MORE HARM THAN GOOD? WHY SCHOOLS WHO TAKE A ZERO-TOLERANCE STANCE ON CYBERBULLYING CAUSE MORE PROBLEMS THAN SOLUTIONS.

• Author: Brunecz, Sydney L.

INTRODUCTION

Bullying (1) is not a new phenomenon. Bullying, like many other aspects of society, has changed over time due to new technologies. The creation of the Internet, smartphones, and social networking has created a new form of bullying, cyberbullying. Cyberbullying is arguably more dangerous than traditional bullying because "electronic communications provide anonymity to the perpetrator and [there is] the potential for wide-spread distribution" of the offensive and harmful speech. (2) In the past, bullying generally only occurred at school when students were together, but because of technological advances, bullying can now occur at any time and from any location. (3) Additionally, cyberbullying is more visible and widespread, which makes the humiliation of the victim more widespread.

Cyberbullying is a common occurrence amongst school-aged children. (4) The effects of cyberbullying on the victim can be devastating. Students being bullied may experience an increase in absenteeism, a decrease in grades, suffer from depression, or even harm themselves or others. (5) One parent whose child committed suicide because of bullying said, "the bully murdered my son using the keyboard as his weapon, just as surely if he had crawled through a broken window and choked the life from him with his bare hands." (6) High-profile media coverage of children committing suicide creates awareness to the severity of consequences cyberbullying creates and leads to a demand for legislative action. (7)

Congress is working on legislation that will criminalize cyberbullying. (8) However, nothing has been passed yet. Although Congress thus far has been unsuccessful in creating anti-bullying legislation, states have been quite successful. Most states require public school districts to create policies that eradicate cyberbullying. (9) Proponents of this approach believe that schools are in the best position to enforce anti-cyberbullying rules because of their unique position in children's lives. (10) School "anti-bullying policies often take a zero-tolerance form." (11)Zero-tolerance policies mandate school administrators to impose a specific punishment, generally suspension or expulsion, regardless of the circumstances surrounding the offense. Because cyberbullying can negatively impact an adolescent's life, taking a hard stand against bullying assures the public that this behavior is intolerable. However, zero-tolerance bullying policies are a double-edged sword. While these policies may appear to successfully reduce bullying and satisfy the parents' and community's cry for action against bullying, (12) zero-tolerance policies may be ineffective and infringe upon a student's First Amendment rights. (13)

This Note will focus on the issues that schools face when enforcing a zero-tolerance bullying policy. Part I of this Note will address the history of zero-tolerance policies and cyberbullying. It will describe how the federal government, states, and school districts are responding to and regulating cyberbullying. Part II will address the circumstances where bullying constitutes protected speech under the First Amendment. Most student speech cases involving bullying or cyberbullying will be analyzed by courts applying the substantial disruption test set forth in Tinker v. Des Moines School District. (14) However, a case study will show that in many jurisdictions cyberbullying will not create a substantial disruption and will be protected under the First Amendment unless it can be considered a true threat. Part III will ask if zero-tolerance policies are the least restrictive means for preventing bullying that is protected by the First Amendment. Part III will conclude that zero-tolerance policies are not the least restrictive method to prevent bullying. Finally, Part IV will conclude that public schools' existing efforts to prevent cyberbullying through zero-tolerance policies go too far in restricting speech and should therefore be limited to bullying and cyberbullying that constitutes a true threat.

1. HISTORY OF ZERO-TOLERANCE POLICIES, CYBERBULLYING, AND LEGISLATIVE RESPONSE

   Legal reform reflecting a change, or awareness, of society's objectives, often comes quickly on the heels of an event that shocks the core of America's values. School safety failures, such as shootings, suicide, and drug abuse, enrage parents and the public at large. This creates a significant pressure on politicians and school boards to respond. In schools, these responses generally involve the implementation of a zero-tolerance policy towards the act that led to the public outrage. Zero-tolerance policies require automatic and specific punishment, generally suspension or expulsion, without taking additional circumstances into consideration. (15) These policies are intended to demonstrate to the student body and the community that the problem is serious and severe action will be taken against any student who violates the policy.

