Supreme Court Neglects an Opportunity to Protect Children

This contribution was written by guest author Joe Dryden.  Mr. Dryden is an Assistant Professor of Education and Law at Texas Wesleyan University in Fort Worth, Texas.  Mr. Dryden’s research interest include student First Amendment issues , the collateral impact of educational policy, dilemmas in educational leadership and effective classroom instruction.

Despite the widespread calls for guidance, the Supreme Court recently denied certiorari in three cases dealing with the balance between off-campus student expression and the compelling interest of the state to protect the learning environment and those within it from cyber bullying and cyber harassment.1 There is a desperate need for a uniform standard that can be consistently applied to reduce variability in intervention efforts, and litigation outcomes. The vacuum of guidance leaves a legal landscape marked by the misapplication of Tinker’s substantial disruption test, a test developed over 40 years ago when no one could have foreseen the Internet or the proliferation of electronic communication devices.2

The least troubling byproduct created by this misapplication is contradictory federal court decisions.3 Far worse is the damage generated when school administrators are forced to operate in a legal quagmire where intervention may violate a student’s constitutional rights resulting in expensive and protracted litigation, while inaction leaves victims with inadequate avenues of recourse.4 Inconsistent outcomes fail to provide adequate notice to students regarding the limits of protected off-campus expression.5 School administrators are unsure of the limits on their authority culminating in polarized reactions. In some cases, school officials over react and implement disproportionate consequences for protected off-campus student expression.6 In others, they elect not to intervene which can lead to tragic outcomes.7

Judges are forced to manufacture illogical arguments and apply unsubstantiated assumptions to arrive at conclusions that lack judicial wisdom. The Third Circuit applied the following incoherent and incongruous explanations in ruling against school officials in J.S. v. Blue Mountain and Layshock v. Hermitage.

  • If school officials cannot catch every student involved in the publication of off-campus websites that create a substantial disruption of school operations, they cannot punish those they do.8
  • Using school computers to access a website created off campus to show classmates does not constitute on-campus expression.9
  • A student, who has a propensity for lying, can avoid all responsibility for posting malicious and defamatory lies accusing a school official of crimes of moral turpitude simply by claiming he was only joking.10
  • If the student can show that an immediate supervisor didn’t believe the contents of a malicious and defamatory fake profile, then it is safe to assume  no one believed the content to be true.11
  • If school officials use filtering software to prevent student access to inappropriate websites then no child will be able to view a malicious and defamatory fake profile of a classmate or school employee.12
  • It is the reaction of school officials that is the proximate cause of disruptions associated with off-campus student expression.13

In Kowalski v. Berkeley County Schools, the Fourth Circuit used Tinker’s substantial disruption test to support school officials where one student conducted a targeted cyber-attack on a classmate from an off-campus location. Several students were invited to reply, and many did, but the incident did not produce a substantial disruption of school operations.14 In cases of student-on-student cyber bullying, the results may substantially interfere with a student’s educational opportunities, but this does not satisfy Tinker’s substantial disruption test. Courts should consider Tinker’s second prong, expressions which interfere with the rights of others,15 or the application of the deliberate indifference standard where sexual harassment creates a hostile environment.16

Another misapplication of Tinker’s substantial disruption test lies in the misguided efforts of those who invoke Tinker to protect expressions that are threatening, defamatory, or designed to intentionally inflict emotional distress. The Tinker decision protected political, symbolic, non-disruptive speech, 17 far different from the content of most off-campus student expression cases. Todd Erb captured this distinction well by stating “[i]t would be hard to argue in a judicial proceeding . . . that websites allowing students to vote on who’s the biggest slut in the school”18 deserves the same protection as political speech regarding matters of public concern.

Denying certiorari in the cases endangers the emotional wellbeing and safety of children by perpetuating the status quo. This issue is ripe, dozens of lower court cases have been adjudicated and hundreds of legal scholars have proposed solutions. The Supreme Court’s failure to act is inexcusable.











1 Kowalski v. Berkeley Cnty. Schs., 80 U.S.L.W. 3427 (U.S. Jan. 12, 2012) (No. 11-461); J. S. v. Blue Mt. Sch. Dist., 80 U.S.L.W. 3425 (U.S. Jan. 12, 2012) (No. 11-502); Layshock v. Hermitage Sch. Dist, 80 U.S.L.W. 3427 (U.S. Jan. 12, 2012) (No. 11-502).

2 Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969) [hereinafter Tinker].

3 Compare J. S. v. Blue Mt. Sch. Dist., 593 F.3d 286 (3rd Cir. 2010) [hereinafter Blue Mt.] (ruled in favor of the school district), vacated and rev’d en banc 650 F.3d 915 (3d Cir. 2011), with Layshock v. Hermitage Sch. Dist., 496 F. Supp. 2d 587 (3d Cir. 2010) (ruled in favor of the student), vacated and aff’d en banc 650 F.3d 205 (3d Cir. 2011).

4 See Joe Dryden, It’s a Matter of Life and Death: Judicial Support for School Authority over Off-Campus Student Cyber Bullying and Harassment, 33 U. LAVERNE L. REV (in press).

5 Id. at 10.

6 See Coy v. Bd. of Educ. of North Canton City Schs., 205 F.2d. 791 (N.D. Ohio, 2002).

7 See Rutgers Student Suicide Renews Debate Over Cyberbullying (Oct. 1, 2010),

8 Layshock, 496 F. Supp. 2d  at 210.

9 Id at 217.

10 Blue Mt., 593 F.3d at 921.

11 Id. at 930.

12 Id. at 929.

13 Id.

14 Kowalski v Berkeley Cnty Schs., 652 F.3d 565 (4th  Cir. 2011).

15 See Martha McCarthy, Student expression that collides with the rights of others: Should the second prong of Tinker stand alone?, 240 WEST’S EDUC. L. REP. 1, (2009).

16 Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629 (1999).

17 Tinker, 393 U.S. at 504.

18 Thomas Erb, A case for strengthening school district jurisdiction to punish off-campus incidents of cyber bullying, 40 ARIZ. ST. L. J. 257, 284 (2008).