Schools ask high court review of 2 student online-speech cases

Thursday, November 3, 2011

School officials in Pennsylvania have petitioned the U.S. Supreme Court to review a pair of 3rd U.S. Circuit Court of Appeals decisions saying schools violated the First Amendment rights of students by punishing them for making offensive comments about their principals on MySpace.

The petition in Blue Mountain School District v. Snyder (11-502) asks the high court to review the full-panel decisions in two cases — Blue Mountain and the related case of Hermitage School District v. Layshock. Supreme Court Rule 12.4 allows parties with similar issues to combine their actions into a single petition.

In the Blue Mountain case, two middle school girls created a fake profile of their principal and made all sorts of vulgar comments about him.  On June 13 the 3rd Circuit ruled 8-6 in the students’ favor, finding that the profile was so outrageous that no one could have taken it seriously and that school officials did not show a reasonable forecast of substantial disruption. That’s the leading test for permissible student speech in the Court’s 1969 decision Tinker v. Des Moines Independent Community School District.

In the Hermitage case, a high school student created a fake profile of his principal on his grandmother’s computer.  In that decision, also on June 13, the 3rd Circuit ruled unanimously in favor of the student, Justin Layshock.  The court found little evidence of disruption.

In their petition for Supreme Court consideration, the school officials ask the justices to review the decisions because of a serious divide in the lower courts over how to evaluate student online speech cases.  These divisions include:

  • Whether Tinker applies to speech that originates off-campus.
  • How the Tinker “substantial disruption” standard actually applies in these cases.

The school officials also contend that they are caught in a bind given the legal uncertainty over how far their jurisdiction extends.

“On the one hand, [school officials] might incur legal liability under state and federal laws if they fail to prevent online bullying or harassment based on sex, race, ethnicity, or disability,” the petition reads. “On the other hand, if they take such action, they face potential legal liability … if they are ultimately deemed to have transgressed the now murky line that marks out protected student speech.”

Earlier this week the high court refused to review a student online-speech case out of the 2nd Circuit, Doninger v. Niehoff. Another student online speech case out of the 4th circuit — Kowalski v. Berkeley County Schools — is pending before the Supreme Court.

The sheer number of these cases percolating in the lower courts may make the Blue Mountain petition appealing enough for the Court to address the contours of student online speech and explain just how far school official jurisdiction extends.

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