Misbehavior in Cyberspace

The rise in social networking sites and chat rooms intermingles free expression and student safety in cyberspace by Maureen A. MacFarlane

A mother of a student walks into the middle school principal’s office holding a printout of a chat room exchange that the student had discovered when she logged onto her computer at home the previous night to contribute her portion of a group project. The mother is furious because the exchange contained a number of derogatory comments about her daughter. She wants to know what the school is going to do to address the situation.

In another community, a teacher tells the assistant superintendent about a new website on which students can rate teachers from all the high schools in the area. The teacher has viewed the website and is extremely upset because a number of the teachers from her high school have received highly unflattering comments. In fact, several comments are obscene and could damage the professional reputation of these teachers.

At another school, a student reports to a teacher that a group of students has been making offensive comments about another student on a popular social networking site for the past few weeks and have been encouraging other students to ostracize the student and make fun of him. The student decides to alert the school because the postings are becoming more aggressive and he is afraid the student, who is not aware of the postings, soon will be beaten up or worse.

Beyond Armbands
When attending education law conferences, it is not uncommon to hear school administrators discuss their most recent technological challenges. Often the stories they tell, like those above, center on the struggle to provide a safe educational setting when the environment no longer is limited to the physical structure of a building and when student expression is no longer limited to things like armbands, student speeches, student newspapers and banners displayed at school-sponsored events.

The widespread use of virtual classrooms, Internet exploration and chat rooms has stretched the concept of the schoolhouse while the popularity of social networking sites, blogging and text messaging have affected the way students communicate with and about each other, their teachers, school administrators and their schools. Add to the mix worries about virtual predators, cyberharassment and cyberbullying and it is no wonder school administrators want to discuss the most effective strategies to respond to such scenarios.

The rapid embrace of technology in public schools and within the homes of most public school students has compounded the existing struggle to balance the right of students to engage in free expression and the need to ensure the safety of students. Several general principles can be extrapolated from court decisions involving students’ free expression and student safety that school administrators can apply when they find themselves dealing with cyberspace issues.

Crafting Code
School districts need to be pro-active in reviewing existing policies and developing new policies and procedures to ensure consistency with current law. This process should include principals, appropriate staff members, community members and the school board. Likely places to begin this review include school district policies on acceptable use, non-discrimination and anti-harassment, anti-bullying and student codes of conduct on free expression and discipline.

Write these policies and procedures to encompass both expected and unexpected scenarios. However, avoid writing these too broadly. A poorly drafted policy or procedure, if challenged, might lead a court to find the school district has engaged in viewpoint discrimination and prohibited student expression in violation of the First Amendment.

The Keystone Oaks School District in western Pennsylvania found itself in such a situation after a student challenged disciplinary action that had been imposed for website postings that the student had made about an upcoming volleyball game. The federal court in Flaherty v. Keystone Oaks School District found the school district’s prohibitions against abusive, harassing, inappropriate and offensive speech overly broad because the terms were not linked to the substantial disruption of school operations.

The court also found the terms to be vague because the definitions were not sufficient to put students on notice as to the types of prohibited conduct. As a result, the court did not uphold the disciplinary actions the school district had taken against the student.

Thus just as a computer programmer needs to write a clearly defined code for a computer program to function properly and within expected parameters, school districts need to lay a strong foundation of soundly drafted policies and procedures to ensure student safety while permitting free expression in the school environment.

If a school district, for instance, uses virtual classrooms, its policies and procedures should not only articulate clearly what conduct is acceptable and unacceptable but should also clarify these codes of conduct as they apply to students in both physical and virtual classrooms.

Who’s Sponsoring?
When writing computer code, a programmer should understand the requirements of the system in which the code will function. Similarly, school districts need to understand the legal framework within which their policies and procedures will be analyzed when a student disciplinary action is challenged.

