Within the last few months, several court decisions and other developments have occurred which impact the internet free speech rights of students and teachers and attempts to address the effect that speech has on school operations.  Below is a summary of the most relevant decisions and actions.  As you will see, while courts may be offering clarity on a number of points, in other areas the law is still far from settled.

1.         Pennsylvania Students:  Parody Profiles of Principals Created Off-School Are Protected Speech.

Most significantly, the Third Circuit Court of Appeals recently rendered opinions in two ongoing federal suits involving Pennsylvania students who made false and insulting profiles of their school principals on social networking websites.  The two cases—Layshock v. Hermitage SD and J.S. v. Blue Mountain SD—have similar factual circumstances.

Justin Layshock 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 which 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 a ten-day suspension, 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, 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.

Both students filed federal suits alleging violation of their First Amendment rights, among other claims.  At the District Court level, summary judgment was granted in favor of Layshock, but against J.S.  Both cases were appealed to the Third Circuit, where 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 the students’ First Amendment rights were violated when they were disciplined by their school districts.

In Layshock, the judges 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 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.”

In J.S., the school district 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: “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.”

Since the Third Circuit has jurisdiction over Pennsylvania, these decisions should guide your District in 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.  As a result, your District should 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 discipline is imposed on a student for off-campus speech, the building-level administrators should confer with central administration and your solicitor’s office for advice and guidance and to scrutinize the circumstances of the documented disruption.

2.         Pennsylvania Teachers:  Bucks County Teacher Returned to Classroom Despite Inflammatory Blog.

You may recall the media attention received by Natalie Munroe, the Central Bucks School District High School English teacher, whom students discovered had written a blog where she made insulting and profane comments about her students’ lack of ambition and intelligence and other deficiencies.  After her blog was discovered, she was placed on leave by the District, then took maternity leave.  Monroe hired a lawyer and went on several morning television shows arguing that her First Amendment rights had been abridged by the School District.

At a press conference held in July, the high school principal read a public statement announcing that Munroe would be returned to the classroom for the 2011-2012 school year and then proceeding to spend several minutes denouncing the teacher’s internet postings and the effect those postings had on the school community.  The principal announced that students who did not wish to be assigned to Munroe’s classes would have that wish honored.

The precise reasons for the District’s decision to reinstate Munroe were not made public.  Munroe may have been able to avoid firing on the basis that she did not violate her students’ FERPA rights by not using any student names in her posts, and presumably the District determined that its likelihood of proving that she committed educator misconduct was outweighed by her likelihood of success in a First Amendment suit.  From an outsider’s perspective, however, it would appear that the speech on her blog did not constitute a matter of public concern (which would be protected speech) as much as her own private opinions (which are not protected speech).  In any event, the decision of Central Bucks to reinstate Munroe may embolden teachers and teachers’ unions to contest discipline or discharge of teachers for their online activities.

3.         West Virginia students:  MySpace Bullying Which Occurs After School May Be Disciplined.

In a recent decision of the Fourth Circuit Court of Appeals, a West Virginia high school student’s free speech rights were not violated when she was disciplined for making a MySpace page which made fun of another student’s promiscuity.  Kowalski v. Berkeley County Schools involved a 12th grade student, Kara Kowalski, who created a MySpace page called “S.A.S.H.” after school.  A classmate testified that this acronym stood for “Students Against Shay’s Herpes,” referring to another classmate who was the main subject of discussion for the page, which was joined by approximately two dozen other students.  The first student to join the page did so from a school computer, and others posted doctored photos of Shay and made disparaging comments about her.  Shay’s parents filed a complaint with the school, and after finding that the page constituted harassment and bullying, the administration suspended Kowalski from school for ten days and from activities for ninety days.

The West Virginia District Court dismissed Kowalski’s lawsuit claiming her free speech rights were violated, and the Appeals Court affirmed that decision.  The Court noted that there is a compelling interest on the part of public school districts to combat bullying given the federal government’s initiative and the national climate.  The Court found that the creation of the S.A.S.H. page created a material and substantial disruption to school operations because it “functioned as a platform” to direct verbal attacks at a fellow student, and while the page had been created off-school, the Court found that Kowalski knew that its effects would carry into the school context, as she put the word “students” in the name of the group and invited other high school students to join.  On these facts, the Court was persuaded there was a sufficient nexus between the off-school conduct and school operations.

As a decision of the Fourth Circuit, the rationale and holding of this case may be persuasive to a Pennsylvania state or federal court, but it does not constitute a mandatory precedent.  The case does, however, identify circumstances to support a school district’s discipline for off-school conduct.

4.         Indiana students:  Racy Photos of Students Taken Off-Grounds Cannot Be the Basis for Exclusion From School Activities.

In T.V. and M.K. v. Smith-Green Community School Corporation, two female students, 15 and 16 years old, took sexually suggestive photos of each other during a summertime slumber party.  The photos were posted on MySpace and facebook, where they were accessed by other students and then brought to the attention of the District’s Superintendent and High School Principal under the premise that the pictures were causing a division between members of the District’s volleyball team to which the girls belonged.  The District’s Code of Conduct stated that students could be removed from activities for actions which bring discredit or dishonor upon themselves, and on that authority, the High School Principal initially suspended the two girls from all extracurricular activities for an entire calendar year.  After an internal appeal process, the administration reduced the penalty to exclusion from 25% of fall extracurricular activities, which amounted to six volleyball games and one choir performance.

The students sued and claimed their free speech rights were violated.  While noting that he wished the case “involved more important and worthwhile speech on the part of the students,” the Judge found that the District exceeded its authority in disciplining the students.  The Judge reluctantly concluded that the photos constituted “expression” in the loosest reading of the word, and that while the expression could have been punished as lewd and inappropriate if made on school grounds, the District could not demonstrate any actual material or substantial disruption to school operations caused by these photos.  Finally, the Judge refused to apply a less stringent standard to the District’s actions on the basis that the punishment involved extracurricular activities and not school attendance.

While the T.V. and M.K. case is not a Pennsylvania decision, it is likely that a Pennsylvania court would apply the same reasoning, and thus the case is an instructive reminder that your school district should take no action against off-campus speech unless it materially disrupts school operations.

5.         Missouri Teachers and Students: “Friending” or Private Communications Between Teacher and Students on Social Media Websites May Be Illegal, Pending a Court Challenge.

In Missouri, the fight over teacher-student online communications has moved from the legislature to the courts.  A state law was set to go into effect on August 28, 2011 which mandated that “No teacher shall establish, maintain or use a non-work-related internet site which allows exclusive access with a current or former student.”  This law would have the effect of prohibiting teachers and students from being “friends” on social networking sites and, in the view of teachers, would inhibit the continued use of several education-related computer applications.  The Missouri State Teachers Association filed suit in state court seeking an injunction against the law going into effect and on August 24, 2011, a judge enjoined the law on the basis that a potential chilling effect on protected speech constituted irreparable harm.  Perhaps sensing the handwriting on the wall, and perhaps in response to the widespread public scrutiny the law received, the Legislature voted in September by a margin of 139-2 to repeal the bill.

Taking these developments together, it has been an extremely busy spring and summer for teacher and student internet speech.  Further, it is likely that the upcoming school year will yield even more litigation on these issues.  Of course, tracking the Pennsylvania decisions is most important, as these directly impact Pennsylvania School Districts.  However, several of the cases involving student internet speech cite cases from other jurisdictions as an aid in sorting out these issues, so it is worthwhile to be familiar with them.  The bottom line, as always, is to be sure there has been a substantial disruption to school operations before any disciplinary action is taken against internet speech.

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.