On June 13, 2011, the United States Court of Appeals Third Circuit issued two en banc opinions concerning school districts’ ability to punish students who created inappropriate Facebook or MySpace profiles parodying teachers. The court held that the school districts could not punish the students because the profiles were created off school property and the First Amendment protects speech that is made outside the school. Further, the profiles did not create a substantial disruption of school activities and, therefore, did not become on-campus speech.
The Third Circuit heard two similar cases on this issue: Snyder v. Blue Mountain School District, --- F.3d ---- (2011) and Layshock v. Hermitage School District, --- F.3d ---- (2011). In Snyder, an eighth grade student created a fake MySpace profile of the Principal that contained inappropriate humor, crude content, and vulgar language at her home computer. The profile was set to “private” and MySpace was blocked by the School District’s computer so no students were able to view the profile from school. The Principal learned of this profile and disciplined the student under the School District’s Disciplinary Code. The student pursued legal action.
In Layshock, a high school senior created a parody profile of his Principal on MySpace. The creation of the parody took place off campus on home computers and during non-school hours. This profile was accessible by the general public and students were able to view the profile at school. The student accessed the profile during school hours. The School District disciplined the student for violating the School District’s Discipline Code. The student pursued legal action. The Supreme Court has stated that public school students are entitled to free speech as long as it does not “materially and substantially disrupt the work and discipline of the school. Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969). The Supreme Court has carved out exceptions to this test. For an informative reading on the evolution of First Amendment rights in public schools please read Layshock or Snyder.
Using the guidance provided by the Supreme Court, the Third Circuit held that the students’ speech did not cause a substantial disruption in the school. Nor did the creation of the profiles forecast a substantial disruption which would allow a school district to punish a student. Further, just because the students’ speech was lewd, vulgar, and offensive and had an effect on the school and the educational mission of the District (one of the exceptions to the Tinker rule), the fact that it was off-campus speech meant it fell within the free speech umbrella. Even if it reached the school, it was not enough to qualify under the Tinker substantial disruption exception.
The cases were not decided unanimously. A strong dissent in Snyder shows that this area of the law is not completely resolved and may see the United States Supreme Court in the future. The law is continually in flux regarding technology, and school districts must stay abreast of the most recent legal decisions.
Read the rest of our Fall 2011 Newsletter HERE.