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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.

Read the full story here Web Link posted Friday, August 16, 2013, 7:00 AM

Comments (22)

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Posted by Ardennes
a resident of Another Palo Alto neighborhood
on Aug 16, 2013 at 12:23 pm

Many of the posters on this site need this information!

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Posted by overstatement?
a resident of Another Palo Alto neighborhood
on Aug 16, 2013 at 4:21 pm


Nice article with lots of support cited throughout except here:

Discriminatory harassment issues: When students use the Internet or cell phones to harass, on or off campus, K-12 schools have a legal obligation to INVESTIGATE and ASSESS WHETHER ANY LAWS - federal, state or local - have been broken if the cyberharassment results in a "hostile learning environment" for protected students. (paraphrased)

You do not cite any specific authority for this.

From what I've read, this is an overly broad statement of what is legally required of schools but I could be wrong, so please indicate where you found this, who told you this, or, even better, the sections of the federal or state statutes or regulations which require schools to do all of that.

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Posted by overstatement?
a resident of Another Palo Alto neighborhood
on Aug 17, 2013 at 9:23 am


Some of this article's claims - i.e., relating to off-campus cyberbullying - don't seem to be supported by the authority cited.

The link to statements by a federal employee do not mention off-campus activities.

Other cited sources:

##"E-Cruelty: Cyberbullying in California"##

"Cal. Educ. Code § 48900(r)...applies to students at school, during lunch periods, and while traveling to or from school or a school-sponsored activity...the Court declined to review several cases [on] how schools should deal with 'off-campus' cyber-misconduct."


"[Schools] should distinguish between bullying initiated on school campus ... questions continue to arise regarding how far districts/COEs can go in disciplining students for their off-campus conduct. The need to protect students and staff from harm must be balanced with students’ First Amendment right to freedom of speech."


Close is what the Fagan firm says but it is qualified: schools are only required to step in if the off-campus cyberbullying substantially disrupted the school's operation.

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Posted by What About?
a resident of Midtown
on Aug 17, 2013 at 10:11 am

What about what is the punisment for district administrators who do not even want to listen to parents when they bring up an issue like this, and they do not want to investigate the case because they just believe that that student at questions could never, ever do that? Therefore the parents concern is brushed up. What about those principals who are warned that sexual harassment is going on at their schools and they just respond that the girl has a crush on the boy which lead to the boy acting inappropriately.

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Posted by Gunn Parent
a resident of Midtown
on Aug 17, 2013 at 10:51 pm

Like all of your articles Terri, this is a great one,and has a lot of information for students, parents and staff. I hope they take the time to read it. Thanks for keeping us up to date on this important issues like bullying.

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Posted by overstatement?
a resident of Another Palo Alto neighborhood
on Aug 18, 2013 at 7:39 am


I write abhorring cyberbullying and am frustrated that more cannot be done to address what kids sometimes do to other kids off-campus. But I think that it is important for parents to know that it is their responsibility to put a stop to it.

The Weekly cites the U.S. Department of Education's Office for Civil Rights' October 2010 and April 2011 “Dear Colleague” letters as authority for its report that SCHOOLs must step in when off-campus cyberbullying against certain students results in a "hostile learning environment."

While those letters may very well say that, they cannot be relied on. Schools may be legally barred from getting too involved.

CA law does not require schools to get involved in off-campus cyberbullying except in extreme situations and, even then, cautions them when they do. Web Link and Web Link.

Nor does federal law. No federal statutes or regulations specifically mention K-12 schools' role in "off-campus" cyberbullying. (Congress' new law, CampusSAVE, governs some off-campus acts but is limited to colleges.)

Federal Dear Colleague guidance letters that mention things that are not in the law are the opinion of the federal employee who wrote them. They are NOT new laws. That is because these letters, unlike laws passed by Congress and signed by the President, are not approved by our elected representatives, are not subject to a rigorous debate, and do not get public input before they are published. Judges don't even need to defer to their content when deciding the outcome of a case. Web Link ("OCR's April 4, 2011 Dear Colleague letter is not entitled to deference")

One of the many problems with these 2010 and 2011 letters is that the one federal employee who wrote them included rules that would effectively amend the US Constitution despite constitutional amendments requiring the pre-approval of 2/3rds of both houses of Congress and a blessing from all 50 states.

