Web viewAdministration and principalship is examined in the context of legal leadership....

Running Head: LEGAL REQUIREMENTS FOR CYBERBULLYING i

What are the legal requirements for regulating cyberbullying?

Jillane Baros

EDUC 7585

Fall 2015

LEGAL REQUIREMENTS FOR CYBERBULLYING ii

Abstract

Administration and principalship is examined in the context of legal leadership.

Constitutional law forms the foundation of legal leadership, authorizing and limiting the actions

of government officials, including principals operating in public schools. Preventive and Tort

Law guide everyday actions as principals address the variety of situations that arise in the school

setting. The principal bears the primary responsibility for school finances and must make careful

decisions about how, when, and who spends funds, the majority of which are public funds

gathered from taxpayer dollars. The First and Fourth Amendments as well as related Supreme

Court decisions further clarify the role of the principal and administration, particularly when

disciplining students. Finally, this paper concludes with a discussion of legal leadership and

bullying, applying the above concepts and analyzing how schools, particularly those in the State

of Nevada, may address cyberbullying.

LEGAL REQUIREMENTS FOR CYBERBULLYING iii

Table of Contents

Introduction......................................................................................................................................1

Constitutional Law...........................................................................................................................3

Preventive and Tort Law..................................................................................................................8

School Finance and the Principal...................................................................................................11

The First Amendment and Student Speech....................................................................................14

The First Amendment and Student Religion.................................................................................18

The Fourth Amendment and Student Search.................................................................................22

Legal Leadership and Cyberbullying.............................................................................................25

References......................................................................................................................................29

LEGAL REQUIREMENTS FOR CYBERBULLYING iv

List of Figures/Tables

Table Page

1. Spiritual Ethics and Standards.............................................................................................3

2. Constitutional Law...............................................................................................................7

3. Risk Analysis Model..........................................................................................................11

4. Funding Sources.................................................................................................................13

5. United States Supreme Court Tests that Protect and Regulate Student Speech................17

6. United States Supreme Court Tests that Protect and Regulate Student Religious

Expression..........................................................................................................................21

7. United States Supreme Court Tests that Protect and Regulate Student Privacy................25

Running Head: LEGAL REQUIREMENTS FOR CYBERBULLYING 1

Legal Requirements for Cyberbullying

Introduction

I am currently a third-year teacher at Somerset Academy Sky Pointe in Las Vegas,

Nevada. I teach Spanish and Psychology to middle and high school students. I am pursuing a

career in educational leadership so that I can make a positive difference in the lives of the

students around me. As a teacher, I influence the lives of every student who passes through my

room. As an administrator, I influence the lives of every student who passes through my

building. Although I initially decided to pursue educational leadership in order to be an

instructional coach and work directly with teachers, my excitement for other areas of

administration and leadership grew as I learned more about the legal decisions and

considerations administrators, and especially principals, have to make on a daily basis.

Legal leadership is essential as an administrator as it guides nearly every decision

regarding the organization of the school and implementation of policies. School culture plays a

major role as administrators balance stakeholder (students, parents, teachers, etc.) expectations

with legal requirements and restrictions. While school culture can greatly affect the types of

policies put into place, they must all meet the standards set by the State and Federal constitutions

as well as any interpretations of the constitutions according to State and Federal courts. There

will likely be times when administrator decisions according to the law contradict school culture

and are unpopular with stakeholders. However, should a decision go to court, it is the

administrator’s responsibility to ensure that it was made with a solid legal foundation.

In Idaho, a principal’s authority to govern his or her school arises from Idaho Code 33-

512(3)(4) regarding Professional Personnel. This section of Idaho Code outlines how principals

are to be contracted. Local policy, including Board Policy, District Policy, and contractual

LEGAL REQUIREMENTS FOR CYBERBULLYING 2

agreements further define the legal roles and responsibilities of the principal. Beyond this, the

principal plays the central role in shaping school culture and community through the policies

they enact and enforce. According to The Wallace Foundation (2013), the principal is the central

source of leadership and influence. Furthermore, their leadership “is second only to classroom

instruction among school-related factors that affect student learning in school” (p. 5). While the

principal may have legal authority, their power and influence is self-determined. Barnard’s

educational leadership theory argues that there is a difference between authority and power. He

argues that “how authority is communicated and used determines its overall effect” (Joki, 2015).

In order to be effective, principals must exercise both authority and power through their expertise

in leadership.

Idaho administrators are further guided in their leadership role by the Idaho

Administrative Code. Principles must govern their schools within the boundaries set by these

rules. For example, rules governing Uniformity, Thoroughness, and Public Charter Schools are

among those outlined by the Idaho Administrative Code. Rules regarding uniformity ensure that

all public schools throughout Idaho operate under the same requirements for licensure and

employment qualifications. Rules regarding thoroughness are concerned with the types of

programs and opportunities that must be offered to students. Finally, rules regarding Public

Charter Schools outline the legal authority and requirements for the establishment and renewal of

charter schools. Finally, the Idaho Educator Code of Ethics delineates the standards that

administrators must adhere to. School administrators serve the public at large and are entrusted

with the public’s most treasured possession: their children. As such, they must hold themselves

to a stricter standard than is typically present in other professions. The Code of Ethics describe

ten principles for administrative conduct which include professional conduct, educator/student


relationships, alcohol and drugs use or profession, professional integrity, funds and property,

compensation, confidentiality, breach of contract or abandonment of employment, duty to report,

and professionalism. Administrators must abide by these principles at all times or risk losing

their license and career.

Table 1

Spiritual Ethics and StandardsSource Ethic/Standard Application to AdministrationEducation Framework of Principles What I’ve learned through my education

provides a general framework within which I operate as an administrator.

