Abstract
The widespread use of the Internet, cell phones, and laptops has introduced a new type of bully on the school block: cyberbullying. Cyberbullying is a particularly difficult type of bullying for schools to punish and prevent. This is because most incidents of cyberbullying occur off school grounds. Currently, there is no federal law that specifically addressed cyberbullying. It has been largely left up to the states to define the parameters of cyberbullying and to set forth the corresponding penalties and punishments for such infractions. While some states extend criminal liability for cyberbullying off school grounds, other states limit liability to cyberbullying that takes place at school. The level of attentiveness devoted to reducing cyberbullying varies among the states. Introduction
While bullying has been an issue in schools that has always plagued teachers and school administrators, the dawn of the digital age exacerbates the problem that bullying poses. Traditionally, if a student was bullied, it occurred on school grounds. A student might be harassed in gym class or on the playground. Since the bullying occurred on school grounds, there was no question whether teachers and other administrators had the authority to discipline the student bully. Particularly if the bullying turned into physical threats or actions, teachers had the undoubted authority to discipline such conduct.
But modern technology has given birth to a new type of bullying: cyberbullying. The explosion and popularity of the internet has paved the way for cyberbullying. Today, students can post photos, videos, and comments online and share them with many people in a matter of seconds. The ease and availability of cell phones contributes to the larger problem of cyberbullying. One would be hard-pressed these days to find a teenager school student who does not have a cell phone. And with the explosion of social media, teenage news and events spread faster on the internet than wildfire.
Cyberbullying is especially problematic for teachers and administrators in terms of discipline and punishment because most instances of cyberbullying occur off of school grounds. Very rarely will forms of cyberbullying actually occur at school. Instead, most cyberbullying happens when students are at home behind the screen of a computer. This leaves teachers in a precarious situation. Most schools have official policies that prohibit forms of harassment and bullying. Whether the school can take action against cyberbullying when the cyberbullying occurs off school grounds, however, is a novel issue that schools must now face.
Cyberbullying and the Law
In recent years, largely thanks to social media and the internet, bullying has received increasing national attention. The number of tragic cyberbullying-related incidents has been steadily on the rise. As Nancy Willard, executive director of the Center for Safe and Responsible Internet Use states, “With teens spending increasing amounts of time on the Internet, online harassment has become more prevalent” (King, 2010, p. 849). The proliferation of internet usage and technology has made cyberbullying a growing problem that many American teenagers have to face.
Cyberbullying can have devastating consequences for its victims. While some cyberbullying may be relatively innocent teasing and mocking, other forms are much more serious. In the most severe instances, cyberbullying can drive a victim to commit suicide (King, 2010, p. 851). This was the sad case for teenager Megan Meier and many other teenagers who were the unfortunate victims of cyberbullying. Even when cyberbullying does not escalate to such a level, it can leave lasting emotional and psychological scars for its victims. Kylie Kenney required years of professional counseling after middle school classmates posted a website called “Kill Kylie Incorporated” on the internet (King, 2010, p. 851). Regardless of the level of severity of cyberbullying, it is clear that legislation is needed to protect the victims of such incidents.
The law relating to bullying and cyberbullying is largely left to individual state law. There is no comprehensive federal law that specifically addressed bullying. But while federal law does not specifically address bullying, there are a number of federal laws prohibiting against certain types of discrimination and harassment, which often overlaps with bullying. For example, Title XI of the Civil Rights Act of 1964 prevents against discrimination based on sex (Title XI, 1972). The significant lack of federal legislation devoted to cyberbullying has prompted many states to enact their own anti-bullying legislation.
Since bullying legislation is largely a matter of state law, individual laws and policies addressing bullying will vary from state to state. While some states take a relatively lax view of bullying from a legislation standpoint, other states are aggressive about combating cyberbullying in schools. An example of a state that takes such an aggressive stance against cyberbullying is New Jersey. In 2010, New Jersey passed the Anti-bullying Bill of Rights Act (Anti-bullying Bill of Rights Act, 2010). It is often cited as one of the most difficult pieces of state legislation concerning bullying. The Act places an affirmative duty on school districts to adopt anti0bullying policies aimed at prohibiting harassment, intimidation, and bullying.
Cyberbullying poses unique problems for schools to discipline because of the very nature of cyberbullying. Cyberbullying is not carried out face-to-face, but rather through online platforms like social media and other digital mediums. Punishing cyberbullying raises some interesting questions about free speech rights. It is long established that school children enjoy constitutionally protected first amendment rights to free speech and expression in school. The Supreme Court has emphatically stated that “students [do not] shed their constitutional rights to freedom of speech or expression at the schoolhouse gate” (Tinker v. Des Moines Independent Community School District, 1969, p. 506). Thus, for legislatures and policymakers, they must strike the delicate balance between properly ensuring that severe incidents of cyberbullying are punished, yet preserving students’ rights to speak openly and freely on the internet.
