4 guidelines from case law can help shape your response to cyberbullying

Teenage Girl Victim Of Bullying By Text MessagingWhat legal obligations and rights do schools have to stop cyberbullying?

With laws and court decisions on cyberbullying behaviors constantly evolving, there’s no simple answer to this pressing question. But, based on recent case law and key legal issues, two cyberbullying experts provide educators with 4 general guidelines in a recent issue of Preventing School Failure.

When confronted with a cyberbullying problem in their schools, educators are essentially caught between laws defending free speech and expression and laws guaranteeing civil rights and protecting individuals from harassment and discrimination, write Sameer Hinduja and Justin Patchin.

“As a result, many school district personnel are justifiably reluctant to get involved in cyberbullying cases because they fear they will overstep their legal authority,” write the two researchers. Recent court decisions favoring students’ rights to free speech and expression and ordering school payouts for retribution have had a chilling effect on educators’ willingness to take action in cyberbullying incidents.

The standpoint of inaction to cyberbullying

But inaction is hardly safe ground from either a moral or legal standpoint, according to the researchers. There are a number of situations when it is completely appropriate and necessary for school officials to get involved, they write.

The 4 guidelines to consider when educators are trying to determine how much authority they have to intervene in a case of cyberbullying are:

  • Does it substantially or materially disrupt learning?
  • Does it interfere with the educational process or school discipline?
  • Was school-owned technology involved?
  • Were other students threatened or their civil rights infringed?

Case law

In Beussink v. Woodland R-IV School District (1998), a junior from Marble Hill, Missouri sued the district after being suspended for 10 days for creating a web site from home that denigrated the school’s administration using vulgar, but not defamatory or threatening language. In Emmett v. Kent School District No. 415 (2000), the court also ruled against the school district even though students were targeted as well as school officials. In this case, a high school senior had created a web page with mock obituaries of students and educators.

The court found that the school had overstepped its bounds in its suspension of the student because school-owned equipment had not been used and the web page had not been produced on school time.

The court said the school was unable to show that anyone listed on the site actually felt intimidated or threatened or that it resulted in a significant disturbance at school.

When a Pennsylvania English teacher was the sole target of cyberbullying (J.S. v. Bethlehem Area School District 2000), the court upheld the expulsion of the student who had created a threatening web page. The web page included derogatory and threatening comments about the teacher and included lists: “Why should she be fired” and “why should she die.” The writer also added “Give me $20.00 to help pay for the hitman.”

The court upheld the expulsion because the teacher indicated she had been traumatized by the incident and had suffered physical problems such as headaches, loss of appetite, difficulty sleeping and problems with her weight as well as anxiety and depression. The incident had also disrupted her ability to teach. The district argued that the web page had had a demoralizing impact on the school community comparable to the death of a student or staff member because of a feeling of helplessness.

In a similar case, also involving an English teacher, (Wisniewski v. Board of Education of the Weedsport Central School District, 2007), the court found in favor of the district in an 8th-grade student, Aaron. The boy had created a graphic icon of his English teacher’s head being shot with a bullet from a gun along with the text “Kill Mr. Vandermolen”. He then sent the icon via instant message to 15 of his friends, among whom it circulated for 3 weeks before the teacher was informed. After hearing from the distressed teacher, the principal of the school made the decision to suspend the student. The parents appealed the lower court’s decision but it was upheld by the higher court.

School policies advisable

The disciplinary efforts of school districts also should be supported by strong and detailed policies outlining what online behaviors are and are not acceptable, and what penalties will follow if the policy is contravened,” the researchers write.

“This will help the district avoid the appearance of deliberate indifference by demonstrating to third parties that they are anticipating the foreseeable danger of cyberbullying, and are exercising reasonable care to address and prevent incidents.”

In some states, local laws direct school districts to update their harassment policies to cover electronic communications. The primary problem states face is crafting legislation that protects students without overly restricting speech, the researchers write.

Civil classroom atmosphere and unpredictable court rulings

When a high school senior in western Washington posted covertly taken video of a teacher on his MySpace page, the court defended the school’s right to suspend the student and peers that were also involved in the incident. The MySpace page ridiculed the teacher’s hygiene, organization, body weight and classroom conduct and showed students making faces behind her and performing pelvic thrusts.

The website activity was found to be in violation of the school district’s own policies of prohibiting covert video. In its decision, the court wrote: “The school is not required to establish that an actual educational discourse was disrupted by the student’s activity. The ‘work and discipline of the school’ includes the maintenance of a civil and respectful atmosphere towards teachers and students alike—demeaning, derogatory, sexually suggestive behavior towards non-suspecting teachers in a classroom poses a disruption of that mission whenever it occurs.”

Court rulings, however, are unpredictable and not all decisions that follow these 4 guidelines will hold up in court, the two experts warn. Demonstrating substantial and material disruption of school activities due to cyberbullying paves the way for formal discipline by educators. The harm suffered by victims should also impel school officials to action.

“Cyberbullying: A Review of the Legal Issues Facing Educators,” by Sameer Hinduja and Justin Patchin, Preventing School Failure, Volume 55, Number 2, 2011.

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