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Bullying and Other Off-Campus Student Speech — The Precious Position of School Districts

November 5, 2014

Growing up in the 1970’s, the kids I knew, including myself, felt safe at school.  It never crossed our minds a student might bring a gun to school.  We didn’t have metal detectors.  Back then, no one sent text messages or used social media to distribute inappropriate information because it simply didn’t exist.  The most we did was pass notes in class possibly talking about someone we didn’t like for one reason or another.  We didn’t make racial or sexual comments in our notes.   It just wasn’t something we did.  And, if such a note had been intercepted by a teacher, we would have been sent to the principal’s office for a spanking and our parents notified.   Back then, I wouldn’t have been able to tell you whether getting the spanking or my parents finding out I had done something like that would have been worse.  In retrospect, I know my parents finding out would have been worse.   At least the spanking would have been over and done.

Times have changed and not always for the better.  While school should be a place to feel safe and students should be able to learn in a secure environment free of bullying and harassment, we know that is becoming more and more difficult.   One reason is modern technology.

Over the last few years, there has been a great deal of media coverage about school-related incidents.  We have heard stories of young girls sending text messages containing risqué pictures to their boyfriends who then forward the messages and pictures to other students when they are no longer in the relationship, with the girls being subjected to taunts and other inappropriate and lewd comments by fellow students.  We have also heard stories of students using their social media accounts to rant and engage in inappropriate diatribes about fellow students, who are then mocked and teased at school.   And, we have too often heard stories of student-on-student school shootings with information coming to light after the fact about online harassment that may have led to the shooting.

What has become clear from the media coverage is bullying can take many forms.  What is equally clear from the coverage is the consequences of bullying are far reaching, including suicides by students who have been taunted and shootings perpetrated by students who have been mocked and teased.

In Missouri, bullying is defined to mean “intimidation or harassment that causes a reasonable student to fear for his or her physical safety or property.  Bullying may consist of physical actions, including gestures, or oral, cyberbullying, electronic, or written communication, and any threat of retaliation for reporting any such acts.” R.S.Mo. 160.775.2.  To address the problem of bullying in schools, the Missouri legislature has placed requirements on school districts.

Each school district in Missouri is required to have an anti-bullying policy.  The policy must be founded on the assumption all students need a safe learning environment.  The policy must treat students equally and cannot contain specific lists of protected classes of students who are to receive special treatment.   The policy must contain a statement of the consequences of bullying.  Additionally, the policy must require district employees to report any instance of bullying of which they have first hand knowledge and must address training of employees in the requirements of the policy.  R.S.Mo. 160.775.3 and 160.775.4.  Similarly, the board of education of each Kansas school district must adopt a policy to prohibit bullying on or while utilizing school property, in a school vehicle or at a school-sponsored activity or event.  Further, the board of education must adopt and implement a plan to address such bullying and the plan must include provisions for the training and education for staff and students.  K.S.A. 72-8256 (b) and (c).

What is clear is Missouri school districts are required to be both proactive and reactive.  They must act proactively to prevent bullying.  And, they must also be reactive if they become aware bullying is taking place.  But what happens if a school district becomes aware bullying or some other concerning behavior is occurring away from school?  Does the school district have the ability do anything about it at school?  In Missouri, it appears the answer is yes.

In S.J.W. v. Lee’s Summit R-7 School District, 696 F.3d 771 (8th Cir. 2012), the Lee’s Summit R-7 School District issued 180 day suspensions for two brothers.  The brothers had created a website called NorthPress which contained a blog.  According to the brothers, the purpose of the blog was to discuss, satirize and vent about events that occurred at school.  While they used a Dutch domain site which prevented U.S. users from locating it via a google search, anyone could access it if they knew the website address.   The brothers made posts on the blog that contained a variety of offensive and racists comments as well as sexually explicit and degrading comments about a female classmate they identified by name.  The blog also discussed fights at school and mocked black students.  The parties disagreed as to the extent to which school computers were used to create, maintain or access the site and blog.  While the brothers testified they only intended their friends to know about it and only told a few friends, the student body at large learned about the website.  Once school administrators learned of it, they suspended the brothers for ten days.  Following a hearing, appeal and second hearing, the school district suspended them both but allowed them to enroll in another school during the suspensions.  As a result, suit was filed and the brothers moved for a preliminary injunction to lift the suspensions.  After a hearing, the district court granted the preliminary injunction and ruled the brothers could return to school.   The School District appealed.

On appeal, the brothers argued off-campus speech was protected and could not be the subject of school discipline, even if directed at the school or specified students.  In addressing this argument, the Court noted that in the school environment, some speech is not protected by the First Amendment and school officials may lawfully punish some forms of unprotected student speech.   “Under Tinker, 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.”  “Thus, student speech that causes a substantial disruption is not protected.”  The Court noted the district court found NorthPress was “targeted at” the school and so Tinker was likely to apply.  Further, the Court noted the district court found the posts caused substantial disruption and so the brothers were unlikely to succeed on the merits under Tinker.  Later in the opinion, the Court noted, “the specter of cyber-bullying hangs over this case.  The repercussions of cyber-bullying are serious and sometimes tragic.  The parties focus their arguments on the disruption caused by the racist comments, but possibly even more significant is the distress the Wilsons’ return to Lee’s Summit North could have caused the female students whom the Wilsons targeted.”  In closing its opinion, the Court concluded the entry of the injunction was in error, vacated it and indicated it was leaving to the district court the unenviable task of fashioning a remedy several months after the entry of the judgment and the brothers return to school.

What the opinions makes clear is School Districts do have power to address off-campus speech and bullying under certain circumstances.  Even so, School Districts are in the no-win position of potentially being sued by students who claim their off-campus speech is protected such that they cannot be disciplined for it or being sued by the victims of such students when the School District does not take what they believe are appropriate steps to address the off-campus speech.

Merry “Maggie” Tucker

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