INTRODUCTION
With the swift evolution of technology and children’s interest in keeping up with every new gadget, app, and website, the issue of cyberbullying is no doubt on the rise. Many popular apps and websites offer young people ways to communicate through pictures, video, and even anonymous online posts. For students with a vendetta, these apps and websites certainly can be used as tools to target their adversaries, often with devastating results.
According to the Cyberbullying Research Center, cyberbullying occurs “when someone repeatedly harasses, mistreats, or makes fun of another person online or while using cell phones or other electronic devices.”1 Cyberbullying can include mean and hurtful comments, rumors spread online, threatening messages, unauthorized posting of photos or videos, or pretending to be the person online.2 According to the Center’s research, victims of cyberbullying reported feeling angry, sad, and embarrassed, and scored higher on a suicide ideation scale.3
In September of this year two Florida girls, ages twelve and fourteen, were arrested for aggravated felony stalking, purportedly stemming from their cyberbullying conduct against another girl, Rebecca Sedwick. It was reported that students called for the girl to end her own life, and that is precisely what she did.4 At press time, the parents were considering suing the parents of those who bullied her, as well as the school board where Rebecca had attended school.5
New Popular Apps and Websites Administrators Should Know About
School administrators and parents should keep up with the new social media tools popular with children. One of those is Ask.fm. The Latvian-based website allows a person to create a profile with very little privacy controls in place. Once a profile is established, anyone can anonymously ask questions of the person. The anonymity provides the person asking questions freedom to say whatever they want without repercussion or detection. Many have used this freedom to lodge insults and cruel comments, and make sexual advances aimed at their targets. The site has been described as a “stalker’s paradise”6 and has been linked to cyberbullying and teen suicide.7
Other social media websites of interest to teens and young adults are Facebook and Twitter, which are also widely used among adults. Also growing in popularity are Tumblr, Instagram, and Snapchat.8 A recent study found that 61 percent of teenagers preferred Tumblr, which allows a user to post text, photos, quotes, links, music and videos easily from their browser, phone, desktop, and e-mail.9 Instagram allows users to create a profile and post pictures and brief videos. The user has “followers” who can post comments in response to user posts. Vine is another social networking app that makes it easy for users to create and share six-second videos online. Snapchat has caused some concern among parents, as well as school administrators. It allows a user to take a photo or video, or create text and send it to their Snapchat friends. The image is supposed to only last a few seconds once it is viewed and is then permanently deleted. The problem with that theory is that users have found ways to capture the images, so what is only supposed to last seconds can, in reality, be captured forever and forwarded to others without limit. Snapchat has been linked to sexting among teens and young adults.10 Facebook has created a similar app known as Facebook Poke.
Teens today are drawn to new technology related to social media. Unfortunately, the creators of some of these websites and apps do not necessarily have the best interests of children in mind. Little privacy is attached to many of these sites, which opens the door to cyberbullying and poor decision-making that may have long-lasting consequences for the teens who use them. Although it is primarily up to parents to learn about and monitor online behavior, school administrators would be wise to educate themselves about the social media students use, since the problems that originate online often spill over onto campus.
A School’s Role In Monitoring Social Media
There is a growing debate over whether school districts should take steps to monitor student use of social media. The Cyberbullying Research Center recently reported that some school districts will pay $40,000 or more for services that monitor and report on student activity on social media.11 School districts are taking these measures in an effort to uncover any safety threats to the school, cyberbullying, and threats of self-harm. One company, GEO Listening, claims that it will help, “Stop bullying before it’s too late,” allowing districts to respond quicker and more effectively.
On the other side of the debate, however, are questions of student privacy rights and the cost-benefit analysis for districts. This issue has not been tested in the courts, so districts will want to consult with legal counsel before implementing any online monitoring service. According to the Cyberbullying Research Center, the better approach might be to create a culture where students are encouraged and empowered to come forward with concerns and schools are able to act on those concerns.12
The problem for school administrators is that cyberbullying often occurs off campus, while students are on their personal computers or cell phones. When a school is required to step in under these circumstances, is an issue that administrators grapple with everyday. With little legal precedent to offer guidance, courts are equally grappling with a school’s role when cyberbullying occurs. What is the legal responsibility of a school district when a student harasses another student (or staff member) via social media? Do the students who are disciplined for their online activities have any legal recourse? This article will discuss some of the legal trends in this emerging area of the law.
