A federal appellate court recently ruled on a student cyber misconduct case. The Third Circuit Court of Appeals ruled in favor of a student, holding that a school district violated the student’s First Amendment rights by disciplining her for creating a parody of her principal on MySpace. (J.S. v. Blue Mountain School District, No. 08-4138 (3d Cir. Jun. 13, 2011).
In J. S. v. Blue Mountain School District, the Court found that the school district lacked jurisdiction to discipline the student because the MySpace parody did not create a substantial disruption on campus and it was not reasonably foreseeable that such a disruption would occur. While the decision is not binding on California school and community college districts, the case is influential to California federal courts and to school districts evaluating off-campus student cyber misconduct.
The cyber misconduct at issue was a student’s creation of a fake MySpace profile of the middle school principal. The profile included the principal’s official school photo and descriptions of his interests such as: ‘being a tight ass, spending time with my child (who looks like a gorilla), hitting on students and their parents, sex addict, pervert, I love children, sex (any kind), and my darling wife (who looks like a man).’
The site was created by a student at home and was not accessible at the school site because of the school district’s firewall. For one day, the profile was accessible on-line to the public, though the following day, it was made “private” with access limited to 22 students. The cyber misconduct did cause some disruption at school. For example, there were “general rumblings,” including: six or seven students talking in class, resulting in a teacher telling them to stop three times; two other students reporting the profile to another teacher; and the school counselor having to reschedule several appointments.
On appeal, attorneys for the school district conceded that the foregoing disruption was not “substantial,” but argued that discipline was justified because the facts “might reasonably have led school authorities to forecast substantial disruption of or material interference with school activities.” Although the Court noted that school districts can discipline students for off-campus conduct that is reasonably expected to result in substantial disruption, the Court found that the facts in the J.S. v. Blue Mountain School District case “do not support a conclusion that a forecast of substantial disruption was reasonable.” The Court’s reasoning included that the profile was so juvenile that no reasonable person could take its content seriously, the student took steps to make the profile “private” and, although the profile included the principal’s photo, it did not specifically identify him by name, school, or location. Moreover, no student was able to view the profile from school computers.
J.S. v. Blue Mountain is another recent example of the difficult decision school administrators face when determining whether discipline is appropriate for off-campus cyber misconduct. In California, prior to moving for suspension or expulsion, school districts first look to Education Code Section 48900 et. seq., to determine whether the alleged misconduct violated one of the enumerated bases for discipline. If the misconduct violated one or more of those provisions, the administrator must determine whether the misconduct was related to school activity or attendance, regardless of when the misconduct occurred.
If California courts are persuaded by, and follow, J.S. v. Blue Mountain, school districts here also must evaluate whether the off-campus cyber misconduct caused a substantial disruption at school, or whether the misconduct might reasonably lead school authorities to forecast substantial disruption of or material interference with school activities. According to J.S. v. Blue Mountain School District, as well as a recent district court decision in California, the standard for “substantial disruption” is fairly high. For example, last year, a California district court found that the campus disruptions resulting from an act of cyber misconduct were not substantial enough to justify student discipline. (J. C. v. Beverly Hills Unified School District (2010) 711 F.Supp.2d 1094.) In that case, the school disruption caused by the cyber misconduct included an administrator taking time to address parent concerns, five students missing a portion of their classes, and a fear that students would gossip.
Thus, establishing that a student’s off-campus cyber misconduct violated the Education Code and was related to school activity or attendance may not be enough to assert jurisdiction for school-based discipline. School districts also should be able to demonstrate that the cyber misconduct caused a substantial disruption at school, or might reasonably lead school authorities to forecast a substantial disruption of or material interference with school activities.
Based on these cases, we recommend that school administrators carefully evaluate whether the school disruption is more significant than the disruption that resulted in the J.S. v. Blue Mountain School District and J.C. v. Beverly Hills School District cases. Administrators should document the substantial disruption at school or school activities prior to proceeding with disciplinary action based on off-campus cyber misconduct. Additionally, school districts should be mindful that other measures such as counseling, meeting with parents, cease and desist orders, injunctive relief, and/or referral to law enforcement, may be available remedies for off-campus cyber misconduct.
If we can be of any assistance in evaluating and/or investigating student or employee cyber misconduct, please call one of our six offices. We are also available to assist in the development of a campaign to promote digital citizenship in the school community, including updating acceptable use of technology policies and related in-service presentations.
F3 NewsFlash prepared by Christopher J. Fernandes and Gretchen M. Shipley.
Chris and Gretchen are both partners in the F3 San Marcos office.
This F3 NewsFlash is a summary only and not legal advice. We recommend that you consult with legal counsel to determine how this new law may apply to your specific facts and circumstances. Information on a free NewsFlash subscription can be found at www.fagenfriedman.com.
As part of the E-ducation™ Professional Development Series hosted by ACSA and F3, we offer webinars on various topics. You can find the information on the ACSA website at http://www.acsa.org/MainMenuCategories/ProfessionalLearning/E-ducation-Series.aspx.
Keep up to the minute on the latest updates, NewsFlashes, and legal news by following F3 on Twitter:@F3Law.