Schools, Cyberbullies, and the Surveillance State
Ahrens, Deborah, American Criminal Law Review
In recent years, parents, educators, and the media have expressed a rising concern about the prevalence of bullying in American schools. In particular, this concern has been brought to the forefront with the emergence of "cyberbullying" and "sexting." In response to this perceived epidemic of poor student behavior, legislatures and school officials have adopted a variety of new laws and search policies. Most notably, they have adopted policies giving school officials the authority to search students' electronic communication devices. This Article narrates these developments, assesses their impact on the lives of students and the culture of our schools and then locates them in broader trends in schooling, parenting, and policing. More specifically, this Article explores the degree to which our sharp spike in concern over traditional bullying, cyberbullying, and sexting, and our resort to the surveillance of student devices as a response to such a concern, reflects important lessons about our collective conception of student privacy, about the expectations parents have of the role the school will play in their children's lives, and about the transformation of public schools into public institutions focused on criminal law and criminal-law-like approaches to perceived social problems. When analyzed in cultural context, our schools' initial response to concerns about cyberbullying and sexting is disquieting. Though understandable--indeed even predictable--the approaches Americans have thus far chosen do not reflect considered policy supported by empirical evidence, but, rather, one more step in the reorientation of American institutions generally, and public schools specifically, towards the reflexive adoption of surveillance and punishment as the response to any potentially serious problem.
TABLE OF CONTENTS INTRODUCTION I. THE CRIME CONTROL APPROACH TO EDUCATION A. Juveniles as Subjects for the Criminal Justice System B. Schools as Sites for Policing C. Crime Control Approaches to School and Evolving Attitudes About Schools and Students II. BULLYING AND CYBERBULLYING AS PANDEMIC A. High Profile Incidents and Increased Public Attention B. The Slipperiness of "Bullying" C. Cyberbullying: Adding Technology to the Mix III. LEGISLATIVE AND ADMINISTRATIVE RESPONSES TO BULLYING AND CYBERBULLYING A. Getting Tough on Bullying B. Increased Surveillance of Students and Their Devices 1. An Emerging Trend and its Implications 2. The Possibility of Legal Constraint C. Criminal Prosecutions IV. PARENTS, SCHOOLS AND SEARCHES A. Parental Reactions to School Policies B. Intensive Parenting and the Surveillance of Students C. Where Parents Draw the Line, or How the Sex Panic Trumps All Other Panics CONCLUSION
There is probably no institution more familiar to the average American than the public school. Most people have attended one, (1) stories and images of the school experience dominate literature and media, (2) and, largely for these reasons, everyone believes they understand what public schools are like. A common understanding is they are not like the public schools we adults attended in our youth, which were of course safer, more innocent, and stocked with students who were better-behaved. Over the past several decades, schools have been reframed into dangerous places rife with potential for crime and violence, and as a result have been reworked into places where criminal-law-like approaches to perceived social issues prevail. Ostensible epidemics of disorderly behavior and criminal activity have been thought to require the kinds of "tough on crime" approaches documented elsewhere in American society--increased surveillance of potential perpetrators, additional crimes with which people may be charged, and expanded punishment for those found to have transgressed. (3)
The expansion of criminal law-like approaches to on-campus issues has generated a fairly rich body of case law and literature, much of which has addressed actions and procedures aimed at combatting student drug use and possession. …