Cyber bullying: Clarifying Legal Boundaries for School Supervision in
of Maine, Orono, USA
is a psychologically devastating form of social cruelty among adolescents.
This paper reviews the current policy vacuum of the legal obligations and
expectations of schools to monitor and supervise online discourse, while
balancing student safety, education, and interaction in virtual space. The
paper opens with a profile and conditions of cyber bullying using an analogy
to Golding’s (1954), Lord of the Flies. The anarchy and deterioration of
unsupervised adolescent relationships depicted in the book are compared to the
deterioration of social relationships among adolescents in virtual space. A
discussion of the institutional responses to cyber bullying follows. Finally,
emerging and established law is highlighted to provide guidelines to help
schools reduce cyber bullying through educational means that protect students
and avoid litigation.
Cyber Bullying; Schools; Legislations; Lord of Flies;
On a seemingly
normal Tuesday afternoon, an eighth grade girl walks out of school and steps
into her mother’s car, ashen and visibly shaken. Unsure of how to proceed, her
mother waits – she doesn’t ask, she doesn’t move the car. Finally her daughter
speaks, saying she received the following cyber-message during class: “Bitch,
I know where you live. You’d better sleep each night with one eye open, on
your knees. If you don’t . . . I’ll be there to be sure you do!” The Avenger.
this are playing out in schools around the world. Students, especially
adolescent girls, are increasingly victims (and sometimes perpetrators) of
degrading, threatening, and/or sexually explicit messages and images conveyed
electronically via cell phones, email, chat rooms, and personal online
profiles (Barak, 2005; Herring, 2002; Ybarra & Mitchell, 2004; Blair, 2003;
Campbell, 2005; Jackson, Cassidy & Brown, 2006). As Harmon (2004) observes,
the internet has provided young people with an arsenal of weapons for social
cruelty. The phenomenon is called cyber bullying, which Patchin and
Hinduja (2006) define as “willful and repeated harm inflicted through the
medium of electronic text” (p. 152). Cyber bullying has roots in traditional
bullying that takes place in the physical
school setting; however, the medium of cyber-space allows it to flourish in
distinct ways creating numerous challenges.
is especially insidious because of its anonymous nature. Moreover, it allows
participation by an infinite audience. In the school context, it is dangerous
because it most often takes place outside school hours on home computers,
making it difficult, if not impossible, to supervise. In that regard, cyber
bullying is a modern day version of Golding’s (1954) Lord of the Flies.
In this classic tale, Golding places a small group of schoolboys on a deserted
island, where the rule-makers are removed, compelling the boys to deal with
the resulting vacuum. Their first thoughts are to look for adult authority
man with the megaphone?’ … “Aren’t there any grownups at all?”
“I don’t think
so.” The fair boy said this solemnly; but then the delight of a realized
ambition overcame him (p. 7).
between what happens on that island and what is happening today in schools are
astounding. Left alone with no supervision, for example, Golding’s boys
harass, then terrorize, and ultimately kill one another. Cyber bullying
similarly puts students on a virtual island with no supervision and very few
rules, which allows bullying to escalate to dangerous, even life-threatening
levels. Further, the boys on the island realize that being evil is easier when
they assume a different persona, and so they paint their faces for anonymity
before they attack. Cyber-bullies are no different; they hide behind
pseudonyms (The Avenger) and well-disguised IP addresses, making it
difficult, if not impossible, for the victim to determine the source of the
threat. This anonymous nature of cyber bullying is perhaps the most troubling
of all, for it leaves victims wondering which of their classmates might be the
“Avenger.” Indeed, the entire class might be involved. For a victim of cyber
bullying, attending school, confronting unknown perpetrators is like being on
an island -- there is no escape.
Golding’s time, today’s young people do not have to go to a remote island to
find such a world. It is as close as the cell phone or the family computer.
Cyberspace has become a real locale without rules and without civilization. On
the internet, no one has yet found an acceptable and workable way to create
and enforce the modicum of culture that allows people to get along with each
other. Nowhere on the internet is this more true than in the virtual space
frequented by children, who often have the technological capacity and skill to
run electronic circles around their elders; but, who lack the internal
psychological and sociological controls to moderate their behavior.
civilization and civil behavior is difficult enough in organized society, even
where the rule of law is supposed to prevail, and where order and authority
exists to protect innocent citizens. But what happens—as in dystopian
fiction—when the rules and the authority are removed? This is the dilemma
that schools confront as they attempt to navigate the legal and moral
challenges around responding to cyber bullying, and ultimately, develop in
student’s appropriate moral compasses for an electronic age.
paper focuses on the legal responsibilities for
schools in dealing with cyber bullying, although we recognize that adults in
society (through internet networks, media and technology corporations) have
provided the technological tools; condoned, and modeled many of the negative
behaviors that evolve in the virtual islands of unsupervised cyber-space.
American legislation, in fact, protects technology corporations at the expense
of victims of cyber-targeting, defamation and harassment (Myers, 2006;
Servance, 2003; Wallace, 1999). Further, while many aspects of cyber bullying
are clearly criminal in nature and would most likely be subject to prosecution
if brought before the courts (such as threats of violence, criminal coercion,
terrorist threats, stalking, hate crimes, child pornography, and sexual
exploitation), we focus greater attention on the institutional
responsibilities of schools and Internet providers, as opposed to the criminal
liability of students.
By reviewing established and emerging law relating to school obligations to
prevent cyber bullying, we draw attention to a need for guidelines that would
help schools adopt educational means to prevent and reduce cyber bullying. We
appreciate that legislative initiatives and judicial efforts are often
designed to avoid the floodgates of litigation on cyber bullying and
cyber-targeting. Our paper explains how, regrettably, initial judicial and
school responses tacitly condone cyber bullying and perpetuate the problem. We
suggest a policy approach that will move the dialogue toward educational and
protective measures that might better enable children to learn in physical and
virtual school environments without fear of cyber bullying, as unprecedented
problems related to new technologies surface. Ultimately, this shows greater
promise of the floodgates to litigation than criminal liability and laws that
protect ISP providers.
we explore the challenges for schools in
monitoring students’ online discourses
because cyber bullying typically occurs outside supervision boundaries. This
raises important legal questions about the extent to which schools can be
expected to intervene when their students cyber bully off campus, outside
school hours, from home computers. The policy vacuum must be addressed because
parents are often too busy with their own lives and careers to be aware of
what their children are doing online. As Wallis (2006) observes, most family
homes are wired with computers in each room, cell phones for each member of
the family, i-pods, CD players, and televisions, many of which are in use at
the same time. Young people are far more adept at multi-tasking than their
parents, and as they grow up, they become immersed in technology, making the
lines between their virtual and “real” or physical lives increasingly blurred.
draws on a body of emerging research about cyber bullying
and begins by providing background on the forms and conditions of bullying in
general, followed by an explanation of how cyber bullying differs. Next, we
review and analyze relevant case law to identify applicable legal standards
for schools, both in
and the United States. The international focus is intentional, since cyber
bullying quickly crosses jurisdictional boundaries rarely encountered in other
school challenges. We close with recommendations for the development of
ontology of the legal boundaries in cyber-space as they relate to schools. We
encourage the development of informed guidelines for the implementation of
inclusive, educational, and legally defensible policy approaches to cyber
Bullying: Its Forms and Conditions
is an extension of general bullying in schools. Therefore, it is important to
define the most prevalent forms of bullying and the conditions under which it
occurs, before presenting a profile of its cyber-counterpart.
typically adopts two forms: overt and covert. Overt bullying involves physical
aggression, such as beating, kicking, shoving, and sexual touching. It can be
accompanied by covert bullying, in which victims are excluded from peer
groups, stalked, stared at, gossiped about, verbally threatened, and harassed
(Olweus 2001; Pepler 1997). Covert bullying can be random or discriminatory.
It can include verbal harassment that incorporates racial, sexual, or
conditions are present when bullying occurs in schools. These conditions
distinguish bullying from friendly teasing and horseplay. First, bullying is
unwanted, deliberate, persistent, and relentless, creating a power imbalance
between perpetrator(s) and victims. Second, victim blame is a key component,
and it is used to justify social exclusion from the peer group (Katch, 2001).