Peer Harassment Law
Courts recognize causes of action against school districts stemming from bullying, also called peer harassment. Peer harassment claims can be brought under Title IX, the Americans with Disabilities Act, Section 504 of the Rehabilitation Act, Title VI, and 42 U.S.C. § 1983. Title IX of the Education Amendments of 197213 prohibits gender discrimination. Section 504 of the Rehabilitation Act of 197314 and Title II of the Americans with Disabilities Act of 199015 prohibit discrimination based on a disability. Title VI of the Civil Rights Act of 196416 prohibits discrimination based on race, color, or national origin. The federal statute 42 U.S.C. § 1983 may be used to support equal protection claims based on a student’s religion and sexual orientation. Each of these statutes offer protections to students who have been harassed or severely bullied based on their protected category.
Generally, claims brought under any one of those statutes follow the same basic legal framework. To establish a claim for peer harassment, a plaintiff must prove (1) discriminatory-based harassment, (2) that was so severe, pervasive, and objectively offensive that it altered the condition of his or her education and created an abusive educational environment, (3) the district knew about the harassment, and (4) the district was deliberately indifferent to the harassment.
The leading case that set the standard for peer harassment cases is a Title IX lawsuit decided by the United States Supreme Court in 1999. In Davis v. Monroe County Board of Education, 119 S.Ct. 1661 (1999), a parent sued the school board claiming that her fifth-grade daughter was the victim of a pattern of verbal and physical sexual harassment by one of her classmates. The suit alleged that the girl reported the incidents to her teacher and her mother. The teacher assured the mother that the school principal had been informed as well. Despite those reports, the suit claimed that the district took no action against the other student. The harassment continued and the other student ultimately pled guilty to sexual battery for his misconduct. As a result of the incidents, the student’s grades dropped and, according to the lawsuit, the student’s father discovered a suicide note written by the girl.
In a 5-to-4 decision, the U.S. Supreme Court held that school districts can be liable under Title IX when the district is deliberately indifferent to known acts of student-on-student sexual harassment and the harasser is under the school’s disciplinary authority. In Davis, the misconduct occurred during school hours and on school grounds. The lawsuit alleged further that the district failed to respond in any way over a period of five months to complaints about the boy. As a result, the harassment continued and culminated in a sexual assault. Thus, the girl’s allegations were sufficient to state a Title IX claim against the school board.
The Supreme Court, in Davis, clarified that liability in these cases is not based on the perpetrator’s conduct, but on the school district’s action or inaction in addressing the matter. A school district will not be liable under Title IX based on negligent conduct. Instead, plaintiffs have to show that the district acted with “deliberate indifference” to known acts of discrimination. Under the deliberate indifference standard, liability will attach when “the district’s response to the harassment or lack thereof is clearly unreasonable in light of the known circumstances.”
A leading case out of the Fifth Circuit Court of Appeals, which exercises jurisdiction over Texas, is Sanches v. Carrollton Farmers Branch ISD.17 Samantha Sanches filed suit against the school district under Title IX. The suit alleged that the district violated Title IX stemming from alleged student-on-student sexual harassment by one of Samantha’s peers. Sanches was a cheerleader and began having conflicts with a senior cheerleader, J.H. The senior cheerleader was the ex-girlfriend of Sanches’s boyfriend. Over the course of the school year, Sanches’s mother complained to school authorities that J.H. subjected her daughter to harassment.
A three-judge panel of the Fifth Circuit upheld the pretrial dismissal of the peer harassment and retaliation action. According to the appeals court, the lawsuit was “nothing more than a dispute, fueled by a disgruntled cheerleader mom, over whether her daughter should have made the squad.” The conduct did not amount to sexual harassment and was not severe, pervasive, and objectively offensive. There was nothing in the record to indicate that the conflict between the two cheerleaders was motivated by Sanches’s sex. According to the appeals court, the conduct was “more properly described as teasing or bullying than as sexual harassment.”
