CYBERBULLYING: THE CONSTITUTION IS NOT WRITTEN TO HINDER SCHOOL ADMINISTRATORS GOOD FAITH EFFORT TO ADDRESS THE PROBLEM.

Cyberbullying refers to the practice of using technology to harass or bully another individual using forums such as email, instant messaging, web pages, and digital photos through computers, cell phones, and PDAs.2 In Kowalski v. Berkeley County Schools, the Court confirmed that student-on-student bullying is a major concern in schools across the country and can cause victims to become depressed and anxious, to be afraid to go to school, and to have thoughts of suicide.3 Prohibition of this type of expression is generally caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint.4 Rarely is bullying politically driven; rather, it targets a fellow student with malicious intent and no self-expressive end. A crucial difference exists between speech that is merely provocative (see T.V. ex rel B.V. v. Smith-Green Community School Corp. where high school students were suspended from extracurricular activities for posting provocative photos on the Internet)5 and speech that is threatening (see J.S. ex rel. H.S. v. Bethlehem Area School Dist. where student created a website containing threatening and derogatory comments about teacher

1 2

Kowalski v. Berkeley County Sch., 652 F.3d 565, 577 (4th Cir. 2011) cert. denied, 132 S. Ct. 1095 (U.S. 2012) See Mindi McDowell, Dealing with Cyberbullies, United States Computer Emergency Readiness Team (released May 31, 2006; last revised June 1, 2011), http://www.us-cert.gov/cas/tips/ST06-005.html. 3 See Kowalski, 652 F.3d at 572 (quoting Know the Warning Signs, StopBullying.gov, http://www.stopbullying.gov/at-risk/warning-signs/index.html). 4 Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 509 (1969). 5 T.V. ex rel B.V. v. Smith-Green Cmty. Sch. Corp, 807 F.Supp.2d 767 (2011).

and principal)6 or harassing (see Kowalski v. Berkeley County Schools where student created and posted a webpage that ridiculed a fellow student).7 Targeting other students directly is not something that should be encouraged, nor tolerated, throughout the nations schools. Therefore, a student whose speecheither by words or actionsinterferes with the work of the school or trespasses upon the rights of other students must be fundamentally limited in his or her assertion of First Amendment protection and the right to bully others freely.

Tinker And Its Exceptions

In Tinker v. Des Moines Independent Community School District, the Supreme Court of the United States made a landmark decision that has set the standard for First Amendment protection of student speech. Through Tinker, the Court determined that regulation prohibiting wearing armbands to schools and providing for suspension of any student refusing to remove such was an unconstitutional denial of students right of expression of opinion.8 The school authorities were required to demonstrate facts that might have led them to predict substantial disruption of, or material interference with, school activities or, [show] that disturbances or disorders on school premises in fact occurred.9 The failure by school officials to indicate such a disturbance disabled the constitutionality of their decision to suspend students for wearing black armbands on their sleeves to exhibit their disapproval of Vietnam hostilities.10

J.S. ex rel. H.S. v. Bethlehem Area Sch. Dist., 569 Pa. 638 (2002). 652 F.3d at 565. 8 Tinker, 393 U.S. at 503. 9 Id. 10 Id.
7 Kowalski,

17 years later, the Supreme Court of the Unites States established the first of several exceptions to the standard set forth in Tinker requiring either a substantial disruption of, or a material interference with, school activities. The inherited rule from Tinker did not require school officials to allow a disturbance of this sort to occur so long as it could be reasonably illustrated that, absent school intervention, school activities would come to be disturbed by the speech in question.11

In Bethel School District No. 403 v. Fraser, the Court found that the Bethel School District acted entirely within its permissible authority in imposing sanctions upon [a] student in response to his offensively lewd and indecent speech, which had no claim to First Amendment protection, expanding the Tinker rule to include offensively lewd and indecent speech specifically.12,13 Fraser was suspended for delivering a speech at a high school assembly which utilized an elaborate, graphic, and explicit sexual metaphor.14 The Court believed it proper that the school board should determine what manner of speech in the classroom or in school assembly is inappropriate and that the functions of public school education should include prohibiting the use of vulgar and offensive terms in public discourse.15

After Fraser, the Supreme Court had essentially expanded disruption with school activities to include interference with a schools educational mission. With its next assessment in Hazelwood School District v. Kuhlmeier, the Court would again develop the Tinker benchmark. In
11

See Tinker, 393 U.S. at 514 and Layshock ex rel. Layshock v. Hermitage Sch. Dist., 650 F.3d 205, 222 (3d Cir. 2011) (Jordan, J., concurring). 12 Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675 (1986). 13 Fraser, 478 U.S. at 685. 14 Id. at 678. 15 Id. at 683.

