Off campus, not off limits
School responses to online bullying is the new threat to off-campus speech
In weblogs and chat rooms across the Internet, they dish out insults and spread gossip about their classmates from the comfort of their home computer.
They are the new generation of bullies — cyberbullies.
While there is nothing new about students taunting and harassing other students, the introduction of the Internet to this tradition is causing some educators to establish school policies that punish students for off-campus speech.
The effort by these educators to prevent bullying by smearing the boundary between on- and off-campus speech could have a chilling effect on a student's First Amendment right to publish uncensored, experts say. As more high school student journalists turn to the Internet to publish news, the question of how schools differentiate between bullying and free speech could impact the editorial content of many off-campus student publications.
Most experts agree that bullying is a problem in schools and many claim bullying is linked to increases in crime, suicide and school shootings.
According to a National Institute of Child Health and Human Development study released in September, approximately 30 percent of all kids are bullies, victims of bullies or both. In addition, 71 percent of high school students who opened fire on their classmates were, at one time, the victims of severe bullying and harassment.
Some experts also believe that online bullying, or the humiliation and taunting of classmates online, can have just as many negative consequences as face-to-face bullying at school.
However, the question is whether schools should protect students from online bullying by creating policies that threaten students' First Amendment right to free expression or whether there are better, constitutionally valid approaches to resolving the problem.
In the past, school administrators intervened when written harassment took place by tracking down the authors of 'slam books' and erasing graffiti from bathroom walls. But with the advent of cyberbullying, administrators are finding it harder to locate the perpetrators not only because the bullying occurs off campus, but also because the Internet offers easy anonymity. As a result, critics claim cyberbullying can be more violent and bitter.
Cyberbullying is different than traditional bullying because the Internet lacks feedback and therefore students are willing to say things that they wouldn't otherwise, wrote Nancy Willard in her 2003 article, 'Off-Campus, Harmful Online Student Speech' in the Journal of School Violence. In addition, students are aware that they are less likely to be caught, and in some online communities, bullies feel support from peers to post offensive messages.
As a result, many school officials have argued for the right to punish students for off-campus speech because of the direct impact Internet bullying has on the school environment. The officials claim that off-campus speech by cyberbullies creates a reasonable expectation that a 'material disruption' of the school environment would occur if they fail to act.
The Supreme Court ruled in 1969 in Tinker v. Des Moines Community School District that public school students 'do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gates.' But the court said that school administrators could 'restrict student speech if it represents a material disruption to the learning environment.'
Some school administrators argue the ruling gives them the right to discipline certain off-campus speech even though Tinker is traditionally used to determine the free-speech rights of students at school. Nevertheless, in lawsuits involving students who create off-campus speech that is deemed offensive, courts have generally protected students from punishment, which is good news for the student media.
A federal court in Seattle ruled in 2000 that a school could not suspend a student who created mock obituaries of his classmates on a Web site he created on his home computer. But in 2002, the Pennsylvania Supreme Court ruled a student could be disciplined for a personal Web site that made a threat against a teacher because the student accessed the site at school and disrupted the school community.
But in an attempt to prevent incidents such as the Columbine High School shootings, school officials are often quick to punish students who express any harmful statement against their classmates. Twenty violent, school-related deaths have been reported at schools so far this year, which is more than during either of the past two school years.
The increase in school violence is one of the reasons why bully-prevention advocates such as Rachel Simmons say school districts should adopt policies that deal directly with off-campus Internet bullying.
'Things that go on off-campus can come back to haunt kids, especially with the Internet,' said Simmons, author of Odd Girl Out: The Hidden Culture of Aggression in Girls. 'There are a whole host of problems that can potentially result.'
Simmons said that schools should define inappropriate, off-campus speech and list the consequences that go along with perpetrating that speech.
'There [must] be some consequence,' Simmons said. 'There needs to be a consciousness that the behavior is not OK.'
She claims that because there is a link between what happens online and at school, educators have an obligation to intercede in off-campus bullying.
'I think students have the right to say what they want to say, but because what is said can have an effect on a student's well being at school, there should be recourse and remedy when [off-campus speech] affects the school environment,' Simmons said.
Some experts have suggested that schools adopt a student code of conduct that specifies acceptable online speech.
Rosalind Wiseman, co-founder of the Empower Program, a nonprofit organization that teaches violence prevention at schools, said she agrees that schools need to adopt policies regarding off-campus student speech.
'If you want to create a safe community within the school, you have to create a code of conduct,' Wiseman said.
Wiseman said if there is not a student conduct code regarding Internet speech, some students can become more powerful than others through bullying and that can threaten school safety.
She said she recommends that each student sign a contract that spells out how the student is expected to behave at school and at home. Students would then base their Internet behavior on the values in the contract and if they violated them, the student would be disciplined, she said.
Wiseman said she balances a student's First Amendment rights with being a responsible citizen. She said she asks students to think about whether 'the right to say something that makes someone feel bad about themselves is more important then the right to walk down a hallway with dignity.'
Some school districts across the nation already have a student code of conduct that regulates off-campus speech. For example, officials at Gwinnett County School District in Georgia used their student conduct policy at least twice this past year to discipline students for off-campus speech.
In October, two eighth-graders at Trickum Middle School were suspended for allegedly posting racial slurs and threats on their off-campus Web site.
