Split Rulings on Student Speech Rights

By Dagny Leonard
      Two Pennsylvania students who were suspended for mocking their school principals on MySpace pages have been given different answers on their free speech rights from a federal appeals court.
      In separate rulings by separate three-judge panels, the Third U.S. Circuit Court of Appeals upheld the suspension of a middle school student for depicting her principal as a sex addict but struck down a high school student’s suspension for a less graphic parody of his principal.
      The rulings, both issued by the Philadelphia-based appeals court on Feb. 4, reflect the continuing difficulty for school administrators and courts alike in defining how far schools can go in regulating students’ off-campus use of the Internet. Despite the different outcomes, the panel that issued the second of the rulings said it was aware of the other panel’s decision and believed the two rulings were not contradictory.
      In the first of the cases, Justin Layshock, then 17, was suspended from Hickory High School in Hermitage, Pa., after parodying principal Eric Tosch in December 2005 as a “big steroid freak” and a “big hard ass.”
      In the second case, a middle-school student in Orwigsburg, Pa., identified as J.S., was suspended after the composing a fake MySpace profile in March 2007 of her principal, James McGonigle. The profile, according to the court opinion, included “profanity-laced statements insinuating that [McGonigle] was a sex addict and a pedophile.
      Parents of both students, represented by lawyers from the American Civil Libeties Union of Pennsylvania, filed federal court suits challenging the suspensions as a violation of their children’s free speech rights. A federal judge in Pittsburgh overturned Layshock’s suspension, but the judge in Harrisburg who heard J.S.’s case upheld her discipline.
      In overturning Layshock’s suspension, the three-judge appellate panel noted that the parody had created no disruption at the school. “The District is not empowered to punish his out of school expressive conduct under the circumstances here,” the court ruled unanimously in Layshock v. Hermitage School District.
      In J.S. v. Blue Mountain School District, however, a different three-judge panel voted 2-1 to uphold the suspension by saying that school officials “could reasonably have forecasted a substantial disruption of or material interference with the school” as a result of the parody. In a footnote, the court noted the ruling in Layshock’s case but said the two cases were “distinguishable.”
      The Supreme Court first recognized student speech rights in a 1968 decision, Tinker v. Des Moines School District, that overturned disciplinary actions against students for protesting the Vietnam War. In subsequent decisions, the high court has reaffirmed that ruling while upholding school officials’ power to punish disruptive speech.
      The Internet creates a new issue for school administrators because Internet postings may be written on computers off campus but read by classmates at school. School officials continue to claim authority to punish any Internet postings that could cause disruption, but one expert warns they are waging an impossible fight.
      “Censorship never works,” says Jamin Raskin, a professor at American University's Washington College of Law and editor of We the Students: Supreme Court Cases for and About Students (CQ Press). “And it especially doesn't work in the age of the Internet.”
      For background, see Kenneth Jost, “Student Rights,” CQ Researcher, June 5, 2009.