Minnesota’s New Bullying Law and the Ability of Educators to Respond to Off-Campus Bullying

Minnesota’s New Bullying Law and the Ability of Educators to Respond to Off-Campus Bullying Cyberbullying Research Center

On April 9th Minnesota Governor Mark Dayton signed into law the “Safe and Supportive Minnesota Schools Act” which, among other things, updates the state’s anti-bullying legislation. The previous version of the law, last updated in 2007, was much maligned as being among the “worst in the nation.” I’m not sure that designation is accurate, but it was by far the shortest bullying law in the U.S. at just 37 words in length. The new law is much more comprehensive, which had also led to attracting its share of critics.

Some argue that it is an attack on local control or that it somehow challenges the ability of parents to respond to bullying in a way that they think is appropriate. Others say it threatens free speech. Still others argue that this is just another unfunded mandate for schools, and to that I say, fair enough. I am concerned that it appears that no additional resources are being allocated to schools to implement the new provisions. This is unfortunately an all-too-common element of new statutes that have been passed across the country.

One other aspect of the new law that seems to be attracting criticism is the included provision that specifies that schools are entitled to discipline students for bullying, even if the bullying didn’t occur at school. The section of the new law that is most relevant to this states:

Student bullying policy; scope and application. (a) This section applies to bullying by a student against another student enrolled in a public school and which occurs:

(1) on the school premises, at the school functions or activities, or on the school transportation;
(2) by use of electronic technology and communications on the school premises, during the school functions or activities, on the school transportation, or on the school computers, networks, forums, and mailing lists; or
(3) by use of electronic technology and communications off the school premises to the extent such use substantially and materially disrupts student learning or the school environment.

(emphasis added)

This is an issue we have discussed at length on this blog and so I wanted to once again clarify what schools can and can’t do when it comes to responding to off-campus student speech. Students from a University of Minnesota Law School course entitled “Student Speech: Rights and Regulations” wrote an editorial commentary that was published in the Minneapolis Star Tribune where they highlight some of the issues. I had the privilege of discussing free speech as it relates to teen cyberbullying with this class back in February so I was happy to learn that they were weighing in on this discussion. Their underlying concern seems to be that the law in this area is far from settled and that the new bullying law may be setting schools up for legal challenge, especially if they discipline students for off-campus behaviors.

In their commentary, the law students assert that “There is general agreement that public school students have First Amendment rights, but little consensus on how to address student bullying that occurs online at home.”  Indeed, students do in fact have First Amendment rights, including the right to free expression. But it is important to clarify that many court cases have demonstrated that those rights are curtailed significantly while at school, or to the extent the expressions significantly impact what is going on at school (e.g., Bethel v. Fraser [1986] and Hazelwood v. Kuhlmeier [1988]). In general, student speech at school that is lewd, profane, threatening, or offensive is subject to discipline.

Courts have also upheld the ability of schools to discipline students for their off-campus expressions (e.g., Fenton v. Stear [1976], J.S. v. Bethlehem Area SD [2000], Wisniewski v. Board of Education of the Weedsport Central School District, [2007], Doninger v. Niehoff [2011], and Kowalski v. Berkeley County Schools [2011]).  The key issue in these types of cases is whether the off-campus speech resulted in, or has a foreseeable likelihood of resulting in, a substantial disruption of the learning environment at school (see also Barr v. Lafon, 2008). In cases where courts have agreed with school officials that a substantial disruption existed or was eminent, their authority to discipline was upheld. The only cases I am aware of where schools lost at court was when they disciplined students on the extreme end of the punishment continuum (long-term suspension or expulsion) without being able to articulate a disruption at school (e.g., J.S. v. Blue Mountain [2007] and Layshock v. Hermitage [2006]). I’m not aware of a single case where a court at any level agreed that a disruption had occurred and yet still ruled against the school.

And even in cases where schools have over-stepped their authority by punishing students for non-disruptive off-campus behaviors, the courts have been careful to state that their rulings do not close the door to all possible instances where a school would be correct to respond. Indeed, the Third Circuit, which has arguably wrestled with this issue more than any other appellate court, recently concluded: “The issue is whether the Supreme Court’s decision in Tinker, can be applicable to off-campus speech. I believe it can, and no ruling coming out today is to the contrary.”

The law students are correct, however, that the issue of off-campus online speech has not yet been directly addressed by the U.S. Supreme Court (though the Court has declined to review at least three cases where lower courts have returned mixed interpretations).

