Tuesday, March 29, 2011
Douglas Abrams, University of MIssouri School of Law, is publishing Recognizing the Public Schools’ Authority to Discipline Students’ Off-Campus Cyberbullying of Classmates in the New England Journal on Criminal and Civil Confinement. Here is the abstract.
The American Medical Association, the National Institute of Child Health and Human Development, and the U.S. Centers for Disease Control and Prevention have identified bullying in the public elementary and secondary schools as a "public health problem". This article explains the schools' comprehensive authority, consistent with the First Amendment, to impose discipline on cyberbullies, by suspension or expulsion if necessary.
Ever since Tinker v. Des Moines Independent Community School District (1969), the Supreme Court's First Amendment decisions have granted the schools authority to discipline student speech that causes, or reasonably threatens, (1) "substantial disruption of or material interference with school activities", or (2) "collision with the rights of other students to be secure and to be let alone". To fulfill their "basic educational mission", school authorities may also discipline cyberbullying that compromises efforts to teach "the boundaries of socially appropriate behavior", "habits and manners of civility" and respect for "the sensibilities of fellow students".
In the Internet Age, the Court’s holdings reach cyberbullying, including messages that a student sends from off campus but foresees will have the requisite harmful effect on campus. By upholding off-campus application, lower courts remain true to advice delivered by Justice Louis D. Brandeis in Olmstead v. United States (1928).
Olmstead held that the Fourth Amendment did not prohibit the government from placing remote telephone wiretaps because “[t]here was no entry of the houses or offices of the defendants.” Nearly forty years later, the Court vindicated Justice Louis D. Brandeis’ Olmstead dissent from the five-Justice majority’s refusal to apply existing Fourth Amendment doctrine to technological advances wrought by the telephone. Because “[t]ime works changes, brings into existence new conditions and purposes,” Justice Brandeis argued, “a principle to be vital must be capable of wider application than the mischief which gave it birth.” In Berger v. New York in 1967, the Court overruled Olmstead and acknowledged that “[t]he law . . . has not kept pace with . . . advances in scientific knowledge.”
Much as the capacity for government wiretapping of telephones from remote locations lay beyond the contemplation of the Fourth Amendment’s framers, the capacity for student cyberbullying from the Internet and other remote locations lay beyond the Supreme Court’s contemplation when it articulated and later refined Tinker’s First Amendment doctrine. Where student cyberbullies foresee that their off-campus speech will reach classmates on campus, courts remain true to Tinker and its progeny by applying their express holdings to technology that the Supreme Court had no reason to anticipate when it decided those cases.
Download the article from SSRN at the link.