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Can school officials discipline students for out-of-school speech posted on the web? The Third Circuit has finally answered that question.
In 2010, two cases with similar facts ended in seemingly controversial rulings.
The Third Circuit agreed to rehear both cases, which it did this month.
Sitting en banc, fourteen circuit judges ruled that school officials “can’t punish students for out-of-school speech simply because it offends or criticizes them,” according to ACLU Legal Director Witold Walczak.
What happened in 2010
In the first case, eighth-grader J.S. created a fake profile of her principal on her home computer. The profile:
- showed the principal’s photo
- claimed he was a bisexual and a sex addict, and
- hinted that he was a pedophile.
During the school’s investigation, J.S. admitted her involvement and was suspended for 10 days. She filed suit, claiming the school violated her speech rights.
The court ruled that the suspension did not violate J.S.’s speech rights. It found the profile created a reasonable possibility of causing a future school disruption.
Cite: J.S. v. Blue Mountain School District (2010)
In the second case, 17-year-old senior Justin Layshock created a parody profile of his school principal at his grandmother’s home. Layshock included a photo of the principal on the fake profile, which described him as a drunken drug user.
After he was suspended, Layshock sued, claiming a violation of his speech rights.
This time, a different panel of judges in the Third Circuit held that the school district violated Layshock’s First Amendment rights by disciplining him for creating the profile.
Cite: Layshock v. Hermitage School District (2010)
After the rulings, Walczak, who represented both students, said there’s “less guidance than ever” in the gray area of online, out-of-school speech.
The updated rulings
Sitting en banc, fourteen circuit judges reheard both cases this month.
J.S. v. Blue Mountain School District: In an 8-6 split decision, the full panel reversed the earlier decision, noting that J.S.’s speech did not cause a substantial disruption at school.
The court pointed to three key factors:
- J.S. created the profile at home
- she didn’t intend for the speech to reach the school and took steps to make the profile private so it wasn’t accessible to everyone, and
- the school’s “response to the profile exacerbated rather than contained the disruption at school.”
Layshock v. Hermitage School District: The panel unanimously affirmed the 2010 decision that found the school violated Layshock’s speech rights.
In this case, the court pointed out:
- Layshock didn’t create the profile at school, and
- his speech didn’t cause a disruption at school.
“It is no accident that [the two cases] were taken en banc at the same time, were argued on the same date, and are being decided simultaneously,” Circuit Judge Jordan wrote in his opinion for the court.
The U.S. Supreme Court has yet to address the issue of out-of-school speech.
So for now, the rulings are clear: Students can’t be disciplined for out-of-school speech that doesn’t cause a disruption — or a foreseeable disruption — at school.
Do you agree with the rulings, or do you think the decisions send an “anything goes” message to students about their online speech? Sound off below — and don’t forget to follow us on Twitter.