Recent editions of the Maiello, Brungo & Maiello, LLP Education News have highlighted recent court decisions involving student free speech rights and how a school district’s ability to enforce a code of student conduct is impacted.  Our Fall, 2006 issue discussed the initial court proceedings in the case of Layshock v. Hermitage School District.  That case has now been decided with finality, and we are providing an update.  In Layshock, a high school student used his grandmother’s computer to create an insulting profile of his principal on the popular website  While the profile was created during off-school hours on private property, it incorporated the principal’s photograph from the District’s website.  It was accessed by several students on school computers during school hours, and after it was confirmed that Layshock created the profile, he was suspended and assigned to an alternative education program.  Initially, the Court denied the student’s request for a preliminary injunction and found that the District might successfully prove that the speech materially and substantially disrupted the school’s educational environment.

The case proceeded to the discovery stage.  The parties held depositions and exchanged documents concerning the issue of disruption to the school.  Following the completion of discovery, the student and his family moved for summary judgment, claiming that on the record established, there were no facts in dispute and the District had violated the student’s first amendment rights as a matter of law.  In an opinion issued by Judge Terrence McVerry, the court agreed and found in favor of the student and against the District.

Judge McVerry stated that although the fake profile created by Layshock was lewd and profane, it was not “spoken” or “made” on school grounds or during school time.  Further, and more importantly, Judge McVerry found that the District could not establish a sufficient causal nexus between Layshock’s profile and any substantial disruption of the school environment.  Students other than Layshock were also creating fake profiles of the school principal, and there was no evidence they were created as a result of Layshock’s creation.  Additionally, there was no way to tell how much of the supposed “buzz” among students was caused by Layshock’s profile or those created by others.  Further, while administrators spent time investigating the fake profiles, there was no need to cancel classes and no widespread disorder requiring a significant disciplinary response.  The Court found that the temporary disruption to the school’s computer system necessitated to block access to did not constitute substantial disruption under the Tinker test.  In short, the Court concluded that the School District’s right to maintain order and enforce its code of conduct did not justify curtailing the student’s first amendment freedom of speech.

Except for speech that advocates illegal behavior or is lewd or profane, the Layshock decision illustrates that Courts will continue to look first at whether student speech materially and substantially disrupts the educational environment.  As such, a school district should be prepared to demonstrate ways in which substantial and material disruption of the educational environment occurred as a result of the student’s speech if it chooses to take significant disciplinary action. 

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Alfred C. Maiello
Alfred Maiello

Alfred C. Maiello is the founding member of MBM and has represented area school districts as solicitor for 50 years. He counsels school districts and educational institutions on leading developments in school law and guiding them through their day-to-day and long-term challenges.