'Cyberbullied' School Administration May Have Violated Student's First Amendment Rights By Suspending Him

All the cyberbullying policies and laws being put into place to protect kids seem to be invoked most frequently to protect adults -- specifically, the adults who are responsible for the crafting of these new rules. Another case of school administrators being "cyberbullied" has hit the courts. This one stems from a disgruntled student who was unhappy with his treatment during the basketball season.

Following the season's final game, Rosario was out to dinner with his family and sent a series of crass and offensive tweets about school administrators and his coach:

1. Mr. Isaacs is a b*tch too
2. I hope Coach brown gets f*cked in the *ss by 10 black d*cks
3. Now I can tweet whatever I want and I hope one of y'all mother f*ckers snitch on me
4. Fuck coach browns bitch *ss
5. Finally this b*tch *ss season is over
6. Aiight I'm done y'all can go snitch now like before
7. Oh yea and Mr. DInkel's square *ss
8. AND Ms. Evans b*tch *ss boyfriend too He a p*ssy ass n*gg* tryna talk shit while walking away

Etiquette breach (while at family dinner) aside, school administrators were not happy. They punished Rosario for his tweets under a cyberbullying statute. The text of the statute read as follows:

"A member of the board of trustees of a school district, any employee of the board of trustees, including, without limitation, an administrator, principal, teacher or other staff member, or any pupil shall not engage in bullying cyber-bullying, harassment or intimidation on the premises of any public school, at any activity sponsored by a public school, or on any school bus."[emphasis added]

As you can see from the emphasis Venkat Balasubramani added, this collection of tweets should have remained outside the purview of the policy used to suspend Rosario. But that didn't stop the offended parties from kicking the student out of school. Unfortunately for the administration, Rosario's family took them to court, searching for injunctive relief from the suspension. (Rosario was ultimately allowed to transfer to a different school.) That was denied due to lack of irreparable harm and the school district filed a motion to dismiss. That didn't go quite as smoothly.

Rosario's family brought a "slew of other claims," but most notable is the First Amendment claim, which the court will allow to move forward.

As to Rosario's First Amendment claim, the defendants argued that the speech in question was not protected speech at all because it was "racist, violent, offensive, and hateful." The court (correctly) rejects this argument saying that the only legal basis for the speech in question to possibly be unprotected is obscenity, and this only applies to one tweet.

The court also notes that school administrators can discipline students for off-campus speech, but they need to show "substantial disruption" has occurred on campus in order to justify suspensions or expulsions. This district's policy covers a very limited area -- Balasubramani points out that its specific wording makes it unlikely to be enforceable against "activities in cyberspace," no matter if these activities happened during school events or on school grounds.

Cyberbullying policies have the built-in potential to cripple free speech, thanks to the general shift towards subjectivity, rather than objectivity. Beyond that, these policies seem to encourage a culture of heightened sensitivity and overreaction in far too many administrators.

There must be something in school administrators' DNA that causes a heightened reaction when they see their name mentioned in social media. The tweets were ill-advised at best and crass, depressing even. But I wonder whether the school would have been better off using this as a teaching moment rather than taking a harsher disciplinary approach that was not necessarily on solid First Amendment grounds.

The fact that the school relied on the cyberbullying statute is telling, and a good illustration that these types of statutes are often used in an unintended manner, to improperly suppress speech. It's a stretch at best to argue that tweets from a private account—that would not have reached the coach or administrators absent their inquiry—somehow amounted to "cyber-bullying".

This last point is also rather crucial. The district punished a student for tweets administrators never would have seen without jumping through some extra hoops. Rosario's Twitter account was private, meaning these were only shared with followers. While the court doesn't agree this gives Rosario an "expectation of privacy" in regards to his claims of Fourth Amendment violations, it does bring into question how much work administrators had to do simply to recover the tweets that offended them so much. It should have been a teachable moment, or at worst, something that could have been ignored.