A Need for Clarity: The Murky Field of Off-campus Student Speech and School Regulation

Jamelle Nelson

On January 17, 2012, the Supreme Court punted on an opportunity to clarify an area of growing perplexity and discord within First Amendment jurisprudence. The issue: whether school officials can regulate offensive speech made off-campus by students on the Internet. This issue has greatly troubled school administrators, students, parents, and free speech scholars in recent years. Federal appeals courts have split on whether school responses to such speech infringe on students’ constitutionally protected free speech rights. Mr. James Ryan, a free speech scholar and law professor at the University of Virginia said, “I think I’m not the only one scratching my head” at why the Supreme Court did not grant cert.

A trifecta of cases landed before the Supreme Court addressing online student speech made off-campus. In J.S ex rel. Snyder v. Blue Mountain School Dist., an eighth-grade honor roll student created a fake MySpace profile of her principal back in 2007. The profile, which according to her was intended to be a joke, accused the principal of engaging in sex in his office, hitting on parents and students, and described his wife and son negatively. The insulting comments were made by the student on her home computer during the weekend and shared online with her MySpace friends.

In response, the school suspended the girl for ten days, and the principal threatened her with a civil lawsuit and criminal prosecution. Though the girl and her mother apologized to Mr. McGonigle, the principal, he consulted with state police on the feasibility of responding with criminal charges. The police advised Mr. McGonigle that he could bring a harassment charge, but that it would be unlikely to go anywhere. Still, police beckoned the girl and her mother over to the police station and questioned them about the profile. The student and her mother hired a lawyer and sued the school district for violating the student’s First Amendment rights by penalizing her for opinions she related over the Internet during her personal time at home.

Although a federal circuit judge ruled in favor of the school district, the Third Circuit sitting en banc ultimately reversed the decision finding 8-6 that the prank created no “substantial disruption” in school, applying the Tinker standard for regulating student speech. The court found the content of the profile to be so outrageous that no one would take it seriously. In ruling that the speech involved was protected under the First Amendment, the court said, “Neither the Supreme Court nor this court has ever allowed schools to punish students for off-campus speech that is not school-sponsored or at a school-sponsored event and that caused no substantial disruption at school.”

The court went on to aver that to hold the opposite would too greatly expand school districts’ authority over student speech and grant school administrators “dangerously overbroad censorship discretion.”

In a companion case, Layshock ex rel. Layshock v. Hermitage School Dist., the Third Circuit also found in favor of a student who made offensive comments about his principal online. In 2005, Justin Layshock created a fake MySpace profile about his principle Eric Trosch on his grandmother’s home computer. While Mr. Layshock used an actual picture of Mr. Trosch on the fake profile, he completed the survey questions with fake information. The information alluded to the principal engaging in the use of illegal drugs and lewd behavior while describing him as an alcoholic. Similar to the student in the 2007 case, upon his confession to creating the profile Mr. Layshock was suspended for his actions for ten days. His parents filed suit claiming his First Amendment rights were violated for the same reason as the student in the Blue Mountain School District.

In this case, both the federal district court and Third Circuit ruled in favor of the student. In handing down its decision, on the same day as the Blue Mountain case, the Third Circuit found that the student’s use of the school website to obtain the photo which he used in the fake profile was not enough to create a nexus between the school and the profile. The court went on to find that even though the student accessed the profile while at school, that did not mean that he engaged in any profane or lewd speech while at school. Most importantly in the student speech context, the court did not find that Mr. Layshock’s actions created any substantial disruption at the school.

Alone, these two cases could create the impression of a robust understanding of students’ speech rights by the courts; that student speech made off-campus is beyond school regulation. However, the Fourth Circuit came to a different conclusion in a case the Supreme Court also declined to hear on the same day.

In the case of Kowalski v. Berkeley County Schools, a senior at a West Virginia high school was also suspended for ten days and additionally barred from the cheerleading team by her school. The student Kara Kowalski had created an online forum on MySpace in which fellow students wrote malevolent comments about another student at their school. Among other things, the comments suggested that the victimized student had a sexually transmitted disease. After being notified about the page, school officials decided that Ms. Kowalski had created a “hate” website, violating the schools harassment, bullying, and intimidation policy. Ms. Kowalski and her parents filed suit in response claiming that the school had violated her First Amendment right to free speech.

In finding against the student in this case and for the school administrators, the Fourth Circuit concluded that though the speech occurred off-campus, the conduct could potentially cause a substantial disruption at the school. While acknowledging the need for a limit to schools’ abilities to police student speech, the court said, “we need not define that limit here as we are satisfied that nexus of Kowalski’s speech and [the high school’s] pedagogical interests was sufficiently strong to justify the action taken by the school officials.”

These, and other, discordant rulings have left school administrators in a confounded state, not knowing whether they can respond to off-campus student speech made online addressing school officials or students. As the principal in the Blue Mountain case exclaimed, “If it happens again, what do I do?”

These cases rely on the landmark case of Tinker v. Des Moines Independent Community School Dist. in which the Supreme Court created the student speech doctrine back in 1969. In that case, the students had worn black armbands to school in protest to the Vietnam War. After the school passed a rule specifically prohibiting wearing black armbands to school, some students filed suit against the school alleging that the rule violated their free speech rights.

In its ruling, the Supreme Court sided with the students holding that the First Amendment protected their right to express dissatisfaction with the war. The Court said conduct by students that causes a “substantial disruption of or material interference with school activities” do not receive protection under the First Amendment.

In another pertinent ruling to the present issue, the Court ruled that not only are the protections granted to student speech not coextensive with the protections granted to adult speech under the First Amendment, but that schools can also regulate student speech made on campus that is offensively lewd, vulgar, or indecent, even if it might not cause a substantial disruption at the school.

While the seemingly evident circuit split on the issue of regulating off-campus student speech might typically lead the Supreme Court to step in and clarify the area, the response to Blue Mountain’s appeal by Mr. Witold Wolczak, the attorney for the student, might have dissuaded the Court from granting cert. In his brief, Mr. Wolczak argued that the Hermitage appeal did not raise the issue of whether Tinker applies to off-campus student speech and that in the case of Blue Mountain, a Pennsylvania state law provided an independent ground for limiting the school district from disciplining the student’s behavior. The relevant law restrained the district’s authority over students to “such time as they are under the supervision” of their schools.

In respect to the Kowalski case, Mr. Wolczak argued that no circuit split existed in the application of Tinker to off-campus student speech. He distinguished the other two cases from Kowalski by labeling the two former cases as instances of students parodying their principals while labeling the latter case as addressing the issue of “cyber bullying”. He described the cases of parodying as creating “hurt feelings” which he has said is not an issue the Court usually considers as justification for censoring.

Nonetheless individuals on both sides of the debate on off-campus student speech would like the Court to de-mystify this currently murky area of the law. As Francisco Negron, General Counsel of the National School Board Association, said, "As technology blurs the lines between on-campus speech, school districts need clear guidance to be able to effectively address extreme off-campus speech that interferes with a safe and orderly learning environment."

With the recent growth of social networking websites like Facebook, Twitter, and LinkedIn and an increasingly tech-savy student population, problems related to this area of free speech will likely arise and trouble parties until the Court finally addresses the issue.