Published Online: February 4, 2011
Published in Print: February 9, 2011, as CyberBullying

Features

Schools Tackle Legal Twists and Turns of Cyberbullying

High-profile incidents put legal, policy issues in the spotlight but lack of clarity remains

It was just before winter break in Pennsylvania’s Hatboro-Horsham school district when Assistant Superintendent John R. Nodecker was alerted to a case of cyberbullying. Some students had created an online poll ranking the “hottest” girls in the district’s high school and middle school.

The poll quickly took on a negative and harassing tone as people posted comments about students’ appearance, gender, and sexual orientation.

Nodecker alerted the school board and superintendent, who wanted action taken. He worked with the district’s director of technology and determined some of the posts had been made from inside district schools, while others were made from off campus. He contacted school principals, who, in turn, got in touch with parents of both the students who posted the comments and those who were the targets of comments and asked for their support in dealing with it. The students were instructed to stop posting and were disciplined.

Nodecker contacted the poll’s hosting site, GoDaddy.com, to request that the poll be taken down, but received no response, though the site has an abuse hotline available 24 hours a day. However, the 5,000-student district’s technology director was able to block access to the site from school grounds.

The Faces Behind Cyberbullying


Megan Meier, 13,
Immaculate Conception Catholic School,
Dardenne Prairie, Mo.
Committed suicide Oct. 17, 2006, after experiencing cyberbullying from former friends—and one mother—through a fake MySpace account.

Tyler Clementi, 18,
Rutgers University,
New Brunswick, N.J.
Committed suicide Sept. 22, 2010, after his college roommate secretly recorded, and then posted on YouTube, a video of Clementi having a sexual encounter with a male student.

Phoebe Prince, 15,
South Hadley High School,
South Hadley, Mass.
Committed suicide Jan. 14, 2010, after experiencing cyberbullying through social media and text messages.

“By noon the next day, we had done all of these things, and the message was very strongly sent to our students that we don’t want this happening,” Nodecker says. “This told students we’re not going to run away from these incidents.”

Tragedies tied to cyberbullying have made national headlines: the story of 15-year-old Massachusetts student Phoebe Prince, who committed suicide in January 2010 after extensive cyberbullying; the suicide of 13-year-old Missouri student Megan Meier in 2006 after she was targeted through the social-networking site MySpace.

But school leaders across the country are dealing with more-routine cases daily and often feel they have little legal advice or precedent to guide them in their decision making.

Case law regarding student speech, particularly off-campus speech, is outdated, many legal experts say. School leaders say it’s unclear just what actions they can take in some cyberbullying cases. And recent rulings in cases that have dealt with some forms of cyberbullying haven’t clarified the matter.

Most current rulings pertain to students’ harassment of administrators instead of cyberbullying between students. In fact, two 2010 cyberbullying cases with similar scenarios received opposite rulings by the same court and, as a consequence, are being closely watched by educators and legal experts.

To further complicate matters for school officials, many states now have laws that specifically address cyberbullying, often requiring schools and districts to adopt anti-cyberbullying policies and programs but providing little guidance or funding for doing so.

The U.S. Department of Education is also examining bullying issues. It held its first-ever bullying “summit” in August 2010 and sent out a Dear Colleague letter to school leaders emphasizing the need to take action against bullying. While the letter clarified the statutes that allow school leaders to take action in such cases, it did not specifically mention cyberbullying. However, federal education officials say they expect to release guidance for school leaders on cyberbullying in the spring.

Against that backdrop, parents, politicians, and civic leaders are putting increasing pressure on school leaders to “do something” about the wave of cyberbullying being reported in the media. “There’s a confusion to the entire situation,” Nodecker says. The case law and state and federal requirements, he says, leave school and district leaders “in a kind of place where every situation seems like a test case.”

‘It’s Beyond Murky’

Schools should have no qualms about taking action when cyberbullying affects the school setting, causing a safety issue either to other students or to faculty members, says Francisco M. Negrón Jr., the general counsel for the National School Boards Association, based in Alexandria, Va.

