This Article suggests that the analytical framework prescribed by Tinker and its progeny affords school authorities broad discretion and sufficient guidance in fashioning school discipline when student speech is involved. Part II provides a brief explanation of the relatively new phenomena through which cyberbullies disrupt the school environment and the lives of those in it. Part III then provides a brief discussion of Tinker's balancing framework, followed in Part IV by a discussion of the rights of others-usually targets of cyberbullying such as fellow students and teachers who attend or teach at the same school as the cyberbully -- which Tinker expressly provides must be considered as part of the analysis as to what protection, if any, the First Amendment provides to cyberbullying that invades the schoolhouse. Part V then explains that, as part of a proper analysis, courts must account for the fact that educators are in a better position to make immediate decisions as to whether a cyberbully's website or blog has disrupted the school environment or is reasonably likely to do so. Serious consideration must also be given to the cyberbully's intent that his speech "sneak" into the school and to the effects that such speech has upon its targets and their respective rights once it is behind the schoolhouse gate. Tinker prescribes that all of these rights and competing considerations be balanced, but courts sometimes avoid conducting this analysis, instead overstating the importance of where the speech originated prior to its injection into the school environment. When all of the competing rights and interests are appropriately considered, the Article concludes with the assertion that cyberbullies should not be permitted to avoid school discipline in the name of the First Amendment.
Shannon L. Doering,
Tinkering with School Discipline in the Name of the First Amendment: Expelling a Teacher's Ability to Proactively Quell Disruptions Caused by Cyberbullies at the Schoolhouse,
87 Neb. L. Rev.
Available at: http://digitalcommons.unl.edu/nlr/vol87/iss3/2