Student Expression and Cyberbullying

Happy Tuesday, Dawg Blog Readers!  This is Christine again and it is my last week writing for the Blawg because JIM IS BACK!!  We’re all excited and I’m sure he will have many great stories from his short period of freedom.  That leaves only a few more days for me to cover some of the things I’ve been meaning to get to all summer.  In today’s installment, we’re going to take a look at a classic case that has probably never been more relevant and is also a favorite of Jim’s:  Tinker v. Des Moines.

The fact is this is something I’ve been meaning to do since February when I spoke at the UT School Law Conference.  Right after I finished my speech on David’s Law and Cyberbullying, I was approached by a bright and eager Aggie law student with an excellent question about the implications of Tinker in the bullying and cyberbullying context.  Having just finished my speech, my mind was almost completely devoid of any information or higher order reasoning skills.  To wit, the only thing I could think of to do was ask this student for her business card.  Because so many of the kids are carrying them nowadays.  Well don’t you know she did have a business card and she gave it to me.  So now it’s July and this promising future lawyer is employed with Walsh Gallegos as a clerk in our Irving office, and after all these months, my brain is ready to tackle her question.

You all remember Tinker as the case in which a group of Iowa junior high and high school students decided to express their concerns about the Vietnam War by wearing to school black armbands bearing the peace sign.  The students’ accessory choice caused no disruption in their schools.  They were nevertheless disciplined for it, and that’s why they filed suit.

As you also remember, the students in Tinker prevailed at the Supreme Court.  This is how the Court summed it up:

The school officials banned and sought to punish petitioners for a silent, passive expression of opinion, unaccompanied by any disorder or disturbance on the part of petitioners. There is here no evidence whatever of petitioners’ interference, actual or nascent, with the schools’ work or of collision with the rights of other students to be secure and to be let alone.  Accordingly, this case does not concern speech or action that intrudes upon the work of the schools or the rights of other students.

The Des Moines school district disciplined the students out of fear of a possible disturbance, even though there was no disturbance. Courts all the way up the line upheld the District’s decision on that basis.  So it’s no surprise that the primary thrust of the Supreme Court’s analysis is on that argument, although reaching the opposite conclusion:  that the mere possibility or fear of a disturbance as a result of students’ expression does not outweigh their right to engage in it.

The Court did not spend a great deal of time on the possible collision of students’ rights to free expression with the rights of other students to be secure and let alone because there was no evidence of it in this case nor was it the basis for the District’s action.  Kaitlyn Pound’s very intelligent question was whether this notion of the collision of rights might be used to allow schools to discipline students for bullying that occurs off-campus, specifically, cyberbullying.

Let’s pause our discussion of Tinker for a moment and reflect on the current state of our jurisdiction over bullying in Texas pursuant to state law.  Bullying of the kicks and punches variety (i.e., non-cyber) that occurs on or is delivered to school, a school bus, or a school-sponsored or school-related activity is within the school’s authority to address.  Cyberbullying is within our authority to address if it interferes with a student’s educational opportunities or substantially disrupts the orderly operation of a classroom, school, or activity.

Does David’s Law adopt Tinker’s second prong when it allows (requires) us to address cyberbullying that interferes with a student’s educational opportunities?  Is that the same as protecting students’ right to be secure and let alone?  Maybe not, but it is also probably as close as we can logically get.  Off-campus cyberbullying that does not interfere with a student’s educational opportunities may not meet the underlying statutory definition of bullying.  In order to meet that statutory component cyberbullying must have some effect on the student (e.g., that they have been placed in fear of harm to person or property, that they have experienced an intimidating or abusive educational environment, or that their rights have been infringed upon in school.)  If any of those is present, it is likely that the student’s educational opportunities have been interfered with.  If none of those is present, then by definition we don’t have either cyberbullying or regular bullying.  This gets a little circular, but my point is that by adopting this definition of cyberbullying, our legislature has done its best to reconcile the need to protect students from the cruelty and ubiquity of cyberbullying without infringing on the expressive rights of others by requiring some manifestation of the damage done and generally a nexus with the educational setting.


Tomorrow: A Bit More on Tinker’s Second Prong