Several recent court rulings have been protective of off-campus student speech -– with the exception of a very shaky decision that a dissenting judge said “vests school officials with dangerously overbroad censorship discretion.”

All the cases address a First Amendment issue that has yet to come before the U.S. Supreme Court — whether, as one judge put it,

a school can regulate student speech or expression that occurs outside the school gates, and is not connected to a school-sponsored event, but that subsequently makes its way onto campus, either by the speaker or by other means.

Under Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503 (1969), a “showing that the students’ activities would materially and substantially disrupt the work and discipline of the school” is necessary to justify suppression of student expression.

Applying that test, a Florida judge ruled Feb. 12 that a high-school senior could sue her principal for suspending her after she used her home computer to create a Facebook group entitled, “Ms. Sarah Phelps is the worst teacher I’ve ever met.”

The student expressed an opinion about a teacher that “was published off-campus, did not cause any disruption on-campus, and was not lewd, vulgar, threatening, or advocating illegal or dangerous behavior,” U.S. Magistrate Judge Barry L. Garber said in denying the principal's motion to dismiss in Evans v. Bayer.

In California, U.S. District Judge Stephen V. Wilson reached a similar conclusion in the case of a high-school student who was suspending for posting a video on YouTube in which she recorded a friend calling a classmate a “slut” and “the ugliest piece of shit I’ve ever seen in my whole life.”

The school's administrative principal testified that she believed classes would be disrupted by the video as a result of students “gossip[ing]” and “passing notes” in class, but Wilson said that did not amount to “a reasonable belief that the YouTube video was likely to cause a substantial disruption in the future.”

“The Court cannot uphold school discipline of student speech simply because young persons are unpredictable or immature, or because, in general, teenagers are emotionally fragile and may often fight over hurtful comments,” he concluded in J.C. v. Beverly Hills Unified Sch. Dist. The plaintiff in the case was awarded $8 in nominal damages and $103,335 in attorney fees.

The 3rd U.S. Circuit Court of Appeals also protected off-campus speech in ruling that a school district illegally disciplined a student for creating a fake MySpace profile of his high-school principal. “It would be an unseemly and dangerous precedent,” the court said,

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 they can control that child when he/she participates in school sponsored activities. Layshock v. Hermitage Sch. Dist.

But a 2-1 majority of another 3rd Circuit panel applied Tinker too broadly in the similar case of a middle-school student — identified only as “J.S.” — who was disciplined for creating a fictitious MySpace profile that insinuated her principal was a sex addict and a pedophile.

Writing for the majority in J.S. v. Blue Mountain Sch. Dist., Judge D. Michael Fisher was “sufficiently persuaded that the profile presented a reasonable possibility of a future disruption,” in part because of “its blatant allusions to [the principal] engaging in sexual misconduct.”

“We simply cannot agree that a principal may not regulate student speech rising to this level of vulgarity and containing such reckless and damaging information so as to undermine the principal’s authority within the school, and potentially arouse suspicions among the school community about his character,” he said in affirming a trial judge who summarily dismissed the case.

In a strong dissent, Judge Michael A. Chagares said the majority opinion “significantly broadens school districts’ authority over student speech; I believe that this holding vests school officials with dangerously overbroad censorship discretion.”

“[D]espite the unfortunate humiliation it caused for [the principal],” he argued, the MySpace profile “was so outrageous that no one could have taken it seriously, and no one did. Thus, it was clearly not reasonably foreseeable that J.S.’s speech would create a substantial disruption or material interference in school.”

Courts have viewed the “foreseeability” standard as consistent with Tinker but the J.S. case suggests it should only be applied when school officials reasonably believe that a campus will be disrupted by violent behavior. J.S. is preparing to file a petition for a rehearing en banc.

Pending off-campus speech cases include Doninger v. Niehoff, in which a student was punished for making crude remarks about school officials on her blog, and T.V. v. Smith-Green Community School Corp., in which two girls were disciplined for posting raunchy photos of themselves on their MySpace pages.

By Matthew Heller
2/22/10