Beyond the schoolhouse gates: the unprecedented expansion of school surveillance authority under cyberbullying laws.

• Author: Suski, Emily F.
• Position: II. An Unprecedented Expansion of School Authority through V. Conclusion, with footnotes, p. 87-119

2. AN UNPRECEDENTED EXPANSION OF SCHOOL AUTHORITY

   Given the novelty of school authority under cyberbullying laws to conduct surveillance of students' online and electronic activity, it is not surprising that there is no doctrine on point regarding its limits. Thus, understanding how school surveillance authority reflects an expansion of traditional limits on school authority requires looking to other doctrinal restrictions on school authority to get a sense of where courts have been willing to draw boundaries. Overarching constitutional limits on school authority derive from First and Fourth Amendment student-speech and search doctrines. While school surveillance authority does not fit squarely into either the First or Fourth Amendment school doctrine, it touches on elements of both, thus providing relevant guidance on the limits of school authority. More generally, Supreme Court doctrine on government surveillance provides some guideposts to assess the limits of state and therefore school surveillance authority.

   1. The Limits of School Authority Under First Amendment Doctrine

      1. Schools' Expanded Authority to Regulate Student Speech

         Schools generally have more authority than state actors under the Constitution to regulate student speech. That authority in some circumstances extends beyond the physical boundaries of the school. Thus, First Amendment doctrine offers insight into where the courts have been willing to draw lines regarding school authority. In Tinker v. Des Moines Independent Community School District, (97) the Supreme Court articulated both a willingness to protect student speech in school and recognized that students' First Amendment rights in school are not coextensive with those rights in other contexts. The students in Tinker were disciplined for wearing black armbands to school in protest of the Vietnam War. (98) They challenged the disciplinary action on First Amendment grounds. (99) Famously pronouncing that students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate," (100) the Court went on to find that student speech may nonetheless be limited if it "materially disrupts classwork or involves substantial disorder or invasion of the rights of others." (101) Finding no such disruption, disorder, or invasion, the Court overturned the school disciplinary action as a violation of the First Amendment. (102)

         Because the students in Tinker wore their armbands in the school building, the standard articulated in that case for limiting student speech--a material and substantial disruption or invasion of the rights of others--applies in that specific setting. Tinker did not have cause to address where the boundaries of "in school" begin and end. Therefore, while a school's increased authority to impinge on students' free-speech rights may or may not extend beyond the schoolhouse gate, Tinker did not decide that issue. (103)

         Other Supreme Court cases on student speech have done little to clarify the physical or temporal boundaries of school authority. In Bethel School District v. Fraser, (104) the Supreme Court found that schools have an increased authority, as compared to other state actors, to regulate students who make lewd speech in school. (105) In Fraser, a student was disciplined for making a vulgar speech at a school assembly. (106) In finding that the school could regulate the speech, and therefore discipline the student, the Court again did not have reason to define where the boundaries of "in school" begin and end. As in Tinker, the student in question made the lewd speech in school, (107) and the holding was limited to those narrow facts. Though Fraser did not address the physical boundaries associated with this increased authority to regulate student speech, Morse v. Frederickr (108) later clarified that the authority to regulate students' lewd speech was limited to the physical school setting. (109) In Morse, the majority stated that "[h]ad Fraser delivered the same speech outside the school context, it would have been protected." (110)

         Morse and an earlier case, Hazelwood School District v. Kuhlmeier, (111) identified some specific kinds of speech that can be regulated by the school regardless of whether the speech physically occurs within the school setting. In Kuhlmeier, the Court considered speech made by students in a school newspaper. (112) It concluded that schools generally have more authority than the state does to regulate school-sponsored student speech--such as speech made through a student newspaper. (113) In Morse v. Frederick, more famously known as the "Bong Hits 4 Jesus" case, the Court considered whether a sign held up by a student at an off-campus, school-sponsored activity that could be interpreted to support illegal drug use could be regulated by the school. (114) It concluded that drug-supporting speech at school-sponsored activities, off-campus or not, can be regulated by schools. (115) For school-sponsored speech and drug-supporting speech at school-sponsored activities, the school boundaries are broader than the school boundaries for lewd speech: they extend beyond the physical location of the school.

