Courts have issued mixed rulings on whether students can be punished for off-campus internet speech.
A U.S. appeals court in Philadelphia heard arguments June 3 over whether school officials can discipline students for making lewd, harassing, or juvenile internet postings from off-campus computers, in a pair of cases that could help define the boundaries between students’ free-speech rights and the rights of administrators to punish students for digital indiscretions that occur outside of school.
Two students from two different Pennsylvania school districts are fighting suspensions they received for posting derisive profiles of their principals on MySpace from home computers. The American Civil Liberties Union argued that school officials infringe on students’ free-speech rights when they reach beyond school grounds in such cases to impose discipline.
“While children are in school, they are under the custody and tutelage of the school,” ACLU lawyer Witold Walczak argued in the 3rd U.S. Circuit Court of Appeals. “Once they leave the schoolhouse gate, you’ve got parents that come into play.”
But a lawyer for the Hermitage School District in western Pennsylvania offered a different view.
“It’s not a matter of where you throw the grenade, it’s where the grenade lands,” Anthony Sanchez said.
The appeals court agreed to rehear the two cases in a rare “en blanc” session—with all 14 eligible judges on the bench—after its judges issued conflicting rulings in the two cases in February. One three-judge panel upheld a girl’s suspension, while another found the suspension of a boy unconstitutional.
Such disparities are common around the country as school districts wrestle with how to address online behavior that can range from pranks to threats to cyber bullying.
Some school officials mete out discipline, opening themselves to lawsuits, or refer cases to police. Occasionally, a targeted school employee sues the suspected culprit for defamation.
David L. Hudson Jr., a scholar at the First Amendment Center in Nashville, Tenn., has reviewed many such cases across the country and said the extent of school officials’ jurisdiction remains unsettled.
Legal experts hope the Supreme Court soon will clarify the limits of school discipline for online speech that is posted offsite. Hudson told The Associated Press that many school officials “would welcome further elucidation by the courts.”
The two Pennsylvania school districts argued June 3 that the postings can be disruptive at school, and said they need to be able to maintain order.
“The profile did create an immediate disruption, which required immediate action,” argued lawyer Jonathan Riba, who represents the Blue Mountain School District in eastern Pennsylvania.
A 14-year-old Blue Mountain student who had been cited for a dress-code violation created a fake profile of a principal purportedly from Alabama. She used her actual principal’s photograph and described him as a pedophile and mentioned a sex act. The girl later apologized, took down the page, and was suspended for 10 days.
“For a school administrator, one cannot be called a worse thing than a sexual predator of young children,” Riba argued.
But Walczak said no one, including the principal, took the profile seriously, and that the parody is protected under the First Amendment. He suggested other remedies for such behavior, from talking with the student and her parents to calling police or counselors.
The student’s mother has said punishing the girl should have been left up to her.
In the other case, Hickory High School senior Justin Layshock created a parody that said his principal smoked marijuana and kept beer behind his desk. The Hermitage School District said it substantially disrupted school operations. Layshock was suspended, and the principal sued him.
During the June 3 hearing, the judges threw a barrage of hypothetical questions at the lawyers, asking if it mattered whether the students intended to harm their targets or if the offending sites were accessed at school.
Chief Judge Theodore A. McKee suggested yet another response to the “buzz” among students about outrageous postings.
“Teachers might say this is a teachable moment,” McKee said. “Maybe in retrospect, that’s the best way to deal with it, to get the students talking about the hurtfulness of the conduct.”
The court did not indicate when it would rule.
3rd U.S. Circuit Court of Appeals
American Civil Liberties Union
First Amendment Center
Hermitage School District
Blue Mountain School District