Lower court takes narrow view of ‘Bong Hits’ ruling

Wednesday, July 18, 2007

Though we might never divine the meaning of “Bong Hits 4 Jesus,” efforts already have begun to interpret the recent U.S. Supreme Court decision upholding the right of school officials to punish that instance of nonsensical student speech. If the federal court ruling in Layshock v. Hermitage School District is any indication, that decision might threaten student rights less than some initially feared.

Layshock is the latest (but surely not the last) case to ask whether school administrators may punish a student for what the student publishes on MySpace.com. At the same time the parties in Layshock were litigating before federal district judge Terrence McVerry, the parties in Morse v. Frederick were arguing before the Supreme Court about whether the First Amendment protects a student who displayed a “Bong Hits 4 Jesus” banner. Wisely, McVerry delayed his decision until after the high court had ruled in Morse. Unfortunately for McVerry, however, he then had to make sense of the fractured 5-4 decision that upheld the administrators’ right to punish the student.

In Layshock, Justin Layshock, a Hermitage, Pa., high school senior, created a profile ridiculing his principal on MySpace. Layshock’s profile was one of four of the principal on the Web site and the least offensive. As word of the profiles spread, school officials tried to block school computers’ access to MySpace and to learn who created the other three profiles. The officials failed in these efforts but ultimately persuaded MySpace to disable the profiles.

During the week before the profiles were disabled, a few students accessed them from school computers and shared them with other students. Officials therefore canceled computer programming classes for five days and otherwise limited student computer use. As a result, several teachers revised lesson plans to convert in-class assignments requiring Internet access to homework and changed Internet research lessons to class discussions. Those discussions did not address the profiles, however, and teachers, following administrators’ directions, sent about 20 students to the office for mentioning the profiles during class.

After Layshock admitted creating his profile, administrators suspended him for 10 days, placed him in an alternative curriculum, banned him from participating in and attending extracurricular events and prohibited him from participating in the graduation ceremony. His parents then sued, claiming, among other things, that the punishments violated their son’s First Amendment rights.

McVerry agreed. In ruling for the parents on most aspects of their constitutional claim, McVerry refused to read the decision in Morse as expanding the deference due school officials. Rather, he read Morse narrowly, noting that one of the few things the splintered justices agreed upon was that the banner was school-related speech. Because Layshock did not create his profile at school, McVerry held Morse was “not controlling” of the case.

McVerry, however, did not disregard the various opinions in Morse. First, he noted the Court in Morse rejected the notion that its 1986 decision in Bethel School District No. 403 v. Fraser allowed school administrators to regulate all speech they found offensive. Second, he emphasized the Court in Morse defined “school-related speech” to include only speech that occurred during school hours at a sanctioned school event and that was directed at most of the student body. Third, citing Justice Samuel Alito’s concurrence, McVerry said school officials are not entitled to “unfettered latitude” in determining whether student speech is disruptive.

By reading Morse narrowly, McVerry was able to fit it within the “basic framework” of the First Amendment jurisprudence governing student speech. Much of that framework, he said, had been constructed by the Supreme Court in 1969 in Tinker v. Des Moines Independent Community School District, in which the Court held students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate” and that their speech accordingly could be regulated only if it substantially disrupted school operations.

Other pieces of that framework, McVerry said, were constructed in Fraser and two years later in Hazelwood School District v. Kuhlmeier. In Fraser, the Court created one exception to Tinker: The protections of the “substantial disruption” test do not apply to vulgar speech on school property. In Hazelwood, the Court crafted another: Administrators may censor school-sponsored speech even if the speech is not disruptive. Acknowledging that Morse could be read to create a third exception, McVerry did not reach that issue, saying any exception in Morse did not apply to the non-school speech present on MySpace.

Citing Alito again — this time in Saxe v. State College Area School District, an opinion Alito authored in 2001 while sitting on the 3rd U.S. Circuit Court of Appeals — McVerry set a high bar for administrators attempting to show a substantial disruption. According to McVerry, officials must have a “well-founded expectation of disruption” that is both directly linked to the student speech and is independent of teachers’ or administrators’ reaction to it. Evidence of substantial disruption, McVerry held, includes violence, widespread canceling of classes, boisterous and hostile disorder that prevents teachers from controlling their classes and disciplinary action against many students. The disruptions that did occur after the profile appeared, McVerry found, were not substantial enough to get around Tinker. On that basis McVerry ruled the school district violated the student’s First Amendment rights.

McVerry’s decision in Layshock is a reasonable and fair reading of Morse and the cases that preceded it. If other judges follow McVerry’s approach, fears that Morse will expand to swallow students’ First Amendment rights will prove to be unfounded.