Kelley Baker kbaker@hslegalfirm.com
Karen Haase
Steve Williams
Bobby Truhe
khaase@hslegalfirm.com @KarenHaase
swilliams@hslegalfirm.com
btruhe@hslegalfirm.com @BobbyTruhe
UNITED STATES SUPREME COURT DECLINES TO PROVIDE GUIDANCE ON STUDENT OFF-CAMPUS SPEECH The Supreme Court has denied review in two student internet speech cases that have been closely monitored by school attorneys and administrators alike. J.S. v. Blue Mountain Sch. Dist., and Layshock v. Hermitage Sch. Dist., both dealt with students who created fake and offensive social media profiles about their principals. Both students were disciplined; both sued the school district citing First Amendment free speech protection. The United States Court of Appeals for the Third Circuit eventually ruled against the schools in both cases. In Layshock, the Third Circuit determined that the district had violated the students free speech rights because it had not established a sufficient nexus to the school. The court also held that the district could not show that the speech had occurred on-campus so that it could be regulated under the "lewd/vulgar" standard enunciated in Bethel Sch. Dist. No. 403 v. Fraser (1986). In J.S., the Third Circuit assumed without holding that the substantial disruption standard from Tinker v. Des Moines School District (1969) applied, and determined that the school district had failed to demonstrate a reasonable forecast of disruption. The student's suspension, therefore, did not pass constitutional muster. The court went on to say that Fraser does not apply to student speech that occurs off-campus. Lawyers in Kowalski v. Berkeley Count Sch., also asked the Supreme Court to rule on student internet speech issues. There, the student had been disciplined for beginning a MySpace page that successfully encouraged offensive comments directed at a fellow student. A three-judge panel of the United States Court of Appeals for the Fourth Circuit found that the language of Tinker supports the conclusion that public schools have a compelling interest in regulating speech that interferes with or disrupts the work and discipline of the school, including discipline for student harassment and bullying. The panel determined that it was reasonably foreseeable that the speech would reach the school, so it was "satisfied that the nexus of Kowalski's speech to [the school]'s pedagogical interests was sufficiently strong to justify the action taken by school officials in carrying out their