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Do Students Have a Constitutional Right to Humiliate School Principals on MySpace? Maybe Yes, Maybe No


by Richard Fossey & Joe Dryden - July 22, 2010

Today, students who are unhappy with school authorities can avail themselves of the internet and express their disrespect to the entire planet. More and more frequently, alienated students attack school administrators on personal web sites, blogs, e-mail communications, or social networking web sites. Often they use vulgar language or worse. Sometimes, in an adolescent effort to be funny, they defame school administrators with allegations of sexual misconduct.

Not too long ago, a disaffected high-school student who nursed a grudge against the school principal might write something ugly on the school’s restroom wall. A more aggressive student malcontent might spray-paint a profane insult on a schoolhouse wall or “key” the principal’s car. Principals could nullify these minor affronts to their dignity with a little soap and water or some paint.


But times have changed. Today, students who are unhappy with school authorities can avail themselves of the internet and express their disrespect to the entire planet. More and more frequently, alienated students attack school administrators on personal web sites, blogs, e-mail communications, or social networking web sites. Often they use vulgar language or worse. Sometimes, in an adolescent effort to be funny, they defame school administrators with allegations of sexual misconduct.


Do Students Have a Constitutional Right to Cybertrash School Principals?


Several lawsuits have been filed over these incidents—usually by students who claim a First Amendment right to cybertrash their school principal when school authorities try to punish them. Unfortunately, the courts have sent no clear message about a principal’s authority to punish a student who publishes demeaning speech electronically.


For example, in Beussink v. Woodland R-IV School District (1998), one of the earliest of these cases, a federal court ruled that Brandon Beussink had a First Amendment right to use vulgar language to criticize the school principal and teachers on a personally-constructed web site. The court concluded that the web site had not created a disruption at the school and that the principal had violated the student’s constitutional right to free speech when he issued a ten-day suspension. On the other hand, the Pennsylvania Supreme Court upheld the expulsion of a student whose web site indicated, in profane terms, that [his principal] engaged in sexual relations with . . .  a principal from another school” (J.S. v. Bethlehem School District, 2002, p. 851). The site also included a web page that focused on a particular teacher, which was captioned, “Why Should She Die?” Below this heading, the page requested the readers to “give me $20 to help pay for the hitman [sic]” (p. 851). And in a Connecticut case, the Second Circuit Court of Appeals backed school authorities who dispensed a mild sanction to a student who called school authorities “douche bags” on her blog (Doniger v. Niehoff, 2008, p. 45).


Why have courts sent confusing signals about these electronically delivered assaults on school leaders? In most instances, the courts have looked to the Supreme Court’s decision in Tinker v. Des Moines Independent Community School District (1969) for guidance about how to deal with students’ electronically delivered speech. In Tinker, the Supreme Court ruled that students have a right to free expression in the school environment unless the speech is likely to cause a “substantial disruption” at the school or interferes with the rights of other students. Under that standard, some courts have ruled that schools have no authority to punish students’ electronically-delivered hurtful speech unless school authorities can show that the speech disrupted school operations or is likely to cause a disruption.


In the Third Circuit: Two Principals Are Humiliated by Sexual Insinuations on MySpace


This spring, two panels of Third Circuit judges issued conflicting opinions in cases involving students who created MySpace pages to make demeaning sexual insinuations about a school principal’s sexuality or sexual behavior. Although the factual allegations of the cases were very similar, one panel sided with the school district that punished the student and the other panel ruled in favor of the student.


In Layshock v. Hermitage School District (2010), Justin Layshock, a high school senior, created a “parody” MySpace profile of his principal, Erick Trosch (p. 252), which insinuated that Trosch was a steroid user and a marijuana smoker. Under the profile’s “Interests” section, Layshock listed “Transgender, Appreciators of Alcoholic Beverages” (p. 253). Layshock made the profile available to friends, but apparently did not post the profile for public viewing. Not long after Layshock posted his parody profile, three other students posted MySpace profiles of Trosch that were “more vulgar and more offensive than [Layshock’s].”


Principal Trosch described the profiles as “degrading,” “demeaning,” “shocking,” and “demoralizing” (p. 253). Although Layshock apologized to Trosch for posting the profile, the school district punished him severely. The school district issued Layshock a ten-day suspension, assigned him to an “Alternative Education Program,” banned him from participating in extracurricular activities, and prohibited him from participating in his high-school graduation ceremony (p. 254).


