The Section of State and Local Government Law of the American Bar Association (ABA) hosted a panel on cyberbullying at the 2011 Annual Meeting.
The panelists included James Hanks of Ahlers & Cooney, Grant Bowers, Legal Counsel for the Toronto District School Board, Dr. Jeff Gardere, a psychologist from New York with expertise in mental health, and Kathy Macdonald, from the Calgary police.
The panel discussed how changes in technology have created new ways for students to bully each other, creating new legal challenges for schools and communities. Regulating cyberbullying raises significant constitutional questions, especially in the U.S., as illustrated by the recent decision by the 7th Circuit Court of Appeals in Zamecnik v. Indian Prairie School District #204, allowing a student to wear a t-shirt stating, "Be Happy, Not Gay." The court upheld a rule prohibiting disparaging statements in Nuxoll v. Indian Prairie School Dist. # 204, but found that this particular phrase was only mildly offensive and should not be banned,
…we described “Be Happy, Not Gay” as “only tepidly negative,” saying that “derogatory” or “demeaning” seemed too strong a characterization…
As one would expect in a high school of more than 4,000 students, there had been incidents of harassment of homosexual students. But we thought it speculative that allowing the plaintiff to wear a T-shirt that said “Be Happy, Not Gay” “would have even a slight tendency to provoke such incidents, or for that matter to poison the educational atmosphere. Speculation that it might is, under the ruling precedents, and on the scanty record compiled thus far in the litigation, too thin a reed on which to hang a prohibition of the exercise of a student’s free speech.”
With such strong statements by the court upholding students' free speech, controlling student behaviour online in the U.S. can prove particularly challenging.
Legal Background in U.S.
Most States acknowledge the authority of school districts to make rules governing school business, including the authority to adopt and enforce a student discipline code. Some States provide statutes that explicitly account for due process rights. Courts also recognize the common law doctrine of in loco parentis, allowing schools to act in the best interests of the students. Consequently, courts typically restrict themselves to striking down punishments that are excessively harsh. However, policies that are not sufficiently precise can be ruled unconstitutionally void for vagueness, and attempts to regulate the content of speech can violate the First Amendment. The Supreme Court's decision in Tinker v. Des Moines Independent Community School District held that offending speech must usually create the risk of a substantial disruption to the school's mission for it to be regulated.
With cyberbullying, the technology used for the offending conduct is usually in the personal property of the student, i.e. a cell-phone. Although schools generally have the right to readily access evidence needed to establish that a violation of a student discipline code has occurred, inspection of personal property is regulated by the Fourth Amendment. Schools can address this by creating policies that condition the use of personal devices on the consent of the students to inspect the devices where there are reasonable grounds to do so. A technology expert may be required to help deal with stolen passwords, phony websites, and ascertaining anonymous individuals.
Freedom of Speech and Expression
Neither teachers or students shed their constitutional rights to freedom of speech or expression. For schools to have the right to regulate off-campus conduct, they must show that the behaviour has an adverse effect on school operations. The court in Thomas v. Board of Education, Granville Central School District indicated that the authority provided to schools to punish speech on school property was largely premised on the confinement of this power to the school itself.
The wide breadth of speech in a public forum provided in Cohen v. California does not apply in the same way to schools. The Supreme Court upheld the suspension of a student who made a lewd speech during an assembly in Bethel School District No. 403 v. Fraser, but the Third Circuit Court of Appeals rejected the use of this case in Layshock v. Hermitage School District to punish a student for a fake MySpace profile of the principal because it did not cause a substantial disruption,
Accordingly, because the School District concedes that Justin’s profile did not cause disruption in the school, we do not think that the First Amendment can tolerate the School District stretching its authority into Justin’s grandmother’s home and reaching Justin while he is sitting at her computer after school in order to punish him for the expressive conduct that he engaged in there.
We realize, of course, that it is now well established that Tinker’s “schoolhouse gate” is not constructed solely of the bricks and mortar surrounding the school yard. Nevertheless, the concept of the “school yard” is not without boundaries and the reach of school authorities is not without limits.
