There is NO Constitutional Right to Be a Cyberbully
EDTECH Editor-Jones
Hi all, I know you are totally focused on getting off for the holidays and
getting through these last several days. But please take the time to read this
and please forward this to your principal and superintendent. This is about a
cyberbullying case that was reported earlier this week. There is an analysis of
this case on my web site.
A recent case from a District Court in California, JC v. Beverly Hills, has
been reported as holding that schools have no constitutional right to
discipline students who are cyberbullying other students while off-campus. This
is not an accurate interpretation of the findings of this case.
In this case, the Court ruled that regardless of the geographic origin of
student speech, school officials can respond if that speech meets the standard
originally enunciated in Tinker. Under Tinker, school officials can restrict
student speech that has caused or foreseeably could cause a substantial
disruption at school or interference with the rights of students to be secure.
The Court's decision related to school authority to respond is in accord with
every case where the question of school authority over student speech posted
online while the student was off-campus has been raised.
Unfortunately, the Court misapplied the Tinker standard to the situation
presented in the case. JC and some friends had created a 4 1/2 minute video
disparaging CC which had been posted to YouTube. JC was also actively
encouraging other students to view the video. This kind of a situation is
unfortunately occurring with some regularity in schools.
The Court erroneously determined that in order to discipline JC, the school
would have to demonstrate that her speech had or could have caused a
substantial disruption to school activities. In so doing, the Court dismissed
the emotional harm suffered by CC, which clearly, if not handled properly by
the school, would have caused significant problems in her ability to fully
participate in educational activities.
The Court noted that after receiving talking with the counselor, CC was willing
to go to class - and therefore found this was evidence that there was no
substantial disruption. The Court failed to put this into context. At the same
time CC was walking to class, the aggressors were being called to the office.
JC was suspended. Thus, because the principal handled this situation
effectively by responding with an appropriate disciplinary consequence, CC did
not suffer significant emotional harm and was able to go to class. But the
district's appropriate response was used by the Court against the district!
Unfortunately, all of the cases presented to the Court for consideration of
this case involved other student off-campus speech cases. None of these cases
involved student-on-student verbal aggression. All of the off-campus online
cases involved students targeting school staff. When a student targets school
staff an assessment of a substantial disruption of the school environment is
necessary.
Why are there no student-on-student verbal aggression cases? Likely because
very few attorneys are inclined to bring a case seeking to establish that a
student has the free speech right to torment and disparage another student. JC
was represented by her father, Evan Cohen.
There are two excellent circuit court cases where the issue of school response
to student verbal aggression was considered. Neither of these cases were
discussed by the Court in JC.
In Saxe v. State College, then Judge, but now Supreme Court Justice, Alito
stated: "The primary function of a public school is to educate its students;
conduct that substantially interferes with the mission (including speech that
substantially interferes with a student's educational performance) is, almost
by definition, disruptive to the school environment."
In Sypniewski v. Warren Hills, the Circuit Court ruled: "Intimidation of one
student by another, including intimidation by name calling, is the kind of
behavior school authorities are expected to prevent. There is no constitutional
right to be a bully."
If the reasoning presented in the JC case is considered sound this calls into
question the constitutionality of all state statutes and district policies that
address student verbal aggression or bullying. Clearly, the guidance provided
by the Third Circuit is superior.
A more comprehensive legal analysis of the JC case is now on the Center for
Safe and Responsible Internet Use web site - at http://csriu.org. Early 2010,
CSRIU will be providing a 2 hour video presentation for school officials
addressing how to prevent and respond to cyberbullying, cyberthreats, and
sexting.
Nancy
--
Nancy Willard, M.S., J.D.
