Cyberbullying and the policy vacuum

Tuesday, March 31, 2009

This article is part of an online symposium on the First Amendment Center Online titled Cyberbullying & Public Schools.

The proliferation of communications technologies has increased cellular phone and computer use by children internationally. As global networks connect youth and children day and night, social interactions and activities on Web sites such as Facebook, MySpace, YouTube, Webkinz and Club Penguin have become extremely popular. Although they bring many benefits, electronic media have also given rise to a new form of social cruelty known as “cyberbullying” among adolescents, children and adults. In this brief article, I address the challenges that confront school policymakers in assessing the extent of their supervisory roles when negative communications take place in the cyber-realm between or about people who learn and work together in physical school settings. I also review relevant law in Canada and the United States as it informs the debate relating to management of student speech on and off campus.

Cyberbullying: What is it?
Cyberbullying involves various forms of direct and covert negative social expression conveyed through electronic media, such as the Internet, cellular phones with texting and photographic abilities, and other digital technologies. Two forms of cyberbullying have emerged: (1) peer against peer, where schoolmates are singled out for ridicule and harassment through e-mail, text messages, blogs, chat rooms and other forms of digital communication, and (2) anti-authority, where educators and other authority figures are the targets of online sexual jokes, films, modified photographs, insults and dangerous rumors (e.g., falsely labelled as pedophiles).

Power imbalance: Traditional forms of bullying always involve a power imbalance through which perpetrators psychologically or physically dominate others. The power differential is significantly enhanced in cyberspace because it allows psychological dominance and participation by an infinite audience. Online forms of expression can be saved permanently on personal computers and linked to Internet search lists. They can be forwarded to known and unknown recipients. Perpetrators gain a false sense of security behind screen names that provide temporary anonymity, nonetheless frightening targeted individuals. Cyberbullying is generally rooted in racism, sexism, homophobia or other forms of hate. Moreover, actual or perceived unfair comments can damage the professional or personal reputations of educators. They may also result in legal claims for cyberlibel or criminal harassment.

A legal & policy vacuum
Cyberbullying is difficult to monitor because it occurs on personal computers and cell phones outside of school hours and off school campuses, raising constitutional dilemmas about supervision, free expression, privacy and safety in cyberspace. Although addressing cyberbullying currently tops many public policy and research agendas, the law has not kept pace with rapidly evolving technologies. There is a lack of knowledge about the role of stakeholders like technology corporations, news media and teachers unions as policy “shapers” and their legal responsibilities to proactively address cyberbullying. Research at international levels reveals a behavioral focus without adequate attention to legal, policy and systemic barriers created within schools. Sensationalist media reports about cyberbullying increase fear that the Internet gives youth too much power, resulting in reactive school policies grounded in zero tolerance that suspend rather than educate children and fuel calls for legislation to control cyberbullying. For example, the Canadian Teachers’ Federation recently lobbied the Ministry of Justice to amend the Criminal Code of Canada to include criminal sanctions for cyber-misconduct and cyberbullying in Section 264 (harassment); Section 298 (defamatory libel); Section 372(1-3) (false messages); and Sections 320.1 & 164.1 (hate propaganda).

Canadian limits on free expression: Most students who are suspended under school zero-tolerance policies reject school definitions of anti-authority online expression as cyberbullying. They claim infringement of their rights to free expression under Section 2(b) of the Canadian Charter of Rights and Freedoms. They also assert their privacy rights to have personal conversations with friends online. No known cases of cyberbullying have been heard by Canadian courts; however, the Supreme Court of Canada has provided direction in adult cases of cyberlibel. In Hill v. Church of Scientology of Toronto (1995), the court held that a good reputation is closely related to the innate worthiness and dignity of the individual. Therefore, reputation must be protected in the same way as freedom of expression under Section 2(b). The court noted that a reputation tarnished by libel can seldom regain its formal luster. Accordingly, society has an interest in ensuring its members enjoy and protect their good reputation so long as it is merited. Along similar lines, in the case of Newman et al v. Halstead (2006), an adult was held liable for $676,000 for posting derogatory comments about teachers online.

American limits on free expression: American courts have developed a stronger body of jurisprudence on cyberbullying in the school context. As Professor Jacqueline A. Stefkovich and her co-authors explain in a forthcoming work, cases brought before the courts are not restricted to peer-against-peer conflicts. Perpetrators have been sued for anti-authority attacks that affect the entire school climate and students’ feelings of safety. Significantly, a larger number of court challenges have been launched against schools in response to student suspensions, fueling the debate about the limits of school intervention in off-campus student expression that occurs in cyberspace. The burden in these cases rests with school officials to justify that their decisions to discipline students do not infringe or unreasonably override rights to free expression.

On- & off-campus debate
The on- and off-campus debate has dominated litigation on cyberbullying. Although the boundaries of responsibility remain blurred in some cases, American courts have begun to establish guidelines. Relying on the exceptions to the right to free expression outlined in the U.S. Supreme Court’s landmark decision in Tinker v. Des Moines Independent Community School Dist. (1969), U.S. courts have ruled that schools can intervene in off-campus expression only if it materially or substantively disrupts learning in the physical school setting. Moreover, in keeping with the precedent set in Hazelwood v. Kuhlmeier (1988), if the cyberbullying occurs on school computers or Web sites, students can be held responsible for on-campus infractions of school policies and subject to discipline. Consider the following cases in which free speech trumped school authority and where the students mostly used home computers during non-school hours.

