The Q&A: Bradley Davis

With each issue, Trib+Edu brings you an interview with experts on issues related to public education. Here is this week's subject:

Bradley Davis is a professor in the Department of Educational Leadership and Policy Studies at the University of Texas at Arlington, where he researches education law, school administrators, leadership policy and social justice issues in schools. Davis, who was a public school educator, got his Ph.D. from the University of Texas at Austin, where he was a researcher with the Department of Educational Administration. He recently co-authored a law review article arguing that school administrators can do more to address cyber bullying.

Editor's note: This interview has been edited for length and clarity.

Trib+Edu: The Supreme Court hasn’t ruled on a cyber bullying case, but what has been the Supreme Court’s general approach on student speech rights?

Bradley Davis: Mostly everything is going to go back to [Tinker v. Des Moines Independent Community School District], and the question that’s commonly used is the Tinker test. And what was going on in the Tinker case was students who were planning to wear armbands in protest of Vietnam, and they were suspended. And that made it all the way to the Supreme Court. The Supreme Court ultimately ruled in favor of the students, and the famous lines from the majority opinion being "school children do not shed their constitutional rights at the school gates."

All of the student speech decisions and cases since Tinker go back to this Tinker test, and the basic idea there being, does the speech or expression represent a substantial disruption of the school or the potential for one? And if it doesn't, then it’s necessarily allowable protected speech. In that particular case, the students are going to wear an armband, that's not a big deal. Teachers can still teach, students can still learn. Students have an opportunity to express themselves.

Now, if the speech or expression is something that interrupts teaching and learning, then it’s not protected speech. The test being that the speech rights of students in schools is not necessarily [the same] of those of adults out in the public, everyday world. So the test is what the courts rely upon, making that determination of, "Does this represent a substantial disruption or the potential for a substantial disruption?"

Trib+Edu: So how have lower courts handled these issues?

Davis: The Tinker test seems to be the most common consideration with these lower court cyber bullying cases. Some of the cases that we were aware of when we were writing weren't necessarily over yet. There were still windows for one side or the other to appeal. But Tinker tends to be the most common thing that this goes back to. But cyber bullying is really kind of muddy waters. There’s a lot of murkiness there because so much of that occurs off campus. So when the speech or expression is used on school property, [it's on] school computers or school Internet networks or kids are using their own devices and they happen to be connected. But schools can still get involved with speech that originates off campus.

I think that’s the most difficult part that schools or school administrators have to deal with, is knowing, "When and how can we get involved with cyber bullying when we are fairly certain that most of it is taking place off campus?" So this is on private hardware like a cellphone or smartphone or someone with a laptop and they’re using their home network. Then they have to think about is this something that’s already spilling over into school and causing a disruption that we need to go ahead and take care of now, or is this something that really could have the strong potential for it? And that’s where tough decisions have to be made.

Trib+Edu: Some cases involve establishing a “nexus” that implies the off-campus speech affects students on campus. How difficult is that to prove?

Davis: That’s the million dollar question. My guess is that there’s going to be cases around this nexus thing. There’s going to be school system administration saying, "Hey, the nexus was clearly there. We had the right to do what we did." And there’s going to be parents and students on the other side saying, "No, there was not a clear nexus there. This is a school invading our students’ free speech outside of school." My guess is there’s going to be a lot of back and forth on that, and I wouldn't be surprised that determining sufficient nexus is something that gets appealed very high up the court system.

Trib+Edu: And your paper argues that administrators can and should do more about cyber bullying. Why is that?

Davis: The argument that we make in the Cleveland State Law Review article is that there needs to be an age-appropriate balance when schools are thinking about this stuff. They're totally different issues to think about what adults can say about one another through electronic means and what the legality is there with what children can say about one another through electronic means and the legality of schools getting involved. These are completely different issues. It’s very common for folks to conflate the rights of the everyday adult with a school child. They are just not the same thing, and we have decades and decades and decades of court cases affirming this.

Your question was why should school administrators perhaps do more. I think that where there is legal room for schools to protect schoolchildren and reinforce decency, they not only have the ability to do that, but I would argue they have the responsibility to do that.

Trib+Edu: One of the types of speech that can be restricted under the First Amendment is fighting words. What are they, and how do they apply to schools?

Davis: Fighting words traditionally, the way it’s understood from Supreme Court jurisprudence, is words that can reasonably be understood to basically start a fight. I can’t walk up to you on the street and just start dropping f-bombs and insulting your mom. I can’t reasonably expect that you’re not going to react to that, potentially in a physical way. So those words are not protected by the Constitution. Curse words certainly are, but not attacking, fighting words. It’s one of the few terms that’s fairly self-explanatory.

And the connection with cyber bullying is there’s some stuff that’s pretty cut and dry with cyber bullying. If there seems to be true threat in there, true threats are also not protected speech. Just like you can’t shout fire in a crowded theater, you can’t genuinely threaten someone. That’s not protected speech. So if the cyber bullying is an explicit cut and dry threat to someone, that’s not protected. And the same goes for fighting bullying that contains fighting words. That won't be protected, so school administrators, in the instances of cyber bullying where it’s either taking place on campus or where the nexus is very clearly established and there are either fighting words or true threats, courts are very clear that they can get involved there.

Trib+Edu: What could school administrators do to prevent this type of action, rather than punish after-the-fact?

Davis: I think that's something we don't talk about enough. Anybody can turn on the local news or open the newspaper and see all sorts of tragic events that are tied to issues that for some reason are either taboo or are thought to take away from the core responsibility of the schools: reading or writing or arithmetic. The question is what can be done to prevent this kind of stuff. And I think that schools have as much responsibility as they have to convey content area knowledge to kids. They have a responsibility to help formulate responsible people that are engaged, that can be critical thinkers and that have good social skills and are compassionate toward one another. But for some reason, taking time to really get into those topics is seen as a distraction or outside the responsibilities of the school. Personally, I certainly wish that were not the case.