How Should Schools Regulate Cyberbullying?

After months of relentless bullying on social media and in person by her classmates, Phoebe Prince, a 15-year old high school freshman, took her own life.

In response to the stories of Phoebe and the many others who have killed themselves after being cyberbullied, states have begun to regulate cyberbullying by allowing schools to intervene when their students are victims of cyberbullying. Courts, however, are striking down many of these proposed laws, finding that they violate the First Amendment. To survive judicial review and protect their vulnerable young people, states must create laws regulating cyberbullying that balance the safety of their students with their students’ rights to free speech.

In a recent paper, Philip Lee, a professor at the University of the District of Columbia David A. Clarke School of Law, offers an approach that he believes will allow schools to intervene when a student causes serious harm to another, more vulnerable student through off-campus cyberbullying without infringing on or limiting students’ rights to free speech.

Lee defines bullying to have three components: intent to harm, repetition, and an imbalance in power between the bully and the victim. States must define the term “cyberbullying” in a way that is not too broad or too vague so as to prevent the restriction of student speech that does not rise to the level of cyberbullying, Lee says.

In addition, states should include and clearly define an intent requirement in the definition of cyberbullying, Lee argues, to limit schools from regulating too much speech. Citing Maryland’s requirement of an “intent to harass, alarm or annoy,” Lee encourages states to create objective standards, rather than vague definitions, which can be applied too broadly.

States should also require a repetition component to establish cyberbullying, asserts Lee. He mentions that Massachusetts, Florida and South Dakota all include repetition as a requirement, but, in Oregon and California, even a single act can constitute cyberbullying. Lee explains that single-incident “cyberattacks” are significantly less harmful to students, but are extremely common, and regulating these cyberattacks would give schools too much authority over their students’ speech.

Moreover, although physical bullying power often stems from physical size and strength, Lee contends that these attributes are not necessarily relevant to the bullying that occurs via the Internet. Lee explains that cyberbullies’ power over their victims often comes from possessing and sharing embarrassing information or photos of their victim, or from hacking their victims’ social media accounts. Cyberbullies’ use of information, rather than muscle, as a source of power poses a unique challenge in defining “an imbalance in power between the bully and victim”—Lee’s third component of cyberbullying.

Lee says that Texas has appropriately addressed this issue by defining bullying as conduct that “exploits an imbalance of power between the student perpetrator and student victim.” Texas’ language, according to Lee, would capture sharing embarrassing photos or hacking a social media account. Lee urges states to include this component to distinguish between cyberbullying and normal conflict or teasing between students.

Furthermore, since teachers have more authority than students, and therefore more power according to Lee’s model, Lee explains that schools should not regulate student speech directed toward teachers online. Lee contends that this limit is important because attacking a teacher—which he refers to as “cyberharassment”—causes much less harm and should not be subject to the same off-campus regulation.

Lee argues that drawing these distinctions between harassment and bullying are important. Cyberbullying causes a special type of harm, which is why he believes schools should have the ability to protect their most vulnerable from “intended and repeated attacks that originate off campus,” while still respecting students’ free speech rights.

The next important step beyond defining cyberbullying as a term, Lee says, is that states must define the school’s reach in regulating the phenomenon.

Different states have taken strong stances on both sides of this issue, Lee says. Massachusetts law, for instance, makes no distinction between on- and off-campus bullying if the bullying creates a hostile environment at school for the victim or disrupts the educational process. Meanwhile, Texas law limits a school’s reach to expression or conduct that happens “on school property, at a school sponsored or related activity, or in a vehicle operated by the district.” As Lee explains, Texas schools are thus prevented from protecting their students when cyberbullying takes place at home.

In defining the school’s reach, courts must consider two questions when deciding whether a school can regulate certain speech, Lee argues. First, is a student’s conduct likely to reach the school through computers, smartphones or other electronic devices? Second, would regulating that speech maintain a safer learning environment and help the student body’s wellbeing?

Lee believes that if a student’s online cyberbullying is likely to reach the school and the school can show that preventing this speech protects a student’s wellbeing, the school should be able to regulate the speech.

Lee’s proposed test draws a more appropriate line, he argues, than the one created by the U.S. Supreme Court in Tinker v. Des Moines Independent Community School District. The Tinker rule allows schools to regulate speech if the speech “would substantially interfere with the work of the school.” Thus, schools can regulate speech that makes teaching and learning difficult, or speech which violates the rights of other students. According to Lee, the Tinker rule has been made even more specific by two federal trial courts which held that schools could not regulate speech that only affected one student, which, accordingly, would not generally allow schools to regulate cyberbullying.

To improve these rules, Lee urges courts to define “substantial disruption” as conduct that disrupts a victim’s educational experience, rather than disrupting the general school environment. Lee explains that a definition focused on the victim would allow the substantial disruption factor to account for cyberbullying, since bullying is often individualized.

Ultimately, Lee contends that, if his approach is made law, schools could “effectively balance the competing interests of protecting cyberbullying victims and protecting students’ free speech rights.”

If you or someone you know has suicidal thoughts, please call the National Suicide Prevention Lifeline at (800) 273-8255.