Free expression protected:

  • In A.B. v. State of Indiana (Ind. App. 2007), a student posted a lewd comment protesting her school principal’s decision to ban body piercings. The appeals court ruled that student opinions are constitutionally protected no matter how lewd the language used. The state Supreme Court, however, later vacated the appeals court decision and issued its own ruling (Ind. 2008). While the high court also sided with A.B., the justices disagreed with the appeals court’s reasoning, finding instead that the state had failed to prove A.B.’s posting constituted harassment under state law.
  • In Beussink v. Woodland (E.D. Mo. 1998), a student developed a vulgar Web page at home to criticize his school and officials. He failed his courses because of a school suspension, sued the school, arguing officials violated his First Amendment rights, and won. The court found that the school was unable to establish that the student’s Web site caused a substantial disruption to learning.
  • In Coy v. Bd. of Education of North Canton City Schools, 205 F.Supp.2d 791 (N.D. Ohio 2002), the plaintiff student prevailed though initially he had been suspended for a Web site containing obscene pictures and comments. The court did not find such content substantially disruptive to school activities.
  • In Flaherty v. Keystone, 247 F.Supp. 2d 698 (W.D. Pa. 2003), school authorities claimed authority to discipline a student for violating their Internet policy but lost because they lacked sufficient evidence of disruption.
  • In Layshock v. Hermitage, 496 F.Supp. 2d 587 (W.D. Pa. 2007), a student had created a MySpace profile of his principal that the board argued undermined the principal’s authority. The court found insufficient evidence that it caused significant disruption to school operations.
  • In Emmett v. Kent School District No. 415, 92 F.Supp. 2d 1088 (W.D. Wash. 2000), a student was suspended for creating a Web site that contained mock obituaries of students. The school argued that the site constituted a threat, but the court found that the school failed to justify the punishment or to establish real threat.

School authority allowed: By contrast, a few boards have successfully defended their right to discipline students for cyberbullying by establishing either a nexus between speech and material disruption or between speech and school property. In J.S. v. Bethlehem Area School District, 807 A.2d 847 (Pa. 2002), for example, a student created a Web site titled “Teacher Sux,” which included vulgar and violent images and comments about a teacher and principal. The court found that the student’s expressions did not comprise true threats but held that the school had not violated his First Amendment rights because the site caused fear in the school environment. A similar stance was adopted in Wisniewski v. Board of Education (2nd Cir. 2007) when a student was suspended after using an instant-messaging icon that depicted a gun firing bullet at a person’s head accompanied by the caption “Kill Mr. VanderMolen,” who was one of the student’s teachers. His parents claimed infringement of his First Amendment rights; however, the 2nd U.S. Circuit Court of Appeals described his expression as a true threat to the school environment and not subject to protection under the First Amendment. (See also Morse v. Frederick, 06-278 (2007), and Ponce v. Socorro Independent School District (5th Cir. 2007).)

Human rights jurisprudence and school environment
Responsibility to ensure safe school environments was also made clear in the sexual harassment case Davis v. Monroe County Board of Education (1999), in which the U.S. Supreme Court ruled schools can be held liable under Title IX if they support deliberately dangerous environments. As with Title IX claims for sexual harassment in United States, Canada has developed a large body of jurisprudence in the area of sexual harassment within institutional settings. Sexual harassment is a prevalent aspect of cyberbullying. Cases such as Robichaud v. Canada (1987) and North Vancouver School District No. 44 v. Jubran (2005) are instructive because they affirm: (1) an institutional responsibility to protect those victimized by co-workers or co-students outside the institution, if they must face their perpetrators within the institution; and (2) an onus on public institutions to provide an environment free of discrimination, conducive to learning that is not poisoned. (See Ross v. New Brunswick (1996).)

Canadian human rights law and American Title IX jurisprudence have clarified an obligation imposed on schools as public institutions to ensure their learning environments are inclusive, non-discriminatory, and not poisoned or deliberately dangerous. To meet these obligations, school administrators need to be cognizant of the extent to which they can intervene to control student speech, whether it is on or off campus in cyberspace. As this brief review of Canadian and American case law suggests, the legal standards to be met generally require a nexus between student speech and its effects on the entire school environment. As Professor Patrick Pauken explains in a forthcoming work, a recent U.S. Supreme Court decision involving a school-related activity and off-campus speech advocating drug use (Morse v. Frederick) could replace Tinker as the modern standard to inform policy on cyberbullying. Pauken argues that although Morse did not directly relate to online expression, it did address location, content and the effect of off-campus speech. As newer law, that precedent is more readily applicable to the transformational challenges of technology than Tinker, Bethel School Dist. No. 403 v. Fraser (1986) and Hazelwood. Although it adhered to the Tinker standard of material and substantial disruption, the ruling also emphasized reasonable interpretation of student speech. Indeed, that aspect of the ruling is supported by recent decisions such as Ponce v. Socorro Independent School District and Wisniewski. In Ponce the 5th Circuit observed that school administrators must be permitted to react quickly and decisively to the threat of physical or emotional violence against students, and stressed that schools should not have to second guess their own judgment or worry about litigation, because indecision leaves school environments unprotected from “special danger.”

I caution schools not to interpret all of this as free license to continue applying zero-tolerance policies rooted in military models that punish and suspend students. Such approaches are antithetical to their duty of care and purpose as educators, and can perpetuate hostile, dangerous and poisoned environments. Schools would be better advised to interpret these legal guidelines as supporting proactive, ethical and informed policies and pedagogical practices that model respect, promote dialogue about empathy, and develop leadership, social and civil responsibility. Engaging this way with students shows greater promise of reducing cyberbullying and promoting productive and healthy school environments, both physical and virtual.

Shaheen Shariff is an associate professor in the Faculty of Education at McGill University in Montreal. Her latest book is Confronting Cyber-Bullying: What Schools Need to Know to Control Misconduct and Avoid Legal Consequences (Cambridge University Press, 2009).