It would be an unseemly and dangerous precedent to allow the state, in the guise of school authorities, to reach into a child’s home and control his/her actions there to the same extent that it can control that child when he/she participates in school sponsored activities. Allowing the District to punish Justin for conduct he engaged in while at his grandmother’s house using his grandmother’s computer would create just such a precedent, and we therefore conclude that the district court correctly ruled that the District’s response to Justin’s expressive conduct violated the First Amendment guarantee of free expression.
However, where the vehicle for student speech has been created by the school district, the Supreme Court has recognized in Hazelwood School District v. Kuhlmeier a right to control that speech, as long as the actions are reasonably related to pedagogical concerns. The Court has also upheld a suspension in Morse v. Frederick in a school-sponsored activity held off-campus for statements related to drug use, largely based on public policy for preventing student drug involvement. In Watts v. United States, the Court noted that true threats were not protected by the First Amendment, but there is conflicting case law on how a threat is to be assessed. Speech has also been upheld recently in the recent hate speech case of Snyder v. Phelps,
Speech is powerful. It can stir people to action, movethem to tears of both joy and sorrow, and—as it did here—inflict great pain… As a Nation we have chosen a different course—to protect even hurtful speech on public issues to ensure that we do not stifle public debate.
Unreasonable Search or Seizure
In New Jersey v. TLO the Supreme Court held that searches by school officials mush be reasonable under the circumstances using the following test:
- Consider whether the action was justified at its inception
- Determine whether the search as actually conducted was reasonably related to the circumstances with justified the interference
Random drug testing for athletic activities was upheld in Vernonia School District 47J v. Acton, and a mandatory extra-curricular drug testing program was upheld as constitutional in Board of Education of Pottawatomie County, Okla. v. Earls.
The Court first acknowledged the changing nature of society's expectations of proper behaviour and privacy in light of new technology in City of Ontario, Cal. v. Quon. A public employer's right to search their own computer systems have generally been upheld by Federal courts, as in U.S. v. Angevine and Leventhal v. Knapek, where although an employee expectation of privacy existed, searches were considered reasonable and only a modest intrusion.
The Florida State court held in Times Publishing Company v. City of Clearwater that private or personal e-mails fell outside the definition of public records, and could not be disclosed to a newspaper requesting it. The Ohio Supreme Court also held that e-mails were not a public record in The State Ex Rel. Wilson-Simmons v. Lake County Sheriff's Department. Although e-mails were considered public records in Tiberino v. Spokane County, they were exempt from disclosure because the content did not contain anything of public significance. In Board of County Commissioners of Araphoe County v. Baker, the Colorado Court of Appeals applied the State's record legislation and prohibited the release of e-mails as they were not public records and private communications could not be disclosed.
Applicable Federal legislation includes the Omnibus Crime Control and Safe Streets Act of 1968, the wiretap provisions in S. 2510-2525 of the Stored Wire Communications Act (the "Wiretap Act"), Electronic Communications Privacy Act of 1986, and Communications Decency Act. The consent exemptions under the Wiretap Act have been considered in Deal v. Spears, Watkins v. L.M. Berry & Co., Griggs-Ryan v. Smith, and James v. Newspaper Agency Corp.
Due Process Requirements
The Supreme Court held in Goss v. Lopez that students have a property interest in their education and should not be deprived of their rights without due process of law. Even a short suspension of 10 days or less could deprive a student of their property interest to an education, and their liberty interest to their good name and reputation. Procedural due process requires that students must be given oral or written notice of allegations in such short suspensions, the supporting facts and evidence, and an opportunity to respond tot he charges. Students do not necessarily have a right to prepare for their case, or consult with counsel or a parent.
The Court in Fraser held that student conduct codes need not be as detailed as a criminal code which imposes criminal sanctions, and found the code in that case was not void for vagueness. Similarly, in Alex v. Allen the federal district court indicated that the flexibility required to control the conduct of children allowed for student codes to use terminology broader than criminal statutes.
