In today’s society, social networking among students, faculty, and staff is the norm. Social networks such as Facebook, Twitter, and MySpace offer individuals the ability to communicate with fellow students, friends, and colleagues on a daily basis. These social network sites, in addition to providing a number of benefits, also create a variety of First Amendment and jurisdiction issues both for school officials, who must deal with claims of cyber-bullying, harassment, and libel, and for students.

In the Third Circuit, two recent decisions provide some guidance on the limits of school officials’ ability to discipline students for postings on social networking sites created on computers outside school grounds. In Layshock v. Hermitage School District, No. 07-4465, and J.S. v. Blue Mountain School District, No. 08-4138, students created fake MySpace.com profiles parodying their principals, mocking them through crude and vulgar language. After the profiles – which caused a flurry of student gossip at both schools – were discovered, both students were disciplined. In Layshock, the high school student in question was suspended for ten days, ordered to finish high school in an alternative education program, and barred from attending his graduation. In J.S., the middle school student in question was suspended from school for ten days.

The American Civil Liberties Union of Pennsylvania filed suit on behalf of the students against their respective school districts. The students argued that disciplining them for off-campus speech violated their First Amendment rights. The school districts argued that the MySpace profiles were vulgar and offensive, and deliberately designed to come onto school property and disrupt school activities.

The district court in Layshock sided with the student and held the school violated the student’s First Amendment rights. It found that “[t]he mere fact that the Internet may be accessed at school does not authorize school officials to become censors of the World Wide Web. Public schools are vital institutions, but their reach is not unlimited.” The district court in J.S. reached the opposite conclusion, and found that the school’s ability to discipline students was not limited to on-campus conduct. It found that a “school can validly restrict speech that is vulgar and lewd and also it can restrict speech that promotes unlawful behavior.” Although the district court found no substantial disruption of school activities, it concluded the school district’s disciplinary action was constitutionally permissible under the Supreme Court’s Fraser standard because the eighth grader’s posting was “vulgar and offensive.”

In February 2010, separate Third Circuit panel decisions issued on the same day upheld the district courts, creating an appearance of a conflict. Thereafter, the Third Circuit held rehearings en banc on both cases. In separate opinions issued on June 13, 2011, the Third Circuit ruled unanimously in favor of the student in Layshock, finding “the First Amendment prohibits the school from reaching beyond the schoolyard to impose what might otherwise be appropriate discipline.” A divided court (8-6) ruled in favor of J.S., holding that the student was “suspended from school for speech that indisputably caused no substantial disruption in school” and that the school district therefore violated her First Amendment free speech rights.

Both opinions discuss landmark Supreme Court student speech cases, relying heavily on Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 513 (1969), which held, in the context of a high school Vietnam War protest, that 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 later Supreme Court decisions – Bethel School District No. 403 v. Fraser, 478 U.S. 675 (1986), Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988), and most recently, Morse v. Frederick, 551 U.S. 393 (2007) – the Supreme Court distinguished Tinker and upheld schools’ authority to discipline students for lewd, indecent, or offensive speech on school grounds or at school-sanctioned activities.

Acknowledging this line of cases, the Third Circuit’s en banc decision in Layshock held that Morse and its predecessors do not “allow the School District to punish [the student] for expressive conduct which occurred outside of the school context.” Alluding to Tinker, the Third Circuit noted that “we have found no authority that would support punishment for creating such a [social network site] profile unless it results in a foreseeable and substantial disruption at school.”

Likewise, in J.S., the Third Circuit, sitting en banc, found two facts demonstrating that the student could not be disciplined for the off-campus speech. First, the court noted that the school district acknowledged that no substantial disruption at school resulted from J.S.’s speech. Second, the Third Circuit noted that “the profile was so outrageous that no one took its content seriously.” In addition, the Third Circuit disposed of the school district’s argument that it had the authority to discipline the student because the speech was lewd. Applying Fraser’s ”lewdness” standard, the Third Circuit held the standard could not be “extended to justify a school’s punishment of J.S. for use of profane language outside the school, during non-school hours.”

The dissent in J.S. argued that school officials should have the discretion to penalize out-of-school speech if it is designed to disrupt activities on a school campus. It expressed particular concern that J.S.’s profile alleged the principal had committed sexual misconduct. In this regard the dissent argued that unfairness resulted from the majority’s decision: “[O]ur Court leaves schools defenseless to protect teachers and school officials against such [personal] attacks and powerless to discipline students for the consequences of their actions.”

The dissent in J.S. is not alone in the belief that school officials should have discretion in penalizing out-of-school speech designed to disrupt activities on a school campus. In Doninger v. Niehoff, 527 F.3d 41 (2d Cir. 2008), the Second Circuit articulated the position espoused by the dissent in J.S. There, 17-year-old Avery Doninger vented her frustration at school officials’ decision to postpone a music festival she had been planning by posting misleading information about a school music festival on her profile at LiveJournal.com, a social networking and blogging site. After school officials discovered Doninger’s posting, they disqualified her from running for senior class secretary in the school’s upcoming elections, and Doninger sued, alleging a violation of her First Amendment rights. Based on these facts, the Second Circuit upheld the disciplinary action and held that Doninger’s posting created a “substantial disruption” at school, in part because the misleading post urged readers to complain to school district administrators, who received a “deluge of calls and e-mails.” In light of the dissent in J.S. and the conflict between the Second Circuit and Third Circuit decisions on when school officials can discipline students for off-campus speech, the stage may be set for the United States Supreme Court to review this issue should parties in Layshock and J.S. file petitions for certiorari.