Published on October 8th, 2014 | by Millennium Magazine Staff0
Social Media: Students Behaving Badly
Written By Meg Hazel:
This article originally appeared in the South Carolina Lawyer and is reprinted with permission from the South Carolina Bar.
Photo by George Fulton
One night, after completing tons of homework, middle-school Johnny decides to log on to Facebook. He posts a status on his wall that says: “My teacher Mrs. Smith is awful! She is a smelly pig and should just die.” To make his posting entertaining, he downloads a picture of Mrs. Smith from the school website and gives her a pig nose. Many comments from his friends soon follow, most of them agreeing that Mrs. Smith is a rotten teacher. Johnny keeps his postings “private” to his friends list, but one of them decides to share it on his wall. Soon, like the flu, Johnny’s posting has spread throughout the student body.
Mrs. Smith heard of the posting and is upset. The principal decides to suspend Johnny for three days. Johnny’s parents come to you, their attorney, believing that the school has no right to do this to their son. After all, he was at home on his own computer when he posted. How can the school reach into their home and regulate what Johnny says? Does the school have the authority to punish Johnny for what he wrote on his Facebook wall? What if, instead of insulting a teacher, Johnny’s comments had been directed at a fellow classmate?
They blog, tweet and comment. They e-mail, message and post. The days are gone when bullying was limited to graffiti on the bathroom wall—now, a new generation of bullies uses the arsenal available on the Internet. About 50 percent of children have experienced cyber bullying. Between 10 and 20 percent of children experience cyber bullying on a regular basis.[i] Some are driven to suicide. Teachers and even administrators are often the brunt of cyber attacks. One of the favored techniques is to create a fake profile of the administrator. In one case, the profile’s “question and answer” section implied that the principal was a sex and drug fiend by stating he smoked “big blunts” and was a “big whore.”[ii] Other bullies create and send hate filled comments to a web page. In recent years, there has been a push for schools and even legislatures to stop bullying, and many states have passed laws making cyber bullying a crime.[iii]
Before cyber bullying, schools had weapons to combat this disruptive behavior: the eyes and ears of teachers and administrators. The bullying, seen or heard by school staff during school hours, was clearly a punishable offense. But now, the abuse can take place after school hours and away from the sight of school officials. When do schools have the authority to reach into the cloud and punish a student for what they find? The line between on-campus and off-campus speech has been blurred by the easy availability of Internet access. Words and pictures that once would only be shared between friends are now posted for the entire world to see. Do schools have the right to punish students for things they put on the web, on their own time and in their own home?
The short answer is yes. If a student posts something on the web that the administration reasonably believes will cause a substantial disruption to the operation of the school, even if the student never intends for the message to reach the school, the student can be disciplined.[iv] The problem lies in how school administrators (and courts) define “reasonably foreseeable substantial disruption.” Some circuits imply that a substantial disruption must occur. Others focus on whether it is reasonably foreseeable. Still others examine the intent of the speaker. The U.S. Supreme Court has yet to define the parameters of when off-campus speech falls under the authority of the schools. Most circuits, including the Fourth, apply the holding in Tinker v. Des Moines Independent Community School District to these cases of off-campus speech. In that case, the Supreme Court first addressed the free speech rights of public school students. There, school administrators suspended three students for wearing black armbands to school in protest of the Vietnam War. However, Tinker was decided in 1969. Should a court decision made before the birth of the personal computer apply in today’s technological age? How can the holdings of a case involving student protests of the Vietnam War give us guidance on Facebook postings? Many courts have applied Tinker to student speech cases where the speech originated off-campus and on the Internet. However, the intensive and often contrary factual analysis that accompanies these decisions provides the practitioner, parents, schools and courts little guidance. Although the U.S. Supreme Court had the opportunity to review three student Internet cases from the Third and Fourth Circuits in 2012, they declined to do so.
