Litigation Alert: Full Third Circuit To Rehear Two Student Cases Involving Internet Speech

In the Winter, 2010 edition of Education News, we discussed at length the two inconsistent decisions of the Third Circuit Court of Appeals issued on February 4, 2010 concerning student internet speech and school disciplinary codes.  In brief, one panel of the Court found in Layshock v. Hermitage SD that a 12th grade student could not be suspended for making an insulting myspace.com profile of his school principal outside of school time, while a separate panel of the Court ruled in J.S. v. Blue Mountain SD that an 8th grade student could be suspended for creating a vulgar profile of her school principal outside of school time.  Given this inconsistency, we recommended that Districts take a conservative approach until the issue could be resolved by the Courts.  That resolution may be coming sooner than expected.

On April 9, 2010, the Circuit Court vacated the panel decisions in both the Layshock and J.S. cases and agreed to have both reheard by the full Circuit.  Oral argument was held on June 3, 2010, and a decision in both cases will follow at some point in the next year.  We may at last get a definitive word as to the application of the First Amendment and the Pennsylvania School Code to student off-campus internet speech, or it may be just the precursor to more litigation.  We will update this matter in future editions.