Hazelwood, the Court produced a two-fold holding. First, the paper published by high school students in a journalism class, which they believed to have been censored unconstitutionally, did not qualify as a public forum.16 Consequently, school officials retained [the] right to impose reasonable restrictions on student speech in [the] paper.17 Second, the high school principals decision to excise two pages from [the] student newspaper, on [the] ground that articles unfairly impinged on [the] privacy rights of pregnant students and others, did not violate [the] students speech rights.18 In order to be considered a part of the school curriculum, the Court explained that an activity must be both supervised by faculty members and designed to impart knowledge or skills to student participants and audiences.19 Where these criteria are satisfied, [e]ducators are entitled to exercise greater control over student expression, the Court reasoned, to assure that participants learn whatever lessons the activity is designed to teach, that readers or listeners are not exposed to material that may be inappropriate for their level of maturity, and, most fundamentally, that the views of the individual speaker are not erroneously attributed to the school.20 The conclusion in Hazelwood was that school officials may regulate both the style and content of student speech in school-sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns.21

With Hazelwood the Court added to Tinker that speech or publication, which might reasonably be perceived to bear the schools imprimatur, could bestow upon school officials the right of

16 17

Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260 (1988). Hazelwood, 484 U.S. at 260. 18 Id. 19 Id. at 271. 20 Id. 21 Id at 273.

regulation in certain circumstances.22 Nearly 20 years later, the Courts ruling in Morse v. Frederick attached another dimension to the Tinker rule by holding that a high school principal did not violate student's right to free speech by confiscating banner she reasonably viewed as promoting illegal drug use.23 In continuing its walk along the fine line between free expression and educational interests, the Court assessed the students purpose in displaying his banner. The Juneau School District Superintendent contended that Fredericks speech was neither political nor a presentation of his religious belief.24 The Court concluded that at school events, the First Amendment does not require schools to tolerate student expression that contributes to the dangers of illegal drug use. CYBERBULLYING BEYOND TINKER The First Amendment of the U.S. Constitution states the following: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.25 Balancing the First Amendment right to freedom of speech with the need to address the emergence of cyberbullying has been as important as it has difficult. Since the Supreme Courts establishment of the Tinker disruption rule and its few exceptions, lower courts have had to wrestle with this standard through a series of unique situations, particularly in light of the ever-changing landscape of the Internet and contemporary digital communication.26 Though cyberbullying occurs remotely during after-

22 23

Hazelwood, 484 U.S. at 271. Morse v. Frederick, 551 U.S. 393 (2007). 24 See Morse, 551 U.S. at 398-99. 25 U.S. CONST. amend. I. 26 See Layshock at 205 (3d Cir. 2011) (Jordan, J., concurring) (citing J.S. ex rel. Snyder v. Blue Mountain Sch. Dist., 650 F.3d 915, 933-34 (3d Cir. 2011) cert. denied, 132 S. Ct. 1097 (U.S. 2012)).

school hours, Tinkers test of school disruption predominates over the geographic origin of the speech.27 According to Tinker, in order for a student to be subject to school discipline for his speech or actions, the student must intrude upon either the work of the school or the rights of other students.28 Essentially, these are the two possible criteria in assessing speech that amounts to a material and substantial disruption: either speech that disturbs classroom activity and students ability to learn or speech that violates other students fundamental right to safety, free from intimidation and abuse. Cyberbullying has the potential to satisfy both of these requirements in most circumstances.

In Fraser, the Court described the role and purpose of the American public school system as follows: [P]ublic education must prepare pupils for citizenship in the Republic.... It must inculcate the habits and manners of civility as values in themselves conducive to happiness and as indispensable to the practice of self-government in the community and the nation.29 Speech or actions that violate this work of the school may materially and substantially interfere with the requirements of appropriate discipline in the operation of the school, and may therefore be prohibited under Tinker regardless of whether it occurs on-campus or off-campus.30 In Kowalski, a high school student created a webpage dedicated to ridiculing one of her fellow students for the purpose of inviting others to indulge in disruptive and hateful conduct, which caused an inschool disruption.31 The Court concluded that such harassment and bullying is inappropriate
27 28

See J.C. ex rel. R.C. v. Beverly Hills Unified Sch. Dist., 711 F.Supp.2d 1094, 1104 (C.D. Cal. 2010). Tinker, 393 U.S. at 508. 29 See Fraser, 478 U.S. at 681 (quoting C. Beard & M. Beard, New Basic History of the United States at 228 (1968)). 30 See Tinker, 393 U.S. at 513. 31 Kowalski, 652 F.3d at 567.

