I’ve been spending a lot of time lately focusing on privacy issues at schools. I find these issues fascinating, and I have been working on them in the trenches, as I created a company last year to provide tools and resources to schools to help them better address privacy problems and to develop a comprehensive privacy program (or enhance their existing privacy program). The company is called TeachPrivacy. If you’re a school official (K-12, higher ed), a teacher/professor, or a concerned parent, please contact me if you’re interested in my project.
My immersion in this project is one of the reasons I haven’t been blogging as frequently of late. But today, there was a great convergence between blogging and my company, and I worked up a lengthy analysis of two new federal appellate cases involving the First Amendment and off-campus speech. The issue has important ramifications for how public schools deal with cyberbullying and other harmful speech online.
The U.S. Court of Appeals for the Third Circuit just issued two important decisions regarding a public school’s power to discipline students for off-campus speech. Both cases were previously decided by Third Circuit panels (three judges from the court). The Third Circuit, acting en banc (the full court) vacated these decisions, reheard the cases, and has now issued new opinions in both.
Layshock v. Hermitage School District
On a computer outside school grounds, a high school student (Justin Layshock) made a fake MySpace profile in his principal’s name. Using a photo of the principal, the student impersonated the principal and answered a series of questions. He wrote:
Birthday: too drunk to remember
Are you a health freak: big steroid freak
In the past month have you smoked: big blunt3
In the past month have you been on pills: big pills
In the past month have you gone Skinny Dipping: big lake, not big dick
In the past month have you Stolen Anything: big keg . . . .
Later on, at school, the student used a computer to access the profile and he showed it to other students. Some students were looking at the profile in a computer lab class and giggling. School officials eventually limited computer use for a period of 5 days and cancelled computer programming classes.
The student later admitted to writing the profile and apologized to the principal. Later on, the district punished the student with a 10-day suspension, banned him from extracurricular activities, and did not allow him to participate in graduation ceremonies. The student challenged the discipline as a violation of his First Amendment right to free speech. In Layshock v. Hermitage School District (3rd Cir. June 13, 2011) (en banc), the court sided with the student.
The prevailing standard for when schools can impose discipline for off-campus speech was developed from the U.S. Supreme Court’s decision Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969). When off-campus speech causes a material and substantial disruption of the school environment, the school can impose discipline. Otherwise, off-campus speech would receive full First Amendment free speech protections (unless it were a threat). This is known as the “substantial disruption” standard.
In Layshock, the court noted that the school district was not claiming there was a “substantial disruption.” Instead, the school wanted the court to recognize that there was a “sufficient nexus” between the profile and the school to allow the school to regulate it. Layshock took a picture of the principal from the school’s website, the speech was “aimed at the School District community and the Principal and was accessed by Justin [Layshock].” The court held: