I sometimes ♥ (heart) the Third Circuit

About a week ago, the Third Circuit Court of Appeals heard argument about a school's attempt to ban t-shirts and wristbands with the "I ♥ boobies" slogan on them.  This appeal is being closely watched because it can have a wide-reaching effect.  The prior decision was that the phrase has to be understood in its context, but -- as pointed out by the school's attorney during last week's argument -- what then of other good intentioned slogans such as the "feel my balls" slogan of the testicular cancer organization. 

There are various standards for limiting student speech.  The most often cited one is the Tinker standard that requires a substantial disrpution.  It is a high, but not impossible standard to meet for a school. 

The standard that is at the ♥ of this matter (ha!) is from Fraser, where the U.S. Supreme Court said that a school may ban lewd and vulgar speech taking place at school.  The Third Circuit panel hearing this case stated its feeling that the school would not meet the Tinker standard but might meet Fraser.

It is a slippery slope, so the danger is that were the court to allow this slogan, will the court tailor its decision closely enough so that it will not take away a school's discretion to ban something more clearly lewd?  With the success of the "I ♥ boobies" campaign for public awareness through its shock value, you can be sure that there will be others pushing the limits even further.

The lower court's opinion and order can be found here, although it will be what the Circuit Court says that really matters.


The Third Circuit Court of Appeals has now ruled in two cases I discussed in a previous blog entry about disciplining students in school for out of school speech. Both cases, Layshock v. Hermitage School District and J.S. v. Blue Mountain School District involved students who created fake MySpace profiles of their school principals outside of school that contained false and, at the very least, suggestive information about the principals. However, in one case the Court found disciplining the student was allowed, but in the other it violated the student’s First Amendment rights. The Court focused in both cases on the issue of substantial disruption in the school setting or the potential for the same. 

In Laystock, the Court found it particularly concerning that a school should be able to discipline a student for speech that occurs outside of the school setting, and found no evidence in the case to establish that there had been a substantial disruption in the school setting as a result of the profile. Interestingly, it is not suggested in the opinion that the school believed a substantial disruption was likely to occur if it failed to act.  The Court found that the school could not discipline as there was no substantial disruption.


In J.S., the information contained in the profile was more vulgar than in Laystock and there was testimony that there was “a severe deterioration in discipline” in the school. The Court notes that the actual disruption was not sufficient itself to justify the discipline, but rather the immediate effect the profile had in the school setting and that a substantial disruption was reasonably foreseeable if the school did not act based upon what had been seen to date did. Accordingly, the Court found that discipline was permitted.   


Thus, it appears that discipline may be given for out of school speech if that speech causes a substantial disruption in the school setting or if school officials can explain what they saw was happening and show that if they failed to act, there would likely be a substantial disruption.    

More confederate flag nonsense

Once again, it appears that some racial bigots attempted to cloak themselves and the confederate flag with First Amendment protection.  The courts did not let them.  Click here for the Eighth Circuit case.  Does anyone get the sad irony in all this?

Response To Comments, Fall 2008

Its time again to write about some comments. I wrote about the District of Columbia School Chancellor’s efforts to implement performance pay in “Teacher pay and tenure: creating a free agent market.”  Professor Fox added a comment regarding improvement to the current common rater method of assessing performance. I also wrote a piece about confederate flag waiving students (“Yet another confederate flag case”)” that garnered a response from Lynn accusing me of revisionist history and political correctness (me!). Craig wrote an interesting question in response to the entry “College-Student Disciplinary Contract Claims.”  Finally, in “Fourth Circuit Placement Decision Revisited: the last word,” I brought readers up to date on the case at issue and responded to a previous comment critical of my suggestion that open and honest communication can be a salve to the bad decision. Well, I got a comment from Nagla in support of my view!  Thanks for all your comments, even if I don't get to address each one.  Now to the four comments.

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Lewd, but not too lewd: discipline for off-campus speech probably depends on degree of offensivness

The blog has been off for a while, but now guest blogger Tim Gilsbach, starts off with the first a series of new entries.  This one brings to mind Justice Stewart's remark that he knows pornography when he sees it by showing that offensive speech is, apparently, no less subjective.  For educational agencies, this lack of bright line clarity, means an honest, well-documented, entire-circumstances approach is required for any discipline, and that school lawyers will continue to be busy with speech disputes.  And now, onto Tim's entry. . . .

 In two recent cases, the different federal district courts in Pennsylvania have considered on-line speech by students regarding facility members that occurred off campus, but nonetheless impacted the school setting. However, the courts reached differing conclusions on whether the speech was protected under the First Amendment, leaving school districts to guess when they can or cannot discipline the student for the conduct. A review of these two cases is illustrative of the problem.

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The BONG HiTS 4 JESUS decision, issued June 25, 2007, holds that a public school principal may, consistent with the First Amendment, restrict student speech at a school event, when that speech is reasonably viewed as promoting illegal drug use. Morse v. Frederick, at page 8. Schools “may take steps to safeguard those entrusted to their care from speech that can reasonably be regarded as encouraging illegal drug use.” Morse, at page 2. The decision is both clear and limited in holding nonsensical speech about illegal drugs can be prohibited in public schools.

The Supreme Court characterized the speech at issue, “Bong hits 4 Jesus” written on a 14 foot banner, as “cryptic,” perhaps offensive to some, funny to others, and meaningless to many. According to the student, it was just “nonsense meant to attract television cameras.” Morse at 6. And it was not political. Morse at 8. It nonetheless had an unmistakable message of some sort about drug use. “Gibberish is surely a possible interpretation of the words on the banner, but it is not the only one, and dismissing the banner as meaningless ignores its undeniable reference to illegal drugs.” Morse at 7. Accordingly, the banner, unfurled during a school activity, and its speech were not protected by the First Amendment. 

Analysis follows.

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