Cyberbullying Case Law
Cases Rejecting Regulation
The court in Mahaffey v. Aldrich considered the suspension of a student who created a website entitled "Satan's web page," which listed other students that the creator wanted to die. The court applied Tinker and found that no substantial disruption occurred and there was no communication of the statements to anyone else,
There is no evidence on the record that Plaintiff communicated the statements on the website to anyone. Plaintiff has stated that the website was created "for laughs," and that he never meant "anyone else to see it." (Pl.'s Ex. H). Although other students did see the website, there is no evidence that they did so because Plaintiff "communicated" the website to them or intended to do so. Furthermore, other than listing the names of other students on the website, there was no threat made against any of the students. In fact, the website contained the statement: "PS: NOW THAT YOU'VE READ MY WEB PAGE PLEASE DON'T GO KILLING PEOPLE AND STUFF THEN BLAMING IT ON ME. OK?" (Pl.'s Ex. F)(emphasis in original). In this Court's opinion, a reasonable person in Plaintiff's place would not foresee that the statements on the website would be interpreted as a serious expression of an intent to harm or kill anyone listed on the website. Plaintiff's listing of names under the heading "people I wish would die," did not constitute a threat to the people listed therein anymore than Plaintiff's listing of names under the heading "people that are cool," make those listed therein "cool." The website and the statements contained thereon do not constitute a threat and are, therefore, protected speech.
The court also found that due process was violated because notice of the hearing was provided one month after it had occurred, and no cross-examination of the witness was allowed.
The student in Beussink v. Woodland R-IV School District created his website on a home computer outside of school hours. It used vulgar language that was not defamatory to criticize the school and used a hyperlink to the school's website. Another student saw the site on his home computer and reported it to a teacher, and the principal accordingly disciplined the student without an investigation into whether other students had even heard of the site. The 10-day suspension resulted in the student failing 4 classes he would have otherwise passed. Only mild disruption could be demonstrated, and the principal appeared motivated more by being upset than concern of disruption,
Disliking or being upset by the content of a student's speech is not an acceptable justification for limiting student speech.
In an unreported decision, Beidler v. North Thurston School District No. 3, the student's website showed parodied an assistant principal. The student relied on Beussink and was successful in claiming his First Amendment rights had been violated. The court refused to modify the test even in light of the influence of the Internet,
Today the first amendment protects student speech to the same extent as in 1979 or 1969, when the U.S. Supreme Court decided Tinker.
In Killion v. Franklin Regional School District (2001), an e-mail list poking fun at a school's athletic director created at home and sent to students made its way to the school grounds. In addition to finding a First Amendment violation for the discipline, the court held the school policy was void for vagueness because the terminology did not allow the student to determine the nature of prohibited conduct in advance.
Despite the use of obituaries in the website considered in Emmett v. Kent School District, the court found that no threat could be demonstrated,
The defendant argues, persuasively, that school administrators are in an acutely difficult position after recent school shootings in Colorado, Oregon, and other places. Web sites can be an early indication of a student's violent inclinations, and can spread those beliefs quickly to like-minded or susceptible people. The defendant, however, has presented no evidence that the mock obituaries and voting on this web site were intended to threaten anyone, did actually threaten anyone, or manifested any violent tendencies whatsoever. This lack of evidence, combined with the above findings regarding the out-of-school nature of the speech, indicates that the plaintiff has a substantial likelihood of success on the merits of his claim.
The school district in Coy v. Board of Education of North Canton City Schools relied on Fraser to discipline a student who created a website making lewd comments about another student, created at home but accessed at school. Although the court here denied the First Amendment claim they upheld the student's impermissibly vague argument, but also held that even if a student is disciplined for accessing a site at school they must still meet the substantial disruption test in Tinker. The student policy in Flaherty v. Keystone Oaks School District was also found to be vague and overbroad, because the student handbook used for the discipline lacked geographic limitation, was not linked to substantial disruption, and the terminology used was too vague to allow students to know what behaviour would violate them.
