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As we have discussed several times on this blog in recent years, there are two cases that addressed issues with off-campus online speech by students that resulted in seemingly conflicting responses by the same court. They potentially have implications for how schools can respond to cyberbullying incidents, so are important to follow. To refresh your memory, Layshock v. Hermitage School District involved Justin Layshock, the 17-year-old Hickory High School senior who in 2005 created a “nonthreatening, non‐obscene parody profile making fun of the school principal” from his grandmother’s home using her computer. The school suspended Layshock for 10 days, which was initially upheld in a 2006 hearing, but later overturned by the judge in the case, saying the school went too far. In February of 2010, a panel of judges from the Third U.S. Circuit Court of Appeals weighed in and agreed. In this case it appeared the school failed to effectively argue that Layshock’s actions caused a substantial disruption at school – the standard that was established in the seminal Supreme Court case Tinker vs. Des Moines (1969). According to Tinker, school administrators can discipline students for off-campus behavior if it can be demonstrated that such behavior resulted in a “substantial and material disruption” of the school environment.

In the other case (Blue Mountain School District v. J.S.), a 14-year-old eighth-grade student from Blue Mountain Middle School also created a MySpace profile of the principal which included, among other things, an accusation that he was a “sex-obsessed pedophile.” This student was also suspended for 10 days for violating the school’s discipline code and for using the schools copyrighted material (the principal’s picture from the school’s web site) without permission. The lower court refused to grant the student a temporary restraining order or preliminary injunction ruling that schools can in fact discipline students for lewd off-campus behavior, even if such behavior doesn’t cause a substantial disruption. Another, separate panel from the Third U.S. Circuit Court of Appeals agreed with the lower court in an opinion that seemed inconsistent with the Layshock ruling.

To resolve these disparate views, the Third Circuit agreed to review the cases collectively (“en blanc”) to offer a perspective. In short, there is nothing too surprising about the remarks of the majority opinions released on Monday. The court re-asserted that schools cannot punish students for off-campus behavior or speech without evidence of a substantial disruption at school (or a high likelihood that such a disruption will occur).

In the Layshock case, the school district conceded that the creation of the MySpace parody profile did not cause a disruption at school. So it is clearly outside the boundaries of formal school discipline. The court also listed several cases where schools were allowed to discipline students for the off-campus behavior (J.S. v. Bethlehem Area Sch. Dist., 807 A.2d 847 (Pa. 2002); Wisniewski v. Bd. of Educ. of Weedsport Cent. Sch. Dist., 494 F.3d 34 (2d Cir. 2007); and Doninger v. Niehoff, 527 F.3d 41 (2d Cir. 2008), noting that “each of those cases involved off campus expressive conduct that resulted in a substantial disruption of the school, and the courts allowed the schools to respond to the substantial disruption that the student’s out of school conduct caused.”

In the other case, the Bethlehem Area School District did initially attempt to argue that J.S.’s activities resulted in a significant disruption at school, though neither the District Court nor the Third Circuit Court of Appeals accepted that argument so they backed off. In the original hearing, the District Court supported the disciplinary actions of the school, not because there was evidence of a substantial disruption, but because the content of the off-campus speech was “vulgar, lewd, and potentially illegal.” This was consistent with Supreme Court decisions in Fraser (1986) and Morse (2007). In its review, however, the Third Circuit noted that in both of these cases, the speech was delivered at school (Fraser) or a school sponsored activity (Morse). As such, the vulgarity of the speech was irrelevant and therefore the singular issue is to consider is whether the off-campus speech resulted in a substantial disruption. Therefore, in a divided opinion (8-6) the Third Circuit overturned the District Court, concluding that: “…the school district violated J.S.’s First Amendment free speech rights when it suspended her for speech that caused no substantial disruption in school and that could not reasonably have led school officials to forecast substantial disruption in school.”

Judge Jordon noted in a concurring opinion, however, that: “The issue is whether the Supreme Court’s decision in Tinker, can be applicable to off-campus speech. I believe it can, and no ruling coming out today is to the contrary.” So students can be punished for off-campus speech or behavior (consistent with Tinker’s disruption clause).

