A high school honor student in Pennsylvania created a parody MySpace profile for his principal that included such comments as “Birthday: too drunk to remember.”
Suspended by the school, Justin Layshock and his parents sued on the grounds that his First Amendment rights were violated and won, including $10,000 in compensatory damages.
In its 2011 ruling upholding the student’s victory, the 3rd U.S. Circuit Court of Appeals decreed, “It would be an unseemly and dangerous precedent 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 it can control that child when he/she participates in school-sponsored activities.”
A student in West Virginia did not fare as well in her legal challenge of a suspension for creating a MySpace page that mocked a fellow student for having herpes. Kara Kowalski maintained that the Berkeley County system had no authority to censure her cybercruelty because she created the page outside of school.
In ruling against Kowalski, a cheerleader and her high school’s reigning “Queen of Charm,” the 4th U.S. Circuit Court of Appeals noted that the vicious website — Students Against Shay’s Herpes — was created to ridicule a classmate and was directed to students.
The court noted, “Kowalski used the Internet to orchestrate a targeted attack on a classmate, and did so in a manner that was sufficiently connected to the school environment as to implicate the school district’s recognized authority to discipline speech which materially and substantially interferes with the requirements of appropriate discipline in the operation of the school and collides with the rights of others.”
In January, the U.S. Supreme Court declined the opportunity to navigate these disparate rulings, leaving school systems in limbo over the escalating collision between online student speech and school safety and stability.
The current standard in the law allows schools to restrict student speech that “disrupts classwork,” creates “substantial disorder” or collides with “the rights of others.” But those criteria have historically been applied to speech within the “schoolhouse gate.”
The question yet to be definitively answered by the court is whether the gate ought to swing wide enough to encompass MySpace, Facebook, YouTube and Twitter. The judges in the Queen of Charm case pushed the gate wider, concluding, “Kowalski indeed pushed her computer’s keys in her home, but she knew that the electronic response would be, as it in fact was, published beyond her home and could reasonably be expected to reach the school or impact the school environment. ”
But a federal court in Florida ruled that it was protected speech when a high school senior created a Facebook page proclaiming her teacher by name as “the worst teacher I’ve ever met” and inviting classmates to “express your feelings of hatred.” On the other hand, a California federal court upheld a school’s decision to suspend and transfer a middle school student who created a slide show depicting the murder of her teacher.
Because of the conflicting rulings and the Supreme Court’s refusal to set clearer parameters, attorneys are cautioning schools systems to proceed carefully when addressing online attacks by students on teachers, principals and other students.
But schools cannot ignore it, as two recent Florida cases illustrate. Teenage girls in Gainesville and Lantana posted crude, racist videos on YouTube last month that quickly found a worldwide audience. Threats to the girls forced their high schools to bring in police.
The mother of one of the Gainesville students — whose names have not been released because they are minors and who now have withdrawn from the school — sent a letter to the Gainesville Sun, pleading: “While we can never take back the words and actions that these two children have said, we have to start to heal and forgive immediately. Stop the violent threats to our homes and our children, stop the anger, because this will solve absolutely nothing, and most importantly, look at yourself for change and love.”
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