Layshock v. Hermitage School District and J.S. v. Blue Mountain School District were initially decided on the same day in the Third Circuit, but came to opposite conclusions, resulting in both being vacated and a new hearing en blanc, both released on June 13, 2011. In Blue Mountain, the students created a fake MySpace profile of the principal, calling him bisexual and a pedophile, using his school website photo, and making derogatory statements about his family. Several students viewed the page off-site and then told the principal. The court found that Fraser can only be used to regulate in-school conduct, but they also held that the First Amendment was violated,
Turning to our record, J.S. created the profile as a joke, and she took steps to make it “private” so that access was limited to her and her friends. Although the profile contained McGonigle’s picture from the school’s website, the profile did not identify him by name, school, or location. Moreover, the profile, though indisputably vulgar, was so juvenile and nonsensical that no reasonable person could take its content seriously, and the record clearly demonstrates that no one did…
In comparing our record to the record in Tinker, this Court cannot apply Tinker’s holding to justify the School District’s actions in this case. As the Supreme Court has admonished, an “undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression"…
Finally, any suggestion that, absent McGonigle’s actions, a substantial disruption would have occurred, is directly undermined by the record. If anything, McGonigle’s response to the profile exacerbated rather than contained the disruption in the school. The facts simply do not support the conclusion that the School District could have reasonably forecasted a substantial disruption of or material interference with the school as a result of J.S.’s profile. Under Tinker, therefore, the School District violated J.S.’s First Amendment free speech rights when it suspended her for creating the profile.
What makes this interesting is when this decision is contrasted with the initial decision that was vacated, especially in its application of Tinker,
Undoubtedly, students have made fun of or made distasteful jokes about school officials, free from the consequences of school punishment, either out-of-earshot or outside the school context since the advent of our modern educational system. However, due to the technological advances of the Internet, J.S. and K.L. created a profile that could be, and in fact was, viewed by at least twenty-two members of the Middle School community within a matter of days…
We thus cannot overlook the context of the lewd and vulgar language contained in the profile, especially in light of the inherent potential of the Internet to allow rapid dissemination of information. Accordingly, J.S.'s argument for a strict application of Tinker, limited to the physical boundaries of school campuses, is unavailing… Instead, we hold that off-campus speech that causes or reasonably threatens to cause a substantial disruption of or material interference with a school need not satisfy any geographical technicality in order to be regulated pursuant to Tinker…
We hold that Tinker applies to student speech, whether on- or off-campus, that causes or threatens to cause a substantial disruption of or material interference with school or invades the rights of other members of the school community. Therefore, because J.S.'s Internet profile featuring her principal alluded to his interest or engagement in sexually inappropriate behavior and illegal conduct, we conclude that it threatened to substantially disrupt the Middle School regardless of whether J.S.'s role in creating the profile was criminal or tortious. While we maintain great respect for students' First Amendment free speech rights, we are also cognizant that school officials are tasked with making difficult decisions and bear significant responsibility in educating our children. We conclude that the Constitution allows school officials the ability to regulate student speech where, as here, it reaches beyond mere criticism to significantly undermine a school official's authority in challenging his fitness to hold his position by means of baseless, lewd, vulgar, and offensive language.
A high school student in J.C. ex rel. R.C. v. Beverly Hills Unified School District took a video of some friends at a local restaurant, talking about one of their classmates in a negative way, and uploaded it to YouTube once she got home. The student then sent the video to a number of students, including the target of the video. The student had a prior history of secretly videoing her teachers and had been suspended for it before. In reviewing the application of Tinker, the court indicated that the majority of courts will apply it where the speech is brought to the school or the authorities, meaning any speech – regardless of origin – will be considered for substantial disruption. Some courts will also look for a nexus between the speech and the school, and any efforts by the student to keep the materials off campus. Consequently, the court rejected the geographic origin test for applying Tinker. The court ruled that a minimal number of classes were missed as a result of the videos, and there was no classroom disruption,
For the Tinker test to have any reasonable limits, the word “substantial” must equate to something more than the ordinary personality conflicts among middle school students that may leave one student feeling hurt or insecure. Likewise, the Court finds that the mere fact that a handful of students are pulled out of class for a few hours at most, without more, cannot be sufficient. Tinker establishes that a material and substantial disruption is one that affects “the work of the school” or “school activities” in general… Thus, while the precise scope of the substantial disruption test is still being sketched by lower courts, where discipline is based on actual disruption (as opposed to a fear of pending disruption), the School’s decision must be anchored in something greater than one individual student’s difficult day (or hour) on campus.
…the fear that students would “gossip” or “pass notes” in class simply does rise to the level of a substantial disruption. As noted above, several cases, including Tinker, have found that a general “buzz” about a student’s speech fails to meet the substantial disruption test… Moreover, the speech must create something more than a “mild distraction or curiosity” in order to past muster under Tinker.
