distress in order to make Chris look worse, and to get a nice vacation out of 4 the whole deal. Dr. Powers is as cunning as a Dunny rat. 5

6 When Chris told me that he/she had been suspended I said “Holy Dooley!” I could not 7

believe it. I should have known though that Chris was going to suffer at the wrath of Dr. Powers. 8 What I don’t get is Powers trying to say that the I-Film caused disruption to the educational 9 environment at JMHS. What a joke! I tell you here and now, emphatically, there was no 10 disruption in any classroom or in the entire school for that matter. I am in Pat Wright’s class 11 when Principal Powers makes the daily announcements. I know for a fact that the 12 announcements were clearly audible. There might have been one or two people that imitated the 13 maniacal laugh that Chris used in the parody, but it was very limited and non-disruptive. Back 14 home in Australia, we would call Mr./Ms. Wright a Wowser – a prude, puritan, spoilsport. Some 15 people are too uptight and nitpick over the smallest issues. At the beginning of the semester, I 16 accidentally dropped my book on the floor in Wright’s class, and you would have thought I had 17 committed a heinous crime by the look he/she gave me. In any event, JMHS carried on its day-18 to-day affairs like any other day before the Tyranny I-Film was posted. I never heard any 19 students talk about it in class and I never saw any student looking at the I-Film at school. 20

21 I have had a few problems of my own. I am currently on academic probation at JMHS 22

due to low grades in my English class. Chris has offered to help me, which I know will do me a 23 lot of good because Chris is so smart. If I don’t pull my grade up, I might not be able to 24 complete my foreign exchange program here. I also was caught for underage drinking and using 25 a false ID. I pled guilty to both counts. This was my first brush with the law, so I only had to do 26 20 hours of community service and no time served. I learned my lesson, and have been on the 27 straight and narrow since. Being away from home, I made a foolish mistake when given too 28 much freedom. 29 30

31 I affirm under penalty of perjury that the foregoing is true and correct to the best of my 32

belief and knowledge. 33 34 /s/ Mel Bourne 35

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STATEMENT OF DR. M. POWERS 1

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

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

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

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

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

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

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

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

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

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

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network was shut down until we could contact the ISP to have them remove the video. Our 1 network administrator spent 25% of her time to install a firewall and to block addresses 2 attempting access to the website, which was disruptive toe the school environment. In addition, 3 when the computer system was down, the lack of access caused the cancellation of the students’ 4 ability to use the computer for their school-intended purpose, and several teachers had to alter 5 their lesson plans from using the computer lab to either doing the work at home or not doing it at 6 all. The school’s computer system was down for two days. 7 8

On Tuesday, October 7th, Mr./Ms. Wright reported to me that when I made the daily 9 announcements over the school’s intercom system that the entire classroom started laughing 10 maniacally like the laugh of the jailer in the Tyranny I-Film. He/she was hysterical and claimed 11 that it was impossible to conduct his/her classroom in this environment. 12

13 Given the gravity of the situation and the disruption to the school environment, I had no 14

choice but to put an end to it all and make an example out of Chris Cross. I first wanted to verify 15 my facts. I had our network administrator run a scan of the school’s computer system to 16 determine if the I-Film was posted from the school. It was not. Then I checked with the 17 Advanced Computers class to see if Chris Cross had checked out the video equipment prior to or 18 around the time that the I-Film was posted. I was unable to conclusively establish that Chris 19 Cross used the school’s video equipment to make the film because the checkout sheets for the 20 equipment were missing. I then consulted with the Superintendent who advised me that I had 21 authority to suspend and discipline a student who causes substantial disruption in the classroom 22 and in the school. 23

24 On October 8, 2008, I called Chris Cross to my office and informed him/her of the 25

charges that were being made against him/her. I prepared a statement in writing of the charges. 26 I then gave Chris an opportunity to explain his/her conduct and I provided evidence of the 27 charges that were being made. I delineated that the substantial disruption of the classroom and 28 the school’s educational environment, including 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. 32