In addition, the district was not deliberately indifferent. Each time the mother lodged a complaint, a school official took statements from the students, who often provided conflicting accounts. The district transferred the senior cheerleader out of Sanches’s class and banned the girl and other senior cheerleaders from a cheerleading clinic. Ultimately, Sanches no longer had any classes or extracurricular activities with the senior cheerleader following that point. The school administration’s actions in response to Sanches’s complaints did not amount to deliberate indifference. Sanches also failed to provide evidence that the district retaliated against her in any way. According to the Fifth Circuit, the Sanches case boiled down to “a petty squabble masquerading as a civil rights matter, that has no place in federal court or any other court.” The district prevailed, in large part, because of its efforts to investigate, document, and address each incident complained of by the student’s mother.
The Sanches case did not involve facts that rose to the level of a Title IX cause of action. However, what do school officials do when faced with more serious allegations? In peer harassment cases, districts will prevail when they can show, through timely and thorough documentation, that they took prompt and effective action to address the harassment complaints. The failure to take action when there is a known problem can result in liability to the district. In Wilson v. Beaumont ISD, 144 F.Supp.2d 690 (E.D. Tex. 2001), the Beaumont Independent School District was able to show that it did not act with deliberate indifference in addressing peer harassment allegations. Ken Wilson, a developmentally disabled 12-year-old, had been bullied and picked on repeatedly by his classmate, John Doe (pseudonym). Wilson and John Doe attended the same special education class, but were assigned separate seats in the classroom and on the school bus. On one occasion, however, Doe allegedly forced Wilson to have sexual contact with him while their teacher was in the hallway dealing with a disturbance.
The court, in this case, determined that school officials did not act with deliberate indifference. The record showed that the teacher immediately reported the incident to the principal and separated the students for the remainder of the day. In addition, the principal interviewed the students, spoke with Child Protective Services and the Beaumont Police Department, interviewed employees, and obtained written statements. The principal also held meetings with Wilson and his parents, teachers, and administrators, and transferred Doe to another school. According to the court, action taken by district personnel “was reasonable and would certainly have prevented further sexual harassment, which is the goal of Title IX.”18
The principal’s actions in the Wilson v. Beaumont ISD case above – investigations, parent meetings, written witness statements, etc. – are great examples of the steps school administrators must take to guard against liability in peer harassment cases, whether they are related to harassment based on gender, disability, race, color, religion, or national origin. Teacher, staff, and student training is absolutely critical. The potential for liability opens up when campus employees are made aware of a problem, but fail to take or document corrective action.19
Cyberbullying and Student
First Amendment Rights
The peer harassment cases above mandate that school officials take action to address bullying on campus. Problems can arise, however, when administrators discipline a student for off-campus cyberbullying when the student later claims that the discipline violated their First Amendment freedom of speech rights. The First Amendment protects (1) the right to freedom of expression, and (2) the right to be free from compelled expression. The First Amendment provides, in part, that “Congress shall make no law . . .
abridging the freedom of speech. . . .” While students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate,”20 students’ free speech rights are not without limits. Courts have recognized that students “cannot hide behind the First Amendment to protect their ‘right’ to abuse and intimidate other students at school” where that abuse or intimidation causes a disruption in the school or deprives a fellow student of his or her access to educational opportunities.21
The leading case on student speech is Tinker v. Des Moines Ind. Community Sch. Dist., 89 S.Ct. 733 (1969), in which the U.S. Supreme Court established the standard for analyzing student First Amendment rights. The Court in Tinker held that student expression may not be suppressed unless school officials reasonably forecast that it will “materially and substantially disrupt” the work and discipline of the school. Since Tinker, the Supreme Court has identified several categories of speech that school officials may constitutionally regulate:
on-campus vulgar, lewd, obscene, and plainly offensive speech,22
school-sponsored speech, when reasonably related to legitimate pedagogical concerns,23
speech promoting illegal drug use,24
true threats.25
While the Supreme Court has not spoken on the scope of a school’s authority to regulate student expression that does not occur on school grounds or at a school-sponsored event,26 a review of lower court decisions reveals two categories of off-campus student expression that can be subject to school discipline: (1) speech that constitutes a “true threat”; and (2) conduct that reaches the school and causes a “material and substantial disruption” or is reasonably likely to cause such a disruption under the Tinker standard.
