by Naeema Hernandez, Intern,
and Jesse Krohn, Intern,
National Women's Law Center
On Sunday, the New York Times ran an article about cyberbullying and the difficulties schools are having in assisting the victims and punishing and deterring the offenders. It’s a complicated issue. No one could underestimate the pain and humiliation endured by a young student tormented by harassing text messages, cruel Facebook posts or nasty emails; such harassment has the additionally painful element of inescapability, unlike traditional schoolyard bullying—the tormenters can reach you at literally any time of day, in any place, including at home, at church, at soccer practice, or at any other place you consider a sanctuary. At the same time, the school officials have expressed concern that the “off campus” nature of cyberbullying makes it difficult to regulate, as the case the Times explored, J.C. ex rel. R.C. v. Beverly Hills Unified School Dist., exemplifies.
Yet there are legal tools for addressing cyberbullying. For example, if it is reasonably foreseeable that “off campus” speech will make its way to campus, the speaker does nothing to stop the migration, and there’s a nexus between the speech and the school, it’s not “off campus” anymore. And if it causes substantial disruption in school, or the risk thereof, it can be regulated, and may violate Title IX. Had the harassment LaShonda Davis suffered come in the form of text messages sent from the desk next to her instead of whispers, or from a YouTube video students watched crowded around a screen in the computer lab instead of shouted across the playground, it seems likely the Supreme Court would have reached the same conclusion it did in Davis.
There also are a number of policy proposals, particularly with the upcoming reauthorization of ESEA that could provide another opportunity to address cyberbullying and cyber sexual harassment. There is a significant emphasis on measures that address school climate, and Congress could include cyberbullying and cyber sexual harassment as a part of the broader initiatives to address school climate.
These changes cannot undo the hurt that has been done or change the often troubling attitudes about respect and empathy projected by cyberbullies, but they can provide useful tools to schools and to victims and their families as society works to address this disturbing phenomenon.