Groups support Layshock lawsuit

By Joe Pinchot
Herald Staff Writer

HERMITAGE July 26, 2008 05:53 pm

— Three civil liberties organizations have filed friend-of-the-court briefs in the Justin Layshock vs. Hermitage School District case, saying an appeals court’s decision will have far-reaching effects.
Layshock, then a Hickory High School senior, created an unflattering profile of his principal, Eric W. Trosch, on his grandmother’s computer in December 2005, and posted the profile on the MySpace social-networking Web site.
Layshock admitted creating the profiel to co-principal Chris Gill and was suspended for 10 days and assigned to an alternative education program within the school, among other punishments.
Layshock and his parents, Donald and Cheryl, sued the district, Trosch, Gill and Superintendent Karen A. Ionta, saying district officials overstepped their authority in punishing Layshock for off-campus speech, and interfered with Mr. and Mrs. Layshock’s right to discipline their son.
U.S. District Court Judge Terrence F. McVerry, Pittsburgh, on Nov. 14 sided with Layshock on the issue of the punishment, but with school officials on the issue of parental rights.
Both sides have appealed the decision to the U.S. Court of Appeals for the Third Circuit, Philadelphia.
The outcome of the Layshock case will have a “critical impact on the First Amendment rights of student-citizens expressing their views off school property,” said John W. Whitehead, founder and president of the Rutherford Institute, Charlottesville, Va.
Hermitage school administrators are making a “misguided attempt to obtain control over off-campus speech.,” he said.
While Whitehead acknowledged electronic communication has changed dramatically since the Supreme Court last ruled on on- and off-campus speech and the lines between them have become blurred, students must have First Amendment protections.
If the court backs the school, “Anything posted by public school students on the Internet that is even vaguely related to the school environment, teachers, students, etc., could be targeted as on-campus speech and therefore subject to discipline,” he said.
Such free-wheeling power by schools has the “rife potential for abuse by school administrators,” Whitehead said. Administrators could punish private speech in some way related to the school “simply because they disagree with it,” he said.
Hermitage administrators punished Layshock because they found his profile to be “offensive, demeaning and demoralizing,” he said. Such conclusions are irrelevant because the First Amendment “does not allow government officials — including school officials — to punish a student simply for its perceived offensive content outside of the school environment,” Whitehead said.
Giving school officials authority to punish Layshock for his profile would extend to a high school student who writes a truthful letter to the editor in a local newspaper that exposes harassment or discrimination by teachers, said Joanna L. Cline of Pepper Hamilton, Philadelphia, writing for the Student Press Law Center and the Pennsylvania Center for the First Amendment at Pennsylvania State University.
“Young people do not learn civic responsibility by being told to sit down, shut up and not make waves,” Ms. Cline said. “Young people must have the leeway to participate in the dialogue of their community (a dialogue that increasingly is taking place online) without fear that a step over the line will bring expulsion and the stigma of being classified as a ‘problem kid.’ ”
A school principal must possess “the maturity to accept even sometimes-unfair criticism as part of the job,” Ms. Cline said.
The technological innovation of the Internet and electrical communication does not render null and void previous U.S. Supreme Court decisions, Ms. Cline said.
“If the publication of a student’s speech does not take place on school grounds, at a school function, or by means of school resources, a school cannot punish the student without violating his First Amendment rights,” Ms. Cline said.
She noted the school has argued that Layshock’s use of a photo of Trosch by downloading it from the district’s Web site makes the profile on-campus speech. “(I)t has never been the school’s position that Layshock would have incurred the same punishment had he ‘stolen’ Principal Trosch’s photo to make a MySpace page honoring Trosch as ‘Educator of the Year,’ ” she said.
Whitehead and Ms. Cline added the criminal and civil legal system already has recourse for school officials who have been defamed or are subject to “true threats,” as Whitehead put it.
Trosch filed a defamation suit in Mercer County Common Pleas Court against Layshock and others who he said created MySpace profiles of him.
The Pennsylvania School Boards Association previously filed a friend-of- the-court brief supporting the district.
The appeals court can rule based on the record of past filings and hearings and the argument briefs, or call for arguments.