33 I instituted the following disciplinary measures against Chris Cross: (1) 10-day out-of-34

school suspension, (2) removal as President of Student Council, (3) prohibition from attending 35 graduation ceremonies, and (4) disqualification from eligibility for the William Marbury 36 scholarship. I sent a letter to Chris Cross’ parents informing them of the same, and so on and so 37 forth. I believed these disciplinary measures to be just and fair in light of the significant 38 disruption to the school. No other students were punished as a result of either their participation 39 in the creation of the video, adding a comment to the I-Film website regarding the film, or 40 accessing the video at school. No other students involved in the I-Film could be identified with 41 any degree of certainty except for Chris Cross. Chris Cross’ suspension and other disciplinary 42 actions were taken only as a result of the I-Film disruption at JMHS. I did not consider the 43 armband protest or boycott of the cafeteria meals as a basis for Chris’ suspension. 44

The I-Film created much anxiety and emotional distress in my life. On October 10th, I 45 requested, and was given, a medical leave of absence. I put this incident out of my mind and 46 relaxed. I was able to overcome my distress after spending 10 days on a beach in Aruba with my 47 spouse. 48

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When I returned to the school, it seemed that everything had returned to the normal state 1 of affairs. My first order of business upon returning to school was to appoint a replacement for 2 the Office of President of Student Council. I believed that Cory/Corrie Late would be the perfect 3 replacement as he/she has strong leadership skills and is always respectful of my authority. 4

I affirm under penalty of perjury that the foregoing is true and correct to the best of my 5 belief and knowledge. 6

/s/ Dr. M. Powers7

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STATEMENT OF CORY/CORRIE LATE 1 2 My name is Coty/Corrie Late. I am 17 years old and I am a senior at James Madison 3 High School. I pride myself on being a good student with a good rapport with the teachers and 4 school administration. In fact, Dr. Powers encouraged me to run for President of Student 5 Council for my senior year. I didn’t win the election, and was disappointed that the students 6 chose Chris Cross over me based upon some silly promise to get Dr. Powers to change the closed 7 campus policy. I knew that was a pipedream, but students are drawn to Chris’ charisma and they 8 follow his/her lead, like lemmings to the sea. To say that I resented Chris for beating me in the 9 election, I think overstates the situation, but I certainly wasn’t one of Chris’ fan club members. I 10 have been appointed by Principal Powers now to replace Chris Cross as President of Student 11 Council. I have a great working relationship with Principal Powers. 12 13 Chris’ promises for the open campus lunch periods fell through, just as I surmised. 14 Members of the student body started spreading word that they were going to stage a protest of 15 Dr. Powers’ decision by wearing a black armband and boycotting the cafeteria meals. I did not 16 take part in the protest because I understood Dr. Powers’ concerns for the safety of the student 17 body in refusing to agree to an open campus. When Dr. Powers canceled the Student Council 18 Dance because of the protest, I heard that Chris was really upset and intended to disrupt classes. 19 20 On October 4, 2008, I received a call from another student telling me that there was an I-21 Film posted on the website that was a parody of Dr. Powers. When I came to school on Monday, 22 October 6th, the school was abuzz about the I-Film. I could tell it was going to disrupt classes, so 23 I decided to report it to Dr. Powers. I told him/her that the students in the film were mocking Dr. 24 Powers. I also told Dr. Powers that Chris Cross was the person who mocked Dr. Powers in the 25 film and that I was certain that Chris Cross was behind the creation and posting of the I-Film. I 26 know that Chris used the school’s video equipment to make the I-Film. We had a class project 27 for our Advanced Computers class that correlates to the time that Chris would have made the 28 film for I-Film. I had intended to work on my class project the weekend of October 3rd, but 29 Chris had checked out the school’s video equipment that same weekend. It’s interesting that the 30 checkout log is now missing, but I know Chris has lots of friends who would do anything to help 31 him/her, including that Aussie Mel Bourne. 32 33 The week of October 4th was horrendous at school. It was difficult to get anything 34 accomplished in my classes. The computers were shut down and one of my teachers assigned 35 the computer work for homework rather than permitting us to use the computer lab like she had 36 originally planned. Also, one student brought in a personal laptop and showed the I-Film video 37 in my Spanish class. Chris is not in my Spanish class and was not present when the student 38 accessed the website. Also, our Spanish teacher was completely unaware that the students were 39 looking at the website as she was busy writing some vocabulary words on the chalkboard. 40 41 I was particularly upset when Dr. Powers made the daily announcements on the school’s 42 intercom system and the students in my classroom laughed maniacally throughout the entire 43 announcement, similar to the laugh that Chris used in the I-Film. I could not hear any of the 44 announcements by Dr. Powers. Sure, the announcements are posted daily on school website, and 45 are also printed for pick-up in the office if you want. But most of the students rely upon the 46 information announced over the PA system. I also was very concerned that if there had been an 47 announcement by Dr. Powers for a fire or tornado drill, that perhaps students would have 48 mocked the Principal then too and create potential harm to the students’ safety. 49 50