This legal framework is governed by a quartet of decisions issued by the U.S. Supreme Court. The framework established by the first three Supreme Court decisions requires that school administrators identify whether the student expression is school-sponsored, such as a school newspaper, or not school-sponsored, such as the T-shirt a student wears to school. If the expression is school-sponsored, then the school administrator must decide whether there are legitimate pedagogical concerns warranting restriction of the student’s expression. If the expression is not school-sponsored, then the school administrator must decide whether there are legitimate and reasonable concerns warranting restriction of the student’s expression because it either causes a material and substantial interference with school operations or is lewd, indecent or offensive.

The analysis was reaffirmed by the Supreme Court’s decision in Morse v. Frederick in June. In Morse, the Supreme Court held that school officials had not violated the First Amendment by seizing a pro-drug banner and suspending the student who had displayed it during a school-sponsored event. The Supreme Court noted that “‘the constitutional rights of students in public school are not automatically coextensive with the rights of adults in other settings’ ... and that the rights of students must be ‘applied in light of the special characteristics of the school environment.’”

When dealing with questionable actions in cyberspace, school leaders should remember what the court called “the special characteristics of the school environment” exist even if the classroom is virtual as opposed to physical. Further, leaders are obligated to be attentive to peer harassment even if the form of harassment is electronic rather than verbal or physical.

A school district in Idaho recently was sued by a student who alleged the school district was deliberately indifferent to her being harassed by a group of students. The harassment included a photograph of her kissing another student being posted on the Internet and a rumor being started that she was a lesbian. The district prevailed in Drews v. Joint School District in part due to a pro-active response to investigating complaints received.

Disruptive Effects
Although the court in Morse recognized there are “outer limits” to the ability of school districts to regulate free speech, several school districts have effectively used the traditional free expression legal framework to uphold disciplinary actions that have been taken against students for inappropriate conduct in cyberspace. Moreover, the presence of certain elements tends to persuade courts to rule in favor of school districts, especially when the legal challenge is to the disciplinary action taken against a student for inappropriate conduct in cyberspace.

First, courts consider the origin of the expression. If school property was used, then courts are likely to uphold any disciplinary action flowing from the student having violated school district policy. If, however, the expression occurred off school grounds, then courts are likely to find in favor of the student unless the school district can demonstrate the expression had a disruptive impact on school operations.

The Weedsport, N.Y., Central School District prevailed in an appellate court case brought by a student who had been suspended for displaying an instant message icon that showed a pistol pointed at a person’s head accompanied by the words, “Kill Mr. VanderMolen.” Although a related criminal case concluded the icon was a joke and no actual threat existed, the school district presented evidence that the icon had circulated for a three-week period to 15 individuals, including some of the student’s classmates. The court in its ruling in Wisniewski v. Board of Education of the Weedsport Central School District concluded these facts made it reasonably foreseeable the conduct would “create a risk of substantial disruption within the school environment.”

By contrast, the 3,700-student Franklin Regional School District located 20 miles east of Pittsburgh lost a court case brought by a student who had been suspended for publishing from his home computer a Top 10 list about the school’s athletic director that included comments about the athletic director’s physical appearance.

The federal district court in reviewing the evidence presented by the school district emphasized the fact that student’s comments in the posting were not threatening in nature. The court in Killion v. Franklin Regional School District also concluded there was no evidence of an actual disruption to school operations as a result of the posting. As a result, the district was barred from enforcing the disciplinary action it had taken against the student.

Second, courts consider the nature or quality of the expression at issue. The Bethlehem, Pa., Area School District disciplined a student after he had created a website on his home computer about his math teacher. The caption on one page was “Why Should She Die?” and another page showed the teacher decapitated. The website also contained a number of derogatory remarks about the school principal and teacher.

The teacher was so upset after viewing the website that she took a leave of absence. The principal also testified that the website had affected school morale and students had expressed anxiety about its content. The court concluded in J.S. v. Bethlehem Area School District that despite the graphic nature of the web pages, no true threat of harm to the teacher existed. The court, however, did find the web pages to be lewd, vulgar and plainly offensive and upheld the school district’s disciplinary action against the student.

