I’ve been spending a lot of time lately focusing on privacy issues at schools. I find these issues fascinating, and I have been working on them in the trenches, as I created a company last year to provide tools and resources to schools to help them better address privacy problems and to develop a comprehensive privacy program (or enhance their existing privacy program). The company is called TeachPrivacy. If you’re a school official (K-12, higher ed), a teacher/professor, or a concerned parent, please contact me if you’re interested in my project.
My immersion in this project is one of the reasons I haven’t been blogging as frequently of late. But today, there was a great convergence between blogging and my company, and I worked up a lengthy analysis of two new federal appellate cases involving the First Amendment and off-campus speech. The issue has important ramifications for how public schools deal with cyberbullying and other harmful speech online.
The U.S. Court of Appeals for the Third Circuit just issued two important decisions regarding a public school’s power to discipline students for off-campus speech. Both cases were previously decided by Third Circuit panels (three judges from the court). The Third Circuit, acting en banc (the full court) vacated these decisions, reheard the cases, and has now issued new opinions in both.
Layshock v. Hermitage School District
On a computer outside school grounds, a high school student (Justin Layshock) made a fake MySpace profile in his principal’s name. Using a photo of the principal, the student impersonated the principal and answered a series of questions. He wrote:
Birthday: too drunk to remember
Are you a health freak: big steroid freak
In the past month have you smoked: big blunt3
In the past month have you been on pills: big pills
In the past month have you gone Skinny Dipping: big lake, not big dick
In the past month have you Stolen Anything: big keg . . . .
Later on, at school, the student used a computer to access the profile and he showed it to other students. Some students were looking at the profile in a computer lab class and giggling. School officials eventually limited computer use for a period of 5 days and cancelled computer programming classes.
The student later admitted to writing the profile and apologized to the principal. Later on, the district punished the student with a 10-day suspension, banned him from extracurricular activities, and did not allow him to participate in graduation ceremonies. The student challenged the discipline as a violation of his First Amendment right to free speech. In Layshock v. Hermitage School District (3rd Cir. June 13, 2011) (en banc), the court sided with the student.
The prevailing standard for when schools can impose discipline for off-campus speech was developed from the U.S. Supreme Court’s decision Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969). When off-campus speech causes a material and substantial disruption of the school environment, the school can impose discipline. Otherwise, off-campus speech would receive full First Amendment free speech protections (unless it were a threat). This is known as the “substantial disruption” standard.
In Layshock, the court noted that the school district was not claiming there was a “substantial disruption.” Instead, the school wanted the court to recognize that there was a “sufficient nexus” between the profile and the school to allow the school to regulate it. Layshock took a picture of the principal from the school’s website, the speech was “aimed at the School District community and the Principal and was accessed by Justin [Layshock].” The court held:
Accordingly, because the School District concedes that Justin’s profile did not cause disruption in the school, we do not think that the First Amendment can tolerate the School District stretching its authority into Justin’s grandmother’s home and reaching Justin while he is sitting at her computer after school in order to punish him for the expressive conduct that he engaged in there. . . .
It would be an unseemly and dangerous precedent to allow the state, in the guise of school authorities, to reach into a child’s home and control his/her actions there to the same extent that it can control that child when he/she participates in school sponsored activities. Allowing the District to punish Justin for conduct he engaged in while at his grandmother’s house using his grandmother’s computer would create just such a precedent, and we therefore conclude that the district court correctly ruled that the District’s response to Justin’s expressive conduct violated the First Amendment guarantee of free expression.
The key to this case is that the prevailing “substantial disruption” standard was not met in this case. There was little evidence, besides isolated accessing of the profile at school and one instance where students giggled about it, that demonstrates substantial disruption to school activities. The school district conceded this point, all but foreordaining a loss in this case. The school district invited the court to push the boundaries and expand the test, but the court declined to do so.
I believe this opinion is correctly decided under First Amendment law. Had the court accepted the school district’s invitation to permit the school to impose discipline without a substantial disruption based on a mere nexus, it is hard to imagine how any off-campus speech would escape the nexus test.
J.S. v. Blue Mountain School District
J.S., a middle school student, created a fake MySpace profile of her principal from her home computer. The profile, which contained the principal’s photo, was filled with vulgar sexual references and profanity. Initially, she made the profile public, but a day later, limited access only to about 22 friends. The school suspended her, and she challenged the suspension as a violation of her First Amendment right to free speech.
The school district argued that the speech constituted a substantial disruption to school activities. A teacher heard students speaking about the profile on occasion. And the school counselor had to cancel a few appointments to sit in on meetings with the principal, the student, and her parents.
In J.S. v. Blue Mountain School District (3d Cir. June 13, 2011) (en banc), the court concluded that the speech did not cause a substantial disruption to school activities. The court noted that the school district’s counsel conceded during oral argument that there was no substantial disruption. The district argued that the school could impose discipline based on “facts which might reasonably have led school authorities to forecast substantial disruption of or material interference with school activities.”