Regulating student speech—a primer
The Supreme Court held that a school may regulate a student’s speech or expression if school officials could demonstrate that “the forbidden conduct would ‘materially and substantially interfere with the requirements of appropriate discipline in the operation of the school.’”[v] This standard cannot be met if school officials are driven by “a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint.”[vi] School officials must have more than an “undifferentiated fear or apprehension of disturbance” to overcome the student’s right to freedom of expression.[vii] In a famous passage, the Court stated: “It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”[viii]
In addition, Tinker held that a school may regulate student speech that interferes with the “the school’s work or [collides] with the rights of other students to be secure and be let alone.”[ix] Therefore, speech that intrudes upon the rights of other students may be prohibited even if it is not expected to be substantially disruptive.[x] It is unclear how courts should apply this second prong, as it was not developed in Tinker, and few courts have done so.
Seventeen years later the Court carved out the first exception to Tinker. In Bethel School District v. Fraser,[xi] the Court held that there is no First Amendment protection for lewd, vulgar or “patently offensive” speech that occurs in school. Fraser, a high school student, gave a speech at a school assembly that was an “elaborate, graphic, and explicit sexual metaphor.”[xii] The Court upheld the decision to punish the student, stating that the rights “of students in public school are not automatically coextensive with the rights of adults in other settings.”[xiii] In other words, public schools have an obligation to teach students “the boundaries of socially appropriate behavior.”[xiv]
The Court would visit school speech again in 1988 and 2007, each time adding a new exception to the Tinker rule.[xv] Hazelwood School District v. Kuhlmeier governs school-sponsored speech.[xvi] In Hazelwood, the Court held that a school could edit and censor articles in a school-sponsored newspaper, “so long as their actions are reasonably related to legitimate pedagogical concerns.”[xvii] Morse v. Frederick governs speech promoting illegal drug use.[xviii] In that case, a student displayed a banner proclaiming “BONG HiTS 4 JESUS” at a school-sponsored event.[xix] The Court held that this speech could be restricted.[xx]
All of these cases involved speech given at school or a school-sponsored event. There is no Supreme Court case that addresses speech that occurs off-campus on a medium that could reach everywhere.
Bullying the teacher may be ok
The Fourth Circuit has not had the opportunity to review a case in which a teacher was the subject of cyber bullying. Other circuits have applied the Tinker “reasonably foreseeable substantial disruption” test to these types of cases, but there is still significant disagreement on when a material disruption is foreseeable. For example, in California, a student posted a slideshow on YouTube that depicted the killing of a teacher in his school.[xxi] The teacher came across the slideshow, and was understandably upset. She became ill and lost sleep.[xxii] The court held this was enough to foresee a material disruption to the school environment.[xxiii] In Mississippi the courts found the same. A student there posted a YouTube rap video that criticized a coach and included the lines: “looking down girls’ shirts/drool running down your mouth/messing with wrong one/going to get a pistol down your mouth” and “middle fingers up if you can’t stand that nigga/middle fingers up if you want to cap that nigga.”[xxiv] The coach stated he felt threatened and his teaching style was affected. This was enough for the court to hold that the video in fact caused a material and/or substantial disruption at school and that it was reasonably foreseeable it would cause such a disruption.[xxv] However, the Third Circuit has held that fake profiles of administrators, as long as they are not intended to reach the school or are so “outrageous” that no one would believe them, are not enough to forecast a substantial disruption.[xxvi] In one of those cases, the fake profile stated that the principal had interests such as: “detention, being a tight ass, riding the fraintrain, spending time with my child (who looks like a gorilla), baseball, my golden pen, fucking in my office, hitting on students and their parents.”[xxvii] The “About me” section went on to state:
HELLO CHILDREN[.] yes. it’s your oh so wonderful, hairy, expressionless, sex addict, fagass, put on this world with a small dick PRINCIPAL[.] I have come to myspace so i can pervert the minds of other principal’s [sic] to be just like me. I know, I know, you’re all thrilled[.] Another reason I came to myspace is because—I am keeping an eye on you students (who[m] I care for so much)[.] For those who want to be my friend, and aren’t in my school[,] I love children, sex (any kind), dogs, long walks on the beach, tv, being a dick head, and last but not least my darling wife who looks like a man (who satisfies my needs) MY FRAINTRAIN…..[xxviii]
Though the principal was upset, the court held this was not enough to foresee a substantial disruption.
