Featured Guest Blogger Witold J. Walczak

Two Cases Before the Third Circuit Raise the Question: Just How Far Can Public Schools go in Policing “off-campus” Speech?

As we react to the (merciful) end to one of the nastiest campaign seasons in memory, no one is suggesting that we should resort to censorship of political candidates. People are rightfully debating whether allowing corporate money is a good thing – a door opened by the Supreme Court in the Citizens United v. F.C.C. case last year – and whether disclosure requirements for donors should be imposed as a check on undue influence, but no one is suggesting that the government pass laws to limit candidates’ speech in order to promote civility and truthfulness, both of which seem in short supply.

Yet in a different context, what public-school students say outside of school, the debate over censorship is robust. At issue is what authority, if any, do public-school officials (the Constitution restrains only government actors so it doesn’t apply to private schools) have to punish students for saying mean and nasty things about teachers and principals when the kids are away from school. Speech on the Internet, especially social networking sites like MySpace and Facebook, are front and center, which means school officials regulating what kids post from home is included in the debate. The issue is growing in importance, as more kids gain access to computers. How the courts eventually answer the question will require balancing the nation’s constitutional commitment to free speech, the role of the Internet, children’s speech rights, parents’ rights to raise their children, and school officials’ need for power to administer safe and effective schools.

Two Pennsylvania cases pending before the United States Court of Appeals for the Third Circuit (the federal appellate court that hears cases from Delaware, New Jersey, Pennsylvania and the Virgin Islands) offer a contrast in approaches and an opportunity to clarify the law in this area. The facts in the two cases are substantially the same.

In Layshock v. Hermitage School District, student Justin Layshock used his grandmother’s computer to post a mock profile of his principal on MySpace, using the principal’s name and picture to pretend it was the principal. The profile said things like the principal was “too drunk to remember” his birthday, was a “big steroid freak” who belonged to “Steroids International,” had smoked a “big blunt” and took “pills,” doesn’t have a “big dick,” is a “big fag” and is “transgender.” Justin’s principal was, naturally, displeased and so after tracking Justin down suspended him for ten days, kicked him out of all interscholastic activities (where he was a reigning champ in foreign languages), removed him from AP classes and stuck him in a class with low-performing and delinquent students. The harshness of Justin’s punishment may reflect the fact that other students put up far more vicious parody websites of the same principal, but he wasn’t able to identify those budding scriveners, so Justin took the full brunt of his anger. The ACLU sued and quickly got Justin back into classes. The case continued for damages and to analyze the important legal issues, with the district court eventually ruling that the school violated Justin’s First Amendment free-speech rights. The school district appealed.

In the other case, J.S. v. Blue Mountain School District, eighth-grade student J.S. used her parents’ computer to post a mock profile of her principal on MySpace, not using his name but including his picture and referring to him as a principal in Alabama. The profile said the principal was a “tight ass” and a “wonderful, hairy expressionless, sex addict, fagass put on this world with a small dick” who spent time with his child who “looks like a gorilla”; who likes “hitting on students and their parents,” and loves “sex of any kind,” being a “dick head,” and his “darling wife who looks like a man.” J.S.’s principal wasn’t any more fond of this profile than was Justin’s principal, so he suspended J.S. for ten days. The trial court upheld the principal’s discipline and the student and her parents appealed.

The cases are quite similar. Both involve mock profiles of principals that are sophomoric, crude and vulgar, were created from a home computer without school resources, and were never physically brought into the school. Both schools claimed that the MySpace postings were “disruptive,” but the court records showed that disruption was minimal, and the lower courts agreed that whatever disruption occurred was not enough to justify punishment by the school. When notified about their respective children’s shenanigans, both sets of parents took stern disciplinary action and both students personally apologized. Despite the similar facts, the results in the appeals courts were starkly different.

On February 4, 2010, two different three-judge panels of the same Court of Appeals reached opposite results. The court in Layshock ruled that the school violated Justin’s First Amendment free-speech rights. The court observed that, “It would be an unseemly and dangerous precedent to allow the state in the guise of school authorities to reach into a child’s home and control his/her actions there to the same extent that they can control that child when he/she participates in school sponsored activities,” and allowing the school to punish Justin “would create just such a precedent.” Conversely, the court in J.S., by a 2-1 vote, upheld the student’s punishment. The majority reasoned that just because the student’s speech “originates from a computer located off campus,” school officials should not be “left powerless to discipline the student.” Ultimately, the Court ruled that school officials have the same power, in and out of school, to regulate student speech “challenging” a school official’s “fitness to hold his position by means of baseless, lewd, vulgar and offensive language.” Petitions filed by the losing parties in the cases prompted the entire Court of Appeals to vacate and reconsider both decisions. Oral argument was held in June and we await the Court’s verdict.

