Amicus Curiae Brief — Mahanoy Area School District, Petitioner v. B. L., a Minor, By and Through Her Father, Lawrence Levy and Her Mother, Betty Lou Levy

Supreme Court briefFeb 24, 2021

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Text

No. 20-255

IN THE

Supreme Court of the United States

————

MAHANOY AREA SCHOOL DISTRICT,

Petitioner,

B.L., A MINOR, BY AND THROUGH HER FATHER

LAWRENCE LEVY AND HER MOTHER BETTY LOU LEVY,

Respondents.

————

On Writ of Certiorari to the

United States Court of Appeals

for the Third Circuit

————

BRIEF FOR AMICI CURIAE CYBERBULLYING

RESEARCH CENTER, COMMITTEE FOR

CHILDREN, COUNCIL OF ADMINISTRATORS

OF SPECIAL EDUCATION, GARDEN STATE

EQUALITY, THE BULLY PROJECT, TYLER

CLEMENTI FOUNDATION, STOMP OUT

BULLYING, ONE CIRCLE FOUNDATION AND

SEL4NJ IN SUPPORT OF PETITIONER

————

DAVID BERYL RUBIN

Counsel of Record

THE BUSCH LAW GROUP

450 Main Street

Metuchen, NJ 08840

(732) 767-0440

drubin@buschlawgroup.com

Counsel for Amici Curiae

February 24, 2021

WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D. C. 20002

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ................................

INTEREST OF AMICI CURIAE ........................

INTRODUCTION AND

SUMMARY OF ARGUMENT .........................

ARGUMENT ........................................................

I. BULLYING IS A SERIOUS AND

PERVASIVE PROBLEM IN SCHOOLS

ACROSS THE NATION ...........................

II. SCHOOL DISTRICTS MUST BE FREE

TO REGULATE BULLYING THAT

OCCURS OFF SCHOOL GROUNDS

WHEN IT AFFECTS STUDENTS’

SCHOOL EXPERIENCE OR DISRUPTS

THE LEARNING ENVIRONMENT ........

III. THIS COURT SHOULD HOLD THAT

TINKER PERMITS SCHOOLS TO

ADDRESS OFF-CAMPUS HARASSMENT ........................................................

CONCLUSION ....................................................

(i)

TABLE OF AUTHORITIES

CASES

Page(s)

A.S. by and through Schaefer v.

Lincoln County R-III Sch. Dist.,

429 F. Supp.3d 659 (E.D. Mo. 2019) ........

8-9

B.L. v. Mahanoy Area Sch. Dist.,

964 F.3d 170 (3d Cir. 2020) ...................... 16, 17

Bell v. Itawamba Cnty. Sch. Bd.,

799 F.3d 379 (5th Cir. 2015) .....................

Bethel School Dist. No. 403 v. Fraser,

478 U.S. 675, 106 S. Ct. 3159,

92 L.Ed.2d 549 (1986) ...............................

Cox v. Warwick Valley Cent. Sch. Dist.,

654 F.3d 267 (2d Cir. 2011) ......................

Cuff ex rel. B.C. v. Valley Cent. Sch. Dist.,

677 F.3d 109 (2d Cir. 2012) ......................

D.J.M. ex rel. D.M. v. Hannibal Pub.

Sch. Dist. No. 60,

647 F.3d 754 (8th Cir. 2011) .....................

Davis v. Monroe County Bd. of Educ.,

526 U.S. 629, 119 S. Ct. 1661,

143 L.Ed.2d 839 (1999) .............................

Estate of Olsen v. Fairfield City Sch.

Dist. Bd. of Educ.,

341 F. Supp.3d 793 (S.D. Ohio 2018) .......

Grossman v. Rockaway Twp.,

No. MRS-L-1173-18

(N.J. Superior Ct.).....................................

iii

TABLE OF AUTHORITIES—Continued

Page(s)

Kowalski v. Berkeley Cty. Schs.,

652 F.3d 565 (4th Cir. 2011) ....................passim

L.W. ex rel. L.G. v. Toms River Regional

Schools Bd. of Educ.,

189 N.J. 381, 915 A.2d 535 (2007) ........... 15, 19

Layshock ex rel. Layshock v.

Hermitage Sch. Dist.,

650 F.3d 205 (3d Cir. 2011) ......................

Morse v. Frederick,

551 U.S. 393, 127 S. Ct. 2618,

168 L.Ed.2d 290 (2009) ............................. 18, 22

Norris v. Cape Elizabeth Sch. Dist.,

969 F.3d 12 (1st Cir. 2020) ....................... 20, 21

Palosz v. Town of Greenwich,

184 Conn. App. 201, 194 A.3d 885

(Conn. App. 2018) .....................................

S.J.W. ex rel. Wilson v. Lee’s Summit

R-7 Sch. Dist.,

696 F.3d 771 (8th Cir. 2012) .....................

Saxe v. State College Area Sch. Dist.,

240 F.3d 200 (3d Cir. 2001) ...................... 21, 22

Shively v. Green Local Sch. Dist.

Bd. of Educ.,

579 F. Appx. 348 (6th Cir. 2014) ..............

Shore Regional High School Bd. of Educ.

v. P.S. ex rel. p.S.,

381 F.3d 194 (3d Cir. 2004) ......................

TABLE OF AUTHORITIES—Continued

Page(s)

Sypniewski v. Warren Hills Reg’l

Bd. of Educ.,

307 F.3d 243 (3d Cir. 2002) ......................

T.K. v. New York City Dept. of Educ.,

779 F.Supp.2d 289 (E.D.N.Y. 2011) ..... 4, 15, 19

Tinker v. Des Moines Independent

Community School District,

393 U.S. 503 (1969) ....................... 11, 18, 20, 21

Vernonia School Dist. 47J v. Acton,

515 U.S. 646, 115 S. Ct. 2386,

132 L.Ed.2d 564 (1995) .............................

Wisniewski ex rel. Wisniewski v.

Board of Education,

494 F.3d 34 (2d Cir. 2007) ........................

Zamecnik v. Indian Prairie Sch. Dist. No.

204, 636 F.3d 874 (7th Cir. 2011) .............

CONSTITUTION

U.S. Const. amend. I ........................ 12, 18, 21, 22

STATUTES

Ala. Code § 16-28B-3 ....................................

Alaska Stat. § 14.33.200(a) ..........................

Alaska Stat. § 14.33.250...............................

Ariz. Rev. Stat. § 15-341(36) ........................

Ark. Code Ann. § 6-18-514 ...........................

