Can a School Respond to Off-Campus Cyberbullying?

Posted by Justin W. Patchin on March 19, 2012

We discuss the legal issues associated with schools responding to cyberbullying incidents quite often in this space. You can find many blog posts which attempt to clarify the variety of issues raised (see here and here) and we have a summary fact sheet that is available here.  Of course the law, and our understanding of it, is constantly evolving.  So I thought I would post a (relatively) simplified update with the lineage of case law that demonstrates that schools do in fact have the authority to apply reasonable discipline to students who participate in cyberbullying while away from school.  Below I provide a brief one or two sentence summary of the ruling, but I encourage everyone to read the actual facts of each case so that you can better understand the unique contexts of each incident.

 

Tinker v. Des Moines Independent Community School District (1969): Students have free-speech rights.  “A prohibition against expression of opinion, without any evidence that the rule is necessary to avoid substantial interference with school discipline or the rights of others, is not permissible under the First and Fourteenth Amendments.” Students have constitutional rights under the First Amendment. Those rights, however, do not grant students the right to substantially interfere with school discipline or the “the rights of other students to be secure and to be let alone.”

 

Bethel School District No. 403 v. Fraser (1986): Student’s free-speech rights are limited while at school. “[T]he constitutional rights of students in public school are not automatically coextensive with the rights of adults in other settings….”  The Supreme Court ruled that there is a substantive difference between a non-disruptive expression (such as in Tinker) and “speech or action that intrudes upon the work of the schools or the rights of other students.”

 

Davis v. Monroe County Board of Education (1999): If a school knows about harassment or other hurtful actions against students and doesn’t respond effectively to prevent it from continuing, they may be held responsible.  “…the common law, too, has put schools on notice that they may be held responsible under state law for their failure to protect students from the tortious acts of third parties.”

 

J.S. v. Bethlehem Area School District (2000): Schools can discipline students for their off-campus electronic speech (student created a threatening web page about his algebra teacher).  “…school officials are justified in taking very seriously threats against faculty and other students.”

 

Wisniewski v. Board of Education of the Weedsport Central School District (2007): “…it was reasonably foreseeable that Wisniewski’s communication would cause a disruption within the school environment…. 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…”

 

Barr v. Lafon (2007): Schools do not need to wait for a substantial disruption to occur at school before taking action.  The U.S. Court of Appeals (6th Circuit) ruled that “…appellate court decisions considering school bans on expression have focused on whether the banned conduct would likely trigger disturbances such as those experienced in the past” and pointed to the fact that the high school had even positioned law enforcement officials on campus in previous years to maintain order in an environment of racial hostility and violence. Citing Lowery v. Euverard (2007), the court stated: “…under the Tinker standard a school does not need to wait until a disruption has actually occurred before regulating student speech.”

 

Kowalski v. Berkeley County Schools (2011): Schools can discipline students for their online speech, consistent with Tinker. “Kowalski used the Internet to orchestrate a targeted attack on a classmate, and did so in a manner that was sufficiently connected to the school environment as to implicate the School District’s recognized authority to discipline speech which “materially and substantially interfere[es] with the requirements of appropriate discipline in the operation of the school and collid[es] with the rights of others.”

 

There are several examples of cases where students were successful in their lawsuits against schools when the student was disciplined for off-campus behavior (see: Klein v. Smith, 1986; Emmett v. Kent School District No. 415, 2000; Layshock v. Hermitage School District, 2010; Blue Mountain School District v. J.S., 2010. In all of these cases, however, the school was incapable of demonstrating that the off-campus behavior or speech resulted in, or had a likelihood of resulting in, a substantial disruption at school. In fact, when the 3rd Circuit Court of Appeals ruled against the schools in Layshock and Blue Mountain, Judge Kent Jordan stated: “The issue is whether the Supreme Court’s decision in Tinker, can be applicable to off-campus speech. I believe it can, and no ruling coming out today is to the contrary.”

 

Finally, it is important to point out that I correspond with many of the best and brightest legal minds in the United States and many of them disagree about these issues!  We are at a challenging and uncertain time (to say the least) when it comes to education in this country, and the legal ambiguity concerning a school’s authority to respond to off-campus behaviors is just one more example.  But the reality, in my view, is that there is no uncertainty about this issue.  Schools simply do have the authority to reasonably discipline students for any behavior (whether at school or away from school) if such behavior results in, or has a high likelihood of resulting in, a substantial or material disruption at school or if the behavior infringes on the rights of other students. So the short answer to the question posed in the title of this blog post is: YES!

 

But I will conclude my thoughts by asking all of you who read this to let us know if you are aware of any cases where a school was found to be liable for damages for disciplining a student for their off campus behavior which resulted in a substantial disruption at school.  I am not aware of any such cases.  Part of the trouble here, I think, is that examples of cases like that have not reached a court and therefore we have not received reassurance in our interpretation of the law.  Most of the time schools get it right and they do not end up in court. Until more case law is established, we will continue to recommend that schools act in accordance with the cases discussed above.

16 Responses to “Can a School Respond to Off-Campus Cyberbullying?”

  1. Nancy Willard says:

    EVERY court that has considered this issue has said that school officials can intervene if the off-campus speech has created, or could create a substantial disruption at school or interference with the rights of students to be secure.

    The reason for the confusion in the case law is that you have to look at the status of the person who is being attacked. The cases that have not upheld a school response were situations where the student targeted staff! So the court applied the substantial disruption standard and did not find any interference with the rights of students.

