The Herald, Sharon, Pa.

July 13, 2007

Judge: Wrestled with case

By Joe Pinchot

HERMITAGE — In his 28-page opinion and order, U.S. District Court Judge Terrence F. McVerry, Pittsburgh, called the Layshock family’s lawsuit against Hermitage School District and three administrators “an important and difficult case.”

McVerry had to balance Justin Layshock’s free-speech rights — he created an unflattering myspace.com profile of his former principal, Eric W. Trosch — with the “right and responsibility of a public school to maintain an environment conducive to learning.”

To complicate matters further, the case “began with purely out-of-school conduct which subsequently carried over into the school setting.”

It’s difficult to fit the facts of the case into previous court rulings on public school disciplinary authority and appropriate constitutional boundaries, he said.

“The threshold, and most difficult inquiry is whether the school administration was authorized to punish Justin for creating the profile,” McVerry said. “The mere fact that the internet may be accessed at school does not authorize school officials to become censors of the world-wide web. Public schools are vital institutions, but their reach is not unlimited. Schools have an undoubted right to control conduct within the scope of their activities, but they must share the supervision of children with other, equally vital institutions such as families, churches, community organizations and the judicial system.”

Looking at Justin’s profile, McVerry said, “This court has no difficulty concluding ... that Justin’s profile is lewd, profane and sexually inappropriate,” McVerry said, but added later: “There is no evidence that Justin engaged in any lewd or profane speech while in school.”

He also added that the site is not obscene because “it does not appeal to prurient interest or portray sexual conduct in a patently offensive way.”

Justin showed his profile to students in Spanish class, but that was not known by officials until after he had been disciplined, McVerry said.

“The actual charges made by the School District were directed only at Justin’s off-campus conduct,” the judge said.

With that basis, school officials had to show that Justin’s profile caused “substantial disruption” of school.

The key to the judge’s decision was that school officials could not show “a sufficient nexus between Justin’s speech and a substantial disruption of the school environment.”

One of the problems is that there were three other profiles of Trosch available at the same time on Myspace, and officials could not show how Justin’s alone caused problems, McVerry said.

The judge also said officials did not show that their reaction to the Web sites did not create some of the “buzz” among students.

School was disrupted by the Web sites, but the disruption was “minimal,” McVerry said. He said no “widespread disorder” was generated, nor was there “violence or student disciplinary action.”

McVerry also said no classes were canceled, although he had said earlier that computer programming classes were canceled.

McVerry concluded that “the school administration lacked authority to punish Justin for his off-campus creation of a Trosch profile,” but acknowledged “this decision is a close call and Defendants’ reaction to the unflattering profile was understandable.”

The judge said he would not comment on whether the profile was a parody, as the Layshocks claimed, or defamatory, as the district claimed. That decision is up to the courts.

Trosch has filed a defamation suit against Layshock and the purported creators of two of the other profiles.

McVerry also:

• Removed Trosch, co-principal Chris Gill and Superintendent Karen A. Ionta from the suit, Trosch because he was not involved in disciplining Justin, and Mrs. Ionta and Gill because they have qualified immunity to the charges, even though they violated Justin’s’ free-speech rights.

• Turned aside the Layshocks’ claims that district policies are vague and overbroad. “The administration misapplied them in this case,” he said.

• Ruled against Mr. and Mrs. Layshock’s claim that the school punishment interfered with their rights to discipline Justin. Schools have the authority to discipline students, and the Layshocks could not describe how the school interfered with their rights. They still are permitted to act in the suit on behalf of Justin, who was 17 at the time he was suspended.

• Said a trial will be held to determine what compensatory damages should be paid to Justin. Justin has until July 30 to file a pretrial statement, and the district Aug. 20 to file its statement. A pretrial conference will be held on Sept. 6. No trial date was set.