Two Oregon students create a racist profile on a social networking site, with cartoons about lynching and racist language. Other students link to the profile and post ugly, racist comments. Teachers report that many of the school’s minority students are frightened.
In another instance, several high school students create a “We Hate Ashley” profile online that includes crude sexual innuendoes and poking fun at her weight. Ashley no longer attends school. Her grades plummet. Her parents say she is under psychological care and on suicide watch.
Do school officials have the authority to impose discipline in response to harmful off-campus online speech? Should they? This is a major challenge facing school administrators today.
Many state legislatures are now adding statutory provisions requiring schools to incorporate cyberbullying into bullying prevention policies. But this has presented some concerns. For example, in Oregon and Washington, language incorporated into cyberbullying legislation appears to restrict administrators from responding to any off-campus bullying regardless of the harmful impact on campus. Administrators from these two states are advised to check with their legal council. Administrators in other states should understand that the American Civil Liberties Union is trying to use language in the cyberbullying statutes to override federal case law and restrict administrators from doing anything in response to off-campus harmful speech.
Effects of Cyberbullying
The problem is that most incidents of cyberbullying occur off-campus because students have more unsupervised time. But the impact is at school where students are physically together. Although there is no data on the extent of harmful impact, anecdotally, it is clear that some incidents lead to students avoiding or even failing school, committing suicide and even becoming violent.
Studies on cyberbullying reported in the December 2007 issue of Journal of Adolescent Health reveal that both perpetrators and targets of cyberbullying report significant psychosocial concerns and increased rates of involvement in offline physical and relational aggression. While there is some survey data on the prevalence of cyberbullying, it’s difficult to distinguish how reliable it is. The National Crime Prevention Council says that surveys show 43 percent of youths have been cyberbullied, but about half of them indicate the incident or incidents did not bother them.
One study reported that the victims of cyberbullying were eight times more likely than other students to report bringing a weapon to school. The concerns for student safety are very real. Students who do not believe school officials can help them may seek their own revenge or refuse to come to school. The videotaping of up to six Florida girls beating up a female classmate in April in one of the attackers’ grandmother’s home is an example. The student who was beaten reportedly had been cyberbullying her assailants, using slurs and insults, on MySpace.
Historic Court Cases
Federal courts have consistently ruled that school officials can respond to off-campus student speech if that speech has caused—or a reasonable person would anticipate it could cause—a substantial disruption at school or interference with the rights of students to be secure. This is called the Tinker standard and was created after the federal case Tinker v. Des Moines, 393 U.S. 503 (1969). Situations that have met this Tinker standard in cases involving off-campus and on-campus speech have included violent physical or verbal altercations, a hostile environment interfering with the ability of students to participate in school activities, and significant interference with operations and delivery of instruction.
Along the lines of hostile environments, courts have allowed school officials to restrict statements printed on students’ T-shirts or other clothing that could trigger violent altercations or create a hostile environment for other students.
A Second Circuit decision in May, Doninger v. Niehoff, affirmed that the Tinker standard applies to off-campus online speech. In this case, a student had posted speech online that had used a derogatory term to describe an administrator and called for student protest via e-mail. The court referenced a prior decision and held that “a student may be disciplined for expressive conduct, even conduct occurring off school grounds, when this conduct ‘would foreseeably create a risk of substantial disruption within the school environment,’ at least when it was similarly foreseeable that the off-campus expression might also reach campus” (see sidebar).
Key Steps for Administrators
When cyberbullying occurs, some important steps can ensure the administrative response is legally justified:
--An incident investigation should begin with the downloading and saving of all of the hurtful material immediately, although the bully could delete some of this material if it has been reported. Look for any evidence that material has been posted during the school day. A search should be conducted of the online activities of all involved students through the district Internet system.
--The targeted student should be questioned about any related on-campus activities, including messages received via cell phone, as well as in-person interactions, however minor. Your objective is to clearly establish a “school nexus.”
--Describe and document the occurrence or likelihood of a substantial disruption or interference on campus. To strengthen your argument related to a hostile environment, have the targeted student independently evaluated by a counselor or psychologist and obtain other evidence of the student’s emotional well-being and ability to focus on learning, such as attendance and grades.
--Always keep in mind that cyberbullying material can be posted in retaliation for on-campus bullying by the target, or both students could be equally involved in an online fi ght that has escalated out of control. It is essential to undestand the problem before deciding discipline.
--Be very cautious in imposing discipline. To lower the possibility of retaliation, the objective of any disciplinary response must be to ensure that the child who has posted the harmful material and his or her parents feel remorse. If the disciplinary response is excessive, this can turn remorse into anger. Such anger can lead to vicious, potentially uncontrollable, online retaliation against the target. And it is necessary to strive to remove the harmful material and help all parties resolve it.
--Carefully investigate speech targeting a staff member. However, it is essential to recognize that when a student or students have targeted a staff member, there are frequently underlying issues that warrant close attention. For example, a student who has posted harmful speech may be overwhelmed with learning difficulties. Sometimes students target staff because they perceive a staff member is inadequate or because the staff member has been bullying the student. Disciplining a distressed student who has posted harmful material online targeting a staff member without resolving the underlying concerns can turn that student into a security risk.
School officials lack the authority to respond to off-campus speech simply because they find it objectionable or repugnant. Response to such speech is a parent responsibility. But when off-campus speech raises legitimate concerns about student safety and well-being or instruction, school officials have the authority to respond—and should.
Nancy Willard is an author and the director of the Center for Safe and Responsible Internet Use, csriu.org.