As you may recall from our previous posts regarding student’s online speech, the summer of 2011 brought with it a split in the Circuit Courts regarding how to handle discipline of student’s off-campus online speech. Specifically, the cases J.S. v. Blue Mountain Sch. Dist. and Layshock v. Hermitage Sch. Dist. out of the Third Circuit and Kowalski v. Berkeley County Schools out of the Fourth Circuit, all three involving students’ online speech, were appealed to the Supreme Court. of the United States. The two cases from the Third Circuit ruled in favor of the students, finding that their speech was protected by the First Amendment, while the Kowalski v. Berkeley County Schools out of the Fourth Circuit, was decided in favor of the school district. Our hopes were that the Supreme Court would weigh in on this controversial issue of student’s off campus online speech and provide school districts and administrators with clear guidance regarding how to appropriately discipline students’ off-campus speech, but unfortunately, the Supreme Court has declined to hear the cases that were brought before it regarding off-campus online speech. So, where does that leave us?
As discussed elsewhere on our blog, schools in Connecticut should be aware of other Circuit Courts decisions regarding student’s off-campus online speech cases, but administrators and school officials should understand that the Second Circuit decision Doninger v. Niehoff, 527 F.3d 41 (2d Cir. 2008) is still the controlling authority for districts in Connecticut. As you may recall from earlier posts, the Second Circuit in the Doninger case held that the student was properly disciplined for her off-campus blog and was not permitted to run for class office as the conduct on the blog was unbecoming for a potential class officer, and the blog post created a foreseeable risk of substantial disruption at her school. The Second Circuit applied the Tinker analysis to the off-campus speech and found that the school could discipline for off-campus speech, which created a foreseeable risk of substantial disruption at her school. As such, Doninger was unsuccessful in her attempt to force the school district to allow her to run for class office. Hence, school districts in Connecticut should continue to follow the standard set in Doninger and apply the Tinker analysis to off-campus speech determine whether the off-campus speech created a foreseeable risk of substantial disruption or created a substantial disruption at school. In addition, school districts, if not already familiar, should become very familiar with the new language and requirements of the Connecticut bullying statute, including the provisions relating to cyberbullying, that became effective in July 2011.
It is interesting that the Supreme Court declined the opportunity to hear J.S. v. Blue Mountain Sch. Dist., Layshock v. Hermitage Sch. Dist. and Kowalski v. Berkeley County Schools, since the Supreme Court passed up an opportunity to resolve an apparent split of authority amongst the Circuits, leaving the Circuits to continue to develop further case law on this issue. As discussed previously on this blog, both J.S. v. Blue Mountain Sch. Dist. and Layshock v. Hermitage Sch. Dist. involved student’s creating fake MySpace profiles of school officials on their home computers that were vulgar, lewd and offensive and were suspended for ten days. The Third Circuit found in both the cases that the off-campus speech did not disrupt the school environment nor was there any reasonably foreseeable disruption that would have occurred from each student’s off-campus conduct and that the school district violated the First Amendment by punishing the students for expressive conduct that occurred outside the school context. Conversely, the Fourth Circuit in Kowalski v. Berkeley County Schools upheld the school’s discipline of a student who created a MySpace group, which was primarily aimed at harassing another student, stating that the student’s speech "caused interference and disruption described in Tinker as being immune from First Amendment protection."
For now, we follow Doninger and wait.