On January 17, 2012, the United States Supreme Court denied certiorari in three student Internet free speech cases, J.S. v. Blue Mountain Sch. Dist.(3rd Cir.), Layshock v. Hermitage Sch. Dist. (3rd Cir.), and Kowalksi v. Berkeley Count Sch. (4th Cir.).
In each of these cases, a student had used offensive language online, after school hours, to berate school administrators or fellow students. School officials disciplined the students for the behavior, and the students filed suit on First Amendment grounds. The 3rd Circuit decided the school districts violated the students’ Constitutional rights to free speech because the online conduct had not caused substantial disruptions in school. The Court relied upon prior Supreme Court precedent in Tinker v. Des Moines Ind. Comm. Sch. Dist. The 4th Circuit, however, relying upon that same precedent, decided the school district had a compelling interest in regulating speech that interfered with or disrupted the work and discipline of the school, including online bullying. The only apparent factor distinguishing the 3rd Cir. and 4th Cir. decisions is that J.S. and Layshock both dealt with student-on-administrator bullying, while Kowalski dealt with student-on-student bullying.
Many entities, including the ACLU and the National School Board Association weighed in on these cases in an effort to get the Supreme Court to resolve the question. While these scenarios are occurring more frequently as students have greater access to technology, school administrators currently have very little guidance on how to proceed. On the one hand, the public is critical of schools for not doing more to stop bullying. On the other hand, the students have free speech rights.
Without explanation, the Supreme Court declined to resolve the conflict of law, and schools across the country will continue to struggle with this issue.
Fortunately, most school law attorneys, including those at Subashi & Wildermuth, have crafted recommendations and advice on this topic. When the next teacher or parent comes into the Superintendent’s office to complain that little Johnny slandered them on Facebook, the first call should be to legal counsel.
Source URL: http://www.swohiolaw.com/2012/01/20/cyber-bullying-and-schools/
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