Cal. Educ. Code § 48900 ...............................

TABLE OF AUTHORITIES—Continued

Page(s)

Colo. Rev. Stat. § 22-32-109.1(b) ..................

Conn. Gen. Stat. § 10-222d ............................

14 Del. Code § 4161(1) ...................................

14 Del. Code § 4164 .......................................

D.C. Code § 2-1535.03(a) ...............................

Fla. Stat. Ann. § 1006.147(1)(d) ...................

Ga. Code Ann. § 20-2-751.4(a) .....................

Hi. Admin. Code § 8-19-2 .............................

Hi. Admin. Code § 8-19-6(a) .........................

Idaho Code Ann. § 18-917A(a) .....................

105 Ill. Comp. Stat. Ann. 5/27-23.7(a) .........

Ind. Code Ann. § 20-33-8-0.2 ........................

Ind. Code Ann. § 20-33-8-13.5 ......................

Iowa Code § 280.28 .......................................

Kan. Stat. Ann. § 72-6147 ............................

Ky. Rev. Stat. Ann. § 158.148 ......................

La. Rev. Stat. Ann. § 416.13(c) ....................

20-A Me. Rev. Stat. § 6554 ...........................

Md. Educ. Code Ann. § 7-424 .......................

Mass. Gen. Laws. ch.71 § 37O .....................

Mich. Comp. Laws Ann. § 380.1310b ..........

Minn. Stat. § 121A.031.................................

Miss. Code Ann. § 37-11-67(1) .....................

TABLE OF AUTHORITIES—Continued

Page(s)

Miss. Code Ann. § 37-11-69(1) .....................

Mo. Rev. Stat. § 160.775...............................

Mont. Code Ann. § 20-5-208 .........................

Mont. Code Ann. § 20-5-209 .........................

Neb. Rev. Stat. § 79-2,137 ............................

Nev. Rev. Stat. § 388.122 .............................

Nev. Rev. Stat. § 388.135 .............................

N.H. Rev. Stat. Ann. § 193-F:3 ....................

N.H. Rev. Stat. Ann. § 193-F:4(I) ................

N.J. Stat. § 18A:37-15.3 ...............................

N.J. Stat. § 18A:37-14 ..................................

N.M. Admin. Code § 6.12.7.7 .......................

N.M. Admin. Code § 6.12.7.8A .....................

N.Y. Educ. Law § 11 .....................................

N.C. Gen. Stat. § 115C-407.15(a) .................

N.C. Gen. Stat. § 115C-407.16 .....................

N.D. Cent. Code § 15.1-19-17 .......................

Ohio Rev. Code Ann. § 3313.666 ..................

Okla. Stat. Ann. Tit. 70, § 24-100.3 ............. 13-14

Okla. Stat. Ann. Tit. 70, § 24-100.4 .............

Or. Rev. Stat. § 339.351(2)(b) .......................

Or. Rev. Stat. § 339.356 ...............................

24 P.S. § 13-1303.1-A ...................................

vii

TABLE OF AUTHORITIES—Continued

Page(s)

R.I. Gen. Laws § 16-21-33 ............................

R.I. Gen. Laws § 16-21-34 ............................

S.C. Code Ann. § 59-63-120 ..........................

S.C. Code Ann. § 59-63-140 ..........................

S.D. Codified Laws § 13-32-15 .....................

S.D. Codified Laws § 13-32-18 .....................

S.D. Codified Laws § 13-32-19 .....................

Tenn. Code Ann. § 49-6-4502 .......................

Tex. Educ. Code Ann. § 37.0832 ..................

Utah Code Ann. § 53G-9-601(d)....................

Utah Code Ann. § 53G-9-602(d)....................

Vt. Stat. Ann. tit. 16, § 11(a)(32)....................

Vt. Stat. Ann. tit. 16, § 570............................

Vt. Stat. Ann. tit. 16, § 570c ..........................

Va. Code Ann. § 22.1-276.01 ........................

Va. Code Ann. § 22.1-279.6(D) .....................

Wash. Rev. Code § 28A.600.477 ...................

W. Va. Code Ann. § 18-2C-2 .........................

W. Va. Code Ann. § 18-2C-3 .........................

Wis. Stat. § 118.46 ........................................

Wyo. Stat. Ann. § 21-4-312(a)(i)...................

viii

TABLE OF AUTHORITIES—Continued

OTHER AUTHORITIES

Page(s)

Alan Mozes, Too Often, Bullying Has Lethal

Consequences for LBGTQ Teens, U.S.

News & World Report (May 26, 2020),

available at https://tinyurl.com/the6bum2...

Alyssa Giacobbe, The Tragic, Enduring

Legacy of Phoebe Prince, Boston

Magazine (January 21, 2020), available

at https:// tinyurl.com/1iudwlqp ...............

American Psychological Association, Bullying

and School Climate, https://tinyurl.com/

zep83p69 (last visited Feb. 22, 2021) .......

Bill Dedman, Secret Service Findings

Overturn Stereotypes, Chicago Sun–

Times Report (Oct. 15–16, 2000) ..............

Brittany Wong, How Remote Learning Has

Changed The Nature Of School Bullying,

HuffPost (September 18, 2020), https://

tinyurl.com/n4n2d6ko ...............................

CDC National Center for Injury Prevention

and Control, Division of Violence

Prevention, The Relationship Between

Bullying and Suicide: What We Know

and What It Means for Schools (April

2014), available at https://tinyurl.com/26

r88up6 .......................................................

6, 7

Committee for Children Policy White Paper,

Bullying Prevention in the Technology

Age (2017), available at https://tinyurl.

com/wm4dkgvr ..........................................

TABLE OF AUTHORITIES—Continued

Page(s)

Cyberbullying Research Center, New

National Bullying and Cyberbullying

Data, https://tinyurl.com/3yegfuvy (last

visited Feb. 22, 2021) ...................................

7, 8

Cyberbullying Research Center, Summary

of Our Cyberbullying Research (20072019), https://tinyurl.com/1rcjhfr4 (last

visited Feb. 22, 2021) ................................

D.M. Holben, & P.A. Zirkel, School

Bullying litigation: An empirical analysis

of the case law, 47 Akron L. Rev. 299-328

(2014) ......................................................... 15-16

Dale Archer, Phoebe Prince’s Death Is a

Call to Action, Opinion, Fox News (April

6, 2010), https://tinyurl.com/yol9t9oa ......

Dewey Cornell, Susan P. Limber, Law and

Policy on the Concept of Bullying at

School, American Psychologist (MayJune 2015), available at https://tinyurl.

com/1gpaqym2...........................................

