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Generation after generation, we have encountered the “playground bully” whether it be literally on the playground at school or off-campus on the way home. Once home, we had an opportunity to step away from the bully, find safety and regroup. With the invention of the Internet, smart phones, gaming consoles and other forms of technology, bullies ares now capable of infiltrating the home and permeating a student’s life. “Cybercides” (suicide after cyberbullying) have become an alarming new trend.

New York State’s Legislature and governor have reacted by enacting the Dignity for All Students Act (“Dignity Act”) and amending it this June in what has been described as a cyberbullying law. The Dignity Act became effective on July 1, 2012, and the new cyberbullying provisions take effect on July 1, 2013.

What has been made clear by the Dignity Act and its related guidance and regulations is that school districts must have processes in place to address harassment, bullying and discrimination incidents that occur on school property and at school functions.

The law states:

No student shall be subjected to harassment by employees or students on school property or at a school function; nor shall any student be subjected to discrimination … by school employees or students on school property or at a school function.

As school districts have begun the task of addressing the numerous policy, code of conduct, and training requirements of the Dignity Act, one of the most difficult legal questions involves bullying and cyberbullying that occurs off-campus. When can school administrators take disciplinary action or other action based on off-campus communication? When is such speech protected by the First Amendment?

The specific question on whether school districts can discipline students for off-campus cyberspeech has not been addressed by either the U.S. Supreme Court or the U.S. Court of Appeals for the Second Circuit, which has jurisdiction over New York State. But the Dignity Act appears consistent with well-established legal principles about when school districts can take action based on off-campus speech including cyberspeech. The starting point in student free speech analysis is the 1969 U.S. Supreme Court case of Tinker v. Des Moines Indep. Community Sch. Dist., in which the majority opinion by Justice Abe Fortas famously stated that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”

In Tinker, three students aged 13, 15 and 16 wore black armbands to school in order to protest the Vietnam War. After the school banned the armbands under its dress code, the students, with the help of the American Civil Liberties , challenged the policy as a violation of their First Amendment rights. In ruling for the students, the Supreme Court found the armbands to be expressive conduct and could not be banned absent a showing of a “compelling interest.” The court stated that in order to demonstrate a sufficiently compelling interest, the school district must demonstrate a substantial disruption of or material interference with school activities. In Tinker, the Supreme Court determined that the school failed to demonstrate that the mere wearing of the armbands at school posed any kind of a threat of material and substantial interference with the operation of the school, and therefore there was no compelling interest in restricting the speech.

Consistent with Tinker the Second Circuit decided in favor of a school district in the 2007 case Wisniewski v. Board of Education. In Wisniewski, an eighth-grade student in the Weedsport Central School District used as his AOL Instant Messenger icon a small drawing of a pistol firing a bullet at a person’s head with the words “Kill Mr. Vander- Molen,” his English teacher. The student sent IM messages, off-campus, displaying the icon to approximately 15 students. When the school discovered the student’s icon, it suspended him for five days. In addition, the English teacher requested to stop teaching the student’s class due to the emotional trauma he experienced as a result of the icon.

Even though the student posted the messages offcampus, the court stated that “off-campus conduct can create a foreseeable risk of substantial disruption within a school.” In reaching that determination, the court held it was foreseeable that the IM icon would come to the attention of school authorities and that the “threatening content of the icon,” the “extensive distribution” of the content (15 people), and the time period for which the speech was distributed (three weeks) all made the risk “foreseeable to a reasonable person” and “would foreseeably create a risk of substantial disruption within the school environment.”

In 2008 the Second Circuit again decided in favor of a school district and its regulation of off campus speech. In Doninger v. Niehoff, a student brought a case against her school’s administration after she was prohibited from running for school office. The prohibition was imposed because she posted a message, off-campus, on her public blog, criticizing the school district. The message stated, falsely, “Jamfest is cancelled due to douchebags in central office . . . [a]nd here is a letter my mom sent to Paula [Schwartz] and cc’d Karissa [Niehoff] to get an idea of what to write if you want to write something or call her to piss her off more.” Subsequently, the school administration received numerous phone calls and email messages about Jamfest, forcing school administrators to spend an inordinate amount of time addressing the misinformation with the public and causing them to miss or arrive late to several school-related activities.

The court determined that it was foreseeable that the off-campus expression would reach campus. The student’s intent “to encourage her fellow students to read and respond,” the fact that it related to school events, and that the speech actually reached school administrators was all relevant in the court’s analysis.

The court found that the posting “foreseeably create[ d] a risk of substantial disruption within the school environment” as it (1) contained “potentially incendiary language,” (2) falsely stated that the Jamfest had been cancelled and (3) directed calls and emails to the school administration.

The court also noted in its analysis, “[t]he question is not whether there has been actual disruption, but whether the school officials ‘might reasonably portend disruption’ from the student expression at issue.” Id.

