The role of school officials in addressing student bullying in all forms continues to be the focus of national attention. Much of this attention has been on the use of electronic communications to indirectly, and often anonymously, engage in what is now commonly referred to as "cyberbullying." While cyberbullying most often involves student conduct directed at other students, school officials also have had to deal with student use of electronic communications to create inappropriate profiles of staff members on social networking sites. When cyberbullying is initiated at school, or is on school-issued electronic equipment, disciplinary action is clearly warranted. However, when cyberbullying occurs off-campus through a student's personal computer, cell phone, or other electronic device, the authority and responsibility of a district to take disciplinary action is less clear.
To determine whether student discipline is authorized in cases of off-campus internet conduct, courts look to the preeminent U.S. Supreme Court case, Tinker v. Des Moines Independent Community School District. In that case, students were disciplined for wearing black arm bands to school in protest of the Vietnam War. The Court held that student conduct, "in or out of class," which involves substantial disorder is not protected free speech. However, the court also stated that "undifferentiated fear or apprehension of disturbance" is not enough to overcome the right to free speech. The Court found that the students had not caused a "substantial disruption" at school and that disciplinary action was not warranted. Based on Tinker, districts likely are authorized to take disciplinary action when off-campus cyberbullying leads to "substantial disruption" at school.
In actual cases involving off-campus cyberbullying, courts around the country have been divided as to whether the substantial disruption standard had been met. The Third Circuit Court of Appeals reached different conclusions in two recent cases where students had been disciplined by a school district for creating vulgar profiles of administrators on social networking sites from their home computers. In the first case, Layshock v. Hermitage School District, a panel of judges on the Third Circuit originally concluded that discipline was not warranted because the profile had not been created at school or on school-owned equipment, even though other students had accessed the profile at school, using school-owned computers. However, in the second case, J.S. v. Blue Mountain School District, a panel of judges found that although the substantial disruption standard had not been met, the student could be disciplined based on the content of the internet speech under the U.S. Supreme Court decision in Bethel School District v. Frasier. In Frasier, a student had been disciplined for giving a speech at a school event that contained lewd and vulgar content.
Because the Layshock and J.S. decisions seemed to be inconsistent, the full Third Circuit agreed to review the decisions of the two panels and rendered decisions in the two cases on June 13, 2011. First, the Court concluded that the Bethel decision applies only to on-campus speech. Second, the Court confirmed that the Tinker substantial disruption standard could be applied to off-campus cyberbullying. In both Layshock and J.S., however, the Court concluded that there was insufficient evidence to establish that substantial disruption at school had resulted from the parodies. Although Layshock and J.S. involved conduct directed toward school employees, it is clear that the same reasoning would apply in cases involving cyberbullying of fellow students.
Since the rulings in Layshock and J.S., the Fourth Circuit Court of Appeals (which includes South Carolina) applied the Tinker substantial disruption standard in a case out of West Virginia. In Kowalski v. Berkeley County Schools, a high school senior created a "hate website" on MySpace where she invited other students to post rude and vulgar pictures and comments about one particular classmate. The court held that disciplinary action against the student was warranted, even though she created the site at home on her personal computer. The court found that the cyberactivity impacted the educational environment, as was evidenced by the approximately two dozen students who joined the group and by the targeted student's absences following the cyberbullying.
It should be noted that in Kowalski, the school district had a formal policy prohibiting bullying. However, the Court noted that neither the bullying policy nor the district's general code of conduct referenced their application to off-campus activity and, as a result, students would not be on notice that such activities could result in discipline by the school. Nevertheless, because the policies stated that they would apply to behavior that affects a school's learning environment, the Court concluded that the policies were sufficient. The Court's discussion makes it clear that all student conduct policies should specify that off-campus activity may warrant disciplinary action when there is a sufficient connection between the conduct and a school's ability to maintain order and discipline.
When cyberbullying cases arise that do not cause a material and substantial disruption at school, districts must determine what, if any, action can be taken. First, school officials who become aware of cyberbullying may simply discuss the situation with the student, bring in the student's parents or guardians for a conference, or even contact social networking sites regarding the material in question. Districts also can counsel students that their actions have real-life consequences, in addition to potential disciplinary action. For example, college admission counselors and potential employers may search for and locate online activities. In certain circumstances, cyberbullying victims have the right to sue their bullies. Students also can be expelled from social-networking sites for violation of terms of service, which universally prohibit bullying, harassment, and impersonation along with nudity and other inappropriate content. Schools also should increase staff and student awareness of bullying through education and training, and by having clear procedures in place for taking action when bullying is not only reported, but also observed or learned about from a witness to the bullying. Districts also should not hesitate to make referrals to mental health counselors in appropriate cases for students who engage in or are the target of bullying.
The analysis to determine whether cyberbullying warrants discipline is a fact-specific determination, which is dependent in part on your district's policies. Should you have questions about cyberbullying or need assistance with developing or implementing appropriate policies and procedures, please feel free to contact this firm.