As we have discussed several times on this blog in recent years, there are two cases that addressed issues with off-campus online speech by students that resulted in seemingly conflicting responses by the same court. They potentially have implications for how schools can respond to cyberbullying incidents, so are important to follow.
To refresh your memory, Layshock v. Hermitage School District involved Justin Layshock, the 17-year-old Hickory High School senior who in 2005 created a “nonthreatening, non‐obscene parody profile making fun of the school principal” from his grandmother’s home using her computer. The school suspended Layshock for 10 days, which was initially upheld in a 2006 hearing, but later overturned by the judge in the case, saying the school went too far. In February of 2010, a panel of judges from the Third U.S. Circuit Court of Appeals weighed in and agreed. In this case it appeared the school failed to effectively argue that Layshock’s actions caused a substantial disruption at school – the standard that was established in the seminal Supreme Court case Tinker vs. Des Moines (1969). According to Tinker, school administrators can discipline students for off-campus behavior if it can be demonstrated that such behavior resulted in a “substantial and material disruption” of the school environment.
In the other case (Blue Mountain School District v. J.S.), a 14-year-old eighth-grade student from Blue Mountain Middle School also created a MySpace profile of the principal which included, among other things, an accusation that he was a “sex-obsessed pedophile.” This student was also suspended for 10 days for violating the school’s discipline code and for using the schools copyrighted material (the principal’s picture from the school’s web site) without permission. The lower court refused to grant the student a temporary restraining order or preliminary injunction ruling that schools can in fact discipline students for lewd off-campus behavior, even if such behavior doesn’t cause a substantial disruption. Another, separate panel from the Third U.S. Circuit Court of Appeals agreed with the lower court in an opinion that seemed inconsistent with the Layshock ruling.
To resolve these disparate views, the Third Circuit agreed to review the cases collectively (“en banc”) to offer a perspective. In short, there is nothing too surprising about the remarks of the majority opinions released on Monday. The court re-asserted that schools cannot punish students for off-campus behavior or speech without evidence of a substantial disruption at school (or a high likelihood that such a disruption will occur).
In the Layshock case, the school district conceded that the creation of the MySpace parody profile did not cause a disruption at school. So it is clearly outside the boundaries of formal school discipline. The court also listed several cases where schools were allowed to discipline students for the off-campus behavior (J.S. v. Bethlehem Area Sch. Dist., 807 A.2d 847 (Pa. 2002); Wisniewski v. Bd. of Educ. of Weedsport Cent. Sch. Dist., 494 F.3d 34 (2d Cir. 2007); and Doninger v. Niehoff, 527 F.3d 41 (2d Cir. 2008), noting that “each of those cases involved off campus expressive conduct that resulted in a substantial disruption of the school, and the courts allowed the schools to respond to the substantial disruption that the student’s out of school conduct caused.”
In the other case, the Bethlehem Area School District did initially attempt to argue that J.S.’s activities resulted in a significant disruption at school, though neither the District Court nor the Third Circuit Court of Appeals accepted that argument so they backed off. In the original hearing, the District Court supported the disciplinary actions of the school, not because there was evidence of a substantial disruption, but because the content of the off-campus speech was “vulgar, lewd, and potentially illegal.” This was consistent with Supreme Court decisions in Fraser (1986) and Morse (2007). In its review, however, the Third Circuit noted that in both of these cases, the speech was delivered at school (Fraser) or a school sponsored activity (Morse). As such, the vulgarity of the speech was irrelevant and therefore the singular issue is to consider is whether the off-campus speech resulted in a substantial disruption. Therefore, in a divided opinion (8-6) the Third Circuit overturned the District Court, concluding that: “…the school district violated J.S.’s First Amendment free speech rights when it suspended her for speech that caused no substantial disruption in school and that could not reasonably have led school officials to forecast substantial disruption in school.”
Judge Jordon noted in a concurring opinion, however, that: “The issue is whether the Supreme Court’s decision in Tinker, can be applicable to off-campus speech. I believe it can, and no ruling coming out today is to the contrary.” So students can be punished for off-campus speech or behavior (consistent with Tinker’s disruption clause).
So where does this leave us. Well, the key issue to keep in mind, it seems, is whether a student’s off-campus speech or behavior results, or has a high likelihood of resulting in, a substantial disruption at school. We have little additional clarity regarding what that actually looks like, but we know a bit more about what it isn’t. Staff accessing a harassing profile at school does not constitute a substantial disruption. A student bringing a printed copy of a Web site to school at the request of staff does not cause a substantial disruption. A few students talking in class does not equal substantial disruption.
It also appears that vulgarities directed toward school officials from an off-campus location are not automatically subject to school discipline. Now, if that speech substantially and/or materially disrupts the learning at school, it may be fair game for sanction. It is interesting that free speech advocates are touting this as a victory for students, suggesting these opinions are evidence that there are no conditions under which schools can discipline students for their off-campus speech. This is clearly an incorrect interpretation of the facts. We have long known that students have free speech rights. We also know that those rights are constrained a bit while at school and where the speech substantially disrupts the school environment. That hasn’t changed.
It is important to also point out that both of these cases involved students who were targeting staff. I would be very interested to see if the opinions changed if all players involved were students. If a student creates a Facebook parody profile about another student, could the target’s ability to learn at school be substantially disrupted? It sure seems so. But it remains to be seen whether the higher courts would agree with this rationale.