[LM_NET] There is NO Constitutional Right to Be a Cyberbully

[Nancy Willard <nwillard@CSRIU.ORG>]

Hi all, I know you are totally focused on getting off for the holidays 
and getting through these last several days. But please take the time to 
read this and please forward this to your principal and superintendent. 
This is about a cyberbullying case that was reported earlier this week. 
There is an analysis of this case on my web site.


A recent case from a District Court in California, JC v. Beverly Hills, 
has been reported as holding that schools have no constitutional right 
to discipline students who are cyberbullying other students while 
off-campus. This is not an accurate interpretation of the findings of 
this case.

In this case, the Court ruled that regardless of the geographic origin 
of student speech, school officials can respond if that speech meets the 
standard originally enunciated in Tinker. Under Tinker, school officials 
can restrict student speech that has caused or foreseeably could cause a 
substantial disruption at school or interference with the rights of 
students to be secure. The Court's decision related to school authority 
to respond is in accord with every case where the question of school 
authority over student speech posted online while the student was 
off-campus has been raised.

Unfortunately, the Court misapplied the Tinker standard to the situation 
presented in the case. JC and some friends had created a 4 1/2 minute 
video disparaging CC which had been posted to YouTube. JC was also 
actively encouraging other students to view the video.  This kind of a 
situation is unfortunately occurring with some regularity in schools.

The Court erroneously determined that in order to discipline JC, the 
school would have to demonstrate that her speech had or could have 
caused a substantial disruption to school activities. In so doing, the 
Court dismissed the emotional harm suffered by CC, which clearly, if not 
handled properly by the school, would have caused significant problems 
in her ability to fully participate in educational activities.

The Court noted that after receiving talking with the counselor, CC was 
willing to go to class - and therefore found this was evidence that 
there was no substantial disruption. The Court failed to put this into 
context. At the same time CC was walking to class, the aggressors were 
being called to the office. JC was suspended. Thus, because the 
principal handled this situation effectively by responding with an 
appropriate disciplinary consequence, CC did not suffer significant 
emotional harm and was able to go to class. But the district's 
appropriate response was used by the Court against the district!

Unfortunately, all of the cases presented to the Court for consideration 
of this case involved other student off-campus speech cases. None of 
these cases involved student-on-student verbal aggression. All of the 
off-campus online cases involved students targeting school staff. When a 
student targets school staff an assessment of a substantial disruption 
of the school environment is necessary.

Why are there no student-on-student verbal aggression cases? Likely 
because very few attorneys are inclined to bring a case seeking to 
establish that a student has the free speech right to torment and 
disparage another student. JC was represented by her father, Evan Cohen.

There are two excellent circuit court cases where the issue of school 
response to student verbal aggression was considered. Neither of these 
cases were discussed by the Court in JC.

In Saxe v. State College, then Judge, but now Supreme Court Justice, 
Alito stated: "The primary function of a public school is to educate its 
students; conduct that substantially interferes with the mission 
(including speech that substantially interferes with a student's 
educational performance) is, almost by definition, disruptive to the 
school environment."

In Sypniewski v. Warren Hills, the Circuit Court ruled: "Intimidation of 
one student by another, including intimidation by name calling, is the 
kind of behavior school authorities are expected to prevent. There is no 
constitutional right to be a bully."

If the reasoning presented in the JC case is considered sound this calls 
into question the constitutionality of all state statutes and district 
policies that address student verbal aggression or bullying. Clearly, 
the guidance provided by the Third Circuit is superior.

A more comprehensive legal analysis of the JC case is now on the Center 
for Safe and Responsible Internet Use web site - at http://csriu.org. 
Early 2010, CSRIU will be providing a 2 hour video presentation for 
school officials addressing how to prevent and respond to cyberbullying, 
cyberthreats, and sexting.

Nancy
-- 
Nancy Willard, M.S., J.D.
Center for Safe and Responsible Internet Use
http://csriu.org
http://cyberbully.org
http://cyber-safe-kids.com
http://csriu.wordpress.com
nwillard@csriu.org

Cyberbullying and Cyberthreats: Responding to the Challenge of Online 
Social Aggression, Threats, and Distress (Research Press) 

Cyber-Safe Kids, Cyber-Savvy Teens: Helping Young People Learn to Use 
the Internet Safely and Responsibly (Jossey-Bass)

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