Julie Hilden

Can Public Schools Constitutionally Punish Students' Off-Campus Speech? The U.S. Court of Appeals for the Third Circuit Will Decide

By JULIE HILDEN
Wednesday, June 9, 2010

On June 3rd, an en banc panel of the U.S. Court of Appeals for the Third Circuit re-heard two First Amendment cases that involve speech by public-school students. In each case, the speech occurred off campus, but it still resulted in the school's suspending the student involved.

The original panel opinions in the two Pennsylvania-based cases — Snyder v. Blue Mountain School Dist., and Layshock v. Hermitage School Dist. — were both issued on February 4th of this year.

The positions of the two sides, upon re-hearing, are quite clear. The ACLU, arguing on behalf of the students, contends that speech that occurs outside a public school is also outside the school's jurisdiction: "While children are in school, they are under the custody and tutelage of the school. Once they leave the schoolhouse gate, you've got parents that come into play."

In contrast, the school districts claim that "It's not a matter of where you throw the grenade, it's where the grenade lands." In other words, the districts argue that when students' speech targets the school, it doesn't matter whether the speech itself occurs on-campus or off-campus.

In this column, I'll contrast the facts and holdings of the two Third Circuit panel decisions that were issued on February 4th, and comment on the First Amendment issues they raise.

The Snyder Case: The Facts

In the Snyder case, a middle-school student — referred to in the court's opinion as "J.S." — and her friend used a home computer to create a fake MySpace profile that included a photo (but not the name) of their school principal.

The profile insinuated that the principal was a sex addict and a pedophile, among other things. But these insinuations could hardly have been taken seriously by anyone who read the page — which was full of slang, poor attempts at humor, and obvious falsehoods. (For instance, the page claimed that the principal lived in Alabama, not Pennsylvania; and it included comments such as this one, purportedly from the principal himself: "i mainly watch-the playboy channel on directv. OH YEAH BITCH!") (For interested readers, the full text of the page is contained in the panel opinion.)

J.S. was an honor-roll student who had run afoul of the principal before, but only regarding dress-code violations. She said that she created the profile because she was upset that the principal had yelled at her over one such violation.

After creating the profile, J.S. and her friend subsequently allowed about 22 other students to access it — but because the middle school's computers blocked access to MySpace, it is certain that no student ever viewed the profile while he or she was at school.

After a student known as "B." informed the principal about the MySpace page, J.S. was suspended. The principal asked B. to print out the page and bring the printout to school, which B. did.

The principal then confronted J.S. and her friend and told them that they were suspended, and that he would take legal action against them and their families. He also convinced MySpace to take down the profile. Finally, the principal called the police to look into filing criminal charges based on the profile. However, he dropped the idea after speaking to the police.

In addition to the school suspension, J.S.'s parents punished J.S. for what they said was "a very long time" for posting the profile.

The Law: Why The Showing of Disruption Was Weak at Best

A two-judge majority of the three-judge Third Circuit panel saw no First Amendment violation in J.S.'s suspension. Applying the test set forth by the Supreme Court in Tinker v. Des Moines Indep. Cmty. Sch. Dist., the panel found that J.S.'s posting could have caused substantial disruption of the school.

(The Supreme Court also decided another student-free-speech case recently, Morse v. Frederick, but that case is less relevant than it might seem at first glance: There, the Court allowed a student to be punished for a banner he displayed off school grounds, but the display occurred at a school event, and the Court effectively treated the event as a field trip.)

The panel majority's Tinker analysis is weak and unconvincing. The school argued that the actual disruption that occurred consisted of (1) two teachers having to quiet their classes down; (2) a guidance counselor having to proctor an exam so that an administrator could attend a meeting about the profile; and (3) a brief flurry of activity in the hallway because, when the suspension was about to end, students had decorated J.S. and her friend's lockers, and congregated there to welcome them back to school.

(This third supposed disruption, interestingly, seems to have been a First-Amendment-protected protest in its own right — since the students who decorated the lockers apparently did so because they opposed the suspension, so it's not clear that it ought to be included in the analysis. Tinker's very point, after all, is that protest is not itself a disruption; instead, there needs to be separate disruption to bring a protest outside the scope of the First Amendment.)

