Cyberbullying: Are principals’ hands tied?

Scott McLeod, J.D., Ph.D.

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Get this presentation!

www.scottmcleod.net/vermont

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Disclaimer

We are not in an attorney-client relationship. Do not construe anything I say as accurate legal advice. For any and all legal questions, I strongly recommend that you speak with a reputable attorney who specializes in school law issues.

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Warning!

This presentation is rated

PG-13 vulgar languageviolent imagery

content of lewd and sexual naturebad spelling and grammar

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Beussink (1998, MO)

Vulgar web page that was highly critical of school administration

Invited readers to contact the school principal to express their opinions

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J.S. v. Bethlehem (2000, PA)

Fuck you Mrs. Fulmer. You are a Bitch. You are a Stupid Bitch.

Fuck you Mrs. Fulmer. You are a Bitch. You are a Stupid Bitch.

Fuck you Mrs. Fulmer. You are a Bitch. You are a Stupid Bitch.

Fuck you Mrs. Fulmer. You are a Bitch. You are a Stupid Bitch.

Fuck you Mrs. Fulmer. You are a Bitch. You …

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Emmet (2000, WA)

‘Unofficial Kentlake High Home Page’

mock obituariesor

hit list?

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Killion (2001, PA)

He is no longer allowed in any “All You Can Eat” restaurants.

Because of his extensive gut factor, the “man” hasn't seen his own penis in over a decade.

Even it is wasn't for his gut, it would still take a magnifying glass and extensive searching to find it.

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Coy (2002, OH)

… a sentence describing one boy as being sexually aroused by his mother. In addition to the ‘‘losers’’ section, the website contained two pictures of boys giving the ‘‘finger,’’ some profanity, and a depressingly high number of spelling and grammatical errors …

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Mahaffey (2002, MI)

SATAN’S MISSION FOR YOU THIS WEEK

Stab someone for no reason then set them on fire throw them off of a cliff, watch them suffer and with their last breath, just before everything goes black, spit on their face. Killing people is wrong don’t do It. unless Im there to watch. Or just go to Detroit. Hell is right in the middle. Drop by and say hi.

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Doninger (CT, 2007)

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Requa (WA, 2007)

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Layshock (PA, 2007)

big blunt

big keg behind my desk

big fag

big hard-on

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In your group…

Tally results

Compare results

Discuss WHY you decided the way you did

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Principle 1

Schools have an affirmative obligation to protect students and/or employees from harassing, threatening, or bullying conduct that occurs in school

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Principle 2

The default rule is that student speech in schools is protected.

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Supreme Court exceptions

true threat

material and substantial disruption (or reasonable forecast thereof) (Tinker v. Des Moines)

vulgarity (Bethel v. Fraser) legitimate pedagogical concern (Hazelwood

v. Kuhlmeier)

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Morse v. Frederick (2007)

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What about student conduct outside of school?

Fights off school grounds

Illegal drug / alcohol use

Underground newspapers

Peaceful protests

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Principle 3

Schools may discipline students for out-of-school conduct that substantially interferes with the normal operations of the school (a la Tinker)

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How’d you do?

Use of Tinker test (material and substantial disruption)

The only case that schools won was J.S. v. Bethlehem (teacher medical leave)• School won in Doninger too but watch the appeal• Requa was discipline for on-campus behavior

Strong protections for students’ constitutionally-protected speech rights

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Principle 4

If they have a strong acceptable use policy, schools can regulate student cyberspeech if done during school time and/or using school computers

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Principle 5

Schools have more leeway with employees

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Employee cyberspeech

School employees are “agents” / representatives of the school

Employee speech protected only if• on a matter of legitimate public concern, and• not outweighed by school’s responsibility to

manage its internal affairs and to provide effective and efficient service to the public

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Review

Substantial interference is a high hurdle for schools

Schools can always educate Schools have more leeway with employees

than with students Schools should regulate off-campus student

cyberspeech with caution Private lawsuits are always a possibility

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Q & A

Questions?

Concerns?

Thoughts?

Comments?