The National Pulse
No More Pencils, No More Facebooks
Schools and students battle over out-of-class Internet files
Posted Jul 1, 2009 8:30 PM CST
By Wendy N. Davis
When he was a high school senior, Justin Layshock created a fake profile of Eric Trosch, his school’s principal, on MySpace.
The parody, published in 2005, called Trosch a “steroid freak” who enjoys “chick flicks and porno movies.” It said Trosch liked Playboy but preferred Penthouse and was “too drunk to remember” his birthday, according to a version posted on the Smoking Gun website.
The school was not amused. Authorities of the Hermitage School District, based in western Pennsylvania, said that Layshock, then 17, violated the disciplinary code by engaging in “harassment of a school administrator,” using “obscene, vulgar and profane language” and posting the school-owned picture of Trosch without authorization. Layshock was suspended for 10 days.
He sued the school for allegedly violating his First Amendment rights. In 2007 a federal district court in Pittsburgh ruled in Layshock’s favor. Judge Terrence McVerry said the school had no authority to discipline Layshock for off-campus speech.
“The mere fact that the Internet may be accessed at school does not authorize school officials to become censors of the World Wide Web. Public schools are vital institutions, but their reach is not unlimited,” McVerry wrote in Layshock v. Hermitage School District.
The school appealed and as of this spring the case was pending before the 3rd U.S. Circuit Court of Appeals at Philadelphia, which heard oral arguments in December.
Lawsuits like Layshock’s are playing out all over the country, as students who once might have published underground newspapers or simply sent handwritten notes to friends are now broadcasting their opinions on sites like Facebook and MySpace.
The emergence of these sites has left courts struggling to figure out the limits of students’ First Amendment rights in the digital era, where the Internet allows anyone to become a publisher and instantaneously reach a vast, potentially global audience.
In addition to Layshock’s case, the 3rd Circuit also is considering a student’s appeal in a lawsuit where a federal court based in Scranton sided with school administrators. In that case, J.S. v. Blue Mountain School District, a 14-year-old student from Orwigsburg, Pa., was suspended for parodying her principal on MySpace.
Schools argue that they should have the authority to discipline online speech, regardless of whether students were at home or at school when they made the comments. That’s because even when students post to MySpace from a home computer, those statements are accessible on school grounds by anyone with a computer or smartphone.
“An underground newspaper is likely to have a limited impact because it’s just distributed in the community. But electronic communications go out to the world,” says Sean A. Fields, associate counsel for the Pennsylvania School Boards Association, which filed an amicus brief in Layshock.
But some civil rights advocates disagree. They argue that public schools shouldn’t be using their authority to monitor what students write at home.
“When students misbehave off campus, there are ample remedies in the real world legal system,” says Frank LoMonte, executive director of the Student Press Law Center in Arlington, Va. “If the speech is threatening, there are police for that. If it’s libelous, there are courts for that. And if it’s short of both of those things, there are phone calls to parents.”
He adds, “We would never accept that if a student broke the principal’s window with a baseball on a Saturday, the principal could use his authority to suspend the student from school.”
But Fields says the law will provide “a major impact on the ability of school districts to maintain order and discipline students.” For instance, he says, school authorities wouldn’t be able to step in and stop harassment if they can’t police online speech.
“If you accept the proposition that students can’t be disciplined for something simply because they engage in a communication from their home—even though that communication is directed at the school community and has the capacity to disrupt what’s going on on school grounds—then schools are going to be really limited in dealing with things like bullying.”
Mary-Rose Papandrea, an assistant professor at Boston College Law School who recently authored a law review article about the topic, adds that many students today frequently communicate with their friends online. Allowing schools to discipline students for those messages could curb teens’ ability to chat with each other.
“Students these days communicate on the Internet. That’s what they do. When you allow schools to regulate what students say on the Internet, that poses a great threat to minors’ right to communicate.”
STILL NO BRIGHT LINE
The U.S. Supreme Court hasn’t provided much guidance. The court ruled in 1969 that students have First Amendment rights when a school suspended three students for wearing black armbands to protest the Vietnam War. In that case, Tinker v. Des Moines School District, the court famously said students don’t shed their freedom of speech rights at the schoolhouse gates.
Three Supreme Court decisions since have dealt with students’ First Amendment rights at school, and all favored the school district. Bethel School District v. Fraser (1986) and Hazelwood School District v. Kuhlmeier (1988) expanded school administrators’ ability to curb disruptive speech, while 2007’s Morse v. Frederick dealt with speech that appeared to advocate drug use.
But those rulings dealt with speech on campus or at a school-sanctioned event, not with whether school authorities can regulate off-campus speech. Nor has the Supreme Court said whether students’ Internet posts should be treated as on-campus or off-campus speech.
But in a controversial case brought by Avery Doninger, the 2nd U.S. Circuit Court of Appeals at New York City accepted the argument that schools can discipline students for their Internet posts, even if made at home, because they can disrupt the functioning of the school.
In that case, Doninger, a Burlington, Conn., high school student, wasn’t allowed to run for secretary of her senior class as a sanction for an online post.
She had criticized school officials on her blog in April 2007 for their handling of an annual music festival. “Jamfest is canceled due to d----- bags in central office,” wrote Doninger, who was then secretary of the junior class at Lewis Mills High School.
Doninger, more than most other students in these types of cases, has gained support from the community—probably because her blog post seems to stem from political impulses rather than a simple desire to mock a principal.
Connecticut state Sen. Gary LeBeau recently introduced legislation that would prohibit public schools from disciplining students for online posts, unless the remarks threatened others. “The more I read about it, the more I got angry,” he says of Doninger v. Niehoff. “The school officials overstepped their boundaries.”
Doninger sought an injunction, but a district court and, later, the 2nd Circuit ruled against her. The appellate court ruled that it was foreseeable that the blog could disrupt the school, on the theory that Doninger inaccurately reported that the school had canceled Jamfest when, actually, it was merely contemplating rescheduling it.
“Avery’s conduct posed a substantial risk that [high school] administrators and teachers would be further diverted from their core educational responsibilities by the need to dissipate misguided anger or confusion over Jamfest’s purported cancellation,” the court wrote.
Doninger, who disputes that her post was misleading, continued pressing her case. In January a second district court found that school authorities took action because they found her language offensive, not because of worries about disruption. Still, the court granted summary judgment to the school on the bulk of the claim, on the theory that school officials had qualified immunity to the lawsuit.
“Off-campus speech can become on-campus speech with the click of a mouse,” wrote U.S. District Judge Mark Kravitz in New Haven.
“If courts and legal scholars cannot discern the contours of First Amendment protections for student Internet speech,” Kravitz wrote, “then it is certainly unreasonable to expect school administrators, such as defendants, to predict where the line between on- and off-campus speech will be drawn in this new digital era.”