Third Circuit Court of Appeals Upholds Student Free Speech Rights

In past letters and editions of the MB&M School Law News, we have highlighted the two ongoing federal lawsuits involving Pennsylvania students who made false and insulting profiles of their school principals on a social networking website.  The Third Circuit Court of Appeals recently rendered several opinions in those cases which provides a degree of certainty to school officials in assessing when discipline may be administered in response to student internet speech occurring off-campus.

The two cases—Layshock v. Hermitage SD and J.S. v. Blue Mountain SD—have similar factual circumstances.  Justin Layshock was a senior when he used his grandmother’s computer during non-school hours in December of 2005 to create a fake myspace profile of the Hickory High School Principal.  Layshock’s profile used the principal’s school website photo and implied that the principal was an overweight user of drugs, alcohol and steroids.  Layshock accessed his profile once in school during Spanish class and allowed other students to view it publicly.  Other students also made fake profiles of the principal, and as myspace was not a blocked website in the school, students could access the profiles from school computers.  In response, school officials’ limited computer usage for several days until the network could block the site.  Layshock was issued discipline in the form of a ten-day suspension, an alternative school placement and a ban from extracurricular activities and participation in graduation.

J.S. was an eighth grade student in the Blue Mountain School District who, in March of 2007, used a home computer on the weekend in collaboration with another student to create a myspace profile of her middle school principal following discipline for a dress code violation.  The profile used the principal’s school photo and contained insulting remarks about the principal and his wife (a school guidance counselor) and son, and implied that the principal was a sex addict and pedophile.  The profile was initially set to public view, but one day later the student set it to private view so that only friends could view it.  Because the school’s computer network blocked myspace, the profile was never viewed or accessed in school.  J.S. was suspended for ten days by the school principal.

Both students filed federal suits claiming the discipline was in violation of their First Amendment rights, among other claims.  At the District Court level, summary judgment was granted by District Judge McVerry in favor of Layshock, but District Judge Munley found against J.S. on her claims.  Both cases were appealed to the Third Circuit, where separate three-judge panels of the Circuit issued decisions on the same day affirming both of the lower Court decisions.  To avoid having inconsistent decisions on the books, the Circuit vacated both of those opinions and reheard both cases with the full complement of sitting judges.

By a vote of 14-0 in the Layshock matter and a vote of 8-6 in the J.S. case, the Circuit found that both students’ First Amendment rights had been violated when they were disciplined by their school districts for creating the profiles.

In the Layshock Opinion, the judges reviewed the history of student-related First Amendment cases and reaffirmed the traditional holding that students are entitled to free speech rights unless their expression creates a substantial disruption to the school environment.  The district conceded that a substantial disruption had not been created by Layshock’s profile, and instead argued that the student’s use of the principal’s photograph from the school’s website and the targeting of the principal created a nexus between the school and the speech sufficient to justify the discipline.  The Third Circuit rejected this argument categorically: “[W]e need only hold that [Layshock’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 under the circumstances here.”  (Emphasis supplied.)

In the J.S. Opinion, the school district similarly conceded that no disruption to the school environment was caused by the student’s profile, but argued that the discipline was justified under other Supreme Court cases that upheld punishments for on-campus student speech that was vulgar and advocated illegal drug use.  The Court rejected this claim, and made clear that a school district’s ability to discipline students for profane speech or speech advocating illegal acts is strictly limited to the school context: “Neither the Supreme Court nor this Court has ever allowed schools to punish students for off-campus speech that is not school-sponsored or at a school-sponsored event and that caused no substantial disruption at school.”

The school districts have until September 11, 2011 to appeal to the U.S. Supreme Court.  A media report suggests Blue Mountain School District intends to appeal, but the Supreme Court would have discretion in deciding whether to hear the appeal.  We will monitor the status of any appeal filed and inform you if there are further developments.

In the meantime, these decisions should guide your District in the administration of discipline to students for internet-related speech and speech occurring off-school grounds.  Both the Hermitage and Blue Mountain School Districts attempted to discipline off-campus internet speech under a justification that departed from the traditional “substantial disruption to the school environment” analysis, but the Third Circuit held that even in the new internet age, the same standards apply to student speech.  This holding is consistent both with recent cases which have limited a school district’s ability to punish other types of student misconduct which occur outside a school setting and with the anti-bullying amendments made to the School Code a few years which permit a school district to punish off-campus bullying, but only upon a showing that the off-campus bullying created a material disruption to the school environment.   As a result, we would counsel that your District be very cautious in taking disciplinary action in response to off-campus speech.  In the event that disciplinary action is contemplated, the District’s staff must be able to document and articulate the nature and extent of the substantial disruption created by the speech.  This will often be very difficult to do, but it is vital that it be done at the time of the alleged disruption in order to justify any disciplinary action.  Before any significant disciplining is met to a student for any off-campus speech, we recommend the building-level administrators confer with central administration and the Solicitor’s office for advice and guidance and to scrutinize the circumstances of the documented disruption.  This will ensure that proper and careful review is applied to assure the criteria established by the Court has been met before any significant action is taken.

In the event that you have any questions or require further guidance regarding this matter, please feel free to contact Alfred Maiello at acm@mbm-law.net or 412.242.4400.  Our office is willing to provide in-service training for your administrative or teaching staff regarding the issues presented by these cases.

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