So where does this leave us. Well, the key issue to keep in mind, it seems, is whether a student’s off-campus speech or behavior results, or has a high likelihood of resulting in, a substantial disruption at school. We have little additional clarity regarding what that actually looks like, but we know a bit more about what it isn’t. Staff accessing a harassing profile at school does not constitute a substantial disruption. A student bringing a printed copy of a Web site to school at the request of staff does not cause a substantial disruption. A few students talking in class does not equal substantial disruption.

It also appears that vulgarities directed toward school officials from an off-campus location are not automatically subject to school discipline. Now, if that speech substantially and/or materially disrupts the learning at school, it may be fair game for sanction. It is interesting that free speech advocates are touting this as a victory for students, suggesting these opinions are evidence that there are no conditions under which schools can discipline students for their off-campus speech. This is clearly an incorrect interpretation of the facts. We have long known that students have free speech rights. We also know that those rights are constrained a bit while at school and where the speech substantially disrupts the school environment. That hasn’t changed.

It is important to also point out that both of these cases involved students who were targeting staff. I would be very interested to see if the opinions changed if all players involved were students. If a student creates a Facebook parody profile about another student, could the target’s ability to learn at school be substantially disrupted? It sure seems so. But it remains to be seen whether the higher courts would agree with this rationale.

I encourage you all to read the full versions of the opinions (over 100 pages in total). Layshock is available here and Blue Mountain is here. And feel free to weigh in with your thoughts.

Recently, a case came up before the Missouri court involving a 40-year-old woman and a 17-year-old girl, with the former having been charged with felony harassment as she posted the girl’s personal contact information and photo on Craigslist in their subsection for individuals seeking “Casual Encounters” (you can imagine what that means).  To note, this is the first application of Missouri’s new cyberharassment and cyberbullying law, which went into effect in June of 2008 following the media coverage of Megan Meier’s suicide.

The defendant and her attorney claim this was simply a practical joke.  Her attorney also claims that had this same information been written on a bathroom wall, she would not have been charged.

I disagree with both of these assertions. First, there must be a line drawn as to what constitutes a practical joke, and that boundary was crossed when the defendant put the plaintiff at risk for actual, tangible harm.  Secondly, to compare the writing on a bathroom wall to posting on the Internet is preposterous when considering the differential size of populations that would view each. Third, I believe it is completely appropriate for a judge and jury to consider the reality of recent Craiglist-related victimizations when interpreting the content and context of this case.  Much like we don’t shrug off facetious statements about bombs in airports, we can’t shrug off the reality that the disclosure of personal information online can lead to serious harm offline.  Finally, minors are (and should be) afforded even greater protection from these types of actions.

It goes without saying that youth are exploiting new technological developments (even though everyone is saying it).  I wondered if you all saw the story from Maryland over Christmas break discussing how teenagers are punking their peers by impersonating their vehicles while flying past speed cameras.  This is done by taking a digital photo of an “enemy’s” license plate, printing it out with a laser printer, and taping that sheet of paper onto their own license plate.  Then, they drive past cameras that cannot distinguish between real license plate numbers and the laser-printed ones.  Called “speed pimping,” it leads to a $40 citation for the victim.  So, this begs the question we’re always wrestling with as we work with IT companies, educators, and parents – do we just need better technology, or do we need more education and the teaching of ethics and morals, or do we just shrug it off because adolescents will always pull pranks like this?

Also, could this be considered a form of cyberbullying?  The article makes me think of how some other misbehaviors might be “staged” in a creative fashion by youth using hardware and software to make “evidence” that incriminates another person.  We’ve already heard of impersonation where images of parents’ signatures are inserted by their kids into official documents they (the parents) are to sign.  And we’ve heard of youth impersonating their peers through sites that anonymize emails and text messages – which sometimes has led to conflict and violence in the real world.  When we discuss various forms of cyberbullying, impersonation is rare as compared to other types.  I’m thinking, though, that it’s a pretty serious form that merits closer examination.  I also wonder if policy and practice needs to be targeted and specific in highlighting the wrongfulness of impersonation, or simply addressed through general prevention and response strategies for cyberbullying….