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In  two landmark decisions concerning student free speech rights, the Third Circuit Court of Appeals this week held that the First Amendment prohibited school district decisions to discipline students for their off-campus speech.  The two decisions, Layshock v. Hermitage School District and J.S. v. Blue Mountain School District, issued simultaneously, examined whether a school district can restrict student expression on the internet when it occurs off-campus.  In 2010, the appeals court issued two inconsistent rulings in these two cases, deciding in favor of the student in Layshock but against the student in J.S.  The court vacated those 2010 opinions and ordered both to be heard by the entire 14-judge panel, en banc.   

            In Layshock, a 17-year-old student, at his grandmother’s home and on his own time, created a MySpace profile of the high school principal claiming that he took steroids, used drugs, was gay, and shoplifted, among other things.  In response, the student received a ten-day suspension, was placed in an alternative setting for the rest of the school year, and was banned from participating in any school-sponsored events, including graduation.  The student sued, claiming the discipline violated his First Amendment free speech rights.  The school district argued that the student’s lewd, vulgar, and indecent speech, that reached into the schools, was not protected by the First Amendment under the standard set out in Bethel School District v. Fraser.

            The Third Circuit held that the First Amendment prohibited the district from “reaching beyond the schoolyard to impose what might otherwise be appropriate discipline” against the student.  According to the appeals court, the student’s expressive conduct originated outside the schoolhouse, did not disturb the school environment, and was not related in any way to a school-sponsored event.  The student’s use of a photo image of the principal taken from the district’s website was not enough to link the student’s actions to the school.  Further, the school district failed to demonstrate that the speech caused a substantial disruption to the school under the standard set out in Tinker v. Des Moines Indep. Cmty. Sch. Dist.    

            In J.S. v. Blue Mountain School District, an honor-roll student and some of her friends created a fake MySpace profile of the principal, at J.S.’s home on her parents’ computer.  According to the appeals court, the profile contained “crude and vulgar language, ranging from nonsense and juvenile humor to profanity and shameful personal attacks aimed at the principal and his family.”  The district suspended the student for ten days, prompting the lawsuit. 

            According to the Third Circuit, there was no dispute that the student’s speech did not cause a substantial disruption in the school.  The district argued, however, that its discipline decision was justified because “the facts might reasonably have led school authorities to forecast a substantial disruption” of school activities.  The district also asserted that, under Fraser, the student’s lewd, vulgar, and offensive language was not protected by the First Amendment.  The appeals court observed that, under Tinker, while school authorities need not prove with absolute certainty that a substantial disruption will occur, their forecast of a substantial and material disruption must be reasonable.  An “undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression.”

            Here, according to the majority opinion, the student created the profile as a joke and it was so outrageous that no one took it seriously.  The profile was made private so that only the student and her MySpace friends could see it.  Although the profile contained a picture from the district’s website, the profile did not identify him by name, school, or location.  The district’s computers blocked access to MySpace.  According to the court, no disruption occurred and the district did not reasonably forecast a substantial and material disruption.  Further, Fraser did not apply in this case because the student’s speech occurred off-campus.

            The court was unanimous in the Layshock case, but split 8-6 in the Blue Mountain case. The six dissenters would have held that there was a “reasonable forecast” of a disruption of school, and asserted that the majority opinion “leaves schools defenseless to protect teachers and school officials against such attacks and powerless to discipline students for the consequences of their actions.”

            Layshock and J.S., while binding precedent only in the Third Circuit, constitute highly significant decisions that will be examined closely by all courts faced with issues of off-campus student expression.  School administrators would be wise to study these decisions and know that there are limits to action that can be taken to curb student expression when it occurs beyond the schoolyard.