The 2009 case of eleven-year-old Jaheem Herrera's suicide in Georgia, which resulted after alleged repeated verbal bullying by his classmates, presents an interesting question regarding whether public schools must take action to prevent this type of behavior even if it does not disrupt the classroom. The issue to be addressed is not what speech schools can censor but whether schools must censor or prevent certain speech that has a harmful effect on the educational environment for a specific student or a specifically identifiable group of students.
If a public school student has a civil or liberty right to his education,' then it may be concluded that there is a duty imposed on the provider of that education to force students not to interfere with that right. Arguably, that duty would require the prevention of certain speech, regardless of whether the speech is true or otherwise traditionally protected as part of a "democratic" exchange of ideas if its purpose or effect is harassment or verbal bullying or if it constitutes an attack on an individual student's core characteristics. ...
The Supreme Court of the United States classifies school speech as follows: (1) speech that is to be tolerated; (2) speech that is disruptive of the educational mission; (3) speech that is vulgar or offensive and hence inappropriate; or (4) speech that interferes with the rights of another student or students, such as language that disparages a person on the basis of core characteristics. These classifications come from three now well-known cases: "(1) vulgar, lewd, obscene, and plainly offensive speech ... is governed by Fraser, (2) school-sponsored speech .. . is governed by Hazelwood, and (3) all other speech . . . is governed by Tinker." In recognizing these areas of student speech, courts have attempted to reach "a balance between the free speech rights of students and the special need to maintain a safe, secure and effective learning environment."
Jaffe, Elizabeth M. and D'Agostino, Robert J.
"Bullying in Public Schools: The Intersection Between the Student's Free Speech Rights and the School's Duty to Protect,"
Mercer Law Review: Vol. 62:
2, Article 2.
Available at: https://digitalcommons.law.mercer.edu/jour_mlr/vol62/iss2/2