Law Standards The Law sets the standards and boundaries within which administrators operate.

Experience Flexibility Experience teaches practical application and flexibility within the infinitely different circumstances and situations I will find myself in as an administrator.

Religion Charity The Christ-like charity for those around me helps me be patient, loving, and compassionate for those that I work with as an administrator.

Individual Relationships

Collaboration and Inspiration

My relationships with my family, friends, and colleagues inspire me as I continually learn from those around me and depend on them as personal and professional circumstances necessitate.

Constitutional Law

School districts and individual schools function as a sort of mini-community governed by

its own “laws” as set by the Board, District, and Principal. Both State and Constitutional law

shape administrative decisions as they create the policies and regulations that govern student and

staff behavior. Therefore, the principal must have a thorough understanding of constitutional

law in order to ensure that the school policies are built on solid legal foundations and do not

violate students’ rights.


The history of the Declaration of Independence and the United States Constitution

provides important context through which the Constitution can be interpreted and understood.

The history begins with the Declaration of Independence, in which Jefferson outlined the natural

rights that were common to free English men at the time. These included laws that were “settled

points” of law that had long been established for Englishmen. Jefferson also identified

unalienable rights, meaning that no government has the right to take them away. Rather, it is the

responsibility of Governments to protect these rights. These rights include “Life, Liberty, and

the pursuit of Happiness.” Because governments are entrusted to protect these rights, this

responsibility extends to the school level to ensure that these rights are protected for students on

a daily basis.

When drafting the Constitution for the newly formed United States, James Madison

sought to both empower individuals, which he saw as supreme to any state or federal

government, while constructing a government that could govern effectively, something the prior

Articles of Confederation had not been able to do. One key factor in Madison’s form of

government was the notion of diffused power to the executive, legislative, and judicial branches.

This diffused power allowed government to govern itself through checks and balances, thereby

limiting its power and protecting the rights of the people. Due to the limited nature of Madison’s

proposed government system, he saw no need for a Bill of Rights. In fact, he initially felt that a

Bill of Rights would limit the powers of the people, who may be limited to the enumerated rights

and, as a result, be denied other rights that fall to the power of the government. Nevertheless, the

individual states and their citizens demanded a Bill of Rights to protect themselves from the

power of the federal government and Madison ultimately conceded to this demand. After further

consideration, he came to believe that adding a Bill of Rights would instill in individuals the


notion that their rights are existent and would ultimately empower individuals to protect their

own rights. This again reflects Madison’s belief that sovereignty lies in individuals who are

governed, who are superior to the State. In other words, individuals do not depend on a

governmental body to act on their behalf, such as with Parliament, but may act according to their

own will to check the power of government and protect their freedoms. Therefore, the Bill of

Rights was added to the Constitution in order to protect the citizens of the United States from an

over intrusive Federal Government.

The Bill of Rights encompasses the first ten amendments to the United States

Constitution and additional rights have been added in later amendments. Of particular

importance to education are the First, Fourth, Ninth, Tenth, and Section One of the Fourteenth

Amendment. The First Amendment protects citizens’ rights to free speech and expression,

including religious and symbolic expression. The Fourth Amendment protects citizens from

unlawful search and seizure. The Ninth and Tenth Amendments addressed Madison’s concerns

about the Bill of Rights becoming limiting by enumerating the rights of citizens by stating that

citizens do have other rights that may exist and may not be violated even though they are not

listed, and then delegated the remaining powers of government not listed in the Constitution to

the States and the People. Finally, Section One of the Fourteenth Amendment guarantees all

citizens due process and equal protection under the law and prohibits states from passing laws

that violate these rights. This was in direct response to the Civil War, slavery, and

discrimination. Although these amendments were intended for all United States Citizens, they

play a powerful role in the education as administrators govern their schools. As famously stated

in Tinker v. Des Moines (1969), students do not lose their constitutional rights at the schoolhouse

door. Given the purpose of school, student behavior can and should be regulated and therefore


students’ rights are limited, but only if there is a direct connection to ensuring that the school can

successfully complete its mission in educating students.

The Federal Government made another monumental stride forward with the appointment

of Justice John Marshall, the fourth Chief Justice of the Supreme Court of the United States.

Article Three of the Constitution, which created the Supreme Court, was brief and provided

minimal instruction about the powers and purpose of the Supreme Court. However, through his

landmark decisions, Marshall permanently defined the SCOTUS and established its important

role in governing the United States. Two of his major rulings came in Marbury v. Madison

(1803) and Barron v. Baltimore (1833). In the first, Marshall asserted the role of the SCOTUS

as the interpreter of the United States Constitution. Through this ruling, he essentially defined

the role and power of the SCOTUS that was not clearly outlined in the Constitution. The

implications of this decision for administrators include Constitutional interpretation as it applies

to school policies and regulations, particularly when they are litigated. In the second, Marshall

limited the role of the United States Constitution to the Federal government, ruling that states

were free to impose their own laws however they choose. As a result, many state constitutions

include a Bill of Rights that protect their own citizens from laws that may infringe on the rights

of their citizens. While many of these rights mirror those in the Constitution, some rights are

omitted while others are added. For example, Article One of the Idaho Constitution includes a

Declaration of Rights. In addition to many of the rights guaranteed in the Federal Constitution,

this Declaration of Rights include items such as rights of crime victims and rights to hunt, fish

and trap, to name a few. Therefore, administrators have a responsibility to examine their own

state constitutions as well as the federal constitution when determining the policies and

regulations they will institute and enforce in their schools.


