9 minute read
Legal Forum
Bullying of Athletic Team Members: Tinker's Second Prong
Dr. Dave Dagley Professor Emeritus, University of Alabama
and
Dr. Amy Dagley Assistant Professor, University of Alabama at Birmingham
Robert Roe was a member of the hockey team at Hopkinton High School in Massachusetts. (Note: each of the names mentioned in this commentary were pseudonyms supplied in the court report.) In February 2019, Robert’s father filed a complaint on the school’s complaint form that Robert was being bullied by another member of the hockey team. The complaint said that the other team member had videorecorded Robert in the locker room and other areas without Robert’s consent. The complaint also said that Robert’s father had previously complained to the hockey coach about bullying in December 2018, but the bullying behavior had continued. This series of events led to a recent federal appellate case out of Massachusetts, Doe v. Hopkinton Public Schools (No. 20-1950. 1 st Cir. Filed Nov. 30, 2021), which is the source of this commentary.
Like Alabama, Massachusetts has an anti-bullying statute which requires schools to adopt policies against harassment and bullying. Alabama actually has passed several applicable acts: Ala. Acts 2009-571, Section § 16- 28B-2 requires school boards to adopt policies to prevent harassment; Ala. Acts 2016-310, Section § 16-28B-8 requires suicide prevention policies; Ala. Acts 2018-472, Section § 16- 28B-3, defines harassment as including cyberbullying; and, Ala. Acts 1981-824, Section § 16-1-23, prohibits hazing. The Massachusetts statute has a detailed definition for “bullying,” and the Hopkinton High School had closely followed the statutory definition with some minor differences in language. Following their high school’s policy, the two Massachusetts assistant principals led an investigation into harassment against Robert by members of the hockey team.
From their investigation, the assistant principals learned that Robert was actively excluded at hockey team spaghetti dinners and on the team bus. Other team members took videos and photos of him without his consent, in the locker room and on the bus. They whispered about him in his presence, and laughed at him. They tried to make him feel alone. One team member attempted to get a videorecording of Robert saying such things as “I am gay” or words related to his anatomy. The assistant principals reported that eight team members had participated in an online Snapchat group, beginning in December 2018, that featured what the court called “demeaning and expletive-laden postings” regarding
Robert’s appearance, his voice, his intimate anatomy, and his parents and grandmother’s appearance. One team member verified that the group picked on Robert; another stated that Robert had been targeted. A third team member said that the group’s intent was to laugh at Robert, and he apologized for his conduct. After the assistant principals delivered their report, all eight team members who were in the Snapchat group were suspended from the hockey team for the remainder of their season. The principal then held individual disciplinary hearings, culminating in suspensions for varying number of days for the harassing hockey team members. Robert received counseling from school specialists and also received professional mental health treatment. He declined to try out for the lacross team in the spring, and left school at the end of that academic year to attend a school in Quebec, Canada.
One of the two team members, John Doe, filed suit (by and through his mother) against the school district, the superintendent, and the high school principal, alleging that the school and administrators had violated his free speech and free association rights under both federal and state law. Then, Ben Bloggs (also by and through his mother) also filed a complaint in federal district court, and the judge consolidated the two cases. The parties cross-moved for summary judgment, and the parties agreed to proceed on a case-stated basis. In a casestated decision, the parties waive trial and present the case on the undisputed facts in the pre-trial record. Then, the court can issue its findings of fact and rulings of law, without the time, effort, and expense of a full trial.