True Threats
A recent case out of the Ninth Circuit Court of Appeals illustrates the proper discipline of a student based on a “true threat.” In this case, Landon Wynar, a high school student engaged in a string of increasingly violent and threatening instant messages sent from home to his friends bragging about his weapons, threatening to shoot specific classmates, intimating that he would “take out” other people at a school shooting on a specific date, and invoking the image of the Virginia Tech massacre. His friends became alarmed and notified school authorities. As a result, Wynar was temporarily expelled, based in large part on the instant messages. The trial court granted a pretrial judgment in favor of the district and the Ninth Circuit affirmed. According to the appeals court, the messages presented a real risk of significant disruption to school activities and interfered with the rights of other students. Under the facts of this case, the school district did not violate Wynar’s rights to freedom of expression or due process.27 In so holding, the appeals court stated:
With the advent of the Internet and in the wake of school shootings at Columbine, Santee, Newtown and many others, school administrators face the daunting task of evaluating potential threats of violence and keeping their students safe without impinging on their constitutional rights. It is a feat like tightrope balancing, where an error in judgment can lead to a tragic result. Courts have long dealt with the tension between students’ First Amendment rights and “the special characteristics of the school environment.” Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 266, 108 S.Ct. 562, 98 L.Ed.2d 592 (1988). But the challenge for administrators is made all the more difficult because, outside of the official school environment, students are instant messaging, texting, emailing, Twittering, Tumblring, and otherwise communicating electronically, sometimes about subjects that threaten the safety of the school environment. At the same time, school officials must take care not to overreact and to take into account the creative juices and often startling writings of the students.28
When a “true threat” is involved, courts can discipline students to protect the student population. Courts technically define true threats to include statements “where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.”29 In Porter v. Ascension Parish Sch. Bd.,30 the Fifth Circuit Court of Appeals determined that a student’s off-campus drawing depicting a violent attack on his school constituted protected First Amendment speech. The student drew the picture two years earlier, but it ended up on campus when the student’s younger brother found it in a notebook and took it to school. Another student reported the drawing after seeing it on the school bus. As a result, the student was placed in an alternative school. He also was arrested for “terrorizing” the high school and was held for four nights at the local jail on charges of terrorizing the school and carrying an illegal weapon.
The drawing was protected by the First Amendment. According to the appeals court, the older brother did not intentionally or knowingly communicate his drawing. He created the drawing at his home and more than two years had passed before the drawing accidentally made its way to the high school campus. Because the drawing was not a “true threat,” the drawing was entitled to First Amendment protection and school officials did not have the authority to discipline the student for the message it contained. Although the drawing was protected by the First Amendment, according to the court, the principal acted without the benefit of “clearly established” law governing the issues in the case. Thus, the Fifth Circuit granted the principal qualified immunity with respect to the boy’s First Amendment claim. While the law at the time of the school official’s actions in the Porter case was not “clearly established” at the time, this opinion now sets a precedent. This opinion now puts school administrators on notice that discipline of a student under similar circumstances may be prohibited by the First Amendment.
When faced with a First Amendment lawsuit in a true threat situation, districts have prevailed when they are able to show that the student meant to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals. However, as the following discussion demonstrates, school administrators must exercise extreme caution in disciplining students for their use of social media that originates off campus.
When Can a School District Discipline A Student For Off-Campus Cyberbullying?