Table 2

Constitutional Law


Idaho Constitution, Article IX, Section 1:

Text Key Term My DefinitionLEGISLATURE TO ESTABLISH SYSTEM OF FREE SCHOOLS. The stability of a republican form of government depending mainly upon the intelligence of the people, it shall be the duty of the legislature of Idaho, to establish and maintain a general, uniform and thorough system of public, free common schools.

Thorough Complete and comprehensiveUniform Using the same standards and

structureFree Public and free school that is

operated by the government Duty The rights, responsibility, and power

to create and maintain.General Intended for all students

US Constitution: Bill of Rights and Fourteenth AmendmentText Key Term My DefinitionFIRST AMENDMENT: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

Respecting Dealing withEstablishment Organization or entityProhibiting Interfering with or impedingFree UninhibitedExercise Expression or practice ofAbridging Interfering with or impedingSpeech Expression of an opinion, whether

pure or symbolicPress Organizations or individuals involved

with publishing opinionsRight Ability or freedom granted by lawAssemble Gather and/or organizePetition Request and/or demandRedress Remedy or set rightGrievances Wrongs or complaints

FOURTH AMENDMENT: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Secure Safe from harm and protectedUnreasonable Without compelling interestSearches Inspection or investigationSeizure ConfiscationProbable Cause Compelling interest of the

government based upon applicable circumstances, including individualized suspicion of the person based on evidence presented

NINTH AMENDMENT: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage

Enumeration Listing ofConstrued InterpretedRetained Kept and protected byPeople States and individual citizens


others retained by the people.FOURTEENTH AMENDMENT, SECTION ONE: All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Naturalized Citizen obtainedReside Permanent established location where

a citizen livesAbridge Interfere with or limitCitizen A legal subject to the state or countryDue process Fair treatment by the law when

determining whether the right(s) of an individual shall be limited

Equal protection All citizens must receive equal and fair treatment and preference by the law

Preventive and Tort Law

In education, principals must be engaged in planning ahead and anticipating issues that

may arise so that they can prevent situations which might result in litigation. This is the essence

of preventive law and it should be utilized on daily basis as principals make organizational

decisions that affect all stakeholders in their school. According to Hachia et al. (2014), the four

elements of preventive law include the foreseeability or “anticipation of legal challenges”, the

“evaluation of legal merits of potential challenges”, “a consideration of the policies (in effect or

proposed) affected by potential challenges” and the “implementation or modification, where

appropriate, in response to the first three steps” (p. 9). The benefits of effective application of

preventive law include limited culpability and exposure; reduced liability; reduced

environmental, organizational, and budget loss; and enhanced management and monitoring.

Application must be flexible and open to differing ideas, but this flexibility must also be

balanced with attention to overall system stability. Thus, preventive law is a key component in

educational leadership (Hachiya, 2014).


When exercising preventive law, principles should first apply the risk formula suggested

by Hachiya et al. (2014): likelihood of an event times the exposure or frequency of the

opportunity times the potential consequences equals the potential risk. Utilizing this formula

helps principals to recognize the potential risk of a situation and make administrative decisions

for when and how to address the issue. This formula can also help principals prioritize how to

address the plethora of issues that they must manage every day. Although a downside of this

formula is that it is very subjective, it gives principals at least a basic method of assessing their

risk and can be a shortcut to making decisions to address these situations according to their

foreseeability, the first step in applying preventive law to their administrative duties.

Once administrators have evaluated their risks, they may proceed to the second and third

steps of evaluating the legal merits of situations and examination of policies. A useful acronym

for these steps is PRICE, which stands for Policy, Rule or Regulations, Idaho Code or Important

Cases, and finally Evidence. Each of these must be taken into account before proceeding to the

final step, which is to act on the information gathered during the first three steps. While policies,

rules, regulations, and evidence vary according to the individual districts, schools, and situations

being addressed, state and federal courts have provided a number of rulings to help guide

administrators when making their decisions. These cases are based tort law, where

administrators may not have been breaking any state or federal laws, but their perceived

negligence in their duties resulted in harm to stakeholders. In order to be held liable, there must

first be a standard of duty (what is the administrator responsible for?), a breach of that duty (how

did the administrator fail to perform his or her duty?) and damage (what damage occurred due to

the breach of duty?). Most educational tort law cases involved a breach of the administrator’s

duty to supervise the school at large, including activities, employees, behavior, facilities, etc.


Important cases regarding Idaho Tort Law include Czlaplicki v. Gooding (1989), where the the

principal allegedly failed to call paramedics or provide adequate first aid, resulting in the death

of a student. The Idaho Supreme Court ruled that the principal’s omissions and actions were

operational and therefore he was liable if his actions were not performed with ordinary care. In

another case, Bauer v. Minidoka (1989), a student sued the school for an injury resulting from

tripping on pipes on school grounds before school. In this case, the Idaho Supreme Court agreed

with the student, citing that the school breached its duty to supervise students and failed to take

precautions to protect them. On the other hand, in Saunders v. Kuna (1994), a student broke his

ankle during a class softball game and sued the district and physical education teacher. In this

case, the Idaho Supreme Court ruled that the school was not negligent in the instruction and

supervision. Finally, in Mickelson v. Smith (1995), a student was injured in a fight with other

students and sued school officials. The Idaho Supreme Court ruled that the school officials were

immune from liability under the statute which protects governmental entities and employees

from liability regarding injuries by a person who is “under the supervision, custody, or care of a

governmental entity.” This statute protects school employees from “simple negligence” in the

course of performing their duties, but may not protect them from “gross negligence” or negligent

acts that are not part of an employee’s scope of duty.

Table 3


School Finance and the Principal

During my field research interviews, I had the opportunity to interview an elementary

school principal, a middle/high school principal, and the middle/high school accountant.

