Law Office Management
Oct. 2, 2010
Trash Talk on Trial
Cyberbullying highlights clashes between school discipline and students' free speech rights.
Two years ago, just before school let out for summer, a Beverly Hills eighth-grader posted a video on YouTube in which she and her friends called a fellow student a "slut," "spoiled," and the "ugliest piece of [expletive] I have ever seen in my whole life." The video got 90 hits online that night, and the next day the targeted student complained to school authorities. The young videographer who posted the YouTube clip was suspended for so-called cyberbullying, but she claimed that being punished for her online diatribe violated her First Amendment rights, and she took the school district to federal court. Last fall, an opinion was handed down in the case, making it the most recent decision in California to address cyberbullying, a phenomenon that has created legal uncertainty at the intersection of student speech, school discipline, and emerging technologies. In its decision, the court sided with the plaintiff, holding that the school had overreached by punishing her (J.C. v. Beverly Hills Unified School District, 2010 WL 1914215 (C.D. Cal.)). Allowing the school to suspend a student "simply because another student takes offense to her speech" runs afoul of decades of settled case law, the opinion states. The court relied heavily on the oft-cited Tinker v. Des Moines Indep. Comty. School Dist. (393 U.S. 503 (1969)), the carefully delineated U.S. Supreme Court decision that permits educators to regulate only student speech that could cause a "material and substantial disruption" to a school. But times have changed since Tinker, which involved students who wore armbands to class to protest the Vietnam War. "There are definitely gray areas as to how far a school district's arms will reach with respect to being able to discipline students," said Adam Fiss, a shareholder in Littler Mendelson's San Jose office who works with California school districts. "As students continue to use social networking sites, cyberbullying - and whether a district can discipline students for off-campus conduct - will continue to be an issue." Since the Beverly Hills case, other cyberbullying decisions around the country have followed. A Pennsylvania student, for instance, created an unflattering MySpace page about the school principal, and then allegedly used a school computer to show the site to his classmates (Layshock v. Hermitage School Dist., 593 F.3d 249, 258 (3d Cir. 2010)). After the incident, the school suspended the student and limited computer use on campus. Eventually, the Third Circuit found that the school had improperly limited student speech. A contradictory ruling by a lower court led the Third Circuit to grant a rehearing in Layshock and another cyberbullying case, J.S. v. Blue Mountain School Dist. (593 F.3d 286 (3rd Cir. 2010)). Both matters were reargued before a 14-judge en banc panel in June, and a decision is pending. In the meantime, the legal waters remain murky. "It is not that the law has failed to catch up with the public view" of cyberbullying, says UCLA law school professor Eugene Volokh. "I think one issue of many is that the public doesn't have a clear or suitably narrow definition, and neither do legislators." Meanwhile, this ambiguity doesn't make the job of school officials any easier. "Schools cannot, for the sake of safety, take the position, 'this [activity] is off-campus and [therefore] they cannot do anything,'" says Nancy Willard, executive director of the Center for Safe and Responsible Internet Use. "What I am told by principals is that they are frequently in a damned-if-you-do, damned-if-you-don't position when they are trying to address these situations."
Kari Santos
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