In two landmark decisions concerning student free speech rights, the Third Circuit Court of Appeals held that the First Amendment prohibited school district decisions to discipline students for their off-campus speech. The two decisions, Layshock v. Hermitage School District and J.S. v. Blue Mountain School District, issued simultaneously, examined whether a school district can restrict student expression on the internet when it occurs off campus.31 Another case out of the Fourth Circuit Court of Appeals, Kowalski v. Berkeley County Schools, took the cyberbullying issue head-on and offers further guidance for the school administrator.
In Layshock, a 17-year-old student, at his grandmother’s home and on his own time, created a MySpace profile of the high school principal claiming that he took steroids, used drugs, was gay, and shoplifted, among other things. In response, the student received a ten-day suspension, was placed in an alternative setting for the rest of the school year, and was banned from participating in any school-sponsored events, including graduation. The student sued, claiming the discipline violated his First Amendment free speech rights. The school district argued that the student’s lewd, vulgar, and indecent speech, that reached into the schools, was not protected by the First Amendment under the standard set out in Bethel School District v. Fraser. In Fraser, the U.S. Supreme Court held that schools could regulate lewd, vulgar, and indecent on-campus speech.
The Third Circuit held that the First Amendment prohibited the district from “reaching beyond the schoolyard to impose what might otherwise be appropriate discipline.” According to the appeals court, the student’s expressive conduct originated outside the schoolhouse, did not disturb the school environment, and was not related in any way to a school-sponsored event. The student’s use of a photo image of the principal taken from the district’s website was not enough to link the student’s actions to the school. Further, the school district failed to demonstrate that the speech caused a substantial disruption to the school under the standard set out in Tinker.
In J.S. v. Blue Mountain School District, an honor-roll student and some of her friends created a fake MySpace profile of the principal, at J.S.’s home on her parents’ computer. According to the appeals court, the profile contained “crude and vulgar language, ranging from nonsense and juvenile humor to profanity and shameful personal attacks aimed at the principal and his family.” The district suspended the student for ten days, prompting the lawsuit. According to the Third Circuit, there was no dispute that the student’s speech did not cause a substantial disruption in the school. The appeals court observed that, under Tinker, while school authorities need not prove with absolute certainty that a substantial disruption will occur, their forecast of a substantial and material disruption must be reasonable. An “undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression.” Here, according to the majority opinion, the student created the profile as a joke and it was so outrageous that no one took it seriously. The profile was made private so that only the student and her MySpace friends could see it. Although the fictitious profile contained a picture from the district’s website, it did not identify the principal by name, school, or location. The district’s computers blocked access to MySpace. According to the court, no disruption occurred and the district did not reasonably forecast a material and substantial disruption. Further, Fraser did not apply in this case because the student’s speech occurred off-campus.
In 2011, the Fourth Circuit Court of Appeals decided a cyberbullying case involving off-campus online speech. In Kowalski v. Berkeley County Schools, high school senior Kara Kowalski created a MySpace discussion group webpage called “S.A.S.H.” that targeted another student. Kowalski invited about 100 people from her “friends” list to join the group. Soon after the webpage was created, a number of students joined the group and several posted photographs of the targeted student, accompanied by rude commentary. One boy posted vulgar pictures and comments from a school computer while attending an after-school class. Several other students commented on the pictures, further ridiculing the girl.
The parents filed a complaint with the school and school administrators ultimately concluded that Kowalski had created a “hate website” in violation of the school’s policy against “harassment, bullying, and intimidation.” The school suspended Kowalski for five days and prohibited her from attending school-sponsored activities for 90 days. It also removed her from the cheerleading squad for the remainder of the school year. Kowalski sued, claiming that the district and five of its officers violated her free speech and due process rights under the First and Fourteenth Amendments, among other things. The main issue was whether the district was justified in regulating her speech because it did not occur during a “school-related activity” but rather was private, off-campus speech.
