It’s a truism that the law always lags behind technological advances. In practice there’s really no way around this. The day the first automobile rolled off the assembly line there weren’t any speed limits, driver licenses, and vehicle inspections. Those came later as needs became apparent. Unfortunately, between the time that a new technology begins to cause problems and when laws start showing up to deal with those problems, innocent victims find themselves without legal recourse in the face of clear injustice.
Since cyberbullying has become a prevalent issue, states have scrambled to catch up with the impact of technology.
As of 2009, twenty states had enacted laws to combat cyberbullying. These laws prohibit cyberbullying in two ways. First, some specifically proscribe cyberbullying as a prohibited act within the operative provision of the law. Second, others target the broader act of bullying and include cyberbullying within the statutory definition of the terms “bullying,” “intimidation,” or “harassment.”20
Schools are often at the forefront of the cyberbullying battle because so many of the victims and offenders are junior high and high school students. This raises a number of difficult questions. What can schools do about cyberbullying? What should schools do about cyberbulling? Are they responsible for controlling cyberbullying?
“Schools have a growing concern about the problem, and their concern is whether they can discipline students and how far the bullying has to go before they can get involved,” said Kim Croyle, a lawyer in Morgantown, W.Va., who represents several school boards and lectures on cyberbullying. Under a legal standard set by the Supreme Court in 1969 in Tinker v. Des Moines Independent Community School District, educators can prohibit student speech if it causes substantial interference with school discipline or the rights of others. Tinker remains the chief yardstick in cyberbullying cases, but it can be tricky to apply. If, for example, a student is afraid to go to school because of a cyberbullying incident, a school might be hard-pressed to justify harsh action under the Tinker ruling. What constitutes substantial interference can be in the eye of the beholder. The fact that Tinker isn’t the sole yardstick for deciding students’ First Amendment rights further complicates matters. For example, the Supreme Court has said that “true threats” are not protected by the First Amendment. And it has allowed educators to crack down on vulgar student speech at school and to exert control over school-sponsored expression such as school newspapers.21
School administrators find themselves in a bit of a Catch-22. Parents have sued some schools when they failed to get involved in cyberbullying that took place off school premises (for example, using home equipment, after school hours, and outside of school supervision). But in other cases, parents have sued school administrators when they did get involved in such cases. Since the impact of cyberbullying plays out sooner or later in the school context, it’s more common than not for school administrators to err to the side of getting involved when cyberbullying is asserted.
Although this is muddy legal water and courts typically support students’ rights to freedom of expression, courts have upheld the actions of administrators who disciplined students for off-campus actions. In these cases, to legally justify intervening, school officials must show that a student’s misbehavior substantially or materially disrupted learning, interfered with the educational mission or school discipline, or threatened other students. Basically, educators must show that they had to stop normal day-to-day school activities to address the behavior that occurred off-site or to respond to school-based consequences of that behavior (for example, a spike in students using cell phones during class as many of them gossip about a malicious incident that happened on Facebook).22
Of course, when cyberbullying takes place on school grounds, or using an Internet connection at school, administrators intervene without hesitation.
Finally, what legal responsibility do parents have when their minor children engage in cyberbullying?
When juveniles do commit serious online abuses, the question often arises: Where were the parents? Shouldn’t they be held accountable, or at least share the blame? “The question isn’t ‘should,’ the question is ‘can,’ and the answer is ‘yes,'” says Willard. Under parental-liability statutes or parental-negligence standards, parents may be held liable for the harm caused by their children, she says. Willard says she hopes cases don’t reach that point. Still, “the fact that there is the potential for liability can help get parents motivated” to monitor their children’s actions, she says.23