Dylan Rogers, BYOD In Schools: A

Beginner’s Guide, Schoolology Exchange

(March 16, 2018), https://tinyurl.com/

25o8r23c ....................................................

Justin W. Patchin, Ph.D. Sameer Hinduja,

Ph.D., Tween Cyberbullying in 2020

Executive Summary (Oct. 7, 2020), available at https://tinyurl.com/3pfn8xtf ........... 8, 11

TABLE OF AUTHORITIES—Continued

Page(s)

Kathleen Conn, Best Practices in Bullying

Prevention: One Size Does Not Fit All,

22 Temp. Pol. & Civ. Rts. L. Rev. 393

(2013) .........................................................

Lori Orlinsky, Bullying in the age of remote

learning, Motherwell (September 3, 2020),

https://tinyurl.com/npyltugs .....................

Mary Esch, Correction: School Bullying

Parent Notification Story, Associated

Press (March 6, 2018), available at

https://tinyurl.com/1uvpwrdn ...................

Monica Anderson & JinhJing Jiang, Teens,

Social Media & Technology, 2018, Pew

Research Center (May 31, 2018), https://

tinyurl.com/qhu3s3fd ................................

National Bullying Prevention Center,

Students with Disabilities and Bullying/

5 Important Facts, https://tinyurl.com/

4u4vl9td ....................................................

President Obama & the First Lady at the

White House Conference on Bullying

Prevention (March 10, 2011), https://tiny

url.com/kcs872qx ......................................

Public Justice, Jury Verdicts and Settlements in Bullying Cases (April 2019),

available at https://tinyurl.com/3xfx65cj .

Rachel Silberstein, Parents Lose Appeal in

South Glens student suicide case, Times

Union (January 2, 2020), available at

https://tiny url.com/17rkjjff ......................

TABLE OF AUTHORITIES—Continued

Page(s)

StopBullying.gov, Consequences of Bullying,

https://tinyurl.com/1lruyc61 (last visited

Feb. 22, 2021) ............................................

StopBullying.gov, Facts About Bullying,

https: //tinyurl.com/jl4jezww (last visited

Feb. 22, 2021) ............................................

StopBullying.gov, Federal Partners in

Bullying Prevention, https://tinyurl.com/

jl4jezww (last visited Feb. 22, 2021) ........ 10, 11

Susan P. Limber, Addressing Youth Bullying

Behaviors, American Medical Association

Educational Forum on Adolescent Health:

Youth Bullying (May 3, 2002), available

at https://tinyurl.com/105va5ed ...............

U.S. Department of Education “Dear

Colleague” letter (October 26, 2010),

available at https: //tinyurl.com/2jeto6q4

............................................................... 4, 14, 15

U.S. Department of Education “Dear

Colleague” letter of Secretary Arne

Duncan (December 16, 2010), available

at https://tinyurl.com/6nu3sa4k ...............

INTEREST OF AMICI CURIAE1

Cyberbullying Research Center (cyberbullying.

org), founded in 2005 and directed by Sameer Hinduja,

PhD (Professor, Florida Atlantic University) and Justin

W. Patchin, PhD (Professor, University of WisconsinEau Claire), is a research collaborative dedicated to

providing up-to-date information about the nature,

extent, causes, and consequences of cyberbullying among

adolescents.

Committee for Children (cfchildren.org) is a

global nonprofit organization that has championed the

safety and well-being of children for more than 40

years, in large part through the development of Second

Step, its universal school-based curricula.

Council of Administrators of Special Education

(casecec.org) is an international nonprofit professional

organization providing leadership, advocacy, and professional development to more than 4,500 administrators

working on behalf of students with disabilities and

their families in public and private school systems.

Garden State Equality (gardenstateequality.org)

is the largest LGBTQ advocacy organization in New

Jersey and one of the most successful statewide civil

rights organizations for the LGBTQ community in the

Nation.

The Bully Project (thebullyproject.com) is a social

action campaign inspired by the award-winning film

BULLY, committed to transforming children’s lives

The parties have consented to the filing of this amicus brief.

No counsel for a party authored the brief in whole or in part. No

party, counsel for a party, or any person other than amici curiae

made a monetary contribution intended to fund the preparation

or submission of this brief.

and changing a culture of bullying into one of empathy

and action.

Tyler Clementi Foundation (tylerclementi.org) is

a nonprofit organization committed to preventing

bullying through inclusion and the assertion of dignity

and acceptance of LGBT communities and other victims

of hostile social environments.

STOMP Out Bullying (stompoutbullying.org) is a

national nonprofit organization working to reduce and

prevent bullying, cyberbullying, and other digital

abuse, educate against homophobia, LGBTQ discrimination, racism and hatred, and deter violence in

schools, online and in communities across the country.

One Circle Foundation (onecirclefoundation.org)

is a nonprofit organization that supports service providers in the United States, Canada, and internationally

with gender-responsive research based circle program

models, best practice approaches, and manual-guided

curricula for programs serving youth.

SEL4NJ (sel4nj.org) is an organization of over 1200

educators and advocates representing New Jersey’s

major educational stakeholders promoting socialemotional learning and the importance of school

culture and climate for the health and strength of

students and schools.

INTRODUCTION AND

SUMMARY OF ARGUMENT

Amici have joined forces to inform the Court about

the harmful effects of bullying in our public schools,

and to discourage any holding in this case that would

undermine school officials’ ability to prevent harassment that affects students’ experience at school or

disrupts the learning environment.

For those of an earlier generation bullying may have

been regarded as a rite of passage, but research has

shown it has profound and long-lasting effects on

our youth. Digital devices are now ubiquitous. Social

media platforms are proliferating and children at

ever-younger ages are accessing the Internet 24/7

in unstructured settings. The means and methods of

modern-day bullying are far more sophisticated and

online bullying (“cyberbullying”) is an increasingly

troubling phenomenon.

For Amici and the children whose welfare they seek

to protect, the stakes in this case are far higher than

the disciplinary consequences for a high school cheerleader’s expletive-laden rant. As we explain below,

schools’ ability to confront bullying is, quite literally, a

matter of life and death for roughly 56 million children

attending about 131,000 public schools across the

Nation.

The Third Circuit’s new rule generally forbids school

districts from regulating, or imposing discipline for,

off-campus student speech. The court reserved for

another day how that rule would apply to harassment

of students, leaving school officials (and lower courts

in the Third Circuit) no meaningful guidance. Amici

will leave it to the parties and other stakeholders to

argue the broader question of students’ free speech

rights beyond the physical boundaries of the school

property. Amici’s concern is for school districts’ ability

to address peer harassment in the digital age when

much of this behavior occurs off school grounds or

online, and the distinction between on-campus and offcampus has become meaningless.

