Two cases regarding students’ right to speech, and when school administrators can restrict student speech, have been decided recently by the Third Circuit Court of Appeals in Pennsylvania. Both cases deal with students’ creations of fake MySpace profiles, the content of which derogated school officials.
The first case, J.S. v. Blue Mountain School District (2010), concerns an eighth grade student, J.S., who was angry at having been disciplined for dress code violations and in response used her parents’ computer to create a MySpace profile of her principal “which alluded to his interest or engagement in sexually inappropriate behavior and illegal conduct” (at 42). She was subsequently suspended for the profile. The Court found that the profile “threatened to substantially disrupt” the school (at 42), and concluded “that the school district did not violate J.S.’s First Amendment free speech rights by disciplining her for creating the profile” (at 4). The Court further concluded “that the Constitution allows school officials the ability to regulate student speech where, as here, it reaches beyond mere criticism to significantly undermine a school official’s authority in challenging his fitness to hold his position by means of baseless, lewd, vulgar, and offensive language” (42).
The second case, Layshock v. Hermitage School District (2010), also concerned a student, a high school senior, who created a fake MySpace profile of his principal. In this case, the student used his grandmother’s computer. In response, the school punished the student with suspension and other restrictions. The School District’s main argument was that the student’s “cut and paste” of the principal’s photo from the District’s website constituted entry into school property and created a nexus between the student’s off-campus expressive conduct and disruption of school. The Court rejected this argument, and found no authority that would support punishment for creating such a profile” as the student created (at 47). The Court held that the student’s “use of the District’s web site does not constitute entering the school, and that the District is not empowered to punish his out of school expressive conduct” (at 48).
(There are also additional concerns at stake in both cases, including the parents’ Fourteenth Amendment rights to due process and liberty interests the raising of their children, but I will not address these issues here. The decisions are worth reading for the Court’s reasoning and holdings on these points.)
Both panels found that students’ non-disruptive behavior is protected under a Tinker analysis (Tinker v. Des Moines Independent Community School District, 393 US 503 [1969]). The critical distinction between J.S. and Layshock seems to be the connection of the off-campus conduct to disruption of school. The Court found that J.S.’s off-campus behavior caused disruption, while Justin Layshock’s behavior did not. This distinction accounts for the divergent findings regarding the constitutionality of the school districts’ administrative actions against the students.
Although there is settled law on students’ right to free speech, most recently adjudicated in Morse v Frederick (551 US 393 [2007[), the Supreme Court has yet to rule on student internet speech. These cases, and others like them, are therefore important constitutional milestones, and it is likely that the Supreme Court will soon begin to adjudicate internet speech cases. It is a good time for us to be thinking about issues of speech (and other liberties) vis-à-vis administrative action, and the status of constitutional protections of speech in the internet era.
Michael Simpson, from the National Education Association’s Office of General Counsel, writes about the two decisions and the paired issues of student rights regarding off-campus speech and the extent of students’ right of free speech on the internet. The article can be found here (although I believe issue can be taken with Simpson’s conclusions regarding J.S.).
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