Victims might be excluded for looking different; for being homosexual or
lesbian; or simply appearing to be gay (Shariff, 2004). They might be teased
about their clothes, accent or appearance; or for being intelligent, gifted
and talented, or having special needs and/or disabilities (Glover,
Cartwright, & Gleason, 1998).
bullying as an Extension of Bullying
is an insidious and covert variation of verbal and written bullying. It is
conveyed by adolescents and teens through electronic media such as
cell-phones, websites, web-cams, chat rooms, and email (Harmon, 2004; Leishman,
2002). Students create personal online profiles (e.g. Xangas, MySpace) where
they might list classmates they do not like. Xanga and MySpace are social
networking sites in which students can create personal profiles. These
profiles combine web-logs, pictures, audio, video, instant messaging, bulletin
boards and other interactive capabilities. Cyber bullying can also take the
form of sexual photographs (emailed in confidence to friends), that are
altered and sent to unlimited audiences once relationships sour (Harmon,
research discloses that in Canada, 99% of teens use the Internet regularly;
74% of girls aged 12-18 spend more time on chat rooms or instant messaging
than doing homework; one in every seventeen children is threatened on the
Internet; and one in four youth aged 11 -19 is threatened via computer or cell
phone (Leishman, 2002; Mitchell, 2004). A recent survey of 3,700 middle school
students disclosed that 18% experienced cyber bullying (Chu, 2005). A similar
Canadian study of 177 middle school students in Calgary, Alberta (Li, 2005),
disclosed that 23% of the respondents were bullied by email, 35% in chat
rooms, 41% by cell phone text messaging, 32% by known school-mates, 11% by
people outside their school, and 16% by multiple sources including
review of cyber bullying incidents under the Cyber bullying Project disclosed
the following results, all of which are cited in an unpublished report (the
“Cyber bullying Project Report, 2006”) prepared by Jackson, Cassidy, and
Brown. The review disclosed that Australia is the global leader in SMS (text
messaging) with approximately 500 messages being sent each month as opposed to
10 million in 2000. The report discloses that 12% of children between
six to nine
used text messaging at least once a day; 49% of youth aged ten to fourteen and
80% of fifteen to seventeen year olds used SMS daily. Moreover, 61% of
Australian homes had computers and 46 of those had internet access. Finally,
46% of fourteen year-old Australian youth, 55% of fifteen year olds and 73% of
sixteen year olds have their own cell phones.
report confirms that in
children are exposed to digital gadgets at a very early age. Interestingly,
only about half of Japanese children at age eleven use the Internet, and only
20% are regular users (Dickie, Merchant, Nakamoto, Nuttall and Terazono,
2004). Dickie et al further explained that more than 80% of children
and adolescents in Britain have access to home computers and that 75% of
children at age eleven own a cellular phone.
according to a study conducted by National Children’s Home and Tesco Mobile (“NCHTM”
2002), approximately 16% of British children and adolescents reported
receiving threatening text messages or being bullied over the Internet; one in
four young people between the ages of eleven and nineteen were threatened via
personal cell phone or personal computers; and, approximately 29% of those
surveyed had not reported the cyber bullying. Of those reporting cyber
bullying, 42% confided to a friend and 32% reported to parents.
In a recent
study of over 300 teens under age 18 (Patchin & Hinduja, 2006), 60% reported
they had been ignored by peers online, 50% said they had been disrespected,
30% had been called names, and 21% had been threatened (p. 158). The students
in the study also reported negative effects from being bullied, with 42.5%
saying they were frustrated and 40% reporting feelings of anger. Nearly a
third of the teens reported that cyber bullying had affected them at school
(31.9%), and 26.5% said it had affected them at home. (p. 161.)
the NCHTM study found that caregivers’ knowledge of cyber bullying was
minimal. The survey disclosed that 56% of parents are not concerned about
their children being bullied electronically and many are in denial as to the
impact of such behavior. 19% believed such incidents are rare. Paradoxically,
but not surprisingly, British teachers are very concerned about such bullying,
with 50% confirming that their students had experienced such bullying. Another
distressing finding is that 67% of those teachers are elementary school
teachers for children younger than eleven years old.
also found that in the
approximately 70% of children between the ages of four and six have used
computers and 68% under the age of two have used screen media. Surprisingly,
only 13% of eight to seventeen year olds in the
own cell phones unlike their counterparts in the U.K. and Canada.
Anonymity, Lack of Supervision and an Infinite Audience
In addition to
the findings that caregivers may not realize the seriousness of cyber
bullying, there are several aspects that make it a significant challenge for
schools. As with Golding’s (1954) boys who hid their identities behind painted
faces and masks, most cyber bullying is anonymous. Anonymity in cyber-space
adds enormously to the challenges for schools (Harmon, 2004). For example, in
Li’s (2005) study, 41% of the students surveyed did not know the identity of
their perpetrators. Second, it allows participation by an infinite audience
and can originate anywhere, making the boundaries of supervision difficult for
schools to determine. A third concern is that sexual harassment is a prevalent
aspect of cyber bullying, which subjects young adolescent girls; boys who
might appear to be homosexual; and, gay and lesbian students to increased
bullying begins anonymously in the virtual environment, it affects learning in
the physical school environment. The consequences can be psychologically
devastating for victims, and socially detrimental for all students (Gati,
Tenyi, Tury, & Wildmann, 2002). Just as the
immaturity of Golding’s boys on that deserted island drove them to commit acts
they might never have endorsed under the watchful eye of adults; so too in
cyber-space, young people who might otherwise be inclusive and respectful in
face-to-face interactions, are increasingly tempted to engage in negative
online discourse without realizing the impact of their actions (Willard, 2005;
Parks & Floyd, 1996). Ybarra and Mitchell (2004) explain that cyber-space
provides adolescents with the ability to withhold their identity in
cyber-space, providing them with a unique method by which to assert their
dominance. Moreover, the computer keyboard provides the control and sense of
power that some students cannot achieve in face-to-face relationships (Jackson,
et al, 2006).
Young people in cyber-space lose their inhibitions in the absence of no
central power, clear institutional or familial boundaries, or hierarchical
structures (Milson & Chu, 2002). As Bandura (1991) explained over a decade
ago, physical distance provides a context in which students can ignore or
trivialize their misbehavior, as easily as Golding’s boys did on their distant
island. In cyber-space this form of disengagement is amplified.
Jackson et al (2006) also discuss the social presence theory (Rice,
1987; Rice & Love, 1987; Short, Williams & Christie, 1976) and social context
cues theory (Sproull & Kiesler, 1991) as they apply to social interactions in
cyber-space. The theories posit that online social interactions become
increasingly impersonal with the reduction of contextual, visual, and aural
cues, reducing sensitivity to online patrons and becoming increasingly
confrontational and uncharacteristic. Parks and Floyd (1996) for example,
observe that cyber-space is “another life-world, a parallel universe” (p.93).
We observe the parallels with the island in Lord of the Flies, which
provided the boys with a parallel universe where no rules existed.
b) Lack of Rules and Supervision
institutional and parental rules in cyber-space have the effect of creating
virtual islands similar to the physical islands in Lord of the Flies.
The absence of adult supervision allows perpetrators free reign to pick on
students who may not fit their definition of “cool” because of their weight,
appearance, accent, abilities or disabilities (Shariff and Strong-Wilson,
2005). Cyber-space provides a borderless playground that empowers some
students to harass, isolate, insult, exclude and threaten classmates. The
Internet, unlike the school day, is open and available around the clock –
empowering infinite numbers of students to join in the abuse. Without limits
and clear codes of conduct, communication in cyber-space (even among adults)
can rapidly deteriorate into abuse because of the knowledge and sense of
security that comes with the limited possibility of being detected and
illustrated in Lord of the Flies, when young Piggy (nearsighted and
overweight) is excluded, isolated, harassed, and hunted down. His perpetrators
take advantage of his disabilities leading to his eventual death. The fear and
isolation that Piggy experiences on that island is not far removed from that
regularly experienced by victims of cyber bullying. Fear of unknown
cyber-perpetrators among classmates and bullying that continues at school
distracts all students (victims, bystanders, and perpetrators) from
schoolwork. It creates a hostile physical school environment where students
feel unwelcome and unsafe. In such an atmosphere, equal opportunities to learn
are greatly reduced (Devlin, 1997; Shariff & Strong-Wilson, 2005).
interesting to note that although Golding’s Lord of the Flies was
written in 1954, the author had tremendous foresight into what can happen when
authority figures, caregivers, and parents are absent for long periods of time
from any setting, including a virtual one. He might well have been predicting
young people’s social relations on the Internet. As we noted earlier, the
Internet has provided young people with an arsenal of weapons for social
cruelty (Harmon, 2004), without making allowances for supervision of their
use. Not only is this similar to Golding’s analysis of what might occur if
adolescents placed on a deserted island completely unsupervised, it is also
akin to providing them with weapons to help destroy each other.
