Cyberbullying, sexual harassment vs. free speech – where’s the line?

Two cases in the news recently have highlighted the difficult battles that schools have in regulating student behaviour that starts off-campus and online, but then has direct impacts on school life. What can schools do to ensure a safe learning environment while respecting students' rights to free speech in cases of alleged cyberbullying?

The first case that was recently settled in Florida is educative on this point. The student in question had created a Facebook group about a teacher and that included several negative comments including, "Ms. Sarah Phelps is the worst teacher I've ever met!" In response, the school suspended the student for three days and removed her from her Advanced Placement classes. The judge who decided not dismiss this case found that this comment:

1. did not take place on school grounds or using school equipment,
2. was not defamatory, threatening, or harassing, and
3. did not substantially disrupt the learning environment, and therefore is protected speech. He wrote, "This Court finds that the facts are such that under any form of the Tinker test, Evans's actions cannot be construed as even remotely disruptive, nor was her speech in any way lewd, vulgar, defamatory, promoting drug use or violence as seen in other cases." As a result, the school district decided not to proceed to trial and agreed to a $1.00 settlement and to pay $15,000 in attorney's fees to the student. For more analysis, you can visit the First Amendment center.

Coincidentally, this week news broke about two cheerleaders in Missouri are now suing their school district after being removed from the cheerleading squad in the wake of cyberbullying allegations. In this case, the police were involved, but no charges were pressed following their investigation. The news stories don't offer any specifics about the exact nature of the cyberbullying except that it involved a circulated text message and that the police said that there was no "direct threat." This lack of direct threat caused the police to drop their investigation. The students are claiming that their removal from the squad resulted in "alienation" and "humiliation" and they are seeking punitive damages claiming that their constitutional rights were violated. According to the complaint, the students state that the actions of the school created a "hostile environment" that "resulted in the loss of educational benefit." I am very interested to see how this case proceeds since representing one's school as a member of a team is a privilege and an honor, not a right.

Finally, I just read a story about how the University of Virginia eliminated four policies relating to speech and harassment after a notice from the Foundation for Individual Rights on Campus. According to the Washington Post, the following changes were made:

• Groves reformed the school's "Just Report It!" "bias reporting" system to promise students that protected speech will not be "subject to university disciplinary action or formal investigation" even if it is reported.
• Shirley Payne, assistant vice president for information security, policy and records, removed unconstitutional language from a policy prohibiting Internet messages that "vilify" others and mailing list messages that are "inappropriate."
• The school's Women's Center removed two policies with unconstitutional examples of "sexual harassment" from its website.

What these cases demonstrate is that educational institutions are working hard to create safe learning environments for all. However, there is a fine line between protected and unprotected speech. Offensive, hurtful, or inappropriate speech is still protected speech under the First Amendment as long as it isn't defamatory, threatening, disruptive, or harassing. These forms of speech are not protected and educational institutions have the right to limit such expressions. Unfortunately, most people don't know where that line is: especially students. Schools can do more to educate staff, students and families about cyberbullying and free speech, and need to clarify their policies accordingly. The schools mentioned here do seem to be working hard to do the best they can to prevent (cyber)bullying, harassment, and biased behaviors and to create and maintain safe and secure learning environments. It seems to me that in both of these cases the students did behave inappropriately, but how can schools limit negative behaviours that may have a harmful effect on the school community without infringing on students' constitutional rights?

First, I recommend that teachers and administrators begin intervening in such incidents with the intent to educate and repair relationships, not just to punish. Schools are not like the police, they have to maintain a cohesive community, not just enforce rules. In the case of the Facebook student, rather than suspending her they could have addressed the infraction through some sort of mediation, education about cyberbullying, and service to the school's faculty. This would have protected the school from the lawsuit that surely arose as a result of the suspension and helped the student learn something from her actions.

Second, administrators need to be up to date on evolving issues of school law. Since there is still much grey area in terms of cyberbullying and the role of schools in responding to it, this is an area that requires constant vigilance and attention. There are some very helpful online resources available to provide guidance in this area. Just a few that I suggest are:

• Education Law Blog.ca http://educationlawblog.ca/
• School & Education Law http://schoolandeducationlaw.blogspot.com/
• The School Law Blog http://blogs.edweek.org/edweek/school_law/
• First Amendment Law Prof http://lawprofessors.typepad.com/firstamendment/

Finally, schools and school boards should proceed aggressively with strong prevention and education programs, and cautiously with punitive responses that could result in legal action against the school.