Student Speech Online: Can/Should Schools Punish It?

On Monday, June 13th 2011, the U.S. 3rd Circuit Court of Appeals ruled that two students who both created fake MySpace profiles parodying their school principals had been unfairly disciplined by their respective school districts. In both cases, the Court found that the schools had not shown that the students’ actions were sufficiently disruptive of school activities to justify disciplinary action. It was a victory for these students and potentially others whose off-campus online speech may be objectionable but not “substantially disruptive.“

In Layschock v. Hermitage School District, the ACLU filed suit on behalf of a high school senior suspended for creating an offensive online parody of his principal on his grandmother’s computer. The suit alleged that the school had violated the student’s First Amendment rights.  In addition to a 10-day, out-of-school suspension, the administration placed him in the Alternative Education Program, a program “designed for students who could not function in a classroom,” even though he was in advanced placement classes and had an excellent academic record.  He was also barred from attending graduation.

The plaintiff in J.S. v. Blue Mountain School, was an eighth grade honors student who had no problems at school until she was disciplined for dress code violations.  Shortly thereafter, she and a classmate used her parents’ home computer to create an obviously fake profile on MySpace which depicted the principal as a pedophile and a sex addict.  The school suspended her for 10 days.

In both cases, the Court of Appeals found that school officials had violated the students’ the First Amendment rights.  The Court held that school officials could penalize lewd speech only if it occurred on campus, and that it could penalize other speech only if it “could reasonably [lead] school authorities to forecast substantial disruption of, or material interference with school activities.”

The Court noted that the “precise parameters” of school authority to discipline students for off-campus online speech have yet to be defined, but it has clarified the analysis that courts in that jurisdiction must apply to address the question.  It remains to be seen whether these cases will provide a framework for courts in other jurisdictions facing similar cases, which are sure to follow.

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