The characteristics and conditions relating to the power shifts,
and the behavioral and ethical breakdowns in cyber-space, suggest an
obligation on adults and public institutions
young people’s lives (parents, teachers, school
administrators, network providers, community stakeholders and the courts), to
work toward improved supervision, attention to adolescent online discourse,
and increased accountability on the part of Internet providers.
administrators and teachers argue that they cannot possibly be expected to
supervise students on home computers, parents are increasingly beginning to
sue schools and technology companies for failing to protect their children.
One such example is illustrated in the plight of David Knight, a boy from
Ontario, Canada, who was bullied persistently in the physical school setting
from elementary through high school (by the same classmates). In high school
the bullying was magnified as cyber bullying took over. His classmates set up
a website where they described him as homosexual (which he wasn’t), a drug
trafficker and pedophile (which were also untrue). The website received
millions of hits where participants contributed insults and derogatory
by school or parents (with the web-provider refusing to close down the website
for fear of being challenged as breaching free expression rights), David’s
nightmare continued for six months until he sued the school board and Internet
provider. Scholars of cyber bullying internationally await the Canadian
judicial decision in David’s case, which continues to be postponed. Some of
the issues raised in his case are nonetheless important, and we address them
as part of our analysis of the legal considerations.
suggests that bullying is reduced by 50% when young people are allowed to
contribute to rule-making (Olweus, 1997), a complete lack of supervision can
result in enormous power differentials between dominant and weaker peers
resulting in anarchy and a total breakdown of social and ethical norms and
structures. This is especially true when adolescents are involved, because
their social development is influenced by hormonal changes and social
influences (Boyd, 2000; Tolman, 2001).
research on bullying finds that typically 30% of on-lookers and by-standers
support perpetrators instead of victims (Salmivalli et al, 1996; Boulton,
1993). The longer it persists, the more by-standers join in the abuse,
creating a power imbalance between victim and perpetrators. Isolation renders
victims vulnerable to continued abuse, and the cycle repeats itself. What
might begin as friendly banter among class-mates at school, can quickly turn
into verbal bullying that continues in cyber-space as covert psychological
bullying. The difference in cyber-space is that hundreds of perpetrators can
get involved in the abuse, and, as in Lord of the Flies, peers who may
not engage in the bullying at school, can hide behind technology (masks, face
paint and screen-names), to inflict the most serious abuse (see examples in
Shariff, 2004; Shariff & Strong-Wilson, 2005).
another internationally known case of the “Star Wars Kid.” Young Ghyzlain Reza
(a slightly overweight boy from Quebec, Canada) had filmed himself playing out
a Star Wars character. He left the video on his school’s film room. Two
class-mates found the tape and posted it on the Internet (see www.
jedimaster.net). This website attracted 15 million hits. 106 clones of the
video were made and redistributed. Wherever Ghyzlain went, his school-mates
would jump on desks and tables and imitate him. He finally withdrew from
school and is now home-schooled. The case was to be heard on April 10, 2006,
but was settled out of court.
illustrate that even when frustrated parents turn to the courts for guidance;
their claims are often delayed or settled out of court because of the lack of
clear legal boundaries regarding freedom of expression; student privacy, and
protection in cyber-space (Wallace, 1999; Shariff & Johnny, in press). In
cases where cyber-perpetrators are known (as they were in the Star Wars case),
class-mates are also being charged with criminal harassment. While David and
Reza have supportive parents to turn to, our concern is with victims of cyber
bullying, who, like Piggy in Lord of the Flies, cannot turn to parents
or caregivers for emotional or financial support. This is confirmed in the
findings of the National Children’s Home and Tesco Mobile (2002) noted
earlier, regarding the lack of concern by caregivers relative to cyber
bullying, making it a significant issue.
suggests that victims are reluctant to report cyber bullying for fear that
their own computer and cell-phone privileges will be removed (iSafeAmerica,
2006). Lost computer privileges would ostracize them to an even greater extent
from their peer groups whose virtual relationships have become an integral
aspect of their social relationships. In some cases, the isolation and
ridicule becomes too much, resulting in suicide (see Shariff, 2004; 2005, for
moving on to a discussion of stakeholder roles and responsibilities, it is
important to note that sexual and homophobic harassment have been found to be
highly prevalent in cyber bullying.
Prevalence of Sexual and Homophobic Harassment
research suggests that although both genders engage in cyber bullying, there
are differences (Chu, 2005; Li, 2005). It has been argued that children who
engage in any form of bullying are victims. However, studies (Dibbell, 1993;
Evard, 1996) have shown that teenage girls are more often at the receiving end
of cyber violence.
A review of
the scholarly literature (Shariff & Gouin, 2005) finds that according to
Herring (2002), 25% of Internet users aged 10-17 were exposed to unwanted
pornographic images in the past year, and 8% of the images involved violence
in addition to sex and nudity. Mitchell et al (2001,
cited in Barak, 2005),
who conducted a survey of American teenagers, found that 19% of these youths
(mostly older girls) had experienced at least one sexual solicitation online
in the preceding year. According to Adam (2001), one in three female children
reported online harassment in 2001. This is not surprising given that girls
aged 12 to 18 have been found to spend at least 74% of their time on chat
rooms or instant messaging (Berson & Ferron, 2002).
adolescent hormones rage and influence social relationships as children
negotiate social and romantic relationships and become more physically
self-conscious, independent, and insecure (Boyd, 2000). Research on dating and
harassment practices at the middle school level (Tolman, 2001) shows that peer
pressure causes males to engage in increased homophobic bullying of male peers
and increased sexual harassment of female peers to establish their manhood.
During this confusing stage of adolescent life, the conditions are ripe for
bullying to take place. The Internet provides a perfect medium for adolescent
anxieties to play themselves out.
and Responsibilities: Schools or Parents?
nebulous nature and ability to spread like wildfire are indeed challenging,
cyber bullying does not elicit school responses that differ significantly from
reported reactions to general forms of bullying (Shariff, 2004; Harmon, 2004).
A review of emerging litigation on bullying (Shariff, 2003) disclosed common
patterns in school responses to victim complaints. For example, plaintiffs
explained that when approached for support, school administrators and teachers
put up a “wall of defense.” According to some parents surveyed during that
research, school administrators allegedly: a) assumed that the
victim-plaintiffs invited the abuse; b) believed parents exaggerated the
problem; and c) assumed that written anti-bullying policies absolved them from
doing more to protect victims. Despite well-meaning and seemingly sensible
anti-bullying programs, this approach means that some educators tacitly
condone negative and non-inclusive attitudes, thus sustaining the power
structures that exist in a discriminatory school environment. For example,
some scholars argue that the tendency in schools to implement blanket
zero-tolerance policies (Skiba & Petersen, 1999; DiGiulio, 2001; Giroux, 2003)
overlooks the various forms of oppression that marginalize some students in
surprisingly, these responses have produced minimally effective results, other
than to criminalize young people and add a burden to the criminal justice
system (Giroux, 2003, DiGuilio, 2001; Shariff & Strong-Wilson, 2005). To make
matters worse, most Internet providers refuse to close websites or block
emails to avoid breaching free expression rights because they are protected
from liability by legislation, at least in the United States (Myers, 2006).
This increases the danger to victims. Children’s “behavior” cannot be the sole
focus of policy – multi-disciplinary attention to institutional context is
crucial. This is where schools can, and in our opinion ought to implement
their mandate as educational leaders. While parents undeniably have an
obligation to monitor their children’s activities on the Internet, teachers,
school counselors, administrators, judges, and policy makers have no less a
responsibility to adapt to a rapidly evolving technological society, address
emerging challenges, and guide children to become civic-minded individuals.
reasonable to suggest that since schools use technology to deliver curriculum
and assign homework (and increasingly provide laptops for students’ use at
home), it is also imperative they pay attention to how their students use it.
