Kelley, Lavi, & Singh

Prof. Randall

LA349 Fall 2016

Law and Policy Research Project

Cyber-Bullying and School Liability:

The History and Application of Legislation and Precedent

The renowned legal scholar and educator, Nathan Roscoe Pound, once said, “Law is

experience developed by reason and applied continually to further experience.” Pound’s

statement runs parallel to the overarching theme of this class, which aims to instill in us that all

law is Internet law;1 this quote defines law as a constantly evolving body of rules and regulations

that changes as the world it applies to changes too. If this holds true, it would require that laws

and regulations that had been created with no germaneness to the Internet are now totally akin to

it and used in its application thereof. It is our belief that this is indeed true; that there are laws

and precedents that were created in the last century, or before, that can be applied to our use of

the Internet, regardless of it not being their intent.

In exploring this idea, we found that an ever-pressing issue that has rapidly evolved in

recent years due to the increased usage of the Internet is bullying. It is evident that bullying had

existed in the decades, and centuries, before the creation of the Internet, but a new phenomenon

is the prevalence of cyber-bullying over virtual mediums such as Facebook, Twitter, YikYak,

and others. In researching the topic, it became evident that a huge stakeholder in bullying and

student-harassment legislation was public schools. It seems that the general consensus of the

courts, as will be explained in further detail below, is that public schools should be required to

prevent, mediate, remedy, and stop inter-student bullying and harassment, and should ultimately

be held liable for failure to comply.

In short, students’ rights and school liability legislation and precedent has made

enormous strides since the landmark case of Tinker v. Des Moines Independent Community

School District that established the Tinker Test to realize the rights of free speech for students in

public schools. It is our belief that legislation and precedent will continue to extend the scope of

liability for these schools, specifically with regards to cyber-bullying.

It essentially all began in December of 1965, in Des Moines, Iowa, when Christopher

Eckhardt, John Tinker, and three of his siblings planned to wear black armbands to school in

protest of the Vietnam War and in support of Robert Kennedy’s Christmas Truce. In response to

this, school administrators implemented a policy requiring that students wearing an armband

remove it if asked, which led to the suspension of Eckhardt and two of the Tinker children until

the end of their protest weeks later. This was the start of what would become the U.S. Supreme

Court case, Tinker v. Des Moines Independent Community School District, a decision that

defined the constitutional rights, particularly free-speech, of students in public schools.

The issue concerned whether or not the policy, and others similar to it, which limited a

student’s ability to publicly display his or her own opinion in a school, was in violation of that

student’s First Amendment right to free-speech. More specifically, the issue concerned a school

administrator’s ability to limit a student’s First Amendment rights if he or she felt that the

expression would “materially and substantially interfere[s] with the requirements of appropriate

discipline in the operation of the school,”2 and what exactly constituted an ‘interference.’

In a 7-2 decision, the Court held that:

1 Randall, David. Internet Law. Fall 2016 ed. 2016. 2 Burnside v. Byars, 363 F. 2d 744, 749 (1966)

“School officials do not possess absolute authority over their students. Students in

school, as well as out of school, are ‘persons’ under the Constitution… In the

absence of a specific showing of constitutionally valid reasons to regulate their

speech, students are entitled to freedom of expression of their views.”

-and-

“Only a few of the… students… wore the black armbands… There is no

indication that the work of the school or any class was disrupted.”

The weight that is placed on this case relates to the establishment of what many call the

Tinker Test, or the Substantial Disruption Test. Specifically, the test asks the question of whether

or not the speech or expression of the student “materially and substantially interfere[s] with the

requirements of appropriate discipline in the operation of the school” and it is still used today to

determine whether or not a school’s policy infringes on a student’s First Amendment right.

There is, however, some debate as to whether or not the Tinker Test has become outdated

or too often misappropriated.3 Critics argue that the vagueness of the Tinker Test has led to

confusion among Circuit Courts:

“It is not entirely clear whether Tinker’s rule applies to all student speech that is

not sponsored by schools [or lewd and indecent], or whether it applies only to

political speech or to political viewpoint-based discrimination.”4

Some Circuit Courts have adopted the O’Brien Test, established in United States v.