Because we are all part of the same system, Somerset Academy Charter School, the sources of

income were the same. We get a per-pupil dollar amount just like the regular districts with the

same restrictions as the district receives. This per-pupil amount is used to create the main budget

and is regulated by state law. In addition to the per-pupil funds, both the elementary and

secondary (middle/high school) receive student-generated funds on top of the per-pupil funds.

These have fewer restrictions, but must be thoroughly documented as these funds are collected

from students for specific activities and budgets. For instance, these might include fees for


participation in school sports, field trips, fund raisers, etc. Finally, the middle school had two

additional funds including the PTO and a grant they had successfully applied for. The PTO

funds are collected and managed by the PTO board, while the grant money must be used

specifically for the purposes outlined by the grant application and restrictions. In every case

except for the PTO fees, expenditures must be approved by the principal. Although this

responsibility could be delegated, the Middle/High principal explained that there are only two

things that can get you fired: Money and Morals. Thus, all three people interviewed recommend

keeping a very close watch on the budget and any money coming in or out of the school funds.

There were a few differences between the interviews that I found very interesting. For

instance, the elementary and middle/high principals had very different priorities when it came to

budgeting concerns. While the elementary principal communicated regularly with the PTO and

funds were more geared toward in-class resources and elementary school activities and events,

the middle/high school principal was concerned about the variety of activities, organizations, and

fundraisers that are typical in secondary school. Moreover, the accountant had a background in

running non-educational businesses and so her responses reflected a much more technical

experience with managing the money and she expressed different ideas about how the money

was gained and spent between the typical business world and the educational world.

Funding for schools depends on Average Daily Attendance (ADA), which is calculated

every week. Because funding is tied to attendance, a major part of a principal’s duty is to ensure

that students attend school regularly. If attendance falls below the district’s ADA target, the

principal must consider what is causing a drop in ADA and what they are doing to increase ADA

at their school. Drops in ADA must be reported and explained, especially in cases where the

cause is due to circumstances out of the principal’s control, such as a flu outbreak. Although my


school is in Nevada, similar procedures are in place for per-pupil school funding. As a charter

school, we have to complete “count days” where students sign to prove their in-school

attendance on certain days of the year, and teachers must regularly sign paperwork that verifies

their student attendance records. Although the banker felt that the funds received from the state

were exorbitant, the principal expressed that it is never enough to cover all the needs of the

school. Unlike districts, however, we cannot pass levies and must collect money directly from

students to support our other activities. Thus, it is even more critical to increase our ADA. Our

school culture plays a major role in student attendance, however, and being a charter school has

major advantages. Our parents are typically highly invested in students’ education and therefore

students rarely miss school. Because we do not have a bus system, parents are directly

responsible for getting their children to school whether their students walk or bike to school, they

have an arranged carpool, or they drive students to school themselves. However, parents often

take for granted teacher attentiveness and accommodations for students and sometimes plan

vacations during the school year knowing that teachers will accommodate their students.

However, parents seem to be learning that missing school still puts their students at a

disadvantage.

Table 4

Title of Fund

Revenue Source

Where does the money come from—Is it a

Fee basedFund raiserGate receipt

Restrictions

What are the restrictions on this Fund?

Can revenue be transferred to another Fund?

How is it

Expenditure Approvals

What position has authority to spend the money?

How is it controlled?

District Policy

What are the titles of District Policy or rules governing the Fund and its uses?

Leadership Tips

What ‘Tips’ do you have

for me regarding this Fund

that will help me become a

successful


District allocationState grantFederal grantFoundation grantOther

audited? Handbooks?Manual?

principal?

State Per-Pupil Money

State (taxes) - approx

$6500 per student

used to create the budget line-

items

Principal NRS 391 (State law)

Look at the budget often.

Student generated

Students and parents

Cannot be used for food; must go through a process for

documentation and approval

Principal approval

PTO PTO Activities

board approval board

Read by 3 Grant Must be used to achieve goals of the “Read by 3”

program

Principal

The First Amendment and Student Speech

The First Amendment has important implications for student speech. The courts have clarified

the manner in which student speech must both be protected and regulated in the school

environment. The first landmark case involving student speech was Tinker v. Des Moines

School District (1969). In this case, sibling students wore black armbands to protest the war in

Vietnam. In anticipation of this behavior, principals instituted a policy that would prohibit

students from wearing the armbands and students who violated this policy would be suspended.

Nevertheless, the students wore the armbands to school and were subsequently suspended. With

the help of ACLU, the family of the students sued the school district and the case ultimately went

to the SCOTUS. The final decision ruled that student speech must be protected as long as their


conduct does not “materially and substantially interfere with the requirements of appropriate

discipline in the operation of the school.” Mere discomfort does not justify regulating student

speech. Thus, student speech that does not interfere with the educational goals of the school

must be protected. Now, the Tinker Standard is used to determine whether disciplinary actions

by a school violated students’ first amendment rights to protected speech.

The next landmark case was Burch v. Barker (1988). In this case, students independently

produced a mock newspaper on their own time and at their own expense that was generally

critical of school policies and faculty members but did not contain profane or obscene materials.

They then distributed the materials at a school barbeque and a parent placed copies in the

teachers’ mailboxes. In response, the principal censured the students for failing to follow the

school board predistribution review policy. When the principal’s actions were litigated, the 9th

Circuit ruled that student speech in non-school sponsored publications can be partially regulated

with respect to time, place, manner, and age-appropriate standards. However, students’ rights to

express their opinions and distribute publications within these boundaries must be protected.

The principle of protected speech in publications that are not school-sponsored is now known as

the Burch Standard.