They need to recognize and establish standards and codes of conduct with
respect to Internet and cell phone use, and define acceptable boundaries for
their students’ social relationships in cyber-space. Educators, in their
valuable role of fostering inclusive and positive school environments, would
benefit from scholarship and legally defensible policy guidelines. These
should become part of teacher preparation programs, leadership programs, and
professional development. The study of bullying and cyber bullying must be
re-conceptualized from an inter-disciplinary, institutional, educational, and
legal perspective. An interdisciplinary perspective would draw upon academic
expertise in the fields of education, psychology, criminology, sociology, and
law – all of which are relevant to the study of cyber bullying.
Before we move
onto a discussion of the legal obligations for schools, it is worth a short
discussion of the legal standards currently applied to technology companies.
It is these corporations that create and provide the nexus for cyber bullying,
cyber-harassment, cyber-targeting, and other forms of online abuse. While a
comprehensive survey of the legislation covering technology companies is
underway but not completed (Shariff, in progress), David A. Myers (2006)
undertakes an in-depth evaluation of one relevant piece of legislation in the
U.S., the Communications Decency Act of 1996. Under this federal
legislation, Congress granted broad immunity to Internet service providers
(ISPs). This legislation leaves no one legally accountable for cyber-targeting
(which includes cyber bullying, harassment, stalking, defamation, threats and
so on). Section 230 of this Act provides in part:
for “Good Samaritan” blocking and screening of offensive material.
of publisher or speaker. No provider or user of an interactive computer
service shall be treated as the publisher or speaker of any information
provided by another information content provider.
Liability. No provider or user of an interactive computer service shall be
held liable on account of – (A) Any action voluntarily taken in good faith to
restrict access to or availability of material that the provider or user
considers to be obscene, lewd, lascivious, filthy, excessively violent,
harassing, or otherwise objectionable, whether or not such material is
constitutionally protect; or (B) any action taken to enable or make available
to information content providers or others the technical means to restrict
access to material described in paragraph (1).
explains that one landmark case, Zeran v. America Online, Inc. (1997)
is the general precedent used by American courts to rule on Internet abuse.
This case resulted in leaving no one legally accountable for injuries caused
by anonymous postings on the Internet. The case involved a series of anonymous
postings on America Online’s (AOL) message board following the
bombings in April, 1995. The messages claimed to advertise “naughty Oklahoma
t-shirts.” The captions on the t-shirts included “Visit Oklahoma . . . It’s a
Blast!!! And “Finally a
Care Center That Keeps Kids Quiet – Oklahoma 1995.” (Zeran v. AOL,
1997). The individual who posted the messages identified himself as Ken Z and
provided Zeran’s phone number as the person to call to order the offensive
t-shirts. Zeran received abusive telephone calls and even death threats as a
result and notified AOL, which in turn terminated the contract from which the
messages originated. However, the perpetrator continued to set up new accounts
with false names and credit cards. Zeran finally sued AOL claiming negligence.
The court ruled that Section 230 of the CDA provided absolute immunity to AOL
regardless of its awareness of the defamatory material.
ruling, Myers notes, maintains the status of Internet providers as
“distributors” rather than “publishers.” Publishers (e.g. book publishers)
are liable for defamation by third parties using their services, especially if
they are made aware of them and fail to act to prevent the behavior. Zeran
followed a case in which an Internet provider was elevated to the status of
“publisher” (Stratton Oakmont v. Prodigy Services Co., 1995). Prodigy
had decided to regulate the content of its bulletin boards (in part so that it
could market itself as a “family orientated” computer service). By taking on
an editorial role, Prodigy opened itself up to greater liability than computer
networks that do not edit content. Thus service providers argued that if they
agree to monitor and edit online content, they in fact subject themselves to
greater liability. This is why most Internet providers ignore reports of
abuse. Most are confident that they will not be held liable subsequent to
Zeran. The irony of this, as Myers (2006) points out, is that the title of
S.230 reads “Protection for ‘Good Samaritan’ blocking and screening of
offensive material.” The objective of the CDA was to protect pro-active online
service providers and preserve competition between ISPs on the Internet.
the point that if David Knight were bringing his lawsuit in the United States,
S.230 might make it too difficult for him to argue that the Internet provider
he is suing was aware that of the website with his picture, labeling him as a
homosexual pedophile and drug pusher. Nonetheless, he believes “the winds of
change are stirring” (p. 5) for S.230 immunity. At the State level, he cites
common law case, Bryson v. News America Publ’ns, Inc. (1996). The case
involved a fictional story entitled “Bryson” written by Lucy Logsdon. Lucy
wrote about being bullied at school by Bryson who she referred to as a “slut.”
The real Bryson read the story and remembered living in the same town as Lucy
Lodgson. She sued News America for libel and won. The court stated that even
though the story was labeled as fictional, it portrayed realistic characters,
responding in a realistic manner to realistic events and that a reasonable
reader might logically conclude that the author of the story had drawn upon
her teenage experiences to write it. If the courts rely on this case, David
Knight’s lawyers might well argue that the website with David’s picture
labeling him as a pedophile could reasonably be interpreted as true by those
who visited the website, resulting in negligence and liability against the
in John Doe v. GTE Corp. (2003), involving the secret filming of
athletes showering in a change room that was posted and sold on a website, the
Seventh Circuit Court of Appeals upheld S.230 immunity relying on Zeran, in
favor of GTE corporation. However, Judge Easterbrook questioned the reasoning
in Zeran, noting that S.230 is supposed to be the “Good Samaritan,” blocking
and screening offensive material, but in fact, by eliminating liability for
ISP’s, it ends up defending abusers and defeating legitimate claims by victims
of tortuous abuse on the Internet.
The law is
slow to change, especially when judges are well aware of the floodgate of
litigation that might be unleashed if Internet providers are held liable. In
the meantime, schools need guidelines that provide reasonable boundaries and
direction as to the extent of their responsibility. This would alleviate their
reluctance to breach freedom of expression guarantees or student privacy
rights. Educators need to know the extent to which they have the authority to
protect victims from abuse by their classmates – and their ultimate
responsibility to foster inclusive school environments that encourage socially
responsible discourse – on or off school grounds, in the physical school
setting and in virtual space.
Educational Policy Vacuum
responses to bullying are largely ineffective because of the anonymous nature
of cyber bullying, its capacity for an infinite audience, and participation by
large numbers of young people. In this regard, it is important to consider the
emerging legal stance adopted by the courts towards cyber-harassment. In the
following section we review legal principles of Canada and the United States
as they relate to cyber bullying: freedom of speech/expression, privacy,
torts, and human rights/anti-discrimination law.
Freedom of Speech and Expression Rights
school officials and Internet providers worry that if they intervene with
student discourses in cyber-space, they might face challenges under Section
2(b) of the Charter of Rights and Freedoms (the “Charter”) for
infringement of student free expression rights. Freedom of expression,
thought, and opinion are guaranteed to all Canadians, including students,
under Section 2(b) of the Charter. These freedoms are only limited by
Section 1 of the Charter, which helps the courts weigh and balance
individual rights with the collective rights of the greater good in a
democracy. Section 1 of the Charter states that the rights set out in
it are subject “only to such reasonable limits prescribed by law as can be
demonstrably justified in a free and democratic society.” Any school policy
that infringes individual rights must therefore be justified by the
policy-maker as having a pressing and substantial objective to protect the
greater good. The onus also rests with policy-makers to establish that the
rights in question will be infringed as minimally as possible (R. v. Oakes,
As MacKay and
Burt-Gerrans (2005) point out, expression is constitutionally protected
as long as it is not violent (see for example, Irwin Toy Ltd. v. Québec
(A.G.), 1989). This means that any expression that intends to convey
non-violent meaning is normally safeguarded by Canadian courts. This
interpretation has been extended to the school setting. For instance, one of
the best known cases of protected freedom of expression in schools involved a
rap song that contained a message to students to reduce promiscuity. In a
well-known Canadian freedom of expression case (Lutes v. Board of Education
of Prairie View School Division No. 74, 1992), Chris Lutes sang a song by
Queen Latifah, entitled “Let’s Talk About Sex” even though a school district
administrator objected to the song. He was suspended and sought judicial
review. The court found that his freedom of expression rights under Section
2(b) had been violated and that the administrator’s objection to the song did
not reasonably justify the infringement of those rights. In fact, the court
stated that this was an overreaction to an educational song about sexual
important legal questions as they relate to cyber bullying. Is online
harassment considered to be a violent expression? Even though physical force
cannot take place online, victims can (and do), perceive online sexual threats
as very real. The impact on the victim is no different from the telephone
threat that caused Canadian teenager Dawn Marie Wesley to commit suicide. The
words “You’re f....g dead!” by a classmate caused her to perceive real harm
would come to her. Her perpetrator was convicted of criminal harassment
because the court observed that perceived harm by the victim amounts to the
same thing as actual harm (Shariff, 2004). Herring (2002) explains that online
harassment which negatively affects the physical, psychological, or emotional
well-being of a victim constitutes a form of actual violence. Barak (2005)
notes that harassers can use sexual coercion through several means – directly
offensive sexual remarks that humiliate the victim; passive sexual harassment
by using nicknames and online identities such as “wetpussy” or “xlargetool”;
or graphic gendered harassment which includes sending unwanted pornographic
content, sexual jokes, and other graphic sexual context. These forms of online
harassment make recipients feel powerless, demeaned, and threatened.
