Supreme Court Leaves Schools Guessing About How To Respond To Off-Campus Cyberbullying

Last week, the U.S. Supreme Court refused to consider three cases involving cyberbullying. That refusal leaves school districts in a continuing quandary about how to respond to off-campus cyberbullying, and illustrates how reasonable minds can come to very different conclusions on whether school districts have the right to impose discipline, or whether such discipline violates the First Amendment.

In J.S. v. Blue Mountain School District (3rd Cir. 2011) 650 F.3d 915, an eighth grade student was suspended for 10 days after creating a fake MySpace page lampooning her school principal as a sex addict. The student, who accused the principal of having sex in his office and “hitting on students and their parents,” alleged that his wife looked like a man and that his son resembled a gorilla, and claimed the posting was a joke. Notably, the comments were written on a home computer during the weekend and shared with the student’s MySpace “friends.” The lower court ruled in favor of school district, but the Third Circuit Court of Appeals reversed, ruling 8-6 that the page caused “no substantial disruption at school.” So basically, seven judges thought the suspension was appropriate, and eight did not.

In Layshock v. Hermitage School District (3rd Cir. 2010) 593 F.3d 249, a student used his grandmother’s home computer to create a profile of the principal, using an actual photo but listing made-up answers to survey questions, suggesting that the principal used illegal drugs, was a drunk, and engaged in lewd and criminal behavior. The student admitted he made up the profile and was suspended for 10 days. The District court ruled in favor of the student, finding there was no substantial disruption at school, and the Third Circuit upheld this decision.

In Kowalski v. Berkeley County Schools (4th Cir. 2011) 652 F.3d 565, a high school student was suspended for 10 days, was kicked off the cheerleading squad, and was prevented from being crowned the “Queen of Charm” at that year’s “Charm Review.” Her offense was creating an online MySpace discussion group called “Students Against Sluts Herpes” that targeted a particular student, suggesting she had herpes. The suspended student claimed in her defense that the page was developed on her home computer during non-school hours, and sued.

Both the lower court and the Fourth Circuit Court of Appeals upheld the school district’s decision, finding that the discussion group could cause a “substantial disruption at school,” noting: “Given the targeted, defamatory nature of Kowalski’s speech, aimed at a fellow classmate, it created ‘actual or nascent’ substantial disorder and disruption at the school.” Remarkably, the appellate court cited no actual facts related to the type of disorder the comments might cause, other than the likely emotional distress of the one bullied student. The court could have pointed to the level of gossip at school, how the gossip was impacting learning, the workload on the principal, or other evidence of “substantial disruption,” but it did not.

The lesson learned from these cases, and the Supreme Court’s refusal to take them up, is that school districts should continue to be extremely cautious when imposing discipline on students for comments made on home computers during their own time. Such comments can be considered protected by the First Amendment unless the school district can present evidence of “substantial disruption” at school, as well as satisfy California’s jurisdictional requirements that the conduct is “related to school activities.” When in doubt, consult with your legal counsel; but keep in mind, another lawyer (or judge) may disagree.

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