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Third Circuit rules schools cannot punish students for speech outside school

The US Court of Appeals for the Third Circuit [official website] ruled in two cases on Monday that schools cannot punish students for speech or writing created outside the school environment. In JS v. Blue Mountain School District [opinion, PDF], a female middle school student created, on her own computer, a MySpace profile mocking the school principal. The principal suspended the student for 10 days, and the student initiated a civil rights suit against the principal and school district. The US District Court for the Middle District of Pennsylvania ruled [opinion, PDF] in favor of the school district, holding that the school's punishing the student did not violate the student's First Amendment [text] right to free speech. The en banc appeals court overruled, holding that, pursuant to Tinker v. Des Moines Independent Community School District [opinion], the school officials failed to demonstrate that the student's behavior "materially and substantially interfere[d] with the requirements of appropriate discipline in the operation of the school" such that punishment of her expression of opinion was justified. Though the profile contained lewd and vulgar language, it was not created on the school campus, did not disrupt the school day, nor was disruption reasonably foreseeable. The appeals court did, however, agree with the district court's granting of summary judgment against the student with respect to her parents' Fourteenth Amendment right to raise their children, and that the school handbook was not unconstitutionally vague. The dissenters contend that the ruling undermines the school's discretion to regulate student behavior. The en banc Third Circuit Court of Appeals reached a similar conclusion in Layshock v. Hermitage School District [opinion, PDF]. Layshock also used a personal computer to create a profile of his school principal. The appeals court affirmed the decision [opinion, PDF] of the US District Court for the Western District of Pennsylvania in favor of the student on the basis that the school violated his First Amendment right.

The Supreme Court has addressed freedom of speech in schools most recently in Morse v. Frederick [Duke Law case backgrounder; JURIST report]. In June 2007, the Court held [opinion; JURIST report] that public schools do not violate the First Amendment rights of students by punishing them for speech during a school-sanctioned activity that may be reasonably interpreted to promote the use of illegal substances. A high school student was suspended after he displayed a banner with the message "Bong hits 4 Jesus" during a televised parade on a school day. The Court reversed the Ninth Circuit's decision [opinion, PDF] and held that the "First Amendment does not require schools to tolerate at school events student expression that contributes" to the danger of illegal drug use. The Supreme Court has not ruled on a case related to student speech created outside of the classroom.

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