High court fails to act in off-campus speech cases

Brian Bowling
| Wednesday, Jan. 18, 2012

The Supreme Court on Tuesday declined to rule on whether school districts may discipline students who use the Internet to attack school officials or classmates even when the students are off-campus.

The decision upholds rulings in two Pennsylvania cases -- including one involving a then-high school senior from Mercer County -- that the reach of school districts does not extend to students' homes in such cases. But it also lets stand a West Virginia ruling that a district could discipline a student for setting up a "hate site" claiming a classmate had herpes.

Francisco M. Negrón Jr., general counsel for the National School Boards Association, said it's time for the court to clarify both a school district's responsibilities and its authority when it comes to students posting messages on the Internet.

"I think that's what the court is going to have to grapple with eventually," he said.

Vic Walczak, state legal director for the ACLU, said the rulings in the Pennsylvania cases are "big wins for student free-speech rights" because they make clear that school officials don't have the same authority outside school that they do inside school.

"When students leave the school, they are no longer students," Walczak said. "They are minors -- subject to the care and control of their parents."

The American Civil Liberties Union represented both Pennsylvania students.

Justin Layshock was a 17-year-old senior at Hickory High School in Mercer County in 2005 when he created a MySpace profile ridiculing his principal's weight. The district moved Layshock from the gifted student program to one for students with behavioral problems, banned him from extracurricular activities and prohibited him from attending graduation.

Layshock filed a federal lawsuit, and although the district paid $10,000 to settle, it appealed U.S. District Judge Terrence McVerry's 2007 ruling that it violated Layshock's First Amendment rights.

The 3rd U.S. Circuit Court of Appeals in June upheld McVerry's ruling. The Supreme Court's decision allows the ACLU to seek attorney's fees.

Layshock, 23, couldn't be reached, and Walczak said he wasn't granting interviews. Layshock graduated from St. John's University in New York City last year with a bachelor's degree in economics. Walczak said he's working in Western Pennsylvania in the insurance industry.

The other Pennsylvania case involved a Schuylkill County student who used her middle school principal's photo in a MySpace profile for a fictitious Alabama school principal who was described as a pedophile and sex addict. A Philadelphia federal judge upheld the Blue Mountain School District's disciplining of the student, but the 3rd Circuit overturned that ruling on the same free-speech grounds it used in the Layshock ruling.

"Though disturbing, the record indicates that the profile was so outrageous that no one took its content seriously," a 3rd Circuit majority wrote last year.

In the West Virginia case, the 4th Circuit Court of Appeals in Richmond unanimously refused to reinstate Kara Kowalski's lawsuit against school officials in Berkeley County. She claimed her five-day suspension from Musselman High School in 2005 violated her free-speech and due-process rights.

A new statewide anti-bullying policy that goes into effect on July 1 extends rules about student conduct beyond the school yard, holding students accountable for "vulgar or offensive speech" online if it disrupts school.

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