The Third Circuit Court of Appeals has now ruled in two cases I discussed in a previous blog entry about disciplining students in school for out of school speech. Both cases, Layshock v. Hermitage School District and J.S. v. Blue Mountain School District involved students who created fake MySpace profiles of their school principals outside of school that contained false and, at the very least, suggestive information about the principals. However, in one case the Court found disciplining the student was allowed, but in the other it violated the student’s First Amendment rights. The Court focused in both cases on the issue of substantial disruption in the school setting or the potential for the same.

In Laystock, the Court found it particularly concerning that a school should be able to discipline a student for speech that occurs outside of the school setting, and found no evidence in the case to establish that there had been a substantial disruption in the school setting as a result of the profile. Interestingly, it is not suggested in the opinion that the school believed a substantial disruption was likely to occur if it failed to act. The Court found that the school could not discipline as there was no substantial disruption.

In J.S., the information contained in the profile was more vulgar than in Laystock and there was testimony that there was “a severe deterioration in discipline” in the school. The Court notes that the actual disruption was not sufficient itself to justify the discipline, but rather the immediate effect the profile had in the school setting and that a substantial disruption was reasonably foreseeable if the school did not act based upon what had been seen to date did. Accordingly, the Court found that discipline was permitted.

Thus, it appears that discipline may be given for out of school speech if that speech causes a substantial disruption in the school setting or if school officials can explain what they saw was happening and show that if they failed to act, there would likely be a substantial disruption.