States judges, however, have refused to acknowledge that online harassment
contains a violent message. Consider some of the initial court rulings on
cyber-harassment cited by Wallace (1999). In one instance, a student set up a
website denouncing the administrators and teachers at a university. The
judge’s response was as follows, “Disliking or being upset by the content of a
student’s speech is not an acceptable justification for limiting student
speech” (as quoted in Wallace, 1999, p. 131).
United States of America,
Plaintiff v. Jake Baker
(June 21, 1995, as cited in Wallace, 1999), Jake Baker posted a story to the
newsgroup alt.sex.stories. His story graphically described the rape and
torture of a university classmate. He also communicated (via email to a
friend), his plans to actually carry out the rape. Students who read the story
were outraged and charged him with criminal harassment. The district court
threw out the claim, holding that because there was no possibility of physical
rape on the Internet there could be no claim for harassment. Moreover, the
court was reluctant to infringe on Baker’s freedom of expression rights. The
precedents set by these courts were followed in The People v. B.F. Jones
(cited in Wallace, 1999). The case involved sexual harassment of a female
participant in a MUD group by Jones, a male participant. The court explained
It is not the
policy of the law to punish those unsuccessful threats which it is not
presumed would terrify ordinary persons excessively; and there is so much
opportunity for magnifying undefined menaces that probably as much mischief
would be caused by letting them be prosecuted as by refraining from it.
(Quoted in Wallace, 1999, p. 228)
case, Emmett v.
(2000), a boy placed mock obituaries on a website called “The Unofficial
Kentlake High Home Page,” which allowed visitors to vote on who should be “the
next to die.” The school, upon learning of the website, expelled the student
(and then later reduced this to a five-day suspension). The family brought
suit, and the court ruled in favor of the student, stating that the school had
not proven the website “intended to threaten anyone.”
reluctance by the courts to avoid involvement in the quagmire of cyber-space
is not surprising and not much different from their stance regarding Internet
companies. The courts have typically adopted a hands-off approach in matters
of educational policy. In the realm of physical violence in schools, for
example, American courts have set a very high threshold for plaintiffs to
bring claims for negligence against schools, in some cases even when students
have been shot or knifed (Shariff, 2003, 2004; Shariff & Strong-Wilson, 2005).
aspect regarding the failure of claims for criminal harassment is that
pedophiles and predators gain significantly easier access to Internet “Lists
of Hos” (names of girls labeled as prostitutes) for example, and capitalize on
them. This takes adolescent cyber bullying into the more dangerous adult realm
of pornography. For example, in one case reported by Harmon (2004),
photographs of a young girl who masturbated for her boyfriend were dispersed
on the Internet once the relationship soured. The boundaries of this type of
harassment need clarification. Laws against the distribution of pornography
have been in existence for many years, but they need upgrading to address
virtual infringements of privacy. Once in the hands of sexual predators, such
photographs could result in life threatening circumstances for teenage victims
if they are contacted and lured into a physical relationship.
Servance (2003) confirms that when addressing cases of cyber bullying in the
school context, American courts continue to apply a standard for protecting
student free expression that goes back to the 1960’s when students protested
against the Vietnam War. They continue to apply the standards established in
three landmark cases (the “Triumvirate”): Tinker (1969), Fraser
(1986), and Hazelwood (1988). Tinker
Des Moines Independent Community School District
(1969) involved students’ rights to wear black armbands as a form of silent
protest against the Vietnam War. Despite warnings ahead of time not to engage
in this activity, many students participated and were suspended. The students
sued the school administration, and the
court held in favor of the students – establishing the famous quotation that
“students do not leave their free expression rights at the school house gate”
(Servance, 2003). The court asserted that unless the speech materially and
substantially disrupts learning, schools may not restrict it.
This point is
illustrated in Beidler v.
(2000). The student in this case denounced the high school assistant principal
as an alcoholic and Nazi. Teachers complained about being uncomfortable having
Karl Beidler in their classes. He was given emergency suspension and
transferred for the remainder of his junior year to an alternative setting
within the district. Beidler brought suit saying his website had caused “no
substantial disruption,” and the court agreed, ruling that the district had
not met the Tinker standard regarding disruptive speech.
So far, cases
such as Beidler and others (e.g.
2001) have usually involved students posting questionable material regarding
the adults in the school. In the absence of school disruption or direct
threats, courts have basically sent the message that schools may not limit
student speech (posted online on personally owned computers) that is critical,
even offensive about adults. Still emerging are cases involving
student-to-student cyber bullying, which, according to research (Devlin, 1997;
Gati et al, 2002) has an impact on the emotional well-being of the victims in
the school setting. Based on the research, a strong case could be advanced
that cyber bullying materially and substantially disrupts learning
for the victims and potentially other students, as well.
A new standard
was set in the second case in the Triumvirate in 1986. The Supreme Court held
Fraser (1986) that schools may prohibit speech that undermines their
basic educational mission. In this case a student Matthew Fraser’s campaign
speech included “obscene, profane language” that contained insinuations to
sexual and political prowess:
I know a man
who is firm – he’s firm in his pants . . . (He) takes his pants and pounds it
in . . . . He doesn’t attack things in spurts – he drives hard, pushing and
pushing until finally --- he succeeds . . . (He) is a man who will go to the
very end --- even the climax for each and every one of you. (p. 1227)
suspended Fraser, and the courts upheld the school’s action, noting
that schools are not the arena for the type of vulgar expression in
Fraser’s speech. Importantly, the judge noted that schools should not have
to tolerate speech that is inconsistent with school values. While he
acknowledged that it is crucial to allow unpopular speech, he emphasized that
schools have a vital role in preparing students to participate in democratic
society by teaching appropriate forms of civil discourse that are fundamental
to democratic society.
relevance to cyber bullying today, this ruling also stated that schools must
teach students the boundaries of socially acceptable behavior. The court
stated that threatening or offensive speech has little value in a school
setting and cannot be ignored by schools. Moreover, the court noted that the
speech infringed the rights of others (although it did not specifically state
it, the rights of females in the audience). The sexual insinuations to rape
were clearly offensive and threatening to students.
decision extends Tinker and is also, in our view, applicable to
student freedom of expression in the cyber bullying context. As explained in
the profile of cyber bullying, a substantial amount of the emerging research
on Internet communications reveals the prevalence of sexual harassment, sexual
solicitation, homophobia, and threats against women or female students. Not
only does this form of cyber bullying materially disrupt learning and impede
educational objectives, it creates power imbalances within the school
environment and distracts female and gay or lesbian students from equal
opportunities to learn. Consistent with the Fraser ruling, expression
of this nature infringes their constitutional rights in an educational context
and creates a hostile and negative school environment (physical and virtual).
American court decision, Hazelwood vs. Kuhlmeier (1988), involved the
principal’s decision to censor portions of the school newspaper.
