Legal Responsibilities of a
Professional Development, 2014
Joan Rosenthal, Instructor
• You are a teacher, and one of your students, Jessica,
approaches you hysterically crying because some of her peers
are posting hateful messages about her on Twitter. You try to
comfort Jessica, and assure her that you will help end the
• What actions could you take or should you take to solve this
problem? What does the law say about what you can and
cannot do? What disciplinary actions can be taken against the
Please take 2 minutes to write down your ideas, and then 3
minutes to discuss your ideas with a partner.
What is Cyberbullying?
• According to StopBullying.gov, cyberbullying is “bullying that takes place using electronic
technology,” which “includes devices and equipment such as cell phones, computers,
and tablets as well as communication tools including social media sites, text messages,
chat, and websites.”
• Some examples of cyberbullying include threatening/harassing text messages, instant
messages, or emails; altered pictures online; offensive blogs or hate groups; forwarded
emails/pictures/messages without permission; rumors spread through social media sites
• Cyberbullying differs from in-person bullying because it can occur 24 hours a day, 7 days
a week, it can occur anonymously (making it sometimes difficult to trace the source),
hurtful messages can be sent quickly to a wider audience, and it is sometimes tough to
completely remove offensive materials once they are posted on a web source.
Facts and Statistics
• 24% of students ages 12 to 18 years old reported that they had experienced
cyberbullying during their lifetimes (Patchin & Hinduja, 2013)
• In regards to incidents that occurred on a social network site, 25% of these
incidents resulted in a face-to-face argument or confrontation and 8% have
resulted in physical fights (Anti-Defamation League, 2014)
• Victims of cyberbullying are nearly twice as likely to attempt suicide
compared to youth who have not experienced cyberbullying (Patching &
• 42% of LGBT youth reported being harassed or bullied online, three times
more than non-LGBT youth (Ramanathan, 2013).
Megan Meier, 13 year old who
committed suicide as a result
of MySpace bullying Rebecca Sedwick, 12 year old who
committed suicide after a year and a half
of constant cyberbullying
Ryan Halligan, 13 year old who committed
suicide after being bullied through instant
Rachel Neblett, 17 year old who
committed suicide after being
bullied on MySpace
year old gay
after being the
subject of an anti-
gay Facebook hate
Grace K. McComas, 15 year
old who committed suicide
after being bullied on Twitter
The Legal Questions: A Brief Look at the Precedents of
Student Rights vs. School Safety and Values (Hostetler, 2014)
• Tinker v. Des Moines, 1969: political expression (black
armbands protesting Vietnam War) did not “materially or
substantially disrupt” school operations, “nor did it create a
reasonably foreseeable threat of doing so.”
• Bethel School District v. Fraser, 1986: suspension of student
who gave a lewd speech at school campaign was justified
because “school had a legitimate role in promoting
fundamental civic values and socially acceptable behavior.”
• Morse v. Frederick, 2007: suspension of student who
promoted drug use (a banner) at a school event was upheld
because “schools have an important role in protecting students
from drug-related influences.”
But, what about speech that occurs off-campus on social media
sites or via text messaging?
What About State Anti-Cyberbullying Laws?
• After two bullying victims murdered students and teachers in the 1999 Columbine
High School massacre, many states began to adopt anti-bullying statutes.
• As of July 2013, 49 states had bullying laws, but only 18 of these states had
cyberbullying laws. (See list here:
• State laws and statutes still struggle to address bullying incidents that occur off-
campus, as is the case with cyber-bullying.
• Cyberbullying has “fallen into a virtual ‘no-man’s-land’ of legal liability” (Erb, 2008)
• Because courts have continually granted cyberbullying speech First Amendment
protection and because most cases do not involve criminal charges, there is much
debate about whether schools should have more autonomy to punish such speech.
A Prime Example of the Failure of
Non-Federal Anti-Cyberbullying Statutes
• People v. Marquan M. (2014): A 15-year-old high school student was
criminally charged under an Albany County Law (NY) after he posted
photos of classmates with captions that were sexually graphic on a
• The Anti-Bullying law was found unconstitutional because it was
found to be too broad: it essentially “prohibited a vast swath of
speech ‘far beyond the cyberbullying of children,’ in violation of the
First Amendment” (Palazzolo, 2014).
• The Senior Staff Attorney stated that, "Cyberbullying is a serious
concern that all communities must confront, but there are better and
more constructive ways to address the problem than giving children
If Marquan M.’s speech is not criminally punishable, can the
school still discipline him (i.e. suspension) for his off-campus
What the Courts Have Ruled: Case #1
Emmett v. Kent School District (2000)
• Inspired by a creative writing class, high school
senior Nick Emmett created a web page on his
home computer in which he posted mock
obituaries of at least two of his friends. Emmett
also visitors to the site to vote on who would
“die” next (who would be the subject of his next
mock obituary). Emmett was expelled for
“intimidation, harassment, [and] disruption to
the educational process.”
• The Court ruled that the school was NOT able to
prove that anyone listed on the site was actually
threatened or that this cyber speech resulted in a
significant disruption at school.