The panel's two-judge majority correctly deemed these three instances of disruption, together, to be too minimal to justify the school's actions. Unfortunately, however, the majority also held that the mere possibility that more disruption might have occurred, had the principal not acted quickly, justified the suspension of J.S.

Moreover, the panel majority treated the MySpace page as if it had been a sober, straightforward claim that the principal was a pedophile. But, as noted above, the page was anything but that. Indeed, the dissenting judge argued that the "profile was so outrageous that no one could have taken it seriously, and no one did," and thus charged that the majority's opinion had turned school boards into censors.

I agree with the dissenting judge — and I would have liked to see some criticism of the principal here, as well. Surely, principals should not be yelling at students who violate dress codes, as J.S. credibly suggested that the principal did, in her case. Setting an example means remaining calm in the face of minor infractions.

And, much more importantly, it is shocking that this principal seriously contemplated filing potentially life-ruining criminal charges against middle-school-age children based entirely on a parodic MySpace posting.

The Layshock Case

Like the Snyder case, the Layshock case involved a middle-school student's suspension based on a fake MySpace profile of a principal that included the principal's photo.

There, too, no one in his or her right mind could have viewed the profile as genuinely having been authored by the principal, or as genuinely making serious allegations against him. (Again, interested readers may want to consult the opinion for details.) And there, too, the student who created the profile also granted a set of school friends access so that they could view it.

Also, in Layshock, as in Snyder, the principal overreacted by calling the police, but no criminal charges were ultimately filed. And there, too, parents imposed their own sanctions: Justin Layshock was grounded, and was barred by his parents from using his home computer.

However, there are a few factors that were present in Layshock, but were not present in Snyder: In Layshock, the profile spawned more profiles, as other students were inspired to do the same. Also, Justin Layshock accessed the profile in-school, from his Spanish classroom, in order to show it to classmates.

One would think that these factors might mean that Justin's case should have been harder to win than J.S.'s case. Justin's course of conduct included in-school activity, and the additional fake profiles that his profile had spawned could have been deemed disruptive by the court.

But in Justin's case, unlike in J.S.'s, even the school itself agreed — after district-court fact-finding — that, under Tinker, no substantial disruption to the school had been caused by Justin's fake MySpace profile.

Moreover, unlike in Snyder, the Layshock panel focused its scrutiny upon the school, not just the student — pointing out that "Ironically, Justin, who created the least vulgar and offensive profile, and who was the only student to apologize for his behavior, was also the only student punished for the MySpace profiles." Here, the court clearly implied that Justin was being scapegoated — and that it disapproved.

How the Courts Should Deal with Public School Off-Campus-Speech Issues

There is a bright-line test available in this context, and schools should adopt it: Off-campus speech shouldn't be the basis for suspension unless it violates civil law (as genuine defamation does), or criminal law (as true threats do).

Alternatively, if the courts do continue to apply Tinker's "substantial disruption" test in this context, they ought to make clear that disruption, in this context, doesn't just mean more speech. A fistfight between students in the hallway is one thing; a decorated locker and some gossip is entirely another. And de minimis disruptions, such as someone's having to attend a meeting or bring a class to order, should be left out of the equation entirely.

Finally, courts should be wary of finding Tinker's test to be fulfilled based on mere speculation as to what would have happened had a principal done nothing. That scenario is unrealistic; if anything, principals are likely to overreact. Moreover, speculation about what could theoretically have happened is out of place and dangerous in the First Amendment context. If speech is going to be censored, it ought at least to be censored based on hard evidence, not wild conjecture.


Julie Hilden, who graduated from Yale Law School, practiced First Amendment law at the D.C. law firm of Williams & Connolly from 1996-99 and has been writing about First Amendment issues for a decade. Hilden is also a novelist. In reviewing Hilden's novel, 3, Kirkus Reviews praised Hilden's "rather uncanny abilities," and Counterpunch called it "a must read.... a work of art." Hilden's website, www.juliehilden.com, includes free MP3 and text downloads of the novel's first chapter.

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