    The issue is that it is necessary to balance student free speech rights against the equally important rights of other students to be safe and receive an education. When students attack staff, the issue is the authority of the staff member. Different issue.

    There are 3 key decisions that establish that that schools absolutely have the authority to respond to protect other students:

    Saxe – interference with the ability of a student to receive an education is almost by definition a substantial disruption. (Judge Alito)
    Morse – the reason schools must be able to restrict student speech is student safety (Justice Alito, concurring)
    Kowalski – substantial disruption includes bullying and harassment (unfortunately didn’t cite Saxe, which would have made the decision stronger, but used the same approach to analyzing the safety aspects of the situation as the majority opinion in Morse).

    The problem is that school officials do not like the JS and Layshock decisions (3rd circuit). They love Doninger (2nd circuit) But the court in Layshock criticized Doninger – and I totally agree with them.

    What NSBA tried to argue in the amicus brief for JS and Layshock appeal was that because schools need the ability to respond to student against student cyberbullying, the court should must also allow them to respond in situations where students have attacked staff. This is not going to be a winning argument.

    There is, however, also a due process concern. It is really important that districts add off-campus speech to their policies. This will give students and parents appropriate notice. And will alleviate lots of arguments.

    Nancy Willard, M.S., J.D., Director, Embracing Digital Youth (was Center for Safe and Responsible Internet Use http://embracingdigitlyouth.org

  2. Thank you for sharing this article to us. This will be helpful knowing that we can still protect our kids even off campus.

  3. Ryan Klingensmith says:

    This is great info for us. I will be passing it along to the schools I work with! Thank you!

  4. Bob H. says:

    Anti-Bullying Efforts: Who Is Most At Risk for Bullying?

    Over the last decade, awareness of the prevalence of bullying has grown significantly. Thankfully, there are quite a few dedicated anti-bullying organizations at work nationally, as well as some effective, targeted programs that have been executed in individual communities.

    Bullying is everyone’s problem. It comes in many forms, and actually varies quite a bit between male and female students. Boys are more likely to hit or push one another, while girls are more likely to start rumors or ostracize each other, according to SafeYouth.org.
    Targets and Consequences of Bullying

    So who is most at risk to become a target of bullying? Again, according to the statistics cited by SafeYouth.org (link below), those most susceptible to bullying by their peers are those students who are more insecure, withdrawn, and cautious than their peers. These students are often more insecure to begin with, so they become easy targets for bullies because they don’t fight back.

    The tragic consequence of this is that students who may already feel bad about themselves end up feeling worse because of the things bullies say. If peers join in and avoid that person, it can be even harder for them to make friends; loneliness intensifies the negative feelings of depression and low self esteem. Studies have also found that bullying has long-term consequences: even after it is stopped, years later, adults who were bullied as youth have a greater rate of depression and lower self esteem than adults who weren’t bullied.
    Taking a Stand

    So what can be done to stop bullying? There is no single approach that can stop bullying entirely, largely because bullies exist more prevalently in environments that allow them. Therefore, a change in the entire culture of a school is the most effective way to prevent bullying.

    The most effective programs are those programs that involve everyone related to a school: students, teachers, parents, and all staff (even crossing guards and lunchroom supervisors). Educating everyone on the expectations of behavior, teaching students to stand up for those being bullied, and encouraging inclusion of students who are often left out can start turning around a school’s culture.

    Reinforcement is key, which is why we have identified anti-bullying campaigns as one of the top opportunities for us to use our folder education platform to help better the lives of students. If students are hearing the anti-bullying message from teachers and parents and being reminded to stand up and do the right thing every time they open their desk, there is a much greater chance that they will internalize this message.

    My School Folders Help Highlight Important Health and Safety Education Campaigns

  5. Kim Short says:

    Bullying continues because no one will admit that bad parents are the source of the problem.

  6. 19Jam92 says:

    What types of punishment would you say should be down to the kids that are bullying their peers online?

  7. [...] prescribe school-based sanctions for participating in bullying. So these laws and a long line of court caselaw states that cyberbullying that occurs on school property or that substantially disrupts the school [...]

  8. [...] there is nothing that they can do. While this perspective is incorrect, as we have pointed out on this blog before, the research shows is there is a high likelihood that a student who is involved in [...]

  9. Justin Morahan says:

    Thank you for the info. Do you have any knowledge othe law re out-of-school bullying in Ireland please?

  10. [...] of resulting in, a substantial disruption of the learning environment at school (see also this blog post).  We believe that most cyberbullying incidents can rise to this level but that educators need to [...]

  11. […] (which we will explain further in a future blog). We’ve fleshed out these clauses in great detail here and here, in case you need a refresher. With specific regard to Secret and Whisper (and current and […]

  12. […] learning or the school environment. (emphasis added) This is an issue we have discussed at length on this blog and so I wanted to once again clarify what schools can and can’t do in this regard. Students from […]

  13. […] we will explain further in a future blog). We’ve fleshed out these clauses in great detail here and here, in case you need a refresher. With specific regard to Secret and Whisper (and current and […]

  14. […] of expression are inappropriate and subject to sanctions.” More recently, this interpretation has been expanded to include some student behaviors and speech expressed from beyond the school walls (to the extent […]

  15. […] very few state policies address bullying that occurs off school campus, although legal precedent exists for school intervention in cases where off-campus bullying disrupted the on-campus learning […]

  16. Johnk811 says:

    Very informative blog post.Really thank you! Keep writing. ddffeaaeekge

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