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School rules and laws related to online abuse
Original post made
on Aug 16, 2013
Youth and their parents should know and discuss the basic legal rules of the road related to online use and abuse. Here are some key areas to consider, identified through Weekly interviews and the sources listed below.
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posted Friday, August 16, 2013, 7:00 AM
Posted by Edmund Burke,
a resident of Another Palo Alto neighborhood
on Aug 21, 2013 at 12:26 am
I believe "understatement" could benefit from a bit of information about how courts view the decisions of other courts. There are two kinds of precedent among courts: binding and persuasive. Binding precedent consists of the decisions of courts that a court MUST follow. This is primarily hierarchical but also geographical.
All courts must follow the precedent of the Supreme Court. District courts within the Ninth Circuit must follow Ninth Circuit precedent, as must subsequent panels of the Ninth Circuit itself. Persuasive precedent, alternatively, is exactly what it sounds like. It is particularly likely to be influential when there is no binding precedent within a circuit. So, when the Ninth Circuit has no case on a subject, it will look to the opinions of other circuit courts of appeals to see how they have decided a particular matter. Because there are implications if a circuit split is created, this kind of inquiry can prove to be important. District court opinions are generally not treated by courts of appeals as any kind of authority, binding or persuasive except in exceptional circumstances.
Now that we have some basics covered, let's return to your question, which is: what has the Ninth Circuit said on this topic? The answer is that in the Ninth Circuit, the test that is applied for determining whether or not off-campus speech can be censored or sanctioned is the "substantial disruption" test derived from the Supreme Court's ruling in Tinker.
Incidentally, another prong of Tinker, the "rights of others" prong, was used to uphold discipline of anti-gay speech in Poway, but that case was vacated by the Supreme Court in 2007. It is still interesting to read that case, in which Judge Reinhardt -- the court's foremost First Amendment absolutist -- took a very forward-looking stand against anti-gay bullying. If that case was decided by the Supreme Court now, post Lawrence, and post-DOMA, it is very likely that Judge Reinhardt would be upheld. As it is, that decision will have to wait for another day because after cert was granted the case was mooted and the Court never decided it one way or the other. Nonetheless, Judge Reinhardt's beautifully written opinion gives voice to the concern over bullying:
"Being secure involves not only freedom from physical assaults but from psychological attacks that cause young people to question their self-worth and their rightful place in society. The "right to be let alone" has been recognized by the Supreme Court, of course, as "`the most comprehensive of rights and the right most valued by civilized men.'" Hill v. Colorado, 530 U.S. 703, 716-17, 120 S.Ct. 2480, 147 L.Ed.2d 597 (2000) (quoting Olmstead v. United States, 277 U.S. 438, 478, 48 S.Ct. 564, 72 L.Ed. 944 (1928) (Brandeis, J., dissenting)). Indeed, the "recognizable privacy interest in avoiding unwanted communication" is perhaps most important "when persons are `powerless to avoid' it." Id. at 716, 120 S.Ct. 2480 (quoting Cohen v. California, 403 U.S. 15, 21-22, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971)). Because minors are subject to mandatory attendance requirements, the Court has emphasized "the obvious concern on the part of parents, and school authorities acting in loco parentis, to protect children especially in a captive audience. . . ." Fraser, 478 U.S. at 684, 106 S.Ct. 3159. Although name-calling is ordinarily protected outside the school context, "[s]tudents cannot hide behind the First Amendment to protect their `right' to abuse and intimidate other students at school." Sypniewski v. Warren Hills Reg'l Bd. of Educ., 307 F.3d 243, 264 (3rd Cir.2002)." Harper v. Poway, 445 F.3d 1166 (9th Cir. 2006).
In other words, even as strong a First Amendment advocate as Stephen Reinhardt concluded that bullying of students on the basis of protected classifications was sufficiently grave in nature that it intruded on their rights such that a school was permitted to regulate that speech, even when it would ordinarily be protected by the First Amendment.
