Naomi Goodno of the Pepperdine University School of Law has posted to SSRN How Public Schools Can Constitutionally Halt Cyberbullying: A Model Cyberbullying Policy that Survives First Amendment, Fourth Amendment, and Due Process Challenges.
Here’s the abstract:
There have been all too many recent cases where children are taking their lives because of cyberbullying. One hearbreaking case involved Tyler Clementi, a Rutgers University freshman, who leaped to his death after his roommate secretly taped him having a “sexual encounter” with another young man and posted it on the Internet. Schools, courts, and legislatures are struggling with how to deal with such tragedies.
Imagine two public school students, Joe and Jane. Joe punches Jane during class. The school is certainly within its legal rights to discipline Joe. Assume, instead, Joe punches Jane while both are walking home from school. The school cannot discipline Joe because the act took place off-campus. Now, assume instead, that Joe, while at home and using his own laptop, creates a website about Jane stating that he wished she were dead and inviting other students to join in with him to punch Jane. Over one hundred students log on to and blog about Joe’s website. Jane finds out about it and is too scared to attend school. If no assault of Jane takes place at school, can the school do anything? Can the school discipline Joe for his off-campus behavior? If the school does take action, would that violate Joe’s First Amendment right to free speech? Can the school search Joe’s personal laptop when he brings it to school, or would that violate Joe’s Fourth Amendment right not to be subjected to unreasonable searches and seizures? Indeed, should the school do anything at all?
These are the questions facing legislatures, courts and public schools, and there are no laws or cases that give succinct answers. This article analyzes current precedent and provides guidance on how these issues can be approached. It tackles three of the biggest constitutional challenges: how to create a public school cyberbullying policy that ensures schools are safe without trampling on students’ First Amendment, due process, and Fourth Amendment rights.
This article proposes a novel analysis concerning the First Amendment issue. In order to protect students’ right to free speech, courts and school officials should first consider the reach of a public school’s jurisdiction to regulate speech that occurs off-campus. Even if jurisdiction is proper, the school must also analyze whether it can regulate the substance of the speech. Next the article tackles the due process issues and problems with vague and overbroad constitutional challenges. Finally, the article addresses when school officials can search a student’s personal electronic device when there is suspicion of cyberbullying. No other article has fully addressed this set of constitutional issues.
As part of this analysis, I have drafted a proposed cyberbullying policy that would likely survive constitutional scrutiny.