Supreme Court Declines to Hear Three Student Internet Cases

Written by Shani K. Whisonant, Esquire                                           swhisonant@pklaw.com

The United States Supreme Court recently declined certiorari to hear three student internet speech cases. In J.S. v. Blue Mountain School District (which was combined with Layshock v. Hermitage School District) and Kowalski v. Berkeley County Schools, the Supreme Court denied certiorari and therefore declined an opportunity to refine the “substantial disruption” standard that was set forth in Tinker v. Des Moins Independent Community School District, the seminal Supreme Court case against which all student speech cases are compared.

In both J.S. v. Blue Mountain School District and Layshock v. Hermitage School District, students were punished by their respective school systems for creating offensive MySpace parodies of their school principals. Both students created the parody profiles during non-instructional hours and on personal equipment. In both cases, the Third Circuit determined that the creation of the fake profiles would not reasonably cause a disruption in the schools. The Third Circuit, therefore, determined that the suspensions did not survive constitutional muster.

In Kowalski v. Berkeley County Schools, a student created a MySpace page and encouraged other students to post offensive comments about a fellow student. The Fourth Circuit determined in Kowalski that such conduct could reasonably cause a disruption to the work and discipline of the school, and that the school system had a legitimate pedagogical reason for punishing the student that created the site. The effect of the Supreme Court’s refusal to hear the aforementioned cases is that it is now even less clear when school systems can discipline students for off-campus internet conduct.