Anti-Bullying Policy Takes a Village

Does social media bullying raise to the level of “substantial disruption;” in Tinker v. Des Moines, should parents be held responsible; if so how? [6][1][7]

Secret Weapon: Recruiting Parents to Stop Bullying

Cyberbullying is a pervasive problem that is vastly misunderstood. In this article, elements of anti-bullying policy are addressed. First, the problem is generally explored from the lens of policy. Then, the case within the New York Times, JC V. Beverly Hills Unified School District (2010), is examined to understand the schools limitations with respect the students First Amendment rights according to case law. [5] Finally, the elements of proactive policy are used to evaluate the parental actions of CC and JC’s parents and offer both take aways and other factors to consider as we move from an analog to a digital world.

New Title IX Amplifies 9X

In the middle of the Pandemic, the U.S. Dept. of Education released new regulations that severely change previous law and policy. Schools are an Institution of learning, but when we punish versus re-teach, we lose this element, and criminalize our youth. Stated another way, most parents would likely rather have their students make mistakes when they can still guide and educate, this is why we do not send children to prison. The School to Prison Pipeline muddies these waters. Beyond the scope here, but discussed in Comments to Chicago Police Department in Response to the Consent Order. [15]

Ideation of What Parental Education Looks Like in Bullying Responsibility

Stronger than the “general” parental awareness programs and more impactful than a module or webinar with a simple assessment, the education session may be as simple as attending a group study on 13 Reasons Why.[4] We do not need a “Bueller” class. We need a quick remedy to propel change. [23] Where the child, parent, or child and parent are led in an exploration of the dangers of bullying, the ramifications of defamation, and the impact on the student record. In short, schools must use proactive policy to create sustainable change immediately. Our students’ lives are too important watch this impending carnage as unaddressed behaviors are allowed, and students’ lives are forever changed, and or tragically ended.

despite the father “not condon[ing] cyberbullying…he describes [his daughter’s video as merely] “‘relentlessly juvenile.”’ [1]

In short denying that this case, where 90 views of the defamatory video was evidence of cyberbullying. [5]

Except taken from the New York Times article [1]

If not us who,

if not now, when?

https://cyberbullying.org/summary-of-our-cyberbullying-research

J.C. v. Beverly Hills Unified School District (2010)

As evident J.C. v. Beverly Hills Unified School District, CV 08–03824 SVW (CWx) (C.D. Cal. 2010), a student, JC, recorded a cruel video directed at one student and placed it on Youtube for all to see. While the court has been somewhat inconsistent towards cyberbullying, in this case, the court relied heavily on the “materially substantial disruption” test of Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503 (1969). [6] Where the Supreme Court famously held,

“It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”

The Court reasoned noting several other cases as evidence to guide the application of Tinker. The three largest cases are summarized below as applied to JC. This article is provided for educational purposes, it is not legal advice, but rather serves to illustrate what must be considered deferential in when drafting policy to balance the First Amendment rights of students against the need of schools to educate.

Holding: The Court determined that despite’s JC’s mean comments, she has a First Amendment right. The Court ordered the District to pay over $107,000 in legal fees, but the School Administration was offered Qualified Immunity. [5]

Facts of the Case

The facts of the case are as follows: On the afternoon of Tuesday, May 27, 2008, after school was dismissed, JC and friends “gathered at a local restaurant,” where she recorded a 4 minute and 30 second video of “her friends talking.” The video was not recorded with any school resource, and was uploaded at her home later in the evening. J.C. then shared this with several students including the victim, C.C.,

“R.S., calls C.C. a ‘slut,’ says that C.C. is ‘spoiled,’ talks about “boners,” and uses profanity during the recording…

R.S. also says that C.C. is ‘the ugliest piece of shit I’ve ever seen in my whole life…’

During the video, J.C. is heard encouraging R.S. to continue to talk about C.C., telling her to “continue with the Carina rant…“ [5]

“In the evening on the same day, [JC] posted the video on the website ‘YouTube’ from her home computer…a publicly-available website where persons can post video clips for viewing by the general public. While at home that evening, Plaintiff contacted 5 to 10 students from the School and told them to look at the video on YouTube. She also contacted C.C. and informed her of the video.” [JC] estimates that about 15 people saw the video the night it was posted. The video itself received 90 “hits” on the evening of May 27, 2008, many from [JC] herself…”

C.C. said she faced ‘humiliation’ and had ‘hurt feelings…’ Hart spent roughly 20–25 minutes counseling C.C. and convincing her to go to class.

C.C. did return to class, and the record indicates that she likely missed only part of a single class that morning…”

Reasoning: Substantial Disruption: Tinker’s Balancing Test (1969)

The legal test used to determine whether the First Amendment rights of students have been violated is known as the, “substantial disruption” test. Tinker (1969)[6] This dates back to the Vietnam War where students wore black armbands in solidarity to protest the war. The Supreme Court opined that so long as there was not “material substantial disruption,” students retained their First Amendment rights. [6] In subsequent cases, even the mechanism by which the material may come to school and “disrupt,” e.g., email, newsprint, or posters was examined. We see this same reasoning in JC, where the Court opined that CC the victim, had not missed enough class, nor had the other accomplices, nor even the Administration to justify, “substantial disruption.” Further, the very site the video was uploaded to, Youtube, was blocked by the school. Therefore, the lack of a vehicle for disruption coupled with no “substantial disruption,” tips the scale in favor of Government overreach in JC’s suspension. [5]

Students Shall be Afforded Due Process, Goss v. Lopez (1975)

These “due process,” procedures should outlined in the school’s handbook on, which is required by law as noted in Goss v. Lopez (1975)[29] Generally, this consists de minimus of notice and opportunity for a hearing, though the formality surrounding same falls to academic deference. Id.

