There is no federal statue directly addressing cyberbullying. The federal law impacts cyberbullying when harassment is covered by the federal civil rights laws governing discrimination. The federal law can be implicated in certain cyberbullying incidents especially when student speech is being restricted. School districts are challenged daily addressing bullying and cyberbullying with on and off campus bullying behaviors and schools are sometimes challenged in court as free speech violations. All 50 states have enacted laws that prohibit bullying in school settings, provide legal recourse to victims of bullying in schools, and impose duties on schools regarding the development of anti-bullying policies (Green, J.D., 2016). Many cyberbullying behaviors fall under criminal or civil legislation such as, harassment, stalking, felonious assault, and acts of hate or bias.
Civil Rights and cyberbullying are related when bullying behavior is about color, race, disability, sex, nationality or other forms of protected class and if their conduct creates a hostile environment. These behaviors may have claims under Title IV and Title VI of the Civil Rights Act of 1964, Title IX of the Education Amendments of 1972, Section 504 of the Rehabilitation Act of 1973, Title II and Title III of the Americans with Disabilities Act of 1990, and Individuals with Disabilities Act (Federal Laws, 2014, 2017). If a student continuously taunts, name calling, or shoves another student or students, it is considered harassment and violates a student’s civil rights.
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When this type of behavior happens, administrators are expected to investigate and respond with civil rights in mind and the hostile environment needs to be eliminated to prevent future harassment. Federal claims can be against only the entity that receives financial assistance, typically a school board or school district. There must be proof of deliberate indifference to known harassment and the victim was deprived educational opportunities (Kimmel & Willard, 2018). Administrators may argue not to address cyberbullying issues because they do not believe they have caused widespread disruption in school even though they are required to address all bullying and cyberbullying incidents. Cyberbullying under the Tinker standard does not require school wide disruption but can be under behavior interfering with a student’s educational performance (Kimmel & Willard, 2018).
In Tinker, a public school district suspended students who wore black armbands to school to protest the Vietnam War, but the Court held that wearing armbands to make a political statement was protected under the First Amendment. To prohibit a particular expression of opinion, the Court ruled, school officials must be able to show that the expression would substantially interfere with the work of the school or impinge upon the rights of other students. (Kimmel & Willard, 2018)
Since Tinker, the Supreme Court has carved out some additional narrow categories of speech that a school may restrict even without the threat of substantial disruption, such as lewd speech at an assembly (Bethel School District v. Fraser) or banners promoting illegal drug use (Morse v. Frederick). (Kimmel & Willard, 2018)
Schools must respond appropriately when a student, staff, or an educator files a harassment complaint and schools need to be an active participant. The victim can contact their Title XI/Section 504/Title VI coordinators for assistance. If harassment continues, a formal grievance can be filed with the school district, the U.S. Department of Education Office for Civil Rights (OCR) and the U.S. Department of Justice’s Civil Rights Division (Federal Laws, 2014, 2017).
Cyberbully resembles some traditional forms of bullying and harassment, but many cyberbullying behaviors take on a whole new way of bullying. Cyberbullying victims are targeted 24/7 and do not escape bullying when they go home. The ease to cyberbully makes matters worse because social media posts can go viral, allowing a large amount of participation, even from people the victim does not know. Many times, this behavior will be done while in school or at a school event. The victim, if reported, will be able to report an incident and the school is obligated to step in and resolve the situation appropriately.
Some cyberbullying incidents do not call for legal intervention (minor teasing) and it’s difficult to pinpoint which behavior does cross the line and becomes a legal matter. Either way you look at it, cyberbullying and bullying cannot and should not be ignored. Once educators learn of a bullying incident, they have a duty to respond and ensure it stops. Suspending the bully isn’t enough and it must be ensured the bullying stops and the victim is safe.
After completing the 13 Reasons Why Netflix series recently, it was an eye opener of how far bullying and cyberbullying can really go. If this was done in Massachusetts, Section 370, Chapter 92, and Section 43A would apply as well as the civil rights of many students in the series.
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