O’Brien, which distinguishes between content-based and content-neutral regulations unlike the

Tinker Test, in the cases concerning content-neutral policies, which are described as “justified

without reference to the content of the regulated speech.”5

Ultimately, whether courts choose to apply the Tinker Test or the O’Brien Test, both

seem to have subsequently defined a person’s right to free-speech within the confines of a

school, whether it be a teacher, student, administrator, or otherwise. Even as recently as 2007, in

Morse v. Frederick, the Tinker Test has been applied to determine the constitutionality of a

school policy regarding a student’s speech and expression. This, along with the ongoing debates

surrounding cyber-bullying and free-speech, it can be assumed that the Tinker Test, or even the

O’Brien Test, is a potential application for determining a school’s role in limiting online speech

and the constitutionality of current school policies concerning cyber-bullying.

Moving forward, another case that might not necessarily concern cyber-bullying on the

surface, but that can potentially be applied in the future, is Zeno v. Pine Plains Central School

District. This case is known specifically for its establishment of the precedent that schools could

potentially be held liable and forced to pay monetary damages to students that are harassed at

schools, even in cases where the administration takes steps in response to it.

3 Geoffrey A. Starks, Tinker’s Tenure in the School Setting: The Case for Applying O’Brien to Content-Neutral

Regulations, 120 Yale L. J. Online 65 (2010) 4 Guiles v. Marineau, 461 F. 3d 320 (2nd Circ. 2006) 5 United States v. O’Brien, 391 U.S. 367 (1968)

The catalyst for this suit was the harassment and bullying endured by Anthony Zeno

during his time learning at Stissing Mountain High School. Particularly being taunted with

threats and racial slurs, Zeno was at the mercy of his fellow students and school administrators.

In fact, even when the incident was first reported to the school, the principal, John Howe,

responded to Zeno’s mother by saying that “this is a small town and you don’t want to start

burning your bridges.”6 There was no response to any report of these incidents to Zeno or his

family on the district level, and only in some cases were individual students warned or suspended

(though the bullying continued).

Although the school began to institute programs to combat bullying and harassment in

the years that Zeno was subjected to the bullying, the programs either failed to include any real

material that can be used to combat the racial discrimination, or they simply were poorly

implemented and failed entirely. As a result of the continued harassment, Zeno struggled

regularly with his coursework and had to accept an IEP diploma since he did not complete

enough credits for a full diploma; an IEP diploma allowed for Zeno to take some community

college courses but makes the holder ineligible for the military, trade schools, or more

comprehensive post-secondary education.7

Finally, in 2007, Zeno filed suit against the school alleging discrimination based on his

race; he specifically argued that the school was “deliberately indifferent to his harassment.” He

claimed that he was denied educational benefits as a result of the racial harassment. Following an

appeal, the Second Circuit Court of Appeals affirmed the decision to award Zeno a monetary

award in the sum of $1 million. They found that the school was indifferent to the harassment that

was taking place, regardless that some students were punished:

“[Victims] do not have a right to specific remedial measures… the sufficiency of

a response, however must be considered… Even if the District suspended every

student who was identified as harassing Anthony.”

The immediate aftermath of this case is two pronged: (1) That educators and

administrators, once learning of some kind of harassment taking place, have an obligation to do

anything in their power to ensure that it stops; and, (2) That implementing a particular response

without concern for its efficacy is not enough to protect a school from a claim of deliberate

indifference. To elaborate, the first measure is meant to ensure that such harassment actually

stops; that simply disciplining the student who did the bullying, without follow-up to ensure it

actually stops, is not enough. The second measure requires that responses to bullying need to be

targeted (focused on the nature of the harassment), comprehensive (hold a long-term benefit),

and effective (that the bullying has to stop, or at least be reduced significantly in frequency and

seriousness).

