Thursday, July 21, 2011

Circuit Split Watch: The First Amendment, Students, and the Internet

This article first appeared in the July 20, 2011, issue of the National Law Journal's Supreme Court Insider.

Twenty-five years ago this summer, Ferris Bueller outwitted school administrator Ed Rooney to take his famous day off.

Tension between students and administrators is still alive and well, though today's students have new tools, including the Internet. Disputes over how far schools can go in disciplining students for online criticism of school officials have recently split two federal circuits and could garner the U.S. Supreme Court's attention next term.

Avery Doninger, a Connecticut high school student, blogged from home that her school administrators were "douchebags" and encouraged calls or notes "to piss [one of the administrators] off." The posting appeared on her personal blog, unaffiliated with the school. Doninger was upset about the possible cancellation of a music event called Jamfest that she was helping to plan. As punishment, the school prevented her from running for class secretary and from wearing a T-shirt protesting the decision during an assembly where the candidates on the ballot would be speaking.

In April, the U.S. Court of Appeals for the 2nd Circuit ruled that the administrators acted reasonably and are entitled to qualified immunity.  "[W]e do not conclude in any way that school administrators are immune from First Amendment scrutiny" when they limit extracurricular activities, the panel said. In this case, though, the judges agreed, "it was objectively reasonable for school officials to conclude that Doninger's behavior was potentially disruptive of student government functions (such as the organization of Jamfest)."

As to the T-shirt, which Doninger and other students planned to wear, the principal "may not have known with certainty that permitting the [shirts] into the assembly would cause students to disrupt [the] speeches." However, "she could not responsibly have ignored the fact that Doninger" had "incite[d] confrontation with school officials" through her blog post. Indeed, even without the T-shirts, during the assembly "students shouted 'Vote for Avery' and had to be warned to be respectful." (Remember "Save Ferris"?)

The 3rd Circuit, in a pair of en banc decisions issued in June, went a different direction. In separate rulings, the court sided with two Pennsylvania students who created fake and vulgar MySpace profiles about their principals, while off school property. The rulings are J.S. v. Blue Mountain School District and Layshock v. Hermitage School District.

Disciplining "a student for expressive conduct that originated outside of the schoolhouse, did not disturb the school environment and was not related to any school sponsored event" violates the First Amendment, the 3rd Circuit held in Layshock. In J.S., the court said, "Neither the Supreme Court nor this Court has ever allowed schools to punish students for off-campus speech that is not school-sponsored or at a school-sponsored event and that caused no substantial disruption at school."

No judges dissented in Layshock, but the ruling in J.S. prompted six judges to dissent. Why the different reaction? One reason, as the J.S. dissent explains, is that the two defendant school districts took different approaches: "Unlike the instant case, the school district in Layshock did not argue on appeal that there was . . . a nexus between the student's speech and a substantial disruption of the school environment." That nexus was the basis of the J.S. dissent.

The dissent in J.S. also stressed the extreme nature of the student speech, which accused the principal of engaging in sexual misconduct with children and made sexual references about his wife.

"[The majority] allows a student to target a school official and his family with malicious and unfounded accusations about their character in vulgar, obscene, and personal language," the dissent wrote. "I fear that our Court leaves schools defenseless to protect teachers and school officials against such attacks and powerless to discipline students for the consequences of their actions."

Attorneys for Avery Doninger and at least one of the Pennsylvania school districts plan to appeal to the Supreme Court, according to a recent report from the Student Press Law Center.

During the First Amendment-heavy 2010 term, the Court addressed free speech in the context of funeral protests, violent video games, pharmaceutical companies, and campaign finance. Student speech online may be next in the coming term.