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Walking the Regulatory Tightrope


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Walking the Regulatory Tightrope

  1. 1. Walking the Regulatory Tightrope:Balancing Bullies’ Free Speech Rights Against the Rights of Victims Lisa Smith-Butler October 2012
  2. 2. What’s the issue? Is it bullying or free speech?• Words Hurt • Adults too?
  3. 3. First Amendment
  4. 4. The Standard• Snyder v. Phelps, 131 S.Ct. 1207, 1215 (2011) articulates the standard as :• “Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and –as it did here—inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker. As a Nation, we have chosen a different course—to protect hurtful speech on public issues to ensure that we do not stifle public debate. That choice requires that we shield Westboro ….”
  5. 5. The Problem• Jared & Delilah, two high school kids• James Island County High• Soul mates today• Break up tomorrow• Facebook hating• Facebook libel?• Classmates share• Cyberbullying?• Harassment?
  6. 6. Facebook Hating & Youtube Bullying: The Reality of It
  7. 7. How Should Schools Handle? Questions, Questions• Can the school principal punish the student for off campus cyber-speech that has an impact on campus?• If not, does the principal tell parents that their options are limited to suing the offending student and his/her parents for libel?• What if the behavior constitutes harassment as defined by the Department of Education, Office of Civil Rights? Will the school lose its funding if it does not punish?• Will the school be subjected to liability by states for failing to adequately address cyber-bullying?• What is a principal to do?
  8. 8. An Attorney’s Advice Student Speech & the Court: A Legal Perspective• U. S. Supreme Court decisions on K-12 student speech at schools are often referred to as the Morse Quartet.• The Morse Quartet includes: – Tinker v. Des Moines (1969) – Bethel Sch. Dist. v. Fraser (1986) – Hazelwood Sch. Dist. v. Kuhlmeier (1988) – Morse v. Frederick (2007)
  9. 9. The Tinker Analysis• “A student’s rights,…do not embrace merely the classroom hours. When he is in the cafeteria, … he may express his opinions, even on controversial subjects like the conflict in Vietnam, if he does so without ‘materially and substantially interfer(ing) with the requirements of appropriate discipline in the operation of the school’ and without colliding with the rights of others….” – Tinker v. Des Moines, 393 U.S. 507, 512-513 (1969.)
  10. 10. Limitations on Tinker• The Court explained the limitations on Tinker as “…conduct by the student, in class or out of it, which for any reason—whether it stems from time, place, or type of behavior— materially disrupts classwork or involves substantial disorder or invasion of the rights of others is, …not immunized by the constitutional guarantee of freedom of speech.” – Tinker 393 U.S. at 512-513.
  11. 11. Circuits: Split or Reconcilable?• Second Circuit Court of Appeals – Doninger & Wisniewski• Third Circuit Court of Appeals – Layshock & Snyder• Fourth Circuit Court of Appeals – Kowalaski• Eighth Circuit Court of Appeals – D.J.M. v. Hannibal
  12. 12. More Confusion: Cases from United States District Courts• T.V. v. Smith-Green Cmty• Evans v. Bayer• J.C. v. Beverly Hills Unified Sch. Dist.• Mardis v. Hannibal Public Sch. Dist.• Requa v. Kent Sch. Dist.• Flaherty v. Keystone Oaks Sch. Dist.• Mahaffey v. Aldrich• Coy v. North Canton
  13. 13. Supreme Court of Pennsylvania• J.S. v. Bethlehem Area Sch. Dist.
  14. 14. Department of Education: Office of Civil Rights• DOE enforces the Civil Rights statute that imposes liability for peer harassment that is based on race, color, national origin, sex or disability.• In October 2011, the OCR of the DOE issued a Dear Colleague Letter regarding cyberbullying and harassment.• According to the letter, behavior that schools labeled cyberbullying or bullying might also constitute harassment under the civil rights statute.
  15. 15. Response of National School Boards Association• How can schools avoid the imposition of liability by the DOE OCR for failing to curb student behavior that constitutes harassment yet is also protected by First Amendment?
  16. 16. The Question Becomes…• How can a school deal with Snyder’s hate speech without running afoul of the Department of Education’s Office of Civil Rights laws?
  17. 17. More to the Mix• Besides dealing with the Department of Education and the First Amendment, many school principals are dealing with the requirement, imposed by their state legislatures, that they provide safe schools and deal with bullying.• The National School Boards Association provides a list of state statutes concerned with anti-bullying legislation.
  18. 18. A Fresh Look at Tinker & a Revised Analysis• Is the speech lewd, involving a captive audience, that occurs on campus? If so, apply Fraser.• If not, is it speech that carries the imprimatur of the school and involves pedagogy? If so, apply Hazelwood.• If not, is the speech off campus speech at a school sponsored event that appears to promote illegal drug use? If so, apply Morse.
  19. 19. • If neither Fraser, Hazelwood or Morse is applicable, apply Tinker’s substantial disruption test.• If none of the above apply, what is next?
  20. 20. Suggested Additional Analysis• Use Tinker’s “collides with the rights of others” prong if the off campus speech is directed at school personnel or other students AND can be described as speech that is: – Bullying – Harassing – Libelous – Threatening
  21. 21. Conclusion• Ultimate goal: – Provide safe schools – That operate without chaos and disruption – While preserving the political speech of students – In an environment that neither permits, condones or ignores student bullying or harassment.