CAS Legal Mailbag Question of the Week – January, 2018 #2

by Shipman & Goodwin LLP

Dear Legal Mailbag:

As the principal of a medium-size high school, I am responsible for investigating and acting on bullying claims.  Last week, two sophomore girls came to me to report that a senior male student had been posting a number of insulting comments about them on his Instagram account.  In this case, there wasn’t much to investigate.  They brought print-outs of the posts, and the posts were really mean.  He had posted pictures of both of them using some sort of app that made them look terrible, and he included various snotty comments about them.  These poor girls told me that these posts were humiliating and that they were having trouble coming to school to face the snarky comments from their classmates.  I then met with the male student to get his side of the story.  He was unapologetic; indeed he laughed at his handiwork.  At that point, I told him that he would be suspended for two days for violating the board’s bullying policy, but he contradicted me.

“You can’t do that!” he said.  In a rather patronizing tone, the male student asked me if I had heard about the First Amendment, and then he proceeded to lecture me about the Tinker standard, i.e., the rule announced by the United States Supreme Court in Tinker v. Des Moines Independent School District (U.S. 1969).  Citing Tinker, the student claimed that he has a right of free speech unless I can reasonably forecast significant disruption or material disruption of the educational process.  I told him that I know all about Tinker, and I complimented him on his scholarship.  When I told him that the suspension would stand, however, he challenged me, saying that school discipline for these posts would violate his First Amendment because his posts were certainly not disruptive.  “The ACLU will have a field day with you,” he threatened.

I do feel sorry for the two girls whose feelings were hurt, but I am not sure that I can really say that the posts disrupted my school.  Is this oaf possibly correct?

Thank you,
Help Me Out Here

Dear Help:

Oaf or not, this young man has raised an interesting legal issue. Happily, the weight of authority holds that bullying conduct is not protected by the First Amendment.

We start with the observation that every mean post is not an act of bullying as defined by state law. Rather, the bullying statute defines out-of-school conduct as bullying when it “creates a hostile environment at school for the student against whom such bullying was directed, or (ii) infringes on the rights of the student against whom such bullying was directed at school, or (iii) substantially disrupts the education process or the orderly operation of a school. Moreover, the statue defines “hostile environment” as “a situation in which bullying among students is sufficiently severe or pervasive to alter the conditions of the school climate.” Finally, the statute defines “school climate” as “the quality and character of school life with a particular focus on the quality of the relationships within the school community between and among students and adults.” (Emphasis added).

Considering these provisions as a whole, it is fair to conclude that these obnoxious posts were bullying conduct because they were bad enough to alter the school climate by changing the quality of relationships for these girls in the school setting. The question, then, is whether the male student has a right under the First Amendment to say what was on his mind, even though his speech was hostile and offensive.

A few courts have dealt with First Amendment claims by students who have been disciplined for bullying conduct, and these courts have had no sympathy for students who engage in such conduct. The leading case on the subject is Kowalski v. Berkeley County Schools, 652 F.3d. 565 (4th Cir. 2011). There, the Fourth Circuit Court of Appeals rejected a free speech claim by a student who had posted hateful things about a fellow student. In so ruling, the court stated:

There is surely a limit to the scope of a high school’s interest in the order, safety, and well-being of its students when the speech at issue originates out-side the schoolhouse gate. But … [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. First, the creation of the S.A.S.H. group forced Shay N. to miss school in order to avoid further abuse. Moreover, had the school not intervened, the potential for continuing and more serious harassment of Shay N. as well as other students was real. Experience suggests that unpunished misbehavior can have a snowballing effect, in some cases resulting in copycat efforts by other students or in retaliation for the initial harassment.

In 2016, a federal district court followed the precedent of the Kowalski case and it, too, rejected a First Amendment claim made by a student who had engaged in bullying conduct. Dunkley v. Board of Education of the Greater Egg Harbor Regional High School District, 216 F. Supp. 3d 485 (D. N.J. 2016). There, the student admitted that he posted “demeaning and derogatory comments about fellow students” on his Twitter account, and the court had no difficulty rejecting his claim that his rights under the First Amendment insulated him from discipline:

The Court has already found that the tweets plaintiff admitted to, along with the remainder of the postings for which he is responsible as co-owner of the account, caused, and could have continued to cause, disruption to the school if the school had not intervened.

In sum, the male student was correct in citing Tinker, but the Tinker standard supports the action you took. When out-of-school conduct meets the statutory standards for bullying, it is inherently disruptive and need not be tolerated.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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