STUDENTS’ RIGHT TO SPEECH VERSUS PROTECTION FROM HARASSMENT
Bernie Lambek
March 18, 2011
I. Free Speech in Schools: Quartet of Supreme Court Decisions
1. Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969).
The Court held that a public school district violated the First Amendment rights of
students who were suspended for wearing black armbands to school to protest the war in
Vietnam. When school administrators attempt to prevent students from expressing political
views, they must demonstrate that it was reasonable to conclude that the expression would
“materially and substantially disrupt the work and discipline of the school,” id. at 513, or that it
would interfere with the rights of other students, id. at 508.
Taking as its premise that neither “students [n]or teachers shed their constitutional rights
to freedom of speech or expression at the schoolhouse gate,” id. at 506, the Court reasoned that:
[t]he school officials banned and sought to punish petitioners for a silent, passive
expression of opinion, unaccompanied by any disorder or disturbance on the part of
petitioners. There is here no evidence whatever of the petitioners’ interference, actual or
nascent, with the school’s work or of collision with the rights of other students to be
secure and to be let alone.
Id. at 508. The Supreme Court emphasized that “undifferentiated fear or apprehension of
disturbance is not enough to overcome the right to freedom of expression.” Id. at 508. A school
may not prohibit speech based on the “mere desire to avoid the discomfort and unpleasantness
that always accompany an unpopular viewpoint.” Id. at 509.
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Generally, expressive conduct may be considered speech for First Amendment purposes
if the conduct satisfies a two-part test: that the actor intends to convey a particularized message,
and that the message is likely to be understood by those observing the conduct. See Texas v.
Johnson, 491 U.S. 397 (1989) (the flag-burning case). A student’s display of a Confederate flag
has been held to be the type of expressive conduct protected by the First Amendment, although
its display in school could be curtailed when the circumstances warrant a reasonable fear on the
part of school administrators that it would substantially disrupt discipline in the school. See Barr
v. Lafon, 538 F.3d 554, 566-67 (6th Cir. 2008), cert. denied, 130 S.Ct. 63 (2009) (discussed
below); Denno v. School Board of Volusia County, Florida, No. 98-2718 (11th Cir., July 26,
1999).
On the other hand, courts have held that the First Amendment is not offended by school
rules prohibiting the wearing of earrings by male students, Olesen v. Board of Education of
School District No. 228, 676 F.Supp. 820 (N.D. Ill. 1987), or a rule that banned “sagging pants”
associated with gangs, Bivens v. Albuquerque Public Schools, 899 F.Supp. 556 (D. N.M. 1995).
2. In Bethel School District No. 403 v. Fraser, 478 U.S. 675 (1986), the Supreme Court
held it was permissible for educators to protect high school students from sexually explicit,
indecent or lewd speech. The speech was given by a student during a school assembly – that is,
a school-sponsored event – and it involved “an elaborate, graphic, and explicit sexual metaphor.”
Id. at 678. The Court reiterated that the constitutional rights of students in public schools are not
automatically co-extensive with the rights of adults in other settings; Fraser’s speech in a public
forum outside the school context would have been protected. The Court has made clear that the
holding in Fraser was not based on any showing of substantial disruption.
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3. In Hazelwood School District v. Kuhlmeier, 484 U.S. 260, 273 (1988), the Court held
that school officials can regulate school-sponsored activities such as publications, plays, and
other conduct related to the school’s curriculum if their actions “are reasonably related to
legitimate pedagogical concerns.” In short, there is no heightened First Amendment scrutiny
where the public “might reasonably perceive [the speech] to bear the imprimatur of the school.”
Id. at 270-71.
Summary so far: A school may categorically prohibit lewd, vulgar, or profane language
(Fraser); it may regulate school-sponsored speech on the basis of any legitimate pedagogical
concern (Kuhlmeier); and speech falling outside of these categories is subject to regulation only
if it would substantially disrupt school operations or interfere with the rights of other students
(Tinker).
4. In Morse v. Frederick, 551 U.S. 393 (2007), the U.S. Supreme Court held that
“schools may take steps to safeguard those entrusted to their care from speech that can
reasonably be regarded as encouraging illegal drug use.” The Court ruled that a high school
principal acted lawfully when she suspended a student who had refused to take down a 14-foot
banner proclaiming “BONG HiTS 4 JESUS” that he had unfurled at a school-sanctioned event
(to watch the Olympic Torch Relay as it proceeded on a nearby street.)