   Zero-tolerance policies are generally enacted as a response to a highprofile event that represents an "epidemic" that has plagued the nation. These epidemics include gun violence, drugs, and now bullying. The 1994 Gun Free School Act, as its name suggests, a zero-tolerance policy prohibiting students from bringing firearms on school grounds for any reason. (16) The 1994 Gun Free School Act dictates that students who bring a firearm to school will face expulsion. (17) This shows the general public's view that firearms in a student's possession should never be tolerated, and the severity of the punishment--which may have long-term consequences for the student's future education and employment--is meant as a harsh deterrent. By 1995, most states adopted zero-tolerance policies against guns and would soon implement them in the war against drugs. (18)

   Drug-use is another epidemic that caused schools to adopt zero-tolerance policies. "Politicians and the public panicked about the perceived widespread, dangerous use of mind-altering substances, and schools rushed forward with punitive and invasive responses." (19) Schools have been granted the authority to prevent exposure of drugs to students and to take steps to stop students from advocating for the use of illegal drugs. (20) Now, a new epidemic plagues public schools: cyberbullying. (21)

   Everyone who has attended, or is currently attending a public school in the United States has likely experienced bullying either as the aggressor or as the victim. However, now, bullying is not confined to school or school functions because of the Internet, smart phones, and social networking websites. New technologies have led to cyberbullying, which can occur at anytime from anywhere. Students now subscribe to forums such as Twitter, (22) Facebook, (23) Instagram, (24) Yik Yak, (25) and Snapchat. (26) These forums enable students to post pictures, statuses about their thoughts, and messages to their friends, or in the case of Yik Yak, any user within a one-mile radius from the speaker. (27) The cyberbully is able to use these forums to harass his or her victims. For instance, Facebook allows users to create interest pages. These webpages are generally dedicated to a particular hobby, skill, association, or group. A cyberbully may create a page that ridicules another student and encourages other students to join in on the "fun." (28)

   Another forum where cyberbullying has become prevalent is online video gaming. Major video game consoles allow players to play games online with one another in real time. (29) Players with headsets can talk to one another and may engage in verbal taunting, an act considered cyber bullying under the broad definitions of most state statutes. (30) For children and teens that utilize the Internet to satisfy social needs, there may be no escape from bullying. Some adolescents are victimized by bullying to such a great extent that they commit suicide in order to gain relief. (31) These instances often times result in high media coverage, and include as examples the suicides of Megan Meier, Ryan Halligan, and Phoebe Prince.

   Megan Meier was bullied on Myspace. (32) Megan befriended "Josh Evans" on Myspace and they began to form a relationship. (33) One day, Megan received a message from Josh stating, "[t]he world would be a better place without you." (34) Later that day, she committed suicide. (35) The most heart wrenching part of Megan's story is that Josh Evans did not exist and Josh was really Lori Drew, her "friend's" mother. (36) Megan was only thirteen years old when she committed suicide. (37)

   Ryan Halligan was also thirteen when he committed suicide because of bullying. (38) A girl Ryan had a crush on pretended to like him online before proceeding to share their instant messaging conversations with the school to embarrass and humiliate Ryan. (39) When she called Ryan a loser, Ryan told her "[i]t's girls like you who make me want to kill myself." (40) Later, Ryan Halligan committed suicide by hanging himself. (41)

   Phoebe Prince is another adolescent who committed suicide by hanging herself because of bullying. Phoebe was a new student that became the victim of bullies who were mad she was dating a popular football player after only being in school for a few weeks. (42) Phoebe's bullies called her an "Irish slut" and "whore" on her social networking profile websites. (43) After Phoebe committed suicide, her bullies continued to post vicious comments about her on her Facebook memorial page. (44)

   Unconscionable and preventable tragedies like these have enraged parents and communities at large. Parents and community members are concerned for the safety of their children and want the government to take action to ensure that other children do not succumb to the same fate. Congress has introduced two acts that attempt to deal with cyberbullying: the Megan Meier Cyberbullying Act (45) and the Adolescent Web Awareness Requires Education Act. (46) However, neither...