The Fourth Circuit affirmed the trial court’s judgment against Kowalski, relying on the Supreme Court’s reasoning in Tinker. Looking to Tinker, the court held that “public schools have a ‘compelling interest’ in regulating speech that interferes with or disrupts the work and discipline of the school, including discipline for harassment and bullying.” The appeals court distinguished this case from the situation where student discipline might suppress speech on political or social issues based on a disagreement with the viewpoints expressed. According to the court, “school officials must be able to prevent and punish harassment and bullying in order to provide a safe school environment conducive to learning.” Under this standard, the court of appeals held that Kowalski’s speech caused the interference and disruption contemplated in Tinker. The court determined that the following facts sufficiently linked the conduct to the school:
Kowalski designed the website for students.
Kowalski invited students to join the discussion group.
Those who joined were mostly students.
The victim understood the group’s actions to be school-related, filing the harassment complaint at the school.
The boy who posted the photographs from a school computer, understood the object of the discussion group was another student.
The boy posted the pictures and commentary from a school computer, during an after-school class.
Given these connections to the school, the court stated: “To be sure, it was foreseeable in this case that Kowalski’s conduct would reach the school via computers, smartphones, and other electronic devices, given that most of the ‘S.A.S.H.’ group’s members and the target of the group’s harassment were Musselman High School students.” Because Kowalski’s conduct interfered with the work and discipline of the school and created a reasonably foreseeable disruption there, the Fourth Circuit held that Kowalski’s speech was not protected by the First Amendment.
In SJW v. Lee’s Summit R-7 School District, 696 F.3d 752 (8th Cir. 2012), the Eighth Circuit examined whether a Kansas school district violated a group of high school student’s free speech rights when it disciplined them for creating a website and blog that contained offensive, racist, and sexist comments about the school and certain classmates. A trial court entered an injunction overturning the students’ suspensions but the Eighth Circuit reversed that decision and upheld the student discipline. The record showed that two brothers created a website to vent about the school. Some of the posts contained offensive and racist comments and sexually explicit and degrading comments about particular female students who they identified by name. There was conflicting evidence about the extent to which school computers were used to make the website. Also, although the students intended only their friends to know about it, word spread quickly, to the point that the whole student body knew about the website.
The main issue in this case was whether the off-campus speech caused a substantial disruption or that a disruption was reasonably foreseeable. The Eighth Circuit noted that “student speech that causes a substantial disruption is not protected.” The appeals court determined that the students’ posts were directed at the school and caused a substantial disruption to the educational environment. The location where the speech originated did not matter as much to the court as the fact that the posts were aimed at the school and other students. Computer records showed that numerous school computers were used to access or attempt to access the website when it became known school-wide. Teachers testified that they had difficulty managing their classes due to the distraction. In addition, local media arrived on campus and parents contacted the school with concerns about safety, bullying, and discrimination on the day the information was released, and for some time afterwards. District officials also expressed concern that the boys’ return to the school would cause further disruption and might endanger the boys. According to the appeals court, the posts caused considerable disturbance and disruption at the school on the day the posts became known to the student body. Thus, the trial court erred when it overturned the disciplinary action against the boys.
These cases illustrate that there are limits to student disciplinary action involving off-campus use of social media. To avoid liability under the First Amendment, districts must produce real evidence of a material and substantial disruption on the campus. Alternatively, school officials must prove that they reasonably forecast such a disruption. Courts will look for evidence linking the speech to the campus and demonstrating the impact on school operations. The fact that someone was or might be offended or embarrassed by the speech is not enough. Further, marginal connections to the school campus, such as the use of a picture taken from the district’s website, generally will not be enough to link offensive speech to the school. The district must document the specific ways in which the expression disrupted school operations, as the districts successfully did in the Kowalski and SJW cases. If this showing cannot be made, consider taking non-disciplinary action, such as counseling the students, talking with parents, bullying/social media training, student mediation, etc. Taking and documenting non-disciplinary action can be an effective way to address a cyberbullying situation that does not rise to the level of a “material and substantial” disruption.
