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  • Can Schools Discipline Students for Off-Campus Cyberbulling?

    Cyberbullying is one of the fastest growing problems affecting school officials across the country today. Students are being increasingly tormented, threatened, humiliated or otherwise targeted through the widespread use of the Internet and cellular devices. The National Crime Prevention Council reports that cyber-bullying is a problem that affects almost half of all American students.

    Cyberbulling has serious emotional and physical effects on students. Students who are cyberbullied are at a greater risk for anxiety, depression, decreased self esteem and other stress related emotional and physical disorders. Cases of students committing suicide after being cyberbullied are increasingly being brought to the public’s attention. For example, Jamey Rodemeyer, a 14-year-old boy from Williamsville, New York, took his life in 2011 after years of being bullied online with gay slurs such as “”JAMIE IS STUPID, GAY, FAT ANND [sic] UGLY. HE MUST DIE!” Alexis Pilkington, a seventeen year old soccer star from West Islip, New York, took her own life on March 21, 2010 after being viciously taunted on social networking sites, which persisted even after her death on Internet tribute pages.

    It is well documented that students who bully other students using school equipment or during school time can be disciplined by school officials. But can school officials directly punish students if the cyberbulling does not take place on school grounds? While most states have anti-bullying laws, these laws offer little guidance on whether schools may constitutionally intervene in off-campus bullying involving electronic communication. As a result, circuit courts are split on whether school officials may discipline students for their off-campus online speech.

    Some schools that have disciplined students for cyberbulling actions that took place off-campus have been sued for exceeding their authority and violating the student’s free speech right under the First Amendment. For example, Kara Kowalski was suspended from school for five days after cyberbulling another student on MySpace.com. Kowalski argued that Berkeley County School District violated her First Amendment right and was not justified in regulating her speech because it did not occur during a “school related activity,” but rather was “private out-of-school speech.”  The Berkeley County School District argued that school officials acted within the scope of their authority in regulating the off-campus cyberbulling because the “behavior created a  foreseeable risk of reaching school property and causing a substantial disruption to the work and discipline of the school.” In Kowalski v. Berkeley County Schools, 652 F.3d 565 (4th Cir. 2011), the court upheld the School District’s discipline as being constitutional, stating that the student’s speech “caused interference and disruption that was immune from First Amendment protection.” Similarly, in Doninger v. Niehoff, 527 F.3d 41 (2d Cir. 2008), the Second Circuit held that a student was properly and constitutionally disciplined for her off-campus blog because the blog post created a foreseeable risk of substantial disruption at her school.

    Conversely, some students have succeeded in arguing that school officials may not regulate off-campus bullying. In J.S. v. Blue Mountain Sch. Dist., 593 F.3d 286 (3d Cir. 2010) and Layshock v. Hermitage Sch. Dist., 593 F. 3d 249 (3d Cir. 2010) the court ruled in favor of the students, finding that their speech was protected by the First Amendment and discipline by the school for off-campus conduct was unconstitutional.

    Schools districts are being confronted with difficult questions regarding cyberbulling and whether they may discipline students for online comments or postings. If your institution has questions or concerns about this topic and you would like further information, please email Cynthia Augello at caugello@cullenanddykman.com or call her at 516.357.3753. A special thanks to Hayley Dryer, a third-year law student at Benjamin N. Cardozo School of Law, for helping with this post.