Third Circuit Leaves Student Off-Campus Speech Rights Undecided in Pennsylvania

Jurist.org
Sara Rose [Staff Attorney, ACLU of Pennsylvania]
A middle-school student, annoyed after being disciplined by her principal for violating the school dress code, vents her frustration by posting a crude MySpace profile on the Internet parodying the principal. The profile, which the student created entirely from home and made available to a small group of friends, includes a photo of the principal but not his name or school. The profile only comes onto school grounds at the behest of the principal. Nevertheless, once the identity of the profile’s author is discovered, the school suspends her from classes for ten days.
Those are the facts of a case, JS v. Blue Mountain School District [PDF], recently decided in the student’s favor by the US Court of Appeals for the Third Circuit. The case squarely presented an issue increasingly confronted by schools and their students: How far can public schools can go in punishing students for speech that they post on the Internet outside of school? On one side are the school districts and school board associations, which argue that schools should be permitted to police their students’ speech no matter where it occurs if the speech is about the school. On the other are groups like the ACLU, which believe putting such far-reaching authority into the hands of school administrators impermissibly infringes on students’ First Amendment right to free speech.
The Third Circuit, unfortunately, did not provide a clear answer to the question. While the Court, sitting en banc, did hold that schools cannot punish students for off-campus speech simply because it is lewd, vulgar, or indecent, the majority stopped short of deciding whether schools can punish students for off-campus speech if it causes a material and substantial disruption inside the school. In a footnote, the majority said it did not need to reach that issue because the parody MySpace profile did not cause any disruption inside the school nor could it have reasonably led school officials to forecast substantial disruption in the school. The “material and substantial disruption” test was created by the US Supreme Court in its 1969 decision Tinker v. Des Moines Independent School District to protect students’ free-speech rights in school while providing some leeway for school officials to maintain order and accomplish their pedagogical mission.
Although the issue of whether the so-called Tinker standard can be used to curtail students’ out-of-school speech has officially been left open by the Third Circuit, there were five votes for a more protective standard for off-campus speech. Four judges joined a concurring opinion by Judge D. Brooks Smith stating the view that students should have the same right as any other person in the community to speak outside of school. Under that standard, students’ Facebook status updates, twitter posts, and even old-fashioned letters to the editor could not be censored by school administrators unless they could show that their actions were narrowly tailored to a compelling governmental interest and represented the least restrictive means of achieving that interest. That is a much tougher test for school districts to meet than the “material and substantial disruption” test, but it is the only standard that adequately protects the free-speech rights of public-school students.
As Judge Smith recognized in his concurring opinion, allowing schools to apply the Tinker standard to out-of-school speech would have “ominous implications”: “Doing so would empower schools to regulate students’ expressive activity no matter where it takes place, when it occurs, or what subject matter it involves—so long as it causes a substantial disruption at school.” Indeed, the Second Circuit, which has applied the Tinker standard to off-campus speech where it was reasonably foreseeable that the speech would come to the attention of school officials, upheld the decision of a school district to bar a student from running for senior class secretary after she criticized school administrators on her personal blog. The student was not permitted to serve as secretary even after she was elected by her classmates as a write-in candidate.
Public schools have a responsibility to teach students about their constitutional rights. Overriding the votes of the senior class or punishing students simply because they posted critical comments about school officials on the Internet sends the wrong message about how our Bill of Rights is supposed to work. School officials who act like Big Brother or retaliate against students who criticize them do a disservice to their students and to the Constitution.
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