Cyber-bullying and the Constitution
The Extent of School Officials’ Authority to Undertake Preventative and Punitive Measures for Student Bullying in Cyber Space
By: Kristen Kelley
Remember that big kid on the playground that always took your lunch money and pushed you around? He was the school bully and he existed in almost every elementary or middle school across the nation. But now, with the revolution of social networking sites and texting, almost anyone can be a bully.
The heightened use of social networking sites and electronic mail has elicited strong verbal and visual harassment that is arguably stronger than physical harm. It used to be that bullying occurred in the classroom, at lunch, during recess, or elsewhere — on school grounds. At the end of the school day, victims could escape from the inexcusable harassment endured during the seven hour school day. But the growth of the internet has allowed students to transport the bullying from school grounds to cyber-space — an area that not only follows the student victim everywhere, but also has the potential to be eternal and visible to the entire public.
The Supreme Court held that students do not leave their First Amendment constitutional protections at the school house door in Tinker v. Des Moines (1969). However, the Supreme Court also said that such protections are modified by the safety and productivity of other students. In situations where bullying occurs within the school building during the school day, intervention by school authorities trumps students’ constitutional rights.
The Tinkers
But what about situations where the bullying occurs outside of the school house gate — namely on the internet, on cell phones, or on social networking sites? In these situations, school officials would appear to have limited say, since the occurrences exist in the realm of cyber-space, outside of their authoritative boundaries of a school building. Thus, is it simply a spatial and temporal inquiry whether school officials can implement consequences? For example, is there a difference between a student sending a bullying message through a mass text message while walking down the hallway to class and a student posting a harassing Facebook status towards a colleague in their own home on their own computer?
Currently, lower courts differ on the geographic inquiry of student-to-student bullying, but most courts give it little emphasis. In J.C. v. Beverley Hills Unified School District the court rejected the argument that schools cannot regulate a posted video because it originated outside of the school. In O.Z. v. Bd. of Trustees of Long Beach Unified School District the “fact that the Plaintiff’s creation and transmission of the [speech or expression] occurred away from school property [did] not necessarily insulate her from school discipline” because “off-campus conduct can create a foreseeable risk of substantial disruption within a school.” But in Emmett v. Kent School District the court granted a preliminary injunction which prevented a student from suspension after he created a web page with a list of fellow students that a news story characterized as a hit list. The court partly granted the injunction because “the speech was entirely outside of the school’s supervision or control.”
State statutes greatly vary in addressing cyber-bullying or electronic harassment and whether schools should sanction students for such behavior.
Maryland defers exclusively to the schools to decide the means of handling these situations. Although Maryland does not reference “cyber-bullying” in its statute, it does define “bullying” to include “physical, or written conduct, or an intentional electronic communication.” Such communication constitutes bullying when it substantially hinders the educational productivity by creating a hostile school environment or otherwise affects a student’s well-being and when it either occurs on school property or “substantially disrupts the orderly operation of the school.”
The Maryland statute undertakes a direct Tinker approach by mandating school officials to report bullying, including forms of cyber-bullying, even when the bullying occurs outside of the school walls. But the effects of the cyber-bullying must “substantially disrupt” the effectiveness and productivity of the school day. Courts have imposed this same test in reference to cyber-bullying. But how far does this imposition go? What constitutes substantial disruption within the school when the speech occurs in an unrestrained vacuum of cyber-space?
For Maryland, this is a matter of first impression. Under the Tinker test, as adopted in Maryland, intervention of school authorities to impose consequences on cyber-bullies is wholly permissible under the law. But the courts — where the issue has been litigated — have a different view. Though lower courts across the nation seem to agree that the Tinker substantial disruption test is the applicable analysis, some courts’ level of necessary disruption prior to the school officials’ intervention is quite concerning.
In one case, the court upheld a student’s right to post several messages on a website, some from home and some from school, regarding an upcoming volleyball game (Flaherty v. Keystone Oaks Sch. Dist.) The messages attacked a particular student from the opposing team as well as that student’s mother, with expressions extending beyond friendly athletic competition. Flaherty was disciplined by school officials pursuant to the student handbook which he argued was unconstitutionally overbroad and vague. The court agreed, holding that the school policy failed to distinguish speech that caused a substantial disruption in the classroom to warrant discipline. Even though the school policy punished student speech “when such conduct interferes with the educational program of the schools,” the court was not satisfied and said that the handbook did not “limit a school official’s authority to discipline a student’s expression to those instances where the expression caused, or there exists a realistic threat of, a substantial disruption to school operations.”
In a more recent case, student J.C. recorded a video at a restaurant with her friends, while she referred to a classmate, C.C., through name-calling and profane remarks (J.C. v. Beverly Hills Unified Sch. Dist.) The video was then posted on YouTube from J.C.’s home computer, and J.C. contacted several students to inform them of the video. The next day, C.C. and her mother made the school aware of the video, interviews of students were conducted and J.C. was disciplined. The court directly addressed the issue of school regulation of speech occurring outside the school that has an effect within the school.
The court said that the fact that the video resulted in an upset parent, a student who temporarily did not want to go to class and five students pulled out of class for interviews did not amount to substantial disruption. Further, C.C. was not in any danger of being harmed and there was no disruption of classroom activities. Though failing specifically to define substantial disruption, the court said that it “must equate to something more than the ordinary personality conflicts among middle school students that may leave one student feeling hurt or insecure.”
Courts are treading a thin line by holding that student internet postings bullying, mocking, embarrassing and harassing other students are not significantly detrimental to result in consequences by school officials. The substantial effect of cyber-bullying is extreme and undoubtedly overflows into the school context when student victims of the cyber-bullying are unable to focus on their education because their minds are otherwise consumed. This inevitable result of internal harm causes a substantial departure from the educational mission within the schools.
The New York Times featured an article on a Facebook group created by middle school students aimed at scrutinizing a young boy who recently transferred to the school with ethnic slurs and remarks about his sexuality that caused the boy to become ill and miss a great deal of school.
The Gazette also ran an article describing three incidents where students were driven to commit suicide after suffering intense forms of abuse from cyberbullying on Twitter, Craigslist, Facebook and Formspring.
Certainly, this is not to suggest that students’ rights are non-existent. But those rights are also very much limited. The holdings above may be correct under the Tinker test, but cyber-bullying is more than minor instances of poking fun. Courts need to recognize the power of bullying on the internet. If the trend continues without defining the scope of substantial disruption we are going to find another case in front of the Supreme Court at a level similar to Safford Unified Sch. Dist v. Redding — that’s the case where a student was strip-searched by school authorities without the necessary level of suspicion. The Supreme Court held that a Fourth Amendment violation had occurred. In the situation of cyber-bullying, students are strip-searching each other of their confidence, dignity and self-growth. Disruption, though internal, does not seem more substantial than that.
Kristen Kelley is a rising third year law student at Catholic University and a summer law clerk at HooverLaw.