While the Tinker and Burch standards protect student speech, the SCOTUS decision in

Bethel v. Fraser (1986) asserted the school’s authority to regulate profane speech. In this case, a

student made a nomination speech for a student election that included lewd and obscene

references, even after faculty members warned him not to make the speech as prepared. When

the student was disciplined and subsequently sued the school, the case again arrived in the

Supreme Court. There, the SCOTUS ruled that schools can completely censure a student if the

language is “vulgar, obscene, profane, lewd, or age inappropriate.” The principle of censuring


student speech for profanity is known as the Fraser Standard. For administrators, The Fraser

Standard means that schools should have clear rules regarding student speeches, the speeches

should be reviewed prior to the events, and there should be a plan in place for stopping the

speech if it becomes inappropriate.

In Hazelwood v. Kuhlmeier (1988), the SCOTUS examined censorship of speech in

school-sponsored materials. In this case, students responsible for writing and editing the school

newspaper included two stories that the principal determined were inappropriate and could not

be published for various reasons. These included journalistic fairness, inappropriate content for

younger students, and concerns about anonymity. The articles were removed, but the students

sued citing violations of their First Amendment rights. The SCOTUS ruled that their rights had

not been violated. Because the newspaper was a school-sponsored publication, the school had a

legitimate interest in approving and censuring and/or preventing the publication of articles that

are deemed inappropriate or harmful to the school and its purpose. Moreover, because the paper

was not a public forum but rather a limited one in which journalism students published articles in

order to meet the requirements of their class, the school had the authority to edit the articles and

paper. In addition to being able to regulate the type of speech addressed by Fraser, this ruling

expanded the principal’s authority to regulate publications to those that are “ungrammatical,

poorly written, inadequately researched, biased or prejudiced, vulgar or profane, or unsuitable for

immature audiences.” The principle of schools having the authority to edit school-sponsored

publications is now known as the Hazelwood Standard. For administrators, this means that they

should be directly responsible for any prior review of publications, as opposed to the publication

advisor, as special care must be taken in approving and censuring materials according to

students’ First-Amendment rights.


Finally, in Morse v. Frederick (2007), the SCOTUS reviewed the extent of school

authority beyond the school grounds. In this case, students were released from their typical

school day to stand on the road near the school for the passing of the Olympic torch. In addition

to having the student body and faculty members of the school present at this event, there were

many television cameras broadcasting it to the world. As the cameras passed, a group of

students hoisted a banner that read “Bong Hits for Jesus”. The principal of the school crossed

the street and made the students lower the banner. When the principal disciplined the student

primarily responsible for the incident, the student sued. Again, the case landed in the Supreme

Court. The SCOTUS ruled that, although the event took place off of school grounds and during

a time that students were not technically in school, the administration had a legitimate concern

about damage to the school’s reputation as a result of the students’ actions. In particular, the

Court ruled that drug-related speech is not protected speech and can therefore be regulated if it

occurs school-sponsored event, even if it occurs off of school property or outside of typical

instructional hours. The responsibility of principals to regulate drug-related student speech is

known as the Morse Standard.

Table 5

United States Supreme Court Tests that Protect and Regulate Student Speech

Student Speech Protected

Case Implications for Principals

Tinker v. Des Moines School District (1969)

Students do not shed rights at the schoolhouse door. Students’ speech that does not create a substantial material disturbance is protected. Mere discomfort is not enough to regulate speech.

Burch v. Barker (1988) Student speech must be protected in non-school-sponsored publications. However, the school may regulate materials with respect to time, place, manner, and age-appropriate standards


Student Speech Regulated


Burch v. Barker (1988) Student speech must be protected in non-school-sponsored publications. However, the school may regulate materials with respect to time, place, manner, and age-appropriate standards

Bethel v. Fraser (1986) Schools may censor speech that is “vulgar, obscene, profane, lewd, or age inappropriate.”

Hazelwood v. Kuhlmeier (1988)

Schools may regulate school-sponsored publications deemed inappropriate or harmful to the school and its purpose

Morse v. Frederick (2007)

Schools may regulate drug-related speech and extend authority to any school-sponsored activities, regardless of time or place

The First Amendment and Student Religion

The First Amendment also has important implications for students’ religious expression.

Again, a number of landmark rulings help guide administrators when deciding to protect or

regulate this type of expression. As with Freedom of Speech as protected by the First

Amendment, there have been a number of cases that clarify students’ rights to freedom of

religious expression in schools.

The first two in a number of cases involving religious expression and coercion by the

school involve saluting the United States flag. In the first case, Minersville School District v.

Gobitis (1940), a third-grade Jehovah's Witness was expelled for refusing to salute the Flag.

When the case reached the Supreme Court, it ruled that student compelled to salute the flag, even

if the student had religious objections. This decision was likely influenced by the fervor of the

ongoing World War II. However, it was overturned just three years later in West Virginia State

Board of Education v. Barnette (1943), when the SCOTUS ruled that not only did states not have

the power to compel Jehovah's Witnesses to salute the Flag, but they could not compel students


speech for anyone in that manner. Interestingly, this decision relied mostly on the Free Speech

clause rather than the Free Exercise clause of the First Amendment.

The separation of church and state extends to public schools as a representation of

government and funded by taxpayer dollars. Thus, schools cannot appear to endorse nor coerce

students into any sort of religious expression, nor can it prevent them from practicing their

religion. For instance, in Kitzmiller v. Dover Area School District (2005), the Courts ruled that a

curricular mandate to teach intelligent design as an alternative to evolutionary theory was

unconstitutional as it would appear to endorse this religious belief, give it special treatment, and

coerce students to listen to its teaching. Over time, the Lemon Standard, established in Lemon v.

