Layshock V. Hermitage Sch. Dist. , No. 07-4465 (3D Cir. Jun. 13, 2011)

Federal appellate court issues en banc decision in Layshock v. Hermitage Sch. Dist.: school district violated First Amendment by disciplining student for off- campus online speech

Layshock v. Hermitage Sch. Dist., No. 07-4465 (3d Cir. Jun. 13, 2011)

Abstract: The U.S. Court of Appeals for the Third Circuit (PA, NJ, DE, VI), sitting en banc (all active judges participating), has ruled that a Pennsylvania school district violated a student’s free speech rights when it disciplined him for creating an offensive parody MySpace profile of his high school principal off-campus on a home computer. The court’s decision is one of two en banc rulings issued on the same day and finding that the school district defendant had violated the student’s First Amendment right to free speech when it disciplined the student for off-campus speech that took place online. Unlike the decision in J.S. v. Blue Mountain Sch. Dist., No. 08- 4138 (3d Cir. Jun. 13, 2011), however, this ruling was unanimous, with one concurring opinion.

The majority opinion noted that Hermitage School District (HSD) had conceded that it could not justify its actions under Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969), which allows regulation of student expressive speech in school when school officials can reasonably conclude that there it will materially and substantially disrupt the work and discipline of the school. The court focused on the school district’s argument that a sufficient nexus existed between the student’s creation and distribution of the “vulgar and defamatory profile of Principal Trosch and the School District to permit the School District to regulate this conduct.”

The Third Circuit held that HSD officials were not justified in disciplining Layshock for speech that occurred off-campus after school hours because they had not established a sufficient nexus to the school. Although the school house gate may extend beyond bricks and mortar, the court decided, school officials do not have the same reach when a student speaks outside of school as they would have inside school. The district had also failed to show that the speech had actually occurred on-campus (via students accessing MySpace and Layshock’s entering the school website to retrieve the principal’s photograph), and therefore could be regulated as “lewd” or “vulgar” under the Supreme Court’s decision in Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675 (1986). It emphasized that Fraser does not allow school officials to discipline a student for speech that occurs “outside the school context.”

The court’s main opinion declined to state whether the Tinker substantial disruption standard should apply to speech that occurs off-campus. A separate concurring opinion was filed asserting that the standard articulated in Tinker is indeed applicable to off- campus speech. In J.S., too, the concurring opinion tackled the issue of whether Tinker is applicable to off-campus student speech; but there, the concurring justices determined that it is not.

Facts/Issues: Justin Layshock created a parody MySpace profile of his high school principal off- campus, after school hours, and on a home computer. The profile contained a photograph of the principal imported from the school’s official website. As word of the profile spread through the student body, students began accessing it on school computers. When school officials discovered that Layshock was responsible for creating the profile, they instituted disciplinary proceeding. School officials suspended Layshock for ten days, placed him in an alternative education program, and banned him from participating in graduation. Layshock and his parents filed suit in federal district court against HSD, raising free speech and due process claims.

The district court concluded that the weight of student speech case law favored the view “that school officials’ authority over off-campus expression is much more limited than expression on school grounds.” The court also concluded that the relevant court precedents analyzed student speech, whether on or off campus, in accordance with the principles set forth in the Supreme Court’s ruling in Tinker. The district court decided that the school district had failed to establish a sufficient nexus to the school under Tinker and that Fraser did not apply to off-campus speech. It rejected the parents’ substantive due process claim on the ground the parents had failed to demonstrate how HSD’s disciplinary actions interfered with the parents’ ability to discipline their son.

A Third Circuit panel affirmed the lower court. It rejected HSD’s argument that the speech subject to discipline actually began when Layshock entered school property, i.e. the school web site, and misappropriated a photo of the principal, calling it “unpersuasive at best.” The panel next rejected the school district’s contention that the profile constituted on-campus speech because it “was aimed at the School District community and the Principal and was accessed on campus by Justin [and] [i]t was reasonably foreseeable that the profile would come to the attention of the School District and the Principal.”

HSD argued that, although its disciplining of Layshock would not be appropriate under Tinker, it was justified under Fraser because the profile “was unquestionably vulgar, lewd and offensive, and therefore not shielded by the First Amendment because it ended up inside the school community.”

