Taunting and teasing among students are rituals as old as school itself. However, not every schoolyard taunt is an innocent expression of youth. Persistent, unwanted harassment can have serious and negative psychological and educational effects. Courts have held school districts liable for damages for harassment by one student toward another when district officials demonstrate “deliberate indifference” to “pervasive hostility.” Simply put, this means that a student can sue her or his school district, and/or individual administrators, for ignoring complaints of peer harassment and bullying.
Cyberbullying
On-line harassment, or cyberbullying, is more complicated because it raises the question as to whether a public school can discipline a student for acts — primarily speech — that occur away from school via the internet. Student speech, including on-line speech, is protected by the First Amendment. That protection is not absolute and school officials can place educationally based restrictions on student speech that is sponsored by the school; i.e., a school newspaper or a graduation speech. Therefore, cyber-bullying conducted at school allows school authorities to more easily impose discipline. The use of school equipment to cyber-bully also makes a stronger legal argument for action by the school. Similarly, if the student e-mails offensive speech to school or downloads it at school and then distributes it, a school nexus is created, and the school may discipline the student if the speech is lewd or obscene and/or if the speech has created, or is likely to, create a substantial disruption to the educational environment. Speech created at home, which is not emailed and/or otherwise distributed at school, affords greater legal protection for the cyberbullies. However, it is important to remember that credible threats of bodily injury are never protected, whether made through the internet or not, and students making such threats are subject to school discipline and criminal punishment.
Prompt Investigation
Administrators should immediately investigate all complaints of bullying, intimidation and harassment and address any inappropriate behavior that occurs on school grounds or at school sponsored activities. If a case does end up in court, a district’s best defense is written documentation of a swift and thorough investigation, followed by the appropriate remedial action. Moreover, preventive programming designed to increase awareness as to the effect of bullying (both the emotional impact on the victim and the potential disciplinary consequences for the perpetrators), may have the added benefit of limiting the district’s legal liability.
Preventing Cyberbullying
- Promulgate policies regarding bullying (including cyberbullying) and harassment, these policies should include clearly defined channels for reporting violations.
- Specify clear rules regarding the use of the internet and other electronic devices. Post signs in school computer labs, hallways and classrooms to remind students to use technology responsibly. Blocking/filtering software is helpful, but tech-savvy students can often find ways around these programs.
- Educate students and staff as to the harms and consequences of all forms of bullying. Students need to understand that they will be disciplined at school for off campus behavior that substantially disrupts the school environment.
- Create a positive school climate. Research has shown a connection between a “negative” school environment and increased incidents of cyberbullying. Establish a school climate of respect and integrity where violations result in formal or informal sanctions.
- Educate teachers and administrators as to the actions they can take to address various situations before they arise.
[Click here to schedule a legal seminar on cyberbullying at your school]
Please Note: this information is not intended as a substitute for individual legal advice.