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Cyber-Bullying and the Law: What Should School Leaders Know?

cyber bullying and the lawStudent cyber-bullying is a top concern, but since it typically happens off school grounds, it can be tricky for administrators to know when and how to intervene. We asked Attorney Margaret Paget (at right), former Partner and Co-Chair of the Employment Group at law firm Sherin and Lodgen, to shed some light on relevant laws, which vary by state.

Since cyber-bullying often happens off school grounds, not on school computer equipment, and outside of school hours, what can K-12 schools really do in terms of getting involved? Can they, for example, discipline perpetrators?

The answer to this depends partly on the laws of the state in which the school is located, and also whether  the school is a recipient of federal financial assistance and therefore subject to Title IX of the Education Amendments Act of 1972 (typically public schools). More than half the United States have in place laws against cyber-bullying.  In May 2010, Massachusetts enacted legislation prohibiting bullying in Massachusetts schools. The law prohibits bullying, including cyber-bullying that occurs outside of school when it affects student life within school, and requires all schools to create anti-bullying plans, investigate and discipline bullying, and notify parents and local law enforcement when appropriate.

While some states, such as Massachusetts and Illinois, hold that their bullying prevention laws apply to both private and public schools, other states differ. For example, in Iwenofu v. St. Luke School, an Ohio Court held that private schools have “broad discretion in making rules and setting up procedures to enforce those rules.”

bullying legal issuesIf K-12 schools know that cyber-bullying is occurring, but it happens off school grounds, not on school computer equipment, and outside of school hours, is the school legally liable for failing to take measures to stop it, failing to notify parents, etc.?

Again, this depends on the laws of the particular state and whether the school is subject to Title IX. In Massachusetts, schools are required by law to address complaints of cyber-bullying, including those that occur outside of school, when the conduct affects a student’s school life. Although the Massachusetts anti-bullying law does not provide for damages or other relief, a school’s failure to address bullying in accordance with the law may be a basis for claims under other legal theories such as negligent supervision or negligent hiring, or under Title IX.

If a K-12 school intervenes in a case of off-campus cyber-bullying, couldn’t it be accused of violating the perpetrator’s privacy and/or free speech rights?

This is more a concern of public schools, which are subject to the First Amendment and so must not violate First Amendment rights such as freedom of expression. In Kara Kowalski v. Berkeley County Schools, et al., a student was suspended for creating a hate Web site that targeted another student. The suspended student sued the school district, alleging that it had infringed on her First Amendment free speech rights. The Fourth Circuit held that the speech created actual or reasonably foreseeable “substantial disorder and disruption” at the school and was therefore not the type of speech that merited First Amendment protection.

Speech or other forms of expression loses its protection under the First Amendment only when the conduct “substantially interferes with requirements of appropriate discipline in the operation of the school.” Conduct that is considered disruptive, foreseeably disruptive, or that poses a “true threat” does not fall within First Amendment protection. For example, in D.J.M. v. Hannibal Public School District #60, a student made alleged threats to shoot other students and sued the school for violating his First Amendment right for his subsequent suspension. The court held that the speech constituted a “true threat” statement and would have reasonably led school officials to substantially disrupt school activities in response.

Are there laws specifically prohibiting cyber-bullying, or would the behavior fall under other more general types of laws such as those prohibiting cyber-stalking, etc.? What kinds of charges could be filed against perpetrators of cyber-bullying? If the perpetrator is a juvenile, what happens?

As set forth above, cyber-bullying is expressly prohibited in more than half the United States. For states that have enacted such laws, perpetration of the act is generally considered a crime. And in certain circumstances, cyber-bullying may violate Title IX. Almost all states have cyber-stalking or cyber-harassment laws that prohibit threatening or harmful use of Internet, email and other electronic forms of communication. Depending on the age of the perpetrator, a student may be charged as an adult or prosecuted in juvenile court. In the tragic Massachusetts case surrounding the cyber-bullying and eventual suicide of high school student Phoebe Prince, six classmates were indicted as adults on felony charges that included stalking and criminal harassment.

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