But the legalities surrounding how schools can respond in less clear-cut cases of cyberbullying are bewildering, to say the least, says Thomas E. Wheeler, the chairman of the Council of School Attorneys, a group affiliated with the NSBA, and a partner in the Indianapolis law firm of Frost Brown Todd LLC. “It’s beyond murky. It’s contradictory,” he says.

The legal starting point is the U.S. Supreme Court’s 1969 ruling on student speech in Tinker v. Des Moines Independent Community School District, which centered on students who wore black armbands to school to protest the Vietnam War. In that case, the school banned the armbands under its dress code and disciplined students who wore them. Students challenged the policy, and the Supreme Court overturned the ban, stating that “students do not shed their constitutional rights at the schoolhouse gate.”

In its 7-2 ruling, the court limited schools’ authority to curtail controversial student speech to instances when speech “substantially and materially” disrupts a school’s educational mission, or when the speech impinges on the rights of other students to learn.

But that ruling dealt with on-campus speech, Wheeler says, and cyberbullying often takes place off campus from home computers or mobile devices. Because of that difference, legal experts often look to the 2007 decision in Morse v. Frederick, in which the Supreme Court upheld a student’s suspension for speech that took place across the street from the school because the speech, in the view of the principal, promoted the use of illegal drugs. The court reasoned in its 5-4 ruling that because schools “may take steps to safeguard those entrusted to their care from speech that can reasonably be regarded as encouraging illegal drug use,” school officials did not violate the First Amendment by confiscating a banner displayed off campus, but near the school, that read “Bong Hits 4 Jesus.”

Cyberbullying speech has muddied the waters, however. School officials “want to step in, but their collective hands have been slapped by the courts so many times that they are reluctant,” says Kathleen Conn, an assistant professor in the doctorate of education program at Neumann University in Aston, Pa., and an expert on cyberbullying.

For example, in two cases with decisions released on the same day last year by two separate three-judge panels of the U.S. Court of Appeals for the 3rd Circuit, the court reached opposite conclusions on whether a school violated students’ First Amendment rights by disciplining students who created separate defamatory and fake social-networking profiles of their respective principals.

In both cases, J.S. v. Blue Mountain School District and Layshock ex. rel. Layshock v. Hermitage School District, students used an off-campus computer to create a fake profile of a school principal. In both cases, the profile sparked a reaction on campus and enraged the principal. And in each case, the principal reacted by suspending the student.

In the twin Feb. 4, 2010, decisions, the 3rd Circuit ruled that the student suspension was proper only in the J.S. case. In the Layshock case, the court found that the school district could not establish “a sufficient nexus” between the student’s cyber speech and a substantial disruption of the school environment.

The rulings in both cases have since been vacated, and the full 3rd Circuit court reheard the cases in June 2010. As of mid January, the court had not released any revised decisions in the cases, but legal experts and school leaders were anxiously awaiting them.

Wheeler of the Council of School Attorneys believes one of the cases may ultimately make it to the Supreme Court, which he hopes will step in to clarify the law surrounding school administrators’ reach in cyberbullying cases.

“I feel significant compassion for, and totally understand, the difficult situation principals are in,” says Nancy Willard, a lawyer and the executive director of the Eugene, Ore.-based Center for Safe and Responsible Internet Use. “The legal standards are unclear, and if [school leaders] don’t have a policy that addresses cyberbullying, they end up getting in an argument with parents.”

Policies and Punishments

Cyberbullying presents many challenges for educators, Willard says. It often feels unfamiliar and doesn’t play out the way a traditional bullying case might. In addition, many educators don’t understand the culture of social networking and the extreme impact that negative interactions in the online world can have on students, she says.

“These incidents are occurring and growing in the online environment where there are no responsible adults present, so traditional bullying prevention, which gravitated toward more adult supervision, … is not going to work here,” Willard says. “It’s not going to translate.”

Eric C. Sheninger, the principal of New Jersey’s New Milford High School and a proponent of social networking in education, believes most administrators want to do something when they become aware of cyberbullying, whether it takes place in school or off campus, despite the legal obstacles.

“We have to act because of the effect it has impacting students’ emotional well-being,” he says. “If students don’t feel emotionally safe or comfortable in school, it’s going to impact their ability to focus and engage with other students.”

