Public schools may discipline pupils for their online speech spoken off-campus, a federal appeals court ruled Monday in two long-running cases testing student speech in the online world.

However, in the cases decided Monday, the 3rd U.S. Circuit Court of Appeals said Pennsylvania school districts overreacted and breached the First Amendment rights of two students by disciplining them for mocking their principals online, using computers that were off campus.

The Philadelphia-based appellate court cautioned that not all off-campus, student speech was protected. It based that conclusion on a 1969 Supreme Court ruling that held student expression may not be suppressed unless school officials reasonably conclude that it will “materially and substantially disrupt the work and discipline of the school.”

In that landmark case, the Supreme Court said students had a First Amendment right to wear black armbands to protest the Vietnam War. But that precedent, which addressed on-campus speech, is now being applied to students’ off-campus, online speech four decades later — a conclusion that some members of the court noted was wrong.

The U.S. Supreme Court, meanwhile, has not squarely addressed the student-speech issue as it applies to the digital world, and Monday’s decisions might give the justices fodder to do so.

In one of the cases decided Monday, the appeals court reversed itself from a year ago and said the school went too far in suspending for 10 days a 14-year-old junior high student. She mocked her principal with a fake MySpace profile. The 2007 profile insinuated the principal was a sex addict and pedophile.

In the same case last year the 3rd Circuit applied the 1969 Supreme Court precedent and used it against the student, identified in court documents as J.S. The 3rd Circuit had noted that teachers in the Blue Mountain School District complained that the profile disrupted the classroom because students were talking about the profile rather than paying attention in class.

“We decline to say that simply because the disruption to the learning environment originates from a computer located off campus, the school should be left powerless (.pdf) to discipline the student,” (.pdf) the three-judge circuit panel had written a year ago.

Fast forward to Monday.

The court, which had vacated that decision so it could rehear the case en banc with 14 judges, ruled 8-6 that “There is no dispute that J.S.’s speech did not cause a substantial disruption in the school,” (.pdf) Judge Michael Chagares wrote.

The dissent said the majority applied correct precedent, but reached the wrong conclusion.

“While I agree with the majority’s apparent adoption of the rule that off-campus student speech can rise to the level of a substantial disruption, I disagree with the court’s application of that rule to the facts of this case. The majority misconstrues the facts. In doing so, it allows a student to target a school official and his family with malicious and unfounded accusations about their character in vulgar, obscene, and personal language,” Judge Michael Fisher wrote for the dissent.

Five judges wrote separately that the court should abandon the 1969 precedent, Tinker v. Des Moines Independent Community School District, because it does not pertain to online speech.

In the other case decided Monday, which was also a rehearing of different year-old ruling, the court upheld its previous three-judge decision that Hermitage School District in Pennsylvania breached the First Amendment rights of a senior. The student, Justin Layshock, was suspended for 10 days for creating a mock profile of his principal on MySpace, which said he took drugs and kept beer at his desk.

The court, ruling 14-0, said “We need not now define the precise parameters of when the arm of authority can reach beyond the schoolhouse gate because, as we noted earlier, the district court found that Justin’s conduct did not disrupt the school.” (.pdf)

Wired

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