It should also be noted that statutory language like that included in the Minnesota law is not completely new. There are at least a dozen other states across the U.S. that have updated their anti-bullying statutes to explicitly allow schools to discipline students for their off-campus behaviors when (as discussed above) said behaviors infringe on the rights of other students or substantially and materially disrupt the learning environment at school (or have the likelihood of doing so). For example, New Hampshire law states: “Bullying or cyberbullying shall occur when an action or communication…Occurs off of school property or outside of a school-sponsored activity or event, if the conduct interferes with a pupil’s educational opportunities or substantially disrupts the orderly operations of the school or school-sponsored activity or event.” Tennessee law allows for discipline “If the act takes place off school property or outside of a school-sponsored activity, it is directed specifically at a student or students and has the effect of creating a hostile educational environment or otherwise creating a substantial disruption to the education environment or learning process.” These provisions are consistent with existing case law, and I am not aware of any current legal challenges to these statutes.

So my perspective is that we do in fact have some clarity, in that we do know that there are circumstances where schools are well within their rights to discipline students for certain off-campus behaviors. I do fear that we may be asking too much of school administrators in requiring that they are able to clearly distinguish those off-campus behaviors that result in a substantial disruption at school from those that don’t. Some of the brightest current and future legal minds debate these issues so how on earth can we expect Mr. or Mrs. Principal to get it right? It would have been nice if the Minnesota legislature would have clarified what exactly “substantial disruption” means (some states have, see laws in California and Arkansas). For now, we simply encourage educators to apply reasonable sanctions when they believe it to be necessary to stop the bullying behaviors. The only time they are likely to be sued is if they are deliberately indifferent to bullying or if they respond in an overly harsh manner (expulsion or long-term suspension). Reasonableness is generally understood and accepted by the courts.

For a more detailed discussion of these issues, I encourage readers to check out Nancy Willard’s new book “Positive Relations @ School (& Elsewhere)” which has a whole chapter on student off-campus speech.


  1. Interesting topic in the law changes. I do see both sides to these changes. I understand it may seem as though rights are taken if one is disciplined for their actions outside of the school/school day. I also see it as taking away rights of the students who may be subject to cyberbullying. The likelihood of them wanting to come to school or feeling safe in a learning environment is questionable. In my opinion, every student who walks through the doors of our school and especially my classroom should feel safe and encouraged to learn. If the student who is cyberbullying is sitting right in class with those they are bullying I believe this safe learning environment would be disrupted. Being an aspiring administrator I do see the issues that can occur with putting this power of disciplining cyberbullying instances occurring outside of the school. Some may interpret what the law exactly means and may run into problems finding the correct avenue to take. I do believe that being able to use the information and instances that take place out of school are necessary. There is a good chance that the cyberbullying is occurring both in school and outside. Having more opportunities to get to the root of the problem and address it is important. I agree disciplinary actions should take place, but ultimately it’s about preventative measures. I am not sure that we will ever eliminate bullying of any kind within our schools and outside our schools, but as educators, parents, administrators, etc it is our right to help children see the value in who they are, respect themselves, and truly know their worth to others. This may diminish the amount of bullying and especially cyberbullying that takes place. Have this change in the law is a positive move, but we need to do much more for our children to truly get to the root of the problem.

  2. Dr. Patchin, thank you for responding to our recent piece in the Star Tribune. Our Student Speech: Rights and Regulations class is the first student-designed, student-led course at the law school, so we are particularly proud of being published.

    We are very thankful that you braved the arctic vortex to speak with us earlier this semester. In many ways, your lecture informed the op-ed. It was a consensus-driven piece; some of my classmates share your points of view.

    In regard to the issue of off-campus speech, you article above frames the issues very well. As your writing often notes, bullying is a dead serious issue. Students are suffering. Some have gone so far as to take their own life because of bullying, while others suffer less grave kinds of harm everyday.

    In light of the severity of the issue, the difficult task for any decision-maker is to balance students’ First Amendment rights with the importance of maintaining a safe and supportive school environment. This is not an easy burden. In my personal view, despite their well-intended efforts to protect public school students, many state legislatures over-extend schools’ disciplinary reach when enacting anti-bullying statutes.

    Much of your response focuses on whether or not it is legal for a public school to discipline students for off-campus, electronic speech under the Tinker “material and substantial disruption standard.” Your perspective is that the courts have provided clarity on this issue. I very respectfully disagree.