         Since Fraser, Kuhlmeier, and Morse apply specifically to lewd speech, school-sponsored speech, and drug-supporting speech at school-sponsored activities, they do not determine the boundaries of school authority in other contexts--most relevantly when the school is conducting surveillance of students' online and electronic activity outside the school. The federal appellate courts have therefore been left to grapple with applying the Tinker standard to address discipline of students' online speech when it does not occur in the school building or at a school-related or sponsored event. (116) The Circuits have developed two different standards for evaluating the extent of school authority to discipline students for speech that occurs online and off-campus. One line of cases from the Second, (117) Third, (118) and Eighth (118) Circuits use essentially the Tinker standard or a variation of it. The Second Circuit has articulated its test as one that permits schools to regulate what might otherwise be protected speech made online and off-campus if the speech poses a reasonably foreseeable risk that it will both "come to the attention of school authorities and that it would 'materially and substantially disrupt the work and discipline of the school.'" (120) If the student speech meets this test, then the boundaries of the school extend beyond campus to virtually any place the speech occurs. The Second Circuit, in Doninger v. Niehoff, (121) found such a reasonably foreseeable risk when a student made a blog post at home, and the blog was hosted on a website wholly unaffiliated with school. (122) The Court found that the blog post, which invited students to protest the school superintendent's decision regarding the date and location of a school jam fest music event, "directly pertained to an event" at school and "invited other students to read and respond to it by contacting school officials." (123) Thus, the Court concluded that it was reasonably foreseeable that the post would "reach school property and have disruptive consequences there." (124)

         The Fourth Circuit has a somewhat different approach for the standard for determining the breadth of school authority to regulate students' off-campus and online speech. In Kowalski v. Berkeley County Schools, (125) a student created a MySpace page that was "largely dedicated to ridiculing a fellow student." (126) The student who created the MySpace page was suspended from school for five days and challenged the suspension on First Amendment grounds. (127) The Court concluded that the school could regulate student off-campus and online speech if the nexus between the speech and the school's pedagogical interests was sufficiently strong to justify the disciplinary action regulating the speech. (128) In Kowalski, the Court found that the nexus requirement could be met by the material or substantial disruption test because although the MySpace page was created at home, the student "knew that the electronic response would be, as it in fact was, published beyond her home and could reasonably be expected to reach the school or impact the school environment." (129) Although acknowledging that there is "a limit to the scope of a high school's interest in the order, safety, and well-being of its students when the speech at issue originates outside the schoolhouse gate," the Court declined to define that limit. (130) It instead limited itself to finding that the student's speech on the MySpace page had a sufficiently strong nexus to those pedagogical interests. (131)

         In sum, schools' authority to regulate student speech is broader than that of other state actors and at times can extend beyond the physical boundaries of schools. Supreme Court cases indicate that schools can regulate student speech even if it occurs off-campus if it is school-sponsored speech or if it is drug-supporting speech made at a school-sponsored activity. (132) In addition, in some Circuits, if there is a "reasonably foreseeable risk that the [speech will] come to the attention of school authorities" and create a material and substantial disruption in school, (133) or if the regulation of the speech has a sufficiently strong nexus to a school's pedagogical interests, (134) then student speech may be regulated by schools regardless of where and when it occurs.

      2. If Increased School Authority to Regulate Student Speech Is a Guide, Cyberbullying Laws Expand School Authority

         Although the limits on school authority under student-speech cases provide a rough guide for the general limits on school authority, the surveillance authority of schools under cyberbullying statutes exceeds those limits. Because of its sweeping nature, the surveillance of all of students' online and electronic activity whenever and wherever...