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.

WORLDWIDE FORUM

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.”

Comments

1.

free speech advocate that hate libel
Jun 24, 2009 7:10 AM CST

This is confusing.  What is the actual objection here.  (maybe I should look up the case)
Here’w what the article says:

. . 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.

OK so it’s clear that there is a discipline code.  Let us assume that the discipline code is constitutional.
Easy one first. -  obscene language can only apply to school grounds and school funtions, right?
Next easy one, misappropriation of school picture.  Not as easy - where is the picture published?  Who has rights?  Can the student use this picture in a “news” report or journal?
This is probably not a violation of the code, although the photographer may have a claim, but what are the damages? 
Then the hard part.  What is harrassment of a school official?  Certainly that cannot be restricted to school grounds.  (Remember, we are assuming the code is constitutional”.
If a student ran into the principal at the A&P and started taunting and harrassing him, this probably would fit into the code’s punishable offenses.
For that matter, some of this could be criminal.  The principal might make out a case for assualt based upon fear of repercussions etc.
Why is does publishing on the internet avoid harrassment under the school code?
There is a limit to what anyone can say on the internet about a person.
First, of course, there is a question of libel.  Damage to reputation based upon untruths which should have been known or were known to the person publishing them?  Accusiation of moral turpitude?  Is the principal a public figure? 

I hate censorship, especially under the guise of providing security in educational environments.

This one is not so clear to me.  The kid is not protesting the war in Iraq.  He is not objecting to the schools policy ot this or that.

Not certain about this and would like to hear anyone who has time to waste like me (NOT)‘s thoughts.

Flag this comment

2.

Friday reader
Jun 24, 2009 8:28 AM CST

I’m a very left-brained lawyer, but this article hits me hard in the right brain.  Of course I understand that this is about freedom of speech, but I can’t help seeing it as a misguided attempt to get the Federal court system to vindicate someone’s bad treatment of another human being.  Is it okay for a bully to taunt his victim off of school grounds, because he has the first amendment right to say mean things?  Will we be seeing that case in Federal court too?

Flag this comment

3.

Fred
Jun 24, 2009 9:28 AM CST

“Bully”?  “Taunting his victim”? 

Sheesh.  Who’s being the bully and who’s the victim?  Seems that the principal, like so many school administrators I’ve met and dealt with over the years, doesn’t like his little zone of authority being challenged in any way.  Must stifle any spark of creativity or vitality.  Cannot have students being “disrespectful” - ever. 

The discipline codes are designed to regulate student behavior IN SCHOOL.  I.e., can’t have a student cursing out a teacher or calling him or her names in the school hallways.  The administrators have a legitimate need to maintain order in the school.

But a kid goofing around like that?  Feh.  It’s nothing.  From the description in the article, it sounds like the MySpace page did not make any threatening remarks - it sounds like it was just scathing parody. 

Just like Larry Flynt did of Jerry Fallwell in the famous Supreme Court case that Flynt won on First Amendment grounds.

Flag this comment

4.

KCB
Jun 24, 2009 9:45 AM CST

I practice mostly in juvenile courts and there are two things that strike me after reading this article.
1. There are different levels of bullying, and it appears to me that it would not be hard to set a lstandard that if bullying is threatening or possibly endangering another student, that kind of language could be exempt from these free speech rights, due to their harrassing nature.
2. A newspaper can just as easily be carried onto school property as a webpage is accessed from school property.  Does this mean that a student could be disciplined for what they write in an editorial to their local newspaper?  I daresay people would be much more offended at that concept, but I believe the analogy is applicable.  These school are overstepping their boundaries, in my opinion.

Flag this comment

5.

aka Gregor Samsa
Jun 24, 2009 10:02 AM CST

I confess I co-published an underground newspaper decades ago in high school.  The content was mainly political.  We even had a syndicate with other similar papers in neighboring high schools.  And, yes, there were occasional parodies of teachers and administrators.

The content of the speech described in the article, however, goes beyond the normal bounds of parody.  School administrators and teachers normally have morals provisions in their contracts.  Publishing a fake Facebook entry that portrays the school administrator to be morally depraved in my book, now and decades ago when I was a high school student, goes beyond the bounds of legitimate parody and becomes harassment.  The relationship between school administrator and student extends beyond the school building and beyond the school grounds.  That this publication took place on the internet makes it a broader publication broadening the harassment, calling the moral character of the school administrator into question in the general community.  Certainly this is libelous.  And, if there is a disciplinary code prohibiting harassment, I would think that this conduct would violate it.

Flag this comment

6.

bobo
Jun 24, 2009 12:24 PM CST

The simple facts are that schools are the government, that students are required to attend, and children are very impressionable.  As a result, schools should be give very little latitude in these matters.

Flag this comment

7.

my56thchoice
Jun 24, 2009 11:18 PM CST

Schools should only: (1) educate; (2) keep school safe and free from disruption; and (3) provide extra-caricular activities that accord with community standards and duly approved budgets.  Schools should neither take on nor be permitted to assume other additional functions. 

Schools may and should refer an appropriate case to police or courts of law but should not be permitted to act as if they were police or courts of law.