The panel found HSD’s reliance on three cases, J.S. v. Bethlehem Area Sch. Dist., 807 A.2d 847 (Pa. 2002), Wisniewski v. Bd. of Educ. of Weedsport Central Sch. Dist., 494 F.3d 34 (2d Cir. 2007), and Doninger v. Niehoff, 527 F.3d 41 (2d Cir. 2008), in support of its argument misplaced because each of the cases rested on the principle that the school officials were justified under Tinker in disciplining the students because of the substantial disruption in school that resulted from the off campus speech.

The panel, therefore, held that Justin’s use of HSD’s website did not constitute entering the school, and under the circumstances of the case HSD lacked the authority to discipline Justin for “his out of school expressive conduct.” In April 2010, the Third Circuit issued an order granting HSD’s motion for a hearing en banc and vacated the panel’s decision.

Ruling Rationale: The Third Circuit affirmed the district court’s decision, largely repeating its panel’s reasoning. The majority, like the district court, rejected HSD’s argument that Layshock’s use of the principal’s photos from the school district’s website created a nexus between the school and the profile. Instead, it found the reasoning in Thomas v. Board of Educ., 607 F.2d 1043 (2d Cir. 1979), “far more persuasive.” There, the Second Circuit had found a free speech violation when school officials punished students for producing an underground newspaper that had been conceived, executed and distributed almost entirely off-campus. The Second Circuit had determined that the students’ conduct was not sufficiently related to the school to justify the school’s exercise of authority. Because the connection to the school in this case was more attenuated than in Thomas, and because HSD had conceded that the profile had not caused disruption in the school, the Third Circuit decided: ”[W]e do not think that the First Amendment can tolerate the School District stretching its authority into Justin’s grandmother’s home and reaching Justin while he is sitting at her computer after school in order to punish him for the expressive conduct that he engaged in there.”

Like the panel, the majority found HSD’s reliance on J.S. v. Bethlehem Area Sch. Dist., Wisniewski v. Bd. of Educ. of Weedsport Central Sch. Dist., 494 F.3d 34 (2d Cir. 2007), and Doninger v. Niehoff misplaced because in the majority’s view those cases “… stand for nothing more than the rather unremarkable proposition that schools may punish expressive conduct that occurs outside of school, as if it occurred inside the schoolhouse gate, under certain very limited circumstances, none of which are present here.”

The majority held that Layshock’s use of HSD’s website did not constitute entering the school and, therefore, HSD was not justified under Fraser in disciplining him for the vulgar and offensive expression that occurred off-campus. In majority also noted that it “need not now define the precise parameters of when the arm of [the school district's] authority can reach beyond the schoolhouse gate because, as we noted earlier, the district court found that Justin’s conduct did not disrupt the school, and the District does not appeal that finding.”

The concurring opinion argued that Tinker does apply to off-campus speech. Based on the technology providing students with the ability to expand the reach of their expression, the concurrence argued: ”Thus it is hard to see how words that may cause pandemonium in a public school would be protected by the First Amendment simply because technology now allows the timing and distribution of a shout to be controlled by someone beyond the campus boundary.”

Layshock v. Hermitage Sch. Dist., No. 07-4465 (3d Cir. Jun. 13, 2011)

[Editor's Note: The concurrences in the Third Circuit's two en banc opinions set out opposing arguments on whether the Tinker substantial disruption standard should be applied to off- campus speech. Layshock's concurrence argues that Tinker must be applied because it addresses the "central dilemma, which is how to balance the need for order in our public schools with respect for free speech." "We cannot," the concurrence argues, "sidestep the central tension between good order and expressive rights by leaning on property lines." It points to an absurd consequence that could result if courts fail to apply Tinker: a student could engineer highly disruptive events by tweeting instructions with one foot off school property. Perhaps school officials could head off a disaster, but they arguably could not discipline the student.

On the other side of the argument, the concurrence in J.S. said applying Tinker to these cases would create precedent with "ominous implications," as school officials would be able to regulate speech (so long as there was substantial disruption or such was reasonably forseeable) no matter where or when it occurs and no matter what subject it addressed. A summary of the Third Circuit's order granting the rehearing en banc, which contains links to addition background on Layshock v. HSD, including links to summaries of the district court and panel opinions, is available at the first link below.

A summary of the opinion in J.S. is available at the second link below.]

NSBA School Law Issues on Layshock v. HSD

NSBA Legal Clips archive on J.S. v. BMSD