Expanding the Schoolhouse Gate: Public Schools (K-12) and the Regulation of Cyberbullying

Cyberbullying has received increasing societal attention in the aftermath of the tragic suicides of some of its youngest and most vulnerable victims — 15-year-old Phoebe Prince from Massachusetts, 13-year-old Ryan Halligan from Vermont, 12-year-old Sarah Lynn Butler from Arkansas, 15-year-old Grace McComas from Maryland, and 12-year-old Rebecca Ann Sedwick from Florida. In this Article, I hope to provide states and their schools better guidance on how to effectively regulate cyberbullying that originates off campus. Specifically, I aim to make four unique contributions to the conversation. First and foremost, I argue that cyberbullying is so harmful in and of itself that it should be afforded diminished First Amendment protections. Second, to address overbreadth and vagueness concerns of such diminished protections, I argue for a narrow definition of cyberbullying that incorporates all three elements of the prevailing social scientists’ definition of the term: 1) intent to harm; 2) repetition; and 3) power differential. Third, I argue for a threshold “nexus” or “foreseeability” requirement before applying Tinker to off-campus speech in order to effectively balance students’ speech rights with schools’ regulatory authority to protect their students. Many cases of cyberbullying have involved harmful student expression created off campus — for example, a derogatory website or insulting Facebook posts made at home or threatening emails and texts sent from a smartphone many miles away from school. Most state laws do not allow their primary or secondary schools to regulate this type of expression because it did not occur at school or at a school-sanctioned event. These states adopt a “no authority” approach in regulating off-campus speech. However, this approach leaves schools powerless in the face of the serious harm created by cyberbullying that originates offline. Some states adopt a “no distinction” approach, treating the regulation of on-campus and off-campus speech the same as long as they meet the “substantial disruption” test of Tinker v. Des Moines. However, this approach does not adequately address students’ free speech rights. I propose an alternative to these approaches based on cyberbullying’s diminished First Amendment protections. Specifically, I urge that states and their schools adopt a “nexus” or “foreseeability” approach to regulate cyberbullying that originates off campus. The Fourth Circuit has applied these two approaches in analyzing the constitutionality of the disciplinary actions of school officials in situations where students used social media to attack or threaten other students. For this court, schools can regulate off-campus student speech if there is a nexus between the speech and the campus — for example, the creator of a website aims it at a specific school by sending invites to the school’s students to view it or the site is accessed on campus. In the alternative, schools have regulatory authority if it is reasonably foreseeable that the off-campus speech will reach the campus. I argue that the “nexus” and “foreseeability” approaches effectively balance the competing interests of protecting cyberbullying victims and protecting students’ free speech rights. Fourth, I urge that when Tinker analysis is applied to cases of cyberbullying, the “substantial disruption” test should be focused on the victim’s educational experience and not the total school environment. In the alternative or in conjunction with the “substantial disruption” test, the “interference with the rights of others” test should also be applied in these situations. My article proceeds in five parts. Part I outlines the relevant framework for regulating student speech in public school settings. Part II explores our current age of digital expression and its implications for school authority to regulate cyberbullying — a type of bullying that typically originates off campus using personal computers and smart phones. Part III describes the five approaches that courts and legislatures have taken to analyze student speech rights in the digital age when students use electronic devices off campus to attack or threaten others associated with campus. Part IV analyzes why schools should be able to regulate off-campus speech in cases of cyberbullying focusing on the particular harm that cyberbullying causes, the inadequacy of other legal remedies to address this harm, and the reasons why schools are uniquely situated to address this form of student-on-student aggression. Finally, Part V offers three suggestions on how schools should regulate cyberbullying without running afoul of the First Amendment including a clear definition of the term that is consistent with the social science literature, a clear statement of school jurisdiction to regulate cyberbullying when it originates off campus, and a proposal for how the Tinker tests should be applied in cases of cyberbullying.