The court held, as it did in the Wisniewski case, that the student could be disciplined for the off-campus speech/conduct because it “foreseeably create[d] a risk of substantial disruption within the school environment.”

The legal standard of foreseeable risk is clear. What is unclear is what forms of off-campus cyberbullying rise to the level of foreseeably creating a risk of substantial disruption within the school environment.

Federal court decisions outside of New York tend to indicate that there is a distinction between speech that attacks specific individuals as opposed to speech that expresses a general political, social, or religious message without any direct connection to a student.

For instance, in Kowalski v. Berkeley County Schools, et al. (4th Circuit, 2011), a 12th-grade student used her home computer to create a MySpace discussion group webpage with the heading “S.A.S.H.,” allegedly an acronym for “Students Against Sluts Herpes.” A student named Shay was the main subject of discussion on the webpage. The creator invited more than 100 people to join the group, and 24 did so, some using school computers after school. They uploaded photos and posted more comments mostly focused on Shay.

Subsequently, Shay’s parents filed a harassment complaint with the district regarding the discussion group. In addition, Shay did not attend classes the day the complaint was filed, feeling uncomfortable about sitting in class with students who had posted comments about her. The webpage’s creator was suspended and she brought an action against the school district and school officials, alleging that the suspension violated her free speech rights.

Citing Tinker, Donninger and Wisniewksi, the court decided in favor of the school district, holding that “given the targeted, defamatory nature of Kowalski’s speech, aimed at a fellow classmate, it created … actual … substantial disorder and disruption in the school.” Even though Kowalski was not physically at the school when she operated her computer to create the webpage … “it was foreseeable… that Kowalski’s conduct would reach the school via computers, smartphones, and other electronic devices, given that most of the … group’s members and the target of the group’s harassment were … students.”

Court decisions to date point to the conclusion that when a student’s off-campus speech personally attacks a particular student, courts are more likely to allow school districts to regulate student speech because there is a consequential link between the speech and the likely student harm to follow. On the other hand, speech that is not directed at an individual student appears more likely to be afforded First Amendment protection as it is less likely to create a substantial disruption and to inflict harm.

In New York, the Dignity Act appears to make a similar distinction regarding personal attacks in its definition of “harassment.” The Dignity Act defines “harassment” as “the creation of a hostile environment by conduct or by verbal threats, intimidation or abuse that has or would have the effect of unreasonably and substantially interfering with a student’s educational performance, opportunities or benefits, or mental, emotional or physical well-being; or conduct, verbal threats, intimidation or abuse that reasonably causes or would reasonably be expected to cause a student to fear for his or her physical safety; such conduct, verbal threats, intimidation or abuse includes but is not limited to conduct, verbal threats, intimidation or abuse based on a person’s actual or perceived race, color, weight, national origin, ethnic group, religion, religious practice, disability, sexual orientation, gender or sex” (emphasis added).

Furthermore, in June 2012, the New York State Legislature passed additional cyberbullying provisions which will be added to the Dignity Act and includes language from the Wisniewski/Donninger cases. Under these new provisions, which become effective July 1, 2013, “harassment” and “bullying” are defined as “the creation of a hostile environment by conduct or by threats, intimidation or abuse, including cyberbullying, that (a) has or would have the effect of unreasonably and substantially interfering with a student’s educational performance, opportunities or benefits, or mental, emotional or physical well-being; or (b) reasonably causes or would reasonably be expected to cause a student to fear for his or her physical safety; or (c) reasonably causes or would be expected to cause physical injury or emotional harm to a student; or (d) occurs off school property and creates or would foreseeably create a risk of substantial disruption within the school environment, where it is foreseeable that the conduct, threats, intimidation or abuse might reach school property. Acts of harassment and bullying shall include, but not be limited to those acts based on a person’s actual or perceived race, color, weight, national origin, ethnic group, religion, religious practice, disability, sexual orientation, gender or sex” (emphasis added).

The State Education Department has frequently updated its regulations and guidance on the Dignity Act – see http://www.p12.nysed.gov/dignityact/. Given the recent amendments regarding cyberbullying, we anticipate further updates from NYSED in the year ahead.

This area of law is evolving as new cases arise. It is particularly important for school officials to consult with counsel because of the constitutional issues involved as well as the new requirements of the Dignity Act. To address cyberbullying, school boards should develop a plan, with appropriate legal counsel, for local action to implement the Dignity Act. Your board’s discussions should be informed by an awareness of the legal principles regarding speech in and out of the schools. Be prepared for change as the law continues to develop on cyberbullying and other consequences of expanding technological capabilities.

Members of the New York State Association of School Attorneys represent school districts and BOCES. This article was written by Joseph J. Bufano and Donald E. Budmen of the East Syracuse law firm of Ferrara, Fiorenza, Larrison, Barrett & Reitz, P.C.

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