Acting through his parents, Layshock sued the school district, and a trial court ruled that the district had violated his constitutional right to free speech. On appeal, a panel of Third Circuit judges affirmed. In the appellate court’s view, Layshock’s speech had not disrupted the school environment. According to this court, “It would be ‘an unseemly and dangerous precedent’ to allow school authorities to control a child’s actions at home to the same extent that they could control the child during school sponsored activities (p. 260).


In J.S. v. Blue Mountain School District (2010), released the same day as the Layshock opinion, two eighth-grade girls created a fictitious MySpace profile that featured a photograph of their principal, James McGonigle, but did not identify him by name. The profile appeared to be a self-portrayal of a middle school principal from Alabama who described himself as a “married bisexual forty-year-old man” (p. 291). Under “Interests” the profile listed “f---ing in my office” and “hitting on students and their parents” (p. 291).  Another section of the profile stated, “I love children, sex (any kind), dogs, long walks on the beach, tv, being a dick head, and last but not least my darling wife who looks like a man” (p. 291). Initially, the two girls made the MySpace profile public but later made it private and granted access to approximately 22 fellow students.  


McGonigle confronted the two miscreants about the MySpace parody, and both girls apologized. Nevertheless, McGonigle issued a ten-day suspension. One of the girls, identified only as “J.S”, then sued the school district, claiming a violation of her right to free speech. A federal trial court ruled in favor of the school district, finding that J.S.’s “lewd and vulgar off-campus speech had an effect on-campus,” and J.S. appealed (p. 295).


On appeal, a Third Circuit panel sided with the school district. School authorities can punish student speech, whether it occurs on or off campus, the appellate court ruled, if they reasonably believe that the speech threatens to disrupt the school community. J.S.’s profile of Principal McGonigle, which “alluded to his interest or engagement in sexually inappropriate behavior and illegal conduct,” threatened to substantially disrupt the school environment, the court concluded, regardless of whether the profile constituted criminal or tortuous conduct (p. 308).


Will the Third Circuit Come to the Aid of Harassed School Principals?


Contrasting outcomes in the Layshock decision and the Blue Mountain case clearly illustrate a lack of clarity by the federal courts regarding a student’s constitutional right to demean a school principal on MySpace or other social networking website. Fortunately, the entire panel of Third Circuit judges voted to reconsider both cases en banc. In other words, all the judges of the Third Circuit, not just a three-judge panel, will take a look at both these cases. There is a good chance that the Third Circuit will craft a constitutional rule that will give schools the constitutional authority to punish students who gratuitously engage in web-based abuse of principals and teachers.


As the Supreme Court made clear more than twenty years ago, public schools have the responsibility to inculcate civic values in their students and to insist that students express themselves in a civil manner (Bethel School District No. 403 v. Fraser, 1986). Student behavior like that described in the Layshock case and the Blue Mountain case undermines the schools’ ability to carry out that responsibility. Moreover, this type of wounding electronic expression demoralizes the school principals who are the targets of these attacks, diminishes their esteem in the school communities they serve, and undermines their capacity to effectively execute their duties as public-school administrators.


In our opinion, students who use lewd and vulgar language to gratuitously demean school principals on social networking websites or personally constructed web pages do not deserve the protection of the First Amendment. Let us hope that the Third Circuit, in the en banc decision it will soon issue, will give schools the constitutional authority to discipline students who use the web in ways that are hurtful and humiliating to public-school educators.


References


Bethel School District No. 403 v. Fraser ­­­­478 U.S. 675 (1986).


Beussink v. Woodland R-IV School District, 30 F. Supp. 2d 1175 (E.D. Mo. 1998).


Doniger v. Niehoff, 527 F.3d 41 (2nd Cir. 2008).


J. S. v. Bethlehem Area School District, 807 A.2d 847 (Pa. 2002).


J. S. v. Blue Mountain School District, 593 F.3d 286, rehearing en banc granted, opinion vacated (3rd Cir. 2010).


Layshock v. Hermitage School District, 593 F.3d 249, rehearing en banc granted, opinion vacated (3rd Cir.2010).


Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969).


 




Cite This Article as: Teachers College Record, Date Published: July 22, 2010
https://www.tcrecord.org ID Number: 16080, Date Accessed: 5/20/2022 11:18:37 PM

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About the Author
  • Richard Fossey
    University of North Texas
    E-mail Author
    RICHARD FOSSEY is a Professor and Mike Moses Endowed Chair in Educational Administration at the University of North Texas in Denton, Texas.
  • Joe Dryden
    Texas Wesleyan University
    JOE DRYDEN is an Assistant Professor of Education at Texas Wesleyan University in Fort Worth, Texas.
 
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