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Supreme Court passes on chance to define students’ online free-speech rights

Lawyers on both sides were disappointed that it will be at least another year before the high court wades into the issue.

The U.S. Supreme Court has declined to take up a set of cases for the digital age—whether schools may censor students who are off-campus when they create online attacks against school officials and other students.

The court let stand the suspension of a West Virginia high school’s “Queen of Charm,” who created a web page that suggested another student had a sexually transmitted disease and then invited classmates to comment.

The court also left alone rulings that said schools could not discipline two Pennsylvania students for MySpace parodies of their principals that the students created at home. An appeals court, following 40-year-old case law on student free speech, said the posts did not create substantial disruptions at school.

Lawyers on both sides were disappointed that it will be at least another year before the high court wades into the issue. Federal judges have issued a broad range of opinions on the subject, which has muddied the waters for school administrators as they consider whether it’s appropriate to discipline students for such online transgressions.

“We’ve missed an opportunity to really clarify for school districts what their responsibility and authority is,” said Francisco Negron, general counsel of the National School Boards Association. “This is one of those cases where the law is simply lagging behind the times.”

The American Civil Liberties Union expects the Supreme Court to examine the question “sooner rather than later,” according to Witold Walczak, legal director for the ACLU of Pennsylvania. Still, he is relieved the Pennsylvania students represented by the ACLU have been exonerated after their long legal fights.

“When kids go to school, the parents give up control. But once the kids leave the school, the parents again are the primary custodians and have decision-making authority over those kids,” Walczak said.

With the cases settled, Justin Layshock of western Pennsylvania will receive $10,000 in damages plus legal fees, while an eastern Pennsylvania girl, identified only as “J.S.,” can pursue damages and legal costs.

Layshock in 2005 created a parody that said his principal smoked marijuana and kept beer behind his desk. The Hermitage School District argued that Layshock’s website substantially disrupted school operations. Layshock was suspended, but the suspension was overturned by a district judge and upheld by the 3rd U.S. Circuit Court of Appeals in Philadelphia.

In the other Pennsylvania case, an eighth-grader in the Blue Mountain School District used her principal’s photograph in a fake profile, described him as a pedophile, and mentioned a sex act. The girl was suspended for 10 days.

“Though disturbing, the record indicates that the profile was so outrageous that no one took its content seriously,” a 3rd Circuit majority wrote last year. But the court was divided 8-6.

Such disparities are common around the country as school districts wrestle with how to address online pranks, threats, or cyber bullying.

In the West Virginia case, the 4th U.S. Circuit Court of Appeals in Richmond unanimously refused to reinstate Kara Kowalski’s lawsuit against school officials in Berkeley County. She claimed her five-day suspension from Musselman High School in 2005 violated her free speech and due process rights.

A new statewide anti-bullying policy that goes into effect July 1 extends rules about student conduct beyond the school yard, holding students accountable for “vulgar or offensive speech” online if it disrupts school.

Although sexual orientation was not an issue in the legal case, the West Virginia Board of Education policy specifically noted that lesbian, gay, bisexual, and transgender students are often bullied. That sparked opposition to the policy from certain groups.

Kevin McCoy, president of the West Virginia Family Foundation, said the high court’s ruling is a setback but not a blockade to those who oppose the policy. The group says the policy intrudes on the private lives of children.

“Does this make it a little more difficult for us? A little,” McCoy said. “But it definitely does not close the door to any future challenge.”

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