Center for Safe and Responsible Internet Use
http://csriu.org
http://cyberbully.org
http://cyber-safe-kids.com
http://csriu.wordpress.com
nwil...@csriu.org
Cyberbullying and Cyberthreats: Responding to the Challenge of Online Social
Aggression, Threats, and Distress (Research Press)
Cyber-Safe Kids, Cyber-Savvy Teens: Helping Young People Learn to Use the
Internet Safely and Responsibly (Jossey-Bass)
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SIGNOFF EDTECH
EDTECH Editor-Jones
So, the criminal in the case was suspended from school for an action
committed outside of the school property, school activities, and with
out school equipment. At what point does the school responsibility end?
If a teen gets arrested for criminal acts outside of school, should the
school administration then be held accountable and fired for not being
aware of the behavior?
What amendment declares the right to be free from offense and/or hurt
feelings? There is such an amendment regarding free speech, even if it
hurts feelings.
Edmund (Ted) Seidel M.S.
Senior Information Specialist
Department of Petroleum Engineering
ted.s...@pe.tamu.edu
http://www.pe.tamu.edu/DL_Program/
EDTECH Editor-Jones
> From: "Seidel, Ted"
> So, the criminal in the case was suspended from school for an action
> committed outside of the school property, school activities, and with
> out school equipment. At what point does the school responsibility end?
It is more important to ask, "At what point does a school's authority and
responsibility begin?"
The school's authority and responsibility begins when the impact of off-campus
activities has - or there are very good reasons to believe it will -
significantly impact the school environment, the safety of students, and the
ability of students to participate in school activities. School officials do
not have the authority to respond if the off-campus activities will have no
impact AT school.
But every case that has asked the question has answered that question with the
"Tinker" standard. Regardless of geographic origin, school officials have the
authority to respond if the student's speech has caused or foreseeably could
cause a substantial disruption at school or interference with the rights of
students to be secure.
This was also the holding in this CA case. The problem with the case was how
the judge applied the standard. He dismissed the emotional harm to the target
and instead focused on whether or not there was any disruption of school
activities. He ignored two leading cases, including one written by now Justice
Alito, where he stated that significantly interfering with another student's
educational performance was a substantial disruption.
Using convoluted logic, he indicated that the target CC was not unduly upset as
evidenced by her willingness to go to class. He failed to realize that this was
at the same time that the aggressors were being called to the office to face
consequences.
One research study found that students who reported being targets of
cyberbullying were also 8 times more likely than other students to also carry a
weapon to school.
If school officials do not respond to the off-campus cyberbullying incidents
between students, the easily predictable result will be school violence and
school failure.
EDTECH Editor-Hogan
I agree this is a difficult call, but students don't have the same rights of
freedom of speech as adults do (if I understand the law correctly). What
about the student who is being bullied? Is there a right to an safe
educational environment? Does that include freedom from harassment? How do
we, as a society, provide that environment? I think the initial question
still stands - do students have a constitutional right to be a bully? What
are the alternatives for the victim and their family, and for the school who
is trying to provide a positive educational environment?
I think it is too easy to say the school should has no responsibility then
we can ignore the what is a real and very serious problem. Our job is to
educate, and that includes providing an environment in which education can
reasonably take place.
When I first began teaching (1981) there were "slam books" - students would
write everything they "disliked" about a student and leave the book for the
victim to "find". Occasionally students were expelled for behavior, usually
they were suspended. YouTube is functioning the same way, but the effect is
much wider, the "whole world" is asked to participate.
Because of the changes in our world we need to adjust - not throw up our
hands and give up. This is not the same world where we were told we should
just "hit him/her right back" when bullied.
If having a school disciplinary option isn't acceptable, what are the
choices?
If you work in a middle or high school, you know how disruptive this
situation can be, not only for the victim but also for the entire group.
In the work place we do have a right to be free from verbal harassment as
adults (hostile work environment), and corporations often have a grievance
policy to deal with such situations. Although that can be a tough case to
win, if it went to court, I would guess it might be easier if the
perpetrator posted a video on YouTube. I would hope the same protection
would apply to students at school.
I don't know what the answer is, but I can't accept that we do not have to
worry about the question.
Judith Claire Robison
St. John's Catholic Prep
Director of Technology