Third Circuit (En Banc) Opines on K-12 Students’ Off-Campus Speech Rights

The long-awaited decisions are J.S. v. Blue Mountain School Dist. (decided by an 8-to-6 vote) and Layshock v. Hermitage School Dist. (unanimous); both were just handed down this morning. Here’s a quick summary, though the opinions are long and complicated, so my quick summary must necessarily omit many important details.

1. To begin with, here’s the background First Amendment rule: When the government acts as K-12 educator to discipline students for their speech — expel them, suspend them, eject them from various optional programs, and the like — it is constrained by the First Amendment. But it’s not as constrained by the First Amendment as it is when it’s acting as sovereign, locking people up or taking away their money based on speech. In particular, in addition to the usual First Amendment exceptions (such as the ones for libel, threats, fighting words, and so on), there are three more doctrines that might be seen as special K-12-school exceptions. The government may discipline students for speech that:

  1. “materially and substantially interfere[s] with the requirements of appropriate discipline in the operation of the school,” or at least that is “reason[ably] anticipate[d]” to have such an effect (Tinker v. Des Moines School Dist. (1969)),
  2. is “vulgar and offensive” because of its particular wording and not because of its viewpoint (Bethel School Dist. No. 403 v. Fraser (1986)), or
  3. “would [be] interpret[ed by a reasonable observer] as advocating illegal drug use and … can[not] plausibly be interpreted as commenting on any political or social issue, including speech on issues such as ‘the wisdom of the war on drugs or of legalizing marijuana for medicinal use,” Morse v. Frederick (2007) (I quote here Justice Alito’s concurrence, but the majority is consistent with this).

2. In both J.S. and Layshock, students set up Web pages that purported to be their principals’ self-descriptions. Both pages were ridiculous, offensive, and fake — pretty obviously fake, in the courts’ view (which I think was the correct view). The J.S. page also purported to involve the principal’s saying that he was a “sex addict” and was interested in “hitting on students and their parents.” One important question in both cases was whether this speech could be restricted even though it was said off-campus, and could be expected to be read largely off-campus — though of course in this day some on-campus access would be expected.

3. The two opinions answered only part of this important question:

a. The court unanimously held that the Fraser exception for vulgar-and-offensive speech applied only in school and school-sanctioned activities (though it acknowledged that the line between in-school and outside-school can be blurry at times).

b. The court also held that the speech in both cases didn’t pass the Tinker disruptiveness threshold: The government didn’t have sufficient “reason to anticipate” that the speech would “materially and substantially interfere[] with the requirements of appropriate discipline in the operation of the school.” This was quite controversial in J.S. (that’s the matter on which the judges split 8-to-6). The dissenters thought that J.S.’s references to sexual impropriety involving students — even in the over-the-top and seemingly jocular context in which they were made — were sufficiently likely to be disruptive to warrant discipline, because they could lead to school district investigations to see whether the accusations were in fact serious and well-founded, because they could undermine the principal’s authority (and that of his wife, a school counselor who was also insulted in the post), and because they could be highly stressful and demoralizing to the principal and his wife.

The majority disagreed, arguing that the threshold for likelihood of substantial disruption was higher. “[T]he profile, though indisputably vulgar, was so juvenile and nonsensical that no reasonable person could take its content seriously, and the record clearly demonstrates that no one did.” And, “[i]f Tinker’s black armbands — an ostentatious reminder of the highly emotional and controversial subject of the Vietnam war — could not ‘reasonably have led school authorities to forecast substantial disruption of or material interference with school activities,’ neither can J.S.’s profile, despite the unfortunate humiliation it caused for [the principal].”

c. But the court did not decide whether outside-school speech could lead to punishment of students when it is seen as “disruptive” enough under Tinker. Five judges in concurrence said that the Tinker exception did not extend to outside-school speech (though again with an acknowledgment that the in-school/outside-school line may be blurry). Six judges in dissent said that it did extend to outside-school speech. The other three didn’t express an opinion.

This is obviously a very important issue. If Tinker applies to outside-school speech, then school authorities would essentially get 24-7 control over a wide range of speech, including political and religious speech, whenever students — or even teachers or administrators — get so upset by it that substantial disruption results at school.

Here’s the example the concurrence gave: “Suppose a high school student, while at home after school hours, were to write a blog entry defending gay marriage.” (One could equally hypothesize a blog entry criticizing gay marriage, or a statement in a TV interview saying that “the trouble with this school is that we bus in all these black gang members” or “there are all these Muslim students at school who are demanding unreasonable accommodations, and I think many of them might support the terrorists.”)

Suppose further that several of the student‘s classmates got wind of the entry, took issue with it, and caused a significant disturbance at school. While the school could clearly punish the students who acted disruptively, if Tinker were held to apply to off-campus speech, the school could also punish the student whose blog entry brought about the disruption. That cannot be, nor is it, the law.

Two of the J.S. dissenters responded, in a concurrence in Layshock, that such speech just wouldn’t be covered by the Tinker exception as applied outside school:

Speech that neither relates to school nor occurs on campus or during a school sanctioned event will in all likelihood lack a reasonable nexus to school and so will be divorced from the question of good order in the school, which is the reach of Tinker. Thus, I do not share the concern expressed in the J.S. concurrence that applying Tinker to off-campus speech would “empower schools to regulate students‟ expressive activities,” or to “suppress political speech” such as “a blog entry defending gay marriage.”

But I can’t see why one can say this “in all likelihood.” Surely it’s quite possible that students might respond to outside-school speech with an in-school attack on the speakers. And if there’s reason to anticipate this — or if it has already happened once — then under the J.S. dissenters’ view, the school might take action against the outside-school speakers because their outside-school speech is indeed likely to cause in-school disruption.

In any event, this question remains unresolved in this case, because of the majority’s conclusion that the Tinker standard couldn’t be met even if it applied to outside-school speech.

d. Finally, the Third Circuit noted that it might not agree with Doninger v. Niehoff, a 2008 Second Circuit decision that found a substantial risk of disruption based on a student’s off-campus online insults of a principal. But it also noted that there was indeed more evidence of reasonably anticipated disruption at school in that case, and that the only penalty in that case involved disqualifying the students from running for student government office. “[F]or our purposes, it is particularly important to note that the court in Doninger was careful to explain that it ‘[had] no occasion to consider whether a different, more serious consequence than disqualification from student office would raise constitutional concerns.'”

UPDATE: I initially accidentally said that the Third Circuit held that the Fraser exception applied only outside school — of course the court held the Fraser exception applied only in school. Sorry for mistyping this!