Cyberbullying LegislationCyberbullying Research Center
As of January of 2015, forty-nine states (all but Montana) have enacted bullying prevention laws (for a regularly updated list of state legislation, please see: www.laws.cyberbullying.org).
All of these require schools to have policies to deal with bullying, and almost all of them refer to electronic forms of harassment (or cyber-bullying specifically), but there exists great variation across states regarding what exactly is mandated. A few states formally criminalize cyberbullying; that is, they specify criminal sanctions such as fines and even jail time for the conduct. In addition, many cyberbullying behaviors already fall under existing criminal (e.g., harassment, stalking, felonious assault, certain acts of hate or bias) or civil (e.g., libel, defamation of character, intentional infliction of emotional distress) legislation, though these laws are infrequently implicated.
Also, most forms of cyberbullying do not demand formal (legal) intervention (e.g., minor teasing). Like traditional bullying, cyber-bullying behaviors vary significantly along a continuum ranging from isolated, trivial, and innocuous incidents to serious and enduring torment. The problem is that few can agree on the precise point at which a particular behavior crosses the threshold and becomes something that should be addressed in a courtroom.
Most states have balked at passing new laws to further criminalize cyberbullying and instead opted to direct schools to deal with the problem. When it comes to the authority and responsibility of schools to regulate student speech, reference is usually made to one of the most influential U.S. Supreme Court cases: Tinker v. Des Moines Independent Community School District (1969). In Tinker, the Court ruled that the suspensions of three public school students for wearing black armbands to protest the Vietnam War violated the Free Speech clause of the First Amendment.
There are two key features of this case that warrant consideration. First, the behavior considered in Tinker occurred on campus. Second, the behavior was passive and nonthreatening. In short, the court ruled that: “A prohibition against expression of opinion, without any evidence that the rule is necessary to avoid substantial interference with school discipline or the rights of others, is not permissible under the First and Fourteenth Amendments” [emphasis added]. Thus, the Court clarified that school personnel have the burden of demonstrating that the speech or behavior resulted in (or has a reasonable likelihood of resulting in) a substantial interference.
This has become the default standard that schools apply when evaluating their ability to discipline students for their misbehavior. And that is mostly true when it comes to off-campus behaviors as well.
In Kowalski v. Berkeley County Schools (2011), a student created an online profile disparaging a peer – which seemingly precipitated another instance when a substantial disruption took place. Kara Kowalski was the high school senior who created a “S.A.S.H.” MySpace group page which she claimed was an acronym for “Students Against Sluts Herpes.” However, other classmates later admitted that it was an acronym for “Students Against Shay’s Herpes,” referring to another Berkeley County Schools’ student, Shay N. (the main subject of discussion on the webpage). As a result, Kara was suspended for 10 days (which was later reduced to 5 days) for violating the school’s harassment, bullying, and intimidation policy.
Kara then sued the school for violating her free speech rights and due process. Upon deliberation, the lower court upheld the suspension and the case was appealed to the Fourth U.S. Circuit Court of Appeals which affirmed the lower court opinion, stating: “Kowalski used the Internet to orchestrate a targeted attack on a classmate, and did so
in a manner that was sufficiently connected to the school environment as to implicate the School District’s recognized authority to discipline speech which ‘materially and
substantially interfere[es] with the requirements of appropriate discipline in the operation of the school and collid[es] with the rights of others.’”
In short, courts have generally supported the reasonable discipline of students whose online behaviors away from school have substantially disrupted the learning environment at school. That said, there have also been a number of examples where schools overstepped their authority or applied unwarranted and unproductive discipline.