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Circuit Courts Continue Battle Over Free Speech Rights for Students

School districts in Connecticut looking for guidance on how to handle discipline of students engaging in provocative speech on-line at home have been watching with interest the outcome of two cases in the Third Circuit that seemed to reach conflicting results.  Both cases were re-heard by the Third Circuit Court of Appeals, sitting en banc, which recently ruled in favor of the student in both cases.  So, where does that leave us? 

In J.S. v. Blue Mountain School District, a student was suspended from school for creating a fake MySpace profile of her school principal on her home computer over the weekend that was both vulgar and offensive. The Third Circuit reversed the district court’s ruling, holding that schools in that circuit cannot punish students for “off-campus speech that is not school-sponsored or at a school-sponsored event and that caused no substantial disruption at the school.” The Third Circuit found that “general rumblings, a few minutes of talking in class, and some officials rearranging their schedules to assist” the principal in dealing with the profile did not amount to a substantial disruption in school. Moreover, the Court of Appeals found that the student’s speech could not have reasonably led school officials to forecast substantial disruption in school. Essentially, the Third Circuit held that the school district violated the First Amendment of the Constitution by giving the student a ten-day suspension for her off-campus speech. Some of the facts that seemed to be persuasive to the Third Circuit were 1) the student created the profile as a joke, 2) the student took steps to make the profile private so that access was limited to her and her friends, 3) that although the profile was “vulgar it was so juvenile and nonsensical that no reasonable person would take its content seriously,” and 4) that although the profile included a picture of the principal, it did not identify him by name, school or location. In addition, the school district’s computers blocked access to MySpace, so no student was able to view the profile while at school, and the only printout that was brought to the school was brought in at the request of the principal.

In the other case decided by the Third Circuit, Layshock v. Hermitage School District, another student created a fake MySpace profile of his principal that was again vulgar, lewd and offensive. In this case, while the student used a home computer, he accessed the MySpace profile at school, showed it to classmates and words of the profile “reached most if not all” of the high school student body. The student was suspended for ten days, placed in an alternative education program, banned from all extracurricular activities, and was not allowed to participate in his graduation ceremony. In that case, the Third Circuit held that the school district violated the First Amendment by punishing the student for expressive conduct that occurred outside of the school context, that did not result in a foreseeable and substantial disruption of school.

In both cases, the Third Circuit discussed, but did not endorse, the Second Circuit’s decision Doninger v. Niehoff, 527 F.3d 41 (2d Cir. 2008). As you may recall from previous posts on this blog, the Second Circuit in Doninger held that the student was properly disciplined for her off-campus blog and not permitted to run for class office as the conduct on the blog was unbecoming for a potential class officer, and the blog post created a foreseeable risk of substantial disruption at her school. Doninger was therefore unsuccessful in her attempt to force the school district to allow her to run for class office. 

The Third Circuit distinguished its cases from the Doninger case, finding that the off-campus speech in Layshock and J.S. v. Blue Mountain School District did not disrupt the school environment nor was there any reasonable foreseeable disruption that would have occurred from each student’s off-campus conduct, while in Doninger, the student’s off-campus speech had resulted in a foreseeable and substantial disruption of the school. In addition, the Third Circuit felt that the Doninger court was “careful to explain ‘that it had no occasion to consider whether a different, more serious consequence than disqualification from student office would raise constitutional concerns.’” The Third Circuit emphasized that Layshock’s disciplinary consequences were more serious than Doninger’s disciplinary consequences. It is important to note that in Layshock, the court stated that “in citing Doninger, we do not suggest that we agree with that court’s conclusion that the student’s out of school expressive conduct was not protected by the First Amendment there” and that the court was only citing to Doninger to respond to the school district’s contention that the Doninger case supported the school district’s disciplinary actions.

Recently, the Fourth Circuit weighed in on the discipline of a student for off-campus speech. In Kowalski v. Berkeley County Schools, a student had created a MySpace group which was primarily aimed at harassing another student, and approximately two dozen other students at the school joined the online group. The creator of the page received a 10-day suspension from school and a 90-day “social suspension” which prevented her from participating in extracurricular activities, for violating the school’s bullying policy. Citing Doninger, the Fourth Circuit held that the student’s speech “caused the interference and disruption described in Tinker as being immune from First Amendment protection”, and upheld the school’s discipline of the student.

Schools in Connecticut should be aware of the two Third Circuit decisions but understand that the Doninger case, as a Second Circuit decision, is still controlling authority for districts in Connecticut. The recent Fourth Circuit decision follows the holding in Doninger, giving credence to the Second Circuit’s approach, but is also not binding on the Second Circuit.  The Third Circuit appears to be attempting to narrow the holding by the Second Circuit in Doninger to apply only to restrictions on extra-curricular or co-curricular activities, as opposed to exclusions from school, which have historically been treated differently in legal analysis.  The Supreme Court of the United States may ultimately weigh in on this apparent split amongst the Circuits, if and when these cases are appealed. In addition, school districts should familiarize themselves with the new language and requirements added to Connecticut’s bullying statute, specifically the provisions relating to Cyberbullying, which are included in Substitute Senate Bill 1138, Public Act 11-232 and became effective on July 1, 2011.