as the courts?
their view constitutes the “control-
invade the rights of another student
ling” opinion in Morse. On the oth-
and, thus, would fall under Tinker’s
For school districts, Internet
er hand, both the Third and Seventh
second prong. There is no constitu-
speech poses several unique prob-
Circuits view Morse as narrowly decid-
tional right to be a bully or to abuse
lems. Unlike other forms of media,
ed, and the Seventh Circuit in its
or intimidate other students. Given
the Internet permits free and unfet-
Nuxoll decision observed that Justices Alito and Kennedy “joined the majority opinion not just the decision and by doing so they made it the majority opinion not merely, as the
By definition, speech that constitutes harassment, bullying or cyber-
plaintiff believes (as does the Fifth
bullying is speech that would seemingly invade the rights of anoth-
Circuit) a plurality opinion.” Please explain the two different “prongs” involved in the Tinker
er student and, thus, would fall under Tinker’s second prong. There is no constitutional right to be a bully or to abuse or intimidate other students.
decision as they now relate to harassment, bullying and cyberbullying? Typically, when we think of Tinker, we think of its substantial disruption test. Because cyberbullying
the potential for Title IX liability in
tered discussion of ideas with prac-
typically targets a single student or
this context for deliberate indiffer-
tically no regulation or oversight. The
discrete group of students, demon-
ence to student-on-student harass-
Internet removes the spatial distance
strating substantial disruption may
ment, Tinker’s “rights of others” prong
between the persons posting and view-
be difficult to establish. However, Tin-
can provide the means to address this
ing content on the Web. There are no
ker also held that schools can disci-
aspect of student Internet speech.
geographic or territorial limits on the
pline speech that “invades the rights
Substantial disruption should
Internet.
not be required to invoke this aspect
Today, any student with a com-
Since Tinker was originally decid-
of Tinker. Otherwise, there would
puter can post information on the
ed, the Second, Third, Sixth, Eighth
have been no need for the Court in
Internet that can be accessed any-
and Ninth circuits have mentioned
Tinker to mention speech that invades
where in the world almost instanta-
Tinker’s “rights of others” prong. It
the rights of others. Mere teasing and
neously. Social networks encourage
was the basis of the Eighth Circuit’s
name calling would not normally
the development of affinity groups
decision in Hazelwood, before it went
be sufficient to trigger this aspect of
that can target individuals in the
to the U.S. Supreme Court. Howev-
Tinker. However, when one student’s
school community. While schools
er, because the Supreme Court held
speech or expressive activities on the
can attempt to block access to vari-
that schools could exercise editorial
Internet is severe enough that it
ous social networking sites on school
control over school-sponsored pub-
impairs, or predictably could impair,
computers, students can use a num-
lications, the Court in Hazelwood
another student’s educational per-
ber of online tools and applications
specifically noted that it was not
formance, or the student’s ability to
to circumvent a school district’s
addressing whether the Eight Circuit
interact with his or her peers at school,
attempt to block access to these types
had “correctly construed” Tinker’s
or the student’s safety at school, school
of sites.
“rights of others” prong.
officials and their counsel should con-
The Internet has expanded
sider invoking Tinker’s rights of oth-
schools’ boundaries and blurred when,
ers prong.
where and how students can enter
of others.”
Protecting the “rights of others” is an underused aspect of Tinker. By
the schoolhouse gate. A two-dimen-
definition, speech that constitutes harassment, bullying or cyberbully-
How does the Internet pose
sional view of a school district’s edu-
ing is speech that would seemingly
unique challenges for schools as well
cational setting and limits of its
SEPTEMBER-OCTOBER 2012 / THE ILLINOIS SCHOOL BOARD JOURNAL
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