School District's Punishment For Out-Of-School Speech Is Unconstitutional, Says Group

FOR IMMEDIATE RELEASE
December 8, 2008

CONTACT: media@aclu.org

PHILADELPHIA – The American Civil Liberties Union of Pennsylvania will urge a federal appeals court on Wednesday to uphold a 2007 trial court ruling that the Hermitage School District violated a student's First Amendment rights when it punished him for posting, from a home computer during non-school hours, a parody profile lampooning his principal on the social networking Web site MySpace. The case, Layshock v. Hermitage School District, raises important and unresolved issues about minors' free-speech rights, the reach of school officials' authority, and parents' rights to direct and control their children's upbringing, especially inside the home.

"The most important issue in this case is how much authority, if any, school officials have to punish students for what they say or write outside the schoolhouse gate," said Witold J. Walczak, the ACLU of Pennsylvania's Legal Director, who will argue for the Layshocks. "While the Supreme Court has given school officials increased latitude to regulate what would otherwise be protected speech while students are in school, increased Internet usage has led to more disputes about student-speech rights off-campus, an area where the law is unclear."

In 2007, the U.S. Supreme Court, in what is known as the "Bong Hits 4 Jesus" case, noted that the issue of students' speech rights off campus is unresolved.

The school district, backed in a friend-of-the-court brief filed by the Pennsylvania School Boards Association, is arguing that school officials should have the authority to punish students for off-campus speech if it is directed at or about the school or its officials. The school district and PSBA also argue that school officials should have the authority to punish students' off-campus speech for simply being vulgar and even if it does not cause any disruption inside the school.

In January 2006, the Hermitage School District issued Justin Layshock a 10-day suspension for creating a parody MySpace profile of Hickory High School principal Eric Trosch, even though Layshock created the profile from a computer at his grandmother's house, during non-school hours, and his actions did not disrupt the school. The school district's punishment also included placing Layshock in an alternative education program despite his high performance in school, banning his attendance in extracurricular activities including Academic Games and foreign-language tutoring, and forbidding his attendance at his upcoming graduation ceremony.

The ACLU of Pennsylvania filed a federal lawsuit on behalf of Layshock and his parents charging that the school district did not have the authority to punish a student for off-campus speech and that doing so violated the parents' due process rights to direct their children's upbringing. While the court declined the Layshock's emergency motion to stop the punishments, the school district dropped the punishments shortly thereafter.

In July 2007, the district court judge ruled that the school's suspension violated Justin Layshock's free-speech rights because the school had failed to meet its burden to prove that the website created a "substantial and material disruption" in the school. In perhaps the most important passage from the decision, U.S. District Judge Terrence McVerry wrote, "The 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 trial judge, however, rejected the ACLU of Pennsylvania's argument that the school district's decision to punish Justin for speech in his own home violated the parents' right to direct and control their child's upbringing. The school district appealed the free-speech ruling and the ACLU of Pennsylvania appealed the parents'-rights decision.

"School officials are arguing for unprecedented power to discipline students for what they say at the mall or post online from their homes," said Walczak. "Such power would not only diminish juveniles' free-speech rights, but would severely undermine parents' authority to raise children based on their moral, religious and family values."

The case will be argued on Wednesday, December 10, at 1:30 p.m. EST in the U.S. Court of Appeals for the Third Circuit, 601 Market Street, Philadelphia, PA, 19106, in the Albert Bransom Maris Courtroom on the 19th Floor.

Attorneys on the case are Walczak and Sara Rose of the ACLU of Pennsylvania and Kim Watterson, Richard Ting and William Sheridan of the Pittsburgh law firm Reed Smith LLP. Fried-of-the-court briefs supporting the Layshocks have been filed by the Student Press Law Center and the Rutherford Institute.

More information about the case, including the Third Circuit briefs, is available online at: www.aclupa.org/legal/legaldocket/studentsuspendedforinterne.htm

Layshock's website can be viewed at: www.aclupa.org/downloads/Justinswebsite.pdf