Free speech advocates are mulling over the decisions of two three-judge panel in appeals courts for the Third Circuit as the panels ruled separately that a student had the right to speak freely off-campus and that the school had a right to punish students for off-campus speech they deemed disruptive to the school. -db
February 4, 2010
By Katie Maloney
In the case Layshock v. Hermitage School District, a three-judge panel ruled in favor of Justin Layshock, but in J.S. v. Blue Mountain School District, another panel favored that school district’s right to discipline students for their speech.
“It’s difficult, if not impossible, to reconcile the two opinions,” said Vic Walczak, legal director of the American Civil Liberties Union (ACLU) of Pennsylvania, which represented the students in both cases.
Justin Layshock was a student at Hickory High School in Hermitage, Pa. when he used an off-campus computer to create a fake MySpace page for Principal Eric Trosch, which said Trosch used drugs.
Walczak cited the opinion in Layshock in saying that it would be “unseemly and dangerous precedent to allow school authorities to reach into a child’s home and control his or her actions there to the same extent that they can be controlled in school.”
“It’s a nice victory. It’s a nice opinion. But the joy here is greatly tempered by the decision in J.S.” Walczak said.
The panel of the J.S. case, which also delivered their opinion today, ruled in favor of the Blue Mountain School District in Pennsylvania. Walczak said this ruling goes against the Layshock ruling.
J.S. was, at the time, a female middle school student who also used an off-campus computer to create a fake MySpace for middle school Principal James McGonigle of Pennsylvania’s Blue Mountain School District. This MySpace page made accusations of McGonigle’s behavior, including sexually explicit language.
Jonathan Riba, an attorney for the Blue Mountain School District, said the previous judgment in favor of the school district in district court was upheld today in the Third Circuit court.
“It was permissible for the district to take the action they did because the profile was likely to cause a substantial disruption within the school,” Riba said.
The Student Press Law Center filed an amicus brief in Layshock in June 2006, and an amicus brief in J.S. in February 2009. SPLC Executive Director Frank LoMonte said the impact of the cases can be looked at side-by-side.
“The combined result of these rulings is, we have four-sixths of a good decision,” he said. “It’s encouraging that four circuit judges sent a strong message that students are American citizens entitled to the full benefits of citizenship when they are speaking on their own time in their own homes.”
Walczak said there was vulgar language in both cases, though it was more vulgar in the J.S. case, but “where the line is nobody knows.”
Though Justin Layshock could not be reached by press time, his mother, Cherie Layshock said the family was pleased with the ruling.
LoMonte acknowledged some pitfalls of the J.S. case’s ruling.
“The crucial fact of the J.S. case, which the majority completely glosses over, is that the school district had a disciplinary policy that was specifically designed to be constitutional because it did not allow punishment of off-campus speech unconnected with school,” LoMonte said. “The school completely misapplied its own policies to reach speech that the policy plainly exempted from punishment, and that should have been the end of this case, full stop.”