The court did, however, agree that a substantial disruption need not actually occur and that a reasonable forecast of a substantial disruption would have been sufficient to impose discipline:
Although the burden is on school authorities to meet Tinker’s requirements to abridge student First Amendment rights, the School District need not prove with absolute certainty that substantial disruption will occur. Doninger v. Niehoff, 527 F.3d 41, 51 (2d Cir. 2008) (holding that Tinker does not require “actual disruption to justify a restraint on student speech”); Lowery v. Euverard, 497 F.3d 584, 591-92 (6th Cir. 2007) (“Tinker does not require school officials to wait until the horse has left the barn before closing the door. . . . [It] does not require certainty, only that the forecast of substantial disruption be reasonable.”); LaVine v. Blaine Sch. Dist., 257 F.3d 981, 989 (9th Cir. 2001) (“Tinker does not require school officials to wait until disruption actually occurs before they may act.”).
Although the court recognized that a reasonable forecast of a substantial disruption could justify punishment, it held that there were not sufficient facts to justify such a forecast:
Turning to our record, J.S. created the profile as a joke, and she took steps to make it “private” so that access was limited to her and her friends. Although the profile contained McGonigle’s picture from the school’s website, the profile did not identify him by name, school, or location. Moreover, the profile, though indisputably vulgar, was so juvenile and nonsensical that no reasonable person could take its content seriously, and the record clearly demonstrates that no one did. Also, the School District’s computers block access to MySpace, so no Blue Mountain student was ever able to view the profile from school. And, the only printout of the profile that was ever brought to school was one that was brought at McGonigle’s express request. Thus, beyond general rumblings, a few minutes of talking in class, and some officials rearranging their schedules to assist McGonigle in dealing with the profile, no disruptions occurred.
Based on these facts, the court’s conclusion is not surprising or controversial. There is hardly any evidence of disruption, let alone substantial disruption.
J.S. also challenged some school policies as unconstitutionally overbroad and vague. The computer use policy stated:
Students may not create, copy, receive, or use data, language or graphics which are obscene, threatening, abusive, or otherwise inappropriate at school or on sign out equipment at home.
The court noted that J.S.’s challenges were really not focused on the policies themselves but on the interpretations of those policies by school officials enforcing them beyond school campus. The court rejected the overbreadth and vagueness challenges because the policies themselves were not problematic.
Several judges dissented, concluding that J.S.’s profile did cause a substantial disruption:
Broadcasting a personal attack against a school official and his family online to the school community not only causes psychological harm to the targeted individuals but also undermines the authority of the school. It was permissible for the School District to discipline J.S. because substantial disruption was reasonably foreseeable.
The dissent focused heavily on the fact that the profile contained statements referring to sexual misconduct:
J.S.’s speech posed a threat of substantial disruption to the educational environment. The majority fails to recognize the effects of accusations of sexual misconduct. J.S. created the profile at the URL ending in: “kidsrockmybed.” She accused McGonigle of having sex in his office, “hitting on students and their parents,” and being a “sex addict.” The profile stated that “I love children[ and] sex (any kind).”
Such accusations interfere with the educational process by undermining the authority of school officials to perform their jobs.
Although the dissent has a point that the majority opinion does not give a lot of weight to the disturbing sexual statements in the speech, the dissent’s logic would give schools too much power over off-campus speech. Any speech mocking a school employee could arguably undermine authority. This argument is thus far too broad. The stronger claim, that such speech could cause psychological harm and impair an employee’s ability to perform job functions, is much more compelling. But to permit such a claim based on a mere forecast also makes it too broad. Had there been evidence that the speech did have this result, then a much stronger case could have been made.
Making Sense of the Cases
The Internet is making the line between off-campus and on-campus speech is increasingly more blurry. But a line is important to maintain, or else a school’s power to regulate student speech would extend way too far beyond the schoolhouse gate. The substantial disruption standard is a meaningful compromise, where school officials must make a compelling demonstration how off-campus speech interferes with life on campus. School officials do not have to wait for an actual disruption if one is reasonably predictable. But the lesson drawn from these cases is that schools must document a really compelling case, one that is not based on standard speculations or very loose linkages between the speech and on-campus activities. Real disruption, beyond occasional chatter and beyond the ridicule of school officials is required.
The area where there is the most difference involves crude and vulgar speech. On-campus, school officials have a wide latitude to regulate it. Off-campus, there is little latitude to regulate it. Vulgarity and mocking speech alone — especially about school employees — will rarely cause a substantial disruption without other factors present.
I have a lot more analysis and guidance about the “substantial disruption” standard over at TeachPrivacy, but you have to be a subscriber to read it
Originally Posted at Concurring Opinions
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This post was authored by Professor Daniel J. Solove, who through TeachPrivacy develops computer-based privacy training, data security training, HIPAA training, and many other forms of awareness training on privacy and security topics. Professor Solove also posts at his blog at LinkedIn. His blog has more than 1 million followers.
Professor Solove is the organizer, along with Paul Schwartz, of the Privacy + Security Forum and International Privacy + Security Forum, annual events designed for seasoned professionals.
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