For the reasons presented below, the Court can, and

should, protect school officials’ ability to regulate

bullying off school grounds and online when it disrupts

the school’s learning environment or violates other

students’ rights.

ARGUMENT

BULLYING IS A SERIOUS AND PERVASIVE PROBLEM IN SCHOOLS ACROSS

THE NATION.

Bullying received national attention after the

Columbine High School shooting in 1999. See Susan

P. Limber, Addressing Youth Bullying Behaviors,

American Medical Association Educational Forum

on Adolescent Health: Youth Bullying at 5 (May 3,

2002), available at https://tinyurl.com/105va5ed. In

the wake of that tragedy, the Secret Service reviewed

thirty-seven shooting incidents and determined that in

two-thirds of those cases, the shooter felt bullied,

persecuted, or threatened at school.2 It is now clear

beyond question that bullying of school-age children is

“an important societal problem in the United States.”

Dewey Cornell, Susan P. Limber, Law and Policy

on the Concept of Bullying at School, American

Psychologist (May-June 2015) at 333, available at

https://tinyurl.com/1gpaqym2.

“Bullying fosters a climate of fear and disrespect

that can seriously impair the physical and psychological health of its victims and create conditions that

negatively affect learning, thereby undermining the

ability of students to achieve their full potential.”3

See Bill Dedman, Secret Service Findings Overturn Stereotypes,

Chicago Sun–Times Report, (Oct. 15–16, 2000), at 9, cited in T.K.

v. New York City Dept. of Educ., 779 F.Supp.2d 289, 298

(E.D.N.Y. 2011).

U.S. Department of Education “Dear Colleague” letter

(October 26, 2010), available at https://tinyurl.com/2jeto6q4.

“According to a federal government initiative, studenton-student bullying is a ‘major concern’ in schools

across the country and can cause victims to become

depressed and anxious, to be afraid to go to school, and

to have thoughts of suicide.” Kowalski v. Berkeley Cty.

Schs., 652 F.3d 565, 572 (4th Cir. 2011).

Amici have no interest in B.L.’s restoration to the

junior varsity cheerleading squad at Mahanoy Area

High School. But we urge the Court to consider the

fate of another cheerleader, a two-hour drive away

across Route 80 in Northern New Jersey. Mallory

Grossman was a 12-year-old middle school student who

loved cheerleading and gymnastics but was tormented

relentlessly by her classmates throughout the school

year. This brutal harassment was not limited to the

school campus but continued through text messages,

Instagram posts and Snapchats. She was barraged

with taunts, online and in person, like “you have no

friends,” “poor Mal” and “when are you going to kill

yourself?” As the school year drew to a close, Mallory

was unable to withstand these attacks any longer and

took her own life. Compounding this tragedy, her parents

discovered her body after meeting with school officials

to beg them for assistance in ending this cruelty.4

Mallory is not alone. Residents of Hampshire County,

Massachusetts, are still haunted by the memory of

Phoebe Prince, a 15-year-old high school freshman

from South Hadley. She had just moved to town from

Ireland and, as the new girl at the high school, made

the mistake of dating a popular football player. When

he later reunited with an old girlfriend, schoolmates

This account is based on the family’s allegations in the news

media and in a lawsuit pending in the Superior Court of New

Jersey, Law Division, Morris County, Docket No. MRS-L-1173-18

began targeting Phoebe for having the audacity to

think she could be one of them. The bullying continued in person and online. They called her names like

“stupid bitch” and “Irish slut.” When it became too

much to bear, Phoebe hanged herself at the family

home. Her 12-year-old sister discovered her body.

Even that did not satisfy her tormenters who, after her

death, wrote on her Facebook wall: “accomplished.”5

Jacobe Taras was a 13-year-old seventh grader from

South Glens Falls, New York, who was mercilessly

bullied by his schoolmates. They slammed him into

lockers and harassed him with homophobic slurs.

Jacobe killed himself with a hunting rifle, leaving

his parents this note: “I’m sorry but I can not live

anymore. I just can’t deal with all of the bullies, being

called gay . . . being told to go kill myself. I’m also done

with being pushed, punched, tripped. I’m sorry for all

that I put you through. I LOVE YOU.”6

The Centers for Disease Control and Prevention

(CDC) and other researchers have documented the

link between bullying and suicide among school-age

children.7 It is now clear that “involvement in

Alyssa Giacobbe, The Tragic, Enduring Legacy of Phoebe

Prince, Boston Magazine (January 21, 2020), https://tinyurl.com/

1iudwlqp; Dale Archer, Phoebe Prince’s Death Is a Call to Action,

Opinion, Fox News (April 6, 2010), https://tiny url.com/yol9t9oa.

Mary Esch, Correction: School Bullying Parent Notification

Story, Associated Press (March 6, 2018), https://tinyurl.com/

1uvpwrdn; Rachel Silberstein, Parents Lose Appeal in South

Glens student suicide case, Times Union (January 2, 2020),

available at https://tinyurl.com/17rkjjff.

CDC National Center for Injury Prevention and Control,

Division of Violence Prevention, The Relationship Between Bullying

bullying, along with other risk factors, increases the

chance that a young person will engage in suiciderelated behaviors.” Id. at 3. Even when bullying does

not result in death, it still has significant harmful

effects on victims including depression, anxiety, low

self-esteem, self-harming behavior, alcohol and drug

use and dependence, aggression, and involvement in

violence or crime.8

Most incidents of bullying do not find their way into

the headlines. But the data present a stark picture of

how prevalent the problem is, and the challenges

school officials face in confronting it. Approximately

20% of student ages 12-18 nationwide have experienced bullying.9 Roughly 15% of bullying occurs

through text messages or online posts.10 A 2016 study

found that 64% of students who experienced cyberbullying reported that it affected their ability to

learn and feel safe at school.11 As of 2019, the rate of

cyberbullying of students was trending steadily upward

over the previous five years.12

Bullying is especially impactful for so-called “tweens,”

students ages 9-12, as documented in research by

Professors Justin Patchin and Sameer Hinduja of

and Suicide: What We Know and What It Means for Schools,

(April 2014), available at https://tinyurl.com/26r88up6.

See StopBullying.gov, Consequences of Bullying, https://tiny

url.com/1lruyc61 (last visited Feb. 22, 2021).

