Third Circuit - Online speech by students cannot be treated the same as on campuss - NH & Federal Bullying laws at risk? - Granite Grok

Third Circuit – Online speech by students cannot be treated the same as on campuss – NH & Federal Bullying laws at risk?

I do hope so.  I have had great concerns as School Administrations have incrementally increased their reach and control far from the schools from years ago to the point where it seems that the Edu-Industrial Complex believes it is responsible for their students (vs Parents for their own children).  Witness the growth of pre-school day-care, post-school day-care, breakfast / lunch / dinners provided 365/year, health clinics, abortions when needed, and daycare for the kids’ kids.  With the advent of the Bullying laws, that reach was extended to any speech any where in real space and cyberspace.

In effect, Parents were being stripped of control and responsibility in one action after another.  Who knew it would be the First Amendment and the Third District Court that may have broken that lock that was rusting shut on parents?

From FIRE, the "money line" and great Executive Summary:

Is there a place where a student can go that’s far enough away from school grounds to allow that student to speak freely online? Every single one of the 14 judges on that court said ‘yes.’

Background:  

Yesterday, the full court for the United States Court of Appeals for the Third Circuit issued two simultaneous opinions to resolve how much control grade schools and high schools may exercise over their students’ off-campus, online speech. In Layshock v. Hermitage School District and J.S. v. Blue Mountain School District, the 14-judge court delivered two landmark victories for free speech, holding that school officials cannot "reach into a child’s home and control his/her actions there to the same extent that it can control that child when he/she participates in school sponsored activities." In the cases, two students had been disciplined for creating parody MySpace profiles mocking their respective principals. The Third Circuit held that schools cannot punish students’ online speech simply because it is vulgar, lewd, or offensive.

Excerpts:

The full Third Circuit convened en banc to resolve this conflicting in-circuit precedent. Yesterday, the court decided in both cases that schools may not punish online, off-campus speech to the same extent that they may when dealing with in-school speech. The court thus concluded that the Supreme Court decision in Bethel School District No. 403 v. Fraser, 478 U.S. 675 (1986), which held that a high school may suspend a student for "lewd, indecent, or offensive speech and conduct" when such behavior conflicts with "essential lessons of civil, mature conduct," is inapplicable to online speech created off campus

… (In Fraser, a high school student (Fraser) was punished for a profane, innuendo-laced nominating speech delivered at a school assembly.) As the full Third Circuit pointed out, Fraser’s holding that schools may censor "lewd, indecent, or offensive speech" applies only on school grounds or at school-sponsored activities. Indeed, the Third Circuit noted that in deciding Fraser, the Supreme Court observed that "[h]ad Fraser delivered the same speech in a public forum outside the school context, it would have been protected." In the Layshock rehearing, therefore, a unanimous full Third Circuit "reject[ed] out of hand any suggestion that schools can police students’ out-of-school speech by patrolling ‘the public discourse.’"

The majority in J.S. noted, however, that "school officials cannot prohibit student speech based upon the desire to avoid ‘discomfort and unpleasantness.‘"

I’m no lawyer and I don’t attempt to play one on a blog but when the entire en banc rules unanimously, one has to take note of the emphasis of the decision. It was not the fact that Principals were made sport of – it was the speech and the location that took precedence.  Indeed, the standout parts, to me are:

  • Off campus is not on campus – the reach got chopped off.  It seems that in loco parentis is just that; only when on campus and when Parents entrust their children to the school systems – and no where else.
  • Free Speech is just that – unconstrained by the State when not on campus.  To me, this also returns control and responsibility from the State to where it belongs – with the Parents

Now, how will this be applicable to instances of cyber-bullying?  Well, when the Court says off-campus is not on-campus, that online speech is not the same as on-premise, it seems that the Judiciary has cut the floor out from underneath both the Federal laws, further strictures by the US Dept. Of Ed, and the NH Bullying law (which a number of NH legislators told me was both bad law but impossible to vote against).

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