William C. Odle, Tuesday, June 21, 2011 | Filed under: Social Networking, First Amendment
In part due to the rapid rise in popularity of social networking cites like Facebook, new questions have emerged about the extent of a school district's authority to regulate student speech that occurs off-campus. Up to now, the prevailing view has been that schools may discipline off campus speech which bears sufficient relation to the school environment, even if that speech does not cause “substantial disruption”under Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969). However, this may no longer be the case following two recent decisions by the U.S. Court of Appeals for the Third Circuit.
Last week, in two closely followed cases , the Third Circuit ruled that school districts may regulate off-campus student speech only where the speech poses a “poses a significant threat of substantial disruption.” Affirming its earlier ruling in one case and reversing in part the other, the court found that the schools in each case exceeded their authority and violated the First Amendment when they disciplined students for postings made on social networking sites.
InSnyder v. Blue Mountain School District,the district court originally upheld a school’s 10-day suspension of a14-year-old for her creation of a “profanity-laced” mock profile of her middle school principal on the social networking site MySpace. Reaching the opposite result, the lower court inLayshock v. Hermitage School District found that another school district’s discipline of a 17-year-old student for a similar posting on MySpace violated the student’s First Amendment rights. The MySpace postings in both cases were created after school hours, off campus and using non-school computers. On appeal, both cases where affirmed,prompting the Third Circuit to hear the case a second time en banc to resolve the panel split.
Using Tinker as a guidepost, the majority opinion in Blue Mountain found that school districts may discipline students for off-campus behavior only if it presents a significant likelihood of causing substantial disruption. The court found there was no such likelihood because the website parody was viewable only to a select number of the student’s friends and that, although “indisputably vulgar,” the student’s speech was nonetheless protected by the First Amendment. Similarly, in Layshock, the court found that the school district failed to show that the offensive internet posting created any on-campus disruption, concluding that “[i]t would be an unseemly and dangerous precedent to allow the state, in the guise of school authorities, to reach into a child’s home and control his/her actions there to the same extent” that it can when the child “participates in school sponsored activities.”