StopBullying.gov, Facts About Bullying, https://tinyurl.com/

jl4jezww (last visited Feb. 22, 2021).

Id.

Cyberbullying Research Center, New National Bullying and

Cyberbullying Data, tinyurl.com/3yegfuvy.

Cyberbullying Research Center, Summary of Our Cyberbullying Research (2007-2019), https://tinyurl.com/1rcjhfr4 (last

visited Feb. 22, 2021).

Cyberbullying Research Center.13 Among 1,034 tweens

responding to their survey, nearly 80% had some

exposure to bullying as a target, an aggressor, or a

witness. 57% percent had been targeted at school or

online. Half of tweens said they had been bullied at

school while 15% had been cyberbullied. More than

two-thirds of tweens who had been cyberbullied said it

negatively impacted their feelings about themselves.

Almost one-third said it affected their friendships.

13.1% said it affected their physical health, while 6.5%

shared it influenced their schoolwork.14

Importantly, there is significant overlap between

bullying at school and online. In one study, 83% of the

students who had been cyberbullied within the past 30

days also had been bullied at school. Similarly, 69% of

the students who admitted to bullying others at school

also bullied others online.15 These statistics confirm

what parents of school-age children already know:

students move seamlessly between in-person and

online environments, and their contacts with others

are not limited by physical location.

As the Secret Service’s post-Columbine study showed,

bullying victims also may be provoked into committing

violent acts of their own. Those acts may not involve

killing others but still can disrupt the school’s learning

environment. For example, in A.S. by and through

Justin W. Patchin, Ph.D. Sameer Hinduja, Ph.D., Tween

Cyberbullying in 2020 Executive Summary (Oct. 7, 2020),

available at https://tinyurl.com/3pfn8xtf.

Id.

Cyberbullying Research Center, New National Bullying and

Cyberbullying Data, https://tinyurl.com/3yegfuvy. See also Committee

for Children Policy White Paper, Bullying Prevention in the

Technology Age (2017), available at https://tinyurl.com/wm4dkgvr.

Schaefer v. Lincoln County R-III Sch. Dist., 429 F.

Supp.3d 659 (E.D. Mo. 2019), a student created a

Snapchat post depicting a fellow student in a casket

with references to the student’s funeral and visitation

at a funeral home. The post was shared with other

students who reposted it to their own Snapchat stories,

and fellow students were making comments about his

supposed death. The target of this thoughtless harassment already had been bullied by his schoolmates for

over a year and was suffering from depression requiring professional help. The pressure was so great that

he “snapped” and placed another student in a chokehold.

The federal government has recognized the problem.

Bullying prevention is now a non-partisan national

priority. As former Education Secretary Arne Duncan

wrote in a 2010 “Dear Colleague” letter,

Recent incidents of bullying have demonstrated its potentially devastating effects on

students, schools, and communities and have

spurred a sense of urgency among State and

local educators and policymakers to take

action to combat bullying. The U.S. Department of Education (Department) shares

this sense of urgency and is taking steps

to help school officials effectively reduce

bullying in our Nation’s schools. Bullying can

be extremely damaging to students, can

disrupt an environment conducive to learning, and should not be tolerated in our

schools.16

U.S. Department of Education “Dear Colleague” letter of

Education Secretary Arne Duncan (December 16, 2010), available

at https://tinyurl.com/6nu3sa4k.

At the first White House Conference on Bullying

Prevention in 2011, President Obama observed,

“[t]oday, bullying doesn’t even end at the school bell –

it can follow our children from the hallways to their

cellphones to their computer screens.”17 Since then,

federal agencies have committed significant resources

to attacking the problem. For example, the U.S.

Department of Health and Human Services operates a

website, StopBullying.gov, providing guidance and

support for school officials, parents and students.

Federal Partners in Bullying Prevention, a consortium

of federal agencies, regularly convenes Anti-Bullying

Prevention Summits to highlight best practices and

offer support.18

II. SCHOOL DISTRICTS MUST BE FREE TO

REGULATE BULLYING THAT OCCURS

OFF SCHOOL GROUNDS WHEN IT

AFFECTS STUDENTS’ SCHOOL EXPERIENCE OR DISRUPTS THE LEARNING

ENVIRONMENT.

The data show that a pattern of bullying against a

particular student can seamlessly move from on-campus

to off-campus to online and back again. The accelerating pace of smartphone and social media use by teens

and tweens has further exacerbated the problem.

Today, school-age children have round-the-clock

access to technology and the online world. By 2018,

97% of thirteen- to seventeen-year-olds used at least

President Obama & the First Lady at the White House

Conference on Bullying Prevention (March 10, 2011), https://tiny

url.com/kcs872qx.

See StopBullying.gov, Federal Partners in Bullying Prevention, https://tinyurl.com/jl4jezww (last visited Feb. 22, 2021).

one social media platform.19 Ninety-five percent of

them had access to a smartphone, and almost half of

them reported being online “almost constantly.” Id.

The majority of tweens also have devices of their own

and 90% have used one or more of the most popular

social media and gaming apps in the last year.

Smartphone ownership explodes in the tween years.

About 21% percent of nine-year olds have their own

smartphone compared to 68% of 12-year-olds. Twothirds of tweens have used YouTube in the last year.20

It is hardly surprising that this universal access to

text messaging and social media has offered greater

opportunities for cyberbullying which can be far more

harmful than “school yard” bullying in important

ways. The aggressor is not in the target’s physical

presence and typically cannot see or hear the victim’s

reaction to his posts. Cyberbullying often occurs anonymously, with messages that can be spread instantly

to thousands of recipients. And cyberbullying can

occur round the clock in unstructured settings with

parents unaware of what their children are doing.

For these reasons, most federal courts have recognized the arbitrariness of distinguishing between

on-campus and off-campus student speech.

[W]hen Tinker was decided, the Internet,

cellphones, smartphones, and other digital

social media did not exist. . . Students now

have the ability to disseminate instantaneously and communicate widely from any

Monica Anderson & JinhJing Jiang, Teens, Social Media &

Technology, 2018, Pew Research Center (May 31, 2018), https://

tinyurl.com/qhu3s3fd.

Patchin, Tween Cyberbullying in 2020 Executive Summary,

supra note 13.

location via the Internet. These communications, which may reference events occurring,

or to occur, at school, or be about members

of the school community, can likewise be

accessed anywhere, by anyone, at any time.

