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A federal jury recently ordered the Hudson Area School District (Michigan) to pay $800,000 in damages to a student who endured years of emotional, physical, and sexual bullying.  Dane Patterson was in middle school when the bullying began as simple name calling and verbal harassment.  It escalated in high school and included being pushed into lockers and at least one incident in 10th grade where he was sexually harassed – which involved “a naked student rubbing against him” in a locker room.

Most states require their schools to have an anti-bullying policy, and Hudson Schools did.  On some occasions when bullying was reported to the school and the perpetrators could be identified, they were punished.  In other cases teachers who witnessed bullying or who were made aware of it failed to follow through with involving school administration.  And according to court records, in one case a geography teacher actually contributed to the problem by making fun of Patterson in front of the entire class by saying: “How does it feel to be hit by a girl?” after he was slapped by a female student when he attempted to stop her from bullying a classmate.  This is almost unbelievable.

This case is a clear message to schools that inaction, or even a simple unwise reaction, is not enough when it comes to dealing with bullies.  Districts need to be proactive in preventing bullying from getting out of control.  It is one thing to have a policy in place prohibiting bullying.  It is so much important for schools to actively enforce it and take additional steps to foster a positive climate in which bullying of all kinds is not tolerated (by staff or students).  Staff need to educate students about appropriate behaviors and take action (informal or formal) against bullies.  Adults who argue that bullying is a normal part of growing up (“kids will be kids”) are contributing to the problem. Students, too, have a role when they see bullying occurring.  Standing by and watching it occur without doing anything is also contributing to a culture where bullying is considered normative behavior and therefore passively condoned and tolerated.  If you are a student and see someone being bullied, please tell an adult in the school that you trust will take appropriate actions (without making things worse for you or the target).  Together, students and staff can work together to create and maintain a positive learning environment free from harassment and abuse.

We’ve had quite a bit of feedback regarding our recent post that discussed whether or not schools can discipline students for creating a Facebook page that is critical of, or harassing toward, a staff member.  The courts have given their perspective on a few different cases, but I thought I would post this simple poll for readers to weigh in themselves regarding their personal beliefs about what should or should not be allowed. Feel free to add the justification for your answer as a comment.

(if you don’t see a poll below, please try again later…we have been having trouble with the polling software)

There have been a few high profile cases recently reviewed by the courts, and summarized in the media, where students have sued their schools arguing that discipline they received as a result of improper online speech was a violation of their First Amendment right.  The most recent case involved a former Florida high school student, Katherine Evans, who created a Facebook page called “Ms. Sarah Phelps is the worst teacher I’ve ever met!” and encouraged other students to “express [their] feelings of hatred.”  Evans was suspended for three days and removed from her AP classes under a policy prohibiting the bullying and cyberbullying of staff.  With the help of the American Civil Liberties Union, the student sued the principal.  Judge Barry Garber ruled in favor of the student, saying the school overstepped its authority in disciplining Evans.

Two other recent cases involved similar facts.  In 2005, 17-year-old Justin Layshock created a “nonthreatening, non‐obscene parody profile making fun of the school principal.”  While the school’s disciplinary action (10 day suspension) was initially upheld in a 2006 hearing, the judge in the case later reversed himself, saying the school went too far.  In February of 2010, the 3rd U.S. Circuit Court of Appeals weighed in and agreed.  In 2007, a 14-year-old student from Pennsylvania was disciplined for creating a profile calling her principal “a sex addict and pedophile.”  In this case, the court upheld the actions of the school.  These differing opinions seemingly left everyone wondering what the standard really is.  But in all of these cases, it came down to whether or not the speech resulted in a substantial disruption at school.

Sameer and I discuss the issue of student speech quite often in our workshops for educators, because it is such a tricky matter.  And we hear many examples where students create inappropriate profiles online directed toward other students or staff.  In fact, earlier this week a mother called me to seek my assistance in helping to remove a Facebook page that her son had created disparaging a teacher at his school.

It is important to acknowledge that students certainly do have free speech protections under the First Amendment to the U.S. Constitution.  It must be noted, however, that when at school, student speech can be restricted much more than if the student was not physically on campus.  A large body of case law has established that schools can discipline students, and restrict their speech at school, as necessary to maintain an appropriate learning environment (see, for example, Bethel School District v. Fraser, 1986 and Hazelwood School District et al. v. Kuhlmeier et al., 1988).  To be sure, case law has also focused on limiting the ability of educators to restrict speech to only that which occurs on school grounds (see Thomas v. Board of Education, Granville Central School District, 1979).

That said, technology has once again created gray areas with respect to these principles.  What about student speech that occurs away from school but that clearly has some impact on the school?  For example, what if a student creates a web site, from home, using their own personal computer, where they harass a student or criticize a staff member?  This is off-campus speech that clearly affects the school.  While there has been some inconsistency, the courts have generally ruled that in order for educators to intervene in off-campus incidents, they must demonstrate that the speech or behavior caused, or has a great likelihood of causing, a substantial disruption at school.  Just because a teacher or administrator is upset by student speech that occurs off-campus, it doesn’t give them the authority to formally discipline the student(s) involved.  To be sure, school officials ought to contact the parents of the offending party and explain to them the problems with such speech (and hopefully, the parents will take care of it from there).  Moreover, even though the school’s proverbial hands might be tied, the target of the harassing off-campus content has the ability to pursue civil remedies for defamation, intentional infliction of emotional distress, or false light.  The point is that there are other ways to make sure the student responsible will be held accountable.

