Academic journal article Harvard Law Review

First Amendment - Student Speech - Third Circuit Applies Tinker to Off-Campus Student Speech

Academic journal article Harvard Law Review

First Amendment - Student Speech - Third Circuit Applies Tinker to Off-Campus Student Speech

Article excerpt

FIRST AMENDMENT--STUDENT SPEECH--THIRD CIRCUIT APPLIES TINKER TO OFF-CAMPUS STUDENT SPEECH.--J.S. ex rel. Snyder v. Blue Mountain School District, 650 F.3d 915 (3d Cir. 2011) (en banc).

Since at least Tinker v. Des Moines Independent Community School District, (1) the Supreme Court has struggled to strike the appropriate balance between public school students' First Amendment rights and schools' need to preserve order. With the recent rise of online communication and social media, the constitutional status of student speech that takes place outside school hours and off campus, but that can cause on-campus disruptions, has been increasingly contested. Recently, in J.S. ex rel. Snyder v. Blue Mountain School District, (2) the Third Circuit overturned a middle school student's suspension for posting, from her parents' home computer, a vulgar social networking profile that mocked her principal.(3) To reach that result, the court assumed, without deciding, that schools could punish students for off-campus speech, subject to the "substantial disruption" test articulated in Tinker. (4) Applying that test, the court found both that school officials could not have reasonably foreseen that the profile would cause substantial disruption at school and that it did not in fact cause substantial disruption. (5) Yet in doing so, the court dodged the relevant constitutional question. Before proceeding with the Tinker inquiry, the court should have reached the issue of the constitutional status of off-campus student speech and held that it should not be subject to on-campus discipline.

In 2007, J.S. was an eighth-grade student at Blue Mountain Middle School in Orwigsburg, Pennsylvania.(6) In March, she created a fake profile for her school principal, James McGonigle, on the social networking website MySpace.(7) The profile did not identify McGonigle by name or location, but it did contain his official school district photograph.(8) The contents of the profile were "vulgar" and "juvenile," (9) including listing McGonigle's interests as "hitting on students and their parents" (10) and claiming in the "About me" section that McGonigle was a "sex addict." (11) J.S. made the profile private, limiting access to those whom J.S. invited to be MySpace friends, including around twenty-two students in the school district. (12) At the time, school computers blocked access to MySpace. (13) McGonigle nevertheless learned about the profile from another student and subsequently suspended J.S. for ten days. (14)

J.S. and her parents, the Snyders, brought suit against the school district in the U.S. District Court for the Middle District of Pennsylvania, alleging that the school district had violated J.S.'s First Amendment rights.(15) The district court granted the school district's motion for summary judgment.(16) Judge Munley began by asserting that Tinker did not govern this case.(17) In Tinker, the Supreme Court upheld the right of public school students to wear black armbands to protest against the Vietnam War, so long as they did so "without 'materially and substantially interfer[ing] with the requirements of appropriate discipline in the operation of the school' and without colliding with the rights of others."(18) Although noting that J.S.'s conduct might not have involved the level of "substantial disruption"(19) required to justify discipline under Tinker, Judge Munley declined to apply Tinker, which involved political speech, to this case.(20) Finding that J.S.'s speech was "vulgar and offensive,"(21) Judge Munley held that the governing precedent, instead, was Bethel School District v. Fraser.(22) In Fraser, the Supreme Court rejected a challenge to disciplinary measures taken after a student gave a sexually explicit speech at a school assembly.(23) The Court did not apply the Tinker disruption test in that case and instead looked to the nature of the speech itself.(24) The district court noted that the most recent school speech case to reach the Supreme Court, Morse v. …

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