Cyberbullying - Law and Higher Education
Members of today’s college and university communities have unprecedented access to a wide range of technology, including e-mail, blogs, cell phones, and social networking Web sites. Faced with these technologies, an emerging legal challenge confronting today’s students, faculty, staff, and community members in the world of higher education is how to address legal issues relating to cyberbullying, a relatively new form of high-tech incivility and harassment using the Internet. Consequently, this entry focuses on the issue of cyberbullying and its growing impact on the higher educational community.
Cyberbullying is defined as the use of communication- based technologies, including cell phones, e-mail, instant messaging, text messaging, and social networking sites, to engage in deliberate harassment or intimidation of other individuals or groups of persons using online speech or expression. Student bullying and harassment are considerably more common at the elementary, middle, and high school levels. Even so, a recent study of bullying on college and university campuses reveals that more than 60% of students indicate that they have personally observed a student bullying or harassing another student.
The online cruelty and harassment uniquely associated with cyberbullying has recently become popular among college students due largely to the virtual anonymity of online communication, which makes it extremely difficult to identify bullies or instigators of online bullying or harassment. Also, the limitless reach of the Internet allows the online content of cyberbullying to well surpass the confines of college and university campuses when compared to traditional bullying, with which the impact is considerably more controlled.
One of the most popular and publicly accessible online venues for cyberbullying in college and university communities was a Web site called Juicy Campus. Until it was officially shut down in February 2009, this popular Web site was designed exclusively for students in higher education for posting online, anonymous, and uncensored gossip about their classmates and instructors. Advocates of the Juicy Campus Web site argued that it fostered student free speech and expression. However, critics of the Web site maintained that it actively encouraged cyberbullying against other students and faculty members in the form of negative smear campaigns, threats, and racist and sexist remarks targeting other students. During its short existence of less than two years, the Juicy Campus Web site was the subject of numerous instances of violent, online threats.
Nancy E. Willard, executive director of the Center for Safe and Responsible Internet Use, has identified the following seven major types of cyberbullying activities:
- Flaming: short but intense online communications characterized by offensive, rude, or vulgar language.
- Harassment: repeatedly sending someone mean, insulting, and offensive online messages.
- Denigration: sending or posting online gossip or rumors about a person designed to damage that person’s reputation or friendships; this is often the most popular form of cyberbullying used by students against faculty members or employees at colleges and universities.
- Impersonation: impersonating the target of the bullying; for example, a cyberbully may steal the target’s e-mail account and send offensive e-mail messages under that person’s identity.
- Outing and trickery: fooling others into revealing secrets or embarrassing information about themselves; this information is shared online.
- Exclusion: intentionally restricting someone from being able to participate in a certain online group, such as a social networking site.
- Cyberstalking: sending repeated, unwanted online messages that often include threats that make some victims fear for their personal safety; this represents the most serious form of cyberbullying.
In the wake of recent school shootings on the college campuses of Virginia Tech University and Northern Illinois University, researchers and college officials have begun to reexamine legal and policy issues surrounding cyberbullying and disciplining students who engage in online bullying and harassment behaviors; it is hoped that such discipline will prevent cyberbullying from escalating into violent physical behavior.
The widespread use of the Internet by students specifically to verbally harass and even threaten the physical harm of other students, faculty, and staff has led educational officials at the elementary through postsecondary levels to examine how they discipline students for primarily off-campus, Internet-based speech. Despite a significant increase in Internet usage among young people across the country, the U.S. Supreme Court has yet to expressly address Internet-based student speech and expression. As a result, lower courts provide varying and often inconsistent legal guidance to school and higher education officials regarding how to address legal issues associated with cyberbullying. Moreover, courts are presently experiencing a sharp increase in the number of student cyberbullying suits based on a wide range of legal violations, including civil rights deprivations, First Amendment free speech violations, and numerous violations of state and federal antiharassment statutory laws. As such, even though these cases are set in elementary and secondary education, they should be informative for officials in institutions of higher learning.
Compared to traditional forms of student speech, the Internet is not limited by geographical boundaries. For this reason, an increasingly difficult legal issue for officials in institutions of higher learning as well as in elementary and secondary schools when reacting to student cyberbullying is whether there is enough evidence to link Internetbased cyberbullying to campus-based activities. This situation is further complicated by virtue of the fact that the legal authority of these officials is typically restricted mainly to the on-campus behaviors of their students. It is thus often difficult for officials to determine whether cyberbullying occurred on or off campus, or both.
The prevalence of cyberbullying among today’s college students notwithstanding, the leading cases involving this practice occur at the elementary and secondary school levels. One of the first published legal cases involving student cyberbullying, Beussink v. Woodland R-IV School District (1998), involved a high school student who created a Web site that he used to criticize school officials. Once school officials became aware of the student’s Web site, the principal suspended him initially for five days and subsequently increased the suspension to ten days. In its analysis, a federal trial court in Missouri applied the legal standard from Tinker v. Des Moines Independent Community School District (1969), holding that the content of the student’s Web site did not “materially or substantially interfere with the school’s operation,” and the student’s suspension was overruled. Ultimately, the court held that the principal’s suspension was unjustified, because simply disliking or being upset by the student’s Web site did not rise to the level of a being a substantial disruption in the operation of the school.