Hazelwood (1988) & Fraser (1986): Location Guides Authority

In two cases, location was largely found to be a relevant factor whether or not a school may censor content, the guidelines of such were clearly limited to “in school.” In Hazelwood School District v. Kuhlmeier, (1988), the Court held that the school could censor student editorials on both teenage pregnancy and divorce written in the school newspaper so long as it was tied to “pedological purposes,” due to “imprimatur” towards the Missouri school.[7]

Morse: Time Determines Authority (2007) BONG HiTS Jesus

In Morse v. Frederick, 551 U.S. 393 (2007), A student was denied his First Amendment rights during an off campus, school event opining, one, “cannot stand in the midst of his fellow students, during school hours, at a school-sanctioned activity and claim he is not in school,” it was this reasoning that permitted the School to have jurisdiction over Freedom of Speech, as it relates to a “governmental interest in stopping student drug abuse” and concluded that schools may restrict student expression at a school-sponsored event that they reasonably regard as promoting illegal drug use. [8]

Analysis & Conclusion: School Does Not Possess Authority

In JC the recording occurred off campus, on private equipment, and uploaded and sent after school hours. Further, again, YouTube was not accessible to students during school hours.

Policy Implications: Proactive Education RE: JC

This scenario is hardly unusual within the reality of schools. In JC, several parties failed to act proactively, which ultimately highlight that parents as well as students need education so that they may set proper examples for their children to follow, and use teachable moments to provide a unified front of respect. Let’s look at this from both parents perspectives: As a parent of CC, I would not have asked for the video to be left up, only so I may present it to the school. By doing such, I am amplifying the issue, (allowing more people to view) and modeling a response that could lead to victimization. Instead a proactive response is to screen record it, and contact the other party stating in no uncertain terms that the video was cruel and requesting it be taken down immediately. Currently, there is even a Youtube feature where one can report such. As JC’s parent, I would have been more than receptive to learn that my child had behaved in a manner that if as an adult, may jeopardize employment or depending on the nature, incur criminal charges or defamation, I would have sought to support the school, and used the school handbook of policies and procedures as my guide. Instead this parent felt that litigation was the answer.

A Word on Data, Privacy, & Surveillance

Of future interest, yet not elaborated further here, is that several other cases used previous data points to answer the pertinent questions raised in Tinker, Morse, Hazelwood, and/or Faser. The unequal reliance on same could intensify as schools lean more heavily on surveillance technology and ubiquitous student data records. E.g., JC had been suspended prior within the year for video recording teachers and students without permission and placing these on YouTube. [5] In JC, this was determined to be a non sequitur as these were unrelated to speech, but rather, “conduct.” In other cases prior behaviors seemingly unrelated were considered.

Cyberbullying: Parents as Partners

Again, the solution lies in parents and schools working together to mitigate, educate, and prevent. Education differs from punishment. I strongly urge any school to have a clearly articulated policy on cyberbullying including clear decisive actions that the school will and will not take. These actions should illustrate suggested consequences as a function of severity and incorporate the laws of the jurisdiction when possible. Clear expectation management is key to creating, facilitating, and maintaining a culture of respect. It is unclear if this was or was not done within Beverly Hills Unified School District. Nonetheless, parents are an asset to anti-bullying initiatives, they must be are educated and leveraged as key partners in cyberbullying initiatives. The School over reach cost over $107K. Per the New York Times

“Mr. Cohen hopes his daughter learns…about the limits on governmental intrusion…But Mr. Cohen keeps it posted, he said ‘as a public service,’ so viewers can see ‘what kids get suspended for in Beverly Hills.’”

I have my own views on this statement, I will leave them for another post, they are unfavorable. I will close with this, while he chooses to leave the video on display, it is unknown how many students may view and suffer in silence. Perhaps he has reconsidered, as he does not “condone” cyberbullying. In sum, I respect the lesson he taught, but not the manner in which he arrived there, i.e., the ends do not justify the means.

Resources Consulted

[1] Online Bullies Pull Schools Into the Fray (2010) https://t.co/SpZ3et2ImP?amp=1

--

--

Get the Medium app

A button that says 'Download on the App Store', and if clicked it will lead you to the iOS App store
A button that says 'Get it on, Google Play', and if clicked it will lead you to the Google Play store
Jenny Balliet

Jenny Balliet

Frmr. Dir. of Presentations, Athena.Trade | E Media Group | Educator|ADD/ADHD Coach |M.Ed. |Writer | MLAW |Founder of MinED & Lula & CO|Mom (14yo Gmer./Writer)