The principal was worried that two articles, one on teen pregnancy and
the other on divorce, were too transparent to protect student identities. The
students who worked on the articles sued, citing infringement of their First
Amendment rights to free speech. The court in Hazelwood reasoned that
since schools are entitled to exercise control over school sponsored speech,
they are not bound by the First Amendment to accept or tolerate speech that
goes against the values held by the school system.
plausible that the reasoning in Hazelwood might be extended to cyber
bullying that originates on school computers. First, it is important to note
that unlike the Tinker (1969) case, which questioned whether a school should
tolerate particular student speech, in Hazelwood the courts questioned
whether the First Amendment requires a school to promote student speech. They
noted that “the standard articulated in Tinker for determining when a
school may punish student expression need not also be the standard for
determining when a school may refuse to lend its name and resources to the
dissemination of student expression” (p.509). Certainly, when a school allows
students to use its computers for both classroom-related and extracurricular
activities it is providing students with resources and thereby becoming a
tacit sponsor of such activities. Therefore, it would seem that educators do
not violate First Amendment rights when they exercise control over
inappropriate forms of communication disseminated using school computers.
courts noted that educators have authority over school sponsored activities
since they are considered part of the school’s curriculum. This means that
schools are not legally obliged to promote
or allow school-sponsored speech that is
incompatible with its educational goals. This point is firmly solidified in
Fraser where, as previously noted, a student could be disciplined for
speech that is “wholly inconsistent with the ‘fundamental values’ of public
school education” (Servance, 2003, p. 1218).
If we apply this logic to the cyber bullying context, it seems reasonable for
schools to place limitations on any form of student expression (including
digital forms) that either infringes upon the rights of others or is
inconsistent with school values. Similarly, it could be argued that school
computers are school property; therefore, any emails or correspondence between
students, including websites created using those computers, could be censored.
Schools may also impose disciplinary consequences for bullying behavior
generated on school-owned equipment if schools have a policy regulating the
type of content that may be sent or received from school computers.
boundaries of supervision are murkier for schools, however, when students are
engaged in bullying behavior from home on their personal computers. For
example, in Emmett v.
(2000), which was mentioned earlier, the courts did not give, schools the same
authority to act as they have for websites that are created on school
computers. A key factor here was that the schools could not show that the off
campus-created website would cause a “material and substantial disruption” in
school. Similarly, in Killion v. Franklin Regional School District,
(2001), the court drew from Fraser, Tinker, and Hazelwood (as
well as Emmett and Beussink) to determine that schools must be
able to show substantial disruption in order to limit off-campus speech. In
this case a student used his website to denounce the high school athletic
director and make attacks on his sex life and his obesity. The court noted
that the school could provide no evidence that disruption to classes had
if a website is clearly derogatory, profane, threatening, or disruptive, the
schools may be supported in taking action, even when the website was created
on a home computer. In J.S., a Minor v. Bethlehem Area School District
(2000), a student created a website “Teacher Sux,” in which graphic pictures
of severed heads, along with a statement to “send $20.00 to help pay for a hit
man” was enough for a judge to uphold the expulsion of the student. The court
relied on other cases (e.g. Beussink v. Woodlands R-IV School District,
1998) holding that websites that are accessed at school, with an intended
audience within the school community, can be dealt with as on-campus speech.
The court further ruled that disciplining the student for off-school behavior
was appropriate in this case because the action “caused actual and substantial
disruption of the work of the school.”
in Layshock v. Hermitage School District (2006), senior Justin Layshock
created a parody of the principal on Myspace.com, which depicted him as, among
other things, too drunk to remember his own birthday. School administrators
placed Justin in an alternative school and banned him from participating in
any Hermitage High School events, including graduation. The parents went to
court, requesting a temporary restraining order to allow Justin to participate
at school until the case could come to trial. In deciding about whether or not
to lift the restraining order, the court noted that the school was able to
show substantial disruption to the work of school. In this case, so many
students accessed the website that the school had to shut down its computer
system, causing lost of instructional time and access for other students.
Indeed, the school was “abuzz about the profiles, who created them, and how
they could be accessed.” Judge McVerry, therefore, refused to lift the
restraining order, upholding the school’s discipline. By the time the case can
reach a full trial, the student will have long graduated.
In regard to
off campus behavior and Canadian courts, the high court has established in
(1996), that schools must maintain conditions that are conducive to leaning.
Although the Ross case involved the free speech of a teacher who distributed
anti-Semitic publications outside of school, the following statement from the
ruling has been quoted in almost every Charter argument for a positive school
Schools are an
arena for the exchange of ideas and must, therefore, be premised upon
principles of tolerance and impartiality so that all persons within the school
environment feel equally free to participate. As the board of inquiry stated,
a school board has a duty to maintain a positive school environment for all
persons served by it. (Para
Ross’s anti-Semitic publications were distributed outside the school context,
the court noted that he poisoned the school and classroom environment for his
Jewish students within the classroom. They knew about his publications and
felt threatened, fearful, and uncomfortable. This is highly applicable to the
cyber bullying context. For example, schools often maintain that cyber
bullying falls outside their realm of responsibility because it occurs after
regular schools hours. However, if we are to draw upon the rationale used in
the preceding cases from both
and the U.S., it would seem that the on-campus/off-campus (physical vs.
virtual space) distinction is moot if the actions cause disruption to the
learning environment. It is the effect of the harassment, bullying, and
threats (despite the fact that they are made outside of the physical school
setting) that is important. The key for schools is to determine a clear nexus
between the cyber bullying act and the school. This can be established if the
cyber bullying was accessed or displayed at school, if it causes substantial
disruption to the learning environment, or if the act created a poisoned or
hostile environment for any student. Once the nexus is determined, school
officials are justified - even obligated, to address it.
In sum, while
U.S. courts lean toward supporting student free expression, they stress
certain limits in the school context. Expressions that substantially or
materially disrupt learning, interfere with the educational mission, utilize
school-owned technology to harass, or threaten other students are not
protected by the First Amendment and allow school intervention. The reasoning
in these decisions does not substantially differ from a Supreme Court of
Canada decision in R. v. M.R.M (1998) relating to the right of schools
to restrict constitutional rights when school property and student privacy
rights are involved.
Student Privacy and Cyber bullying
issue could arise in cyber bullying situations, is the need for schools to
search a computer. In
under Section 8 of the Charter, everyone has the right to be free from
unreasonable search and seizure. Hence protection of privacy is guaranteed
within reasonable limits in a free and democratic society. Furthermore,
Section 7 of the Charter states that “everyone has the right to life, liberty,
and security of the person.” In the cyber bullying context, both these
sections are relevant. The boundaries with respect to the obligations on
schools to override search and seizure rights to protect others must be
balanced with the right to life, liberty, and security of the person.
Furthermore, victims might argue that their rights to life, liberty, and
security of the person are infringed under Section 7 when schools fail to
intervene and protect them from cyber bullying.
Section 1 considerations, the courts generally give priority to the safety of
the greater number of stakeholders as justification for overriding privacy
rights. In R. v. M.R.M. (1998) for example, the Supreme Court of Canada
ruled that as long as a school principal is not acting as an agent of the
police, he or she can search student lockers if there is a suspicion of hidden
weapons or drugs. The high court held that school lockers are the property of
schools. When there is a danger to safety and learning of the students, the
infringement on student privacy rights can be reasonably justified under
Section 1 of the Charter. Given the devastating psychological consequences of
cyber bullying on victims and the entire school environment, it is quite
possible that a Charter interpretation that requires a balancing of the
victim’s right to safety under S. 7 and the perpetrators’ right to computer
privacy under S. 8 and free expression under S. 2(b), the court might rule in
favor of the victim.
used by the Supreme Court of Canada in R. v. M.R.M. (1998) was that
students should already have a lowered expectation of privacy because they
know that their school principals or administrators may need to conduct
searches in schools, and that safety ought to be the overriding concern to
protect students. The high court explained its interpretation of a safe and
ordered school environment:
principals are placed in a position of trust that carries with it onerous
responsibilities. When children attend school or school functions, it is they
who must care for the children’s safety and well-being. It is they who must
carry out the fundamentally important task of teaching children so that they
can function in our society and fulfill their potential. In order to teach,
school officials must provide an atmosphere that encourages learning. During
the school day, they must protect and teach our children. (p. 394)
the United States, the Fourth Amendment of the U.S. Constitution guarantees
protection from unreasonable searches and seizures. The legal cases involving
schools have generally involved searches of lockers and backpacks, but
recently the principles of those cases are being applied to searches of
computers. Courts have held that schools need only “reasonable suspicion” to
search, but caution, “A student’s freedom from unreasonable search and seizure
must be balanced against the school official’s need to maintain order and
discipline and to protect the health and welfare of all the students”
(Alexander & Alexander, 2005). Schools may search school-owned property, such
as lockers for routine maintenance or when they have reasonable suspicion that
a student is harboring something illegal. In People v. Overton (1967),
the courts noted that schools can issue policies regarding what may be stored
in school lockers. Correspondingly, educators are entitled to conduct spot
checks or involuntary searches of lockers to ensure that students comply with
these regulations. In fact, the courts regard the inspection of student
lockers not only as a right but also as a duty of schools when it is believed
that a student is using school property to harbor illegal materials.
