On Feb. 4, 2010, the 3rd Circuit U.S. Court of Appeals issued two opinions that reached separate conclusions regarding whether schools can discipline students for material posted on social networking websites. The resulting uncertainty prompted the 3rd Circuit to vacate both opinions and schedule a rehearing of the two cases before the full circuit court.
Both cases involved students in Pennsylvania who used off-campus home computers to create parodies of their school principals on MySpace.com. School officials in both instances punished the students by suspending them from school.
In Layshock v. Hermitage School Dist., 593 F.3d 249 (3rd Cir. 2010), a unanimous three-judge panel ruled that a student could not be punished for his off-campus speech. However, in J.S. v. Blue Mountain School Dist., 593 F.3d 286 (3rd Cir. 2010), a separate panel in a 2 to 1 decision favored the school district's right to punish students for certain off-campus speech.
"The law was unclear and now it's in a state of chaos," said attorney Witold Walczak of the American Civil Liberties Union, according to a February 5 Associated Press (AP) report. Walczak and the ACLU helped represent the students in both cases.
In Blue Mountain, administrators suspended two eighth graders - identified in the opinion as J.S. and K.L. - at Blue Mountain Middle School in Orwigsburg, Pa., for 10 days after the students used home computers in March 2007 to create a MySpace page that described their principal, James McGonigle, as a sex addict and pedophile. The profile did not identify McGonigle by name, but included his photograph from the school district's website and listed his interests as "being a tight ass," "f***ing in my office," and "hitting on students and their parents." According to the 3rd Circuit, Blue Mountain school computers block access to MySpace, so students could have only viewed the profile from off-campus locations.
Terry and Steven Snyder, J.S.'s parents, filed suit in U.S. District Court for the Middle District of Pennsylvania under 42 U.S.C. § 1983, which allows citizens to sue government officials for civil rights violations, arguing that the suspension violated their daughter's First Amendment free speech rights. The Blue Mountain School District argued that the profile disrupted school because two teachers had to quiet their classes as students discussed the profile, and a guidance counselor had to proctor a test so that an administrator could attend meetings between McGonigle and J.S. In addition, the school said that students decorated the lockers of J.S. and K.L. to welcome them back to school following their suspensions, prompting students to congregate in the hallway.
The district court acknowledged that J.S. had created the profile at home, and determined that the profile itself did not substantially and materially disrupt school. However, the district court ruled that "because the lewd and vulgar off-campus speech had an effect on-campus," the school district did not violate J.S.'s First Amendment rights by disciplining her. The Snyders then filed an appeal.
In affirming the district court, the 3rd Circuit opinion in Blue Mountain relied on Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969), in which the U.S. Supreme Court established that student expression may not be suppressed unless school officials conclude that the conduct "would materially and substantially disrupt the work and discipline of the school."
The majority in Blue Mountain said that, although the profile did not substantially disrupt school activity, the suspensions could be upheld because "the profile presented a reasonable possibility of a future disruption" if McGonigle did not punish its creators.
"Electronic communication allows students to cause a substantial disruption to a school's learning environment even without being physically present," Judge Michael Fisher wrote in a footnote. "We decline to say that simply because the disruption to the learning environment originates from a computer located off campus, the school should be left powerless to discipline the student."In a dissenting opinion, Judge Michael A. Chagares wrote that the majority had significantly broadened the authority of school administrators to regulate student speech. "Neither the Supreme Court nor this Court has ever allowed schools to punish students for off-campus speech that is not school-sponsored and that caused no substantial disruption at school," Chagares wrote.
In Layshock, Hickory High School senior Justin Layshock used his grandmother's home computer in December 2005 to create a fake MySpace profile of his school's principal, Eric Trosch. As with the profile at issue in Blue Mountain, Layshock also included a photograph of the principal from the school district's website in his mocking profile. The profile said Trosch was a "big steroid freak" and a "big whore" who smoked a "big blunt."
To punish Layshock, the Hermitage School District in Hermitage, Pa., suspended him for 10 days and prohibited him from participating in all extracurricular activities, including the graduation ceremony, for the rest of the school year. Layshock, who was previously enrolled in advanced placement classes, was also placed in an alternative education program typically reserved for students with behavioral and attendance problems. Layshock's parents filed a § 1983 claim in U.S. District Court for the Western District of Pennsylvania, alleging the violation of Layshock's First Amendment rights.
The school district did not dispute the district court's finding that Layshock's conduct failed to satisfy the Tinker standard by creating "a substantial disruption of the school environment." Instead, the school district argued that Layshock's use of the principal's photograph from the school's website created a "sufficient nexus" between the profile and the school to permit the district to regulate Layshock's off-campus conduct. The district claimed that the profile was vulgar, lewd, and offensive, and therefore not entitled to First Amendment protection when it entered the school community. The school district had not been able to immediately block student access to MySpace on school computers after Layshock created the profile because its technology coordinator was on vacation when the profile was discovered.
The district court entered summary judgment in favor of Layshock, and the school appealed.
The 3rd Circuit panel affirmed that Layshock's suspension had violated his First Amendment rights, stating that Layshock's use of a photograph on the school district website did not constitute "entering the school."
"It would be an unseemly and dangerous precedent to allow the state in the guise of school authorities to reach into a child's home and control his/her actions there to the same extent that they can control that child when he/she participates in school sponsored activities," Judge Theodore McKee wrote for the panel.
On April 9, 3rd Circuit Chief Judge Anthony J. Scirica vacated the conflicting opinions and granted the en banc motions filed by attorneys on the losing sides of both cases. The entire panel of 3rd Circuit judges is scheduled to hear oral arguments in both cases on June 3.
Anthony G. Sanchez, an attorney representing the Hermitage School District, argued in his en banc petition that the Layshock panel did not sufficiently recognize how the Internet has transformed student speech, according to a March 12 report in The Legal Intelligencer.
"A student can more easily demean and injure the reputation of a member of the school community with vulgar and lewd language and share such pronouncements with a targeted school audience by way of the Internet than by any other means," Sanchez said.
Sanchez contrasted speech on the Internet, which can have an unlimited lifespan and vast audience, with speech in school hallways, which typically has few listeners and only exists for a limited time.
Kim Watterson, a private attorney representing Layshock and his parents, countered that "the widespread use of the Internet does not diminish constitutional protection for online expression," according to a March 29 report in The (Sharon, Pa.) Herald.
"The First Amendment does not permit the government to regulate a particular medium of speech solely because that medium is more effective than others," Watterson said.
ACLU attorneys representing J.S. in Blue Mountain argued in their en banc petition that the conflicting rulings cannot coexist because they confuse students, administrators, and lower court judges about the state of Internet student speech law.
Frank LoMonte, the Executive Director of the Student Press Law Center (SPLC), also argued that a uniform standard for off-campus speech will benefit both students and administrators. "The end result of the Layshock and J.S. cases left a lot of people scratching their heads over what type of speech could and could not be punished, so it makes sense for the 3rd Circuit to hear both cases together and set a consistent legal standard," LoMonte said in an April 13 SPLC report.
- CARY SNYDER
SILHA RESEARCH ASSISTANT