By Kathleen Fitzgerald, SPLC staff writer
at 2008 Student Press Law Center
February 4, 2008
Legislators in several states this year have proposed or reintroduced bills to protect students from cyber-bullying, giving school administrators a role in combating what they see as a new wave of electronic harassment. While some feel this will protect students, First Amendment advocates worry the policies will infringe on students' rights.
Craig L. Rice, a Democratic delegate in Maryland, introduced HB199 in January. The bill broadens the definition of bullying to include "any intentional written, verbal, or physical act, including any published communication," that could physically harm an individual, substantially interfere with an individual's education or substantially disrupt the orderly operation of the school.
The bill would require the Maryland State Board of Education to develop standards for investigating complaints of bullying and disciplining individuals who have violated the policy. It also requires the state board to establish a procedure for protecting victims of bullying.
Anti-cyber-bullying bills also are active in Florida, Kentucky, Missouri and Rhode Island.
Alex Grudger, a legislative aide for Rice, said legislative staffers still are working out legal questions such as whether school administrators are allowed to take part in punishing students who bully off-campus, and if so, how this would fit into their disciplinary policies.
"Although many people are interested in [this bill], the legal language has been more difficult than we'd thought," Grudger said.
In Florida, Rep. Nick Thompson's HB669 allows administrators to punish cyber-bullying that happens off-campus as long as it "has the effect of substantially interfering with a student's educational performance, opportunities, or benefits; or has the effect of substantially disrupting the orderly operation of a school."
"It may be an incident that started outside of school online, but when the kids come to school, they continue the bullying," Thompson said.
"The physical location or time of access of a computer-related incident cannot be raised as a defense in any disciplinary action initiated under this section," the bill reads.
States that have passed anti-cyber-bullying legislation include Arkansas, Oregon, Minnesota, South Carolina, Idaho, Washington, Iowa, New Jersey and Delaware.
Arkansas' HB1072, approved in February 2007, prohibits cyber-bullying "whether or not the electronic act originated on school property or with school equipment, if the electronic act is directed specifically at students or school personnel, and maliciously intended for the purpose of disrupting school."
Elliot Zimmerman, a veteran Florida cyberlaw attorney, said schools should not be allowed to get involved in matters outside school grounds. If one student, for example, sues another over slander on MySpace, this is a matter between two individuals and their parents, not the school, he said.
"I don't think schools are equipped to handle these kinds of matters," he said. "As a disruption occurs in school, then they would have the jurisdiction to get involved as it happens ... I would contend that the school had absolutely no jurisdiction."
Zimmerman said schools take on liability if legislators give them this responsibility.
"Imagine if they don't take action." if they miss something. Wouldn't they be opening themselves up for a lawsuit?"
Zimmerman also said these laws might be constitutionally void for vagueness, meaning they are unenforceable because their language is so broad.
Ronald Collins of the First Amendment Center in Washington, D.C., said that although a lot of people use the phrase "cyber-bullying," he is not sure as a legal matter what that means and how it is defined. If it is not defined very narrowly, it is almost sure to raise First Amendment problems, he said.
"Is there a difference between bullying and ranting? Is there a difference between bullying and harassment? Bullying and threats? ... Unless the law is specifically and narrowly defined, it is an abstraction," he said. "When abstractions become law, that is a formula for tyranny."
Student and parental rights should not be abridged by the school off-campus, he said, unless the school is directly affected.
"Is the school going to get involved every time a distraught boy and girl break up?" Collins said.
Some legislators have decided to leave the schools out of their bills. Nicholaus R. Kipke, a Republican delegate in Maryland, introduced a bill that would make cyber-bullying a misdemeanor punishable by a $500 fine & an approach that places responsibility on law enforcement rather than on schools, he said.
Others feel school administrators should be involved, but only to a certain extent.
Justin Patchin, an assistant professor of criminal justice at the University of Wisconsin, and Sameer Hinduja, an assistant professor at Florida Atlantic University, have been researching cyber-bullying for five years. They recommend schools get "informally involved" early on by educating students on respectful Internet use to prevent cyber-bullying.
"It's a very slippery slope. At what point does a matter become so disruptive that the school should get involved?" Patchin said.