Materials Related to Presentation at

2010 Bradley F. Kidder Law Conference

The following materials supplement the presentation at the 2010 Bradley F. Kidder Law Conference on Cyberbullying and Zero Tolerance Policies. The following elaborates, to some extent, on the points made during the presentation and provides links to many original documents such as court opinions. The material will be periodically updated and expanded especially when the en banc opinion on the J.S. and Layshock cases is released by the Third Circuit Court of Appeals. This is expected to happen shortly. The intent is to provide a collection of information on this topic which contains useful and/or thought provoking material representing various views on the subject.

LODESTAR COURT OPINIONS

There are three Supreme Court decisions which bear directly upon the ability of school districts to discipline students for their speech and, therefore, are of importance when determining when, where and why students can be disciplined for speech which might be considered “cyberbullying”.

The first and most important case is the Tinker case which arose when high school students wore armbands to protest the Vietnam war in 1965. The administrators had imposed a rule against the wearing of armbands upon hearing of the planned protest. The Supreme Court ruled schools cannot prohibit political and social discourse unless they can demonstrate a danger of substantial disruption to school operations. This case basically stands for the proposition that a school must be quite careful whenever it attempts to inhibit the rights of students to engage in political and social discourse.

The second case is the Fraser case which established the right of schools to discipline a student for making lewd and vulgar comments during a school assembly. It made clear that some types of speech by students did not deserve the protections provided by the standards set forth in the Tinker case. By extrapolation, it can be argued that speech which at its core is bullying falls within the realm of speech which is to be judged under Fraser and not Tinker. As will be seen later, the devil is in the details. Or more precisely, how one defines bullying.

The third case the Hazelwood or Kunhmeier case which held that a school has considerable freedom to control student speech which is presented via a mechanism owned by of the school.

The fourth case is Morse v. Fedrick which upheld the right of a school administrator to discipline a student for displaying a banner that was interpreted to be advocating illegal drug use. The incident did not involve any disruption and the holding was based solely upon the importance of the school's anti-drug efforts. It is very unclear whether the opinion supports such action in any other factual context. However, it is certainly possible that if anti-bullying efforts were to be viewed as having the same importance as anti-drug efforts, then the the opinion would support discipline without the need for a substantial disruption as required by Tinker. In this regard, the concurring opinion of Justice Alito is an important limitation in how far the reach of Morse may extend. Especially in light of his opinion while sitting on the Third Circuit Court of Appeals in Saxe v. SCASD as discussed below.

It is important to note that none of these cases involve student speech which occurs off-campus and none involve speech which could be viewed as bullying.

The ability of a school to prohibit speech which constitutes harassment/bullying was directly addressed by Justice Alito in the Saxe case. Justice Alito can scarcely be accused of being a person of “liberal persuasion.” This case was brought by a member of the State Board of Education on behalf of students for whom he was the legal guardian. At dispute was a broad anti-harassment policy with features similar to the provisions of RSA 193-F. Mr. Saxe's challenge was predicated upon the fact he and his wards were Christians who believe homosexuality is a sin and who believe they have a right to speak put about the sinful nature and harmful effects of homosexuality. They feared the policy would punish them for speaking out about their religious beliefs. Consequently they sought to have the policy declared unconstitutional. It is an opinion which should be carefully read by anyone concerned with developing school policies prohibiting student speech on the grounds it constitutes harassment/bullying.

Basically, the opinion struck down as overbroad a harassment policy which has many common elements with RSA 193-F. While not controlling law in New Hampshire and written before Morse, the Saxe opinion stands for the proposition that in order to prohibit speech on the grounds it constitutes bullying; a school must make a strong showing that the speech it seeks to prohibit is either not protected or there is a reasonable basis for concluding it will result in substantial disruption to school operations. The opinion indicates that speech which causes discomfort and may seem outrageous, but which also constitutes protected political, social or religious discourse cannot be prohibited simply due to its potential for bullying. Justice Alito's concurring opinion in Morse suggests he remains committed to his opinion in the Saxe case which in turn suggests it cannot be ignored or that it has been rendered less important due to Morse.

This year two separate panels of the Third Circuit Court of Appeals issued opinions which might on the surface appear to be in Conflict. They both involved off-campus speech via social media statements which were derogatory of school administrators. Both cases have been jointly re-argued to the full court. The resulting opinion is expected to be appealed to the Supreme Court and become the seminal case regarding the reach of school authority to discipline students for off-campus speech. The District Court order in one of these cases is noteworthy for its examination of the legal standards which apply to off-campus speech. The two cases are: Justin Layshock v. Hermitage School District and the J.S v. Blue Mountain School District. While in one case the court upheld discipline over off-campus speech, in the other it it did not. In reading the opinions, it is clear the cases contained significant differences with regard to the facts and the positions taken before the court. As a result, the opinions are not conflicting to any great degree. Nevertheless, the Third circuit agreed to hear both en banc and it is that opinion which will be the one from which guidance can be obtained. Until then, the separate opinions do provide a few clues. First, the more egregious the language, the more likely discipline will be upheld since lewd, vulgar, and defamatory language is not protected. Second, the greater the evidence of disruption in school, the greater the likelihood discipline will be upheld. Third, unless it is argued disruption was likely and there is an ability to provide cogent factual evidence on that point, the likelihood of success by a school is greatly reduced. Fourth, discipline that is too harsh or overreaching will hurt the school's chances of success. Fifth, courts are not swayed by arguments discipline is necessary to fulfill the school's mission or to protect administrators from criticism by students. Sixth, courts are likely to tolerate more disruption than administrators.

An interesting note is that in both cases the students disciplined were honor students with few if any prior discipline issues and both students apologized promptly once they became aware of the broader implications of their actions. In the J.S. case, the manner in which the school disciplined the student appears to have caused a greater disruption and collapse of discipline within the school than the actions of the student. While both of these facts may seem odd, they are consistent with some of thee points which are core themes in Aaron Kupchik's book Homeroom Security. For thos wanting a quick overview of Mr. Kupchik's views, there is a Salon interview which hits a few points and a more local review from Boston.com. It is important to note that Mr. Kupchik is by profession a criminologist, he is well versed what has been demonstrated to work in terms of punishment, and his conclusions are supported by a good deal of research. With regard to bullying, Mr. Kupchik posits that to some extent zero-tolerance policies may actually increase the likelihood of bullying and violence in schools by the manner in which such policies socialize students and they environment they create within schools.