With the advancement of technology comes increased connectivity to a digital world where our children find themselves with limited guidance. This new realm is one that parents and educators have continually tried to navigate in an attempt to create a safer place for our children. Parents try to protect their children by imposing restrictions on Internet usage, while teachers struggle to teach Internet safety and digital citizenship in the classroom.
Holding our youth accountable for their online behavior in a society that values Internet sensaltionalism has proven to be difficult, causing those in positions of authority to ask themselves where to draw the line. As the answer to this question changes with each new case, and more and more children become socially adept online, cyber bullying is fast becoming the dominant form of harassment among our youth today. The question of what constitutes cyber bullying is one frequently asked by educators, parents, and students alike.
As cited in California Education Code 48900 (1), “bullying” means any severe or pervasive physical or verbal act or conduct, including communications made in writing or by means of an electronic act. Cyber bullying, to be specific, is bullying that takes place using electronic technology such as cell phones, computers, and tablets, as well as communication tools including social media sites, text messages, chat, and websites.
The main challenge facing educators and administrators when attempting to address the issue of cyber bullying is that the conduct prohibited by anti-bullying policies often takes place off school property through digital media. This makes it difficult to punish those accused without proving the bullying had a direct impact on the school environment. When cases reach the courts, those suspected of wrongdoing often challenge school punishments as free speech violations, usually reversing the judgment mandated by the school.
Unless schools are able to prove there was a considerable or foreseeable disturbance oncampus due to the off-campus digital postings, the courts often rule in favor of the perpetrators. There are several court cases that are often referenced in relation to bullying and the first amendment rights of students, yet one in particular appears time and again in case law. The landmark case of Tinker v. Des Moines Independent Community School District set the precedent for the free speech rights of both students and teachers.
Students at a public school in Des Moines, Iowa were suspended after organizing a silent protest to publicize their objections to the Vietnam War. After suing the school district for violating their children’s right to free speech, John and Mary Beth Tinker found themselves before the United States Supreme Court, where it was concluded that students’ free rights should be protected. Justice Abe Fortas claimed that the lack of facts to adequately “forecast substantial disruption of, or material interference with, school activities” on school grounds made it unconstitutional to deny the student’s “right of expression of opinion” (Tinker v.
Des Moines Independent Community School District, 1969). It is clear that the civil liberties of students need to be taken seriously while they are in school. This also extends to the right of teachers while on school grounds. Because of Tinker v. Des Moines, both students and teachers are now able to freely express their first amendment rights as long as they do not cause a disturbance to the school. This case brought awareness to school districts limiting students’ rights, and continues to affect decisions made by the courts..
After the Tinker case, various cases dealing with bullying and free speech rights entered the nation’s courts, yet very few dealt with the issue of online bullying. One historically significant case did end up in the District Court of California in 2009, J. C. v. Beverly Hills Unified School District. In this case the district court evaluated the school’s actions under the standard set forth by Tinker in that schools could not punish student expression unless it interfered with the school’s ability to conduct business.
According to court documents, an eighth-grader was cyber bullied through the posting of a YouTube video which the district classified as “cyber bullying” and suspended the offender for two days. After suing in federal court on the grounds that her first amendment right to free speech had been violated, the judge ruled that school authorities had, in fact, overstepped their bounds. The school, however, was unable to prove that the offending speech and actions caused a “substantial disruption” of the school environment (1. C. v. Beverly Hills Unified School District, 2009).
The message for administrators based on this ruling is clear: the offense must provide proof of a “substantial disruption of, or material interference with, school activities” (Tinker v. Des Moines Independent Community School District, 1969). School administrators need to be cautious when punishing students for online behavior, ensuring that evidence of a considerable disturbance can be provided as proof against the accused. Similarly, in J. S. v. Blue Mountain School District, a middle school girl at Blue Mountain Middle School in Pennsylvania created a MySpace parody profile of her principal from her home computer.
The profile did not specifically use her principal’s name, but it included his picture and characterized him as a sex-obsessed pedophile. The school district suspended her for ten days and in response the student sued the school district for violating her first amendment rights. The 3rd Circuit Court of Appeals found that the discipline was not warranted as it was not reasonably foreseeable that the profile would cause a “substantial disruption” on school grounds. The court held that the school district violated the student’s first amendment rights by disciplining her for creating the profile (J. S. v. Blue Mountain School District, 2009).
Both of these cases serve as reminders to school administrators dealing with issues of cyber bullying that they must first identify whether the off-campus digital bullying did or could possibly cause a major interference to the learning environment in school. The district also needs to take into consideration what other methods of intervention may be appropriate for the accused, such as parent meetings or counseling services. While students clearly have the right to free speech, there have been instances when students’ constitutional rights are not protected under the first amendment.
In the 2012 S. J. W. v. Lee’s Summit case, brothers, Sean and Steven Wilson were suspended for 180-days after they created NorthPress, a website that did create a disruption at school by displaying racist posts about African American students and sexually explicit remarks about named female classmates. The Wilson’s claimed to have only told a few friends about the website’s existence, but teachers testified that this was one of the most disruptive days of their careers (S. J. W. v. Lee’s Summit, 2012).
The Wilson brothers brought forth a suit, claiming the district violated their rights to free speech. Referencing Tinker v. Des Moines (1969), the Eighth Circuit Court of Appeals held that schools cannot censor students’ free speech unless that speech “materially and substantially” disrupts classwork or involves substantial disorder or invasion of the rights of others. Speech that causes a “substantial disruption” to the educational environment is not protected by the first amendment, and court records indicate that the content of the website disrupted normal school activity.
The implications of this case are far-reaching. School administrators can prosecute perpetrators successfully by proving that a disturbance did occur on campus resulting directly from the online situation. Another case school administrators should review closely is the 2011 court case of Kowalski v. Berkeley County Schools. Kara Kowalski, a senior at a public high school in Berkeley County, created a MySpace webpage ridiculing a fellow student. The webpage, entitled “S. A. S. H” or “Students Against Sluts Herpes”, rompted the victim to file a harassment complaint with the school district, who concluded that Kowalski had indeed created a “hate website”.
Kowalski was punished with a five-day suspension and a 90-day social suspension. Kowalski sued the school, contending that her free speech and due process rights under the First and Fourteenth Amendments had been violated. The district court concluded that the school could legitimately take action against Kowalski for her speech, and on appeal, the Court of Appeals for the Fourth Circuit affirmed this ruling.
Relying on Tinker v. Des Moines (1969), the court held that because Kowalski used the website to orchestrate a targeted attack on a classmate, and did so in a manner that was sufficiently connected to the school’s environment, the trial court’s decision was correct. While there are a variety of implications for school administrators faced with cyber bullying situations, a few stand out in all the aforementioned cases. Most importantly, public school administrators must familiarize themselves with their state’s anti-bullying laws, including those provisions explicitly addressing cyber bullying.
Additionally, as new standards of judicial analysis are created to deal with technology-related first amendment issues, it is imperative that administrators stay current with emerging court decisions. When administrators are faced with cyber bullying issues, they should focus on documenting all instances of disruption that have occurred on campus as a result of the online dispute. The ability to prove that a “substantial disruption” occurred on campus due to off-campus digital postings is an important component of judicial analysis in all cyber bullying court cases.
