In recent years, parents, educators, and the media have expressed a rising concern about the prevalence of bullying in American schools. In particular, this concern has been brought to the forefront with the emergence of "cyberbullying" and "sexting." In response to this perceived epidemic of poor student behavior, legislatures and school officials have adopted a variety of new laws and search policies. Most notably, they have adopted policies giving school officials the authority to search students' electronic communication devices. This Article narrates these developments, assesses their impact on the lives of students and the culture of our schools and then locates them in broader trends in schooling, parenting, and policing. More specifically, this Article explores the degree to which our sharp spike in concern over traditional bullying, cyberbullying, and sexting, and our resort to the surveillance of student devices as a response to such a concern, reflects important lessons about our collective conception of student privacy, about the expectations parents have of the role the school will play in their children's lives, and about the transformation of public schools into public institutions focused on criminal law and criminal-law-like approaches to perceived social problems. When analyzed in cultural context, our schools' initial response to concerns about cyberbullying and sexting is disquieting. Though understandable--indeed even predictable--the approaches Americans have thus far chosen do not reflect considered policy supported by empirical evidence, but, rather, one more step in the reorientation of American institutions generally, and public schools specifically, towards the reflexive adoption of surveillance and punishment as the response to any potentially serious problem.
TABLE OF CONTENTS INTRODUCTION I. THE CRIME CONTROL APPROACH TO EDUCATION A. Juveniles as Subjects for the Criminal Justice System B. Schools as Sites for Policing C. Crime Control Approaches to School and Evolving Attitudes About Schools and Students II. BULLYING AND CYBERBULLYING AS PANDEMIC A. High Profile Incidents and Increased Public Attention B. The Slipperiness of "Bullying" C. Cyberbullying: Adding Technology to the Mix III. LEGISLATIVE AND ADMINISTRATIVE RESPONSES TO BULLYING AND CYBERBULLYING A. Getting Tough on Bullying B. Increased Surveillance of Students and Their Devices 1. An Emerging Trend and its Implications 2. The Possibility of Legal Constraint C. Criminal Prosecutions IV. PARENTS, SCHOOLS AND SEARCHES A. Parental Reactions to School Policies B. Intensive Parenting and the Surveillance of Students C. Where Parents Draw the Line, or How the Sex Panic Trumps All Other Panics CONCLUSION INTRODUCTION
There is probably no institution more familiar to the average American than the public school. Most people have attended one, (1) stories and images of the school experience dominate literature and media, (2) and, largely for these reasons, everyone believes they understand what public schools are like. A common understanding is they are not like the public schools we adults attended in our youth, which were of course safer, more innocent, and stocked with students who were better-behaved. Over the past several decades, schools have been reframed into dangerous places rife with potential for crime and violence, and as a result have been reworked into places where criminal-law-like approaches to perceived social issues prevail. Ostensible epidemics of disorderly behavior and criminal activity have been thought to require the kinds of "tough on crime" approaches documented elsewhere in American society--increased surveillance of potential perpetrators, additional crimes with which people may be charged, and expanded punishment for those found to have transgressed. (3)
The expansion of criminal law-like approaches to on-campus issues has generated a fairly rich body of case law and literature, much of which has addressed actions and procedures aimed at combatting student drug use and possession. (4) The panic over drug use generally, and drug use by youths specifically, has generated criminal statutes and new school programs, and a researcher collecting student search cases from online legal databases would quickly discover most such cases involve administrators searching for illicit drugs. This would likely come as no surprise to students of criminal procedure. Drug cases drive Fourth Amendment law generally. (5) Over the past few decades we have seen a tremendous amount of concern about the use of illicit drugs by students and the extent to which students may be either distributing drugs on campus or coming to school under the influence. The Supreme Court's major student search cases nearly all involve administrators searching for drugs, often with no suspicion whatsoever, as districts worry about students using drugs even when not at school. (6) Fear of violent crime may motivate many changes in modern schools, such as the installation of metal detectors to locate student weapons and the presence of police officers on campus. However, drug fears drive case law, and there is a predictable direction to that drive--more searches, of more students, based on less suspicion. (7)
Panics about drugs and violence recently have been joined by a new panic--a concern with bullying, cyberbullying, and sexting. (8) The Columbine murders in 1999 (9) spawned worry over traditional bullying. More recently, high-profile suicides, such as those of Phoebe Prince (10) and Megan Meier, (11) stoked fears of traditional bullying and cyberbullying. In order to combat a perceived epidemic of bullying behavior, schools are now (among other things) searching students' electronic devices, such as laptop and tablet computers, cell phones, and smart phones, on an ad-hoc bases. (12) These items generally are the personal property of the students. While students may be able to access computers provided by public schools while on campus, they often also bring with them to school a wide variety of portable devices that perform functions similar to that of a computer, including sending messages or accessing the Internet. For example, students carry standard cell phones, smart phones, laptop computers, personal data assistants (such as Blackberries), and iPads or other tablet computers. (13) Some schools and school districts have developed formal search policies related to such searches, providing guidelines for when and to what extent electronic communication devices may be searched by school administrators when brought onto campus. (14)
What are administrators looking for when searching cell phones? They conceivably could be engaging in physical searches of areas such as the cell phone's battery compartment in order to see if drugs or weapons might be contained therein. (15) What such policies actually contemplate, however, is not access to the physical items students have brought with them onto campus--illicit drugs, dangerous weapons--but, rather, to the communications and other information stored in and accessible by those devices. Those communications may have been generated during school hours, but devices do not discriminate as to time of creation. When an administrator accesses the student's device, the administrator may access the student's life more generally.
There are a number of interesting questions raised by school-based searches of student electronic devices. Some of these issues are doctrinal. For example, to what extent does the Fourth Amendment limit the authority of school officials to search student's electronic devices (16) and to what extent does the First Amendment limit their authority to punish students for off-campus communications uncovered through such searches or by other means. (17) This Article, however, is less concerned with explaining what First and Fourth Amendment law can or will do with respect to searches of student devices, and instead is more focused on thinking through the impact of such searches on the lives of students and the culture of our schools. More specifically, this Article analyzes our increasing cultural enthusiasm for such searches, exploring the degree to which our interest in such policies reflects important lessons about our collective conception of student privacy, about the expectations parents have of the role the school will play in their children's lives, and about the transformation of public schools into public institutions focused on criminal law and criminal-law-like approaches to perceived social problems.
For students, one of the crucial implications of the increased surveillance of electronic communication devices is that they increasingly are responsible to their schools for their out of school behavior. Searches of student electronic communication devices reveal not only (or, perhaps, not even primarily) what acts they undertake at school, but also what they do off campus and after hours. For reasons outlined in...