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Also while I was in Government class and the teacher showed us a film, several students 1 pulled out laser pointers and had the laser lights pointing toward the screen, similar to what was 2 depicted in Cross’ Tyranny I-Film. 3 4 I agree with Principal Powers that the actions of Chris Cross in creating a derogatory and 5 disrespectful I-Film caused a substantial disruption to the educational environment at JMHS. I 6 think it was ill-advised for Chris to create the parody, and I think he/she got the punishment 7 he/she deserved. 8 9 The statements I have made under oath here are not in anyway motivated by Dr. Powers 10 appointing me as successor President of Student Council. At no time did Dr. Powers make any 11 promises to me that I would be appointed a student representative working with his/her 12 administration. 13 14

I affirm under penalty of perjury that the foregoing is true and correct to the best of my 15 belief and knowledge. 16 17

/s/ Cory/ Corrie Late18

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STATEMENT OF PAT WRIGHT 1 2 My name is Pat Wright. I am 42 years old. I obtained my Bachelor’s degree in 3 Education from Ball State University in 1990, and my Master’s Degree from Indiana University 4 in 2000. I am a Math teacher at James Madison High School. I have been teaching at JMHS for 5 nearly 17 years. 6 7 There have been several principals at the helm at JMHS during the course of my career. 8 Dr. Powers is our most recent Principal, and I have the utmost admiration for the manner in 9 which he/she conducts the school administration and relates to the students. I find that he/she is 10 very approachable and is fair and just in all respects. Past principals, at least in recent years, 11 have not fared so well at JMHS. From my observation, their lack of success is due to too much 12 leniency toward student misbehavior. Admittedly, I am not studied in the intricacies of school 13 administration, but you don’t need to be a duck to know what one looks like. However, I am 14 currently taking some online classes through Ball State in School Administration. 15 16 Chris Cross is in my 3rd hour class. I have no problems with Chris ordinarily. Chris is a 17 good student and is always respectful in class. I would consider Chris a gifted student. Chris is 18 willing to help other students with understanding the complexities of mathematical equations or 19 theories. 20 21 If Chris was upset that Dr. Powers denied the Student Council’s request for an open 22 campus, he/she never showed it or even talked about it during my class period. Similarly, when 23 Dr. Powers cancelled the Student Council September 20th dance because of the protest, Chris 24 never showed that he/she was angry. Our classroom was never disrupted in any way as a result 25 of these activities. 26 27 All of that changed on October 6th. . . Throughout the entire day, and the next, the 28 students were abuzz about Chris’ Tyranny I-Film. It was very difficult to keep the students’ 29 attention during class because students were either talking or passing notes about it. They were 30 wanting to know who created it, what was on it, how can you access it. To me, it seemed like it 31 was non-stop. Then during my third hour, my lessons plans called for taking the students to the 32 computer lab. I observed a group of students surrounding a computer and I felt certain that the 33 students had accessed the I-Film on one of the school’s computers. Chris was in the group of 34 students around the computer, and I believe was the person who was operating the computer, but 35 I can’t say that for certain. When I walked over to the computer, and looked at the screen it 36 showed another website, I think CNN.com. After the class period was over, I checked the 37 computer history and noted that the I-Film Tyranny web page had been accessed during the third 38 hour of class. I went to Dr. Powers’ office upset that the students were disrupting the classroom 39 because all they could talk about was Tyranny. I also reported to Dr. Powers about the computer 40 lab incident involving Chris. The following day, there was even more talk about the I-Film 41 during class period. 42 43