Bell v. Itawamba Cnty. Sch. Bd., 799 F.3d 379, 392

(5th Cir. 2015)(en banc) Wireless Internet, smartphones and social media platforms “give an omnipresence to speech that makes any effort to trace First

Amendment boundaries along the physical boundaries

of a school campus a recipe for serious problems

in our public schools.” Layshock ex rel. Layshock v.

Hermitage Sch. Dist., 650 F.3d 205, 220-21 (3d Cir.

2011)(Jordan, J., concurring).

Restrictions on in-person gatherings and the

introduction of remote and hybrid learning during the

COVID-19 pandemic have further increased students’

reliance on electronic communication and underscored

the irrelevance of the school’s physical boundaries.21

Even before the pandemic arrived, the on-campus/offcampus distinction had been blurred further by the

advent of BYOD (“Bring Your Own Device”) initiatives

in many school districts around the country that

permit, encourage or even require students to use

their own personal laptops or other devices at school.22

Limiting districts’ jurisdiction to school grounds or

school-sponsored functions similarly makes no sense

See Brittany Wong, How Remote Learning Has Changed The

Nature Of School Bullying, HuffPost (September 18, 2020),

https://tinyurl.com/n4n2d6ko; Lori Orlinsky, Bullying in the age

of remote learning, Motherwell (September 3, 2020), https://

tinyurl.com/npyltugs.

See Dylan Rogers, BYOD In Schools: A Beginner’s Guide,

Schoolology Exchange (March 16, 2018), https://tinyurl.com/

25o8r23c.

for in-person bullying that occurs off campus, if it

significantly impacts students’ ability to access their

education or substantially disrupts the learning

environment. Imagine students taunting a classmate

on her walk to school then escalating their harassment

in the cafeteria at lunch. Schools must have the power

to address such off-campus misbehavior that meaningfully impacts students’ school experience.

To be clear, Amici do not suggest that schools need

intercede when bullying occurs at times, and in settings,

far removed from school. Harassment occurring over

the summer, long after the school year ends and well

before it resumes, may be less likely to have an impact

on a student’s school experience. There is no reason

to believe trial courts and government agencies are

unable to discern a sufficient nexus between the

offending behavior and a student’s ability to access her

education in a given case.

Every state in the Nation, and the District of

Columbia, have evidenced their commitment to bullyingprevention by adopting statutes addressing the matter.

At least twenty-five states and the District of

Columbia explicitly require districts to regulate offcampus bullying that substantially disrupts the school

environment.23 Seven states expressly permit schools

Ala. Code § 16-28B-3; Ark. Code Ann. § 6-18-514; Cal. Educ.

Code § 48900; Conn. Gen. Stat. § 10-222d; 14 Del. Code § 4164;

id. § 4161(1); D.C. Code § 2-1535.03(a); Fla. Stat. Ann.

§ 1006.147(1)(d); Ga. Code Ann. § 20-2-751.4(a); 105 Ill. Comp.

Stat. Ann. 5/27-23.7(a); Ind. Code Ann. § 20-33-8-13.5; id.

§ 20-33-8-0.2; Ky. Rev. Stat. Ann. § 158.148; La. Rev. Stat. Ann.

§ 416.13(c); 20-A Me. Rev. Stat. § 6554; Md. Educ. Code Ann.

§ 7-424; Mass. Gen. Laws. ch.71 § 37O; Minn. Stat. § 121A.031;

N.H. Rev. Stat. Ann. § 193-F:3; id. § 193-F:4(I); N.J. Stat.

§ 18A:37-15.3; see also id. § 18A:37-14; N.M. Admin. Code

§ 6.12.7.7; id. § 6.12.7.8A; N.Y. Educ. Law § 11; Okla. Stat. Ann.

and eighteen neither expressly permit or

to do so,

prohibit it.25

Even when state anti-bullying statutes do not

impose an affirmative duty to regulate off-campus

harassment, that duty may be imposed by federal and

state anti-discrimination laws when the mistreatment

is directed toward students in legally protected classes.

The U.S. Department of Education alerted school

districts as far back as 2010 that bullying based on

race, color, national origin, sex or disability may

constitute unlawful discrimination under Title VI of

the Civil Rights Act of 1964, Title IX of the Education

Amendments of 1972, Section 504 of the Rehabilitation Act of 1973 or Title II of the Americans with

Disabilities Act of 1990.26 Significantly for purposes of

Tit. 70, § 24-100.3; see also id. § 24-100.4; R.I. Gen. Laws § 16-2134; see id. § 16-21-33; Tenn. Code Ann. § 49-6-4502; Tex. Educ.

Code Ann. § 37.0832; Utah Code Ann. § 53G-9-601(d); id. § 53G-9602(d); Vt. Stat. Ann. tit. 16, § 11(a)(32); id. § 570; id. § 570c.

Iowa Code § 280.28; Mo. Rev. Stat. § 160.775; N.C. Gen. Stat.

§ 115C-407.15(a); id. § 115C-407.16; 24 P.S. § 13-1303.1-A; S.D.

Codified Laws § 13-32-15; id. § 13-32-18; id. § 13-32-19; W. Va.

Code Ann. § 18-2C-2; id. § 18-2C-3; Wyo. Stat. Ann. § 21-4312(a)(i).

Alaska Stat. § 14.33.250; id. § 14.33.200(a); Ariz. Rev. Stat.

§ 15-341(36); Colo. Rev. Stat. § 22-32-109.1(b); Hi. Admin. Code

§ 8-19-2; id. § 8-19-6(a); Idaho Code Ann. § 18-917A(a); Kan. Stat.

Ann. § 72-6147; Mich. Comp. Laws Ann. § 380.1310b; Miss. Code

Ann. § 37-11-67(1); id. § 37-11-69(1); Mont. Code Ann. § 20-5-208;

id. § 20-5-209; Neb. Rev. Stat. § 79-2,137; Nev. Rev. Stat.

§ 388.122; id. § 388.135; N.D. Cent. Code § 15.1-19-17; Ohio Rev.

Code Ann. § 3313.666; Or. Rev. Stat. § 339.351(2)(b); id.

§ 339.356; S.C. Code Ann. § 59-63-120; id. § 59-63-140; Va.

Code Ann. § 22.1-276.01; id. § 22.1-279.6(D); Wash. Rev. Code

§ 28A.600.477; Wis. Stat. § 118.46.