The unfortunate result for school administrators, however, due to the decisions in Tinker

v. Des Moines Independent Community School District and Zeno v. Pine Plains Central School

6 Zeno v. Pine Plains Central School District, 702 F. 3d 655 (2nd Circ. 2012) 7 Patchin, Justin W. “Anthony Zeno v. Pine Plains Central School District.” Cyberbullying Research Center.

December 20, 2012.

District, is that they now have to be able to recognize when they can, and when they cannot,

control or discipline free-speech and student behavior. Even more straining to school

administrators are the relatively unclear boundaries regarding students’ speech and behavior that

occurs off campus or online. While this is typically the case, courts have upheld disciplinary

actions taken by schools against online behavior in cases like J.S. v. Bethlehem Area School

District and Kowalski v. Berkeley County Schools, which demonstrate the extent to which

schools are expected to monitor cyber-bullying.

In 1998, Justin Swindler, an eighth-grade student at Nitschmann Middle School, created a

website that included pictures and animations of one of his teachers. The images specifically

depicted the teacher being struck by a bullet and morphing into Adolf Hitler; the website also

posted advertisements requesting financial assistance to hire a hitman. After a two-day hearing,

the school’s board decided to permanently expel Swindler since the website contained

threatening and harassing comments directly related to a teacher, to which Swindler responded

with a lawsuit claiming that his website was protected under the First Amendment and that the

posted materials were mere exaggerations.

The result was judgment in favor of the schools’ board because the website was found to

be disruptive and threatening. The Court held that the website was not protected under the First

Amendment because “the federal Constitution does not compel teachers, parents, and elected

school officials to surrender control of the American public school system to public school

students”8 to which Swindler appealed to the Supreme Court of Pennsylvania.

Although the website was created off campus with sufficient nexus unrelated to the

school, the threats were found to have a demoralizing impact on the school’s atmosphere, and

that there was precedent that protected the school’s actions: (1) Bethel School District v. Fraser

with regards to lewd and offensive language; and, (2) Tinker v. Des Moines Independent

Community School District and the standard of substantial disruption:

“[T]he website created disorder and significantly and adversely impacted the

delivery of instruction… to a magnitude that satisfies the requirements of Tinker.”

The Court concluded that schools do have the authority to regulate and punish student speech,

regardless of whether or not it had taken place on or off campus, when the speech results in clear

disruption of school environment.

The First Amendment protects free-speech even when society perceives it as disagreeable

or offensive, however, free-speech within the school system is held to a different standard.

Although this has already been demonstrated, it can be observed more wholly in Kowalski v.

Berkeley County Schools. This case involved Kara Kowalski, a student at Musselman High

School, and her MySpace page, S. A. S. H. or Students Against Slut Herpes, which was largely

dedicated to ridiculing a fellow student and her suspension thereafter. Kowalski invited about a

hundred people to view the website, of which 24 joined and participated in uploading and

generating derogatory pictures and comments meant to criticize a student’s STD. This led to a

8 J.S. v. Bethlehem Area School District, 757 A. 2d 412 (Pa. 2002)

full investigation by the school, which found that the website was in direct violation of its policy

concerning harassment, bullying and intimidation, eventually leading to her five-day suspension

and Kowalski’s suit against the district.

Following an appeal, the court ruled in favor of the district because, although the

behavior was conducted in a private setting, substantially and directly disrupted the environment

at the school, a precedent created in Burnside v. Byars. Again, this precedent, along with others,

allows for schools to regulate speech that interferes with work and discipline, collides with the

rights of others, is vulgar and lewd, or encourages the use of illegal drugs. The court continued,

asserting that the Constitution protects free speech but “because of the ‘special characteristics’ of

the school environment, school officials have ‘some latitude in regulating student speech to

further educational objectives.’”9

The page served only to attack Kowalski’s classmate, which directly interfered with the

student’s right to a safe educational environment. The First Amendment did not protect Kowalski

from reprimand because her webpage “is reasonably expected to reach beyond the private venue

and affect the school environment.” She explicitly invited classmates to participate in the

bullying, causing her actions to reach beyond the domain of her own private estate and thusly

became a school interest. This precedent, however, has led to some schools overstepping with

this authority and applying unwarranted and unproductive policies. As school districts search for

the scope to which their authority extends, Emmett v. Kent School District No. 415 illustrates a

potential boundary.