In terms of
technology it could be argued that, similar to lockers, emails are owned by
the school because they are transmitted using school property. Therefore, if a
student is suspected of sending harassing comments via email or has found such
comments while browsing on school computers, the school should consider it
their responsibility to monitor and discipline this activity. This point might
be further justified by cases such as Garrity v. John Hancock Mut. Life
Ins. Co. (D. Mass. May 7, 2002), where it was found that employers have a
right to inspect employee email accounts in cases where employees have been
warned their messages are accessible to the organization. With regard to
school searches, we can also consider cases such as New Jersey v. T.L.O.
(1985). In this ruling it was found that although students have a legitimate
expectation of privacy within the school setting, schools also have a right to
search student property if there are reasonable grounds for suspecting that
the student is violating either the law or the regulations of a school. Since
the landmark T.L.O. case, courts have given schools even more latitude in
conducting searches. In
(1995), for example, the constitutionality of conducting random drug testing
among student athletes was upheld. This was expanded again in Board of
Education of Independent School District No. 92 of Pottawatomie County v.
Earls (2002), where Justice Thomas said that students in any
extra-curricular activity “implicitly have a lower expectation of privacy.”
Again, it would seem reasonable for schools to apply this rationale to
technology, since students often use school-owned computers for purposes
beyond the academic curriculum. If students are informed in advance that
school equipment may be routinely searched (thus reducing their expectation of
privacy), schools are likely to be upheld in random searches of their networks
and school-owned equipment for purposes such as routine maintenance or when
they have genuine concern for students’ safety. Individual searches of
computers or a specific student’s internet use may be carried out if school
administrators have reasonable suspicion that a student has acted in violation
of district policy or has committed a criminal act.
Law and Negligence
claims are expensive and time consuming. When suing schools, parents often
turn first to the law of torts and negligence because it is remedial and
plaintiffs can seek compensation for torts or “wrongs” by the institution.
Negligence in supervision of children at school is one form of a tort.
When a claim
in negligence is brought against a school, the plaintiff must establish that
there was a duty of care and tangible harm, that the tangible harm was
foreseeable, and that the school official’s actions or omissions either
proximately or remotely caused the injury. Even though physical injuries are
tangible and (in Canada) easier to establish (MacKay & Dickinson, 1998), the
threshold for claimants in the U.S. is very high. School law cases involving
psychological harm are less common, but there are precedents. In Spears v.
Jefferson Parish School Board (1994), for example, a kindergarten teacher
scared one of his students by joking that he had killed another student. He
even went so far as to put a rope around the child’s neck and have him pretend
to be dead. All of this caused considerable psychological damage to the
student who was the brunt of joke, causing the court to find the school liable
for the actions of the teacher that resulted in emotional harm to the child.
also supported claimants in cases involving suicide or psychological harm that
could potentially result in suicide (Shariff, 2003). Bullying research and
numerous media reports confirm that “bullycide” (suicide by victims of
bullying) is on the rise (Harmon, 2004; DiGuilio, 2001). Similarly, courts in
Britain have ruled that bullying is not only an educational problem -- it is
also a health problem, acknowledging the severe consequences on the emotional
and sometimes physical health of victims (Shariff, 2003). Gradually, the
courts are beginning to recognize emotional and psychological harm as
“tangible,” including mental shock and suffering (Linden & Klar, 1994).
Therefore, claims for negligence against schools under tort law may be more
successful than charges of criminal harassment against perpetrators.
Canadian Human Rights and
Sexual Harassment and Discrimination Law
of law that relates to cyber bullying (particularly with respect to sexual
harassment in institutional settings), is Canadian human rights law which has
established an institutional obligation to protect sexual harassment victims.
Two cases illustrate this point.
involved a Canadian case of sexual harassment by a co-worker, both inside and
outside the workplace (Robichaud v. Canada, Treasury Board, 1987). The
Supreme Court of Canada ruled that institutions are responsible for providing
safe environments for their employees even if the sexual harassment by a
co-worker occurs outside of the workplace. The fact that the victim must face
their tormentors in the workplace imposes an obligation on the employer to
address the problem effectively. This case is highly relevant to cyber
bullying because school officials often maintain they are not responsible for
harassment by school-mates that occurs outside of school grounds, or outside
school hours. As the Supreme Court of Canada confirmed in Robichaud, if the
victim has to face the perpetrator within the institution, the institution is
responsible for correcting the problem no matter where the harassment actually
example involves the homophobic harassment of a male high school student of
Iranian heritage in
Canada (Jubran v. North Vancouver School District 2002). Even though
Azmi Jubran was not gay, his appearance caused the majority of students in his
class to tease him as being gay for the duration of his four years at
Handsworth Secondary School in North Vancouver. The British Columbia Human
Rights Tribunal ruled that the school had created a negative school
environment in failing to protect Jubran, or disciplining the perpetrators.
The tribunal ruled that they did an inadequate job of educating the students
to be inclusive and socially responsible. Upon appeal by the school board and
the high school, the British Columbia Supreme Court adopted a narrow
construction of the case. The judge ruled that, because the claim was brought
under S. 8 of the Human Rights Code (which protects homosexuals from
harassment), and because Jubran claimed that he was not homosexual – he had no
claim! The British Columbia Court of Appeal, however, rendered a more
thoughtful and practical ruling, overturning the Supreme Court decision and
re-instating the tribunal decision. The court reiterated that Jubran had every
right to a claim against the school and school board because they fostered and
sustained a negative school environment in which he was prevented from equal
opportunities to an education free of discrimination and harassment (see
Shariff & Strong-Wilson, 2005).
law provides protection from sexual harassment and gender discrimination is
provided under Title IX of the Education Amendments of 1972. Additional
protection for all forms of discrimination is provided under the
Equal Protection Clause of the 14th
Amendment of the U.S. Constitution, along with specific federal laws (e.g.
Titles VI and VII of the Civil Rights Act of 1964) and states’ Human Rights
states that “No person in the
shall, on the basis of sex, be excluded from participation in, be denied the
benefits of, or be subjected to discrimination under any education program or
activity receiving federal financial assistance.” Schools are clearly included
in this group, and courts have held that schools must take reasonable steps to
intervene in sexual harassment issues.
guidelines suggest that it is the school’s responsibility to take action when
they know or should have known about harassment. However, the standard of
“actual knowledge” versus “should have known” was tested in a landmark case on
sexual harassment in schools. In Gebser v. Lago Vista
Independent School District (1998), the Supreme Court of the United
States, in a 5-4 decision, supported the “actual knowledge” standard. In this
case a student was suffering abuse from her teacher. Some of it occurred on
school grounds during an Advanced Placement class, in which she was the only
student. The plaintiffs argued that the school should have known about the
abuse through proper supervision of the teacher. The court ruled that since
the student had told no one about the abuse, the school could not be held
liable. Although this seems to relieve schools of some responsibility, the
Gebser ruling made it clear that if the school had received any information
about this misconduct and had failed to take immediate action, the court would
have considered that “deliberate indifference.” This premise was tested in the
controversial landmark decision also in 1998. The case of Davis v. Munroe
(1988) involved the persistent sexual harassment of a 5th grade
female student, Lashonda Davis, whose parents informed the teachers and the
school principal numerous times to no avail. Lashonda’s grades dropped and her
health was negatively affected. In a majority 5:4 decision, the Supreme Court
ruled that in failing to act to protect Lashonda, the school had created a
“deliberately dangerous environment” which prevented “equal opportunities for
v. Podlesny (1996), the court relied on the protections guaranteed in the
14th Amendment of the U.S. Constitution in finding for the
plaintiff when the school failed to protect him against relentless harassment
he had faced for being gay. The federal judge pointed out that it was the
school’s responsibility to protect gay students just as much as they would any
cases illustrate that schools will be held liable if they fail to act when
students are being harassed at school. The logical next assumption is that
schools must likewise protect students from cyber bullying, which creates a
similarly dangerous environment for victims; engendering fear and distraction
and preventing victims from equal opportunities to learn.
