On Thursday the Third Circuit Court of Appeals issued two seemingly contradictory opinions involving student speech. Both cases involved students who had created fake online profiles parodying the principals at their respective schools. Both students were punished by school officials for their speech. Despite the similarities, however, the Court ruled one student’s rights had been violated while denying relief to the other student.

The first case is Layshock v. Hermitage School District, which involved high school student Justin Layshock’s MySpace profile in which he poked fun at the principal for being a large man. The profile featured several nonsensical responses, most involving the word “big,” to questions about the principal’s favorite things. Justin created the profile at his grandmother’s house, using her computer, after school hours. The principal did not learn about the profile because of anything that happened at school. Instead he discovered it while at home. In response to the profile, school officials suspended Justin for ten days, banned him from extracurricular activities and forbade him from attending his graduation ceremony. Justin and his parents, along with the ACLU of Pennsylvania, subsequently sued the school for violating Justin’s First Amendment rights.

Yesterday, the Layshocks won that battle. A unanimous three-judge panel declared that the school’s actions were unconstitutional because they punished Justin for exercising his free speech rights. “It would be an unseemly and dangerous precedent to allow the state in the guise of school authorities to reach into a child’s home and control his/her actions there to the same extent that they can control that child when he/she participates in school sponsored activities,” the Court noted. Justin’s suspension violated his First Amendment rights because his speech took place off campus and did not disrupt the school’s operations. As such, the school did not have the authority to punish him.

The second case, J.S. v. Blue Mountain School District, was based on a similar fact pattern but came to a very different result. J.S., an eighth grade honor role student, was suspended for creating an online profile featuring her school principal. The profile did not contain the principal’s name, only his picture, but did include comments about his sexual habits and inappropriate behavior toward students. J.S. and a friend created the profile while at home on her parents’ computer. After being suspended for ten days, J.S and her parents, again along with the ACLU, decided to sue the school district for their violation of J.S.’s free speech rights.

The Court found yesterday, however, that the school officials had a right to punish J.S. Relying on the seminal student speech case Tinker v. Des Moines Independent Community School District, the Court found the profile created a reasonably foreseeable potential for disruption at the school. Although Tinker held that students do not shed their constitutional rights to freedom of speech and expression at the schoolhouse gate, the decision allowed officials to punish students when their speech caused a material and substantial disruption of school operations. The Court in Blue Mountain found that a reasonable possibility of future disruption due to the student’s speech was enough to satisfy the Tinker standard.

A closer look at the two cases sheds light on the differences in the Court’s analysis. In Layshock, the school district conceded that there was no disruption to the school environment. They argued instead that the profile was lewd and offensive, had entered the school, and was therefore subject to school authority and could be punished under the Supreme Court’s decision in Bethel School District v. Fraser. The Court, however, rejected this argument (for the reasons stated above).

Similarly, in Blue Mountain, the Court decided that even though the profile was lewd, it was not going to decide whether schools can punish students for lewdness off campus which has an effect on campus. Instead, the Court in Blue Mountain found that the school had authority under Tinker to punish the students because, unlike Layshock, the profile had the potential to create a material disruption. Although Tinker held that school officials can’t act on “undifferentiated fear or apprehension of disturbance” alone, the Court in Blue Mountain held that it is enough  if the district can demonstrate evidence that might have reasonably led them to forecast a substantial disruption. Here, the Court reasoned, a disruption was reasonably foreseeable if the principal had not taken quick corrective action because of the disturbing nature of the profile’s content and the immediate impact it had begun to have on the school.

The Court refused to accept the argument that Tinker is limited to the physical boundaries of school campus. Instead the court held that “off campus speech that causes or reasonably threatens to cause a substantial disruption of or material interference with a school need not satisfy any geographical technicality in order to be regulated pursuant to Tinker.”

Although Layshock appears to be a boon for student speech rights, Blue Mountain significantly broadens the authority of school officials to regulate student expression. Using the Court’s reasoning almost anything students write, express, or create off campus is potentially subject to the sanction of the school district. The boundaries that used to delineate where the special rules of the schoolhouse began are slowly being eroded. As the dissent in Blue Mountain notes, the decision “vests school officials with dangerously overbroad censorship discretion.” Anytime students give vent to their frustrations or voice an unpopular or anti-authoritarian opinion, they may be at risk for school punishment.