All 50 states and the District of Columbia have enacted laws that prohibit bullying in school settings, provide legal recourse to victims of bullying in schools, and impose duties on schools regarding the development and implementation of anti-bullying policies. With only one exception, all of those state statutes explicitly cover cyberbullying, and the one outlier – Alaska – so broadly defines bullying that an argument can be made that cyberbullying is impliedly covered by its state law. And although no federal statute directly addresses the issue, bullying and cyberbullying often occur in contexts where the harassment is covered by federal civil rights laws governing discrimination based on race, ethnic origin, color, gender, sexual orientation or other forms of protected class status.
The challenge for educational institutions in attempting to address the problem of cyberbullying is that the conduct explicitly prohibited by school anti-bullying policies often takes place off school property through digital media such as email and texts or via postings on social media and websites, resulting in the sanctions that are levied by schools against the perpetrators being challenged in court as free speech violations.
The decisions in several recent lawsuits provide insights regarding the legal authority of schools to impose sanctions on students who engage in cyberbullying and provide guidance for the development and implementation of school anti-cyberbullying policies.
Recent Cyberbullying Cases
In Bell v. Itawamba County School Board, an August 2015 decision by the U.S. Fifth Circuit Court of Appeals, an en banc rehearing (all 16 circuit judges participating) of a December 2014 ruling by a three-judge panel of the Fifth Circuit, the court ruled in favor of the school district and held that sanctions imposed by a high school on a student who engaged in off-campus cyberbullying of two teacher-coaches did not violate the free speech rights of the student because such harassment satisfied the “substantial disruption” standard for restricting student speech established by the U.S. Supreme Court in its 1969 decision Tinker v. Des Moines Independent Community School District.
At home, using his own computer hardware and software, Taylor Bell, a student at Itawamba Agricultural High School (Mississippi) posted for public viewing on Facebook and YouTube a rap song that he had recorded containing offensive, lewd and profane language, and that was designed to bully, harass and intimidate two teacher-coaches by alleging in the lyrics that the two were engaged in inappropriate sexual relationships with female students at the school. In its 1986 decision in Bethel School District v. Fraser, the U.S. Supreme Court held that although schools have the authority to sanction students for on-campus offensive, lewd or profane language, schools are prohibited from punishing students for the use of off-campus inappropriate language unless the Tinker legal standard is satisfied.
Specifically, the standard established by the U.S. Supreme Court in Tinker is that schools can limit student speech that “materially and substantially interferes with the requirements of appropriate discipline in the operation of the school” and the standard can be satisfied either by “showing a disruption has occurred or showing that the speech gave rise to a reasonable forecast by the school administration of substantial disruption.” The Fifth Circuit, in its en banc decision in Bell, found that the severity of the bullying behavior reflected in the lyrics of the recording both created an actual disruption and gave rise at the time of its posting on social media of a reasonable forecast of substantial disruption. The written opinion in the case, including the lyrics held by the court to constitute cyberbullying, is available at http://www.ca5.uscourts.gov/opinions%5Cpub%5C12/12-60264-CV2.pdf.
In Rosario v. Clark County School District, a July 2013 U.S. District Court decision, Juliano Rosario, a basketball player at Desert Oasis High School (Nevada), used Twitter off-campus to post eight offensive, lewd and profane “tweets” cyberbullying various school officials, including his coach. After his dismissal from the team and disciplinary reassignment to an alternative school, Rosario sued the district, school administrators, two athletic directors and three coaches, asserting numerous causes of action including violation of his free speech rights. The court dismissed all of the claims except those related to Rosario’s First Amendment rights and ruled that a full trial should take place to evaluate whether, in the context of the Nevada state anti-bullying law (which explicitly prohibits cyberbullying), Rosario’s tweets either caused a substantial disruption on-campus or could have been reasonably forecast at the time of their posting to reach the campus and foreseeably cause a substantial disruption. The full-text of the case is available at http://www.tradesecretslaw.com/files/2013/09/Rosario-v-Clark.pdf.
In Kowalski v. Berkeley County Schools, a 2011 decision by the U.S. Fourth Circuit Court of Appeals, a ruling in favor of the district resulted from a free speech lawsuit filed by Kara Kowalski, a cheerleader at Berkeley County High School (West Virginia) who was expelled from the cheer squad and suspended from school for using social media off-campus to viciously cyberbully a fellow cheerleader. The court concluded that Kowalski’s actions, given the West Virginia anti-bullying statute and an explicit school district policy against bullying, could have been reasonably forecast at the time she engaged in the online harassment of her teammate, to cause a substantial disruption on-campus. The full-text of the case is available at www.ca4.uscourts.gov/Opinions/Published/101098.P.pdf.
Language of the Policy: Begin with a vision statement explaining the purpose of the policy and its intended role in creating a safe and respectful school environment free of harassment. Define with specificity the conduct that will be considered to constitute bullying or cyberbullying, along with the evaluative criteria that will be used to determine whether a policy violation has occurred. Set forth with clarity the range of possible consequences for those who engage in bullying behaviors and the hearing processes and due process protections that will be accorded to those accused of violating the policy.
Reporting Procedures: Clearly state the process to be used by victims in reporting incidents of bullying or cyberbullying, including the name, title and complete contact information for the designated school official to whom reports should be made. Because bullying in school settings often invokes the victim’s civil rights under federal or state law (race, ethnicity, color, gender, sexual orientation, and other criteria related to protected class status), the school official to be assigned the responsibility for receiving, processing and investigating allegations should be the district’s federally mandated Title IX Coordinator. On April 24, 2015, the U.S. Department of Education’s Office for Civil Rights issued a “Dear Colleague” letter clarifying and reinforcing the obligations of school districts nationwide to have in place a Title IX Coordinator and best practices for such officials. The letter is available at www2.ed.gov/ about/offices/list/ocr/letters/colleague-201504-title-ix-coordinators.pdf.
Investigatory Procedures: The anti-bullying policy should also include details regarding the steps that will be taken to investigate allegations, including timelines for conducting an evaluation of the assertions, the extent to which anonymity of complainants can or will be preserved during the investigative process, and the proactive measures that will be employed to prevent retaliation against the complainants. Retaliation against alleged victims of bullying or cyberbullying often becomes a free-standing basis for a separate legal cause of action against schools and personnel, therefore an emphasis must be placed on protecting complainants throughout the investigatory and dispute resolution process.
Communication & Education: Part of the policy development process should be the choice by school officials of the strategies for most effectively communicating the anti-bullying policy to all affected parties, including administrators, staff, faculty, students and parents, and for educating all constituents regarding the purpose and details of the policy. Also important will be the selection of the most practical media for communication of the policy from options such as in-service programs for school faculty and staff, incorporation of policy communication into the school curriculum, assemblies of students at which speakers discuss the policy, meetings of student-athletes and parents at which athletic directors and coaches discuss the policy, incorporation of the policy into student and student-athlete codes of conduct, development of hard-copy fliers or pamphlets containing the policy, postings of the policy on school websites and social media, and the development of video programs covering the purpose and details of the policy.
Ongoing Monitoring of the Policy: It is essential that policy development include implementation procedures that are capable of repetition each and every year as new faculty, staff, students and parents join the school family. A common and unfortunate pattern in many of the bullying and cyberbullying incidents and lawsuits is that schools create a policy, implement and stringently enforce the policy for a few years, but then with the passage of time, fail to continue their efforts.
Lee Green is an attorney and a professor at Baker University in Baldwin City, Kansas, where he teaches courses in sports law, business law and constitutional law. He is a member of the High School Today Publications Committee. He may be contacted at Lee.Green@BakerU.Edu.