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Cyber Bullying & California Schools: If Cyber Bullying Occurs Off-Campus, School Authorities May Impose Discipline Only If They Prove The Conduct Caused a “Substantial Disruption” at School
One of the most difficult issues for a school principal is to determine student discipline.
In the Internet age, that task becomes even more problematic because today there is substantial student speech – and a substantial possibility of “hurtful speech” – that occurs outside of the classroom and away from campus. For that reason, school principals are starting to confront the issue of “cyberbullying”: cases where a student (or group of students) posts defamatory or negative comments about other students on an Internet web site.
Take the recent case of J.C. v. Beverly Hills Unified School District. It is a dispute that has produced one of the most thorough judicial examinations of this topic and even after a 59-page opinion, many questions remain unanswered.
The facts of the J.C. case
The facts of the case are fairly simple. After school one day, a group of students gathered at a local restaurant. While there, one student (plaintiff J.C.) made a video with a personal recording device. The video was four and a half minutes long, consisting of students talking about another student (C.C.). Several derogatory comments were made, including statements that C.C. was a “slut,” “spoiled,” and talked about “boners.” There was profanity on the video.
That evening, the plaintiff posted the video on YouTube from her home computer. She contacted other students and told them to look at it. She even contacted C.C. and informed her of the video.
C.C. told the plaintiff she thought the video was mean. The video received 90 “hits” that first evening. The next day, students were talking about the video on campus. C.C., who was the object of the derogatory comments, was understandably upset. She came to school with her mother so they could make the school aware of what had happened. C.C. told a counselor she did not want to attend class. She was crying. After discussing the matter with a counselor, C.C. returned to class.
The principal, an assistant principal and a counselor investigated the matter. The principal decided to suspend plaintiff for two days. No action was taken against any other students who participated in the video.
The suspended student, by and through her parents, brought suit in federal court against the school principal, the assistant principal, the counselor and the Beverly Hills Unified School District.
In an important ruling that has broad implications for school officials across the nation, the court held that plaintiff’s video was protected speech and that the suspension violated her First Amendment rights. But, it should also be noted, the court also held that the school officials (but not the school district) had qualified immunity because the law was not clearly established regarding the nature of plaintiff's rights. (How this ruling will affect future cases, when these rights are presumably now “better defined” is unknown.)
The First Amendment
On the merits of the First Amendment claim the court restated the oft-quoted words from the Tinker-case, which involved a silent “black arm band” protest during the Vietnam War: “It can hardly be argued that either student or teacher shed their constitutional rights to freedom of speech or expression at the schoolhouse door.”
That is not the say that students cannot be disciplined for off-campus conduct on the Internet. They can indeed. But the test is vague and depends on a detailed factual inquiry in each case. Applying the Tinker standard, the court observed that students are free to express their opinions, even on controversial subjects, “so long as doing so does not materially and substantially interfere with the requirements of appropriate discipline in the operation of the school or collide with the rights of others.”
There are exceptions to the Tinker requirement of a substantial disruption.
First, there are cases where a student’s on-campus speech is patently offensive, lewd or vulgar; that kind of speech can be disciplined without proving that the school program has been disrupted.
Second are cases dealing with student publications. The U.S. Supreme Court has ruled that school authorities can censor articles in a student paper “as long a doing so is reasonably related to legitimate pedagogical concerns.” When dealing with school sponsored publications (such as a student newspaper) there is a distinction with the Tinker rationale because “the issue of whether a school must tolerate particular student speech is different from whether the school must affirmatively promote particular speech.” Educators are entitled to exercise greater control over communications that might reasonably be perceived to bear the imprimatur of the school.
And finally, a school may restrict student speech at a school event “when that speech is reasonably viewed as promoting illegal drug use.”
In the J.C. case, none of these exceptions applied to the student video and, therefore, the court had to consider whether it caused a “substantial disruption” to the school’s academic program. The court noted that the fact that the speech occurred “off campus” did not automatically exempt it from the disciplinary jurisdiction of the school. So long as there was a material impact on school grounds, some action could be taken. But in this case, the school district could not prove up its claim that there had been a substantial disruption on campus. Hurt feelings, said the court, did not amount to a “substantial disruption.”
The court’s opinion is long and detailed and is must reading for any parent, teacher or school administrator dealing with this thorny issue. The mere fact that it took extended briefing and a 59-page opinion to explain the result is proof positive that this is no easy issue. Moreover, it is crucial to note that not all commentators agree with the result in the J.C. case; some have argued that in "student-on-student" harassment cases, school officials should have broad authority to discipline students who, by their hurtful conduct, intimidate other students and, thereby, deny those other students the right to a full and free educational experience. Look for more cases to percolate as courts around the country wrestle with cyberbullying and its impact on school campuses.
A complete copy of the court’s ruling is attached for your convenience.
At Slote & Links, we regularly advise students, parents, and teachers, school administrators – in both the private and public school context – about important issues affecting the education environment. If you have a problem in this area, please feel free to contact our office.