Bullying in Public Schools: the Intersection Between the Student's Free Speech Rights and the School's Duty to Protect - Elizabeth M. Jaffe and Robert J. D'agostino

• Publication year: 2011

Bullying in Public Schools: The Intersection Between the Student's Free Speech Rights and the School's Duty to Protect

by Elizabeth M. Jaffe* ** and Robert J. D'Agostino**

I. Introduction

The 2009 case of eleven-year-old Jaheem Herrera's suicide in Georgia, which resulted after alleged repeated verbal bullying by his classmates,¹ presents an interesting question regarding whether public schools must take action to prevent this type of behavior even if it does not disrupt the classroom. The issue to be addressed is not what speech schools can censor but whether schools must censor or prevent certain speech that has a harmful effect on the educational environment for a specific student or a specifically identifiable group of students.

If a public school student has a civil or liberty right to his education,² then it may be concluded that there is a duty imposed on the provider of that education to force students not to interfere with that right.

* Associate Professor of Law, Atlanta's John Marshall Law School. Emory University (B.A., magna cum laude, 1992); Washington University School of Law (J.D., 1995). Member, State Bar of Georgia.

** Professor of Law, Atlanta's John Marshall Law School. Columbia University (A.B., 1964; M.A., 1966); Emory University School of Law (J.D., 1971). Member, State Bar of Georgia.

The Authors would like to thank Ken Lewis, Richard Bentley, George Dean, and Malloree Collins for their assistance with this Article.

1. Celeste Lawrence, Jaheem Hererra, 11, Laid to Rest, Atlanta J. Const., Apr. 28, 2009, http://www.ajc.com^metro/content/metro/dekalb/stories/2009/04/28/jahem_laid_to_ rest.html.

2. See infra note 315.

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Arguably, that duty would require the prevention of certain speech, regardless of whether the speech is true or otherwise traditionally protected as part of a "democratic" exchange of ideas if its purpose or effect is harassment or verbal bullying or if it constitutes an attack on an individual student's core characteristics.³

Courts often aver in the abstract that student speech cannot be restrained unless the speech is reasonably likely to "interfere with the work of the school or impinge on the rights of other[s]."⁴ Is there then a right to be let alone that includes a right to be free from verbal assaults based upon characteristics such as race, religion, or sexual orientation? This protection presumably does not or should not include critiques of behavior, clothing choice, values, and a right not to be offended unless the purpose of such speech is to inflame, disrupt, or directly attack a particular student for the purpose of inflicting psychological harm.⁵ Whether the speech is intended to harm may be determined by analyzing the language actually used in the context in which it is used rather than by looking solely at the idea conveyed. Hence, both content and context are relevant for any speech analysis.

The Supreme Court of the United States classifies school speech as follows: (1) speech that is to be tolerated; (2) speech that is disruptive of the educational mission; (3) speech that is vulgar or offensive and hence inappropriate; or (4) speech that interferes with the rights of another student or students, such as language that disparages a person on the basis of core characteristics.⁶ These classifications come from three now well-known cases: "(1) vulgar, lewd, obscene, and plainly offensive speech ... is governed by Fraser, (2) school-sponsored speech ... is governed by Hazelwood, and (3) all other speech ... is governed by Tinker."⁷ In recognizing these areas of student speech, courts have attempted to reach "a balance between the free speech rights of students and the special need to maintain a safe, secure and effective learning environ-

ment."⁸

3. See infra text accompanying notes 194-202.

4. See, e.g., Gold v. Wilson Cnty. Sch. Bd. of Educ., 632 F. Supp. 2d 771, 789 (M.D. Tenn. 2009).

5. See infra text accompanying notes 189-93.

6. See Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 273 (1988); Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 683 (1986). See generally Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969).

7. Harper v. Poway Unified Sch. Dist., 445 F.3d 1166, 1176-77 (9th Cir. 2006) (footnotes omitted), vacated as moot, 549 U.S. 1262 (2007).

