Can a school district discipline a student who posts lewd or vicious material online about another student or a school employee — or is that posting protected as “off-campus” speech?
That’s a question the National School Boards Association (NSBA), the American Association of School Administrators (AASA), and six other organizations are urging the U.S. Supreme Court to answer following a pair of appellate court decisions in favor of two Pennsylvania students.
In a brief filed recently, NSBA and the other groups say that, in order to further their educational mission, “schools need authority to regulate student speech that originates off campus.”
In one of the cases, J.S. v. Blue Mountain School District, a middle school girl who was upset about being reprimanded for dress code violations posted a fake MySpace profile of her principal that, according to the U.S. Circuit Court of Appeals for the Third Circuit, “contained crude content and vulgar language, ranging from nonsense and juvenile humor to profanity and shameful personal attacks aimed at the principal and his family.” Nonetheless, the court, in an 8-6 decision, ruled in June that the school district had violated the girl’s First Amendment right to free speech when it suspended her for 10 days.
The other case, Layshock v. Hermitage School District, involved a Pennsylvania high school senior who also created a fake MySpace profile mocking his principal. In that case, the Third Circuit ruled unanimously for the student.
NSBA and the other groups argued that the expanding use of social networking and other forms of online communication have led to “a stunning increase in harmful student expression that school administrators are forced to address with no clear guiding jurisprudence.”
“Now is the time for the Supreme Court to resolve the question of whether and to what extent school district have the authority to discipline students for off-campus speech,” said NSBA General Counsel Francisco M. Negrón Jr. “As technology blurs the lines between on-campus and off-campus speech, school districts need clear guidance to be able to effectively address extreme off-campus speech that interferes with a safe and orderly learning environment.”
With more and more communications, as well as classes, conducted online, “grappling with the distinction between off-campus and on-campus speech,” as some courts have done, is arguably “a distinction without a difference,” the brief said.
“Courts that remain committed to the on-campus/ off-campus fiction risk discouraging school boards from using off-campus forums that benefit student learning,” the brief added. “Public school districts have been able to expand educational opportunities for students and to increase communication between school districts and their constituencies with their online presence. But school boards may be less inclined to expand educational opportunities online if their authority does not also expand. Imagine if a court held that a virtual school student who engages in lewd speech during a group online project cannot be disciplined because the conversation did not happen ‘on campus.’”
In addition to AASA, the other groups joining NSBA in the brief include, the American School Counselor Association; Gay, Lesbian, and Straight Education Network; National Association of Elementary School Principals; National Association of Secondary School Principals; Pennsylvania School Boards Association; and the School Social Work Association of America.