Tinkering with Students’ First Amendment Rights in the Age of Cyber-bullying

Jennifer L. Henry, KLJ Articles Editor [1]

In April 2016, a Lexington Catholic High School student was charged with sending racially-insensitive messages to African-American students. In response to the off-campus harassment, criminal charges and two civil suits have been brought against the alleged perpetrator, a 17-year old white student at LCHS.[2] The mother of the victim, a 14-year old football player, found messages on his computer from a white teammate including such racial slurs as “I’m going to lynch you,” and “I’ll hire you to pick my cotton $1 per week.”[3] In a statement addressing the harassment claims, LCHS President Dr. Steve Angelucci said that the school has no control over what students do on the Internet, but they do have control over how they respond to these situations.[4] While Lexington Catholic’s administration has more latitude to punish such behavior because LCHS is a private school, public school administrators remain unsure of whether punishing students for online harassment and bullying would violate the First Amendment.

Tinker v. Des Moines Independent School District is the landmark case governing the First Amendment rights of students.[5]  In this case, the Supreme Court upheld students’ right to wear black armbands to school in protest of the Vietnam War.[6] Although the facts of the case dealt solely with on-campus speech, the two-prong test it proffered has regularly been applied to determine whether or not students can be punished for off-campus speech.[7] According to Tinker, a student’s speech is protected if it does not “materially and substantially interfere with the requirements of appropriate discipline in the operation of the school” or “collide with the rights of others.”[8]

Court of Appeal decisions have applied the holding of Tinker in various ways to determine whether or not student speech is protected. For example, in Kowalski v. Berkeley County Schools, the Fourth Circuit upheld the suspension of a student who made a social media page dedicated to ridiculing a fellow classmate.[9] In upholding Kowalski’s punishment, the Fourth Circuit emphasized that schools have a duty to protect their students from harassment and bullying in the school environment.[10] The Court employed the Tinker analysis to find that Kowalski’s speech interfered with the bullied student’s rights.[11]

Bullying is one of the largest challenges school administrators, teachers, and students in America face today. 20% of high school students in the United States have experienced bullying, and 30% of young people have admitted to bullying others.[12] 15% of high school students claimed to have been cyber-bullied in a 2014 survey.[13] In Kentucky, state law plays a minor role in the ways school districts deal with bullying. State law compels each district to create its own discipline guidelines that prohibit bullying.[14] Bullying “(1) [t]hat occurs on school premises, on school-sponsored transportation, or at a school-sponsored event; or (2) [t]hat disrupts the education process” is within the reach of school districts’ authority according to the General Assembly.[15] Accordingly, the Kentucky School Boards Association published a model anti-bullying policy that extends to “any/all student language or behavior including, but not limited to, the use of electronic or online methods.” [16]

School administrators and teachers are tasked with striking the difficult balance of fulfilling their duty to protect students from harassment and bullying in the school environment without infringing on First Amendment rights to freedom of speech and expression. This is a fine line to draw in the age of social media, which is a pervasive part of modern students’ lives. Although the Supreme Court has not yet taken up this matter, it seems that as long as cyber-bullying interferes with the requirements of discipline at school and collides with the rights of others, school administrators are justified in punishing such conduct.[17]

[1] J.D. Expected May 2018.
[2] Police Charge Teen in Lexington Catholic High School Harassment Case, Lex18 (Apr. 8, 2016  8:39 PM), http://www.lex18.com/story/31671954/police-charge-teen-in-lexington-catholic-high-school-harassment-case.
[3] Valerie Honeycutt Spears, 3 Lawsuits Filed Against Lexington Catholic Alleging Sex Discrimination, Race Harassment, Lexington Herald-Leader (Aug. 16, 2016), http://www.lex18.com/story/31671954/police-charge-teen-in-lexington-catholic-high-school-harassment-case.
[4] Police Charge Teen in Lexington Catholic High School Harassment Case, supra note 1.
[5] See Tinker v. Des Moines Independent School District, 393 U.S. 503 (1969).
[6] Id. at 514.
[7] See Emmett v. Kent Hill School District No. 15, 92 F. Supp. 2d 1088 (W.D. Wash. 2000); Layshock ex rel. Layshock v. Hermitage School District, 593 F.3d 249 (3d Cir. 2010); Doninger v. Niehoff, 527 F.3d 41 (2d Cir. 2009).
[8] Tinker, 393 U.S. at 513.
[9] Kowalski v. Berkeley County Schools, 625 F.3d 565, 566 (4th Cir. 2011).
[10]  Id. at 572 (citing Lowery v. Euverard, 497 F.3d 584, 596 (6th Cir. 2007)).
[11] Id. at 573-74.
[12] Facts About Bullying, Stopbullying.gov (Oct. 14, 2014) http://www.stopbullying.gov/news/media/facts/#listing.
[13] Id.
[14] Ky. Rev. Stat. Ann §158.148(5) (2016).
[15] Ky. Rev. Stat. Ann §158.148(1)(a)(1) (2016).
[16] Model Policies Related to Issues Found in KRS 158.156, § 09.422 Bullying/Hazing (Ky. Sch. Bd. Ass’n 2016).
[17] See Tinker v. Des Moines Independent School District, 393 U.S. 503 (1969); see also Kowalski v. Berkeley County Schools, 625 F.3d 565 (4th Cir. 2011).