8. Id. at 1176.

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A. Bethel School District No. 403 v. Fraser

In Bethel School District No. 403 v. Fraser,"⁹ high school student Matthew Fraser gave "a speech nominating a fellow student for [a] student elective office" position at a voluntary school assembly held during school hours.¹⁰ Throughout the speech, "Fraser referred to his [fellow student] in terms of an elaborate, graphic, and explicit sexual metaphor."¹¹ After Fraser delivered the speech, the assistant principal met with him and notified him that the speech violated the school's "disruptive-conduct rule," which prohibited conduct that interfered with the educational process, "including the use ofobscene, profane language or gestures."¹² Fraser was given a chance to explain his conduct and admitted using sexual innuendo. Fraser was suspended, and after he participated in the school's grievance process, Fraser's father filed a suit as guardian ad litem in the United States District Court for the Western District of Washington, alleging a violation of Fraser's right to freedom of speech.¹³

The district court concluded that the school's sanctions violated the First Amendment, and the "disruptive-conduct rule [was] unconstitutionally vague and overbroad."¹⁴ The United States Court of Appeals for the Ninth Circuit affirmed, holding that Fraser's speech did not have a disruptive effect on the educational process.¹⁵ The court of appeals rejected the school's argument that the school needed to protect the captive audience of students at the assembly from lewd and indecent language.¹⁶ Moreover, the court noted that "the School District's 'unbridled discretion' to determine what discourse is 'decent' would 'increase the risk of cementing white, middle-class standards for determining what is acceptable and proper speech and behavior in our public schools.'"¹⁷

9. 478 U.S. 675 (1986).

10. Id. at 677.

11. Id. at 677-78.

12. Id. at 678-79 (internal quotation marks omitted).

13. Id.

14. Id. at 679.

15. Id. at 679-80. The Supreme Court notably remarked in Fraser that "[t]he marked distinction between the political 'message' of the armbands in Tinker and the sexual content of respondent's speech in this case seems to have been given little weight by the Court of Appeals." Id. at 680.

16. Id. at 680.

17. Id. (quoting Fraser v. Bethel Sch. Dist., 755 F.2d 1356, 1363 (9th Cir. 1985)).

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In fact, the district court judge in Fraser may have taken the holding from Cornelius v. NAACP Legal Defense & Educational Fund, Inc.¹⁸ a bit too literally. In Cornelius the Supreme Court recognized that regulation of a speaker's access to a nonpublic forum can be based on subject matter "so long as the distinctions drawn are reasonable in light of the purpose served by the forum and are viewpoint neutral."¹⁹ A distinction is viewpoint-based "when it denies access to a speaker solely to suppress the point of view he espouses."²⁰ The district court judge in Fraser may have concluded that the Bethel School District's suppression of vulgar speech was an attempt to impose a set of values regarding "decent" speech on students and ignore the purpose served by the high school assembly forum. Or perhaps the district court judge thought he should decide the purpose served by the forum.

The Supreme Court granted certiorari in Fraser and reversed the holding of the court of appeals.²¹ The Court recognized that while the First Amendment guarantees wide freedom in matters of public discourse, just because the use of an offensive form of expression may not be prohibited to adults, the same latitude does not necessarily apply to children enrolled in a public school.²² The Court specifically noted, "it is a highly appropriate function of public school education to prohibit the use of vulgar and offensive terms in public discourse."²³ The Court recognized that "[t]he pervasive sexual innuendo in Fraser's speech was . . . offensive to both teachers and students" and considered Fraser's speech to be "acutely insulting to teenage girl students."²⁴ This decision affirmed the discretionary authority of school officials in the closed forum of a public school to prohibit speech that is not necessarily disruptive.²⁵ In light of subsequent court decisions, Fraser may also be read to allow the censorship of language that the audience may perceive to be offensive, harassing, or demeaning to a group of students-here minor females-based on that group's core characteristics.²⁶

Additionally, in FCC v. Pacifica Foundation,²⁷ the Supreme Court specifically "recognized an interest in protecting minors from exposure

18.	473 U.S. 788 (1985).
19.	Id. at 806.
20.	Id.
21.	Fraser, 478 U.S. at 680.
22.	Id. at 682.
23.	Id. at 683.
24.	Id.
25.	See id. at 684.
26.	See id. at 685-86.
27.	438 U.S. 726 (1978).

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to vulgar and offensive spoken language."²⁸ As such, the Court in Fraser concluded the school district was permitted to "impos[e] sanctions upon Fraser in response to his offensively lewd and indecent speech."²⁹ The Court noted,

The First Amendment does not prevent the school officials from determining that to permit a vulgar and lewd speech such as [Fraser's] would undermine the school's basic educational mission. A high school assembly or classroom is no place for a sexually explicit monologue directed towards an unsuspecting audience of teenage students. Accordingly, it was [certainly] appropriate for the school to disassociate itself to make the point to the [students] that vulgar speech and lewd conduct is...