Blue Mtn and Layshock handouts

Social Media Update

Karen Haase Harding H di & Shultz Sh lt (402) 434-3000 khaase@hslegalfirm.com H & S School Law @KarenHaase

J.S. v. Blue Mountain Sch. Dist.

J.S. v. Blue Mountain Sch. Dist.  Middle School Student made fake MySpace profile for principal • Included photo from school website • Initially public; then limited • Students could only access off campus • Student suspended for 10 days; parents sued d

J.S. v. Blue Mountain Sch. Dist.  Third Circuit • “off “ ff campus speech h th thatt causes or reasonably threatens to cause a substantial disruption of or material interference with a school need not satisfy any geographic technicality in order to be regulated pursuant to Tinker.”

• Dissent: i no one would take profile fi seriously

Layshock v. Hermitage Sch. Dist

Layshock v. Hermitage Sch. Dist  High School Student made fake MySpace profile for principal • Included photo from school website • Other students created similar and more offensive ff i profiles fi • Students only accessed off campus • Student suspended for 10 days; placed l d iin alt. l sch, h banned b d ffrom extracurriculars, no commencement

Layshock v. Hermitage Sch. Dist  Third Circuit • No nexus under Tinker • No evidence of disruption • School Didn’t Meet Bethel Sch. Dist. v. Fraser – no relationship between expression and school

J.S. and Layshock Inconsistent  Third Circuit granted en banc rehearing  Oral Argument June 3, 2010  Decision issued June 13, 2011  The Bottom Line? Schools lost both cases

J.S. and Layshock  Key legal points • School can’t punish off-campus speech because it is vulgar, inappropriate or even criminal • School S can only punish i off-campus ff p that is substantiallyy speech disruptive

What About the Staff?  “We recognize that vulgar and offensive speech such as that p y in this case – even made in employed just – could damage the careers of teachers and administrators and we conclude only that the punitive action taken by the school district violated the First Amendment free speech rights i ht off JS.” JS ”  i.e. “We don’t care”

Doninger v. Neihoff (2ndd Cir. Cir 2008) Student posted on personal blog School prohibited her for running for class office b/c conduct on the blog was unbecoming for class officer & post created a risk of disruption Ct N Ct: No Fi Firstt A Amendment d t violation i l ti No need to consider p propriety p y of other possible discipline

Kowalski v. Berkeley Co Schs (4th Cir. Ci 2011) Student created MySpace group harassing another student Creator of the page received • 10 10-day day suspension from school • 90-day “social suspension” Ct speech Ct.: h caused d substantial b t ti l disruption, p , therefore discipline p appropriate

Fulmer v. Swidler (Pa. 2003)  Middle school student created Teacher Sux Sux” website “Teacher • Compared math teacher to Hitler • Had picture of her decapitated • Asked for contributions toward hit man  Teacher sued  Jury awarded $500,000  Similar Si il suit it by b principal i i l settled ttl d

D.C. v. R.S. (Cal. 2010)  High school student posted on victim’s website • I want to rip out your f-ing f ing heart and feed it to you.

• I've I' wanted t d to t kill you.

• If I ever see yyou I'm ggoing g to pound p yyour head in with an ice pick.  Family sued; defendant said just a joke  Court: not protected speech

Sauerhaft v. Bd. Of Ed. (NY 2009)  Student e-mailed peer on school acc’t: • FATTYFATTYFATTYFATTY fatty f tt mcfatfat wow you are one fat f**k and everyone hates h t you • Show me yyour tits • You you fat f**k I want to have sex with you in the middle of the night ….  Recipient sued claiming violation of Title IX and § 1983

Social Media Update

Karen Haase Harding H di & Shultz Sh lt (402) 434-3000 khaase@hslegalfirm.com H & S School Law @KarenHaase