Not surprisingly, these letters have been harshly criticized by constitutional law experts for, for instance, trying to amend students' constitutional Due Process rights. California law says that what is said off-campus is typically protected speech (Education Code 48950) so this "guidance" could step on students' First Amendment rights too. Web Link. When there is a conflict, the Constitution wins.

Bottom line in CA: Don't count on schools acting as student protector and heavy when it comes to off-campus cyberbullying. Parents and police, you must monitor and discipline.

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Posted by Common Sense
a resident of Leland Manor/Garland Drive
on Aug 19, 2013 at 9:19 pm

The prior post is based on far right libertarian tea party propaganda linking to things from Hoover and FIRE and right wing ideologues. When there is a conflict the Constitution doesn't win. thats a formulation that is naive to how conflicts like this work. the Constitution isnt a party to the dispute, which is between the funding agency and the funds recipient. The constitution is only an issue in federal court which guess what we dont want to be in. thats because it costs a huge amount of money to go there and find out what the mostly liberal judges in the northern disyrict think about rape culture in the rich district with the suicide and bullying epidemics! and then once we lose there we can try our tea party theories on the famously liberal Ninth Circuit, which probably will be less impressed by Laurie Reynolds and her challenges with the truth. another idea is that Instead of being combative we need to cooperate, learn from this, and move on. [Portion removed.]

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Posted by Edmund Burke
a resident of Another Palo Alto neighborhood
on Aug 20, 2013 at 1:04 am

I write to correct the misinformation presented by "overstatement?" regarding the function, purpose, and legitimacy of Dear Colleague Letters issued by the US Department of Education Office for Civil Rights.

Before I do that, it would be well to review the facts that have caused Palo Alto to become concerned about the role of the Dear Colleague Letters in the first place. In December 2012, the Office for Civil Rights issued a Letter of Finding against PAUSD in a case involving the bullying of a disabled child. The Office found that PAUSD had failed to respond appropriately to the bullying, by failing to intervene effectively to stop the harassment. Instead, district personnel treated the issue as a "personal conflict" between the victim and the bullies, and allowed the situation to spiral out of control. Despite the parents' constant pleas for help to every district official, including the district special ed coordinator, the associate superintendent, the superintendent, and all the board members, nothing was done to effectively end the harassment or remedy its effects.

Since that time, five other OCR complaints have been publicized, and OCR has itself, perhaps fed up with PAUSD, launched a "compliance review" on its own initiative, to look at whether PAUSD is in compliance with Title IX given the publicized "rape culture" at Paly. In that case, a student was severely bullied after coming forward to report a rape. The harassment, which was both in-person and electronic according to the Verde, was so severe that the victim was forced to leave Paly.

In a 2001 Dear Colleague Letter, OCR makes it clear that off-campus sexual or other harassment based on such categories as race, sex, or disability can violate civil rights laws if the effects are felt on campus and amount to a severe, pervasive, hostile educational environment. Where a school knows or has reason to know that off campus harassment has reached that level (severe, pervasive, hostile environment) the school must intervene to effectively stop the harassment and must offer the victim remedies to protect him or her from the effects of that harassment.

None of the things that must be done to intervene effectively or remedy the harassment includes suspending or expelling a student. That may be a consequence to the student through an appropriate disciplinary process that properly observes the First Amendment and state law governing suspension and expulsion. But Title IX is not a disciplinary process. It is a law that bars discrimination against female students in all educational programs funded by the federal government. Title IX requires a prompt, equitable process to resolve complaints of sexual harassment, including cyber harassment under certain conditions.

