One of your counselees, Rachel, comes to you distraught that she was being called a “slut with herpes” by her classmate Sarah online. Sarah asked others to join her online in humiliating Rachel. You assure Rachel that something will be done to help her. You take her case to the principal, who expresses concern for Rachel and disciplines Sarah with in-school-suspension. Rachel and her parents are tremendously relieved and thank you and the principal.
You take this case to the principal, who expresses concern for Rachel but is quick to tell you her hands are tied as far as being able to discipline Sarah. The principal explains that Sarah has a right to off-campus free speech unless her cyber-speech causes a substantial disruption to the educational environment or such a disruption can be predicted. The principal says all she can do at this point is bring Sarah and her parents in and request they cooperate and remove the offending material. You are distressed to think there is no recourse for this student other than hoping the bully will behave.
Legally, which of the above actions is the correct response?
Currently, the courts don’t agree on this issue, and administrators do not have a clear-cut standard they can use to regulate and punish online speech. Principals take a risk regardless of which way they chooses to go. Hhowever, in January 2012, relief was on the way when three student cyber-speech cases made it to the U.S. Supreme Court: Kowalski vs. Berkeley County School District in West Virginia, J.S. vs. Blue Mountain School District and Layshock vs. Hermitage School District.
In the Kowalski case, Kara Kowalski was disciplined for beginning a MySpace page that successfully invited others to make offensive comments and bully a student who was called a “slut” with “herpes.” When Kowalski sued the school district, the Fourth Circuit court supported the school district’s discipline of Kowalski, citing Tinker vs. Des Moines Independent Community School District (393 U.S. 503, 1969), a U.S. Supreme Court case on a student’s First-Amendment Rights.
As established by Tinker, the school district successfully argued that school officials have a compelling interest in regulating speech that interferes with or disrupts the work and discipline of the school. The court in the Kowalski case determined that it was reasonably foreseeable that the speech would reach the school, so it was “satisfied that the nexus of Kowalski’s speech was sufficiently strong to justify the action taken by school officials in carrying out their role as the trustees of the student body’s well-being.”
However, in direct contrast to the Kowalski case was the ruling in J.C. vs. Beverly Hills. In this case a 13-year-old girl was being cyberbullied. The district tried to intervene and discipline the bully, but the courts sided with the bully and found the district violated the student’s First-Amendment rights. The school district failed to meet the burden of establishing that the cyber-speech created a substantial disruption to the school environment and thus, violated the student’s First-Amendment rights. As a result of the cyberbullying, administrators had to dedicate time to address the victim’s concerns and the concerns of her parents, five students missed portions of classes, and the victim remained fearful of the gossip spreading. However, the courts did not consider this to be a substantial disruption.
In J.S. vs. Blue Mountain School District, a Pennsylvania middle school student created on her home computer a spoof MySpace profile page for her principal calling him a hairy slut who hit on students, as well as and other vulgar personal attacks. According to the Third Circuit Court of Appeals, the school district failed to demonstrate it could reasonably forecast that the student’s words would cause substantial disruption in school, and, therefore, the student’s suspension was a violation of her First Amendment right to free speech.
The companion case, Layshock vs. Hermitage School District, also involved a Pennsylvania high school student who created a profile of his principal on MySpace that was disrespectful and lewd. The Third Circuit Court found that the school district should not have punished the student “for expressive conduct which occurred outside of the school context.”
Eight education associations, including ASCA, filed an amici curiae brief with the Supreme Court explaining how school officials needed court-established standards to be able to regulate off-campus speech that in the reasonable, professional judgment of school officials interferes with maintaining a safe and effective learning environment for all students. The organizations sought, through court resolution, clarity and guidance for online conduct. In January 2012, the much-anticipated relief that was to come from the Supreme Court in the three student cyber-speech cases did not happen. The Supreme Court announced it was unwilling to accept the cases and allowed the lower courts’ decisions to stand, dealing a decisive blow to educators across the country who are struggling to help victims of cyberbullying.
The substantial disruption test will continue to burden school officials who have the responsibility of evaluating the level of disruption occurring or that might occur on campus as a result of off-campus online speech. School district officials are obligated under federal law to seek to remedy bullying and harassment that is severe, pervasive and objectively offensive. These statutes do not distinguish between whether bullying happened on or off campus.
School counselors do not have to decide if cyber-speech has met the criteria of substantial disruption, however. School counselors are the educators who are picking up the pieces. School counselors often receive the first outcry from students being harmed by cyber-speech and have to comfort and address students’ emotional trauma. Where do we go from here? With 800 million Facebook users, more than the population of the North American continent, we have to hope the courts begin to understand that cyberbullying is about disruptive conduct and not free speech.
Carolyn Stone, Ed.D., is a professor, University of North Florida and ASCA’s ethics chair. She can be reached at email@example.com. Contact the author for references to this article.