Law.com reports
An eighth-grade student who was suspended for 10 days after she created a fake page on MySpace.com that depicted her principal as a pedophile and a sex addict has lost her civil rights suit now that a federal judge has ruled that the discipline was proper and didn't violate her free speech rights.
"A school can validly restrict speech that is vulgar and lewd and also it can restrict speech that promotes unlawful behavior," U.S. District Judge James M. Munley wrote in his 20-page opinion in J.S. v. Blue Mountain School District.
In the suit, attorneys Mary Catherine Roper of the American Civil Liberties Union of Pennsylvania and Mary E. Kohart and Meredith W. Nissen of Drinker Biddle & Reath argued that the suspension was unconstitutional because the speech took place outside of school and because it violated the parental rights of the student's parents to determine how best to raise, nurture, discipline and educate their child.
According to court papers, J.S. and another student, identified as K.L., posted a profile on MySpace in March 2007 that showed a photo of principal James S. McGonigle they had taken from the district's Web site.
The profile did not use McGonigle's name, but identified the person pictured as a "principal," and described him as a 40-year-old married, bisexual man whose interests included "being a tight ass," "fucking in my office" and "hitting on students and their parents," according to Munley's opinion.
Although the two students created the profile at J.S.'s home, it was discussed at school and another student gave a copy to McGonigle. Both students were suspended for 10 days, but only J.S. and her parents filed suit.
In court papers, the plaintiffs' team argued that the suspension ran afoul of the U.S. Supreme Court's historic 1969 decision in Tinker v. Des Moines, which held that student speech may not be punished unless it caused a "substantial and material disruption at the school."
Munley disagreed, finding that while Tinker is the leading case on the free speech rights of students, its standard "is not a good fit for every school speech situation."
The U.S. Supreme Court has decided three school free speech cases since Tinker, Munley found, and has never applied the Tinker test, instead announcing new tests in each case.
In Tinker, the justices famously held that students and teachers do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate" and prohibited suspensions of students for wearing black armbands to protest the Vietnam War.
But Munley found the more appropriate Supreme Court decision to apply was the 1986 decision in Bethel School District v. Fraser, in which the justices upheld a suspension imposed on a student who used "an elaborate, graphic, and explicit sexual metaphor" during a speech at a school assembly.
In Fraser, Munley said, the justices held that "it is a highly appropriate function of public school education to prohibit the use of vulgar and offensive terms in public discourse," and that limits on sexually explicit, indecent or lewd speech can be appropriate where the audience includes children.
In its most recent school free speech case, the 2007 decision in Morse v. Frederick, Munley found that the justices upheld a suspension of a student who had unfurled a banner that read "BONG HiTS 4JESUS" during a school-sponsored trip to view the Olympic torch relay.
The Morse court held that school officials may restrict student speech at a school event when that speech is "reasonably viewed as promoting illegal drug use."
Reading all the cases together, Munley concluded the Tinker test was the wrong test to apply because the vulgar speech posted on MySpace was not political, and that Fraser and Morse offered stronger insights by addressing restrictions on speech that is vulgar and lewd and promotes illegal behavior.
"There can be no doubt that the speech used is vulgar and lewd," Munley wrote, noting that the fake profile contained words such as "fucking," "bitch," "fagass," "dick," "tight ass" and "dick head."
"The speech does not make any type of political statement. It is merely an attack on the school's principal. It makes him out to be a pedophile and sex addict," Munley wrote.
"This speech is not the Tinker silent political protest. It is more akin to the lewd and vulgar speech addressed in Fraser. It is also akin to the speech that promoted illegal actions in the Morse case. The speech at issue here could have been the basis for criminal charges against J.S.," Munley wrote.
As a result, Munley found that the school did not violate J.S.'s rights in punishing her speech "even though it arguably did not cause a substantial disruption of the school."
OFF-CAMPUS SPEECH
Rejecting the plaintiffs' argument that students may never be punished for speech that occurs off campus, Munley said the evidence showed "a connection between the off-campus action and on-campus effect."
The MySpace site, Munley said, focused on the principal, and its intended audience was students at the school. A paper copy of the site was brought into school, and the site was discussed in school, he noted, and the picture on the profile was appropriated from the school district's Web site.
Munley also noted that "J.S. lied in school to the principal about the creation of the imposter profile."
Roper, in an interview, said she was disappointed by the ruling and that Munley erred by failing to recognize that school officials cannot restrict the speech of students "anywhere it is uttered" merely because it is vulgar and discusses school officials.
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