A federal appeals court upheld the discipline of a high school student who created a MySpace page targeted at a classmate that described her as a “slut” with herpes. A three-judge panel of the U.S. Court of Appeals for the 4th Circuit, in Richmond, Va., affirmed the suspension of a female student at Musselman High School in Berkeley County, W.Va., in a unanimous opinion that joins several recent cases heard by federal courts involving student-created websites that ridicule school administrators or fellow classmates.
In the 4th Circuit case, the offending student created the page called “Students Against Sluts Herpes,” which featured a photo of the targeted girl, and invited other MySpace users from her school to join. School officials disciplined the student with a five-day school suspension and a 90-day suspension from school activities for violating school policies against harassment, bullying and intimidation after parents of the targeted girl complained about the hate site. The student countered by suing the school district and various officials for violating the First Amendment and punishing her for speech created outside of school. The court ruled in its decision to uphold the school’s discipline, citing language from Tinker v. Des Moines Independent Community School District the landmark U.S. Supreme Court decision on student speech rights in school
But the ruling does not make the legal issue any clearer. Though consistent with a Second Circuit ruling in April 2011, Doninger v. Niehoff (the school was correct in preventing the student from running for class office in response to her offensive blog from home about the front office personnel – calling them “douchebags”), there are two circuit court opinions in direct contradiction.
The Third Circuit in June, 2011 in J.S. v. Blue Mountain School District, found that 8th-grade student’s lewd parody of principal from home computer was protected speech and that 10 day suspension violated the First Amendment. And in June, 2011, Layshock v. Hermitage School District was decided by the Third Circuit, ruling that MySpace parody of principal created on grandmother’s computer off-campus is protected speech and that 10-day suspension must be cleared from student’s record.
With no clear legal standard, it is only a matter of time before the US Supreme Court will be asked to offer some a clarity on what is protected speech in such matters.