Cyberbullying, Schools, and the Constitution

By Dale R.

     The suicides of two teenagers became the center of national attention in 2010.  Fifteen year old Phobe Prince, an Irish immigrant in Massachusetts killed herself after several months of being the victim of bullying at school and on-line.. More recently, an eighteen year old college freshman named Tyler Clementi jumped off the George Washington bridge after his roommate used a computer camera to record Clementi engaged in sexual activity with another man, and posted the video on the Internet. Both suicides resulted in criminal charges being filed against the alleged bullies.

    The suicides turned media and national attention to the growing problem of cyberbullying. Researchers Sameer Hinjua and Justin W. Patchin at the Cyberbullying Research Center found that about 20.8 percent of students under eighteen were the victims of cyberbullies according to a study conducted in February 2010.

    This commentary will discuss possible school responses to cyberbullying and potential legal restrictions that might apply to those responses.

    The Supreme Court famously upheld the free speech rights of students in the 1968 case Tinker v. Des Moines Independent School District. In Tinker, school administrators punished several students for wearing black armbands to protest the Vietnam War. The Supreme Court via Justice Fortas dismissed the suspensions as violations of the First Amendment. The Court held that schools can only discipline speech if it is creates a "substantial disruption" to the daily operation of the school. Later Supreme Court cases placed limitations on Tinker's sweep. For example, in Fraser v. Bethel School District (1986), The Supreme Court upheld the suspension of a student who, at an assembly, gave a speech filled with sexual innuendo. Chief Justice Burger wrote that the suspension was justified because schools play a vital role in teaching proper civil discourse and could punish students for speech that is lewd and vulgar.

    Courts often have found that many instances of cyberbullying and other cyberconduct by student's violate the Tinker standard. For example, the Pennsylvania Supreme Court upheld a student expulsion for a website the student created even though the site was created off campus.  In this case, J.S. v. Bethlehem School District, J.S., created an anonymous website attacking school administrators and teachers. He compared one teacher to the Nazis and asked for donations so he could hire a hitman to kill her. The Principal contacted the police and F.B.I. to discover the creator of the website and decided to expel J.S. after the F.B.I. stated they would not file criminal charges against him.

    The majority upheld the expulsion even though J.S. did not tell anyone at the school about the website and took it down voluntarily. The Court reasoned that Tinker's substantial disruption standard was met because the teacher-victim suffered emotional distress and needed to take a leave of absence because of the remarks.

    Many jurisdictions agree with the decision reached by the Pennsylvania court in J.S. and hold that schools need broad power to punish students for unacceptable conduct even if the actions occur off-campus and not during school hours.

    But in other jurisdictions, there are some courts that reach the opposite result. A federal court in California held that a suspension for cyberbullying violated the First Amendment and Due Process in J.C. v. Beverly Hills Unified School District. J.C. created a video mocking a fellow student named C.C. as a slut and posted the video on YouTube. The court noted that J.C., unlike J.S. in the case above, wanted other kids at school including the victim to see the video. J.C. received a two-day suspension. The court held that her suspension violated J.C.'s First Amendment rights because there was no substantial disruption to school activities and the kind of name-calling J.C. did on her video was the every day kind of bullying that school administrators can expect from students.

    J.C. also received support for her argument from California Education Code Section 48900(s). The court noted that the statute severely limits the scope of school jurisdiction and no reasonable person can interpret it to allow a school to punish a student for off-campus activities that were not connected to any school function or event.

    Many states are considering or have passed legislation to deal with cyberbullying. Oregon's law may represent a well-balanced approach. The Oregon law requires every school district set up a policy for cyberbullying but encourages schools to consult with students, parents, and teachers to create the policy. School districts are required to explicitly tell student's about the policy and the consequences of violations. The victims of cyberbullying maintain their rights to bring private lawsuits against their attackers but the statute itself expressly does not create a private right of action.

    My prediction is that the Prince and Clementi suicides will pressure states and school administrators to punish students for off-campus conduct even if it greatly expands school power in constitutionally questionable ways. This is troubling to me because it is probable that cyberbullies often attack their victims during school-hours as well non school hours and school administrators should focus their attention on in-school bullying to solve both problems. This desire to take action against cyber conduct may lead to harsh punishments for what might be considered  protected speech in other contexts.