While schools are by natute political entities and are subject to a political process, schools should not be treated as yet another branch of government. 

It is the nature of successful politicians whether they are executives, legislators, jurists or administrators, to extend their reach and authority into any and every area that they can.  Therefor any exercise of authority that is at all novel should be legally suspect.  Areas of already established authoriity should be strictly construed, especially when it comes to speech.

Governments and schools each have their own particular functions.  While government has the right and duty to see that schools obey the law, government is not school.  While schools have and should have authority to prevent anarchy in school, they are not and should not be permitted to act as if they were yet another branch of government.

Just as permitting the former boundaries between inter alia, the banking, securities and insurance industries, led to disasterous economic consequences, the blurring of bounderies between school and government threatens free speech.

It really should not matter whether or not a school believes that speech in a given instance is appropriate, unless the exercise of speech in question is civily or criminally actionable.  Any exercise of speech that threatens reasonable order or safety in school probably is legally actionable.  If it isn’t then the proper remedy is to propose legislation, not to act by fiat.

A school administrator should only have four lawful responses to allegedly offending out of school behavior, any or all of which should be available to him or her.  The administrator can call the police, sue, ask for additional legislation, or speak out against the conduct complained of.

Disciplinary actions by schools should be reserved for: (1) failure to meet academic standards (e.g. inadequate scholarship or cheating); or (2) failure to abide by legitimate security rules implimented by schools.  School disciplinary action should never be permitted in any instance where the speech complained of is lawful.

Flag this comment

8.

teacher
Jul 8, 2009 1:53 PM CST

The thing that people often forget to consider is that schools try to deal with these issues “in house” because we are dealing with children.  Going to the police or filing a lawsuit would be considered overly harsh, and the community would ask why things weren’t handled with more discretion (they are just children after all!)  One of the large problems that schools are facing now (which isn’t mentioned in the article) is how students are creating these postings about other students.  The school steps in to protect these students, but the only thing we can do is call the parents and hope that they will dismantle the website because they find it to be foul as well.  I don’t know what will happen in the case where the parents decide to allow the bullying to continue because of their own student’s rights.  What is the school to do then?

Flag this comment

9.

Educator
Jul 12, 2009 1:13 PM CST

“Sheesh.  Who’s being the bully and who’s the victim?  Seems that the principal, like so many school administrators I’ve met and dealt with over the years, doesn’t like his little zone of authority being challenged in any way.  Must stifle any spark of creativity or vitality.  Cannot have students being “disrespectful” - ever.”

The quoted post from above emphasizes the problem that plaques modern education.  One bad experience taints the entire pool. 

I second the comments posted by “teacher.”  For other educated professionals out there - your time will come.  We as teachers are the “front line” in dealing with issues of slander, libel and inappropriate, vulgar behavior assisted with the use of technology.  Many times it is brushed under the rug in the name of “childish” behavior.  For every case that reaches the courts, I guarantee there are dozens you do not hear about. 

I recently heard a segment on the “Today” show with Doctors expressing their outrage who are being bashed online.  Where do you think this started? 

Disrespect is disrespect.  Whether you wrap it up as free speech or childish behavior, it will grow and fester.  If we as a society cannot find an acceptable solution to protect EVERYONE’S rights then this will become more of an intolerable society.

Flag this comment

10.

cdtaylor
Jul 12, 2009 4:17 PM CST

I am a teacher . . . and work in a high school library, teach journalism, AP literature, etc. 
The schools are so far over their boundaries in these cases.  What rights do we need to protect? The right to not be offended?  I don’t recall that being listed in the Bill of Rights.  However, freedom to think what I want to think and say, pretty much what I want to say IS listed.  That right applies to high school students too. 

What kind of world will it be if we stop all the thoughts that aren’t “just like mine”?  Have any of you read Fahrenheit 451?  If we water down all our ideas so they won’t offend anyone, we certainly aren’t saying anything that matters.

On campus speech is speech which is produced, sponsored, required, graded and generated ON CAMPUS.  Off campus is not.  It is time to reclaim our personal freedoms.

I have the right to say what I think and so do you, regardless of whether I agree with your point of view.

Flag this comment

11.

kidslibrarian
Jul 13, 2009 4:40 AM CST

Hi “free speech advocate.”  I believe the issue here is not whether or not this represents harrassment or libel, etc., but whether or not the school is allowed to address it via the school disciplinary process when it was not done in school.

The author’s point, I believe, is that if it is harrassment or libel, etc., it can be handled by the criminal system, which is what is supposed to handle crimes that occur outside of school.

As an educator myself, I’d have to add this:  we allow children to be criminalized for behavior in school already.  Police officers press charges for in-school behaviior on top of school-sanctioned disciplinary action.  I think we should let the police and justice system do their jobs to handle criminal behavior that occurs outside of school.

Flag this comment

12.

Fran Lengua
Jul 28, 2009 8:33 PM CST

Freedom of speech rights….where do we draw the line between one’s freedom and the fact that this behavior is unethical.  Legal authorities need to address these issues.

Flag this comment

Add a Comment

We welcome your comments, but please adhere to our comment policy.

Commenting has expired on this post.