Published June 14, 2011
| Associated Press
PHILADELPHIA -- Two Pennsylvania teens cannot be disciplined at school for MySpace parodies of their principals created on home computers, a federal appeals court ruled Monday in a high-profile case involving students and free speech.
The postings, however lewd or offensive, were not likely to cause significant disruptions at school and are therefore protected under prior Supreme Court case law, the 3rd U.S. Circuit Court of Appeals found.
"Today's court decision states that you cannot punish students for off-campus speech simply because it offends or criticizes (school officials)," Witold Walczak, legal director of the American Civil Liberties Union of Pennsylvania, told The Associated Press. The ACLU represented both students.
However, six judges who dissented in one of the twin cases said they feared salacious online attacks against school officials would go unpunished.
"It allows a student to target a school official and his family with malicious and unfounded accusations about their character in vulgar, obscene, and personal language," Judge D. Michael Fisher wrote in the dissent involving the Blue Mountain School District in eastern Pennsylvania.
In that case, an eighth-grade honors student disciplined for two dress code violations created a MySpace page in March 2007 using an actual photo of the principal with a fake name. The site purported to be that of a 40-year-old Alabama school principal who described himself -- through a string of sexual vulgarities -- as a pedophile and sex addict. The Internet address included the phrase "kids rock my bed."
"Though disturbing, the record indicates that the profile was so outrageous that no one took its content seriously," the 3rd U.S. Circuit majority wrote Monday, overturning its own prior ruling. "(The student) testified that she intended the profile to be a joke between herself and her friends."
In the other case, Hickory High School senior Justin Layshock in December 2005 created a parody that said his principal smoked marijuana and kept beer behind his desk. The Hermitage School District said it substantially disrupted school operations and suspended him, but the suspension was overturned by a district judge, the appeals panel and now the full 3rd Circuit.
In a rare move, the full court heard oral arguments last year after separate three-judge panels issued conflicting rulings in the two cases.
Such disparities are common around the country as school districts wrestle with how to address online behavior that can range from pranks to threats to cyberbullying. The New York-based 2nd U.S. Circuit has upheld school discipline in two similar cases, but the issue has yet to reach the Supreme Court.
"This is a very exciting case, really at the cutting edge, and it's not going to end here," said lawyer Wendy Beetlestone, an education lawyer in Philadelphia who was not involved in the case. She served as general counsel for the city's school district from 2002 to 2005.
"The Supreme Court will have to figure out what's the difference between inside the school gates and outside the school gates, when bricks and mortar don't really apply, and school kids are constantly online communicating with each other about things concerning the school and things not concerning the school," she said.
Lawyers for the Pennsylvania schools did not immediately return phone calls about whether either district planned to appeal to the high court.
The families initiated the lawsuits to appeal the 10-day school suspensions. Neither family condoned the conduct, and both said their children were disciplined at home.
Layshock voluntarily apologized to Principal Eric W. Trosch, an apology the principal found "respectful and sincere." The senior was nonetheless suspended, and also placed in an alternative study program and banned from tutoring and other extracurricular activities and graduation.
The judges noted that three other students who followed suit, creating even more crude parodies of Trosch, were not suspended.
"We do not think that the First Amendment can tolerate the School District stretching its authority into Justin's grandmother's home and reaching Justin while he is sitting at her computer after school," the unanimous court wrote in Layshock's case.
The school argued that Layshock entered the school zone when he cut and pasted Trosch's photo from a school website, and showed the Web page to other students in class. Word of the site, which Trosch found "degrading," spread quickly among students, the school argued.
Fisher, in his Blue Mountain dissent, called any distinction between off-campus and on-campus speech "artificial and untenable in the world we live in today."
"For better or worse, wireless Internet access, smartphones, tablet computers, social networking services like Facebook, and stream-of-consciousness communications via Twitter give an omnipresence to speech that makes any effort to trace First Amendment boundaries along the physical boundaries of a school campus a recipe for serious problems in our public schools," he wrote.