Bullying a classmate is more likely to be punished
Especially in the case of threatening language, courts are more likely to uphold punishment by the schools against cyber-bullying of another student. The Eighth and Ninth Circuits have held that instant messages carrying threats of shooting other students, even if meant as a joke, met the Tinker standard for foreseeable disruption, since administrators would have to take time to deal with the repercussions of the treats.[xxix] The Eighth Circuit held that even racist and sexist comments made against other students on a web blog meet the standard.[xxx] A California District Court, however, held that a video posted on YouTube that degraded a fellow student with profane comments was not enough, even though the creator encouraged her classmates to watch. The court did advise, however, that the school could have met the standard if they had cited to a history of past disruptions caused by such incidents.[xxxi]
The case closest to home is Kowalski v. Berkeley County Schools.[xxxii] Kara Kowalski was a high school student at Musselman High School in West Virginia. She was elected “Queen of Charm” in her junior year and was a member of the cheerleading squad. She came home from school on December 1, 2005, and logged onto the social network site MySpace. While on the site, she created a new webpage with the heading “S.A.S.H.” and which stated “No No Herpes, We don’t want no herpes.” She claimed it was to make other students aware of sexually transmitted diseases, and “S.A.S.H.” stood for “Students Against Sluts Herpes,” but the site was obviously targeted against a student named Shay.[xxxiii] The advice of the court was direct: “schools have a duty to protect their students from harassment and bullying in the school environment . . . . [S]chool administrators must be able to prevent and punish harassment and bullying in order to provide a safe school environment conducive to learning.[xxxiv] The court stated: “[g]iven the targeted, defamatory nature of Kowalski’s speech, aimed at a fellow classmate, it created actual or nascent substantial disorder and disruption in the school.”[xxxv] The court decided that because she primarily invited her fellow students to join the page and encouraged targeted, harassing and vulgar postings, her actions fell under the school’s regulation authority.[xxxvi]
The conflicting decisions in the courts make it difficult, if not impossible, for attorneys, students, parents, teachers and school administrators to understand the scope of student speech rights—in effect, leaving the public to conclude “that students have a right to speak … except when they don’t.”[xxxvii]
Some of the factors considered by the courts to determine if it is reasonably foreseeable that speech would cause a substantial disruption are: whether the speech was targeted toward the school,[xxxviii] whether the speaker intended for the speech to reach the school,[xxxix] whether the speech was accessed at school,[xl] whether disruption actually occurred,[xli] whether the speaker encouraged student involvement,[xlii] whether administrators had to expend time and energy to deal with the speech,[xliii] whether the speech was violent or threatening,[xliv] and whether there was a “nexus” between the speech and the foreseeable disruption.[xlv]
Few courts have addressed whether cyber bullying rises to the level of a foreseeable substantial disruption. In the Kowalski decision, the Fourth Circuit considered cyber bullying of one student as sufficient:
The ‘S.A.S.H.’ webpage functioned as a platform for Kowalski and her friends to direct verbal attacks towards classmate Shay N. The webpage contained comments accusing Shay N. of having herpes and being a ‘slut,’ as well as photographs reinforcing those defamatory accusations by depicting a sign across her pelvic area, which stated, ‘Warning: Enter at your own risk’ and labeling her portrait as that of a ‘whore.’ One student’s posting dismissed any concern for Shay N.’s reaction with a comment that said, ‘screw her.’ This is not the conduct and speech that our educational system is required to tolerate . . . . [xlvi]
