In 2011, U.S. Courts of Appeal decided four (4) cases involving public school districts disciplining students for offensive on-line student speech that took place off campus.  In a pair of cases decided en banc, J.S. v. Blue Mountain School District and Lashock v. Hermitage School District, both of which have been followed in past editions of Education News, the Third Circuit found that the school districts had infringed on the students’ First Amendment free speech rights by disciplining them for offensive parody Myspace profiles of their schools’ principals.  In addition to these Third Circuit cases, in Kowalski v. Berkley County Schools, the Fourth Circuit upheld the discipline of a West Virginia student who had created a Myspace page targeting a classmate.  Also, the Second Circuit similarly determined, in Doninger v. Niehoff, that school officials, who had refused to permit a student to run for senior class secretary following a vulgar posting on her off-campus blog, were entitled to qualified immunity from the student’s First Amendment claims.  All four cases submitted Petitions for Certiorari to the United States Supreme Court.  The Supreme Court denied certiorari in all four cases.  A possible explanation for the Supreme Court’s denial of certiorari may be that the Court prefers that the law develop more fully in the lower courts before ruling on this emerging area.

Other Third Circuit Court decisions which were denied certiorari by the United States Supreme Court included Doe v. Indian River School District.  In that case, the Third Circuit panel ruled that a Delaware School Board’s policy of opening meetings with a prayer violated the First Amendment’s establishment clause.  The Third Circuit concluded that the constitutional exception established in Marsh v. Chambers for legislative bodies did not apply to the student participation component of the School Board’s meetings.  Rather, the Third Circuit determined that the law governing prayer in schools was controlling.  Another Third Circuit case denied certiorari was Student Doe 1 v. Lower Merion School District.  In that case, the Third Circuit upheld aPennsylvaniaSchool District’s redistricting plan that utilized racial demographics.  The Third Circuit applied the rational basis test, which only requires that the school district show that it had a legitimate reason for adoption of the plan, rather than the strict scrutiny test, which requires the school district to adopt a plan that is the least racially restrictive and establish that it had a compelling interest in its adoption.  The court determined that the plan was facially neutral and was not applied on the basis of race.

Although caution should be exercised in relying too heavily on a case denied certiorari by the United States Supreme Court, the Third Circuit decisions in each of these cases now become controlling federal precedent in the respective areas of law.

Back to Newsletters

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.