In the issue addressed in Emmett v. Kent School District (2000), a high school senior created a Web site that included mock obituaries of some of his friends; the student created the site entirely from home without using any school resources. The Web site asked visitors to vote on who would “die” next. A federal trial court in Washington was of the opinion that because the Web site was entirely created off-campus, the disturbing speech expressed on it was beyond the legal control of school officials and entitled to First Amendment protections.
J. S. v. Bethlehem Area School District (2002), the first of four cases from Pennsylvania, involved a student who created a Web site on his home computer that contained derogatory, profane, and threatening comments targeting his algebra teacher and principal. In one particularly troubling caption of the Web site, the student stated, “Why Should She Die?” The school board conducted an expulsion hearing for the student, because the Web site had such an emotional impact on one of the teachers that she applied for a medical leave, and the site had a demoralizing impact on the entire school community. The Supreme Court of Pennsylvania relied on Tinker in deciding that school officials had the right to expel the student and that doing so did not violate his First Amendment rights.
The issue in Killion v. Franklin Regional School District (2001) was that a high school student had created a “top ten list” on his Web site that specifically targeted the school’s athletic director. The facts revealed that the student was apparently angry at the athletic director because the student had been refused a student parking permit and because of new rules and regulations impacting the school’s track team. From his home computer, the student e-mailed a copy of the list to his friends. Several weeks later, copies of the list were distributed at the high school. The court reasoned that while the student’s Web site was both derogatory and insulting, school officials failed to provide the required evidence that the Web site caused a substantial threat to the operation of the school. Based on this lack of evidence of a major disruption in the operation of the school, a federal trial court in Pennsylvania concluded that the student’s suspension was not valid.
When a high school senior created a fictitious, online parody of his principal and posted it on the popular social networking Web site, MySpace .com, soon afterward classmates and school officials became aware of the online parody. The student was suspended for ten days, placed in an alternative curriculum program, banned from participating in school-sponsored events, and prohibited from attending graduation. In Layshock v. Hermitage School District (2007), a federal trial court in Pennsylvania observed that because school officials had the necessary evidence that the student’s online parody caused a substantial disruption in school operations, they had the authority to discipline him for his behavior.
In A. B. v. State of Indiana (2008), the issue was that a student had posted several derogatory statements about her principal on a Web site that the principal purportedly created. Initially, officials filed a delinquency petition against the student, alleging that the minor’s acts would have been criminal if they had been committed by an adult. On further review of a dismissal in favor of the student, the Supreme Court of Indiana reinstated her being adjudicated delinquent, because she intended to harass, annoy, or alarm her former middle school principal.
In Doninger v. Niehoff (2008), a high school junior in Connecticut was disqualified from running for senior class secretary after she posted vulgar and inaccurate online statements on a publicly accessible Web site. In light of the student’s Web site postings, administrators received many e-mails and phone calls from concerned students, parents, and community members who worried about the cancellation of an upcoming school event. As a result, officials had to reschedule events due to the controversy created by the student’s online statements. The Second Circuit upheld the authority of school officials to discipline the student, insofar as the student’s online statements created a foreseeable risk of substantial disruption at the school.
Responses to Cyberbullying
An increasing number of jurisdictions are introducing legislation aimed at assisting college officials to address student cyberbullying issues on college campuses. As of 2009, legislatures in Florida, Oregon, Pennsylvania, South Carolina, Utah, and Washington have policies addressing student cyberbullying. The primary goal of these state-level legislative policies is the development of legal language that allows officials to intervene in cyberbullying incidents if the incidents have an impact on the college or university environment.
College and University Responsibilities
College and university officials must take proactive steps to monitor their students’ use of technology. Despite the current legal limitations associated with the disciplining of students involved in cyberbullying, officials on college and university campuses must develop climates in which the victims of cyberbullying feel safe reporting these incidents. Additionally, college and university officials must educate themselves on how students, and others on campus, may be using current and emerging technologies as a means to harass, intimidate, and potentially physically harm other unsuspecting members of their academic communities.
See also Distance Learning
- Brady, K. P. (2008). Student bullying and harassment in a cyberage: The legal ambiguity of disciplining students for cyberbullying. International Journal of Educational Reform, 17(2), 92–106.
- Center for Safe and Responsible Internet Use: http://www.cyberbully.org
- Dickerson, D. (2005). Cyberbullies on campus. University of Toledo Law Review, 37(1), 12–45.
- Myers, J. J., & Carper, G. T. (2008). Cyberbullying: The legal challenges for educators. West’s Education Law Reporter, 238, 1–16.
- Willard, N. E. (2007). Educator’s guide to cyberbullying and cyberthreats. Retrieved April 17, 2009, from http://www.cyberbully.org/cyberbully/docscbcteducator.pdf
- A. B. v. State, 885 N.E.2d 1223 (Ind. 2008).
- Beussink v. Woodland R-IV School District, 30 F. Supp. 2d 1175 (E.D. Mo. 1998).
- Doninger v. Niehoff, 527 F.3d 41 (2d Cir. 2008).
- Emmett v. Kent School District, 92 F. Supp. 2d 1088 (W.D. Wash. 2000).
- J. S. v. Bethlehem Area School District, 807 A.2d 847 (Pa. 2002).
- Killion v. Franklin Regional School District, 136 F. Supp. 2d 446 (W.D. Pa. 2001).
- Layshock v. Hermitage School District, 496 F. Supp. 2d 587 (W.D. Pa. 2007).
- Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969).