This is a lengthy post about the two recent student speech decisions of the United States Third Circuit Court of Appeals – Layshock v. Hermitage School District and J.S. v. Blue Mountain School District. The Court reached the opposite conclusion in each case, though both dealt with sanctions imposed by school boards for similar “misuse” of social media. These conflicting judgements illustrate a dialogue about whether to recognize the unique impact of harmful social media use by students.
Layshock – Physical remoteness prevails over intangible connections to the school
In Layshock, on February 4th, the Court affirmed a student’s successful First Amendment claim and rejected a school board’s argument for an exception to the “material and substantial disruption” test for enjoining student speech.
Layshock argued that he was protected by the First Amendment in creating a MySpace “parody profile” of his principal. He created the website outside of school hours using a home computer, but used a picture of the principal that he copied from a board website. The profile included various assertions about the principal regarding drinking, use of drugs and use of prostitutes. It is debatable whether Layshock’s communications were defamatory given their context, but they were vulgar and the principal testified to feeling demoralized and degraded. The judgement says word of the profile “spread like wildfire” and led to the posting of two other similar sites. The board issued a penalty that included a ten day suspension.
On appeal, the board argued that the speech itself (apart from its effect) deserved sanction because it was vulgar, harassing and directed at the school community. It faced two challenges. First, the link to the board’s interests was very intangible; aside from the copying of the picture, Layshock’s activity was clearly situated outside of the school and only linked to the school by virtue Layshock’s intent. Second, the board effectively argued for an exception to the fundamental American rule on student speech from Tinker v. Des Moines Indep. Cmty. Sch. Dist. The rule in Tinker establishes that a school board cannot enjoin student expression that does not “materially and substantially disrupt the work and discipline of the school.” The United States Supreme Court has found exceptions to Tinker, including one that permits schools to sanction vulgar expression in the name of encouraging the “fundamental values of ‘habits and manners of civility’.” The question in Layshock, however, was whether this exception could be rightly applied to conduct so physically remote from the school.
The Court was clearly uncomfortable in departing from the rule in Tinker. It said:
As noted earlier, the District’s January letter to the Layshocks advising them of Justin’s suspension reads, in relevant part, that it was punishing Justin because: “Justin admitted prior to the informal hearing that he created a profile about Mr. Trosch.” Although the letter also mentions disruption, the District does not now challenge the district court’s finding that Justin’s conduct did not result in any substantial disruption. Moreover, when pressed at oral argument, counsel for the School District conceded that the District was relying solely on the fact that Justin created the profile of Trosch. We have found no authority that would support punishment for creating such a profile unless it results in foreseeable and substantial disruption of school.
Had the board successfully attacked the lower court’s finding on disruption based on evidence about the impact of Layshock’s expression on the principal himself, the outcome would have differed. As for the exception to Tinker for vulgar and uncivil expression, the Court held that school boards have no business in sanctioning vulgar and uncivil expression outside of the school. Though it acknowledged that a school is not bounded by “bricks and mortar surrounding the school yard” it said:
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 they can control that child when he/she participates in school sponsored activities. Allowing the District to punish Justin for conduct he engaged in using his grandmother’s computer while at his grandmother’s house would create just such a precedent and we therefore conclude that the district court correctly ruled that the District’s response to Justin’s expressive conduct violated the First Amendment guarantee of free expression.
By this statement, the Court suggests that student expression published through social media should be treated as private and should not be deemed to be associated with any particular school-related harms.
Blue Mountain – Majority keeps with Tinker but recognizes unique harms that flow from misuse of social media
In Blue Mountain, also issued on February 4th, a 2-1 majority of the Court reached the opposite conclusion to the Layshock panel after affirming a finding that a school board had met the material and substantial disruption test from Tinker. Though the majority paid heed to Tinker, it made some very broad statements about the unique harms that flow from misuse of social media.
The facts in Blue Mountain were remarkably similar to those in Layshock. The board suspended J.S. and K.L., two eighth grade girls, for posting a MySpace profile that parodied their principal. The site did not name the principal, but included his picture (taken by the girls from the school’s website) and asserted that he was a sex addict and pedophile. The principal, who testified that he felt upset, angry and hurt, investigated himself and then suspended J.S. and K.L. for ten days.
The majority made clear that it was deciding a different question than decided the same day in Layshock: “We decline today to decide whether a school official may discipline a student for her lewd, vulgar or offensive off-campus speech that has an effect on-campus because we conclude that the profile at issue, though created off-campus, falls within the realm of student speech subject to regulation under Tinker.” It held that the Tinker rule does not prohibit school boards from enjoining conduct that causes reasonably foreseeable harms and, in the circumstances, held that the board could act to prevent a foreseeable deterioration in school discipline.
Unlike the panel in Layshock, the majority in Blue Mountain recognized that J.S. and K.L.’s off-campus expression was harmful by its very nature:
The girls embarrassed, belittled, and possibly defamed McGonigle. They created the profile not as a personal, private, or anonymous expression of frustration or anger, but as a public means of humiliating McGonigle before those who knew him in the context of his role as Middle School principal…
Undoubtedly, students have made fun of or made distasteful jokes about school officials, free from the consequences of school punishment, either out-of-earshot or outside the school context since the advent of our modern educational system. However, due to the technological advances of the Internet, J.S. and K.L. created a profile that could be, and in fact was, viewed by at least twenty-two members of the Middle School community within a matter of days…
We thus cannot overlook the context of the lewd and vulgar language contained in the profile, especially in light of the inherent potential of the Internet to allow rapid dissemination of information. Accordingly, J.S.’s argument for a strict application of Tinker, limited to the physical boundaries of school campuses, is unavailing.Instead, we hold that off campus speech that causes or reasonably threatens to cause a substantial disruption of or material interference with a school need not satisfy any geographical technicality in order to be regulated pursuant to Tinker.
These statements are very broad. Though the majority respects the Tinker framework, it establishes a strong basis for a presumed disruption of school activity. In doing so, the majority accepts the very argument rejected by the panel in Layshock.
Commentators have questioned whether the conflicting rulings are justified based on the facts. In my view they are not, and the two awards illustrate a very live and significant debate about how to characterize online student expression.
Tinker aside, boards in Canada and the United States have been given a relatively broad license to control student activity within the school. Civil libertarians would like to sustain a relatively hard in-school versus out-of-school distinction because the distinction allows for free expression on a range of matters outside of the school and in private. The question, though, is whether it is proper to apply a hard distinction in assessing online student expression of the kind demonstrated in Layshock and Blue Mountain. This question is obviously yet to be resolved.
[Qualification. I practice law in Ontario, Canada and act for educational institutions. This is a comment and not a legal opinion and I am not holding myself out as qualified to practice in matters related to American law.]