Chief Justice Roberts wrote for the five-member conservative majority. Roberts wrote
that while the message on the banner is “cryptic,” the principal believed the banner would be
interpreted by viewers as promoting illegal drug use “and that interpretation is plainly a
reasonable one.” He concluded: “The ‘special characteristics of the school environment,’
Tinker, 393 U.S., at 506, and the governmental interest in stopping student drug abuse . . . allow
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schools to restrict student expression that they reasonably regard as promoting illegal drug use.”
Id. at 408.
Thus in the school context the Court condones suppression of speech that is not only tied
to its content, but even to its viewpoint. Tinker arguably permits suppression based on viewpoint
(the courts disagree on this point), but only where substantial disruption to the educational
environment can be shown. No factual showing of substantial disruption is needed under Morse
v. Frederick.
Justice Clarence Thomas wrote a concurrence in Morse to state his view that the standard
set forth in Tinker has no basis in the Constitution. He thinks there are no First Amendment
rights of students in the public schools, based on the original understanding. Schools were
places of strict discipline where the legal doctrine of in loco parentis prevailed.
Justice Alito also wrote a concurring opinion, joined by Justice Kennedy. This
concurrence is critical, since Alito and Kennedy are part of the five-justice majority, yet the
concurring opinion seeks to limit the scope of the ruling. Alito wrote that he joined the opinion
on the understanding that “(a) it goes no further than to hold that a public school may restrict
speech that a reasonable observer would interpret as advocating illegal drug use and (b) it
provides no support for any restriction of speech that can possibly be interpreted as commenting
on any political or social issue.”
Alito wrote: “The opinion of the Court does not endorse the broad argument advanced
by petitioners and the United States that the First Amendment permits public school officials to
censor any student speech that interferes with a school’s ‘educational mission.’” (Emphasis
added.) Alito wrote that the “educational mission” argument “can easily be manipulated in
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dangerous ways,” noting that public schools may define their educational missions “as including
the inculcation of whatever political and social views are held” by elected and appointed public
officials.
As to the holding of the Court that public schools may ban speech advocating illegal drug
use, Alito wrote: “I regard such regulation as standing at the far reaches of what the First
Amendment permits.”
Justice Stevens wrote the dissent, joined by Justices Souter and Ginsburg. Stevens
emphasized that Frederick himself said the message was gibberish and not intended to promote
drug use; he just wanted to get on national TV. The principal’s decision to remove the 14-foot
banner could have been justified based on a “concern about a nationwide evaluation of the
conduct of the JDHS student body.” So the dissent does not disagree with the lawfulness of the
principal’s action in fact. But Stevens argues that the anti-drug rationale cannot be used to
justify Frederick’s discipline. Even if restricting speech that truly advocates drug use were
permissible, Stevens wrote, “[i]t is another thing entirely to prohibit an obscure message with a
drug theme that a third party subjectively – and not very reasonably – thinks is tantamount to
express advocacy.” It is “a nonsense message.”
Admittedly, some high school students (including those who use drugs) are dumb. Most
students, however, do not shed their brains at the schoolhouse gate, and most students
know dumb advocacy when they see it. The notion that the message on this banner
would actually persuade either the average student or even the dumbest one to change his
or her behavior is most implausible. That the Court believes such a silly message can be
proscribed as advocacy underscores the novelty of its position, and suggests that the
principle it articulates has no stopping point.
Thus, Stevens noted the tragic consequences of teenage alcohol consumption, and states
that a school’s “interest in deterring teenage alcohol use is at least comparable to its interest in
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preventing marijuana use.” So, “must the First Amendment give way whenever a school seeks
to punish a student for any speech mentioning beer . . .?”
II. Actionable Harassment
Efforts to curb harassment in the schools butt up against the First Amendment principles
discussed above.
The law protecting employees from harassment is well developed. Harassment on the job
can be a form of employment discrimination prohibited under both federal law (Title VII of the
Civil Rights Act of 1964) and Vermont law (The Vermont Fair Employment Practices Act or
FEPA). Most particularly in the area of sex discrimination, courts have recognized that
employers may be liable for what is known as “hostile environment” harassment. The landmark
case is Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), in which the U.S. Supreme Court
held that Title VII prohibits abusive and discriminatory conduct that creates a hostile
environment – harassment sufficiently severe or pervasive so as “to alter the conditions of the
victim’s employment and create an abusive working environment.” Id. at 67. The Court later
clarified that in order for conduct to constitute harassment under this theory it must be viewed
subjectively by the victim as harassment and be objectively severe or pervasive enough that a
reasonable person would agree that it is harassment. Harris v. Forklift Systems, Inc., 510 U.S.