I have to say that I am concerned by the media attention given to these cases because I am afraid that schools will get the wrong impression and interpret these rulings as evidence that they cannot take actions in any incidents that occur away from school.  And this is simply just not true.  In all cases they have the right to take informal action (calling parents, talking to the students involved, expressing dissatisfaction with the behaviors, an extracurricular sanction such as a temporary ban from participating in a sport or club, or capitalizing on the teachable moment by educating the school body about appropriate discourse).  If they can demonstrate a clear link to a substantial disruption at school, they can definitely take more formal actions.  Schools generally get into trouble when they respond with knee-jerk formal reactions (long-term suspensions or expulsions) without carefully considering all of the facts of the case.

In short, students do have the ability to engage in free speech, but when that speech significantly interferes with the school’s ability to provide a safe and secure learning environment for its students, it falls within the reach of a school’s disciplinary arm.  These issues are discussed in more detail in our book and a paper we have forthcoming in the journal Preventing School Failure.  We also have a fact sheet that details more of the legal and policy implications of these and other rulings.

Though we focus on youth, we have had an increasing number of adults who call and email us asking for help regarding their own cyberbullying victimization experiences.  Some of the stories we hear are extremely tragic and horribly malicious.  Many times, we are at a loss for words that might help based on the fact that Internet Service Providers and Content Service Providers historically have not turned over subscriber (perpetrator) records in response to complaints from targets.  This recent article, though, may portend an encouraging change.  Specifically, a New York attorney (Steven Wagner) last year specifically argued that a model who was anonymously defamed online deserved to know the identity behind those insults so that he or she could be sued for defamation.  A Manhattan judge agreed and ordered Google to turn over that information so that the plaintiff and victim could proceed with a civil claim.  Following this ruling, victims of online harassment and defamation of character seem to have new hope that the legal system will help them uncover those who bully under the cloak of anonymity or pseudonymity in cyberspace.  It will be interesting to see how this plays out in other cases….

Evidently, the waters of cyberbullying case law are still murky.  Due to variability in opinions and perspectives across jurisdictions and adjudicators, clear precedent is still sometimes elusive.  Consider the following case from late 2009 from a California District Court (08-cv-03824, J.C. v. Beverly Hills Unified School District), in which an eighth-grader was cyberbullied through the posting of a YouTube video created by peers denigrating her as “spoiled,” “a brat,” and a “slut.”  The target tearfully reported this to her counselor, and indicated strongly that she was upset, humiliated, and did not feel able to go to class and focus on school.  The counselor discussed the matter with administration as well as with school district attorneys, classified the behavior as “cyberbullying,” and the offending girl who posted the video online was suspended for two days.  Her family decided to sue, and took the case to federal court on the grounds that her First Amendment right to free speech had been violated.

Even though extant case law seems to support corrective action if a target is unable to feel safe and supported to learn without distractions of harassment within a school environment, the federal judge in this case ruled that school authorities overstepped their bounds.  This decision was based on the fact that the school could not prove that the offending speech and actions caused a “substantial disruption” of school activities or goals.  Moreover, the ruling judge stated that “the court cannot uphold school discipline of student speech simply because young persons are unpredictable or immature, or because, in general, teenagers are emotionally fragile and may often fight over hurtful comments.”

This is particularly disconcerting to me.  The judge completely disregarded the emotional and psychological well-being of the target in this case, even though any adult who serves youth or works for the best interests of youth is taught that they must not view the internalization of harm in a critical manner, but must empathize with it.  That is, adults must not discount the reality of pain experienced by adolescents through their experiences with bullying or cyberbullying, because this casts blame on the victims themselves.  This small-minded mentality is, in part, why we have teenagers who kill themselves – because they feel that their viewpoint is not appreciated but rather trivialized and discarded.

Demonstration of “substantial [schoolwide] disruption” is a sufficient clause to uphold school discipline of cyberbullying behaviors that are initiated off campus.  However, it is not a necessary clause because there are other aggravating factors that impel student disciplinary sanction by schools.  One primary factor is the harm personally and subjectively experienced by victimized youth.  Without question, the ability of the victim in this case to learn in a safe and secure environment at school was substantially disrupted.  But apparently that wasn’t enough.

In essence, the judge asserts that the adolescent victim in this case – and others like her – should have tougher skin, and should not allow hurtful comments to bother her so much.  He summarily dismisses the gravity of her pain in one fell swoop, and bases his decision on an impersonal aspect of the case, rather than the very real, very visceral effect that cyberbullying had on a young girl.

Finally, the victim in this case is being denied the benefits of, and is subjected to discrimination under, a federally-funded educational program (the public school), which undermines her civil rights.  As such, I would not at all be surprised  if this case goes to the appellate level and is overturned.  In fact, I am hopeful that it will be.