Kurtzman (1971), became the three-pronged test widely used to determine whether legislative or

administrative actions violate the Establishment Clause. This test asks whether the actions

resulted in excessive entanglement with religious affairs, whether they advanced or inhibited

religious practices, or had a secular purpose. In the Lemon case, which challenged states’

appropriate of public funds for religious instruction, the legislative actions failed to pass the

Lemon Test and the policy was declared unconstitutional.

However, the validity of this three-pronged test has been repeatedly debated amongst

Supreme Court justices. Although it still remains a standard that justices can use to decide cases,

it has not been evenly applied and may be discarded completely in the future. The desire to

revise the Lemon tests first emerged in Lee v. Weisman (1992). It was the first major case

regarding school prayer and involved a principal who followed board policy and invited a Rabbi

to offer a prayer during the middle school graduation. The Court ruled that such a policy was

unconstitutional and that schools may not have clerics conduct prayers at school events, even if

the prayer is non-denominational. Known as the Weisman Standard, schools must avoid


situations in which students may feel coerced to listen to or participate in a religious message.

The decision in Santa Fe v. Doe (2000) expanded upon this standard, where the SCOTUS ruled

that even student-written prayers violate the first amendment if delivered in a manner which

coerces others to listen to and/or participate in the prayer, known as the Santa Fe Standard.

Ultimately, students who wish to practice, or not practice, religious beliefs must be protected.

Students in a school setting can often be considered a captive audience, or an audience that

cannot simply choose not to hear or participate in a religious message, and this cannot be

exploited with the intent of spreading a religious message. What constitutes a captive audience

has further been defined in cases regarding the Ten Commandments. For instance, in McCreary

v. Kentucky (2005), the SCOTUS ruled that displaying the Ten Commandments in a county court

hallway setting where citizens had to walk past them violated the Establishment Clause due to

clear endorsement of the religious text and coerced citizens to view the Commandments.

However, in Van Orden v. Perry (2005), the SCOTUS ruled that displaying the Ten

Commandments in a public state park where citizens came upon them and other monuments

connected to state history by walking through the park was too vague of a setting to suggest

endorsement of any religion and did not coerce citizens to read the commandments. Thus, the

setting and level of coercion must be taken into account when administrators are making

decisions regarding religious expression. Should a particular policy be unconstitutional,

principals must follow the policy but address potential legal issues with the district

administration and/or school board.

Most recently, The Town of Greece Standard comes out of the SCOTUS ruling in Town

of Greece v. Galloway (2014). While this case did not deal directly with schools, the reasoning

may have future implications for how the SCOTUS interprets freedom of religious expression.


In this case, a pastor delivered an invocation at a town meeting, which plaintiffs argued coerced

the audience to participate in a religious celebration and endorsed a religion. However, the

SCOTUS ruled that the prayer itself was not coercive and that there was no apparent

endorsement. As a result, the previous Lemon Standard may be replaced in the future by what

may be called the Town of Greece Standard and students and schools may be allowed additional

freedom of religious expression as long as there is no coercion nor endorsement of any particular

religion.

Table 6

United States Supreme Court Tests that Protect and Regulate Student Religious Expression

Student Religious Expression Protected


West Virginia State Board of Education v. Barnette (1943)

Schools cannot compel students into any kind of speech.

Kitzmiller v. Dover Area School District (2005)

Schools cannot teach religious beliefs such as intelligent design.

Lemon v. Kurtzman (1971) Schools cannot appropriate public funds for sectarian instruction.

Lee v. Weisman (1992) Schools cannot offer a prayer by a member of the clergy.

Van Orden v. Perry (2005) Religious expression with vague connection to the government (and schools) and does not coerce others is protected.

Town of Greece v. Galloway (2014)

Religious expression that is non-coercive and do not have any apparent endorsement is protected.

Student Religious Expression Regulated


Minersville School District v. Gobitis (1940)

All students, including those with religious objections, must participate in the flag salute (overturned by Barnette).


Santa Fe v. Doe (2000) and McCreary v. Kentucky (2005)

Student religious expression must not coerce a captive audience into listening or participating

The Fourth Amendment and Student Search

The Fourth Amendment was established in the Bill of Rights to prevent unreasonable

search and seizure. Because searches are an extreme violation of privacy, they must be handled

with great care in the school environment. However, administration does not have to meet the

standards for search and seizure set for law enforcement. Rather, they must use the standards set

forth in New Jersey v. TLO (1985). In this case, a student was caught smoking and her purse was

searched, which turned up illegal items and the student was charged as a juvenile. The student

appealed the course up to the SCOTUS, which found that the search was constitutional as

administrators have a responsibility to ensure student safety and discourage drug use, so students

under in the custody of the school have a lesser expectation for privacy than the general

population. However, the Court establish guidelines for determining when a search is

appropriate. Easily remembered with the acronym IRS, searches must be Individualized and

based on Reasonable Suspicion. In other words, schools must have a reasonable level of

suspicion about an individual student in order to search them. When determining whether or not

to perform a search, administrators must therefore balance student privacy with a responsibility

to protect students from harm. If a search is necessary, they must follow strict protocols which

should be established at the district level and employ the IRS standard.

While the TLO standard asserted that suspicion must be individualized, the Vernonia

Standard and the Earls Standard expanded schools’ authority to “search” students by means of a

drug test if they participate in athletics or other extracurricular sports, and that these searches do

not have to be individualized or based on reasonable suspicion. Acton v. Vernonia (1995)


determined that concerns about increased likelihood of student injuries as a result of drug use

were of a legitimate and compelling interest of schools, and both this case and Board of

Education v. Earls (2002) declared that schools in general have a legitimate interest and

responsibility to help deter students from drug use. Thus, search via urinalysis is constitutional

in the context of extracurricular activities. Again, administrators must make the decision to

search by taking into account student privacy and safety as well as district policy, while

employing their legal leadership to ensure that the search is justified, fair, and professional.

