January 20, 2012 | Bulletin No. 990223.1

The US Supreme Court has declined to hear three cases involving student speech rights on the internet.  See our Education Law Blog Post.

Two cases were filed as a joint appeal from the Court of Appeals for the Third Circuit decisions in June 2011: Blue Mountain School District v. Snyder and Layshock v. Hermitage School District.  Both cases involved MySpace parody websites created off-campus and targeting school administrators.  In both cases the court determined that discipline was not warranted.  In Blue Mountain, the Third Circuit held that a student who created a parody MySpace profile of the school principal depicting her as a sex-addict and pedophile, could not be punished because the speech was created off-campus and did not substantially disrupt school activities.  Moreover, the Court noted that the website was so outrageous that no one could have taken it seriously.  In Hermitage, the Third Circuit also found that a student could not be disciplined where he created a parody MySpace profile of his principal using a computer off-campus where the speech did not cause a substantial disruption at school.  The joint appeal on behalf of the school districts urged the Supreme Court to hear the cases because “at the moment, school officials are stuck between a rock and a hard place” regarding the scope of school officials’ authority over disciplining students’ speech on the internet.

The other case that sought to be heard by the Supreme Court was Kowalski v. Berkeley County Schools, decided by the Fourth Circuit in July 2011.  See our Legal Alert and Education Law Blog Post.  In Kowalski, the Fourth Circuit upheld the discipline of a student who created a MySpace page targeting another student and claiming she had herpes.  The school determined that this website violated school policies against harassment and bullying.

What This Means to You

The standard by the US Supreme Court remains unclear for disciplining students for off-campus internet speech.  However, these circuit cases can be grouped into two apparent categories: (1) speech parodying school administrators and (2) speech targeting a fellow student.  Although neither the Third or Fourth Circuit are binding on California courts, it appears that courts are more willing to uphold discipline of students where it constitutes bullying or harassment of a fellow student, and less willing to uphold discipline where it targets a school administrator. 

California laws and cases have authorized broad jurisdiction for disciplining students, however please continue to check with your legal counsel before suspending or expelling a student for off-campus internet speech.  Additionally, beginning in July 2012, California school districts are required by AB 9 to expressly address bullying in their policies (in addition to harassment).  See our Education Law Blog Post. The California legislature has made it clear that bullying and harassment will not be tolerated in its schools.  Students who engage in this behavior should be aware that schools will take affirmative steps to cease acts of bullying and harassment.

Questions

If you have any questions concerning the content of this Legal Alert, please contact the following from our office, or the attorney with whom you normally consult.

Christian M. Keiner or Meghan Covert Russell | 916.321.4500