    The Second, Fourth and Eighth Circuits do allow public schools to discipline students for some off-campus speech. These jurisdictions typically require that the speech have a sufficient “nexus” to the school. For example, the Second Circuit addressed the regulation of off-campus, electronic speech in Wisniewski v. Board (2d. Cir. 2007). In Wisniewski, the court held that the requisite inquiry is whether it were reasonably foreseeable that the speech would reach school authorities. In siding with the school, the court determined that the “foreseeability nexus” had been established because the student communicated the off-campus speech at issue to fifteen other students during a three week period. Under those circumstances, the court concluded that it was reasonably foreseeable that the disruptive speech would arrive on campus, and therefore school discipline was proper. (I will briefly discuss the troubling nature of this holding below.)

    Nevertheless, the Third and Fifth Circuits have NOT concluded that the Tinker “substantial and material disruption” test applies to off-campus speech.

    In your reply to our op-ed, you cite a 2010 Third Circuit concurrence opinion signed by Judges Jordan and Vanaskie. The case is Layshock v. Hermitage School District. As you’ve noted, these Third Circuit judges concurred with the majority, but added a caveat that Tinker should apply to off-campus speech. However, in a companion case decided the very same day, five Third Circuit judges opined that Tinker does NOT apply to off-campus speech and that “the First Amendment protects students engaging in off-campus speech to the same extent it protects speech by citizens in the community at large.” (J.S. v. Blue Mountain, 3d. Cir. 2010.) At best, the Third Circuit has “assume[d], without deciding, that Tinker applies” to off-campus speech. (Id.)

    Indeed, the question of whether a school can regulate off-campus speech is far from settled in the courts of appeal. In a recent off-campus speech case, the Fifth Circuit noted this predicament, sympathizing with school administrators:

    “A reasonable school official facing this question for the first time would find no ‘pre-existing’ body of law from which he could draw clear guidance and certain conclusions. Rather, a reasonable school official would encounter a body of case law sending inconsistent signals as to how far school authority to regulate student speech reaches beyond the confines of the campus.” (Porter v. Ascension Parish, 5th Cir. 2004.)

    But even if the courts unanimously held that off-campus, electronic student speech were entirely within the school’s disciplinary jurisdiction, one ought to query whether schools ought to engage in regulating off-campus speech.

    You are correct in asserting that students generally have lesser First Amendment rights while on campus. (Although the U.S. Supreme Court has also maintained that “[t]he vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools.” [Tinker quoting Shelton v. Tucker]). The rationale here is in part because schools assume the role of a parent while a child is in the classroom. Courts recognize this relationship through in loco parentis doctrine.

    But when a child is at home, when are they no longer under the school’s control? At what point does a student assume the role of full United States citizen? Part of the reason why it is tolerable that public school students enjoy less protection from the First Amendment while at school is the assumption that they regain that protection while away from school.

    This is why the “nexus” standard is so disturbing. For a school to be able to rationalize discipline under the Wisniewski holding, for instance, all it must do is establish a reasonable foreseeability that the speech at issue would reach school grounds. Anyone with school-aged children knows that the majority of a minor’s friends are also his or her classmates. When would it NOT be foreseeable that speech between two classmate-friends could reach school grounds? In my view, parents should be deeply troubled by this holding.

    As Justice Oliver Wendell Holmes famously remarked, “hard cases make bad law.” Nobody–including our lawmakers–wants to be viewed as “pro-bullying.” As a student, I oppose bullying and bullying-related violence in all its forms. Nevertheless, I also feel compelled to stand up for the Free Speech rights of our public school students. I’m glad that Dr. Patchin has given me the opportunity to do so.

    • Thanks Ian – I am glad that we are able to have this important dialog. And I feel it is important to express these issues in this space so others too can learn from the analyses we have undertaken. I agree that it can potentially be a very slippery slope with respect to schools regulating off-campus speech. I’m all about protecting free speech. But I don’t think bullies should be able to hide behind this mantra. Some are of the opinion that the First Amendment allows anyone to say anything they want at any time under any circumstance, though I don’t believe you would fall within this camp. The court has clearly carved out certain exceptions to the right to free expression, and most notably relevant to our discussion here is that quite simply one is not allowed to threaten, intimidate, stalk, harass, or defame another. But no legislation will ever be able to account for all of the unique factors associated with every possible permutation of potential harm.

