Legal Hazards Of Monitoring Off-Campus Speech In The Internet Age
By Marshall W. Grate
A public school district must exercise caution in monitoring off-campus speech. In Layshock v Hermitage School District, (WD PA 2007), a public school district was held to have violated the First Amendment rights of a senior high school student when it issued a 10-day suspension for his creation of a parody profile of the high school principal on the student’s MySpace.com website during non-school hours at the student’s grandmother’s computer.
The student introduced the unflattering parody at school to a few selected audiences. He accessed the profile from a computer in his Spanish class, and he showed it to other classmates. School administrators were unaware of any in-school attempt to access the MySpace website until one week later. After some effort the school administration blocked access to the website. The district charged the student with disruption of a normal school process, disrespect, harassment of a school administrator and gross misbehavior.
The student and his family sued the school district for violating his First Amendment rights under the United States Constitution. The Federal District court ruled in the student’s favor. Interestingly, the court made its ruling after the United States Supreme Court issued its decision in Morse v Frederick, (June 25, 2007)(the “Bong Hits 4 Jesus” case), which ostensibly conferred considerable latitude on a school district in monitoring student speech.
However, the Layshock court distinguished Morse on the grounds that it involved school-related speech as opposed to off-campus speech. The fact that the Internet may be accessed at school does not authorize school officials to become censors of the World Wide Web. Consequently, the Court applied, without reservation, the “substantial disruption” standard of Tinker v Des Moines Independent Community School District, (1969). Under this standard, the school district must demonstrate a nexus between the off-campus speech and a substantial disruption of the educational environment.
In the Layshock case, there was no substantial disruption. The district cancelled no classes; there was no widespread disorder; there was no violence; and there were no student disciplinary problems. One troubling aspect of the Layshock decision is the implication that the First Amendment will constrain a public school district from taking preventive action if it discovers plausible threats of violence.
However, the court indicated that it would have little difficulty supporting a school district’s discipline of a student who makes a direct threat at the school from a remote location or through the Internet where evidence of a direct threat is presented. Even if the off campus speech is slanderous, the school district would not necessarily have the authority to impose punishment, unless the district could show substantial disruption in school operations.
The Layshock decision is from a federal district court in Pennsylvania and is not binding on federal or state courts in Michigan. Nonetheless, it is noteworthy for its message that school districts must balance First Amendment constitutional considerations against the effect off-campus speech may have on the school environment. Before taking action, the school district must be prepared to demonstrate that the off-campus speech risks substantial interference with school operations.
Should you have any questions about the Layshock decision or a school district’s right to discipline students for off-campus speech, please contact Marshall Grate at (616) 608-1103 or mgrate@clarkhill.com.
