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Rulings cloud issue of schools, free speech on Internet

PHILADELPHIA — Federal appellate judges wrestling with whether schools can discipline students for Internet speech posted offsite reached different rulings Thursday in two Pennsylvania cases.

One 3rd U.S. Circuit Court panel upheld the suspension of a Schuylkill County eighth-grader who posted sexually explicit material along with her principal's photograph on a fake MySpace page.

However, a different three-judge panel said that school officials in Mercer County cannot reach into a family's home and police the Internet. That case also involves a MySpace parody of a principal created by a student at home.

And, in dissent, a judge in the first case said his colleagues were broadening the school's authority and improperly censoring students.

"I believe that this holding vests school officials with dangerously overbroad censorship discretion," Judge Michael Chagares wrote in the case, which upheld the March 2007 suspension of a Blue Mountain Middle School student.

"Neither the Supreme Court nor this court has ever allowed schools to punish students for off-campus speech that is not school sponsored and that caused no substantial disruption at school," Chagares wrote.

School boards, free-speech advocates and others had been awaiting the rulings for clarity on how far schools can go to control both online speech and offsite behavior.

"The law was unclear and now it's in a state of chaos," said lawyer Witold Walczak of the American Civil Liberties Union, who argued the Mercer County case.

Similar free-speech cases have surfaced across the country, with different rulings, but none have reached the Supreme Court.

The ACLU also represented the Blue Mountain student, who was 14 at the time and received a 10-day suspension.

Chagares' colleagues upheld the discipline on grounds that her lewd posting was likely to cause a disruption at school. The principal and other students quickly became aware of it, and discussed it the next day at the middle school, according to testimony.

"Electronic communication allows students to cause a substantial disruption to a school's learning environment even without being physically present. We decline to say that simply because the disruption to the learning environment originates from a computer located off campus, the school should be left powerless to discipline the student," Judge Michael Fisher wrote in a footnote.

Both cases upheld the findings of lower-court judges. In western Pennsylvania, U.S. District Judge Terrence McVerry had ruled that Hermitage School District officials failed to show then-senior Justin Layshock's parody profile of then-Hickory High School Principal Eric W. Trosch on substantially disrupted school operations.

"The school's right to maintain an environment conducive to learning does not trump Justin's First Amendment right to freedom of expression based on the evidentiary record in this case," McVerry wrote in a 2007 opinion. "Public schools are vital institutions, but their reach is not unlimited."

The ACLU did not immediately know if it would appeal the Blue Mountain case, Walczak said.

Lawyer Anthony Sanchez, who argued the Hermitage High appeal, did not immediately return a message seeking comment.