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Litigation is escalating rapidly involving student out-of-school expression on the Internet. In my last column, I explored a case in which students were disciplined for suggestive pictures posted on MySpace. This column addresses students' postings on Facebook and MySpace that are critical of school personnel. The case outcomes are determined primarily by how courts apply the landmark decision, Tinker v. Des Moines Independent School District, in which the Supreme Court held that private student expression could not be the basis of school disciplinary action unless it threatened a substantial disruption of the educational process or interfered with the rights of others.
On the same day in February 2010, two different panels of the Third Circuit Court of Appeals affirmed somewhat contrary lower court decisions regarding students' MySpace parodies of their principals. In Layshock v. Hermitage School District, one Third Circuit panel ruled that a Pennsylvania school district failed to establish a sufficient connection to a school disruption for it to discipline a student who posted an unflattering mock profile of his principal on MySpace. Reasoning that schools have less control over students' off-campus expression than they do over their expression at school, the panel concluded that the student had a First Amendment right to post the parody. However, the court rejected his parents' assertion that the school's disciplinary action violated their Fourteenth Amendment rights to direct the upbringing of their children.
A different Third Circuit panel in J.S. v. Blue Mountain School District found that a student's MySpace profile of the principal, although created off campus, threatened a material disruption of the educational process. This panel held that the school did not have to substantiate that a disruption had occurred as long as there was a significant threat. The lower court had gone further in reasoning that a link to a disruption might not be required if the expression invades the rights of others. In this student's mock profile, the principal was depicted as a pedophile and sex addict. The court upheld suspension of the student for the online speech, finding no violation of the student's First Amendment rights.
The following week a Florida federal district court upheld a student's right to sue her principal for disciplinary action alleged to violate the student's free speech rights. The student established a Facebook page criticizing a teacher at school, and the court held that the principal did not have a sufficient expectation that the expression would create a disruption. In Nashville, Tenn., a First Amendment lawsuit may be brought by a student who was expelled for angry Facebook comments about his coaches, including the assertion, "I'ma kill em all." The school district contends that it has valid grounds to discipline students for such threats posted on social networks.
The controversies mentioned here represent the tip of the iceberg in this volatile area pertaining to online social networks. How much discretion school authorities have to discipline students for such off-campus postings that are critical of school personnel remains to be clarified by the U.S. Supreme Court.