17, 21-22 (1993); Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 80 (1998).
An analogous cause of action protects students from severe harassment under the federal
and state statutes prohibiting discrimination in places of “public accommodation.” Title VI of
the Civil Rights Act of 1964, 42 U.S.C. § 2000d, prohibits discrimination on the basis of race,
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color or national origin with respect to participation in programs receiving federal financial
assistance. Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681(a), provides that
“[n]o person . . . shall, on the basis of sex, be excluded from participation in, be denied the
benefits of, or be subjected to discrimination under any education program or activity receiving
federal financial assistance.” And § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794,
contains similar protections for people with disabilities.
The first application of hostile environment doctrine to public school students involved
harassment of a student by a teacher. See Franklin v. Gwinnett County Public Schools, 503 U.S.
60 (1992). In 1999, however, the Supreme Court held in Davis v. Monroe County Board of
Education, 526 U.S. 629 (1999), that Title IX also permits a plaintiff to recover damages from a
federally funded public school for certain cases of student-on-student sexual harassment. The
case involved a fifth grade girl who had allegedly been subjected to severe and long-term
harassment and humiliation by a male classmate. The Court held that a damages action was
available against the school district in cases of peer harassment, “but only where the funding
recipient acts with deliberate indifference to known acts of harassment in its programs or
activities” and “only for harassment that is so severe, pervasive, and objectively offensive that it
effectively bars the victim’s access to an educational opportunity or benefit.” Under the Court’s
decision, the school will be “deemed ‘deliberately indifferent’ to acts of student-on-student
harassment only where the recipient’s response to the harassment or lack thereof is clearly
unreasonable in light of the known circumstances.”
In Washington v. Pierce, 2005 VT 125, 179 Vt. 318, the Vermont Supreme Court held
that the Vermont Public Accommodations Act, 9 V.S.A. §§ 4500-4507, similarly provides a
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remedy for student-on-student harassment, but rejected the “deliberate indifference” test in favor
of a “standard” (in my view, incoherent) that the complainant exhaust her administrative
remedies or show a valid reason for bypassing those remedies. Id. ¶¶ 4 and 35, 179 Vt. at 320,
332. (Incoherent because exhaustion is a threshold requirement, not a standard for liability; the
Court needed to but didn’t ask whether the school’s response to the incident was reasonable.)
Note that the harassing conduct that might subject a school to liability under Title IX and
the Vermont Public Accommodations Act must be serious. To quote the Davis v. Monroe Court
majority:
Whether gender-oriented conduct rises to the level of actionable “harassment”
thus “depends on a constellation of surrounding circumstances, expectations, and
relationships,” including, but not limited to, the ages of the harasser and the victim and
the number of individuals involved. Courts, moreover, must bear in mind that schools
are unlike the adult workplace and that children may regularly interact in a manner that
would be unacceptable among adults. Indeed, at least early on, students are still learning
how to interact appropriately with their peers. It is thus understandable that, in the school
setting, students often engage in insults, banter, teasing, shoving, pushing, and genderspecific conduct that is upsetting to the students subjected to it. Damages are not
available for simple acts of teasing and name-calling among school children, however,
even where these comments target differences in gender. Rather, in the context of
student-on-student harassment, damages are available only where the behavior is so
severe, pervasive, and objectively offensive that it denies its victims the equal access to
education that Title IX is designed to protect.
(citations omitted). Davis v. Monroe, by the way, was decided by a 5 to 4 majority. (O’Connor
was the swing vote who joined the four “liberals” to make a majority. The decision easily could
have gone the other way, against any federal cause of action in peer harassment cases.)
III. School Anti-Harassment Policies
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A legal dilemma arises when a school seeks to regulate or prohibit offensive verbal
conduct by students, both to protect itself from liability and, more fundamentally, to promote a
respectful and safe learning environment, but without offending First Amendment principles.
The First Amendment protects the expression and communication of ideas, even (perhaps
especially) offensive ideas. Arguably, the Vermont statutes designed to prevent harassment in
the schools go too far in this regard.