In 2000, Nick Emmett, an eighteen-year-old senior at Kentlake High School, created a

webpage on the Internet from his home titled, “Unofficial Kentlake High Home Page.” Inspired

by a popular creative-writing assignment at the school, Emmett designed the webpage to include

mock “obituaries” that were written by him and his friends, as well as other visitors, about

themselves and others at the school. The site also let visitors vote on which student would “die”

next or whose “obituary” would be posted. Emmett also included a disclaimer, which notified

visitors that the web site was for entertainment purposes only and was not in any way associated

with the school.

Three days after creating the website, a local news station aired a story on the evening

news, which described Emmett’s website as a hit-list, even though the term never appears on the

website; Emmett deleted the website that same night in response to the story. Upon arrival to

school the next day, Emmett was informed that he was placed on emergency expulsion on the

merit of intimidation, harassment, disruption to the educational process, and for violation of Kent

School District copyright. The emergency expulsion was later changed to a five-day short term

suspension, which collided with a vacation week, causing Emmett to be prohibited from

participating in school sports, which included basketball practice and his team’s playoff game.

9 Kowalski v. Berkeley County Schools, 652 F.3d 565 (4th Circ. 2011)

The United States District Court of Washington at Seattle heard the case and ruled for a

temporary restraining order in favor of Emmett, preventing the Kent School District from

suspending Emmett. The District Court examines the present case through the precedents set

forth in Tinker v. Des Moines Independent Community School District, later tailored in Bethel

School District v. Fraser and Hazelwood School District v. Kuhlmeier.

In Tinker, the Supreme Court ruled that students do not abandon their First Amendment

right to free speech at the schoolhouse gate and the free expression can only be banned if the

conduct “would materially and substantially interfere with the requirements of appropriate

discipline in the operation of the school.”10 The District Court furthered its discussion of Tinker

by referencing Fraser and Kuhlmeier, which helped to define the limits of Tinker. In Fraser, the

Court based its decision on past precedent that the government has an interest in protecting

children from sexually explicit materials, and that some, specific, types of speech are unprotected

by the First Amendment.11 In Kuhlmeier, the Court found that school administrators were within

their reach of banning students writing from school-sponsored newspapers because the

newspaper was conducted in a nonpublic forum in which content restrictions were allowed. 12

The Ninth Circuit Court of Appeals also held that non-school-sponsored material

distributed by students cannot be banned “on the basis of undifferentiated fears of possible

disturbances or embarrassment to school officials.”13 When the Court applied these precedents to

Emmett, it found that since Emmett’s speech did not take place at a school assembly, in Fraser’s

case, or that it was published in a school newspaper, like in Kuhlmeier, that Emmett was well

within his rights. Although the District Court acknowledged that the website was aimed at

Kentlake High School specifically, Emmett’s speech was outside of the scope of school

supervision, which led the Court to rule in favor of Emmett, preventing the school from

imposing the short-term suspension.14 This ruling, which concerned a situation that occurred off

campus, combined with J.S. v. Blue Mountain School District, which raises a similar issue, again

illustrates the struggle that public schools face in finding the equilibrium between authority and

liability.

In March 2007, the Blue Mountain School District suspended two students for created a

fake MySpace profile of the principal of the Blue Mountain Middle School, James McGonigle.

Although the profile did not explicitly identify McGonigle by name, it still used his picture from

the district’s website and identified him as a principal. The profile made it seem that McGonigle

was a sex-obsessed pedophile and was littered with profane and vulgar comments about him and

his family.