While the above rulings addressed search of a student’s possessions, none of them

advised schools on what requirements would need to be met regarding the search of a student’s

person. Rather, this was established by the Safford Standard as decided in Safford Unified v.

Redding (2009). In this case, a thirteen-year-old female student was accused by another student

of having the prescription painkiller pills ibuprofen. The principal escorted the accused student

to the nurse’s office, where she was instructed to take off her pants and shirt, and the items of

clothing were then searched for evidence of the pills. None was found. This event was

traumatizing for the student who could not return to the school. When she sued the school, the

controversial case reached the SCOTUS. The court held that the search violated the student’s

Fourth Amendment rights as the level of intrusion was not reasonable given the circumstances.

However, because no ruling had previously clarified this standard, the school officials were not

held liable. This ruling cautions current administrators to ensure that any searches of a student’s

person requires a compelling enough interest to match the level of intrusiveness. For instance,

because the possession of the pills did not pose any immediate threat to the safety of the students,

a strip search was far too intrusive in the Safford case. However, administrators may use a strip

search in more compelling cases, such as those in which immediate harm can be anticipated,


such as would be the case of a student accused of carrying a weapon. Again, the bottom line for

administrators is that student privacy and safety must both be protected. Due to the controversial

and problematic nature of a strip search, one must only be undertaken in the most extreme

circumstances and principals should obtain permission from the superintendent’s office before

performing one.

The recent and prolific possession of cellphones, and particularly smart phones, into the general

student body raises additional questions regarding student searches. Although there are not

currently any school-related rulings on the matter, Riley v. California (2014) does provide some

insight into how the SCOTUS views cellphone searches. In this criminal case, the police

arrested a man who was also suspected of gang activity. They discovered his cell phone when

performing a routine inventory of the car before impounding it and searched the contents of the

phone. The contents of the phone were then used as evidence during the trial. However, upon

appeal, the SCOTUS ruled that the phone search was unconstitutional as the police did not obtain

a warrant prior to searching the phone. Their reasoning viewed the phone as a minicomputer

with vast amounts of personal data, both related and unrelated to the crime, and that any search

of the phone was extremely intrusive. Moreover, the digital information, which included “cloud”

data not even on the suspect’s person, did not pose an immediate threat to police, and therefore

they lacked a compelling enough interest when deciding to search the phone. This ruling

cautions administrators when searching a phone as it is extremely intrusive and requires a

compelling enough interest to do so, such as in an emergency situation. Thus, cell phone

searches must have a special safety interest to search a cell phone and administrators should

receive superintendent approval before doing so.

Table 7


United States Supreme Court ‘Tests’ that Protect and Regulate Student PrivacyStudent Privacy ProtectedCase Implications for PrincipalsSafford Unified v. Redding (2009) Strip searches must be limited to only extreme cases and

when the school has immediate compelling interests.Riley v. California (2014) Cell phone searches are extremely invasive, so there must

be an immediate and compelling interest to search a phone.

Student Privacy RegulatedCase Implications for PrincipalsNew Jersey v. TLO (1985) School administrators may search students when they

have Individualized Reasonable Suspicion.Acton v. Vernonia (1995) Schools may require students who participate in athletic

activities to undergo urinalysisBoard of Education v. Earls (2002)

Schools may require students who participate in extracurricular activities to undergo urinalysis

Legal Leadership and Cyberbullying

New technologies have led to new and complicated challenges for school administrators.

Although bullying has been at the forefront of educational issues for a number of years, the

presence of personal electronic devices and the related capabilities extend bullying issues beyond

the physical school property. It is often impossible for faculty to witness the actual bullying

taking place, although there are very real consequences in the classroom and the overall

educational environment. Victims of cyberbullying silently suffer as they negotiate a hostile

environment created by those around them, but usually invisible to anyone who is not involved

in creating that environment. Anonymity online further compounds the issue as administration,

and even the victim, may have no idea who is doing the bullying and no means for discovering

the perpetrator.

Currently, there are no federal laws that apply to bullying. However, if the bullying can

be considered discriminatory harassment, it is covered by federal civil rights laws. These include

Titles IV and VI of the Civil Rights Act of 1964, Title IX of the Education Amendments of 1972,


Section 504 of the Rehabilitation Act of 1973, Titles II and III of ADA, and IDEA. Although

these civil rights laws do not specifically protect LGBT youth, discrimination based on sexual

orientation may also be categorized as discrimination based on sex. Whether the behavior is

called bullying, hazing, teasing, etc., schools are legally obligated to address behaviors that are

severe, pervasive, or persistent; create a hostile environment at school; are directed toward

protected groups such as those of a particular race, color, national origin, sex, disability, or

religion. Anyone can report harassment to the school officials, at which point they must take

immediate action to investigate and end the harassment. This involves multiple steps such as

prompt, thorough, and impartial inquiry; interviewing involved students and witnesses;

maintaining documentation; checking in with victims to ensure harassment has ended;

preventing future harassment; and preventing retaliation.