U.S. Department of Education “Dear Colleague” letter

(October 26, 2010), supra note 3.

this case, actionable harassment includes the “use of

cell phones or the Internet[.]” Id. Special education

students who are bullied also may have a claim for

deprivation of a “free appropriate public education”

guaranteed by the Individuals with Disabilities

Education Act.27

State courts may construe their own anti-discrimination statutes even more expansively and require

aggressive anti-bullying measures beyond what is

mandated by federal law. For example, the Supreme

Court of New Jersey, in L.W. ex rel. L.G. v. Toms River

Regional Schools Bd. of Educ., 189 N.J. 381, 915 A.2d

535 (2007), rejected Title IX’s “deliberate indifference”

standard for student-to-student sexual harassment

claims, see Davis v. Monroe County Bd. of Educ., 526

U.S. 629, 633, 119 S. Ct. 1661, 1666, 143 L.Ed.2d 839,

847 (1999), and applied a workplace “hostile environment” standard to class-based peer bullying cases

under New Jersey’s Law Against Discrimination.

Sadly, students in these protected groups may be

the most likely targets of bullying and also the least

able to defend themselves. As the research shows,

students with disabilities are bullied at two to three

times the rate of non-disabled students.28 A national

See Shore Regional High School Bd. of Educ. v. P.S. ex rel.

P.S., 381 F.3d 194 (3d Cir. 2004); T.K. v. New York City Dept. of

Educ., 779 F.Supp.2d at 316 (“[U]nder IDEA the question to be

asked is whether school personnel was deliberately indifferent to,

or failed to take reasonable steps to prevent bullying that

substantially restricted a child with learning disabilities in her

educational opportunities[.]”).

National Bullying Prevention Center, Students with

Disabilities and Bullying/5 Important Facts, https://tinyurl.com/

4u4vl9td. See also D.M. Holben, & P.A. Zirkel, School Bullying

school climate study found that more than 80% of

lesbian, gay, bisexual and transgender (LGBT) youth

reported some form of bullying or harassment at

school. Over 92% of LGBT youth reported hearing

homophobic remarks from other students at school.29

Those who die by suicide are five times more likely to

have been bullied than other students.30

School officials must retain the ability to regulate

harassing speech that originates off campus and

substantially disrupts the learning environment or

infringes on the rights of students at school. Otherwise,

students will be put at risk and the constitutionality

of most states’ anti-bullying laws immediately called

into question.

III. THIS COURT SHOULD HOLD THAT

TINKER PERMITS SCHOOLS TO ADDRESS

OFF-CAMPUS HARASSMENT.

The court below “[took] no position on schools’ bottomline power to discipline speech” constituting harassment

or a threat of violence. B.L. v. Mahanoy Area Sch.

Dist., 964 F.3d at 190 (3d Cir. 2020). As Judge Ambro

observed in his separate opinion, however, flagging

the issue for resolution another day leaves schools

with no guidance on “[w]hat type of speech constitutes

‘harassment’ in the school and social media context[,]”

and no “clear and administrable line for this new

litigation: An empirical analysis of the case law, 47 Akron L. Rev.

299-328 (2014).

American Psychological Association, Bullying and School

Climate, https://tinyurl.com/zep83p69 (last visited Feb. 22, 2021).

Alan Mozes, Too Often, Bullying Has Lethal Consequences

for LBGTQ Teens, U.S. News & World Report (May 26, 2020),

available at https://tinyurl.com/the6bum2.

rule[.]” Id. at 195. (Ambro, J., concurring in the

judgment). Amici agree.

The majority hinted that four decisions may serve

as guideposts for delineating school officials’ authority

to regulate off-campus harassment in a future case.

964 F.3d at 190 (citing Wisniewski ex rel. Wisniewski

v. Board of Education, 494 F.3d 34 (2d Cir. 2007);

D.J.M. ex rel. D.M. v. Hannibal Pub. Sch. Dist. No. 60,

647 F.3d 754 (8th Cir. 2011); Kowalski v. Berkeley Cty.

Schs., 652 F.3d 565 (4th Cir. 2011); and S.J.W. ex rel.

Wilson v. Lee’s Summit R-7 Sch. Dist., 696 F.3d 771

(8th Cir. 2012)). But each of these cases involved

misconduct far more threatening or humiliating than

the sort of harassment that schools must routinely

address to protect their students and the learning

environment.

In Wisniewski, a student created an instant messaging icon showing “a pistol firing a bullet at a person’s

head, above which were dots representing splatted

blood,” and beneath which were the words “Kill Mr.

VanderMolen,” the student’s teacher. 494 F.3d at 3536. That icon was visible to the student’s “buddies”

who sent messages displaying it to fellow students. Id.

at 36. D.J.M. also involved a threat of violence. In

Kowalski, a student created a MySpace page suggesting that a fellow student was sexually promiscuous

and had a contagious disease (herpes). In S.J.W.,

students created a website featuring a blog with offensive and racist posts as well as sexually explicit and

degrading comments about female classmates, whom

they identified by name. If these cases are what the

Third Circuit had in mind as the bar for permissible

regulation of off-campus bullying, much harmful harassment would go unregulated and students’ welfare

would be compromised.

Amici will leave it to the parties and other

stakeholders to argue what rules should apply to offcampus speech generally. But there must be a clear

and unmistakable pronouncement that school officials

may take reasonable measures to curtail peer bullying

that negatively impacts students’ ability to access

their education, wherever and in whatever form it

takes place. Students may not “shed their constitutional rights to freedom of speech or expression at the

schoolhouse gate.” Tinker v. Des Moines Ind. Comm.

Sch. Dist., 393 U.S. 503, 506, 89 S. Ct. 733, 21 L.Ed.2d

731 (1969). But the First Amendment should not

immunize them for harassment they perpetrate

outside it.

There is precedent for the doctrinal approach we

suggest. In Morse v. Frederick, 551 U.S. 393, 127 S. Ct.

2618, 168 L.Ed.2d 290 (2009), the Court recognized

that certain challenges faced by school officials – illegal

drug use, in that case – justify specific and narrow

exceptions from the legal framework governing students’

First Amendment rights generally. As the Court

observed, “‘the constitutional rights of students in

public school are not automatically coextensive with

the rights of adults in other settings.’” 551 U.S. at 404405 (quoting Bethel School Dist. No. 403 v. Fraser, 478

U.S. 675, 682, 106 S. Ct. 3159, 92 L.Ed.2d 549 (1986)),

and are circumscribed “in light of the special characteristics of the school environment.” 551 U.S. at 394

(quoting Tinker, 393 U.S. at 506). The Court noted the

“severe and permanent damage to the health and wellbeing of young people” caused by drug abuse, 551` U.S.

at 407, and that school officials had “an ‘important—

indeed, perhaps compelling’ interest” in deterring it.

