Thursday, June 3, 2010
Today the en banc Third Circuit heard oral arguments about two conflicting panel decisions from its judges rendered on the same day in early February :
J.S. v. Blue Mountain Sch. Dist., 593 F.3d 286 (3d Cir. 2010);
Layshock v. Hermitage Sch. Dist., 593 F.3d 249 (3d Cir. 2010).Both controversies involve students who, while off school premises, used a social networking site - - - myspace.com - - - to malign their principals by creating false profiles. Both students were suspended and brought First Amendment challenges.
Any discussion of students and their First Amendment rights begins with the 1969 case of Tinker v. Des Moines Independent Community School District in which the Court famously opined, “It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” The Court nevertheless recognized that schools have an interest in discipline and maintaining order to accomplish their pedagogical goals. Thus, the Court held student expression within the schoolhouse gates may not be suppressed unless school officials reasonably conclude that the expression will “materially and substantially disrupt the work and discipline of the schools.”
The Tinker rule regarding materially and substantially disruption can be a difficult one to apply. In JS, the Third Circuit panel seemed quite worried about the potential for disruption and was “sufficiently persuaded that the [my space] profile presented a reasonable possibility of a future disruption, which was preempted only by [the principal’s ] expeditious investigation of the profile, which secured its quick removal, and his swift punishment of its creators.” The majority of the panel credited the principal’s “concern about the profile” as “its particularly disturbing content, not a petty desire to stifle speech critical of him,” although the dissenting judge believed that the “profile was so outrageous that no one could have taken it seriously, and no one did.” The opinion contains details from the myspace profile; one’s interpretation of it might depend on the ways in which one knows middle school children. In Layshock, which involved a high school student, the district judge had found there was no nexus between the profile of the principal and any school disruption; the school district did not appeal that portion of the ruling.
The real problem posed by the JS and Layshock cases is the “schoolhouse gates.” Tinker seems to assume that persons beyond the schoolhouse gates have a full panoply of First Amendment rights, although in 2007 the Court in Morse v. Frederick - - - the BongHits4Jesus case - - - found a "school sanctioned event" during school time to watch the Olympic torch go by was within the metaphorical schoolhouse gates. But in JS and Layshock, the activity of posting the mock-profile occurs outside of school and indeed, the schools blocked the myspace site and the creators sought to exercise control over the profiles’ access. In both cases, how the principals learned of the profiles and how they expended great efforts to obtain the profiles should also be relevant to the “school house gates” issue.
Both Third Circuit panels upheld the district judges, and it is possible that the Third Circuit en banc could uphold both panel decisions, although not without some torturous reasoning.