student speech

[J. Noble]

In Layshock v. Hermitage School District, 2006 WL 
240655, No. 2:06-CV-116 (W.D.Pa., Jan. 31, 2006), 
the Court denied preliminary relief to a high 
school student who was suspended for ten days, 
assigned for the remainder of the year to an 
alternative 3 hour/day program for students who 
can't be controlled in the classroom, and barred 
from school-sponsored events, including his 
graduation, for creating a sophomoric website 
that ridiculed the school principal. The opinion 
is at 
http://www.aclupa.org/downloads/CourtorderTRO.pdf, 
and there's a longer excerpt below, but in a 
nutshell: "The Court will assume arguendo that 
Justin's initial creation of the parody was 
conduct protected by the First Amendment. 
However, Defendants presented considerable 
evidence that Plaintiff's website caused actual 
disruption of the day-to-day operation of Hickory 
High School from December 12 through December 21, 
2005." Specifically, the Court pointed to the 
cancellation of some classes after the school 
shut down its computer system to prevent students 
from accessing the website.

It strikes me that there must be precedent in 
service of the obvious point that protected 
speech can't become punishable speech by virtue 
of its consequences. If there is room under 
Tinker to prohibit student speech that is likely 
to be disruptive, it does not allow the 
punishment of protected speech that turns out to 
be disruptive, never mind that the disruptive 
consequences are more directly caused by the 
suppression than the speech. Can anyone suggest a 
cite?

John Noble


>  *4 Plaintiffs frame the key issue in this case 
>as "whether a school district can punish a 
>student for posting on the Internet, from his 
>grandmother's home computer, a non-threatening, 
>non-obscene parody profile making fun of the 
>school principal." Verified Complaint at   1. 
>However, this characterization of the issue 
>fails to take into account whether Plaintiff's 
>actions "substantially disrupt[ed] school 
>operations or interfere[d] with the right of 
>others." Saxe v. State Coll. Area Sch. Dist., 
>240 F.3d 200, 214 (3d Cir.2001) (citations 
>omitted). The Court will assume arguendo that 
>Justin's initial creation of the parody was 
>conduct protected by the First Amendment. 
>However, Defendants presented considerable 
>evidence that Plaintiff's website caused actual 
>disruption of the day-to-day operation of 
>Hickory High School from December 12 through 
>December 21, 2005. Justin's parody of Trosch, as 
>well as the other parodies of unknown origin, 
>were accessed incessantly by students at Hickory 
>High School, which in turn caused the school to 
>shut down its computer system to student use 
>from December 16 through December 21, 2005. The 
>lack of access to the computer system caused the 
>cancellation of several classes and interfered 
>with students' ability to use the computers for 
>their school-intended purposes. During this 
>period of time Frank Gingras, the school 
>district's technology coordinator, was required 
>to devote approximately 25% of his time to 
>dealing with the disruption caused by the 
>profiles at www.myspace.com. This time was 
>consumed by attempts to block the numerous 
>addresses from which students were attempting to 
>access the profiles on school computers, as well 
>as efforts to install additional firewall 
>protections on the school's computer system.
>
>  It also appears as though the entire student 
>body of Hickory High School was abuzz about the 
>profiles, who created them, and how they could 
>be accessed. Teachers were monitoring the 
>comments of students and reporting students to 
>the Principal's office, which led to nine or ten 
>students being interviewed by Co-Principal Chris 
>Gill, who testified that he dedicated at least 
>25% to 30% of his time to dealing with the 
>disruptions and the investigation into the 
>source of the parodies. Justin also appears to 
>have violated the school's computer policy by 
>misappropriating Trosch's picture and posting it 
>on the parody, and by his attempt to access the 
>parody numerous times while using a computer in 
>his Spanish teacher's classroom (after the ban 
>on student computer use was in effect). Under 
>these circumstances Plaintiffs' actions appear 
>to have substantially disrupted school 
>operations and interfered with the right of 
>others, which, along with his apparent 
>violations of school rules, would provide a 
>sufficient legal basis for Defendants' actions. 
>Therefore, the Court finds and rules that 
>Plaintiffs have not demonstrated a reasonable 
>probability of success on the merits of the case.