Now comes news out of the 3rd Circuit Court of Appeals that may signal a sea change in the way off-campus behavior relates to school discipline.
The case, Layshock v. Hermitage School District, is going to be heard en banc before a panel of 13 judges in June. More important, however, are the actions the court took in preparation for the hearing. Wired's David Kravets has the summary:
One decision the appellate court set aside Friday (.pdf) concerned a senior and honors student from Hermitage School District. In 2005, the Pennsylvania high school student was suspended 10 days after he created a mock MySpace profile of his principal.
The profile said the principal took drugs and kept beer at his desk. A federal judge overturned the suspension, ruling last year the fake profile was not created at school and did not create a “substantial disruption” at school. On appeal, a three-judge panel of the 3rd Circuit agreed, saying “the reach of school authorities is not without limits” (.pdf).
The other case decided the same day by a different three-judge panel from the same circuit went against a 14-year-old Pennsylvania junior high student. She mocked her principal with a fake MySpace profile. The 2007 profile insinuated the principal was a sex addict and pedophile. Without comment, the court is also vacating that ruling (.pdf).
The student was suspended for 10 days. Her parents sued, citing the child’s First Amendment rights. “We decline to say that simply because the disruption to the learning environment originates from a computer located off campus, the school should be left powerless to discipline the student” (.pdf), the three-judge circuit panel wrote.
In setting aside these decisions, the court is signaling that it may blaze a new, more comprehensive and cohesive trail as regards student free speech rights. As more and more students have begun to spend most of their lives online, the clash between their on-campus and off-campus behavior has become increasingly apparent. Traditionally, school staff have only had control over what the students do while at school. Lately, however, we've begun to see that actions taken off school grounds can have repercussions back at school. What's an administrator to do?
Since 1969, the standard has been set by Tinker, a school case involving students wearing black armbands to protest the Vietnam War. In that case, the court held:
If a regulation were adopted by school officials forbidding discussion of the Vietnam conflict, or the expression by any student of opposition to it anywhere on school property except as part of a prescribed classroom exercise, it would be obvious that the regulation would violate the constitutional rights of students, at least if it could not be justified by a showing that the students' activities would materially and substantially disrupt the work and discipline of the school.
Thus the "material and substantial disruption" test was born. Courts have been all over the place on how off-campus behavior such as that in the cases described above — or in the case of our own Taylor Cummings — relates to this standard. Attorneys possibly readying a lawsuit on behalf of Mr. Cummings are no doubt thinking long and hard about this line of cases (or they should be). One thing's for sure, though. The 3rd Circuit's decision in the Layshock case is headed, almost without a doubt, to the Supreme Court.
Students have long had restricted free speech, freedom from search, and free association rights. In the presence of a crumbling wall between school life and home life, the question for the Court will be what balance to strike between the duty of teachers and administrators to create a safe, reasonably disciplined, non-disruptive environment and the First Amendment free speech rights of their students. After all, as was noted by the Tinker Court:
It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.