16 V.S.A. § 565 mandates that school boards adopt policies prohibiting harassment of
students, and that these policies include the definition of harassment set forth in 16 V.S.A. §
11(a)(26). The latter section sets forth the following definition:
“Harassment” means an incident or incidents of verbal, written, visual, or physical
conduct based on or motivated by a student’s or a student’s family member’s actual or
perceived race, creed, color, national origin, marital status, sex, sexual orientation, gender
identity, or disability that has the purpose or effect of objectively and substantially
undermining and detracting from or interfering with a student’s educational performance
or access to school resources or creating an objectively intimidating, hostile, or offensive
environment.
(Emphasis added.)
IV. Resolving the Tension
1. Saxe: Harassment Policy Violates First Amendment
A 2001 decision of the U.S. Court of Appeals for the Third Circuit held that a
Pennsylvania public school district’s anti-harassment policy, which included an almost identical
definition as Vermont’s (prior to its 2003 amendment), violated the First Amendment. Saxe v.
State College Area School District, 240 F.3d 200 (3d Cir. 2001) (Alito, J.). The case involved
Christian students who wanted to speak out about what they believed was the sinful nature of
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homosexuality; they feared they would be punished under the policy for speaking with the
purpose or effect of creating an offensive environment for certain other students. The problem
with the Pennsylvania school district’s policy, according to the Third Circuit, was that it
subjected a much broader swath of speech to regulation by school authorities than is permitted
by the First Amendment.
A few passages from the Saxe decision explicate the dilemma:
Moreover, the Policy’s prohibition extends beyond harassment that objectively
denies a student equal access to a school’s education resources. Even on a narrow
reading, the Policy unequivocally prohibits any verbal or physical conduct that is based
on an enumerated personal characteristic and that “has the purpose or effect of
substantially interfering with a student’s educational performance or creating an
intimidating, hostile or offensive environment.” Unlike federal anti-harassment law,
which imposes liability only when harassment has “a systemic effect on educational
programs and activities,” Davis, 526 U.S. at 633, the Policy extends to speech that merely
has the “purpose” of harassing another. This formulation, by focusing on the speaker’s
motive rather than the effect of speech on the learning environment, appears to sweep in
those “simple acts of teasing and name-calling” that the Davis Court explicitly held were
insufficient for liability.
...
. . . Nor could the school constitutionally restrict, without more, any “unwelcome verbal .
. . conduct directed at the characteristics of a person’s religion.” The Supreme Court has
held time and again, both within and outside of the school context, that the mere fact that
someone might take offense at the content of speech is not sufficient justification for
prohibiting it. See Tinker, 393 U.S. at 509 (school may not prohibit speech based on the
“mere desire to avoid the discomfort and unpleasantness that always accompany an
unpopular viewpoint”); Texas v. Johnson, 491 U.S. 397, 414 (1989) (“If there is a
bedrock principle underlying the First Amendment, it is that the government may not
prohibit the expression of an idea simply because society finds the idea itself offensive or
disagreeable.”) . . . .
...
In short, the Policy, even narrowly read, prohibits a substantial amount of nonvulgar, non-sponsored student speech. SCASD [State College Area School District] must
therefore satisfy the Tinker test by showing that the Policy’s restrictions are necessary to
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prevent substantial disruption or interference with the work of the school or the rights of
other students. Applying this test, we conclude that the Policy is substantially overbroad.
As an initial matter, the Policy punishes not only speech that actually causes
disruption, but also speech that merely intends to do so: by its terms, it covers speech
“which has the purpose or effect of” interfering with educational performance or creating
a hostile environment. This ignores Tinker’s requirement that a school must reasonably
believe that speech will cause actual, material disruption before prohibiting it.
In addition, even if the “purpose” component is ignored, we do not believe that
prohibited “harassment,” as defined by the Policy, necessarily rises to the level of a
substantial disruption under Tinker. We agree that the Policy’s first prong, which
prohibits speech that would “substantially interfer[e] with a student’s educational
performance,” may satisfy the Tinker standard. The primary function of a public school
is to educate its students; conduct that substantially interferes with the mission is, almost
by definition, disruptive to the school environment.
The Policy’s second criterion, however – which prohibits speech that “creat[es] an
intimidating, hostile, or offensive environment” – poses a more difficult problem. There
are several possible grounds on which SCASD could attempt to justify this prohibition.
First, SCASD could argue that it has an interest in avoiding liability for harassment under
Franklin and Davis. However, because the Policy prohibits substantially more conduct
than would give rise to liability under these cases, this justification is unavailing.
