Can a School Respond to Off-Campus Cyberbullying?
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.
Third Circuit Court weighs in on conflicting cases involving off-campus online speech by students
As we have discussed several times on this blog in recent years, there are two cases that addressed issues with off-campus online speech by students that resulted in seemingly conflicting responses by the same court. They potentially have implications for how schools can respond to cyberbullying incidents, so are important to follow. To refresh your memory, Layshock v. Hermitage School District involved Justin Layshock, the 17-year-old Hickory High School senior who in 2005 created a “nonthreatening, non‐obscene parody profile making fun of the school principal” from his grandmother’s home using her computer. The school suspended Layshock for 10 days, which was initially upheld in a 2006 hearing, but later overturned by the judge in the case, saying the school went too far. In February of 2010, a panel of judges from the Third U.S. Circuit Court of Appeals weighed in and agreed. In this case it appeared the school failed to effectively argue that Layshock’s actions caused a substantial disruption at school – the standard that was established in the seminal Supreme Court case Tinker vs. Des Moines (1969). According to Tinker, school administrators can discipline students for off-campus behavior if it can be demonstrated that such behavior resulted in a “substantial and material disruption” of the school environment.
In the other case (Blue Mountain School District v. J.S.), a 14-year-old eighth-grade student from Blue Mountain Middle School also created a MySpace profile of the principal which included, among other things, an accusation that he was a “sex-obsessed pedophile.” This student was also suspended for 10 days for violating the school’s discipline code and for using the schools copyrighted material (the principal’s picture from the school’s web site) without permission. The lower court refused to grant the student a temporary restraining order or preliminary injunction ruling that schools can in fact discipline students for lewd off-campus behavior, even if such behavior doesn’t cause a substantial disruption. Another, separate panel from the Third U.S. Circuit Court of Appeals agreed with the lower court in an opinion that seemed inconsistent with the Layshock ruling.
To resolve these disparate views, the Third Circuit agreed to review the cases collectively (“en blanc”) to offer a perspective. In short, there is nothing too surprising about the remarks of the majority opinions released on Monday. The court re-asserted that schools cannot punish students for off-campus behavior or speech without evidence of a substantial disruption at school (or a high likelihood that such a disruption will occur).
In the Layshock case, the school district conceded that the creation of the MySpace parody profile did not cause a disruption at school. So it is clearly outside the boundaries of formal school discipline. The court also listed several cases where schools were allowed to discipline students for the off-campus behavior (J.S. v. Bethlehem Area Sch. Dist., 807 A.2d 847 (Pa. 2002); Wisniewski v. Bd. of Educ. of Weedsport Cent. Sch. Dist., 494 F.3d 34 (2d Cir. 2007); and Doninger v. Niehoff, 527 F.3d 41 (2d Cir. 2008), noting that “each of those cases involved off campus expressive conduct that resulted in a substantial disruption of the school, and the courts allowed the schools to respond to the substantial disruption that the student’s out of school conduct caused.”
In the other case, the Bethlehem Area School District did initially attempt to argue that J.S.’s activities resulted in a significant disruption at school, though neither the District Court nor the Third Circuit Court of Appeals accepted that argument so they backed off. In the original hearing, the District Court supported the disciplinary actions of the school, not because there was evidence of a substantial disruption, but because the content of the off-campus speech was “vulgar, lewd, and potentially illegal.” This was consistent with Supreme Court decisions in Fraser (1986) and Morse (2007). In its review, however, the Third Circuit noted that in both of these cases, the speech was delivered at school (Fraser) or a school sponsored activity (Morse). As such, the vulgarity of the speech was irrelevant and therefore the singular issue is to consider is whether the off-campus speech resulted in a substantial disruption. Therefore, in a divided opinion (8-6) the Third Circuit overturned the District Court, concluding that: “…the school district violated J.S.’s First Amendment free speech rights when it suspended her for speech that caused no substantial disruption in school and that could not reasonably have led school officials to forecast substantial disruption in school.”
Judge Jordon noted in a concurring opinion, however, that: “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.” So students can be punished for off-campus speech or behavior (consistent with Tinker’s disruption clause).
So where does this leave us. Well, the key issue to keep in mind, it seems, is whether a student’s off-campus speech or behavior results, or has a high likelihood of resulting in, a substantial disruption at school. We have little additional clarity regarding what that actually looks like, but we know a bit more about what it isn’t. Staff accessing a harassing profile at school does not constitute a substantial disruption. A student bringing a printed copy of a Web site to school at the request of staff does not cause a substantial disruption. A few students talking in class does not equal substantial disruption.