• An 8th grade student, J.S. created a web site called
“Teacher Sux,” mostly targeting the student’s math
teacher and school principal. The web site included
“derogatory, profane, offensive and threatening
comments.” One image showed the math teacher with
her head cut off and blood dripping from her neck.
Students discussed the web site at school, and the
teacher was so distressed from the web site that she
was unable to finish the school year (she took a
medical leave of absence).
• The Court ruled that although the off-campus cyber
speech did not “reflect a serious threat,” it did disrupt
the school environment and the school thus had a right
to expel the student.
What the Courts Have Ruled: Case #2
J.S. v. Bethlehem Area School District (2002)
What the Courts Have Ruled: Case #3
J.C. ex rel R.C. v. Beverly Hills Unified School District (2010)
• J.C. and some of her peers gathered at a local
restaurant and made a video about a classmate, C.C.
(using J.C.’s personal recording device). In the video,
one of J.C.’s friends refers to C.C. as a “slut,” and other
profanities and hateful language were used throughout
the recording. Later that evening, J.C. posted the video
on YouTube. J.C. had a past history of secretly
videotaping teachers at school. The principal
suspended J.C. for 2 days (the other students involved
were not disciplined at all).
• The Court ruled that the video did NOT create a
disruption at school, and thus that J.C.’s free speech
Kara Kowalski. v. Berkeley Country Schools (2011)
• High school senior Kara Kowalski created a MySpace
page called “S.A.S.H.,” or “Students Against Sluts
Herpes.” A classmate, however, claimed that the
acronym stood for “Students Against Shay’s Herpes,”
and that it referred to a student who was the target of
the page (other derogatory pictures and comments
about this student were included). Kowalski invited 100
students to join the page. The school suspended her
for 5 days.
• Was Kowalski’s right to free speech violated, or did the
Court rule in favor of the school?
• The Court ruled that it was “reasonably
foreseeable” that the speech would reach the
school and thus negatively disrupt the school
environment. Kowalski’s suspension was
• When determining the role that a school has in intervening with a
cyberbullying incident, there are a few questions to consider:
Does the incident cause a “material or substantial disruption” on
Is it “reasonably foreseeable” that the off-campus speech could
reach the school?
Did the cyber speech involve the use of school technology?
Were students directly threatened with violence?
Can the cyberbullying speech be considered a hate crime (i.e.
targeting an individual for his/her race, religion, etc.)?
Does the cyberbullying incident involve sexual harassment or sexual
**However, even though answering “yes” to any of these questions
may allow a school to discipline a student for cyberbullying, the courts
can be “unpredictable,” and there may be caveats or loopholes.
How Can Teachers and Support Staff
• School districts need to design specific anti-bullying
policies which include:
– Specific language to determine what is considered a
“substantial disruption of the school environment” so that
the school can discipline the student.
– Specific procedures for reporting/investigating cases of
• Teachers and support staff should look to peer-
mediate when students report incidents of
cyberbullying; parent communication is essential.
• Anti-cyberbullying lessons and student workshops
• Until the courts realize that “cyberbullying is about
disruptive conduct and not free speech,” it is your duty as
an educator or support staff member to ensure a safe
school environment for every child, which cyberbullying
incidents frequently compromise.
• We must promote the message that bullying and
cyberbullying of any sort will not be tolerated at our school,
and though we may be limited with our abilities to
discipline the perpetrators of cyberbullying, we can
intervene in other ways to protect the victims.
References and Additional Resources
4 guidelines from case law can help shape your response to cyberbullying. (2014, January 1). Educational
Research Newsletter and Webinars. Retrieved July 10, 2014, from
Cyberbullying and the First Amendment: When Can We Discipline for Off-campus Speech?. (2012, April 1). . Retrieved July 12,
2014, from http://www.schools.utah.gov/uppac/Newsletter/April-Newsletter-2012.aspx
Erb, Todd D. (2008). A Case for Strengthening School District Jurisdiction to Punish Off-Campus Incidents of
Cyberbullying. Arizona State Law Journal 257.40. Retrieved July 11, 2014, from
Hinduja, S., & Patchin, J. W. (2013, January 1). Cyberbullying: Legal and Policy Issues. . Retrieved July 11, 2014, from
Hostetler, D. R. Off-Campus Cyberbullying: First Amendment Problems, Parameters, and Proposal. Brigham Young University
Education and Law Journal, 2014. Retrieved July 10, 2014, from
Palazzolo, J. (2014, July 1). New York Court Strikes Down Cyberbullying Law. The Wall Street Journal. Retrieved July 10, 2014,
Ramanathan, K. (2013, July 11). Study: LGBT Youth Face High Levels Of Cyberbullying. ThinkProgress RSS. Retrieved July 10, 2014,
Runk, S. (2013, July 30). The Dignity Act: First Amendment- Free Speech. . Retrieved July 11, 2014, from
Statistics on Bullying. (2014, July 10). . Retrieved July 14, 2014, from
Stone, C. (2013, May 1). Cyber Bullying: Disruptive Conduct or Free Speech? American School Counselor Association (ASCA).
Retrieved July 11, 2014, from
What is Cyberbullying. (2014, January 1). Retrieved July 12, 2014, from