On Tuesday, October 7th, I reported to Dr. Powers that when he/she made the daily 44 announcements over the school’s intercom system during 8th hour that the entire classroom 45 started laughing maniacally. You couldn’t even hear the announcements. I was extremely upset 46 at this point, and again reported to Dr. Powers that it was impossible to conduct my classroom in 47 such a disruptive environment. 48 49

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I expect there to be order in the classroom. I don’t tolerate silly behavior. I suppose that 1 has earned me the reputation of a no nonsense, strict educator, but I think that is more conducive 2 to an environment of learning. 3 4 I suppose that is why Dr. Powers and I get along so well. We both have the same 5 philosophy for an effective school environment. I am hoping to take on more school 6 administration duties, such as Assistant Principal, as I continue to take more classes in school 7 administration. Dr. Powers has complimented my skills in discipline and keeping order. 8 Recently, he/she told me that he/she thinks I would make a good School Administrator, and 9 he/she is encouraging me to apply for an administration position in the Marbury School 10 Corporation. Dr. Powers offered to give me a letter of recommendation. 11 12 13

I affirm under penalty of perjury that the foregoing is true and correct to the best of my 14 belief and knowledge. 15 16 /s/ Pat Wright 17 18

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Exhibit 1

To: E. Silver From: M. Powers Date: September 15, 2008 9:04 am Subject: Student Council Protest Dear Mr./Ms. Silver I am writing to inform you that due to the inappropriate behavior of the Student Council members in staging a protest of my decision to deny their request for an open campus lunch policy, that the Jamboree Dance, sponsored by the Student Council, scheduled for September 20th has been cancelled. An announcement will be made at the end of the day to the student body. Please direct the members of Student Council as to appropriate means of exercising leadership, and that failure to do so can result in significant repercussions in the future. Sincerely, Dr. M. Powers

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Exhibit 2

To: Dr. Powers From: E. Silver Date: October 8, 2008 11:25 a.m. Subject: Chris Cross Please do not understand me to be suggesting that Chris Cross’ I-film posting was acceptable – it was not. Chris’ Internet posting was offensive and he/she should be accountable. Although the posting was NOT appropriate – it was offensive and Chris needs to learn that he/she will not advance as a leader with that approach. However, Chris’ punishment is an overreaching response with enormous consequences. I urge you to consider a more appropriate punishment by precluding Chris from participating in the next Student Council sponsored event. Thank you for your consideration of this matter. E. Silver

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Exhibit 3

Chris Cross October 8, 2008 2343 Wayward Court Marbury, Indiana RE: Notice of Charges for Student Misconduct Dear Mr. Cross,

You are hereby advised that James Madison High School and the Marbury School

Corporation charge you with causing substantial disorder and disruption of the school’s learning

environment due to an I-Film that was posted on the Internet on October 4, 2008, and improperly

using school equipment to create the I-Film.

Sincerely,

Dr. M. Powers, Principal

James Madison High School

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Exhibit 4

Mr. and Mrs. Mark Cross October 9, 2008 2343 Wayward Court Marbury, Indiana

RE: Notice of Student Disciplinary Action Taken

Dear Mr. and Mrs. Cross,

I regret to inform you that Chris Cross has engaged in inappropriate conduct causing

substantial disorder and disruption of the school’s learning environment due to an I-Film that

was posted on the Internet on October 4, 2008. As such, the following disciplinary measures

were taken: Chris Cross shall receive a ten-day out-of-school suspension commencing October

8, 2008. Additional discipline imposed on Chris includes (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.

Sincerely,

Dr. M. Powers, Principal

James Madison High School

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Exhibit 5

JAMES MADISON HIGH SCHOOL POLICY

Policy Number: #10234 Effective Date: May 31, 2002 Subject: Internet Access The School Administration recognizes the value of computer and Internet usage, as well as the risks involved. We strive to take full advantage of the educational opportunities while minimizing the risks to our students. Computer use is a privilege, not a right, and may be revoked at any time. Students and employees are obligated to inform school administration of violations of this policy or any threat to the security of the school networks. Users agree to abide by the guidelines in this policy. 1. The use of any account must be solely for educational purposes and consistent with the educational and moral objectives of JMHS. Use for commercial activities is, in general, not acceptable. Appropriate use is determined by school administration and their decision is final. 2. Abuse of computer privileges may result in loss of computer access, along with other disciplinary or legal measures. 3. Student use of chat rooms, instant messaging, email or any other electronic means to contact anyone outside of school is forbidden, unless approved by the school administration. 4. All copyright laws must be obeyed. All communication and data accessed via the Internet should be assumed to be the private property of its creator and subject to copyright restrictions. 5. No software is to be downloaded, copied, or transferred from any source onto school computers without the consent of school administration.