      That said, I do think it is necessary for lawmakers or the courts to give educators, parents, and students themselves some guidance as to the circumstances under which school discipline is allowable (or even required) when off-campus speech crosses the line and significantly impacts the school environment. And while I would love for even more clarification, I believe we do have a standard to work with. Anytime a student’s off-campus behavior or speech substantially or materially disrupts the learning environment at school or interferes with a student’s rights, including the right to be “let alone” (see Tinker), reasonable school-based discipline is allowed. I am basing this conclusion on several cases that I outlined above. You cite Porter as a case that challenges (or at least questions) this assertion, yet it was ruled in 2004, before many of the cases I cite were decided (Wisniewski; Doninger; Kowalski). In my view, Kowalski (2011) is most useful in its summary of our current understanding. Here are some relevant passages:

      “Although the Supreme Court has not dealt specifically with a factual circumstance where student speech targeted classmates for verbal abuse, in Tinker it recognized the need for regulation of speech that interfered with the school’s work and discipline, describing that interference as speech that ‘disrupts classwork,’ creates ‘substantial disorder,’ or ‘collid[es] with’ or ‘inva[des]’ ‘the rights of others.’

      “Thus, the language of Tinker supports the conclusion that public schools have a ‘compelling interest’ in regulating speech that interferes with or disrupts the work and discipline of the school, including discipline for student harassment and bullying.

      “Given the targeted, defamatory nature of Kowalski’s speech, aimed at a fellow classmate, it created ‘actual or nascent’ substantial disorder and disruption in the school.

      “Thus, even though Kowalski was not physically at the school when she operated her computer to create the webpage and form the “S.A.S.H.” MySpace group and to post comments there, other circuits have applied Tinker to such circumstances.”

      My simple challenge to your and your classmates is to find any case (excepting those at the lower court level – though I’d be interested in those too) where a court has reviewed the facts, determined that there was indeed a substantial disruption, yet still disallowed school discipline. I am not aware of a single case like this. So the bigger issue of concern to me, for the sake of school administrators and others, is to more carefully clarify what exactly a substantial disruption looks like.

      Thanks again for taking the time to provide your thoughts!

  3. There are some people that argue the issue with bullying can only be resolved at a basic level, in the home by parents and in the school settings by school officials. While these components are very important in the process of stopping bullying, and it cannot be done without their involvement, the issue comes down to funding and policy. There are constantly stories on the news about budget cuts in state educational programs every year. More and more programs are being removed from the curriculum that enriches the daily lives of students. If the requirement to fund bullying prevention is placed on the already too tight budgets of schools, there is very little chance that the problem will be faced with all the attention that it
    really needs. Bullying damages the minds and souls of its victims. It threatens the support and structure of families and communities. It also tears down the possibility of constructive lives for the bullies, their families and all future encounters with society. With this threat to society in mind, it is important to see that what has been done so far to combat bullying is not nearly enough. Yes, communities, schools and even state programs have reached out to provide training and assistance to prevent bullying. Policies are being written, and definitions of bullying are being developed to prosecute bullying as a criminal act. Even with all that there is one crucial element that has not yet been fully realized. This element could be the component that makes the biggest difference in the battle to end bullying. That element is the involvement from the federal government. We are not talking about statements or official positions; we are talking funding and policy. The federal government should provide funding to the Department of Education to develop nationwide outreach programs to establish consistency in the effort to prevent bullying and create federal policies to protect children when they are bullied.

  4. Who knew that technology could be deadly for children?
    With the every growing availability of technology to children and teens Cyberbullying
    is a problem of epic proportions that is harming our youth. This type of
    bullying can be significantly reduced if our school systems in every town,
    city, and state in the country implements a mandatory anti-cyberbullying class
    in all grade levels that is customized for each grade level every year. It is
    vital the Department of Education does this, as so many of these acts leads to
    depression, poor grades and even suicide.
    It has been shown in studies that the younger children want to follow
    rules especially when it comes to using computers, particularly the internet. In
    my research I have found there are now more and more resources specifically for anti-cyberbullying. I
    also found that Sameer Hinduja, Ph.D. and Justin W. Patchin, Ph.D. are leaders
    in research and strategies against cyberbullying. They state that the most
    important thing schools can do is educate the school about responsible internet
    use and inappropriate use of internet, specifically cyberbullying, will result
    in discipline. These resources can be an easy inexpensive tool for the education
    of our students. If we teach our youth to be good and respectful we can significantly
    reduce the occurrences of cyberbullying.

Leave a Reply

Your email address will not be published. Required fields are marked *