The profile came to the attention of the school some days later when a student brought a

printed copy to McGonigle’s attention, since the school’s web filtering software blocked

MySpace and subsequently prevented its access on the school’s campus. McGonigle soon

10 Tinker v. Des Moines Independent Community School District, 393 U.S.__503 (1969) 11 Bethel School District v. Fraser, 478 U.S.__675 (1968) 12 Hazelwood School District et al. v. Kuhlmeier et al., 484 U.S.__260 (1988) 13 Burch v. Barker, 861 F.2d 1149 (9th Circ. 1988) 14 Emmett v. Kent School District No. 415, 92 F. Supp. 2d 1088 (W.D. Wash. 2000)

reviewed the page and identified the two students responsible for it and ultimately suspended

them on the grounds that they had violated the school’s discipline code, which prohibits students

from making false statements about school faculty, and the computer use policy, which prohibits

students from using copyrighted material without permission (this was in reference to their use of

the district’s photo of McGonigle).

This soon led to a suit filed against the school, alleging that the school could not punish

students for out-of-school speech that did not cause a disruption to classes or school

administration. This, however, led to a quick summary judgment for the school district on the

basis that a school could discipline students for off campus speech that transposed its effects to

campus, reasoning that the effect did not need to amount to a ‘substantial disruption,’ to which

J.S. appealed. The appellate court then affirmed the lower court’s ruling holding that “Tinker

applies to student speech, whether on or off campus, that causes or threatens to cause a

substantial disruption… or material interference with school… or invades the rights of other

members of the school community.”15

Then, another petition by J.S. led to a reversal of the District Court’s original summary

judgment and remanded the case back to the District Court, which again ruled in favor of the

school. Using precedent established in Bethel School District v. Fraser, the court held that:

“As vulgar, lewd, and potentially illegal speech that had an effect on campus, we

find that the school did not violate the plaintiff’s rights in punishing her for it

even though it arguably did not cause a substantial disruption of the school.”

In addition to the plethora of legal precedent established on the topic that has been

explored in this paper, many pieces of legislation have also been passed, usually in response to a

publicized incident in which a student was harassed or bullied by his or her peers. Two such

examples are House Bill 116, also known as the Jessica Logan Act, and the Tyler Clementi

Higher Education Anti-Harassment Act of 2015, and its complement case, New Jersey v. Dharun

Ravi.

Signed into law in 2013 by then-Ohio Governor, John Kasich, House Bill 116 was

created in response to Jessica Logan’s suicide five years earlier, when she was only 18 years

old.16 Logan had sent a nude picture of herself to her high school boyfriend; after they broke up,

he sent it to a number of girls at their school who began to harass Logan by calling her names

and throwing things at her. Regarding the incident, Christine Bhat, an assistant professor and

cyber-bullying expert at Ohio University, said:

“In the past there’s often been resistance in dealing with the issue, thinking that if

cyber-bullying is taking place in the home then it’s not really the school’s

problem. But I think in recent years that thinking has changed as schools have

realized that it doesn’t matter where it’s taking place; if their students are

15 J.S. v. Blue Mountain School District, No. 08-4138 (3rd Circ. 2011) 16 Celizik, Mike. “Her Teen Committed Suicide Over ‘Sexting’” TODAY. March 6, 2009.

involved, then it becomes difficult for students to learn when there are these

undercurrents going on.”17

The purpose of House Bill 116 was to expand the scope of Ohio’s then-current anti-

bullying law to prohibit harassment by electronic means like computers, cell phones, and other

devices.18 The act instituted a number of new provisions for schools to follow regarding bullying

and harassment that could potentially take place, specifically elaborating on a school’s role with

respect to cyber-bullying. Regarding student misconduct outside of a school, the act states:

“[The law] authorizes a school district… to include in its student code of conduct

discipline for misconduct ‘that occurs off of property owned or controlled by the

district [or school] but that is connected to activities or incidents that have

occurred on property owned or controlled by that district [or school]’ and for

misconduct ‘regardless of where it occurs [that is] directed at a district [or school]

official or employee, or the property of such official or employee.”19

The real impact of House Bill 116 was that schools (in Ohio) had to start providing instruction

on the school’s anti-bullying policy and release written statements on the policy and its

consequences; essentially, it was meant to remind the students in these schools that these policies

are in place and their consequences for violating them.

