On the Fourth of February, 2010, the same court issued diametrically opposite decisions on the very same issue. See Layshock v. Hermitage School District, 593 F.3d 286 (3rd Cir. 2010) and J.S. v. Blue Mountain School District, 593 F.3d 249 (3rd Cir. 2010).

In both cases, students created fake MySpace profiles for their respective principals, Eric Trosch and James McGonigle, using the profiles to mock and deride them. The fake profile created off-campus by student Justin Layshock was also accessible at the school. At the other school, student J. S. did not use an on-campus computer to create or access McGonigle’s “profile”, but her principal McGonigle heard about it, and asked another student to provide him a print-out of the profile page. The printout was done from outside the school, as some schools ban access to MySpace and other social networking sites from school grounds.

In both cases students responsible for making fun of their principals – outside of school grounds and on the students’ own free time – were given 10-day suspensions. Disrespectful youth is not a new phenomenon. But there is much to criticize about how public schools address this issue. Do students surrender their right of free speech simply by attending public schools? Both panels of judges found that the profiles did not cause substantial and material disruption.

The First Amendment, which is applicable to the states through the Fourteenth Amendment, prohibits government from “abridging [the people’s] freedom of speech.” It is hardly educational to violate basic First Amendment rights with respect to speech that has no proven effect on the school.

In a unanimous decision in Layshock v. Hermitage School District, Judge Theodore McKee held 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.” 593 F.3d at 260.

But the opposite conclusion was reached by a different panel of three judges on the same day in the same Court, in J.S. v. Blue Mountain School. There, a 2-1 majority ruled that the student can be properly disciplined for comments made on the internet by “forecast[ing] a substantial disruption … with the school,” even if the comments are made off-campus and there is no actual disruption to school activities. 593 F.3d at 290. This panel ruled in favor of the school despite the fact that the principal caused the police to summon J.S., another student, and their mothers “to the police station to discuss the profile,” and the principal even had the state police come and view the profile in order to consider pressing criminal charges against J.S. Id. at 293.

If the Blue Mountain decision becomes the controlling precedent, then schools could potentially monitor and punish critical remarks on social media, and perhaps even text messages, emails and phone calls. In Judge Michael Chagares’ dissent in Blue Mountain, he observed that the ruling “significantly broadens school districts’ authority over student speech” and vests school officials with “dangerously overbroad censorship discretion.” Id. at 308

What gives the state the authority to regulate student’s speech outside of the school? In many cases, public school teachers and principals should be criticized more than they are. There is already too little accountability for tenured public school administrators and their powerful unions, and restricting student’s freedom of speech does not advance their education.