The line between what constitutes free speech and what constitutes harassment is not always clear-cut and poses many challenges for school officials. At least one state statute that aimed to criminalize acts of cyberbullying was struck down in violation of the First Amendment. A New York case found that a statute which criminalized cyberbullying was overbroad and invalid because the statute infringed upon student’s protected right to free speech (People v. Marquan, 2014). While lawmakers and schools seek to crack down on incidents of cyberbullying and punish accordingly, these statutes must not run afoul of constitutional rights.
Schools, teachers, and other school administrators owe students a general duty of care. This duty envisions that a school must take measures to keep students reasonably safe from foreseeable harms and dangers. A student who is the victim of bullying by other students can sue the school in tort for damages or injuries if the school is aware of the bullying and does nothing to stop it. In order for a plaintiff to be successful in such suits, however, there must be a clear record that the school was aware of the bullying conduct and failed to take corrective measures. For example, in one Connecticut case, a high school student was repeatedly harassed and bullied by other students and complained to teachers about the bullying (Straiton v. New Milford Bd. of Educ., 2012). Because the defendant teacher was aware of the bullied student’s repeated complaints, the teacher had knowledge of the bullying situation and could therefore be held potentially liable for failure to prevent the bullying from further taking place (Straiton v. New Milford Bd. of Educ., 2012, p. 15).
Holding teachers accountable for failing to take measures to correct reported incidents of cyberbullying is quite different from that of regular bullying that takes place in the cafeteria or the classroom. The average teacher or school administrator will be unaware of what students are posting and viewing on the internet. In addition, the impersonal nature of the internet can make it difficult to identify who is responsible for an act of cyberbullying. Videos, comments, and websites can usually be posted completely anonymously. Thus, for schools and teachers to effectively protect students against cyberbullying, the law must catch up with modern times.
Cyberbullying is defined as “willful and repeated harm” that causes humiliation, embarrassment, or bullying through some electronic form of communication, including text messages, social networking websites, e-mails, instant messaging, and chat rooms (Farbish, 2011, p. 112). Currently, there are forty-seven states that have statutes specifically directed at anti-bullying (Farbish, 2011, p. 112). Only a few states impose criminal liability of perpetrators of cyberbullying. Massachusetts imposes a duty on schools to report incidents of cyberbullying and also requires schools to investigate all reported acts of cyberbullying and also implement a plan to prevent cyberbullying in the future. This duty extends to incidents of cyberbullying that occur off school grounds (Farbish, 2011, p. 114).
New Jersey also has specific legislation intended to address cyberbullying. In 2014, New Jersey passed a Cyber-Harassment statute which makes it a crime to engage in cyberbullying (N.J.S.A. 2C:33-4.1, 2014). What makes this statute relatively unique is that it imposes criminal sanctions for all types of cyberbullying, regardless of the location in which the cyberbullying occurs. Only a small minority of states have statutes that specifically permit for students to be punished when they engage in cyberbullying off school grounds (Farbish, 2011, p. 115).
In most instances of cyberbullying, the victim student will seek to sue the school board and other school officials on the theory that these parties were aware of the cyberbullying, yet did nothing to prevent it. Schools also undertake a duty to protect students from harm, creating a special legal relationship between the school and the victim student. While the student bully is the party actually responsible for inflicting such harm, there are practical obstacles to suing a fellow student for cyberbullying. Thus, in most cyberbullying instances, the victim will only seek redress against the school and its officials rather than the student who actually perpetrated the bullying.
A novel decision in New Jersey allows schools that are sued by bullied students to seek contribution from the actual bully and, potentially, the bully’s parents (V.B. v. Flemington-Raritan Regional Bd. of Educ., 2014). A suit was brought against the school board and school administration under the state’s anti-bullying laws for failure to remedy the victim student’s complaints of being bullied and harassed by other students. The school board then sought contribution from the students who actually carried out the bullying. The students filed a motion to dismiss, which the court denied. Thus, the court permitted the school board to hold students and their parents personally and financially liable for acts of bullying.
Conclusion
While there are laws in place that criminalize cyberbullying, it continues to be a huge problem for many teenage students and beyond. The fact that cyberbullying usually takes place in the privacy of one’s home presents a huge practical obstacle for schools and school officials to punish such conduct. Even with a proliferation of laws aimed at punishing cyberbullying, it is unlikely that cyberbullying will cease to exist anytime soon.
References
Anti-bullying Bill of Rights Act, P.L. 2010, c. 122 (2011).
Farbish, S. (2011). Sending the principal to the warden’s office: Holding school officials
criminally liable for failing to report cyberbullying. Cardozo Journal of Law &
Gender, 109-139.
King, A. V. (2010). Constitutionality of cyberbullying laws: Keeping the online
playground safe for both teens and free speech. Vanderbilt Law Review, 845-884.
N.J.S.A. 2C:33-4.1 (2014).
People v. Marquan, 24 N.Y.3d 1 (2014).
Straiton v. New Milford Bd. of Educ., Conn. Super. LEXIS (2012).
Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969).
V.B. v. Flemington-Raritan Regional Bd. of Educ., HNT-L-95-13 (2014).