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Exhibit 6, p. 1 of 2

Mission Statement and Beliefs

The mission of the Marbury School Corporation (MSC) is to engage all students in valuable academic, artistic, physical, and social experiences so that they will be able to enjoy a fulfilling personal life and to participate as productive members in a diverse society in which global competition is a reality and democracy is a way of life.

We, the educators and Board of School Trustees of the Marbury School Corporation, in order to make it possible for our students to develop into citizens capable of participating in, contributing to, and benefiting from the cultural, economic, political, and social life of the community and the larger society, do establish this statement of vision and beliefs for our corporation.

Guiding Principles For Our Vision of Education

• A democratic society benefits from a well-educated citizenry. • A well-educated citizenry appreciates the strength of a diverse society. • A well-educated citizenry regards learning as an active, life-long endeavor. • The home, community, and schools collaborate to provide the programs, services, support, and

environment necessary for students to be successful. • The Board of School Trustees, community, parents, school employees, and students (MSC

stakeholders) share accountability for student success. • Schools and the school district focus all decisions on students and their educational needs. • Shared leadership and participatory management at all levels ensure that decisions are made as

close as possible to the point of implementation. • MSC fosters open communication among its stakeholders. • MSC encourages, values, and supports educational risk-taking and innovation. • MSC judges policies, programs, and procedures by the standards of excellence, fairness, and

impact on student achievement.

Beliefs About Curriculum and Instruction

• Learning experiences cultivate attitudes and skills that encourage students to think independently and critically.

• Instruction enables students to acquire knowledge and to apply that knowledge in real-life situations.

• Students design products, solve problems, and participate in activities that demonstrate their understanding of the information, skills, and concepts they are expected to acquire.

• Instruction reflects continual examination of effective instructional strategies.

Beliefs About Students

• Students strive for excellence when actively engaged in meaningful endeavors. • Students make choices, set goals and priorities, and have opportunities to evaluate their own

progress. • Students learn most successfully when a spirit of cooperation and respect for others exists in a

challenging, safe, and caring environment. • Students act responsibly and respectfully. • Students learn best in a diverse, non-discriminatory environment. • Students benefit from leadership opportunities.

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Exhibit 6, p. 2 of 2

Beliefs About Staff

• MSC employees treat students and others with dignity and respect. • The superintendent promotes the articulation and pursuit of MSC’s vision of education in the

community, encourages and supports creative leadership at all levels of the system, and ensures that personnel provide high quality experiences for students.

• Principals provide leadership and support for the staff in meeting student needs. • Principals encourage and support creative leadership among faculty and staff. • Teachers design student work that is engaging, challenging, and purposeful. • The staff pursues continuous professional growth.

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Exhibit 7

James Madison High School Student Council Mission Statement

The mission of the James Madison High School Student Council is:

• to provide a voice for the students of James Madison High School; • to serve as a governing body for JMHS students; • to provide activities for the JMHS Student Body; • to render community service; • to provide the school community with a better understanding of school district issues; and • to demonstrate leadership and the democratic decision making process.

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Exhibit 8

To: M. Powers

From: C. Late

Date: May 16, 2008 4:45 pm

Subject: Student Council elections

Dear Dr. Powers,

I am writing you to thank you once again for encouraging me to run as President for Student Council. Although the election didn’t go my way, I would have been honored to work with you as a representative of the student body. I find that your administrative skills are unparalleled by any other Principal we have had at JMHS. I offer my assistance to you for any needs you may have for a student representative. I am hopeful that you can find me a spot as a student representative in some other capacity as you suggested.

Your faithful servant,

Cory/Corrie Late

2008case 2

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