Conclusion and Implications
This paper has
drawn attention to the complexities of cyber bullying, its insidious and
anonymous nature, and the forms through which it is conveyed. We have
explained that because it takes place prevalently on home computers and
personal cell-phones, it becomes difficult to supervise by school personnel.
We have provided the analogy of Lord of the Flies, which highlighted
social deterioration that occurs when adolescents remain unsupervised. We have
explained that it is most prevalent among adolescents and that it comprises a
significant amount of gender-based harassment and homophobia. Our review of
the legal considerations that arise with respect to defamation, freedom of
expression, student safety, and privacy in the school context highlights that
although online harassment occurs in virtual space, it nonetheless constitutes
a form of “real” violence and ought to be understood and interpreted this way
by schools and courts.
States constitutional cases covered in this paper disclose that while courts
continue to consider freedom of expression from a geographical perspective –
namely, on-campus versus off-campus expression, Tinker (1969) is applicable to
cyber bullying because it allows schools to intervene if such expression
materially and substantially disrupts learning. Furthermore, Fraser (1986)
confirms that schools are well within their rights to intervene when
expression impedes the educational mission of the school. Finally, as
Kuhlmeier (1988) and R. v. M.R.M. (1998) confirm, student privacy
rights are subject to school authority in cases where student safety is
concerned – justifying school locker searches. It can be argued that when
cyber bullying is conducted on school computers, such communication can be
confiscated and dealt with by school officials.
The right of
schools to intervene to reduce cyber bullying is also related to their
obligations to provide students with a safe school environment that provides
equal opportunities to learn. Canadian constitutional decisions in Ross
(1996) and R. v. M.R.M. (1998) support the need for schools to provide
positive school environments, which we have argued extend to virtual space.
Furthermore, human rights jurisprudence on sexual harassment in Canada and the
U.S. has supported the institutional obligation to address harassment
regardless of whether it takes place on or off school property.
courts provide schools and Internet providers with policy directions that
specifically address cyber bullying, these rulings at least provide reasonable
guidelines to inform educational policy and practice. In the meantime, it is
important for schools to foster inclusive school environments and attend to
every complaint of cyber bullying through educational and communicative means.
To do so, we propose a four pronged approach, which involves: 1) developing
appropriate policies; 2) encouraging university research, teacher education
and professional development; 3) endorsing online educational programming; and
4) empowering young people to engage in critical thinking to promote positive
scholars observe (Mackay & Burt-Gerrans 2005; Cassidy & Jackson 2005),
zero-tolerance policies, suspension, and criminal harassment charges against
adolescents rarely solve school problems (Giroux, 2003; DiGuilio, 2001). In
this regard, it is important that schools acknowledge their important role as
educators, and work with parents and relevant stakeholders to develop
non-arbitrary policies that can be implemented through positive educational
programs and critical thinking tools that provide students with beneficial
Internet experiences. A Canadian Internet organization that supports schools
(Media Awareness Network), has recently released its results on positive and
negative uses of the Internet (Steeves & Wing, 2005). Its website provides
excellent programming options for students at all grade levels. In the United
States, i-SAFE America, a nonprofit internet safety foundation endorsed by the
U.S. Congress, provides valuable resources to schools, students, parents, and
law enforcement officials in protecting the online experiences of K-12
students. Our point is that schools cannot address this problem alone. They
must inform their policies through collaboration with other stakeholders.
Research, Teacher Education, and Professional Development
faculties of education can assist the efforts of policy makers by conducting
further research, which can inform teacher education and professional
development on this emerging and complex form of virtual harassment. They
should also collaborate with the legal community to develop guidelines for
schools and incorporate this knowledge into teacher education, leadership
preparation, and professional development programs. By working together,
Ministries/Departments of Education, law enforcement providers, the legal
community, education and legal academics, Internet corporations, and community
organizations can curtail cyber bullying and protect students. It will require
considerable effort and a unified approach in order to delineate clearly the
parameters of civil behavior and establish consequences for misbehavior. But
only with such guidelines can we hope to rescue students from the virtual
Lord of the Flies
island where they now find themselves. The first step is to provide educators
with the tools they need to develop and implement inclusive, educational, and
legally defensible policies and practices in a rapidly evolving age of new
Interactive Online Educational Programs
advocate the development of interactive online educational programs that would
help students arrive at their own moral and ethical judgments about social
relationships and discrimination. It is essential that students are empowered
to take leadership and responsibility in fostering positive and inclusive
virtual environments. A number of positive initiatives have been commenced by
Media Awareness Network (Steeves & Wing, 2005); Willard (2005); Balfour (2005)
where adult programming provides the support and guidance on Internet and
technology use and relationships. Media Awareness Network, for example, found
in their recent study (Steeves & Wing, 2005) that children as young as nine
were interested in knowing how to authenticate information on the internet to
avoid predators and harassment. Many of the students interviewed expressed an
interest in finding educational resources and expressed a desire to engage in
responsible use of the resources available to them.
Student Empowerment and Critical Thinking
empowerment and student participation in learning, critical thinking and
rule-making are of significant importance so that we do not abandon young
people on the island of virtual reality. It is crucial that we engage young
people in the rule-making aspects relating to responsible-use of new
technologies, and work with them (on a consistent and supportive basis) to
help them think critically about the consequences of their actions for the
victims, their own education and their families. In this regard, the
international work of TC2 (The Critical Thinking Consortium) directed by
Professor Roland Case (in press, 2005) would be highly applicable. The
consortium works with schools and teachers to infuse critical thinking into
the curriculum, whereby students are presented with problematic scenarios and
taught the tools to help them to make reasoned judgments about their actions,
attitudes, and responses in specific situations. As Willard (2005) suggests,
in the cyber bullying context, it is of crucial importance that we provide the
supports to help young people reconnect with their sense of ethics so that
they can think critically about the impact of their online actions and
In sum, now
that the complexities and negative potential of new technologies have emerged,
it is time to work collaboratively with students, parents, technology
corporations, universities, law enforcement providers, and government to
establish codes of conduct and guidelines. While technology corporations are
reluctant to monitor and edit online abuse because of the reverse effect of
protective laws that might hold them liable in the United States, courts need
to revisit their approach to liability and develop a more balanced approach
that resembles the decision adopted by a British court in Godfrey v. Demon
Internet Ltd. (1999). The court in that case held that once the ISP knows
about the cyber bullying and fails to act, it is liable under the
Defamation Act of 1996, 31 (Eng.).
cannot rely on Internet providers or the courts. We must monitor virtual
discourse on a regular basis, and act quickly to address complaints of cyber
bullying before adolescent relationships deteriorate to the level that they
did on that remote island in Lord of the Flies. If we can prevent even
one child or teenager, like Piggy, from falling through the cracks and down
the cliff of virtual reality, then we are well on our way to protecting and
educating students, and keeping schools out of court.
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Assistant Professor, Department of Integrated Studies, Faculty of
Education, McGill University 244 - 3700 McTavish Street Montreal,
Quebec, Canada Email:
Specifically, it draws on research related to the impact of cyber
bullying on student safety and learning in U.S. and Canadian schools
(Willard, 2003; Servance, 2003; Aftab, 2004; Belsey, 2005; Balfour,
2005; Myers, 2006). It builds on publications and on-going work by
Shaheen Shariff, Principal Investigator, Margaret Jackson and Wanda
Cassidy, Co-Investigators, and Colleen Sheppard, Collaborator, under a
grant funded by the Social Sciences and Humanities Research Council of
Canada to research the legal and educational policy implications of
cyber bullying, (the “Cyber bullying Project”). The project goal is to
develop a profile of cyber bullying as it differs from general bullying;
examine its prevalence and impact; review legal considerations related
to freedom of expression, safety, and school liability; and contribute
to international conventions relating to children’s rights (Shariff,
2005; Shariff & Gouin, 2005; Shariff & Strong-Wilson, 2005; Jackson
et al, 2006).