Set sane standards for online speech

Kathleen Conn

is an associate professor in the doctorate in education program at Neumann University and the author of more than a dozen articles on cyberbullying

On June 13, the Court of Appeals for the Third Circuit filed two decisions concerning students' out-of-school speech that pose grave consequences for K-12 public schools and public school administrators.

In the first ruling, the majority affirmed an earlier decision that the Hermitage School District in Western Pennsylvania lacked the authority to discipline a high school honor student, Justin Layshock, for his vulgar and disparaging MySpace "impostor profile" of his principal, Eric Trosch.

Layshock created the profile at home. He pretended to be Trosch and answered profile questions with remarks about Trosch's "big keg" behind his desk, and Trosch's enjoying "hitting on" female students and being too drunk to remember his own birthday. Layshock copied Trosch's photograph from the district website and pasted it in the profile.

The school district suspended Layshock, assigned him to the Alternative Education program, and barred him from extracurricular activities and graduation. His parents sued the district, arguing that the First Amendment protected their son's right to speech and expression out of school. The federal District Court that heard the case in 2007, and the Third Circuit Court in 2010 and 2011, agreed with the parents, ruling that the school district had failed to show that Layshock's out-of-school expression caused any substantial disruption to school operations.

The second decision June 13 also dealt with a student's MySpace impostor profile, created out of school, and viciously disparaging the principal.

In this case, a female middle-school student from the Blue Mountain School District in central Pennsylvania, identified only as "J.S.," created the profile, attributing lewd and vulgar actions to her principal and denigrating his wife and family. She also copied the principal's photograph from the district website and pasted it in the profile. The principal suspended J.S. after learning of the profile, and J.S.'s parents sued.

Contrary to the rulings in the Layshock litigation, the courts that heard the case in 2008 and 2010 initially sided with the school district, ruling that the principal was justified in suspending J.S. because he reasonably feared that her profile would cause substantial disruption in the school. The Third Circuit Court reversed the rulings. J.S.'s profile, the majority concluded, was even more vulgar than Layshock's profile, but any disruption to school operations was caused by the principal's overreaction after the profile was posted.

Public school administrators have been the targets of this kind of off-campus, technology-facilitated vilification at the hands of students for years, first on student-created Web pages and most recently on social-networking sites. In deciding whether school discipline is appropriate for student speech originating out of school, courts to date, including the Third Circuit Court, have used a legal analysis enunciated in a 1969 Supreme Court decision, Tinker v. Des Moines Independent Community School District, in which the court upheld students' right to wear black armbands in silent protest of U.S. involvement in the Vietnam War.

Stating that the First Amendment does not stop at the "schoolhouse gate," the high court denied school officials' authority to discipline students for speech and expression unless that speech or expression created a material and substantial disruption of school operations or interfered with other students' right to learn. But the Tinker pronouncements and subsequent decisions apply only to school officials' authority to regulate student speech in school or at school-sponsored activities. The Supreme Court has not spoken on the issue of school discipline for students' out-of-school speech.

The pervasive reach of technology and its ready accessibility present new challenges for school administrators, who are charged with inculcating in students the habits of good citizenship and maintaining the discipline and respect for authority that enables learning to take place. The June 13 decisions of the Third Circuit Court, coupled with the lack of guidance on off-campus student speech from the Supreme Court, could encourage an anything-goes attitude on the part of students. At the very least, the rulings will immobilize Pennsylvania public school officials and leave them defenseless in the face of students' outrageous technology-facilitated slander.

The Supreme Court must abandon the Tinker standard in these cases of off-campus school-related speech and create a new standard that restores dignity and respect for school officials. Courts cannot continue to use Tinker as a tool to substitute their judgment for the expertise of beleaguered school officials.