However, because that case was vacated, the opinion stands only for the fact that two Judges on the Ninth Circuit, in 2007 -- before the link between bullying and suicide was well-established -- believed that discriminatory harassment was sufficiently damaging to student psychological well being to justify abrogating the First Amendment. That's a harbinger -- a sign about what the Ninth Circuit would do with such a case if it got it now that we know so much more about the potential disruptions and harm that can be caused to an entire school (the empirical evidence has grown in the intervening years) by bullying, particularly bullying based on sex, race, or other protected classifications.
So now let's look at what law we do have in the Ninth Circuit for precedent. The case you cited, JC v. Beverley Hills USD is a district court case, not a Ninth Circuit case. But the Ninth Circuit did indicate in LaVine v. Blaine School District, 257 F.3d 981 (9th Cir. 2001) that the geographic origin of the speech (off campus versus on) is unimportant to the Tinker analysis of whether or not the speech causes a "substantial disruption" to the school environment (or whether or not school officials reasonably believe that such speech is likely to create a substantial disruption if it has not already occurred).
As the court you cited, JC v. Beverly Hills concluded in 2010 after an extensive review of the precedents, "In sum, the substantial weight of authority indicates that geographic boundaries generally carry little weight in the student-speech analysis. Where the foreseeable risk of a substantial disruption is established, discipline for such speech is permissible."
Thus, whether the bullying occurs on or off campus, on the internet or via smokesignal or semiphore, the test is the same: does the speech cause a substantial disruption to the school environment? If the answer is yes, then the school can regulate it, including disciplining the involved students (subject to any discipline rules in the state education code). If the answer is no, then the First Amendment may provide some restrictions on what the school can do.
As to whether or not cyberbullying causes a "substantial disruption," that is a highly fact-intensive inquiry sensitive to the circumstances of each case. However, it is clear that where harassment based on protected classifications rises to the level of being severe, pervasive, and creating a hostile educational environment, it is almost certainly the case that it is a "substantial disruption." That is because in order to be "severe" and "pervasive" it would meet the requirements for "substantial."
A disruption is "substantial" under Tinker when it "materially disrupts classwork or involves substantial disorder or invasion of the rights of others." Tinker, 393 U.S. at 513, 89 S.Ct. 733. In the JC case the district court found that the specific facts of that case, in which the student targeted was not at risk, no classes were missed or teachers were taken from their work, and the video was only posted to YouTube for 24 hours, it did not meet that test. By contrast discriminatory harassment targeting members of a protected classification based on that status is by definition going to be a substantial "invasion of the rights of others."
It is worth noting that the JC case was decided before the epidemic of highly publicized teen suicides related to cyber bullying occurred, such as that of Reteah Parsons, Audrie Pott. That was before Steubenville, and before it was clear just how dangerous such online cyberbullying related to rape can be. JC was not decided by the Ninth Circuit, and based on Harper and LaVine it is very hard to see the Ninth Circuit coming out the same way.
In the current Paly case, which is what I am sure this flood of defensive posts from "overstatement" is actually about, the facts are far worse and more disruptive to the school environment than those in the JC case. In the Palo Alto High School rape culture case, a student was raped at an off campus event. The rape was made known to a school based ACS counselor. The police were notified by the school. The victim was harassed both electronically and on campus. The effects of the off-campus harassment were felt on campus. The harassment was so extreme that the victim left school, with the knowledge of school officials, who did not apparently intervene effectively to stop the harassment or remedy its effects. This is a far more severe, pervasive, and substantially disruptive situation than that in the JC case.
OCR's Dear Colleague Letters do not require any discipline to be imposed and none needs to be imposed. OCR explicitly does not require districts to ban conduct that is permitted under the First Amendment. But school districts have tremendous leeway to regulate student speech to maintain a safe learning environment. The regulation of speech that is discriminatory and bullying falls into the category of speech that schools not only can restrict but must restrict to provide an opportunity to all students to achieve. That is the promise of public education, it is why we have public schools.
It is absolutely unacceptable that PAUSD is resisting complying with federal civil rights laws that are intended to all all students an equal chance to better themselves. This isn't hard, it isn't complicated, and it doesn't take a towering figure of intellectual history such as myself, Edmund Burke, to figure out the right course to follow.