Education Law

Off-Campus Student Speech: Be Careful What You Post


Earlier this year, two separate panels of judges in the same federal court, on the same day, reached polar opposite decisions in two different cases that presented almost identical issues. In each case, a Pennsylvania public school suspended a student for posting lewd content about the school's principal on the internet while using a home computer.

In one case, the judges ruled in favor of the student. The judges concluded that the school violated the student's constitutional rights to Free Speech by punishing him for actions done off-campus.

In the other case, the judges ruled in favor of the school. The judges decided that the school could punish expressive conduct that was done off-campus when it was bound to disrupt the school's educational process.

In order to bring some clarity and understanding to the law in this situation, the court granted a rehearing en banc in both cases. This means that all of the judges of the US Court of Appeals for the 3rd Circuit listened to arguments by attorneys in both cases in June in order to reconcile the two cases. The court hasn't yet issued a written decision.

Original Article

When I was in school, students made fun of other students and the administrators by doing imitations and passing notes. If we felt particularly rebellious, we may have drawn pictures on the bathroom walls.

Today, with the Internet, even ridicule is more technologically advanced.

Two separate occurrences in Pennsylvania involved students posting pictures and parodies of their school principals on MySpace, a social networking website. They were both suspended, and then sued the schools. In both cases, judges questioned whether schools could discipline students for content they posted on the internet after school hours.

The courts came to different conclusions in each case, further confusing this issue.

Suspension is Permissible

An eighth-grader in Schuylkill County was suspended after posting sexually explicit material along with her principal's photograph on a fake MySpace page. The 3rd US Circuit Court panel upheld the suspension. 

The court decided that the students’ posting was lewd and sexually graphic, and could have caused a substantial disruption to the school and to the learning environment. 

The court decided that school officials acted properly to suspend her. Prior case law gives schools the power to restrict student activities if they’re likely to cause a substantial disruption.

This case raised criticism that courts are broadening the school's authority and improperly censoring students.

Suspension was Wrong

However, in the same month, a different three-judge panel came to a different conclusion in the Meritage School District case. That case also involved a MySpace parody of a principal created by a student at home, but the court felt school officials couldn’t reach into a family's home and police the internet.

The Legal Issues

These cases raise several legal issues and show how far schools can go to control both online speech and offsite behavior. Students writing offensive comments have challenged free speech advocates, requiring judges to weigh constitutional rights against the rights of administrators to rule their own schools.

While schools have a right to maintain an environment conducive to learning, that doesn’t trump First Amendment right to freedom of expression. Students are still protected by the First Amendment and can express themselves.

Accordingly, in such cases, judges need to examine the topic of censorship and how far it can reach. Can schools punish students for speech occurring off-campus and is not sponsored by the school? The law says school officials can minimize actions that cause a disruption at school. But how far can this go?

Technology further complicates this question. We’re in a different world now than before when the Supreme Court last addressed this issue.

The "Substantial Disruption" Standard

For school districts to succeed in defending censorship actions, administrators must prove to the court that the behavior in question led to a "substantial disruption" in the school, even if it initially occurred off school property.

That standard was set by the 1969 Supreme Court case Tinker v. Des Moines Independent Community School District. This case gives school officials the constitutional authority to limit student expression when conduct causes, or is likely to cause, "substantial disruption." However, there are limits to this regulation. Where the offending speech occurs can matter.

While schools have much power to regulate their student’s conduct, the First Amendment offers students some protection, covering everything from dress codes, to prayer in schools, to the internet to free expression.

However, after the Appeals Courts came to two different conclusions, the law, which was initially ambiguous, is now even more unclear.

Some things about school days have changed: Cell phones in classroom to not being able to eat a peanut butter sandwich; but some things haven’t like making fun of the principal. One thing to remember is that postings on the web can be seen by millions of people and may have lasting effects.

Questions for Your Attorney

  • Can a school discipline me for legitimate speech aimed at bettering my school?
  • Do my free speech rights extend to the school newspaper?


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