The heart of the ruling by the federal district court judge went to interpretation of the well-known student speech case of Tinker v. Des Moines Indep. Sch. Dist., 393 U.S. 503 (1969). The judge in this case quoted the central holding in Tinker, its legal rule, that student speech “may be regulated only if it would substantially disrupt school operations or interfere with the rights of others.” Doe, 490 F.Supp.3d at 457 (emphasis added). In student speech cases and in school law courses since 1969,
the focus from Tinker has more often been on the first prong of the Tinker rule, the part before the word “or.” And in time, the first prong of the Tinker rule usually added another adjective supplied elsewhere in the Tinker decision: that student speech may be regulated if it would materially and substantially disrupt school operations. See, Tinker, 393 U.S. at 513. This case is one of a growing number of student speech cases where the focus is instead on the second prong of Tinker, that student speech may be regulated if it interferes with the rights of others. The federal district court determined that Massachusetts’ anti-bullying statute provided a right to education in a bullying-free environment, and Robert Roe’s right to be educated in a bullying-free environment was impaired by the bullying. The federal district court also struck down a challenge against the Massachusetts anti-bullying statute, on grounds that it was constitutionally vague. The two team members, Doe and Bloggs, then appealed the decision to the First Circuit Court of Appeal.
A three-judge panel in the appellate court affirmed the district court’s decision. Hopkinton High School and its administrators had not violated the rights of Doe and Bloggs when they were suspended for bullying hockey teammate Robert Roe. The appellate court’s reasoning is instructive. The court first asserted that courts generally defer to school administrators’ decisions regarding student speech so long as their judgment is reasonable, citing Norris v. Cape Elizabeth Sch. Dist., 969 F.3d 12, 30 (1 st Cir. 2020), and citing three more landmark Supreme Court Decisions: Hazelwood, 484 U.S. 260, 273 (1988); Bethel 478 U.S. 675, 683 (1986); and Morse, 551 U.S. 393, 403 (2007). The court also distinguished the facts of the most recent Supreme Court student speech decision, Mahanoy Area Sch. Dist. v. B.L., 141 S.Ct. 2038 (2021), in which off-campus Snapchat posts were not directed at an individual, were criticism of community and school rules, and did not create a substantial disruption under Tinker’s first prong. 141 S.Ct. 2038, 2045-2047.
Then, the appellate court held that Doe’s and Blogg’s speech was not protected by the First Amendment. The two students argued that they had not directly bullied Robert, for example, by taking videos of him without his consent, or trying to get him to say something inappropriate in a video, or by isolating him from the hockey team. The appellate court quoted a statement by the district court:
Neither Doe nor Blogg had created the Snapchat group. However, the appeals court noted that both had participated in Snapchat conversations and had both demeaned Robert and his family members on Snapchat, for an extended period of time. The court held that the lower court had not erred in finding that Doe and Bloggs participated in encouraging the group and bullying by the group. By their active participation in the chat, they encouraged the bullying that went beyond (protected) speech.
Note that this case involves two students who disagreed with their disciplinary consequences. It does not involve the victim of the bullying suing the school district and its administrators for not acting, which certainly would have been more expensive. Six other students did not challenge their discipline, indeed several admitted their wrong-doing. The school administrators in this situation acted admirably. They began an active investigation immediately upon receiving the complaint from the father. They followed policy. They interviewed the victim and his family members, they interviewed relevant team members and spoke with law enforcement. They retained and secured records, audio- and videorecordings, and Snapchat screenshots. They followed appropriate authority relationships, with the correct administrator making the decisions within their authority: the athletic director suspended the eight hockey players for the remainder of their season; the assistant principals made recommendations to the principal, who made individual decisions about the appropriate consequences for each student. (Doe was suspended for three days; Bloggs was suspended for five days.) The administrators did things that were reasonably calculated to stop the bullying.
The Massachusetts General Assembly, in their anti-bullying statute, articulated a right for school students to be educated free of a hostile environment due to bullying. The courts involved with this case recognized that right. Bullying, like making threats, are not speech that is protected by the First Amendment. The Alabama Legislature, through four related acts, have surely articulated a right for school students to be educated free of a hostile environment due to bullying and harassment. Further protection in federal law is extended for students in protected classes, who are also free to be educated in a hostile environment due to bullying or harassment. Those protected classes would include students with disabilities and students who are discriminated against because of race, color, national origin, or gender. For school administrators, it is important to know that students in these protected classes can be plaintiffs who can use 42 U.S.C. § 1983 to sue them in their personal capacity for failure to protect them from bullying and harassment.
