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March 2009 | Volume 66 | Number 6
Recent court rulings suggest that schools may have a right to protect educators from electronic harassment—but a cautious approach is best.
Cyberbullying is targeted cruelty accomplished through Internet chat rooms, blogs, instant messaging, social networking sites like MySpace or Facebook, or cell phones. Unlike face-to-face bullying, cyberbullying can be anonymous, pervasive, and instantaneous. Moreover, it is "on" 24/7.
Student victims of cyberbullying may withdraw from peers and school involvement, endure emotional suffering, and in extreme cases, commit suicide. But cyberbullying has also extended beyond the realm of student-to-student harassment: Administrators and teachers increasingly find themselves the targets of cyberbullies.
Insulting blogs, online caricatures, or imposter profiles on MySpace or Facebook are more than simple nuisances—they can escalate to the level of defamation and threats. Educators are often unsure how to respond to such communications, and school administrators are uncertain about their authority to discipline students for off-campus, technology-enabled speech or expression.
The First Amendment protects a student's right to express opinions. Before disciplining a student for out-of-school speech, school officials need to show that the speech materially and substantially disrupted, or had the potential to disrupt, the operation of the school or interfered with the rights of other students. Because the law does not precisely define the words materially and substantially, aggrieved students and their parents often file costly, time-consuming lawsuits when schools impose discipline for students' out-of-school expression.
For example, school officials in the Hermitage School District in western Pennsylvania reacted to an insulting and offensive MySpace imposter profile of the high school principal by suspending the profile's author, senior honor student Justin Layshock, and assigning him to an alternative education program. Justin's parents sued the school district. A 2006 court decision vindicated the school district and upheld the student's suspension (Layshock v. Hermitage Sch. Dist., 2006), but the district's victory was short-lived. Upon reconsideration, the court reversed its decision (Layshock v. Hermitage Sch. Dist., 2007). Stating that the school had overstepped its authority, the judge ordered a follow-up judicial proceeding to determine damages owed to the Layshocks.
In another recent case, an Indiana court ruled that a female middle school student who had posted derogatory and vulgar comments about her principal and assistant principal on a friend's MySpace pages was expressing protected "political speech" (A.B. v. State of Indiana, 2007). The student, identified only as A.B., had been adjudicated a delinquent child after she posted lewd messages criticizing the principal for enforcing the school's "no piercings" policy, followed by the comment, "die … [principal] … die." She also created a publicly accessible group on MySpace demeaning the principal. A.B. appealed the delinquency determination, arguing that the state constitution protected her speech because she was commenting on government action in prohibiting decorative body piercings in school. The Indiana Supreme Court reversed the delinquency ruling, not on the basis of protected political speech, but because the state had failed to prove all the statutory elements required to sustain a charge of criminal harassment.
However, not all courts have been so unsympathetic to schools' attempts to discipline students for inappropriate technological expression. The United States Court of Appeals for the Second Circuit upheld the suspension of an upstate New York middle school student, Aaron Wisniewski, who created and circulated an instant messaging icon showing his English teacher with a bullet shot through his head (Wisniewski v. Bd. of Educ. Weedsport Central Sch. Dist., 2007). The appellate court ruled that the icon was a threat that the student should have known would come to the attention of the teacher and the school and would cause material and substantial disruption to the school community. The court affirmed that threats are not protected by the First Amendment and upheld Aaron's one-semester suspension.
Two young women who used technology to belittle and harass school officials also lost their bids to have the courts reverse their school-imposed discipline. Eighth grade student J. S. created an imposter profile of her principal that indicated that he was a sex addict who "hit on" students and their parents. Affirming the school district's right to discipline students for expression that may disrupt school operations, the court refused to issue an injunction to halt J.S.'s suspension (J. S. v. Blue Mountain Sch. Dist., 2007).
Similarly, a Connecticut court upheld the school's discipline of Avery Doninger, a high school student who posted a vulgar blog about school officials and encouraged readers to contact the superintendent to "piss her off more" (Doninger v. Niehoff, 2007). In Doninger's case, school officials disqualified her from running for school office, deeming her uncivil and offensive blog language unbecoming of a school leader. The Second Circuit Court of Appeals recently affirmed the lower court's decision. (Doninger v. Niehoff, 2008).
As these court decisions demonstrate, school officials are justifiably concerned about when and how to respond to cyberbullying of educators. What actions, if any, should administrators and teachers take when faced with such occurrences? Which responses will stand up in a court of law?
Educators' most important first response is to pause, step back, and take a deep breath. Administrators and teachers must avoid reacting to students' offensive online communications in anger or fear.
Contacting and reaching out to the parents or guardians of the offending student is a time-winning alternative to immediate discipline. If the parents acknowledge their student's inappropriate expression, they may offer to impose their own discipline. If not, they have at least been afforded part of the due process owed to the offending student.
Another action that does not involve discipline or legal action is to take advantage of the new buttons on both MySpace and Facebook pages that can put one in touch with a representative who can help remove inappropriate postings.
Teachers who discover inappropriate student messages or postings online should bring the messages to the attention of their administrators and provide a print copy of any suspect message, along with any other relevant information. The school administrator must investigate. Will the inappropriate or offensive communication or expression materially and substantially disrupt school operations or interfere with the rights of other students to learn? If so, how? If the disruption or danger can be clearly enunciated and quantified, student discipline is likely warranted and legally appropriate. If the communication appears to pose a threat, the administrator should immediately contact law enforcement officials and be prepared to work with them.
If the offensive communication is not a threat, but discipline is warranted, barring the offending student from extracurricular activities (as in Avery Doninger's case) is the first disciplinary response to consider. Student participation in extracurricular activities is a privilege, and courts do not consider excluding a student from such activities to be a deprivation of the right to an education. Sometimes, however, the student's actions merit more serious discipline. Suspension is the next alternative, with expulsion reserved for the most serious offenses.
School officials must sometimes impose student discipline and risk the consequences, whether they be parental anger, negative publicity, or at the extreme, a lawsuit. Education can be a challenging career, but educators at least have the right to be free from cyberbullying, harassment, and threats.
A.B. v. State of Indiana, 863 N.E.2d 1212 (Ind. App. 2007).
Doninger v. Niehoff, 514 F. Supp.2d 199 (D. Conn. 2007).
Doninger v. Niehoff, 527 F.3d 41 (2d Cir. 2008).
J.S. v. Blue Mountain Sch. Dist., 2007 WL 954245 (M.D. Pa. Mar. 29, 2007).
Layshock v. Hermitage Sch. Dist., 412 F. Supp.2d 502 (W.D. Pa. 2006).
Layshock v. Hermitage Sch. Dist., 496 F. Supp.2d 587 (W.D. Pa. 2007).
Wisniewski v. Bd. of Educ. Weedsport Central Sch. Dist., 494 F.3d 34 (2d Cir. 2007), cert. denied 128 S. Ct. 1741 (2008).
Kathleen Conn, an educator and attorney, served in K-12 public schools for 18 years and is currently Assistant Professor in the Division of Education and Human Services, Neumann College, Aston, Pennsylvania. She consults with schools in the areas of bullying, school safety, and district liability; 610-558-5651; firstname.lastname@example.org.
Copyright © 2009 by Association for Supervision and Curriculum Development
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