by Jesulon S.R. Gibbs. El Paso, Texas: LFB Scholarly Publishing, 2010. 264pp. Hardcover. $75.00. ISBN: 9781593324063.
Reviewed by Caren G. Dubnoff, Department of Political Science, College of the Holy Cross Email: cdubnoff [at] holycross.edu.
Prompted by a Massachusetts high school student’s suicide that had been blamed on merciless bullying by other students, the Massachusetts legislature recently passed an anti-bullying law, which assigned school officials significant responsibility for the prevention of bullying, including cyber-bullying outside the school environment. Cyber-bullying is an extreme manifestation of a wider problem – the increased interaction between potentially disruptive or otherwise harmful student internet communications and the proper maintenance of a safe environment needed for the advancement of educational goals which school officials are mandated to promote.
But, if school officials are to be held accountable in preventing student bullying both in and out of school, do they actually have the power to respond, or are their actions likely to be blocked by the protections afforded by the First Amendment? The answer is anything but clear. The Supreme Court has spoken only four times regarding student expression: TINKER v DES MOINES CENTRAL SCHOOL DISTRICT (1969), BETHEL SCHOOL DISTRICT NO. 403 v FRASER (1986); HAZELWOOD SCHOOL DISTRICT v KUHLMEIER (1988), and MORSE v FREDERICK (2007). In the first three cases, the speech occurred in school, and the fourth case involved an activity which the Court characterized as school-sponsored and controlled. Student speech was deemed protected only in TINKER, the first case. The Supreme Court has thus far said nothing with regard to student speech rights off-campus, and thus has left the development of the law in this area to the lower courts. There is some legal commentary that attempts to look at the treatment of student off-campus speech in the lower courts, but this work has tended to be limited in scope – focusing on a few discrete decisions, and designed to provide evidence of inconsistency to press for Supreme Court intervention.
Jesulon Gibbs’ book provides a comprehensive compilation of relevant lower court cases, and examines them in an attempt to delineate the potential limits imposed by the First Amendment on educators’ efforts to use traditional school disciplinary tools such as school suspensions and expulsions to address cyber- bullying and other offensive off-campus speech. The book could not be more timely. If she is correct in her assessment of the material, school officials may have a hard time responding adequately to disruptive speech outside of the school system. Professor Gibbs sets out two related objectives: first, to provide clarity to the lower court actions, and second, based on this to “offer a model framework for [*289] school administrators, courts of law and scholars to use as a uniform standard” in approaching and resolving the disputes generated by “off-campus student speech” (p.6). To this end, Gibbs examines relevant published lower court cases and presents their issues and the court’s conclusions and supporting rationale. This material is the core of the book. It is organized by circuit and by state and district rather than by issue, and appears in chapters five through eight. Gibbs also provides charts to summarize much of the foregoing material and make it easier to sort out the issues, arguments, and outcomes.
Gibbs makes three central claims based on these data. The first is that the lower courts rely most heavily on TINKER for guidance, and the second is that students have the more favorable win-rate. Both claims are amply justified by the evidence. She further contends that this outcome is due to overreaching by school officials, but she does not adequately justify this conclusion. Once a judge makes a determination to rely on TINKER, the Supreme Court decision most protective of student speech, an outcome favoring the student is not surprising. Gibbs’ judgment that the responsibility lies with overreaching school officials depends upon taking the TINKER framework as a given, but why should this be assumed? The other Supreme Court decisions could have been used instead, Further, how can the reader adequately assess the reason for the outcome of a case without knowing the facts that were presented? It is not enough to say only that a court found a school official’s case to be insufficiently compelling.
The description of decisions completed, Gibbs identifies the factors that are necessary for a limitation of student speech to be upheld. She concludes that establishing a nexus between the speech and classroom disruption is an essential component of a successful disciplinary action. There is, however, no clear answer regarding the level of evidence that would be needed in order to establish a substantial connection. Other factors are discussed but also with little specific guidance. An important consideration is how “the reviewing court interprets ‘foreseeable harm’”(p.169), but it is often difficult to understand how this could be predicted, since courts can differ widely. Her discussion makes clearer why lewd or otherwise offensive language on the internet cannot be the basis of discipline if it is standing alone without a showing of foreseeable disruption, whereas the same language used in school can be. FRASER, the controlling precedent, “relied heavily on the school administrators’ ability and responsibility to control the school environment” (p.179). But often, even with all these data, Gibbs is able only to offer general guidance regarding what considerations are important, since evidence is weighed differently by different judges. From a political scientist’s perspective, the more interesting discussion involved her explanation for FRASER’s limited influence in off-campus speech cases, given its growing influence in “First Amendment jurisprudence as applied to schools” (p.179). Gibbs also provides some discussion of speech involving true threats, which when present are generally far less difficult to discipline, since the Supreme Court has considered them outside the protection of the First Amendment. [*290]
Gibbs concludes the book by offering what she sees as a framework for analysis. The problem is that this is less an argument regarding how the law should develop than a set of guidelines school officials should follow to meet the current standards that courts use in judging challenges to school policy decisions. For example, the list notes that “A school policy regulating student speech must not be constitutionally overbroad and/ or vague” (p.223). It is good advice, because, according to long established Supreme Court doctrine, it would be struck down, but why it offers a framework for assessing student internet speech is unclear.
Gibbs has done a service in bringing together the lower court decisions in this area. Much of the case discussion is commendable, though I think it would have been easier to follow had it been sorted out according to the types of speech at issue rather than according to the Court that made the decision. Even so, educators might find its practical advice regarding how to respond to student internet speech helpful. The picture that emerges from all this is one of an environment that is perhaps even more hostile to limiting student speech than to limiting that of adults. For example, a student who falsely called a school principal a pedophile could not be sanctioned by a court, whereas an adult who made a similar charge would most likely be successfully sued for libel. This is useful information.
However, despite its positive points, I believe that many readers of this list would find the book to be of limited usefulness in their academic courses. It provides little legal or political analysis as whether the course taken by the lower courts is truly consistent with the First Amendment, and therefore with how ultimately to address the concerns that have generated the recent legislative action and litigation. The discussion in the final chapter provides a list of factors to consider by those who would discipline student off-campus speech, but it does not propose or defend an approach for the Supreme Court to take when addressing the issues raised in the lower courts.
TINKER v. DES MOINES CENTRAL SCHOOL DISTRICT 398 U.S. 503(1969).
BETHEL SCHOOL DISTRICT NO. 403 v. FRASER 478 U.S. 675(1986).
HAZELWOOD SCHOOL DISTRICT v. KUHLMEIER 484 U.S. 260(1988).
MORSE v. FREDERICK(2007).
© Copyright 2011 by the author, Caren G. Dubnoff.