One key component of dealing with the problem is having thoughtful policies in place before incidents take place, Willard says.

When Principal Dwight Lundstrom found himself dealing with two different types of cyberbullying in December at Oak Harbor High School in Oak Harbor, Wash., he relied heavily on his district’s already-crafted policies.

In the first situation, a group of students created a fake Facebook account for another student, and posts on the site turned mean-spirited. When Lundstrom was alerted, his administration quickly tracked down the students who initiated the site. Lundstrom says he was surprised because the culprits were so-called “good kids.”

In the second case, a student received a threatening text message at school that included a bomb threat against the building. Lundstrom’s district has a very clear cellphone search-and-seizure policy, which received national attention when it was adopted last year, and his administrators were able to track down the cellphone that sent the message, search its texting history, and determine that another student who had borrowed the phone sent the threat.

In the Facebook incident, the offending students were chastised, but received no official school discipline, in part because the bullying took place off campus. Instead of suspensions or detentions, the students were required to write papers on the effects of cyberbullying. In the second case, the student involved got several days of suspension and had to write a paper about the effects a bomb threat can have on the school and the community.

Lundstrom says he often has students involved in cyberbullying write essays as a learning tool and disciplinary measure, or gets them involved in mediation with guidance counselors or other educators, and he remains aware of the legal scrutiny his actions could be under.

“We have to tie the cyberbullying to affecting the school” in order to take formal disciplinary action, he says.

“The real issue here is whether public schools have the legal authority to deal with actions that occur off premises, in off hours, at a non-school-sanctioned event,” says Parry Aftab, a lawyer who founded several Internet-safety organizations, including WiredSafety and Stopcyberbullying.org.

“The answer is they don’t have the legal authority, … but when it drifts into school in any way, it’s like the Midas touch.”

The Parent Factor

Despite the community clamor for a tougher approach to cyberbullying, some school leaders have been surprised by the response of parents when such cases arise.

Some parents of cyberbullies support schools in their disciplinary stances against those students, who studies show are often not stereotypical playground tough guys, but quiet, bright students. But more often, school leaders say parents of cyberbullies either say they want to discipline their children themselves or they dismiss the cyberbullying as harmless joking.

“One of the biggest challenges I face is parents who try to downplay the bullying as if it’s not occurring, and try to talk their way around it,” says Jason C. Briggs, the principal of the 520-student St. Gregory the Great School, a K-8 Catholic school in Hamilton Square, N.J.

For proactive schools, education and prevention to combat cyberbullying are ongoing. Many schools and districts, like Lundstrom’s 5,700-student Oak Harbor school system, now have policies that specifically prohibit cyberbullying, spelling out its characteristics, the actions principals and other administrators may take against it, and the disciplinary actions students can expect to receive for violations.

In addition, some schools and districts work closely with law enforcement on cyberbullying issues. In some cases, criminal charges—from criminal impersonation to criminal harassment—have been filed against cyberbullies.

Aftab even recommends that schools draw up a contract, to be signed by parents, that requests permission to address cyberbullying that doesn’t happen during school hours and on school property, as if it did.

Ongoing education is the key, experts say. Kevin Jennings, the assistant deputy secretary for the Department of Education’s office of safe and drug-free schools, says he’s sympathetic to school leaders’ predicament. But he suggests that preventive measures, like anti-bullying curricula, increase the emphasis on appropriate online behavior, and that ongoing parental education can head off significant problems. Despite the lack of legal clarity on cyberbullying, he says school leaders must act.

“When an administrator chooses not to act, they’re saying, ‘It’s more important for me to protect the district than the student.’ That is the wrong set of priorities. They have to understand what’s at stake here. Children are dying.”

In Maryland’s 103,000-student Baltimore County schools, a pilot program that teaches students about cyberbullying and digital citizenship through the library media curriculum was set to launch in January, says Della A. Curtis, the district’s coordinator of library information services.

“There’s a fear factor that educators have with all these social-media tools,” she says. “I don’t want us to be an ostrich putting our heads in the sand. It’s the reality of how our kids choose to communicate and learn.”

Vol. 04, Issue 02, Pages 28-33

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