WASHINGTON, D.C.— Earlier this year, federal appeals courts decided three key cases focusing ononline student expression rights. Now, lawyers in two of those cases will askthe nation’s highest court to weigh in.
Less than two weeks after the 3rd U.S. Circuit Court ofAppeals found 8-6 in favor of a middle school student who mocked her principalon MySpace, the school district announced its intention to appeal to theSupreme Court. The district authorized its legal counsel to petition the Courtto grant certiorari, or “cert” for short.
“We feel we have to pursue [an appeal] because we feelwe have an obligation to protect our faculty and staff from the misuse ofsocial media and other things,” said Carl Yeich, board president of theBlue Mountain School District, at a school board meeting covered by the Republican-Herald newspaper.
“J.S.” was a student at Blue Mountain Middle School inPennsylvania in 2007 when she was suspended for 10 days after creating aMySpace profile mocking the school principal, James McGonigle. Her parents suedthe school district on her behalf for violating her First Amendment rights andtheir due process rights to discipline their child as they wished.
Both the district court and a three-judge panel of the ThirdCircuit found in favor of the school district. However, when the full ThirdCircuit court reheard the case along with an extremely similar one, Layshock v. Hermitage School District,it found in favor of the students in both cases.
“It’s their prerogative [to appeal the case],” said Witold“Vic” Walczak, legal director of ACLU Pennsylvania. “We don’t believe that thisis a cert-worthy case, but obviously the Supreme Court will make up its ownmind.”
Lawyers for Hermitage School District did not return callsasking whether they would file for an appeal. The district has until Sept. 12to ask the Supreme Court to grant them an appeal.
On April 25, a panel of judges from the 2nd U.S. CircuitCourt of Appeals concluded that Connecticut student Avery Doninger’s FirstAmendment rights were not violated when she was prevented from running forclass office, and later prevented from accepting the office she was elected toby write-in ballot, after calling school administrators “douchebags” on herblog in 2007.
The Second Circuit determined that the district had been“objectively reasonable” in their decision to punish her for her blog post. Itgranted the district immunity from the lawsuit but did not address whetherDoninger’s rights were violated.
Doninger attorney John Schoenhornwrote in an email that he intends to ask the Supreme Court to hear an appeal inthis case as well because the conflict between the Second Circuit and ThirdCircuit’s decisions could create confusion.
Doninger must file for appeal withthe Supreme Court by July 25, and Blue Mountain School District must file bySept. 12. The Supreme Court will then decide if it will hear either of thecases. They would be the first rulings from the high court on students’ rightto free speech on the Internet.