Third Circuit issues conflicting rulings on student internet speech and vacates both opinions.

On February 4, 2010, the 3rd Circuit issued two opinions that reached separate conclusions regarding whether schools can discipline students for material posted on social networking websites. As a result, the 3rd Circuit vacated both opinions and scheduled a rehearing of the two cases before the full circuit court. The Layshock and Blue Mountain cases both involved students in Pennsylvania who used their home computers off the premises of the school to create fake MySpace pages for their schools' principals. In both cases, the students were punished with a suspension from school. In Layshock, a unanimous three-judge panel ruled that a student could not be punished for his off-campus speech. However, in Blue Mountain, a different panel issued a 2 to 1 decision favoring the school district's right to punish students for certain speech that occurs off the premises of the school. In Blue Mountain, the court affirmed the district court, relying on Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969), in which the U.S. Supreme Court held that a school may not suppress a student's expression of speech unless school officials conclude that the conduct "would materially and substantially disrupt the work and discipline of the school." The court found that the suspensions could be upheld because "the profile presented a reasonable possibility of a future disruption" if the school did not punish the creators of the page. In Layshock, the district court entered summary judgment in favor of Layshock, and the school appealed. The 3rd Circuit panel affirmed that Layshock's suspension had violated his First Amendment rights, stating that Layshock's use of a photograph on the school district website did not constitute "entering the school." The court noted that "[i]t would be an unseemly and dangerous precedent to allow the state in the guise of school authorities to reach into a child's home and control his/her actions there to the same extent that they can control that child when he/she participates in school sponsored activities." On April 9, 3rd Circuit Chief Judge Anthony J. Scirica vacated the conflicting opinions and granted the en banc motions filed by attorneys on the losing sides of both cases. The entire panel of 3rd Circuit judges heard oral argument on June 3, 2010, and the parties await a decision.

Case Law Alert - 3rd Qtr 2010