Id. (quoting Vernonia School Dist. 47J v. Acton, 515

U.S. 646, 661, 115 S. Ct. 2386, 132 L.Ed.2d 564

(1995)).

Bullying raises similar concerns. Like drug abuse,

it is a direct threat to students’ health and welfare,

significantly interfering with their education and at

times resulting in death. The federal government has

acknowledged the seriousness of the problem and

committed substantial resources to supporting school

districts’ efforts to confront it. In many states there is

an affirmative statutory duty imposed by state law,

and federal anti-discrimination laws expose all districts

to liability if appropriate measures are not taken to

address certain protected classes. “Just as schools

have a responsibility to provide a safe environment for

students free from messages advocating illegal drug

use, . . . schools have a duty to protect their students

from harassment and bullying in the school environment[.]” Kowalski, 652 F.3d at 572 (4th Cir.

2011)(citation omitted).

Protecting students’ safety is the primary goal of

schools’ anti-bullying efforts. School officials no longer

can merely respond to bullying incidents one by one as

they arise, but are charged with taking proactive

measures to establish a school climate where harassment is not tolerated by anyone.31 Discharging that

affirmative duty is near impossible if they cannot take

aggressive measures to curtail hurtful taunts or

See, e.g., Palosz v. Town of Greenwich, 184 Conn. App. 201,

194 A.3d 885 (Conn. App. 2018); L.G. v. Toms River Regional

Schools Bd. of Educ., 189 N.J. at 389 (Schools must “take

proactive steps to protect the children in their charge.”); T.K. v.

New York City Dept. of Educ., 779 F.Supp.2d at 301 (“Several

other factors play a major role in determining what makes

students more likely to bully. One is the climate of the school.

When a school is not supportive or is negative, bullying thrives.”).

See also Kathleen Conn, Best Practices in Bullying Prevention:

One Size Does Not Fit All, 22 Temp. Pol. & Civ. Rts. L. Rev. 393

(2013).

intimidating messages emanating from beyond the

four corners of the school property. Denying school

districts the tools to do so will not only expose students

to harm but also will expose school districts and staff

to significant financial liability. See, e.g., Estate of

Olsen v. Fairfield City Sch. Dist. Bd. of Educ., 341 F.

Supp.3d 793, 800 (S.D. Ohio 2018). “This is because

the ‘decision not to enforce rules against bullying or

punishments for bullying [gives] students license to

act with impunity.” Id. at 803 (quoting Shively v.

Green Local Sch. Dist. Bd. of Educ., 579 F. Appx. 348,

356 (6th Cir. 2014)). Seven-figure jury verdicts and

settlements in bullying cases are not uncommon.32 It

is essential that school officials retain the power to

implement effective anti-bullying protocols without

being arbitrarily hampered by meaningless physical

boundaries.

For these reasons, the Court should recognize, and

protect, school officials’ ability to regulate and, if necessary, impose discipline for harassment that affects

students’ school experience or disrupts the learning

environment at school, regardless of the aggressor’s

physical location.

The Tinker substantial disruption framework should

be applied to off-campus speech constituting peer

harassment. Tinker limited not just speech that

“materially disrupts classwork or involves substantial

disorder[,]” but other expressive conduct that is an

“invasion of the rights of others[.]” Tinker, 393 U.S. at

513. The Court should rule, as the First Circuit

recently did in Norris v. Cape Elizabeth Sch. Dist., 969

F.3d 12 (1st Cir. 2020), that “bullying is the type of

Public Justice, Jury Verdicts and Settlements in Bullying

Cases (April 2019), available at https://tinyurl.com/3xfx65cj.

conduct that implicates the governmental interest

in protecting against the invasion of the rights of

others, as described in Tinker.” 969 F.3d at 29 (citing

Kowalski, 652 F.3d at 572). Schools should be

permitted to “restrict such speech even if it does not

necessarily cause substantial disruption to the school

community more broadly.” 969 F.3d at 29.

As long as there is “a reasonable basis for the

administration to have determined both that the

student speech targeted a specific student and that it

invaded that student’s rights,” id., there should be no

First Amendment impediment to enforcing a school’s

anti-bullying policies and applicable law. “[S]chool

administrators must be permitted to exercise discretion in determining when certain speech crosses the

line from merely offensive to more severe or pervasive

bullying or harassment.” Id. at 29, n. 18 (citing Cox v.

Warwick Valley Cent. Sch. Dist., 654 F.3d 267, 274 (2d

Cir. 2011); Zamecnik v. Indian Prairie Sch. Dist. No.

204, 636 F.3d 874, 877-78 (7th Cir. 2011)). Courts

should consider the information available to school

officials at the time they disciplined the student or

implemented the speech restriction, Norris, 969 F.3d

at 31-32, and base their review on the objective

reasonableness of the school’s response rather than

the intent of the student. Id. at 25 (citing Cuff ex rel.

B.C. v. Valley Cent. Sch. Dist., 677 F.3d 109, 113 (2d

Cir. 2012)).

Finally, Amici acknowledge the “very real tension

between anti-harassment laws and the Constitution's

guarantee of freedom of speech[.]”33 There may be “no

Zamecnik, 636 F.3d at 877 (quoting Saxe v. State College

Area Sch. Dist., 240 F.3d 200, 209 (3d Cir. 2001)).

constitutional right to be a bully[,]”34 but “[t]here [also]

is no categorical ‘harassment exception’ to the First

Amendment's free speech clause[.]”35 Still, school

districts’ anti-bullying efforts are “[f]ar from being a

situation where school authorities ‘suppress speech

on political and social issues based on disagreement

with the viewpoint expressed[.]’ Morse, 551 U.S. at

423, 127 S. Ct. 2628 (Alito, J., concurring)[.] [S]chool

administrators must be able to prevent and punish

harassment and bullying in order to provide a safe

school environment conducive to learning.” Kowalski,

652 F.3d at 572.

CONCLUSION

For the reasons presented above, Amici submit that

the constitutionality of school officials’ efforts to curtail

harassment that affects students’ school experience

should not turn on whether the offending speech originated or continued on campus, off campus or online.

This Court should so rule.

Respectfully submitted,

DAVID BERYL RUBIN

Counsel of Record

THE BUSCH LAW GROUP

450 Main Street

Metuchen, NJ 08840

(732) 767-0440

drubin@buschlawgroup.com

Counsel for Amici Curiae

February 24, 2021

Sypniewski v. Warren Hills Reg’l Bd. of Educ., 307 F.3d 243,

264 (3d Cir. 2002).

Saxe, 240 F.3d at 204.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.