Student Rights in the Internet Era
On June 13, 2011, the U.S. Court of Appeals for the Third Circuit issued two very important decisions affecting student rights. In both cases, the students created a fake profile on a social networking site which cast an unfavorable light on the students’ school principals. The students created these profiles off-campus. In both cases, the school districts suspended the students for off-campus conduct. In both cases, the Third Circuit en banc court held that the school districts’ discipline violated the students’ First Amendment rights. Below are brief summaries of these two cases.
In 2005, Justin Layshock, a high school senior at the time, was at his grandmother’s house and created a fake MySpace profile of his principal. The fake profile described the principal as a person who smoked a “big blunt,” was a “big steroid freak,” had stolen a “big keg,” had been drunk a “big number of times,” and had shoplifted “a big bag from Kmart.” (Notice how many times the word “big” comes up.)
Justin intended that the profile to be a parody of his school principal, but the principal was not amused. The school suspended Justin for violating the school’s discipline code, which included “Disruption of the normal school process,” “Disrespect,” “Harassment of a School Administrator,” “Gross Misbehavior,” and using “Obscene, vulgar, and profane language.” Consequently, the school district suspended Justin for 10 days.
In 2007, a federal judge ruled that the school’s suspension was unconstitutional. The school district appealed; and in 2010, a three-judge panel of the Third Circuit of the Appeals ruled that the school district violated Justin’s First Amendment free speech rights. In its June 13, 2011, opinion, the Third Circuit held en banc that it would be a “dangerous precedent” if the state would permitted 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.” The Court further held:
“We do not think that the First Amendment can tolerate the school district stretching its authority into Justin’s grandmother’s home and reaching Justin while he is sitting at her computer after school in order to punish him for the expressive conduct that he engaged in there.”
In 2007, a middle school student created a fake MySpace profile of her principal at home using her parent’s computer. The MySpace profile contained a photograph of the principal, but the principal’s name or school was not mentioned. The profile suggested that the principal had such interest as “being a tight ass,” “spending time with my child (who looks like a gorilla),” and “hitting on students and their parents.” The fake profile also described the principal as being a “hairy, expressionless sex addict,” among other things. The student asserted that the fake profile was a parody.
To make a long story short, the school disciplined J.S., and J.S. filed suit, alleging among other things that the school violated J.S.’s First Amendment free speech rights. The case made its rounds in the federal courts. Then, on June 13, 2011, the Third Circuit issued an opinion en banc, holding that the “profile was so outrageous that no one could have taken it seriously, and no one did.” Because the parody “caused no substantial disruption in school and [it] could not reasonably have led school officials to forecast substantial disruption in school, the School District’s actions violated J.S.’s First Amendment free speech rights.”
In both of these cases, the court determined that students’ internet activities did not rise to the level of “substantial disruption.” But what if it did? In a concurring opinion, the J.S. court opined on that question for a moment, and even suggested an example:
Suppose a high school student, while at home after school hours, were to write a blog entry defending gay marriage. Suppose further that several of the student‘s classmates got wind of the entry, took issue with it, and caused a significant disturbance at school. While the school could clearly punish the students who acted disruptively, if Tinker were held to apply to off-campus speech, the school could also punish the student whose blog entry brought about the disruption. That cannot be, nor is it, the law.
But this is most likely dictum. Whether Tinker definitively applies to off-campus speech is a question for another day.