Cyber Bullying: Protecting Kids and Adults from Online Bullies by Samuel C. McQuade III;James P. Colt;Nancy Meyer

Author:Samuel C. McQuade III;James P. Colt;Nancy Meyer [Meyer, Samuel C. McQuade III;James P. Colt;Nancy]
Language: eng
Format: epub
Published: 2009-05-22T12:45:00+00:00

PUTTING IT TOGETHER: OUR SUMMARY OF CURRENT CASE LAW

As the result of seemingly contradictory decisions in Layshock and Wisniewski, students, parents, school officials, law enforcement officers, attorneys, and judges are currently in a state of limbo about cyber bullying threats. So what? This is to be expected as the result of technologically evolving abuse and crime in society that we discussed in Chapter 2! The good news is that through our justice system and court processes society is slowly coming to agreement about what should and should not be permitted by youth using the Internet, at least when it affects school learning environments, school-sponsored activities, use of computers in school, school publications, or schools as places of employment. That's not bad for a little over 10 years since widespread use of the World Wide Web. It is also not surprising that a body of case law is developing around school issues, because public schools are de facto agencies of government that must be especially cautious in matters affecting civil rights.

The collection of cases described above clearly show that courts have often favored oral, written, and posted speech rights of students over the authority of schools to impose discipline for off-campus and on-campus conduct. Like the timeless debate between freedom of speech versus societal safety and security, school districts must now tread lightly because, unlike the federal government, they cannot resort to claims that national security hangs in the balance if they do not crack down on insolent students (i.e., those who are disrespectful, uncivil, insulting, contemptuously impertinent, etc.). In effect, courts have ruled that it is not the job of schools to police uncivil aspects of digital youth culture. What youth post online is not the business of schools unless it disrupts school learning environments.

Case law also shows that whether or not schools can reasonably predict a substantial disruption remains open to interpretation. It can be very difficult to demonstrate a reasonable basis to anticipate a disruption at school. For incidents that are on school grounds, free speech cases that involve safety and security of are less concern: authority of schools to maintain order, safety, and security is not debatable. For cases then involving cyber bullying that was accessed or displayed at school or using school technology, schools can also take actions deemed reasonable and necessary to ensure order, safety, and security for students, staff, and other people who may lawfully occupy campus facilities. For off-campus incidents, an important burden for schools is to establish a clear nexus between a cyber bullying incident and substantial disruption of school environments, which as we have seen, is not always easy to do.

Cyber bullying often begins anonymously in cyberspace, but it can have a significant impact on people in the schools. Thus, the common sense, or reasonableness standard, should apply for dealing with off-campus incidents. Courts have created some confusion over when a school can impose discipline, but this often misses a larger point. Rather than focusing on whether the school can punish, the attention should be on the school's legal responsibility to protect students.

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