Second, SCASD could argue that speech creating a “hostile environment” may be
banned because it “intrudes upon . . . the rights of other students.” Tinker, 393 U.S. at
504. The precise scope of Tinker’s “interference with the rights of others” language is
unclear; at least one court has opined that it covers only independently tortious speech
like libel, slander or intentional infliction of emotional distress. In any case, it is certainly
not enough that the speech is merely offensive to some listener. Because the Policy’s
“hostile environment” prong does not, on its face, require any threshold showing of
severity or pervasiveness, it could conceivably be applied to cover any speech about
some enumerated personal characteristics the content of which offends someone. This
could include much “core” political and religious speech: the Policy’s “Definitions”
section lists as examples of covered harassment “negative” or “derogatory” speech about
such contentious issues as “racial customs,” “religious tradition,” “language,” “sexual
orientation,” and “values.” Such speech, when it does not pose a realistic threat of
substantial disruption, is within a student’s First Amendment rights.
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The legal terrain here is contested and evolving. The Third Circuit’s decision expresses
only one view. But it suggests that schools may want to qualify their anti-harassment policies
with a caveat such as the following:
It is the intent of the District to apply and enforce this policy in a manner that is
consistent with and protects students’ rights to free expression under the First
Amendment. The District respects and promotes the rights of students and others to
speak freely and to express their ideas, including ideas that may offend the sensibilities of
others. The purpose of the Harassment Policy is to prevent conduct or communication
that is directed at a person’s characteristics as listed above and that substantially disrupts
the work of the school or interferes with the rights of others.
2. Confederate Flag T-Shirt Prohibition Upheld
In Barr v. Lafon, 538 F.3d 554, 566-67 (6th Cir. 2008), pet. for reh’g denied, 553 F.3d
463 (2009), cert. denied, 130 S.Ct. 63, the Sixth Circuit, applying Tinker, concluded that
students’ display of the Confederate flag on clothing could lead to disruption and interference
with the learning process given the background of racial threats and tension in the school;
therefore, suppression did not violate the First Amendment.
3. Anti-Gay T-Shirt Prohibition Upheld
In Harper v. Poway Unified School District, 445 F.3d 1166 (9th Cir. 2006), cert. granted;
judgment vacated as moot, 549 U.S. 1262 (2007), the Ninth Circuit (Reinhardt, J.) affirmed the
denial of a preliminary injunction to plaintiff student, because he was not likely to succeed on the
merits, who sued his school after being barred from wearing a T-shirt emblazoned with the
slogan “Homosexuality is shameful.” The court relied on Tinker: schools may prohibit speech
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that “intrudes upon . . . the rights of other students.” Id. at 1175, 1177. “We conclude that
Harper’s wearing of his T-shirt ‘colli[des] with the rights of other students’ in the most
fundamental way. Public school students who may be injured by verbal assaults on the basis of a
core identifying characteristic such as race, religion, or sexual orientation, have a right to be free
from such attacks while on school campuses.” Id. at 1178. “The demeaning of young gay and
lesbian students in a school environment is detrimental not only to their psychological health and
well-being, but also to their educational development.” Id. at 1178-79 (citing research). Note,
however, the vigorous dissent by Judge Kozinski.
Reinhardt’s theory is that elementary and high schools may prohibit “demeaning slogans
. . . relating to a core characteristic of particularly vulnerable students and that may cause them
significant injury.” Id. at 1182. Tinker would not, he wrote, permit banning a T-shirt that
proclaimed “Young Democrats Suck,” or shirts that denigrate the President or oppose the war in
Iraq. Id. And he would not extend the rule to public universities. Id. at 1183.
In footnote 21, the Harper Court said this (citations omitted) about the Third Circuit’s
Saxe decision:
Saxe considered the validity of a school district’s anti-harassment policy, a question we
do not address here. Although in its discussion of a provision regarding “hostile
environment,” Saxe briefly alludes to the “interference with the rights of others” prong of
Tinker, it appears to conflate that prong with the “substantial disruption” prong and to
suggest, perhaps inadvertently, that injurious slurs may not be prohibited unless they also
cause substantial disruption. That clearly is not the case. The two Tinker prongs are
stated in the alternative. We agree, however, with Saxe’s conclusion that “it is certainly
not enough that the speech is merely offensive to some listener.”
