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Tuesday, June 03, 2014

The Internet and Violence on Campus

I want to thank Dan Markel and everyone at PrawfsBlawg for the opportunity to guest blog this month.  As a regular reader, I am honored to officially join the conversation.

Because of the recent tragedy at the University of California, Santa Barbara, where Elliot Rodger murdered six students, I have been thinking a lot about violence in school.  Although Rodger wasn't a current student and didn't use the internet to threaten one specific individual, his video messages posted on YouTube were clearly directed at students at the school.  I have written about the intersection of the internet and school violence, but my focus was on K-12 public schools, not public universities.  These cases raise complex First Amendment and due process challenges.  When does a public school have the authority (or the requirement) to regulate off-campus speech that bullies or threatens other students or school officials?  As for K-12 public schools, the courts are all over the board in their decisions and the U.S. Supreme Court has yet to rule on the issue.  Because the pedagogical goals are different in college than in K-12 school, these issues become even more complex in the public university setting.

In a recent case, Tatro v. University of Minnesota, the Minnesota Supreme Court held that a public university could discipline a student enrolled in a professional program for posting inappropriate comments on Facebook that violated her academic program rules without impinging on her free speech rights.  The University disciplined Tatro, who was enrolled in the undergraduate mortuary science program, for posting off-colored remarks about a cadaver in an embalming lab.  The Court only sided with the University because the University's rules were narrowly tailored and directly related to the professional conduct standards of the student's program.  Although this case did not raise issues about violent comments created off-campus, it does bring to the forefront issues that desperately need resolution.

First, does the Tinker v. Des Moines Independent School District standard, which, in part, allows schools to regulate speech that substantially impinges upon the rights of others, apply to speech that students make off-campus and post on the internet?  If so, does that same standard apply to college students?  I have argued that the Tinker standard should apply to K-12 public schools, but the analysis seems different for public universities.  Not only are most college students legally adults who should be afforded more speech protection than minors given their presumed cognitive development, but colleges themselves are supposed to be bastions for the free exchange of ideas.  Thus, even if the Tinker standard applies to off-campus speech in the university setting, the bar should be much lower.  But, even with a lower bar, college officials should be required to take action when there are threats or extreme bullying - of course, what constitutes "extreme bullying" (my phrase) raises a host of other issues. 

Given this digital age and that social-networking sites pervade people's daily lives, students will undoubtedly continue to use the internet as the forum in which to air grievances, bully, make threats, and even post suicide notes.  I would be interested to hear what others think about how schools should respond to these issues.

Posted by Naomi Goodno on June 3, 2014 at 01:44 PM in Constitutional thoughts, Criminal Law, Culture, Current Affairs, First Amendment | Permalink


You raise great questions. Those cases presented the perfect opportunity for the Court to weigh in on this legal mess. Juxtapose Kowalski/Blue Mountain (Layshock) against other cases like Wisniewski and Killion at one end of the spectrum, and Beussink, Emmett, and J.C. v. Beverly Hills at the other end - and it is clear that guidance is desperately needed. To address your questions, (1) given the fractured legal landscape, I don't think lower federal courts will be able to resolve these issues. Maybe there has to be even more confusion before the Court provides clarification. Until then, is it a victory for student speech? Until the Court does take it on, (2) I think the government should attempt to apply the Tinker standard (I have drafted a model cyberbullying school policy along these lines); although, this is problematic given that the internet was nonexistent when Tinker was written. Some courts have adopted a "foreseeable" standard - if it was foreseeable that the off-campus internet speech would reach school campus then it would be subject to school regulation. That standard seems too broad, particularly since via smart phones students have seemingly limitless access to the internet at school - anything and everything on line winds up at school. Even if the Court takes a case soon, it may not resolve any of the issues related to college students. What should public universities do?

Posted by: Naomi Goodno | Jun 3, 2014 7:01:50 PM

(1) Given the Court ducking the Kowalski / Blue Mountain cases two terms ago, what will have to change for this issue to be resolved in federal courts?

(2) What can the Feds (or states) do about this problem? A free-speech rider in the Higher Ed Reauthorization? Something else?

Posted by: AndyK | Jun 3, 2014 5:05:25 PM

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