Wendy J. Murphy, in "Federal Law Requires Schools to Protect Children from Cyberbullying" ,
(in Cyberbullying, Louise I Gerdes, ed., p. 67-70) argues that Title IX can be used in cases where the cyberbullying is of a sexual nature: "...the more compelling purpose of Title IX is the prevention of gender discrimination, including sexual harrassment, sexual violence and bullying "based on" gender."
"Title IX applies so long as there is a "nexus" between the harassment and the school environment. Thus, even if the harmful conduct occurs in a cyber-venue such as Facebook, school officials must step in. The test is not where did the speech originate, but rather, where did the harmful effects land? If one students' off campus harassment interferes with another student's on-campus education, schools have the right and the DUTY to do something "effective" about it.
Whether this will work, or not is anyone's guess. But it may be one way around the free speech issue.
The governing Supreme Court case that has apparently led to students succeeding on free-speech grounds is Tinker v. Des Moines Independent Community District (1969). "Under Tinker, school officials can restrict or respond to student speech if that speech has caused or foreseebly will cause a substantial disruption at school or interference with the rights of students to be secure." (p. 72, Nancy Willard, Schools Have the Right to Punish Cyberbullies, p. 72-78 in Cyberbullying, cited above).
There is actually a case in WV that occurred last year that used Title IX to uphold a high school that suspended a student. A West Virginia student who created a web page suggesting another student had a sexually transmitted disease and invited classmates to comment. A three-judge panel of the 4th U.S. Circuit Court of Appeals unanimously refused to reinstate Kara Kowalski’s lawsuit against school officials in Berkeley County. She claimed her five-day suspension from Musselman High School in 2005 violated her free speech and due process rights, and that school officials lacked authority to punish her because she created the web page at home. The appeals court said the web page was created primarily for Kowalski’s classmates, so the school had the right to discipline her for disrupting the learning environment.
ReplyDeleteYou can read more here: http://billhowe.org/TitleIX/?p=144
I feel relieved by this case. Students can still get disciplined when they bully others, even if they do it at a private website at home.
DeleteThat phrase, "disrupting the learning environment" is a key one. It, or variants thereof, have been important in other cases where students engaged in off-school behaviors that negatively impacted the school.
ReplyDeleteIt strikes me that the case you cite could be the kind of case in which a victimized student then files a civil suit alleging harm under applicable libel laws.
The second paragraph is sort of ironic. It says that schools have to step in. In other discussions we have seen how schools got sued for stepping in. I just wish people could agree on something. It seems like rules vary between school and states.
ReplyDelete