Schools, cyberbullies, and the surveillance state.

• Author: Ahrens, Deborah
• Position: III. Legislative and Administrative Responses to Bullying and Cyberbullying through Conclusion, with footnotes, p. 1695-1722

3. LEGISLATIVE AND ADMINISTRATIVE RESPONSES TO BULLYING AND CYBERBULLYING

   Pandemics of drug use and violence spawned new legislation, increased surveillance, zero-tolerance policies, and a law-and-order approach to perceived social ills. Similarly, the panic about bullying and cyberbullying has generated new criminal and civil statutes designed to encourage schools to police and punish bullies, to change school disciplinary policies so they reflect a punitive or zero-tolerance approach to bullying behavior, however defined, to make an effort to ferret out such behavior through searches of electronic communication devices, and to commence formal criminal prosecutions of students suspected of such behavior based on traditional criminal law and newly-enacted statutes. In this Part, I document these legal developments and reflect on what they mean for students in practical terms.

   1. Getting Tough on Bullying

      Over the past several years, and often in specific response to high-profile deaths attributed to bullying, (126) states have introduced legislation designed to combat perceived epidemics of bullying and cyberbullying and/or have amended existing laws to reflect their new concerns. (127) In the past decade, most states have defined bullying under state law and have directed schools to develop disciplinary policies in response. (128) Recently, most state legislatures have enacted legislation that requires schools to develop policies to address cyberbullying. (129) Many of these states have amended already fairly new legislation that required schools to develop general anti-bullying policies by redefining bullying to include electronic communications or by requiring schools to so redefine bullying. (130) Several of these statutes explicitly contemplate that off-campus cyberbullying (131) will lead to on-campus punishment, (132) regardless of whether attempts to punish students for off-campus speech and activities is constitutional. (133) In addition to statutes specifically covering bullying or cyberbullying, at least twenty-six states have passed or tried to pass legislation aimed at sexting since 2009. (134)

      As I have argued, (135) "sexting" and "bullying" are slippery terms, and the fuzziness of the terms means anti-sexting statutes probably cover some of the same behaviors as anti-bullying statutes. Colorado's anti-bullying statute provides a fairly typical example of the sorts of anti-bullying legislation states have adopted. Its provisions include: a finding that bullying "threatens public safety by creating an atmosphere in which [bullying] behavior can escalate into violence," a requirement that schools create a discipline code including "[a] written policy concerning searches on school grounds," a dress code policy prohibiting disruptive apparel or requiring uniforms, and a requirement that schools report on the campus development of anti-bullying programs. (136) State anti-bullying laws generally do not provide a private right of action as a mechanism for enforcement. (137) The adoption of legislation aimed at bullying and cyberbullying is not just intended to combat the perceived problems, but to communicate that those problems are being taken seriously. (138)

   2. Increased Surveillance of Students and Their Devices

      1. An Emerging Trend and its Implications

         In their quest to get tough on cyberbullying, an increasing number of schools have begun to confiscate and inspect students' electronic communication devices and, more generally, to monitor and police their electronic communications. Like all student surveillance policies, these new techniques are inescapably tied up in broader social developments. There is a discursive loop between schools and broader society in terms of how the use of surveillance techniques normalizes the crime control experience. As more employers impose drug tests on employees, the importation of drug tests to schools appears more reasonable as part of the common experience. Then, at that point, it seems reasonable for government to require drug tests in other contexts, such as conditioning public assistance benefits on a clean drug test. (139) This discursive loop that normalizes school searches may explain in part the policies I detail in this subpart.

         Some searches of student devices occur as a result of spur of the moment decisions by teachers and administrators, even in the absence of specific policies with respect to cell phone searches. For example, J.W., a student at a Mississippi middle school, violated his school's disciplinary policy by bringing a cell phone to school. (140) After a teacher who saw him answer the phone asked him to hand the phone over, the teacher browsed through photographs stored in the cell phone and located, among other pictures, depictions of J.W. posing with a B.B. gun and another student in his home bathroom. (141) The principal at the school viewed the photographs together with a police sergeant, and disciplined J.W. based on an unrelated school disciplinary rule the photographs allegedly violated. (142)

         Other searches, however, are the result of official policies formally countenancing such surveillance. Many school districts recently have adopted formal policies, generally noted in handbooks provided to students or available online, that permit teachers and administrators to seize electronic communication devices and review their contents under certain circumstances. Some policies are triggered only when students use the devices in unauthorized ways. (143) Other policies permit broader searches. A typical policy was adopted by Oak Harbor, Washington in 2010, permitting administrators to seize student cell phones where an administrator has "reasonable suspicion, based on objective and articulable facts, that ... a search [of the student's telecommunication or electronic device] will reveal a violation of the law or school rules." (144) Policies in other districts go further still, permitting such searches without suspicion. (145)

         Fear of lawsuits may also drive developments in school policy. (146) School administrators may be adopting formal anti-bullying search policies in part because of state legislation. (147) They may also be motivated by a desire to adopt anti-bullying policies and procedures in order to avoid tort liability for failing to rein in student behavior (148) and thwart responsibility for more serious violations. (149)

         These policies permit administrators to access a wealth of information, most of which probably concerns student activities off campus. Access to such information is not unprecedented. School search policies aimed at detecting drug use, such as those sanctioned by the Supreme Court in Vernonia (150) and Earls, (151) are not aimed as much at detecting student use of drugs specifically at school, but at detecting whether or not the student uses drugs at all. (152) Still, the scope and volume of the information available through surveillance of students' electronic communications is immense, dwarfing that which might be uncovered via a drug test. This, therefore, raises concerns that are different in kind.

         In many instances, schools are explicitly claiming jurisdiction to punish students for the contents of their electronic communications, even when those communications are undertaken off campus and outside of school hours. Students whose behavior fits the administration's understanding of bullying or cyberbullying may be punished for bullying behavior that occurs outside of school hours and off of school grounds. (153)

         Moreover, in many districts such punishment is mandatory, rather than discretionary, once it is determined a student's conduct falls within a school's definition of "bullying." This is because anti-bullying disciplinary policies often take a zero-tolerance form. (154) Though one might expect those policies would be applied with greater flexibility when the underlying conduct occurs off campus and has a more tangential connection to school life, anecdotal evidence suggests zero-tolerance policies often are applied even when materials are posted off campus and after school. (155) In addition to directly imposing discipline, legislation proposed or adopted in several states requires schools to report bullying incidents--including, in some cases, off-campus incidents with on-campus effects--to educational or law enforcement officials. (156)

         These zero-tolerance and mandatory reporting policies trace a familiar path. Like other student surveillance and discipline procedures developed over the last few decades, (157) they tend to spring up in the aftermath of high-profile incidents and in response to public outcry. (158) They are hastily designed and do not even purport to calibrate punishment to the severity of particular harms. (159) They are meant to signal to the community that public officials are taking a problem seriously by showing the community strong action is being taken. (160) The policies move in the direction of providing broader reach, more serious punishments, and zero tolerance for disciplinary breaches because, at first blush, tougher policies communicate greater seriousness.

         The surveillance that accompanies broad disciplinary rules imposes its own costs on students, even those who are not ultimately subjected to school discipline. Attempts by school officials to monitor electronic communications in order to police compliance with broad behavioral norms, have the capacity to reveal extensive information about a student's activities on-campus and off. Policies that allow the search of electronic communication devices promise even greater intrusion. As discussed above, such devices contain tremendous amounts of information and imagery related to a student's life and are efficiently searchable by busy teachers and administrators. (161) A search of the contents of an electronic communication device often reveals information about the student's friendships, activities, political...