Another piece of state legislature that concerns itself with cyber-bullying is New Jersey’s

Tyler Clementi Higher Education Anti-Harassment Act of 2015. This is a reintroduction of the

same act that was presented in 2014 but was never enacted; the act has most recently been

assigned to a congressional committee in March, 2015, but has not had any more recent

progress.20 The goal of the Tyler Clementi Higher Education Anti-Harassment Act of 2015 was

to amend Title IV (Student Assistance) of the Higher Education Act of 1965, which would

require any institution of higher education (not including foreign schools) to include in its annual

security report a statement of policy regarding harassment that includes: (1) A prohibition of

harassment of students by other students, faculty, and staff; (2) A description of its programs to

prevent harassment; (3) A description of the procedures that students should follow if harassment

occurs; and, (4) a description of the procedures it will follow once an incident of harassment has

been reported.

The Tyler Clementi Higher Education Anti-Harassment Act of 2015 was created in

response to Tyler Clementi’s suicide in 2010. At the time, Clementi was a student studying at

Rutgers University; his roommate, Dharun Ravi, had used a camera in their shared room to

stream Clementi’s intimate encounter live on the Internet.21 Ravi had, in fact, publicized his

action on his Twitter page, actually inviting others to watch the broadcast:

17 “Jessica Logan – The Rest of the Story.” NoBullying. December 22, 2015. 18 “The Impact of House Bill 116 on your School District.” Ohio School Plan. 2011. 19 Sub. H. B. 116, Gen. Assemb. 129. (Ohio Legis. 2012) 20 S. 773 – 114th Congress: Tyler Clementi Higher Education Anti-Harassment Act of 2015. 2015. 21 Foderaro, Lisa W. “Private Moment Made Public, Then Fatal Jump.” The New York Times, September 30, 2010.

“Anyone with iChat, I dare you to video chat me between the hours of 9:30 and

12. Yes, it’s happening again.”

Following Clementi’s suicide, Ravi was charged on 15 counts of various crimes

including invasion of privacy, attempted invasion of privacy, and bias-intimidation.22 Though he

was convicted in 2012, the conviction was recently reversed by an appeals court, which

concluded that the evidence that prosecutors presented to prove the charges of bias-intimidation

had “tainted the jury’s verdict on the remaining charges.” This was especially warranted since

just one-year earlier, the New Jersey Supreme Court had ruled that the bias-intimidation law was

unconstitutional.23

In sum, it seems that there is a strong push and pull between free-speech and harassment,

especially within the school setting. Prior to the Internet, cases regarding free-speech and schools

were more easily categorized, since the harassment could only occur on or off the school’s

campus; however, with the introduction of the Internet, cyber-bullying takes on a new form that

allows for students to harass each other without ever introducing the atrocious acts to the

school’s environment itself. Though courts have found schools to be responsible for limiting

behavior of students when it directly affects the day-to-day practices within the school, and to be

liable for the failure to stop harassing behaviors that occur between students on and off a school

campus, the Internet has created a new realm of uncertainty with regards to the roles and

responsibilities of a school and cyber-bullying.

It’s been discussed, and thoroughly explained in this paper, that student free-speech is

limited; that students cannot freely express ideas that are lewd, vulgar, or materially disrupt the

atmosphere and environment within a school. Similarly, it’s been established that the strongest

authority, and as such most liable party, to combat inter-student harassment is the school

administration itself. The question that remains, however, is whether or not a school can be held

liable for harassing behavior that occurs between students online and off campus, and what

limitations there are to the extent of the school’s liability.