Of course, there are limitations to what school officials can do in their efforts to combat bullying cyber-speech. Officials and administrators cannot “reach into a child’s home and control his/her actions there to the same extent that it can control that child when he/she participates in school sponsored activities.”[xlvii] In J.S. ex rel. Snyder v. Blue Mountain School District, the principal asked another student to bring in a print out of an offensive profile of him. In R.S. ex rel. S.S. v. Minnewaska Area School District No. 2149, the school impermissibly obtained the password to the student’s online accounts and accessed the sites to view them. In both cases, the courts held that there was no foreseeable disruption, and that the school itself may have increased the chance a disruption would occur. [xlviii] “School officials cannot constitutionally reach out to discover, monitor, or punish any type of out of school speech.”[xlix]
Lack of a Supreme Court decision may keep qualified immunity alive
Of course, the lack of guidance from the Supreme Court may give school districts more leeway in escaping liability under a First Amendment challenge by invoking qualified immunity. The application of the substantial disruption test is highly fact-driven. “There is, for example, no magic number of students or classrooms that must be affected by the speech.”[l] A substantial disruption is more than a “mild distraction or curiosity created by the speech” but need not rise to the level of “complete chaos.”[li] With such a wide range of scenarios, many school officials seek qualified immunity when brought into court by the parents of a punished student. Under the doctrine of qualified immunity, school officials “performing discretionary functions, generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”[lii] Qualified immunity involves a two-step inquiry under which a court must consider (1) whether, “[t]aken in the light most favorable to the party asserting the injury[,] … the facts alleged show the officer’s conduct violated a constitutional right;” and (2) “whether the right was clearly established.”[liii] Some are granted immunity, others not, based on whether student speech rights had been clearly established. A Supreme Court decision may have made those rights clearer. However, the division of the courts on the application of Tinker promotes the uncertainty of student speech rights. As one court stated: “If courts and legal scholars cannot discern the contours of First Amendment protections for student internet speech, then it is certainly unreasonable to expect school administrators … to predict where the line between on-and off-campus speech will be drawn in this new digital era.”[liv]
So where does this leave little Johnny and his parents? The court will likely consider the particular facts of the case, and if a sufficient nexus is found to substantial disruption, the punishment will stand. Tinker is still regarded as the leading case in regulation of student speech. Cyber bullies may have finally met their downfall in a case decided 45 years ago.
Meg Hazel is an associate with Moore Tay
[i] Cyber Bulllying Statistics, http://www.bullyingstatistics.org/content/cyber-bullying-statistics.html (last visited July 8, 2014).
[ii] Layshock ex rel. Layshock v. Hermitage Sch. Dist., 650 F.3d 205, 208 (3d Cir. 2011).
[iii] Policies and Laws, http://www.stopbullying.gov/laws/ (last visited July 8, 2014).
[iv]Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969).
[v]Id. at 509 (emphasis added) (quotation marks omitted).
[vii]Id. at 508.
[viii]Id. at 506.
[x]Id. at 509.
[xi] 478 U.S. 675, 684–85 (1986).
[xii]Id. at 678.
[xiii]Id. at 682.
[xiv]Id. at 681.
[xv]Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260 (1988); and Morse v. Frederick, 551 U.S. 393 (2007).
[xvi]484 U.S. at 262.
[xvii] Id. at 272-73.
[xviii]551 U.S. at 410.
[xix] Id. at 397.
[xx] Id.at 403.
[xxi]O.Z. v. Bd. of Trustees of Long Beach Unified Sch. Dist., 2008 WL 4396895, *1 (C.D. Cal. Sept. 9, 2008).
[xxii] Id.at *3.
[xxiii] Id. at *9.
[xxiv]Bell v. Itawamba Cnty. Sch. Bd., 859 F. Supp. 2d 834, 836 (N.D. Miss. 2012).
[xxv] Id. at 840.
[xxvi]J.S. ex rel. Snyder v. Blue Mountain Sch. Dist., 650 F.3d 915, 930-31 (3d Cir. 2011); Layshock, 650 F.3d at 216.
[xxvii] Id.at 929.
[xxviii] Id. at 921.
[xxix]D.J.M. v. Hannibal Pub. Sch. Dist. No. 60, 647 F.3d 754, 764 (8th Cir. 2011); Wynar v. Douglas Cnty. Sch. Dist., 728 F.3d 1062, 1064 (9th Cir. 2013).
