On Thursday, the 3rd U.S. Circuit Court of Appeals will hold a rare en banc session to rehear a pair of Pennsylvania cases in which judges issued conflicting rulings on the issue.
In February, a three-judge 3rd Circuit panel upheld the suspension of a Schuylkill County eighth-grader who, from home, posted sexually explicit material along with her principal's photograph on a fake MySpace page.
The same day, a different panel from the same court said Mercer County schools cannot reach into a family's home and police the Internet, overturning the suspension of a high school senior who used his grandmother's computer to post a MySpace parody of his principal.
"There's such different treatment of student speech. It's an unsettled question as to how far does the school's jurisdiction reach?" said David L. Hudson Jr., a scholar at the First Amendment Center in Nashville, Tenn., who has reviewed many such cases across the country.
School officials struggle with how to respond to online postings, especially when they have ripple effects inside the school. Some mete out discipline and face lawsuits. Others refer the cases to law enforcement. Occasionally, a targeted teacher or administrator sues the suspected culprit for defamation.
"It's a huge gray area, and many in the school community would welcome further elucidation by the courts," Hudson said.
The issue has never reached the Supreme Court, but some think one of the Pennsylvania cases could change that.
Witold J. Walczak, Pennsylvania legal director of the American Civil Liberties Union, will argue both cases Thursday.
"These cases will decide whether school officials can tell students what they can and can't say inside the home, inside the mall, at the park and on the Internet," Walczak told The Associated Press. "We believe that such expanded authority would encroach on both the student's free speech rights and the parents' right to raise their children."
Legal arguments in both cases point to a landmark 1969 Supreme Court decision that said schools can discipline students for off-campus speech if it is likely to cause a disruption at school.
But in the decades since, the explosion of Internet communication has made it more difficult to strike a balance between free speech rights and the need for school administrators to maintain control.
"We decline to say that simply because the disruption to the learning environment originates from a computer located off campus, the school should be left powerless to discipline the student," Judge Michael Fisher wrote in a footnote to his majority opinion in the Schuylkill County case.
That case involves a then-14-year-old girl in the Blue Mountain School District who created a Web page - with a fake name but an actual photo of her principal - purportedly posted by an Alabama principal who described himself as a pedophile and sex addict.
The principal and other students at Blue Mountain quickly became aware of it. A district judge upheld the suspension, as did the 3rd Circuit when Fisher and a second judge found the lewd, sexually graphic post likely to disrupt school. But Judge Michael Chagares, in a dissent, feared the ruling would give school officials "dangerously overbroad censorship discretion."
"Neither the Supreme Court nor this Court has ever allowed schools to punish students for off-campus speech that is not school sponsored and that caused no substantial disruption at school," Chagares wrote.
Blue Mountain, in a recent brief, argues the suspension could alternately be upheld on grounds the post was a "verbal assault" on the principal.
The girl "created the profile not as a joke, but with the intent to hurt and damage" the principal, lawyer Jonathan P. Riba wrote in a brief.
In the Mercer County case, U.S. District Judge Terrence McVerry had ruled that Hermitage School District officials failed to show that senior Justin Layshock's parody - which said his Hickory High School principal smoked marijuana and kept beer behind his desk - substantially disrupted school operations.
The 3rd Circuit panel also sided with Layshock, saying there was little connection between the his actions and the school.
"We will not allow the School District to stretch its authority so far that it reaches Justin while he is sitting in his grandmother's home after school," wrote Judge Theodore A. McKee, now chief judge of the appeals court.