STATE LAW AND SCHOOL DISTRICT POLICIES
Texas Education Code § 37.0832, titled BULLYING PREVENTION POLICIES AND PROCEDURES defines bullying as engaging in “written or verbal expression, expression through electronic means, or physical conduct that occurs on school property, at a school-sponsored or school-related activity, or in a vehicle operated by the district.” This definition does not necessary include bullying that occurs off campus, unless it happens at an event that is school-sponsored or school-related, or occurs in a school vehicle. To constitute bullying, under § 37.0832, the conduct must also meet one of the following two elements:
The conduct must have the effect or will have the effect of physically harming a student, damaging a student’s property, or placing a student in reasonable fear of harm to the student’s person or of damage to the student’s property; or
be sufficiently severe, persistent, and pervasive enough that the action or threat creates an intimidating, threatening, or abusive educational environment for a student.
In addition, the conduct described above must also: (1) exploit an imbalance of power between the student perpetrator and the student victim through written or verbal expression or physical conduct; and (2) interfere with a student’s education or substantially disrupt the operation of a school.
Under this definition, not every insult or indignity will constitute bullying. As the Fifth Circuit observed in the Sanches v. Carrollton-Farmers Branch ISD case, “[d]ating and relationships are an inescapable part of high school, as is the resulting stress. It is a trying time for young people, who experience a wide range of emotions and often lack the skills to control them.” It will be up to educators to distinguish between the typical conflicts that take place every day in school and those that rise to the level of bullying and harassment. Knowing the definitions as they are set out in the law is critical to this decision-making. Further, while not every incident will amount to bullying or harassment, if a pattern emerges or the conduct escalates, what may seem minor at first could develop into a legitimate complaint over time.
When a bullying situation arises, administrators should consult the school district policy manual and student code of conduct. TASB policies FB and FFH address equal educational opportunities for students, including discrimination, harassment, and retaliation. FFI deals specifically with bullying. Policy FFF addresses student safety and policy FFG concerns child abuse and neglect. District policy also should address student use of cell phones on campus under policy FNCE. Policy FNF addresses student rights and responsibilities concerning interrogations and searches. Please consult each of these policies, as well as your complaint policies, and make sure they have been updated to reflect recent changes in the law.
DOCUMENTATION IS KEY
When lawsuits arise, the first thing the school attorney is going to want is all documentation related to the claims. If the situation involves off-campus use of social media, the district is going to have to show the impact that the event had on the operations of the school or that officials reasonably believed that a material and substantial disruption was likely to occur. Without that, disciplinary action against the offending students may violate the First Amendment. Consider documenting the following:
The impact on students’ classes, including teacher statements on how disruptive the event was in the class setting, i.e., how much students were distracted, upset, and talking about it;
Time and effort spent investigating the matter;
Computer records showing any on-campus computer use related to the event;
The need for meetings with teachers and staff;
Communication with local law enforcement;
Parent communication and inquiries;
The need for counseling services to students impacted;
Any time spent responding to media inquiries;
The results of any investigation;
Potential for ongoing disruptions or disturbances, i.e., reports of ongoing student conflicts;
Disciplinary action taken and how it was in alignment with district policy and the student code of conduct;
All efforts to provide students due process in the disciplinary process;
Any follow-up efforts to train students, staff, and parents on anti-bullying and cyberbullying before and after the fact; and
If the incident targets a teacher or staff member, also document the impact on that teacher and any leave taken, reassignments, or the need to employ a substitute as a result.
Obviously, this is not an exclusive list. Administrators will have to tailor their response and their documentation to the specific facts of the case. The main thing to remember is that documentation must demonstrate a “material and substantial” disruption, or a reasonable expectation that such a disruption would occur.
Further, when conducting a bullying investigation, it is absolutely critical that districts create thorough documentation showing what the exact nature of the complaints were, the action that was taken, any training provided to teachers, as well as all measures to educate students and parents about the problem and district bullying policy. Have the complaining party write a statement and sign it. Disciplinary records of the alleged harassers are also necessary. Also, take witness statements from any students, teachers, and staff members who may have witnessed the incidents, and maintain any video surveillance.
