Disciplining Students For Off-Site Networking

Why You May Need to Think Twice

Last year, on the same date, two separate three-judge panels of the United States Court of Appeals for the Third Circuit issued seemingly conflicting opinions regarding the permissibility of disciplining students for off-campus speech. In each case, the school district had disciplined students for creating an offensive mock profile of a school administrator on a social networking website.

When the Third Circuit realized the conflict, the Court vacated the conflicting opinions and ordered that each matter be heard en banc, meaning before the full court. The arguments were heard by the fourteen judge panel on June 3, 2010 and the decisions were finally issued on June 13, 2011.

By way of brief background, in J.S. v. Blue Mountain School District, J.S., an 8th grade student, created a lewd, vulgar, and indecent mock profile of the school principal on her home computer. The profile did not identify the principal by name, school, or location, but J.S. used the principal’s official photograph from the district’s website. Initially, the profile was public and thus able to be viewed by anyone. However, the day after creating the mock profile, J.S. made the profile “private,” thereby limiting access to it. The District’s computers blocked all access to the social networking website, thus at no time was the mock profile accessed from school. The school suspended J.S. for ten days.

In Layshock v. Hermitage School District, Justin Layshock, a high school senior, used his grandmother’s computer to create an offensive profile of the school principal. As in J.S., Justin copied a photograph of the principal from the district’s website. However, Justin’s mock profile also identified the principal by name. Additionally, the profile was accessed by students in school, using district computers. In response, the district was forced to temporarily limit student access to the school’s computers. Computer programming classes were also cancelled. Following an informal hearing, Justin was suspended for ten days, placed in the Alternative Educational Program for the remainder of the school year, banned from all extracurricular activities, and prohibited from participating in his graduation ceremony. Notably, three other students who created similar mock profiles, more vulgar and offensive than Justin’s, were not punished.

For a more detailed history of each of these cases, please see “Inconsistent Rulings Muddy the Waters on Student Freedom of Speech” available at fifthroomcreative.createsend.com/t/ViewEmailArchive/y/9315B3640F564EA0/C67FD2F38AC4859C/.

The legal issue presented in both of these cases is whether or not the discipline imposed by the school districts violated the students' freedom of speech. While the United States Supreme Court has issued numerous decisions regarding student freedom of speech, it has not yet ruled upon the permissibility of a school to regulate student speech occurring off-campus and not at a school sponsored event.

The standard to evaluate the permissible regulation of student speech was set forth by the United States Supreme Court in Tinker v. Des Moines Independent Community School District., 393 U.S. 503 (1969). Under Tinker, a school district may regulate student speech that “materially and substantially disrupt[s] the work and discipline of the school.” Id. at 513. Moreover, Tinker permits districts to be proactive and regulate student speech based upon facts that allow the school to “forecast” a substantial disruption. Id. at 514.

In Layshock, the school district’s argument was twofold: (1) that the speech occurred on-campus due to Justin’s taking of the principal’s photograph from the district’s website and (2) that the vulgar, lewd and offensive speech was directed at the school district and was therefore not shielded by the First Amendment.

In response to the first argument, the Third Circuit found that “[t]he School District’s attempt to forge a nexus between the School and Justin’s profile by relying upon his 'entering' the District’s website to 'take' the District’s photo of [the principal] [was] unpersuasive at best.” The Court repeatedly highlighted that the school district chose not to appeal the holding of the District Court that Justin’s profile had not caused a substantial disruption within the school. In fact, the district actually conceded that Justin’s profile did not cause such a disruption. Based on this concession, the Court determined that “[i]t 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.”

As part of its second argument, the district attempted to rely upon the holding of the United States Supreme Court in Bethel School District No. 403 v. Fraser, 78 U.S. 675 (1986) arguing that there is no First Amendment protection for lewd, vulgar, and indecent speech in schools. Once again stressing that the district conceded that there was no substantial disruption within the school, in conjunction with the fact that Justin’s speech occurred entirely outside of school, the Court found that the district was not permitted to punish a student for public discourse, even when it related directly to the school and school officials.

In J.S. v. Blue Mountain School District, although the school district conceded that J.S.’s speech did not cause a substantial disruption in the school, it argued that the discipline was reasonable based upon the administration’s forecast that the mock profile would cause a substantial disruption if J.S. was not punished. The Court found that the mock profile created by J.S. was so outrageous that no one would believe it or take it seriously, and thus it was not reasonably foreseeable that J.S.’s speech would create a substantial disruption.

As in Layshock, the district in Blue Mountain also argued that it was acceptable to discipline J.S. because her speech was lewd, vulgar and offensive. Here, the Court held that “[u]nder these circumstances, to apply the Fraser standard to justify the School District’s punishment of J.S.’s speech would be to adopt a rule that allows school officials to punish any speech by a student that takes place anywhere, at any time, as long as it is about the school or a school official, is brought to the attention of a school official, and is deemed ‘offensive’ by the prevailing authority.”

While at first glace these cases are disheartening and may lead school officials to believe that they have no recourse against private and offensive student speech, these decisions are very fact specific. In both cases, the school district conceded that the mock profiles did not materially and substantially disrupt the school environment. In Layshock, the Court left open the possibility to “define the precise parameters of when the arm of authority can reach beyond the schoolhouse gate” at a future time. Thus, it appears that the Court may be willing to allow school districts to discipline students for private off-campus speech when it results in the requisite disruption of the school environment.

As always, if you have any questions about these cases or any other legal matters, please do not hesitate to contact us.