Tinkering With School Discipline in the Name of the First Amendment: Expelling a Teacher's Ability to Proactively Quell Disruptions Caused by Cyberbullies at the Schoolhouse

• Publication year: 2021

87 Nebraska L. Rev. 630. Tinkering with School Discipline in the Name of the First Amendment: Expelling a Teacher's Ability to Proactively Quell Disruptions Caused by Cyberbullies at the Schoolhouse

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Tinkering with School Discipline in the Name of the First Amendment: Expelling a Teacher's Ability to Proactively Quell Disruptions Caused by Cyberbullies at the Schoolhouse

Shannon L. Doering(fn*)

I. Introduction ...................................................... 631
II. Same Defense, New Opponent: Educators Are Required
to Apply an Aged Framework to New Disciplinary
Scenarios, Such as Those Presented by Cyberbullying .............. 634
A. Cyberbullying Provides Students with a Relatively
New, Previously Untested and Undisciplined
Mechanism for Disrupting the Lives of Fellow
Students and Educators ........................................ 634
B. Although Tinker and Its Progeny May Not Have
Foreseen All of the Challenges Presented by
Cyberbullying, the Current Constitutional
Framework for Analyzing Discipline Resulting from
Student Speech Is Not Insufficient ............................. 638
III. Tinker, Fraser, Hazelwood and Morse Articulate the
Contours of a Cyberbully's Rights Within the
Schoolhouse ..................................................... 641
A. Tinker v. Des Moines Independent Community
School District .............................................. 642
B. Bethel School District No. 403 v. Fraser ..................... 644
C. Hazelwood School District v. Kuhlmeier ....................... 647

631

D. Morse v. Frederick ........................................... 649
IV. The Rights of Targeted Students and Their Teachers'
Obligations Both Weigh Heavily in Favor of Allowing
Discipline to Be Imposed Upon the Cyberbully ..................... 652
A. Cyberbullies Hide Behind the First Amendment
Because Their Conduct Prevents Invocation of Other
Rights ........................................................ 654
B. If Fostering and Maintaining an Educational
Environment Is Truly "the Work of the Schools,"
Educators Must Be Allowed to Do Their Jobs .................... 656
C. Encouraging Cyberbullies to Respect the Rights of
Others Is Not a Bad Thing ..................................... 659
1. Cyberbullies Add Very Little to the
"Marketplace of Ideas" ..................................... 659
2. The Rights of Other Students and Teachers
Outweigh the Cyberbully's Contribution, if Any,
to the "Marketplace of Ideas" .............................. 661
V. Properly Focusing on Whether a Disruption of the
School Environment Takes Place, in Spite of the
Origination Point of the Student Speech, Allows a
Proper Analysis of Student Websites Under Tinker .................. 663
A. Analysis of Students' First Amendment Rights to
Cyberbully Must Account for the Borderless Nature
of the Internet ................................................ 664
B. In an Effort to Accommodate the Borderless Nature
of the Internet, Courts Get Caught Up in
Distinctions and Demarcations Not Pertinent to the
Tinker Analysis ................................................ 666
C. Territoriality Is Irrelevant When Analyzing Student
Speech, as well as Remedies .................................... 670
VI. Conclusion ....................................................... 673

I have always been among those who believed that the greatest freedom of speech was the greatest safety, because if a man is a fool the best thing to do is to encourage him to advertise the fact by speaking.(fn1)

I. INTRODUCTION

Teachers have a new beast to tame--cyberbullies. With cell phones in every pocket and Internet access in every classroom,(fn2) edu

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cators must find a way to maintain classroom decorum and facilitate an environment pursuant to which all students are still allowed to learn. Unfortunately for some, their academic environment is littered with verbal landmines planted on the Internet or cell phones by disrespectful students. This harassment, often referred to as cyberbullying,(fn3) interferes with targeted students' education and the rights of teachers. Notwithstanding such interference, courts have routinely overturned decisions by educators to discipline cyberbullies at school, often citing the First Amendment as the reason a student cannot be disciplined for speech that originates "off campus."(fn4)