The more factors a school administrator can initially identify to justify the disciplinary action taken, the more likely a court will be persuaded to uphold the school district’s action. Among the key factors to consider are: (1) the level of specificity in the expression (“I hate the world” versus “I hate Mr. X.”); (2) the impact of the expression upon the recipient (upset or threatened versus dismissive or unconcerned); (3) the directness of the expression (relayed directly toward the recipient versus relayed by a third party to the recipient); (4) the presence of a federal or state law that the expression violates (state or federal anti-discrimination laws, state bullying laws or state criminal laws prohibiting intimidation or threats); (5) the school district’s perception of the expression as a direct threat to the health, safety or welfare of staff or students (“true threat” versus unrealistic or no threat); (6) the exist-ence of a school district policy that the expression violates (acceptable use, anti-harassment or anti-bullying); and (7) the school district’s documented experience with and response to similar forms of expression (same expression caused disruption in past versus first experience with form of expression).

Staff Know-how
It is not just a matter of having carefully drafted policies and procedures and understanding how to present facts to defend a course of action taken. Before any action is taken, training needs to occur in the school district. Training ensures equitable implementation. Training also helps staff understand the parameters of acceptable and unacceptable conduct and respond to incidents either witnessed or brought to their attention.

Further, once aware of an incident, staff need to know who to notify to ensure a prompt and thorough investigation occurs, how to conduct a proper investigation and how to appropriately respond to the results of an investigation in accordance with adopted school district policies and applicable local, state and federal laws.

Ensure appropriate staff are familiar with guidelines established by social networking sites for reporting false or offensive profiles or for reporting threats, cyberbullying/cyberharassment. If the student’s conduct falls within the parameters of the reporting guidelines, then the school and/or the alleged victim should file a report with the site. Additionally, ensure staff know how to notify local law enforcement authorities about actual or threatened criminal conduct.

Make students and their parents aware of school district policies and procedures. Encourage students and their parents to report instances of cyber-harassment and cyberbullying. Additionally, parents should be notified when a student is suspected of an inappropriate act in cyberspace. Educate students on the various consequences that could flow from an inappropriate statement made on the Internet.

If the student threatens to harm another student or staff member via a computer, the student may not merely be subjected to disciplinary action under school district policies, but depending on the nature of the language used in making the threat, the student also could be charged with a criminal violation. This occurred in North Carolina when a student sent an e-mail from his grandparents’ computer threatening to harm the assistant principal unless she stopped suspending students for using racial slurs. The student was convicted under the state’s ethnic intimidation statute for his conduct in In the Matter of B.C.D.

Moreover, with the growing popularity of blogging and social networking sites, it has been reported with more frequency that colleges and employers are starting to review these sites in connection with decision-making processes. Inappropriate words or images could have a negative impact on a hiring or acceptance decision.

The key to interfacing with the Internet is to remember it is merely another medium for expression. Until the outer limits of expression are defined by court decisions, overall principles for balancing student free expression and student safety remain the same even when the concepts intermingle in cyberspace.

Maureen MacFarlane is legal counsel for the Cambridge Public Schools, 159 Thorndike St., Cambridge, MA 02141. E-mail: MMacFarlane@cpsd.us



The websites below offer guidance on dealing with the issue of cyberbullying. The AASA website features additional resources for educators on cyberbullying.

• Center for Safe and Responsible Internet Use, cyberbully.org. This site provides research and outreach services to address issues of the safe and responsible use of the Internet.

• CyberSmart! cybersmart.org. This site offers a free K-8 curriculum designed to address the challenges of ensuring safe and appropriate Internet use.

• National Cyber Security Alliance, www.staysafe.org/educators/default.html. This site helps educators manage a variety of safety and security issues that exist online.