When a major incident occurs, follow up with bullying awareness programs and document the fact that it occurred. There are many programs available now to bring awareness to the problem of bullying. The Texas Education Agency (TEA) website provides a list of online bullying prevention resources at http://www.tea.state.tx.us/CSH_Bullying.html. A list of nationally-recognized, social-emotional learning curriculums can be found on the website for the Association for Supervision and Curriculum Development (ASCD), www.ascd.org.32 Again, there are many, many resources available and easily found on the internet. Being proactive and forward-thinking may prevent problems and will better prepare district staff and teachers to address bullying if it occurs.
CONCLUSION
Parents whose children have been the subject of off-campus bullying will go to the school with their complaints and ask that the school take action. The temptation will be to investigate and discipline the perpetrators in order to appease those parents. However, what we now know is that there are limits to disciplinary action that can be taken to curb student expression when it occurs beyond the schoolyard. Keep in mind that this is an emerging area of the law. Administrators must keep informed of new legal developments in this area and, when in doubt, consult a school law attorney before imposing discipline of a student for off-campus speech.
Endnotes
1. http://www.cyberbullying.us/research.php
2. Id.,Cyberbullying Victimization Chart.
3. Id., Cyberbullying and Suicide Chart; and How Cyberbullying Felt Chart.
4. http://cyberbullying.us/criminal-charges-filed-two-involved-rebecca-sedwick-suicide/
5. http://abcnews.go.com/blogs/headlines/2013/10/mom-of-suicide-teen-rebecca-sedwick-may-sue-accused-bullies-parents/
6. http://www.dailymail.co.uk/news/article-2261588/Ask-fm-Pupils-parents-warned-social-networking-website-linked-teen-abuse.html#ixzz2MdG5j6bx
7. http://cyberguardiansonline.com/2013/03/05/ask-fm-reportedly-linked-to-suicides-bullying/?blogsub=confirming#blog_subscription-2
8. http://www.mediabistro.com/alltwitter/teens-social-media_b50664
9. http://techland.time.com/2013/05/19/what-is-tumblr/#ixzz2ih2uRED0
10. http://webtrends.about.com/od/Iphone-Apps/a/What-Is-Snapchat.htm
11. http://cyberbullying.us/schools-monitor-students-social-media-accounts/
12. For more on this debate and what other schools are doing about it, visit the Cyberbullying Research Center’s website http://cyberbullying.us/.
13. 20 U.S.C. § 1681, et seq.
14. 29 U.S.C. § 794.
15. 42 U.S.C. § 12131, et seq.
16. 42 U.S.C. § 2000d et seq.
17. 2010 WL 445939 (N.D. Tex. 2010).
18. Wilson v. Beaumont ISD, 144 F.Supp.2d 690, 693 (E.D. Tex. 2001).
19. M.J. v. Marion ISD, 2013 WL 1882330 (W.D. Tex. 2013) (student allegedly complained repeatedly to his math teacher, but the teacher failed to escalate the problem or take any action in response).
20. Tinker v. Des Moines Ind. Community Sch. Dist., 89 S.Ct. 733 (1969).
21. Sypniewski v. Warren Hills Regional Bd. of Educ., 307 F.3d 243, 264 (3d Cir. 2002).
22. Bethel School District v. Fraser, 106 S.Ct. 3159 (1986).
23. Hazelwood Sch. Dist. v. Kuhlmeier, 108 S.Ct. 562 (1988).
24. Morse v. Frederick, 127 S.Ct. 2618 (2007).
25. Watts v. United States, 89 S.Ct. 1399 (1969).
26. Doninger v. Niehoff, 642 F3d. 334 (2nd Cir. 2011).
27. Wynar v. Douglas County School District, 728 F.3d 1062 (9th Cir. 2013).
28. Wynar, 728 F.3d at 1064.
29. Virginia v. Black, 123 S.Ct. 1536 (2003).
30. 393 F.3d 608 (5th Cir. 2004).
31. In 2010, the appeals court issued two inconsistent rulings in these two cases, deciding in favor of the student in Layshock but against the student in J.S. The court vacated those 2010 opinions and ordered both to be heard by the entire 14-judge panel, en banc.
32. http://www.ascd.org/publications/educational-leadership/may07/vol64/num08/How-We-Treat-One-Another-in-School.aspx
