Cyberbullying and schools: where does a principal's authority end?

The state of Washington is considering a cyberbullying bill aimed at taking some of the sting out of this electronic scourge. They aren't the first state to consider such legislation—we mentioned several other states looking into similar measures a few days back—but they are one of the most recent, and the Washington bill highlights the difficulties that legislators face as they try to restrict certain kinds of speech.

Cyberbullying has picked up steam in recent years, owing to the rise of sites like MySpace that make it simple to construct anonymous web pages that can be used to harrass others. But the definition of cyberbullying is actually broad enough to encompass all forms of electronic harassment, including text messaging, instant messaging, and e-mail.

According to national law enforcement organization Fight Crime: Invest in Kids, one out of every three teenagers are victims of cyberbullying. Fight Crime's cyberbullying initiative is spearheaded by the Utah Attorney General Mark Shurtleff, and he introduced a 15-year old student at last year's press conference to explain that this is about more than hearing a few unkind words. Kylie Kenney explained how some kids at her school had created a web site that called for her death, then harassed her for several years with phone calls and e-mails, even after she transferred schools.

This is obviously an extreme example of what can happen, but it's a reminder of why legislation is even possible. Although most speech is protected by the First Amendment, knee-jerk "You can't regulate free speech!" reactions aren't helpful in this case, as free speech protections are a complex field of law. Threats, for instance, aren't protected. The First Amendment Center, which looked into the issue, says that "true threats are not protected by the First Amendment. Students should be aware that threatening comments in general—on the Internet or not—could subject them not only to school discipline but also to criminal punishment."

On the other hand, most student speech is protected, even if insulting or hurtful. Courts have gradually increased the protection for student speech over the last 100 years, moving far away from the 1908 decision by the Wisconsin Supreme Court that allowed a school to suspend two students who made fun of their principal in a poem.

The issue is further complicated by questions about whether cyberullying takes place on school property or not. School officials do not generally have control over what students do outside of school, but, as the First Amendment Center reports, even this issue is complicated. Students who threaten or harass other students using school equipment or during school time can most likely be sanctioned, but even students who do such things from home face the possibility of school discipline under the "substantial disruption of the educational environment" ruling from the Tinker v. Des Moines Independent Community School District case from 1969.

The bottom line is that this is a tough issue to handle, because legal guidance is scarce. The Supreme Court has not yet considered a case of student Internet speech, even though Internet speech has created numerous questions about anonymity, liability, and slander that need to be answered.

The Washington bill

So how is Washington handling the issue? State senator Jeanne Kohl-Welles has introduced SB.5288, a bill that would require school districts to create cyberbullying prevention policies. Her legislation does not lay down many rules, instead directing each school district to amend its current anti-bullying policy (all Washington school districts have had such a policy in place since 2002). Cyberbullying would not become a crime, but simply another issue for local school districts to handle.

During debate on the bill before the Early Learning & K-12 Education Committee, some speakers expressed unease about how school districts might attempt to regulate "off-campus" speech, and the bill was clarified to say that it would only apply to activities that occur on school grounds during the school day.

Such a bill, if passed and implemented, seems likely to spark a backlash at some point in the future when it is applied by an overzealous principal. Disappointment, rejection, and even cruelty are a part of life, and school administrators will need to tread carefully when deciding what speech to allow and what to censure. As one 16-year old student said to a Washington TV station, "They text message mean things saying I hate you, don't talk to me. Really brutal things." Cyberbullying, or just an unfortunate part of life?