[xxx]S.J.W. ex rel. Wilson v. Lee’s Summit R-7 Sch. Dist., 696 F.3d 771, 773 (8th Cir. 2012).
[xxxi]J.C. ex rel. R.C. v. Beverly Hills Unified Sch. Dist., 711 F. Supp. 2d 1094, 1120 (C.D. Cal. 2010).
[xxxii]652 F.3d 565 (4th Cir. 2011), cert denied, 132 S. Ct. 1095 (2012).
[xxxiii] Id.at 567-69.
[xxxiv]Id. at 572.
[xxxv]Id.at 574 (internal quotations omitted).
[xxxvii]Margaret A. Hazel, Student Cyber-Speech After Kowalski v. Berkeley County Schools, 63 S.C. L. REV. 1081, 1089 (2012), citing Petition for Writ of Certiorari at 31, Kowalski v. Berkeley County Sch., 132 S. Ct. 1095 (2012) (No. 11-461), 2011 WL 4874091, at *31 (quoting Morse v. Frederick, 551 U.S. 393, 418 (2007)).
[xxxviii]Doninger v. Niehoff, 642 F.3d 334, 348 (2d Cir. 2011); J.S., 650 F.3d at 930-33; Kowalski, 652 F.3d at 574; S.J.W., 696 F.3d at 778; Wynar, 728 F.3d 1062, 1071; Evans v. Bayer, 684 F. Supp. 2d 1365, 1371 (S.D. Fla. 2010).
[xxxix]Doninger, 642 F.3d 334, 348; J.S., 650 F.3d at 930; Bell, 859 F. Supp. 2d 834, 837-38.
[xl]J.S., 650 F.3d at 921; Evans, 684 F. Supp. 2d 1372; J.C., 711 F. Supp. 2d at 1099.
[xli]Doninger, 642 F.3d at 349; Snyder v. Blue Mountain Sch. Dist., 650 F.3d 915, 929; S.J.W., 696 F.3d at 774; J.S., 859 F. Supp. 2d at 840; Mardis v. Hannibal Pub. Sch. Dist., 684 F. Supp. 2d 1114, 1123 (E.D. Mo. 2010) aff’d sub nom.; D.J.M. ex rel. D.M. v. Hannibal Pub. Sch. Dist. No. 60, 647 F.3d 754; Nixon v. Hardin Cnty. Bd. of Educ., 2013 WL 6843087, *11 (W.D. Tenn. Dec. 27, 2013).
[xlii]Layshock, 650 F.3d at 214; J.S., 650 F.3d at 929; Kowalski, 652 F.3d at 573; J.C., 711 F. Supp. 2d at 1109.
[xliii]Doninger, 642 F.3d at 349; S.J.W., 696 F.3d at 774; J.C., 711 F. Supp. 2d at 1114; Mardis, 684 F. Supp. 2d at 1123; Nixon, 2013 WL 6843087 at *11.
[xliv]D.J.M., 647 F.3d at 762; Wynar, 728 F.3d at 1064; R.S., 894 F. Supp. 2d at 1139; J.C., 711 F. Supp. 2d at 1118; Lack v. Kersey, 2012 WL 1080620 (N.D. Ga. Mar. 30, 2012); Mardis, 684 F. Supp. 2d at 1123.
[xlv]Layshock, 650 F.3d at 214; Kowalski, 652 F.3d at 573; Wynar, 728 F.3d at 1069.
[xlvi]Kowalski, 652 F.3d at 572-73.
[xlvii]Layshock, 650 F.3d at 216.
[xlviii]J.S., 650 F.3d at 932-33; R.S., 894 F. Supp. 2d at 1139-40.
[xlix]D.J.M., 647 F.3d at 765.
[l]J.C., 711 F. Supp. 2d at 1110.
[li]J.S. ex rel. H.S. v. Bethlehem Area Sch. Dist., 807 A.2d 847, 868 (2002).
[lii]Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
[liii]Saucier v. Katz, 533 U.S. 194, 201 (2001).
[liv]Doninger, 594 F. Supp. 2d at 224.
Information in the article is not to be taken as legal advice.