V. Computer Sites and Off-Campus Speech
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Wisniewski v. Board of Education of the Weedsport Central School District, 494 F.3d 34,
is a Second Circuit case decided in 2007, affirming a grant of summary judgment awarded to the
school board and superintendent. They were sued for suspending a middle-school student who
had, from his home computer, shared an Instant Messaging exchange with several friends where
he used as an icon a crude drawing of a pistol firing a bullet at the head of a man identified as the
student’s English teacher. The Court (Newman, J.) decided the case under the Tinker standard:
that “it was reasonably foreseeable that Wisniewski’s communication would cause a disruption
within the school environment.”
The student used the IM program from his parents’ home computer, to exchange
messages with a group of his buddies, some of whom were his middle school classmates. He
had created an identifier icon, which remained on the screen during the exchange of messages.
His icon was “a small drawing of a pistol firing a bullet at a person’s head, above which were
dots representing splattered blood. Beneath the drawing appeared the words “Kill Mr.
VanderMolen.’” The student did not send any messages to this teacher or to any other school
official. However, it came to the attention of another classmate, who informed the teacher and
later supplied him with a copy of the icon. The student was suspended, and the teacher asked
and was allowed to stop teaching that class. As it happens, a police investigator who interviewed
the student concluded that the icon was meant as a joke and that the student posed no real threat.
A psychologist who evaluated him also found that he had no violent intent and posed no threat.
Nevertheless, a hearing officer designated by the superintendent found that the icon was
threatening and that, although it took place outside of school, was in violation of school rules and
“disrupted school operations by requiring special attention from school officials, replacement of
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the threatened teacher, and interviewing pupils during class time.” The student was suspended
for one semester.
The district court determined that the icon was reasonably understood to be a “true
threat” lacking protection under the First Amendment. The Second Circuit, however, did not
resolve the question of whether it was a “true threat.” Rather, the Court applied the Tinker
standard: “With respect to school officials’ authority to discipline a student’s expression
reasonably understood as urging violent conduct, we think the appropriate First Amendment
standard is the one set forth by the Supreme Court in Tinker.”
Thus, “we conclude that it crosses the boundary of protected speech and constitutes
student conduct that poses a reasonably foreseeable risk that the icon would come to the attention
of school authorities and that it would ‘materially and substantially disrupt the work and
discipline of the school.’” Id. at 38-39.
But note that the disruption as found by the hearing officer was, at least in part, the
disruption caused not by the speech act itself but by the investigation that ensued. If this
student’s icon is not found to be truly threatening to a reasonable person, then isn’t the teacher’s
request to not teach the class an overreaction?
The fact that the creation and transmission of the icon occurred away from school
property did not insulate the student from school discipline. Off-campus conduct can create a
foreseeable risk of substantial disruption within the school. This, at least, is the law in this
Circuit.
Query: Is the rationale limited to violent expressions? What if a middle-school student
IMed her buddies that she had a crush on a particular teacher; might it not be equally foreseeable
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that it would come to the attention of school authorities and that the information could disrupt
discipline at the school?
Free speech, however, wins in Layshock v. Hermitage School District, 593 F.3d 249 (3d
Cir. 2010). A high school student used his grandmother’s computer during non-school hours to
create a fake MySpace “profile” of the school’s principal, a rude parody with some obscenity and
references to drug use. He shared it with “friends” and, of course, it eventually came to the
attention of school authorities. The student was punished. Held, the district violated the
student’s First Amendment rights, as the “conduct did not disturb the school environment and
was not related to any school sponsored event.” Id. at 251. The decision seeks to distinguish
Wiesniewski as having involved disruption to the school. Id. at 262.
But the opposite result obtains in J.S. v. Blue Mountain School District, 593 F.3d 286 (3d
Cir. 2010), decided by a different panel of the Third Circuit on the same day as Layshock. A
middle school student was suspended after creating on her home computer a fake MySpace
profile of her principal (using his photograph but not his name). This one included “profanitylaced statements insinuating that he was a sex addict and pedophile.” Id. at 290. Because
“school authorities could reasonably have forecasted a substantial disruption of or material
interference with the school as a result of the MySpace profile,” the court held that the district
did not violate the student’s First Amendment rights. Id. (citing Tinker). This was so even
though the examples of actual disruption in the record were not sufficiently substantial to meet
the test. Id. at 299. The court explicitly cites the website’s “particularly disturbing content” as
one reason for concluding that substantial disruption was reasonably foreseeable absent quick
corrective actions. Id. at 300-310. Judge Chagares dissented.
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