The growing popularity of cyber-bullying illustrates a very pressing concern that parents,

students, school administrators, and the like may have. A recent study that observed more than

16,000 Boston-area high school students suggests that cyber-bullying really is ‘on the rise.’24

The study found that the percentage of students who said they experience cyber-bullying rose

from 14. 6% to 21. 2% in a six-year period ending in 2012. Even more interesting, or rather

concerning, is that the percentage of girls reporting such incidents rose 10% over the same

period, while the same statistic for boys only measures at 3%. Shari Kessel Schneider, a project

director at Education Development Center (the group that conducted the study) stated that the

“instantaneous nature of cellphones probably has contributed to the rise in cyber-bullying…

22 Miller, Carlin “Tyler Clementi Roommate Dharun Ravi Indicted on 15 New Counts.” CBS News, April 20, 2011. 23 McGeehan, Patrick, “Conviction Thrown Out for Ex-Rutgers Student in Tyler Clementi Case.” The New York

Times, September 9, 2016. 24 Disare, Monica “Cyberbullying on Rise, Particularly for Teen Girls, Study Says.” The Boston Globe, August 3,

2015.

[that] anonymous posts, or messages that can disappear after they are sent, are also prime

vehicles for dissemination.”

There is a general consensus that cyber-bullying is so much more prevalent than its pre-

Internet counterpart due to its anonymity and lack of consequences thereof. In an interview with

NPR regarding the increase in cyber-bullying, and things being done to combat it, Justin Patchin,

an associate professor of criminal justice at the University of Wisconsin – Eau Claire and co-

director of the Cyberbullying Research Center, said:

“I talk with those who engage in cyber-bullying behaviors, and they genuinely

didn’t realize the harm that would come from them posting certain information

online… [that] they don’t really see it as something wrong. They think it’s fun.

They think it’s funny. They don’t think they are going to get caught because they

can [hide] behind the anonymity of the technology.”

-and-

“[The shield of privacy online] definitely does [make bullying escalate]. We’ve

seen a lot of examples where seemingly insignificant actions online… blows up at

school… because of some misperception… when these things are done online, we

have no idea what the intent is and are you making fun of me or you’re just

joking… there are just certain social cues not readily apparent when

communicating online.”

-and-

“If I say something mean to you in real life, I’m going to have to deal with the

consequences of that, and, hopefully, I’ll adjust my behavior accordingly… but

that’s not readily apparent online. And so maybe I didn’t really mean to cause you

harm, but you’re really hurt by it, and I would have no idea.”25

Also, another thing that can be blamed for the increased popularity of cyber-bullying is

the increased popularity of social media, or even the greater variety and quantity of social media

sites and mediums. One of the most recent and infamous stories regarding social media and

cyber-bullying, in high schools especially, was that regarding Yik Yak.26 Yik Yak is a location-

based app that creates an anonymous social chat room, which, according to its co-founder,

Brooks Buffington, at the time of the article, had “a couple hundred thousand users.” Compared

to a ‘virtual bathroom wall, for users to post vitriol and hate,’ the app became a hotbed for cyber-

bullying and anonymous bomb threats that led to school lockdowns. In response to this, Yik Yak

geo-sensed every high school and middle school in the United States, which would let the

developers prevent its usage when a user is within a certain distance from such a location.

Just as Yik Yak has adapted to the ever-changing landscape of social media and the

social concerns of cyber-bullying, individuals can take their own actions to help protect

25 Interviewee Patchin, Justin “The Rise in Cyberbullying.” Interview by Melissa Block. National Public Radio

(NPR), September 30, 2010. 26 Valencia, Nick “Yik Yak Chat App Stirring Up Trouble in High Schools.” CNN, March 10, 2014.

themselves from these same threats. One such example that efficiently and effectively reduces

the effects of cyber bullying is to raise awareness in younger children through school clubs,

events, and campaigns. Through these mediums, children can be taught how to make their

identities private online in order to help secure private information that can potentially be used to

harm or harass them. Another way to reduce the effects of cyber-bullying is to educate people

about different privacy settings they can utilize on their social media accounts to help monitor

who they communicate with and aid in blocking users who intend to cause harm. By taking these

things into account, people will be able to secure their private and personal information much

better and hopefully combat cyber-bullying with greater success.

