J.S. v. Blue Mountain School District: Third Circuit holds that vulgar MySpace profile created off school grounds did not cause “substantial disruption” at the school to justify student’s ten-day suspension

Digest Commentary First Amendment

J.S. v. Blue Mountain School District, No. 08-4138 (3d Cir. June 13, 2011) Slip Opinion

The Third Circuit, sitting en banc, reversed and remanded the Middle District of Pennsylvania’s ruling that suspension was an appropriate punishment for a student who created a fake MySpace account that made fun of her middle school principal. The court also affirmed the District Court’s ruling that the school district’s policies were not overbroad or void-for-vagueness.

The Third Circuit held that the fake MySpace profile, while vulgar and offensive, did not cause the type of “substantial disruption” which would have justified the ten-day suspension of the student. The profile was not accessible on any school computers (due to a filter), and while the school district asserted that the profile caused “general rumblings,” it could not point to any major disruption of classroom activities caused by the profile. The court applied the framework from Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), to analyze whether the student’s posting materially interfered with school activities, but it declined to directly address whether Tinker is limited to speech that occurs on campus.

Education Tech News provides an overview of this case, and the companion case Layshock v. Hermitage School District, No. 07-4465 (3d Cir. June 13, 2011) (involving another student who created a fake MySpace profile making fun of his principal). The Digest previously covered these cases when they were heard by Third Circuit panels and resulted in seemingly contradictory decisions. Wired provides a thorough analysis of the decision, noting that the Supreme Court “has not squarely addressed the student-speech issue as it applies to the digital world” and speculating that these “decisions might give the justices fodder to do so.”

The eighth grade student and plaintiff in the case, J.S., created the profile after being disciplined by the principal for dress code violations. The profile did not identify the principal by name, school, or location, but it did include his official photograph that J.S. copied from the school’s website. The profile used a variety of derogatory and sexual slang to refer to the principal and members of his family. The parties did not dispute that the profile was obviously outrageous and that nobody could have suspected the information in the profile was true. When J.S. initially created the profile, it was “public,” but one day later J.S. made the profile “private” and shared access with 22 other students. The principal learned about the profile from another student, and, after investigating, he contacted the police and suspended J.S. for ten days.

Circuit Judge Smith and four others concurred, but warned that applying Tinker to off-campus speech would empower schools to regulate expressive activity by students no matter where it occurs, so long as the speech somehow causes a substantial disruption at the school. Smith also acknowledged the difficulty the internet creates in defining a boundary between on-campus and off-campus speech.

Circuit Judge Fisher, joined by five others, dissented. The dissent disagreed with the majority’s assessment of the relevant facts, particularly the gravity of J.S.’s behavior in implying sexual misconduct by a school administrator who works with adolescents.

The majority and dissent also disagreed whether this decision creates a circuit split, pointing to the Second Circuit cases Doninger v. Niehoff, 2011 WL 1532289 (2d Cir. Apr. 25, 2011) and Thomas v. Board of Education, 607 F.2d 1043 (2d Cir. 1979). In both of those cases, students communicated messages exhorting hostility to school officials, which the Second Circuit found to be potentially disruptive. The J.S. majority attempted to distinguish this case from the Second Circuit cases by asserting that J.S. intended the MySpace profile to remain a private joke and not to reach the school.

This case continues the effort to establish boundaries between on-campus and off-campus for online activities, as well as what constitutes permissible, even if unsavory, student speech off-campus.