The Third Circuit Court of Appeals this past week became the highest court in the nation to draw a clear line establishing what school districts are legally permitted to do to control student expression on the Internet. The Court with jurisdiction over the U.S. Virgin Islands sided with public school students stating that they cannot be punished for off-campus speech that fails to cause a substantial disruption to in-school activities,.
In the majority opinions for Layshcock v. Hermitage School District and J.S. v. Blue Mountain School District — two simultaneous opinions filed by the entire Third Circuit in Pennsylvania — the judges held that administrators are limited in their ability to restrict student speech that occurs outside of school.
Advocates for student free speech said the rulings were among the most significant to come down in recent years.
“‘Landmark’ is the only word that can be used to describe these rulings,” said Adam Goldstein, attorney advocate for the Student Press Law Center. “The school districts here were arguing that being a student is an impediment to your civil rights, no matter where you are. Today, the Third Circuit stood up and told them ‘there’s a line, and you’ve crossed it.’”
Both cases dealt with fake social media profiles on the internet site MySpace were created to mock school principals.
In Layshock, Justin Layshock, a former student at Hickory High School in Hermitage, Pa., used his grandmother’s computer to create a fake profile for Principal Eric Trosch. On the parody profile, Layshock wrote that Trosch had used drugs, shoplifted and taken steroids.
Apart from a photo of Trosch that Layshock took from the school’s website, all work on the page was unconnected with school.
Though a three-judge panel of the Third Circuit ruled in favor of Layshock in February 2010 — finding that the school’s decision to suspend the student was a violation of his First Amendment rights — a separate panel came out with a simultaneous, conflicting decision in J.S.
In J.S., a then-middle school student in Pennsylvania’s Blue Mountain School District used an off-campus computer to create a fake MySpace profile ridiculing her principal, James McGonigle. Like Layshock’s, the profile featured mock references to McGonigle’s past behavior, including sexually explicit language.
The three-judge panel held in J.S. that the school district’s suspension of the female student did not violate her First Amendment rights.
Because of the inconsistent opinions issued in the two similar cases, the Third Circuit that both were to be reheard en banc — in front of the entire 14-judge court — in June 2010.
Chief Judge Theodore McKee wrote in Monday’s unanimous opinion in Layshock that “it would be an unseemly and dangerous precedent to allow the state, in the guise of school authorities, to reach into a child’s home and control his/her actions there to the same extent that it can control that child when he/she participates in school-sponsored activities. Allowing the [school] district to punish Justin for conduct he engaged in while at his grandmother’s house using his grandmother’s computer would create just such a precedent …”
The majority opinion, however, did not decide whether the 1969 Supreme Court case Tinker v. Des Moins Independent Community School District — which held that public school students have a right to speak freely, with the exception of speech that is illegal or causes a substantial disruption — should be the standard for off-campus speech.
School district officials declined to challenge prior holdings that the speech in question was not disruptive under the Tinker standard.
In reference to the applicability of Tinker, McKee wrote that “we need not now define the precise parameters of when the arm of authority can reach beyond the schoolhouse gate because, as we noted earlier, the district court found that Justin’s conduct did not disrupt the school, and the [school] district does not appeal that finding.”