Two other Gwinnett County students filed a lawsuit this fall against the district, alleging that school officials violated their First Amendment rights by suspending them for comments posted on an off-campus Web site.
The Brookwood High School students were suspended in March after administrators said their comments that were posted on another student's site threatened a teacher at the school.
Administrators said the comments violated the district's policy, which prohibits posting on the Internet 'any expression (oral, written or gesture) which could have the effect of undermining the authority of the school employee.'
In the lawsuit, the students are asking the court to declare provisions in the Gwinnett County School District student conduct code unconstitutionally vague and overbroad.
For the most part, the courts have ruled in students' favor in lawsuits challenging whether school officials have the authority to discipline a student for off-campus activities, said Lee Tien, a senior staff attorney for the Electronic Frontier Foundation, a nonprofit organization focused on protecting the digital rights of individuals.
'What a student does off campus is off campus,' Tien said. 'Unless there are very special kinds of circumstances, there is no authority or entitlement by a school to really regulate off-campus conduct.'
Tien said that student online speech should not be treated differently than other off-campus speech.
'This is not any different than sitting at home bitching and moaning ' it's just that it is on a Web page,' Tien said. 'It ought to be recognized by courts that there is a real strong dividing line in terms of the authority to [impose] consequences within the school context for [students'] lives outside of school.'
If school officials are allowed to discipline for off-campus bullying they could eventually expand their authority and discipline students for content posted in an off-campus, online newspaper, Tien said.
'Schools should absolutely not be disciplining students for off-campus newspapers,' Tien said.
There are already signs that some school officials are expanding their authority over off-campus speech.
This fall, a junior at Mechanicsburg High School in Ohio was suspended from school and later arrested on charges that he linked his personal Web page to a friend's Web site, which school administrators and peers later deemed a threat to school safety.
Jameson Pack, 16, was charged with seven counts of a first degree misdemeanor and a fourth degree felony for complicity to menacing by stalking. In addition, school administrators suspended him for 10 days and banned him from the school's computer facilities for two years.
The charges against Pack stem from an Ohio law that went into effect in August. The Ohio legislature approved Senate Bill 8, which forbids a person from using 'any electronic method of remotely transferring information' to engage 'in a pattern of conduct' and 'knowingly cause another person to believe that the offender will cause physical harm to the other person or cause mental distress to the other person.' If the victim is a minor, the crime is felony punishable by more than a year in prison if the victim is a minor.
'This [law] is clearly unconstitutional and a violation of free speech,' said Robert Ellis, who heads the Computer Law Committee for the Ohio State Bar. 'It makes speech a felony.'
Ellis said this is the first time he has seen a law that makes it a felony to provide a link to a Web site whose content is controlled by someone else. In addition, he said the law is far-reaching and vague.
'Mental distress is not a criminal concept,' Ellis said. 'If you do or say something [electronically] that causes mental distress and that's a felony, my only response is, give me a break; this is America.'
While the Ohio law is perhaps one of the most severe laws regarding Internet speech, other states and school districts have also been adopting potentially overbroad regulations regarding off-campus bullying and speech in the form of zero-tolerance policies.
In school districts across the nation, zero-tolerance policies are being used to discipline students for both major and minor offenses with equally severe punishments. In some cases, students are being punished not for committing an offense, but for writing about one.
Rachel Boim, a freshman honors student at Roswell High School in Georgia, was suspended and later expelled this fall for writing a fictional story in her personal journal about a student who dreams of killing an unnamed teacher.
Boim was punished under the district's policy, which makes no exceptions for conduct that threatens the school security.
'In an era dominated by discussion of educational accountability and the need for schools to use only evidence-based practices, the continued support for zero-tolerance is surprising,' said Russell Skiba, an associate professor in the department of counseling and educational psychology at Indiana University. 'There is no data that shows it in any way contributes to safe schools or student behavior.'
Some experts suggest that schools should only adopt policies regarding off-campus bullying that focus on prevention and not punishment.
Willard, who is also the director of the Center for Safe and Responsible Internet Use, said schools should approach problems caused by off-campus speech from an educational perspective rather than an administrative perspective.
Willard said she does not support school districts adopting policies that call for the punishment of off-campus bullying because the policies are unconstitutional and ineffective.
'Traditional disciplinary responses only teach kids that if an authority is present, they had better behave. There are too many places online where an authority is not present,' Willard said. 'This issue must be addressed instructionally and through sensitivity awareness activities with both the students and their parents.'
Willard said that educators should start addressing bullying from kindergarten. Research shows that schools that effectively deal with harmful speech have fewer incidents of on-campus bullying, which would likely lead to fewer incidents of online bullying, she said.
Willard said administrators should assist the victims with information on practical and legal options instead of punishing a student.
In addition, online speech is often used as a vehicle for the powerless, Willard said. She said school officials should be mindful that the perpetrator of harmful off-campus, online speech may, in fact, be the victim of on-campus bullying.
As more students gain access to the Internet, it is unlikely that the trend in using the Internet as an outlet for violent and disrespectful speech will subside anytime soon, Willard said.
At one time, it was important that just journalists understood the basic legal standards regarding publications, Willard said. But with the Internet, everyone is capable of publishing content.
So as schools continue to adopt policies regarding off-campus speech, it becomes important for all students to educate themselves on their First Amendment freedoms, Willard said.
'It is exceptionally important for all student to have a good understanding of the legal principals that govern [online] publications,' Willard said.
reports, Winter 2003-04