It also appears that vulgarities directed toward school officials from an off-campus location are not automatically subject to school discipline. Now, if that speech substantially and/or materially disrupts the learning at school, it may be fair game for sanction. It is interesting that free speech advocates are touting this as a victory for students, suggesting these opinions are evidence that there are no conditions under which schools can discipline students for their off-campus speech. This is clearly an incorrect interpretation of the facts. We have long known that students have free speech rights. We also know that those rights are constrained a bit while at school and where the speech substantially disrupts the school environment. That hasn’t changed.
It is important to also point out that both of these cases involved students who were targeting staff. I would be very interested to see if the opinions changed if all players involved were students. If a student creates a Facebook parody profile about another student, could the target’s ability to learn at school be substantially disrupted? It sure seems so. But it remains to be seen whether the higher courts would agree with this rationale.
Guidelines for Online Communication between Teachers and Students
The state of Virginia has recently proposed guidelines for public schools in order to prevent sexual (and other forms of) misconduct between educators and students. Justin and I have blogged about this issue here and here in the past – and it continues to be a topic of strong interest and controversy as we work with administrators across the nation.
First, I really like the fact that Virginia’s Board of Education has attempted to tackle the issue, as so many states and school districts are not being proactive enough to formally hash out this issue. Seemingly, this was prompted by the fact that 120 of the 169 actions taken against educators’ licenses since 2000 had to do with some type of misconduct involving students.
Also important to mention is that at least 46 educators have been arrested due to this problem, with half of those cases involving problematic computer or cell phone communications. I don’t have the statistics yet, but it is possible that these trends are mirrored in other states across the nation, as I don’t think Virginia is alone in its struggle to address inappropriate interactions between school personnel and students.
First, let me bring your attention to their model policy for electronic communications with students:
• Teachers and other school board employees must restrict electronic communications with students to accounts, systems and platforms provided by the school division.
• Teachers and other employees may not use personal wireless communications devices to “text” students and are prohibited from interacting with students through online social-networking sites.
• Teachers and other school board employees must decline or disregard invitations from students to interact through texting and social-networking sites.
• Teachers and other school board employees may not knowingly engage in online gaming with students.
• School board policy on electronic communications with students also applies to teachers and other employees of virtual school programs and other vendors providing instructional services to students.
Overall, the state’s Department of Education states that communications should be transparent, accessible to supervisors (I don’t see how this differs from “transparency” – someone let me know…), and professional in tone.
They also specify guidelines for in-person communications with students:
• Conversations with students should focus on matters related to instruction and school activities.
• School board employees and volunteers should not initiate discussions about their private lives or the intimate details of the private lives of unrelated students.
• Conversation by school board employees and volunteers with students that could be interpreted as flirtatious, romantic or sexual is prohibited.
• The sharing of sexually explicit or obscene jokes and verbal “kidding” of a sexual nature between school board employees, volunteers and students is prohibited.
• Private, one-on-one conversations with students should take place within the potential view, but out of the earshot of other adults — such as in a classroom with the hallway door open. This policy also applies to conversations between volunteers and unrelated students.
• School board employees may not conduct an ongoing series of one-on-one meetings with a student without the knowledge of the principal and without written permission of a parent or guardian.
• The school board’s policy on in-person communications with students also applies to teachers and other employees of virtual school programs and other vendors providing instructional services to students.
Obviously, interacting via technology allows for personal thoughts, emotional content, and private feelings to be shared more readily than in person – and of course allows for one-on-one conversation outside of the purview of other adults, removing accountability and perhaps increasing notions of undetectability. The vast majority of educators will not abuse this – but some will. I feel that the work that VDOE has done in this area is pioneering, and I look forward to seeing what feedback is received to refine these guidelines before they are codified.
A Student Guide to Personal Publishing
Sameer and I recently wrote a concise “Student Guide to Personal Publishing” which was published by Jostens (the class ring and yearbook company). They contacted us looking for information they could provide to students, parents, and educators about being safe and responsible when publishing material both online and off. While we regularly discuss these issues in our presentations, we didn’t have anything written that could be easily distributed. Now we do. Feel free to download the guide and distribute it far and wide. As always, if you have any comments, thoughts, or feedback, let us know.
Cyberbullying Research Summary: Changes in Adolescent Online Social Networking Behaviors from 2006 to 2009
By Justin W. Patchin and Sameer Hinduja
This Research Summary summarizes how youth are modifying their use of social networking sites as it relates to online privacy and the disclosure of personal information.
Hinduja, S. & Patchin, J. (2010). Cyberbullying research summary:
Changes in Adolescent Online Social Networking Behaviors from 2006 to 2009. Cyberbullying Research Center. Retrieved [insert date], from http://www.cyberbullying.us/changes_in_teens_online_social_networking_2006_2009.pdf