The Constitution does not shield cyberbullies from school discipline. When school authorities seek to curb the effects of cyberbullying--especially as it invades the school environment and interferes with the rights of students, teachers, or administrators who may be the target of such efforts--the cyberbully often seeks refuge behind the First Amendment.(fn5) At least one scholar has aptly recognized that, because of the relationship between the targets and the website creators, courts must allow schools to address the stigmatizing and publicly humiliating problem of cyberbullying and Internet harassment, which may originate outside of the school per se but carries its sting into the classroom.(fn6) Tinker v. Des Moines Independent Community School District(fn7) and its progeny support school discipline in those instances where, as in many,(fn8) students embark upon a cyberbullying

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endeavor off campus, the substance of which subsequently invades campus sometimes pushing other students to devastating measures.(fn9) In these cases, cyberbullies should not be allowed to avail themselves of protection provided to some speech by the First Amendment.

This Article suggests that the analytical framework prescribed by Tinker and its progeny affords school authorities broad discretion and sufficient guidance in fashioning school discipline when student speech is involved. Part II provides a brief explanation of the relatively new phenomena through which cyberbullies disrupt the school environment and the lives of those in it. Part III then provides a brief discussion of Tinker's balancing framework, followed in Part IV by a discussion of the rights of others--usually targets of cyberbullying such as fellow students and teachers who attend or teach at the same school as the cyberbully--which Tinker expressly provides must be considered as part of the analysis as to what protection, if any, the First Amendment provides to cyberbullying that invades the schoolhouse. Part V then explains that, as part of a proper analysis, courts must account for the fact that educators are in a better position to make immediate decisions as to whether a cyberbully's website or blog has disrupted the school environment or is reasonably likely to do so. Serious consideration must also be given to the cyberbully's intent that his speech "sneak" into the school and to the effects that such speech has upon its targets and their respective rights once it is behind the schoolhouse gate. Tinker prescribes that all of these rights and competing considerations be balanced, but courts sometimes avoid conducting this analysis, instead overstating the importance of where the speech originated prior to its injection into the school environment.(fn10) When all of the competing rights and interests are appropriately considered, the Article concludes with the assertion that cyberbullies should not be permitted to avoid school discipline in the name of the First Amendment.

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II. SAME DEFENSE, NEW OPPONENT: EDUCATORS ARE REQUIRED TO APPLY AN AGED FRAMEWORK TO NEW DISCIPLINARY SCENARIOS, SUCH AS THOSE PRESENTED BY CYBERBULLYING

Educators must be afforded the ability to preserve the educational environment in our public schools, notwithstanding new technologies readily available to students. Education is one of the most important components in the development of a young person's character. "In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education."(fn11) A well-rounded education is unquestionably "a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment,"(fn12) an important part of which requires educators to "inculcate the habits and manners of civility as values . . . conducive to happiness . . . ."(fn13) Along these lines, the United States Supreme Court has "repeatedly emphasized the need for affirming the comprehensive authority of the States and of school officials, consistent with fundamental constitutional safeguards, to prescribe and control conduct in the schools."(fn14) In today's world, this process requires that educators not only keep up with students, but also that they keep up with technology. Simply put, the "`Internet is the new bathroom wall'--the virtual place kids scrawl something when they want to be mean."(fn15)

A. Cyberbullying Provides Students with a Relatively New, Previously Untested and Undisciplined Mechanism for Disrupting the Lives of Fellow Students and Educators

Cyberspace is now a part of any young person's identity.(fn16) Educators and parents alike are scrambling to catch up with young people whose online socializing includes playing pranks and seeking revenge.(fn17) On the playground, such pranks and revenge are classified as "bullying."(fn18) Since those initial utterances and pranks now take

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place off of the playground, often in the form of an Internet website or chat room not immediately subject to the jurisdiction of any school discipline policy, they create relatively new issues for educators, i.e., what happens when "off-campus" speech has detrimental effects "on campus"? Some courts have attempted to answer this question, and in doing so, they overemphasize the geographic location where the speech originated en route to incorrectly concluding that such "offcampus" speech cannot be the subject of school...