In May of 2015, the Governor of the State of Nevada signed into law the anti-bullying

statute SB504, which specifically addresses bullying of all kinds, including cyberbullying. It

defines bullying as “a written, verbal or electronic expressions or physical acts or gestures, or

any combination thereof, that are directed at a person or a group of persons, or a single severe

and willful act or expression that is directed at a person or group of persons.” Furthermore, this

behavior must have the effect of actually physically harming a person or their property or placing

a person in fear of such effect, interfering with the rights of a person by creating a hostile

learning environment or substantially interfering with the academic performance of an individual

or their ability to participate in or benefit from school opportunities, or are based on

characteristics of protected groups or “any other distinguishing characteristics or background of a

person.” The definition then goes on to list specific behaviors that are considered bullying,

although it notes that this does not limit bullying behaviors to those listed. Because this


definition of bullying includes “electronic expression”, cyberbullying is treated as equal to any

other form of bullying. In fact, a search of SB504 reveals that neither bullying nor cyberbullying

are ever mentioned in isolation. Rather, any mentioning of the word “bullying” is followed by

“and cyber-bullying” or “or cyber-bullying”. By law, school personnel must report, investigate,

and address bullying issues, and schools must submit an annual report of bullying incidents.

Moreover, schools must take an active role in educating and empowering students in an effort to

prevent and stop bullying, including instituting a “Week of Respect” and distributing information

about bullying behaviors and how to stop or prevent them.

While the Nevada law does take a firm stance on bullying and cyberbullying, this could

become problematic when determining whether the school has the authority to discipline

students in instances of cyberbullying, especially when they occur off campus and outside of

school hours. In many cases, schools that have tried to get involved in cyberbullying are often

successfully sued for exceeding their authority. For instance, StopCyberBullying.org (2014)

recommends that schools add a provision to their acceptable use policy which reserves the right

to discipline students for actions taken off campus that adversely affect the student safety and

well-being while at school. However, because it would not violate the Fourteenth Amendment

restricting states’ authority to pass discriminatory laws, SB504 appears to extend school’s

authority regarding bullying beyond the actual school property as long as the behaviors meet the

definitions of bullying as written. This is a huge stride forward in addressing bullying and

cyberbullying in schools. It also has important implications for district and school bullying

policies, which are also required by SB504, as employees of the school are not only required to

report and address bullying issues but may, in fact, be held liable if they fail to do so. School

policies must train employees and establish procedures which instruct school personnel on what


constitutes bullying and how to address it. Failure to do so could hold serious consequences in

the future and it will be interesting to see how Nevada districts and schools respond to SB504.

In our school, we are currently working to create an anti-bullying committee called “Step Up”,

which consists of both staff and student representatives, including myself. We will be meeting

the state mandate by actively working to educate students and create a safe learning environment

for students, free of bullying in any form. This will involve addressing bullying on an

administrative and policy level, including revisiting current acceptable use policy for electronics,

as well as getting involved with the students themselves and creating a dialogue of respect.


References

Barron v. Baltimore, 32 U.S. (7 Pet.) 243 (1833)

Bauer v. Minidoka School Dist., 331, 778 P.2d 336, 116 Idaho 586 (1989)

Bethel School District v. Fraser, 478 U.S. 675 (1986)

Board of Education v. Earls, 536 U.S. 822 (2002)

Burch v. Barker, 861 F. 2d 1149 (1988)

Czaplicki v. Gooding Joint School Dist., 116 Idaho 326, 775 P.2d 640 (1989)

Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260 (1988)

Kitzmiller v. Dover Area School Dist., 400 F.Supp.2d 707 (2005)

Lee v. Weisman, 505 U.S. 577 (1992)

Lemon v. Kurtzman, 403 U.S. 602 (1971)

Marbury v. Madison, 5 U.S. 137 (1803)

McCreary County v. ACLU of Kentucky, 545 U.S. 844 (2005)

Mickelson v. Smith, 127 Idaho 401, 901 P.2d 508 (1995)

Minersville School District v. Gobitis, 310 U.S. 586 (1940)

Morse v. Frederick, 551 U.S. 393 (2007)

New Jersey v. TLO, 469 US 325 (1985)

Riley v. California, 573 U.S. (2014)

Safford Unified School District v. Redding, 557 U.S. 364 (2009)

Santa Fe Independent School Dist. v. Doe, 530 U.S. 290 (2000)

Saunders V. Kuna Joint School District, 125 Idaho 872, 876 P.2d 154 (1994).

STOP cyberbullying: What is the school’s role in this? (2014). Retrived October 22, 2015, from

http://www.stopcyberbullying.org/prevention/schools_role.html

https://www.google.com/url?url=http://scholar.google.com/scholar_case%3Fcase%3D4170966027434691269%26hl%3Den%26as_sdt%3D6%26as_vis%3D1%26oi%3Dscholarr&rct=j&q=&esrc=s&sa=X&ved=0CB0QgAMoADAAahUKEwjnjeDl8dTIAhUG6mMKHZ0YBhI&usg=AFQjCNE9FZXWnjwsik20AXXHUny_NKTZkA

https://www.google.com/url?url=http://scholar.google.com/scholar_case%3Fcase%3D16053138072540097830%26hl%3Den%26as_sdt%3D6%26as_vis%3D1%26oi%3Dscholarr&rct=j&q=&esrc=s&sa=X&ved=0CB0QgAMoADAAahUKEwiFiKLG79TIAhUON4gKHfrTCzE&usg=AFQjCNGK6oISYRKvamHDtI2EsYI8m34Jzg

https://en.wikipedia.org/wiki/United_States_Reports


The Wallace Foundation. (2013). The school principal as a leader: Guiding schools to better

teaching and learning. New York, NY: The Wallace Foundation.

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

Town of Greece v. Galloway, 572 U.S. (2014)

Van Orden v. Perry, 545 U.S. 677 (2005)

Vernonia School District 47J v. Acton, 515 U.S. 646 (1995)

West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943)

https://supreme.justia.com/cases/federal/us/393/503/

https://en.wikipedia.org/wiki/United_States_Reports

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