and hurtful and that it must be taken seriously by school administrators in order to preserve an appropriate pedagogical environment.32 School-initiated restrictions can give rise to concerns about parents rights to discipline their children in the home as they see fit, and there may be circumstances in which school authorities, in order to maintain order and a proper educational atmosphere in the exercise of police power, may impose standards of conduct on students that differ from those approved by some parents.33 The work of the school, namely the education of its students, should not be allowed to be undermined simply because children are being bullied outside of school boundaries during after-school hours. Parents have a right to discipline or not discipline their children as they so choose. These children also have the freedom of speech to engage with their fellow students outside of school however they want to. Nonetheless, the school that has its work and educational mission violated through the disruptions caused by cyberbullying also retains the right to disallow these studentswho by their conduct have elected to remove themselves from participation in the schools purposeto be involved with the school. Many of the potential and observedeffects of cyberbullying rise to the level of creating a material and substantial disruption, including depression and anxiety, decreased academic achievement, and engagement in violent and risky behaviors.34 The requirement that the rights of others be preserved in order for student speech to maintain First Amendment protection under Tinker relates to students rights to both their personal wellbeing and their education. Anti-bullying policies aim to contain intentional gestures, or intentional written, verbal, or physical acts that can be reasonably presumed to harm another
32 33

Kowalski, 652 F.3d at 567. J.S., 650 F.3d at 933-34. 34 See Know the Warning Signs, StopBullying.gov, http://www.stopbullying.gov/at-risk/effects/index.html.

student.35 Further, the conduct is often sufficiently inappropriate, severe, persistent, or pervasive that it creates an intimidating, threatening or abusive educational environment for a student.36 The desired school atmosphere could not remain intact simply by addressing speech and conduct on school property during school hours.37 Schools have a duty to protect their students from harassment and bullying in the school environment.38 However, bullying within the school environment can be affected by conduct that occurs, for example, externally from a students home via the Internet.39 Bullying is fundamentally different from provocative expression or vulgar speech because it is narrowly targeted at a fellow member of the school community. Courts have previously assessed the way one accesses the speech in question to determine whether or not a disruption has occurred. In J.C. v. Beverly Hills Unified School District, the Court rejected the speculative suggestion of a material and substantial disruption of school operations where someone would have to navigate through six distinct steps in order to access and be exposed to the speech in question.40 Conversely, in Kowalski, the Court asserted that, [g]iven the targeted, defamatory nature of Kowalskis speech, aimed at a fellow classmate, it created actual or nascent substantial disorder and disruption in the school.41 The compelling interest herein was to prevent escalation: had the school not intervened, the potential for continuing and more serious harassment was real. Experience suggests that unpunished misbehavior can have a

35 36

Kowalski, 652 F.3d at 569. Id. 37 See id. at 575-76. 38 Kowalski, 652 F.3d at 572. 39 See id. at 575-76. 40 See J.C., 711 F.Supp.2d at 1116. 41 Kowalski, 652 F.3d at 574.

snowballing effect, in some cases resulting in copycat efforts by other students or in retaliation for the initial harassment.42 In the years since the Tinker standard was established, courts have struggled to strike a balance between safeguarding students First Amendment rights and protecting the authority of school administrators to maintain an appropriate learning environment.43 However, the freedom a bully possesses to express himself in malevolent ways should not take priority over the States obligation, through its school officials, to taxpayers, parents, and other students. To the extent it appears we have undercut the reasoned discretion of administrators to exercise control over the school environment, declared the Court in Layshock v. Hermitage School District, we will not have served well those affected by the quality of public education, which is to say everyone.44 Students can certainly expect a fair level of due process, but maintaining security and order in the schools requires a certain degree of flexibility in school disciplinary procedures, and there is value in preserving the informality of the student-teacher relationship.45 American public education enables our nations youth to become responsible participants in a self-governing society.46 In order [t]o perform this critical function effectively, professional educators must be accorded substantial discretion to oversee properly their myriad responsibilities.47 Ultimately, the menace of bullying is not something that the American educational system is compelled to allow as schools attempt to educate students about habits and manners of civility or the fundamental values necessary to the maintenance of a democratic political system.48
42 43

Kowalski, 652 F.3d at 574. J.S., 650 F.3d at 926. 44 See Layshock, 650 F.3d at 222 (Jordan, J., concurring). 45 See Fraser, 478 U.S. at 686 (quoting New Jersey v. T.L.O., 469 U.S. 325, 340 (1985)). 46 Thomas v. Board of Ed., Granville Sch. Dist., 607 F.2d 1043, 1044 (1979). 47 Thomas, 607 F.2d at 1044. 48 Kowalski, 652 F.3d at 573 (quoting Fraser, 478 U.S. at 681).