The important and unresolved legal issue in the cases is what legal standard applies to determine when school officials can punish students for off-campus speech. Not surprisingly, the schools claim broad authority to regulate students’ off-campus speech, similar to the power they have over students while they are in school. School officials claim that because the Internet can spread speech so easily, quickly and widely they must be able to control it, especially when it is speech about school officials or it concerns the schools.

Clearly, the law gives school officials broad authority to regulate students’ speech inside the school and during school activities, like interscholastic competitions and field trips. More than forty years ago, the United States Supreme Court upheld the right of students to wear black armbands to school in protest of the Vietnam War. The Court famously proclaimed in Tinker v. Des Moines Independent Community School District that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Despite the lofty student-rights rhetoric, the Court in Tinker nonetheless acknowledged that students’ rights could be curtailed in order to “facilitate education and maintain order” inside the school if school officials could demonstrate that the forbidden expression has or likely will “materially and substantially interfere with the requirements of appropriate discipline in the operation of the school...”

The Supreme Court has in three subsequent cases further whittled away at students’ in-school-speech rights. In Bethel School District. v. Fraser, the Court upheld the school’s punishment of a student who, during an assembly, gave a speech supporting his friend for class officer that was full of sexual innuendo:

I know a man who is firm--he's firm in his pants, he's firm in his shirt, his character is firm--but most ... of all, his belief in you, the students of Bethel, is firm. Jeff Kuhlman is a man who takes his point and pounds it in. If necessary, he’ll take an issue and nail it to the wall. He doesn’t attack things in spurts--he drives hard, pushing and pushing until finally--he succeeds. Jeff is a man who will go to the very end--even the climax, for each and every one of you. So vote for Jeff for A.S.B. vice-president--he’ll never come between you and the best our high school can be.

The Court, after calling the boy “confused,” ruled that the “undoubted freedom to advocate unpopular and controversial views in schools and classrooms must be balanced against the society’s countervailing interest in teaching students the boundaries of socially appropriate behavior.” The Court decided that schools could prohibit lewd, vulgar and sexually offensive speech in a “high school assembly or classroom.”

The Court continued the refrain of expanding school officials’ authority over students’ in-school expression two years later when it upheld a principal’s censorship of articles about abortion and children of divorced parents that were written for a school-sponsored student newspaper. The Court in Hazelwood School District v. Kuhlmeier ruled that “the determination of what manner of speech in the classroom or in school assembly is inappropriate properly rests with the school board.”

Finally, the 2007 decision in Morse v. Frederick was the Supreme Court’s fourth and last examination of students’ speech rights. The decision upheld an Alaska school superintendent’s punishment of a boy who unfurled a banner while students were watched the Olympic torch parade that read, “Bong Hits 4 Jesus.” The Court carved out a special drug exception for student speech, ruling that “schools may take steps to safeguard those entrusted to their care from speech that can reasonably be regarded as encouraging illegal drug use.”

In sum, the lines regulating school officials’ authority over students’ in-school speech are clear. Schools can forbid rude and vulgar expression, along with pro-drug messages. They exercise vast control over any speech that is, or can be perceived as, school-sponsored expression. Otherwise, schools can restrict expression that threatens a “material and substantial disruption” of the school.

But the Court has never squarely addressed the rights of students after they exit the schoolhouse gates, when they are no longer students but minors. All four of the Supreme Court’s forays into student speech rights rested on the premise that the “special characteristics of the school environment” justify a diminution in student speech rights inside the schoolhouse gates. Not only do the special circumstances justifying censorship disappear once kids leave school, but a new player enters the legal calculus – the parents or guardians.

An important part of the argument by the students and parents is that once the child leaves the school the parents regain primary responsibility to direct and control their children’s upbringing, a fundamental constitutional right recognized by the Supreme Court as far back as the 1920's. A pre-Internet-age case from New York involving underground student newspapers (remember those?) summarizes the argument: “the First Amendment forbids public school administrators and teachers from regulating the material to which a child is exposed after he leaves school each afternoon. Parents still have their role to play in bringing up their children, and school officials, in such instances, are not empowered to assume the character of parens patriae.” Giving school officials the authority to punish students for off-campus conduct would, the court reasoned, give school officials “discretion to suspend a student who purchases an issue of National Lampoon … and lends it to a school friend” or to “consign a student to a segregated study hall because he and a classmate watched an X-rated film on his living room cable television.” While school officials may find such behavior distasteful or offensive, it is no longer their call; parents have that right.