However, it should be kept in mind that this decision relied heavily on earlier findings in Layshock and Blue Mountain.
Cases Upholding Regulation
Where a teacher has been able to prove personal and medical problems as a result of cyberbullying, the substantial interference test may be met. In J.S. v. Bethlehem Area School District the website created by the student at home targeted an algebra teacher and the principal. Part of the content included pictures of the teacher with blood dripping from the head, her face morphing into Adolph Hitler, and offering money for a hitman to kill the teacher. The teacher testified that she suffered physical and emotional effects from the website. The court upheld the discipline, and Justice Ralph J. Cappy stated for the majority,
Unfortunately, the United States Supreme Court has not revisited this area [of First Amendment rights of public school students] for fifteen years. Thus, the breadth and contour of these cases and their application to differing circumstances continues to evolve. Moreover, the advent of the Internet has complicated analysis of restrictions on speech. Indeed, Tinker's simple armband, worn silently and brought into a Des Moines, Iowa classroom, has been replaced by J.S.'s complex multi-media web site, accessible to fellow students, teachers, and the world.
The reasonable foreseeability of substantial disruption was also found in Wisniewski v. Board of Education of Weedsport Central School District, where the student created an instant messenger icon on his home coputer with a picture of a gun shooting a person in the head, and a caption indicating a threat directed towards his English teacher. Other students received the icon through instant messenger. Applying Tinker, the court found that the First Amendment had not been violated,
The fact that Aaron's creation and transmission of the IM icon occurred away from school property does not necessarily insulate him from school discipline. We have recognized that off-campus conduct can create a foreseeable risk of substantial disruption within a school…
The potentially threatening content of the icon and the extensive distribution of it, which encompassed 15 recipients, including some of Aaron's classmates, during a three-week circulation period, made this risk at least foreseeable to a reasonable person, if not inevitable. And there can be no doubt that the icon, once made known to the teacher and other school officials, would foreseeably create a risk of substantial disruption within the school environment.
Whether these aspects of reasonable foreseeability are considered issues of law or issues of fact as to which, on this record, no reasonable jury could disagree, foreseeability of both communication to school authorities, including the teacher, and the risk of substantial disruption is not only reasonable, but clear. These consequences permit school discipline, whether or not Aaron intended his IM icon to be communicated to school authorities or, if communicated, to cause a substantial disruption.
The student in Doninger v. Niehoff posted messages on her public blog criticizing decisions of school administrators involved in a music festival,
Although Doninger argues that Tinker is not satisfied here because the burgeoning controversy at LMHS may have stemmed not from Avery's posting, but rather from the mass email of April 24, this argument is misguided insofar as it implies that Tinker requires a showing of actual disruption to justify a restraint on student speech. As the Sixth Circuit recently elaborated, "[s]chool officials have an affirmative duty to not only ameliorate the harmful effects of disruptions, but to prevent them from happening in the first place." …Here, given the circumstances surrounding the Jamfest dispute, Avery's conduct posed a substantial risk that LMHS administrators and teachers would be further diverted from their core educational responsibilities by the need to dissipate misguided anger or confusion over Jamfest's purported cancellation.
The court applied Tinker as interpreted in Wisniewski to identify 3 factors that suggested the postings foreseeably created a risk of substantial disturbance:
- The choice of words in the blog were not conducive to cooperative conflict resolution, as evidenced by participation by other students by responding on the site with similarly vulgar and incendiary language
- The post used misleading or false information to solicit more calls and emails
- This misleading information was disseminated amidst rumors that had already begun to disrupt school activities. Students had already been called away from class to manage the growing dispute.
The discipline applied in this case was to prevent the student from running for a senior class officer position, which was not a constitutionally protected right.
Hanks provided a number of suggestions for school districts to prevent cyberbullying:
- draft anti-bullying policy and complaint procedures by keeping in mind constitutional rights (1st, 4th 14th Amendments)
- include appropriate sanctions in an comprehensive electronic device policy for offending communications, irrespective of location
- provide training to students
- a school-based peer mediation program
- review recommendations in Chapter VII of "Threat Assessment in Schools: A guide to Managing Threatening Situations and to Creating Safe School Climates"
Part 2 of this panel, with Canadian content and suggestions from the other panelists, will be provided shortly.