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Tinker case guides court as student’s parody of principal is ruled protected speech

In 1965, a 13-year-old Iowa girl by the name of Mary Beth Tinker wore a black armband to school in protest of the Vietnam War and in defiance of a school-board policy enacted specifically to ward off the display.
She was also defying her mother and

In 1965, a 13-year-old Iowa girl by the name of Mary Beth Tinker wore a black armband to school in protest of the Vietnam War and in defiance of a school-board policy enacted specifically to ward off the display.

She was also defying her mother and father, Methodist ministers, Freedom Riders and her principled inspiration, but also parents who would just as soon not borrow trouble.

As expected, Tinker, her brother and another student were suspended. After they were allowed back in school, they wore black for the rest of the year in protest.

They also came to the attention of the American Civil Liberties Union, which waged a four-year court battle on their behalf that culminated in Tinker v. Des Moines, a landmark U.S. Supreme Court decision barring public school officials from censoring student speech unless it disrupts the educational process.

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A guide for four decades
Students, seven of the nine justices famously held, do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” In the four decades since, the opinion has guided decisions on everything from school uniform policies to the rights of LGBT students.

Tinker, for her part, is active in directing the Marshall-Brennan Constitutional Literacy Project at American University, which mobilizes law students to teach courses on constitutional law and juvenile justice at public schools.

As such, it’s reasonable to assume that she took note of the most recent Tinker progeny, handed down Monday by the U.S. District Court of Appeals for the Third Circuit. And it’s reasonable to assume that she stood firm behind the principles at stake in Layshock v. Hermitage School District.

She would be forgiven if she rolled her eyes at the speech in question.

A fake MySpace ‘profile’
In 2005, 17-year-old Pennsylvania resident Justin Layshock signed on to a computer at his grandmother’s house and created a fake MySpace “profile” [PDF] for Eric Trosch, principal of Hickory High School. In it, he described the principal as a “big steroid freak” who keeps a “big keg behind [his] desk” and fears “students laughing at [him].”

“Justin created the profile by giving bogus answers to survey questions taken from various templates that were designed to assist in creating a profile,” the appeals court summarized. “The survey included questions about favorite shoes, weaknesses, fears, one’s idea of a ‘perfect pizza,’ bedtime, etc. All of Justin’s answers were based on a theme of ‘big,’ because Trosch is apparently a large man.”

Layshock would later describe the profile as a parody, never mind that it has much more in common with “Beavis and Butthead” than, say, “The Colbert Report.” (Which he apparently watches; perhaps he has since learned something about the incisive potential of the parody.)

The humor held enough appeal for teenage boys that three classmates copied Layshock, except with lewder and more explicit content. Predictably, word of the pranks spread “like wildfire” and Layshock & Co. were busted.

Layshock was the only one of the four who came clean. The copycats were not punished.

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Senior was suspended and transferred
In Layshock’s case, the principal called the police and considered a defamation lawsuit, but ended up suspending the senior for 10 days, transferring him to an alternative learning center normally reserved for students who can’t function in a normal classroom, barring him from extracurricular activities and from graduation ceremonies.

Layshock’s family sued and on Monday, a federal appeals court sided with them, articulating much the same reasoning the high court set forth in Tinker: The speech in question is constitutionally protected.

“Because the School District concedes that Justin’s profile did not cause disruption in the school, we do not think that the First Amendment can tolerate the School District stretching its authority into Justin’s grandmother’s home and reaching Justin while he is sitting at her computer after school in order to punish him for the expressive conduct that he engaged in there,” the court found.

“We realize, of course, that it is now well established that Tinker’s ‘schoolhouse gate’ is not constructed solely of the bricks and mortar surrounding the school yard. Nevertheless, the concept of the ‘school yard’ is not without boundaries and the reach of school authorities is not without limits.”

Unlikely to disrupt education process
That the speech “reached inside the school” didn’t matter, because it was unlikely to disrupt the education process — unlike an Internet post threatening a teacher or fellow student or one that urged students to act out.

Layshock’s misbehavior was in fact dealt with at home. His parents grounded him and took away his computer privileges.

And if that doesn’t seem like punishment enough, consider this: Wherever he is, Layshock, who is now probably 23 and turning his sights to such niceties as graduate or professional school or a job, must go forward knowing exactly what a mere Google search of his name will reveal.