The Internet does not and should not change the basic legal calculus. In a 1997 case, Reno v. ACLU, the Supreme Court rejected the argument that government officials should receive greater power to regulate speech on the Internet because it is such an effective communication medium. To the contrary, because the Internet is so effective – it enable anyone to publish widely, not just the wealthy person who can buy a newspaper and printing press – it deserves maximal First Amendment protection. Second, because speech posted on the Internet is accessible anywhere to a person with a computer and modem, school officials would have dominion over their students at all times, even when they are on vacation in Honolulu, Harare, Helsinki or Hilton Head. This would, in the words of the trial judge in Layshock, effectively make principals “censors of the worldwide web.” Lastly, the danger of unsuitable speech reaching students in school is greatly diminished because technology exists to block websites, including MySpace and Facebook, and most schools now deploy such filters.

Allowing school officials the power to regulate students’ off-campus expression impacts not just lewd and crude speech, but, more importantly, empowers schools to impose a political (or religious) orthodoxy. Complaints arrive regularly at the ACLU about school officials who, depending on their personal views, punish or discourage speech that promotes a “gay agenda” or, on the other hand, reflects religiously-motivated homophobic comments. Other expression targeted for censorship includes displays of the Confederate flag, music groups considered too edgy or unpopular at the time, commentary critical of school policies or staff members, support for students who are perceived as wrongly suspended, and anything deemed “controversial.” The latest censorship fad making the rounds in schools involves the “I ♥ boobies” bracelets and T-shirts, which are a popular campaign to promote breast cancer awareness. While restricting such comments in school may be necessary and appropriate to promote an environment conducive to learning by all students – not unlike similar restrictions allowed in the workplace – extending the power outside of schools raises obvious concerns. Schools can model behavior and suggest socially appropriate views, but they cannot enforce political and religious viewpoints or coerce anyone into believing them, and especially not after they’ve exited through the schoolhouse gates.

Yet, the schools in J.S. and Layshock, joined by the Pennsylvania School Boards Association, seemingly seek to assume precisely such powers. The PSBA’s friend-of-the-court brief claims the need for such far-reaching authority to “impart upon students lessons of civilized behavior” and “prepare students for life after graduation,” including in military and law-enforcement service. But the future that PSBA seeks to prepare students for is one in which they unquestioningly accept government censorship and restrictions on their constitutional rights. Instead of recognizing school districts’ obligation to teach students the importance of exercising their free-speech rights, they focus on schools’ need to prepare students to submit to restrictive environments, such as the military and police. While preparing students for life after graduation is certainly within school districts’ authority, giving school officials power to limit students’ rights consonant with military service, and especially to do so outside the schoolhouse, is inimical to the traditions of a free society.

Finally, schools claim that without censorial power over students off campus they cannot maintain discipline. They simply must be able to punish speech that is rude or, in their view, offensive and inappropriate, lest other students lose all respect for them and all hell will break loose. The best rejoinder is from a federal judge who rejected the suspension of a student who was sitting in a car and gave his principal the middle finger: “The Court cannot do these sixty-two mature and responsible professionals (the teachers) the disservice of believing that collectively their professional integrity, personal mental resolve, and individual character are going to dissolve, willy-nilly, in the face of the digital posturing of this splenetic, bad-mannered little boy. ”

The answer to dealing with students’ ill-tempered or controversial speech while they are off campus is found in Layshock and J.S. Once principals identified the offending students they notified the parents, who took corrective action consistent with their view on how best to raise their children. Both children apologized to the objects of their “affection.” That should have been the end of it. Nothing in the Constitution prevents principals from discussing with the students how hurtful the offensive speech was to them personally and to their families, from letting mom and dad know what their children are writing on the Internet, or in more serious cases involving death threats and bomb scares from notifying child-protection agencies and police. In 99% of the cases those remedies will be both a teaching moment result in changed behavior. But allowing principals to go further and use their authority as school officials to punish students for how they express themselves at home and in the community usurps the parents’ rightful role, invades students’ free-speech rights, and gives government officials the power to impose political or religious orthodoxy. When the next generation decides to enter elective office and make commercials, they won’t know how to think for themselves, and who knows whether truthfulness and civility will be the orthodoxy then.