J.S. v. Blue Mountain Sch. Dist., No. 07-585 (M.D. Pa. Sept. 11, 2008)
A U.S. district court in Pennsylvania has ruled that school officials did not violate a student’s free speech rights by disciplining her for creating a parody online profile of her principal. Middle school student J.S. created a fake MySpace profile of James McGonigle, principal of Blue Mountain Middle School (BMMS). The profile did not identify Mr. McGonigle by name, but it identified him as principal and included a photograph of him from the school district’s website. The personal profile section depicted him as a pedophile and sex addict, for example by describing his interests as “… f***ing in my office, hitting on students and their parents.” Although the profile was created at J.S.’s home, word of its existence spread the next day at school and sparked a general “buzz” throughout the school. When Mr. McGonigle learned of it, he called J.S. to his office. Although J.S. initially denied any involvement, she then admitted creating the profile with another student. Mr. McGonigle determined that J.S. had violated the school discipline code, which prohibits the making of false accusations against school staff members, as well as the district’s computer use policy, which informs students that they cannot use copyrighted material without permission from the agency or website from which they obtain it. The latter policy was violated, according to the district, because the students had obtained the photo of the principal from the school’s website, and the district has the sole permission to use and display photographs contained on that website. When J.S. received a 10-day out-of-school suspension, she sued, alleging that Blue Mountain School District (BMSD) had violated the First Amendment by excluding her from classes for two weeks for a profile that was non-threatening, non-obscene, and a parody. Her lawsuit argued that the U.S. Constitution prohibits disciplining a student for out-of-school conduct that does not cause a disruption of classes or of school administration. J.S.’s parents also claimed BMSD’s actions violated their Fourteenth Amendment right to raise and educate their child as they see fit.
The court found “unconvincing” J.S.’s argument that, based on Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), BMSD was liable because it was unable to demonstrate the profile “caused, or was likely to cause, a substantial and material disruption at the school.” Her speech was more akin to the lewd and vulgar speech that the U.S. Supreme Court ruled in Bethel School District v. Fraser, 478 U.S. 675 (1986) was not protected by the First Amendment, the court found, noting that the profile contained derogatory expletives and “does not make any type of political statement.” Moreover, law enforcement had indicated to the principal that he could press criminal harassment charges against J.S. based on the fake profile. The court found that J.S. could be disciplined even though she created the profile off-campus. Even in the absence of any on-campus disruption caused by the profile, the court found, the totality of the facts demonstrated that “the lewd and vulgar off-campus speech had an effect on-campus.” The court rejected J.S. invoking of district court cases from elsewhere in the Third Circuit (DE, NJ, PA, V.I) in support of her position that nondisruptive off-campus speech cannot be restricted. These cases were distinguishable by the degree of vulgarity of speech in question, the court found.
J.S. v. Blue Mountain Sch. Dist., No. 07-585 (M.D. Pa. Sept. 11, 2008)
[Legal Clips Editor’s Note: One of the other district court cases the court distinguished, Layshock v. Hermitage School District, 496 F. Supp. 2d 587 (W.D. Pa. 2007), also involved an offensive fake profile of a principal. That case is currently on appeal to the Third Circuit and is described at the first link below. Earlier this year, the U.S. Court of Appeals for the Second Circuit (CT, NY, VT) ruled that a Connecticut school district that disciplined a student for vulgar and derogatory remarks made off-campus did not violate her free speech or equal protection rights. The Legal Clips summary of that decision is below.
A continually updated resource by NSBA Legal Research Specialist and Legal Clips writer Tom Burns currently summarizes 15 free speech cases involving student off-campus speech made online and nine cases involving other off-campus speech. A legal resource entitled "Blogging for Columbine" by your humble Legal Clips editor provides a legal overview of a range of issues concerning student online expression, along with practical tips for school officials. Each resource is available for a nominal download fee from COSA’s eDocs Store at links below.]
NSBA School Law pages on Layshock v. Hermitage Sch. Dist.
NSBA School Law pages on Doninger v. Niehoff
COSA eDocs Store resource on off-campus speech cases
COSA eDocs Store resource on student online expression