As students head back to school after summer vacation, educators, free-speech advocates and anti-bullying activists are gearing up for implementation of the state’s new “cyberbullying” law that will make on-line statements subject to academic disciplinary proceedings.
The new law puts school officials in the position of having to pass judgement on off-campus speech with little legal precedent to guide them, some expert say. If they clamp down on online comments, they risk First Amendment challenges. If they’re too lenient, they could be deemed responsible if cyberbullying leads to tragedy.
“This is requiring schools to limit and prohibit speech on the grounds that it hurts someone’s feelings,” said Sandy Staub, the legal director of the American Civil Liberties Union’s Connecticut chapter. “We’ll see a student’s speech limited soon enough with school coming back. And when it does, we’ll have to do the other part of our job: litigate.”
“Are we infringing their free speech rights? No, because their speech is impacting another student. But I don’t know if I’m right or wrong. I am sure that debate will continue,” said Cal Heminway, the chairman of Granby’s Board of Education and the immediate past president of the Connecticut Association of Boards of Education.
Legal experts say so far there is no clear precedent for dealing with online student speech.
Amy Corbett Dion and Megan Smith of the law firm of Berchem, Moses & Devlin are advising the boards of education they represent to proceed with caution when disciplining students for what they say online.
“Until there is a ruling from the U.S. Supreme Court, school districts in Connecticut should … exercise caution about a school’s ability to regulate off-campus conduct unless the conduct can reasonably be foreseen to cause substantial disruption,” they wrote in an opinion piece in the Connecticut Law Tribune earlier this month.
Who should police the internet?
It was three days before she would go back to school in Brookfield, and Alexa Berman dreaded facing the bullies harrassing her on line, her parents say. So she went into her room and hanged herself.
“Cyberbullying has reached epidemic proportions and unfortunately our daughter took her life because of it,” her father Alan Berman said during an interview last week, three years after her death.
One out of every three online teens report being a victim of potentially menacing activities online, according to a Pew Internet and American Life national survey of 886 online teens in 2007.
Other tragedies similar to Berman’s also tied to cyberbullying have captured national headlines and have ultimately led to numerous states beefing up their bullying laws to allow or require administrators to punish students for what they say off campus.
The Cyberbullying Research Center says at least seven states have passed cyberbullying laws, including Massachusetts, where the suicide of a girl named Phoebe Prince attracted national attention. Connecticut legislators say they modeled this state’s law after Massachusetts’.
But Staub says Connecticut’s law is “overly broad” and gives educators much more authority than the Massachusetts law, which only allows administrators to punish students for electronic communication that creates a “hostile environment” or “substantially disrupts” school.
The Connecticut law includes the same provisions, but also allows school officials to act if a student’s online speech “causes physical or emotional harm” to another student or “places such student in reasonable fear of harm” even outside of school.
“Let’s stop the wave of creating these cyberbullying laws for a few minutes and think about how we can both protect students and speech rights at the same time,” Staub said.
Even Berman agreed that it’s a difficult call to determine when a student should be punished for off-campus speech.
“Some think schools shouldn’t be putting their nose into this. I agree it’s a very fine line for when they should,” he said. “I think if it’s affecting a student at school then they should be able to get involved.”
Sen. Andrea L. Stillman, D-Waterford and co-chairwoman of the legislature’s Education Committee, said the intent of the law is to create a safe learning environment.
“The bill addressed in-school issues,” she said. “I don’t profess this law is going to solve all school bullying but it certainly creates some inroads.”
Courts are split on the issue
The most commonly-cited precedent on student free speech law is a U.S. Supreme Court decision issued three decades ago, when the Internet was virtually unknown. The high court may soon update that precedent as it is asked to reconcile conflicting lower-court rulings.
“The ground is shifting under our feet on a student’s right to free speech,” said Frank D. LoMonte, executive director of the Student Press Law Center. “These [cyberbullying] laws really run the gamut as to whether they are constitutional.”
The 1969 Supreme Court ruling in Tinker v. Des Moines involved three students’ being disciplined for wearing black armbands to school in protest of the Vietnam War.
In reversing the disciplinary measures against the students, the Supreme Court declared that students don’t “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” But the justices did allow administrators to censor speech if it “invades the rights of others” or creates “substantial disorder.”
While this ruling has provided guidance for decades on when school officials can intervene in student speech, the advent of Facebook, YouTube and other digital forums have complicated matters. Federal district and appellate courts have issued conflicting rulings on the question.
In upholding the punishment of a Burlington high school student after she called school officials “douchebags” online, the U.S. 2nd Circuit Court of Appeals in New York noted “The Supreme Court has yet to speak on the scope of a school’s authority to regulate expression that… does not occur on school grounds.”
“There’s definitely been a few court cases that have bubbled up that have been used to over-punish students,” LoMonte said. “These decisions have cast significant doubt of what the right standard is for off-campus speech.”