Layshock v. Hermitage School District (3d Cir 2011)

This is a case I found last week, and I thought it would be an interesting addition to any Education Law and First Amendment case library.  The full opinion is available here.

BACKGROUND

Justin Layshock was a student at Hickory High School in the Hermitage School District in Pennsylvania (he has since graduated and gone on to an excellent school in NYC).  While at his grandmother's house in early december he created a fake (parody) MySpace profile of his principle, which sought to make fun of his principle's large stature.  4 other similar profiles were eventually discovered as well.  The profiles were accessed occasionally on school grounds by other students.  The school, having discovered the profiles, but unaware of who the identity of the authors, attempted to block access to the pages from the school.  They also computer programming classes, and limited student computer/Internet use to computer labs, which could be more easily monitored.  On Dec 21, Justin was called to a meeting with the superintendent and co-principal (not the principal in question) where he admitted to creating the profile.  He then apologized in person and in writing to the Principal.  On Jan 3, the school district sent a letter stating that they would be taking disciplinary action against him for violations of the Discipline Code.  The district found him guilty and imposed a 10-day suspension, placed him in an Alternative Education Program (traditionally for students who have behavior/attendance problems), banned him from extra-curricular activities, and refused to allow him to attend graduation.  He was also informed that the District was considering expulsion.  (none of the authors of the other "parody" profiles were discovered or punished)

PROCEDURE

Justin's parents sued the School District claiming the district (1) violated of Justin's First Amendment right to free speech, (2) maintained unconstitutionally broad policies, and (3) violated the parents' Fourteenth Amendment rights to "raise, nurture, discipline, and educate" their child.  The U.S. District Court for the Western District of Pennsylvania granted summary judgement in favor of Layshock on the First Amendment claim and in favor of the School District on the remaining claims.  Both parties appealed their loses.  A unanimous panel of the U.S Court of Appeals for the Third Circuit affirmed the district court.  This time the School District appealed for en banc review, but the family did not.  Therefore, the en banc panel reviews only the issue of the first amendment.

ISSUE
Can the School District punish a student for non-disruptive speech made outside of school via the Internet?

HOLDING
No, speech, which does not have a disruptive effect, made outside of school via the Internet cannot be reached for punishment by the School District.

RATIONALE
The court's analysis began with Tinker, where the Supreme Court ruled that Constitutional Protections do not end at the "schoolhouse gate."  The court went on to Fraser, where the SC upheld the suspension of a student who made an offensive speech in school but distinguished Cohen, where an adult man in a court house was convicted of disorderly conduct for wearing an offensive jacket.  The court interpreted these cases to mean that speech can be curtailed within the "schoolhouse," and further supported that analysis with Kuhlemeier, where the court upheld the deletion of student article's on abortion from a school-sponsored newspaper.  The court also used Morse, where the Surpeme Court upheld the removal of a banner stating "Bong Hit for Jesus"on the grounds that schools had an interest in prohibiting student drug use.

Next, the court addressed the issue of whether off-campus speech might be reached under the Tinker line of cases addressed above.  As a general matter the court determined that they may not, and rested their analysis on Thomas v. Board, where a satirical student newspaper was created with occasional use of campus resources, but distributed entirely off campus.  The Second Circuit ruled that the school could not reach this speech.

Finally, the court addressed the issue of whether off-campus speech might be reached when it is accessible on-campus (such as Internet speech).  The court recognized that there were instances where the answer would be yes, but that they were limited to instances where an individual had caused a "disruption" on campus.  The examples used by the court were instances where a student had made a threat against a teacher or administrator.  In J.S. v. Bethlehem the court upheld the discipline of a student who made a website threatening his teacher, which caused the teacher to take medical leave.  In Wisniewski v. Board, the court upheld the discipline of a student who created an image of his teacher being shot and the words "Kill Mr. WanderMolen" underneath it.  In Doninger v. Niehoff, the court upheld the discipline of a student who called administrators "douchebags" on her blog and encouraged other students to call the office and "piss [them] off more."

The Court determined that none of the factors present in any of the aforementioned cases were present in the Layshock Case, and therefore, the principal and school board could not reach out and punish the student for his online speech.

CONCURRENCE
Two judges wrote separately to reiterate that they believed that Tinker could be applied outside of the "schoolhouse gate."  They recognized that the opinion of the court had not foreclosed this possibility, but wanted to make sure that it was restated for emphasis.

MY THOUGHTS
(1) The conduct WAS disruptive
So, wait a minute.  It sounds like the Court here is saying that "potentially disruptive"only applies to cases where a student makes a threat of physical harm.  Look at the facts again.  The internet profiles had the effect of causing classes to be canceled and curtailing the internet/computer use of other students.  That strikes me as a disruption!  Not to mention the time and energy the administration put into dealing with this issue, as well as the disruptive effects on the principal himself, who was clearly upset by this "speech."  To say this was passive and non-disruptive is disingenuous.  I'm not sure I think this fact should influence the outcome, because I believe strongly in a libertarian view of the first amendment, but lets not pretend that this kid's stupid, immature, and brazenly juvenile actions are not disruptive because they clearly were quite disruptive.

(2) Lesson: If you do something wrong, DON'T admit it
The school district was probably thinking "hey, this kid admitted doing this, so let's make an example of him."  The problem is that punishments like this are not going to dissuade students from doing stupid things in the future.  What it is going to do is ensure that none of them ever come forward, apologize, and learn an important life lesson.  The only sure fire way to be punished in the school district then, is to act like an adult and admit you did something wrong.  That's not the kind of lesson that we should be teaching children.  Sure punish the kid, but throwing the kitchen sink at him is counter-productive.

AFTERWARD

Justin graduated from St. John's University in New York with a BA in Economics this year (2011).  The school has turned much of their ire on the ACLU, who has been supporting Justin.  The Principal in question is no longer at Hickory, and the co-principal, who justin met with prior to being disciplined, has be promoted to that position.

Godspeed Justin, and congrats on having your name on a major First Amendment decision!

Common Sense