Federal appellate judges wrestling with whether school leaders can discipline their students for internet speech posted outside of school reached different rulings in two Pennsylvania cases on Feb. 4, further clouding an already murky area of the law.
One 3rd U.S. Circuit Court panel upheld the suspension of a Schuylkill County, Pa., eighth-grader who posted sexually explicit material along with her principal’s photograph on a fake MySpace page.
However, a different three-judge panel on the same appeals court ruled that school officials in Mercer County, Pa., cannot reach into a family’s home and police the internet. That case also involves a MySpace parody of a principal created by a student at home.
And, in dissent, a judge in the first case said his colleagues were broadening the school’s authority and improperly censoring students.
“This holding vests school officials with dangerously overbroad censorship discretion,” Judge Michael Chagares wrote in refusing to uphold the March 2007 suspension of a Blue Mountain Middle School student. “Neither the Supreme Court nor this court has ever allowed schools to punish students for off-campus speech that is not school sponsored and that caused no substantial disruption at school.”
School boards, free-speech advocates, and others had been awaiting the rulings for clarity on how far schools can go to control both online speech and offsite behavior.
“The law was unclear [before], and now it’s in a state of chaos,” said lawyer Witold Walczak of the American Civil Liberties Union, who argued the Mercer County case.
Similar cases have surfaced across the country, with different rulings, but none have reached the Supreme Court. Judges are therefore left to rely on decades-old Supreme Court case law on the limits of school discipline for guidance—precedents that might not apply well to the digital era.
Lawyer Anthony Sanchez, who represents the Hermitage School District in Mercer County, called the issue ripe for high-court review.
“With technology, … we’re in a very different world than we were when those other opinions came out,” Sanchez said. He did not immediately know if the district would appeal.
In the Blue Mountain case, both the district and circuit courts upheld the 14-year-old student’s 10-day suspension.
Chagares’ two colleagues concluded that her lewd, sexually graphic posting was likely to cause a disruption at school, and therefore could be restricted under prior case law.