It should be clear that cyber-bullying, then, is almost ubiquitous and present in almost, if

not every, school. Adolescents are simply too \immature in their online expression and do not

consider the consequences of their actions. In its purest form, free-speech is a right granted to

any person who resides under the jurisdiction of the U.S. Constitution; however, it is easily

corrupted through the use of lewd, vulgar comments and harassing tones and connotations.

While students still hold this right, it is indeed limited; in that, schools have the ability to

regulate their speech under special circumstances. This, however, was not the only role of the

school system that was established by the multitude of cases argued in the Supreme Court and

lower courts; schools are actually responsible for monitoring, preventing, and stopping

harassment between students, at times even that that takes place off campus. It seems to be true,

however, that all law is Internet law, seeing that in this discussion it has been repeatedly shown

that legal precedent regarding bullying that was established prior to the creation of the Internet

can be applied to its current state and the issues surrounding cyber-bullying too.

Work’s Cited

Bethel School District v. Fraser, 478 U.S.__675 (1968)

Burch v. Barker, 861 F.2d 1149 (9th Circ. 1988)

Burnside v. Byars, 363 F. 2d 744, 749 (1966)

Celizik, Mike. “Her Teen Committed Suicide Over ‘Sexting’” TODAY. March 6, 2009.

Disare, Monica “Cyberbullying on Rise, Particularly for Teen Girls, Study Says.” The Boston

Globe, August 3, 2015.

Emmett v. Kent School District No. 415, 92 F. Supp. 2d 1088 (W.D. Wash. 2000)

Foderaro, Lisa W. “Private Moment Made Public, Then Fatal Jump.” The New York Times,

September 30, 2010.

Geoffrey A. Starks, Tinker’s Tenure in the School Setting: The Case for Applying O’Brien to

Content-Neutral Regulations, 120 Yale L. J. Online 65 (2010)

Guiles v. Marineau, 461 F. 3d 320 (2nd Circ. 2006)

Hazelwood School District et al. v. Kuhlmeier et al., 484 U.S.__260 (1988)

“The Impact of House Bill 116 on your School District.” Ohio School Plan. 2011.

Interviewee Patchin, Justin “The Rise in Cyberbullying.” Interview by Melissa Block. National

Public Radio (NPR), September 30, 2010.

J.S. v. Bethlehem Area School District, 757 A. 2d 412 (Pa. 2002)

J.S. v. Blue Mountain School District, No. 08-4138 (3rd Circ. 2011)

“Jessica Logan – The Rest of the Story.” NoBullying. December 22, 2015.

Kowalski v. Berkeley County Schools, 652 F.3d 565 (4th Circ. 2011)

McGeehan, Patrick, “Conviction Thrown Out for Ex-Rutgers Student in Tyler Clementi Case.”

The New York Times, September 9, 2016.

Miller, Carlin “Tyler Clementi Roommate Dharun Ravi Indicted on 15 New Counts.” CBS News,

April 20, 2011.

Patchin, Justin W. “Anthony Zeno v. Pine Plains Central School District.” Cyberbullying

Research Center. December 20, 2012.

Randall, David. Internet Law. Fall 2016 ed. 2016.

S. 773 – 114th Congress: Tyler Clementi Higher Education Anti-Harassment Act of 2015. 2015.

Sub. H. B. 116, Gen. Assemb. 129. (Ohio Legis. 2012)

Tinker v. Des Moines Independent Community School District, 393 U.S.__503 (1969)

United States v. O’Brien, 391 U.S. 367 (1968)

Valencia, Nick “Yik Yak Chat App Stirring Up Trouble in High Schools.” CNN, March 10,

2014.

Zeno v. Pine Plains Central School District, 702 F. 3d 655 (2nd Circ. 2012)