OCR is the agency delegated by Congress to enforce Title IX an other civil rights laws. The DCLs are intended to help districts understand their obligations and assist them in complying with the law. The interpretations OCR makes are not notice and comment rulemaking, that is true. But few of the interpretations of law made by the government are issued in that manner. The fact that the letter is not entitled to Chevron-style deference does not mean it is entitled to no respect by the courts. That is particularly true, where as here, it is not a command-and-control regulation of private enterprise but a regulation that applies only to those districts who voluntarily and willingly enter into an agreement with the federal government to accept funds on the known condition that they comply with the federal civil rights law.

Taking the specific misinformation point by point:

1."overstatement" writes that "CA law does not require schools to get involved in off-campus cyberbullying except in extreme situations and, even then, cautions them when they do."

This is false. CA law bans cyberbullying. The only restriction on the ability of the district to address it is of a public school district to suspend or expel for conduct protected by the First Amendment. However, as the story notes, conduct off campus that creates a "substantial disruption" or "material interference" in school meets this criteria. See Kowalski v. Berkeley County Schools, (4th Cir. 2011) Web Link

As the Fourth Circuit held, "According to a federal government initiative, student-on-student bullying is a "major concern" in schools across the country and can cause victims to become depressed and anxious, to be afraid to go to school, and to have thoughts of suicide. Just as schools have a responsibility to provide a safe environment for students free from messages advocating illegal drug use, schools have a duty to protect their students from harassment and bullying in the school environment. Far from being a situation where school authorities "suppress speech on political and social issues based on disagreement with the viewpoint expressed," school administrators must be able to prevent and punish harassment and bullying in order to provide a safe school environment conducive to learning."

In Kowalski, the Fourth Circuit held that a district may suspend a student for off-campus cyberbullying (slut-shaming) without running afoul of the First Amendment.

That's why CA law specifically provides an exception to the general rule that conduct protected by the First Amendment for bullying and harassment: "imposition of discipline for harassment, threats, or intimidation" is allowed despite a general prohibition on punishing off-campus speech, unless it would be unconstitutional to do so. Cal Ed. Code 48950(d).

2. overstatement also claims that "One of the many problems with these 2010 and 2011 letters is that the one federal employee who wrote them included rules that would effectively amend the US Constitution despite constitutional amendments requiring the pre-approval of 2/3rds of both houses of Congress and a blessing from all 50 states."

OCR has specifically stated that the DCLs do not prohibit any First Amendment protected speech. The only action that districts are required to take is to intervene effectively to stop the harassment and to remedy its effects on the victim. So long as the cyber harassment meets the criteria of being a substantial disruption or a material interference with the school, then this test is satisfied. Any conduct that meets the criteria in Title IX or other civil rights law of being severe, pervasive to the extent that it limits the victim's participation the educational program would by definition meet the criteria of being a substantial disruption. Thus, there is no constitutional violation that is the result of stopping the harassment.

3. overstatement links to an article that purports to establish the lack of legitimacy for the 2011 DCL on sexual harassment. But this is a link to a far-right-wing source, which in turn links to other far right wing sources. These sources, such as University of Chicago's Richard Epstein, abhor the US Department of Education, the Office for Civil Rights, Civil Rights generally (Epstein famously argued in Forbidden Grounds for the repeal of all federal employment anti-discrimination laws) and especially Title IX. The evils of Title IX in particular have been a right-wing hobby horse for many years. Another persistent concern of conservatives has been the expansive reading of the "unconstitutional conditions" doctrine such that virtually anything that the government wants from the recipients of its grants amounts to an unfair or unlawful burden on the local government receiving the funds.

I am loathe to criticize Professor Epstein because of his institution's long relationship with me, Edmund Burke, and its reverence for my contribution to modern thought: Web Link

Nevertheless I must respectfully disagree with Professor Epstein on this subject and hope it will not cause the University of Chicago Law School to cease to revere me.

Conservatives have been upset about this since Franklin Roosevelt used a federal-state grant arrangement to create unemployment insurance and the southern democrats balked at providing federal money to their black agricultural labor. Later they became even more concerned when Lyndon Johnson decided to use the power of the purse to reign in segregation and offered money to set up Head Start and Medicaid programs. States disappointed the right by eagerly accepting the funds and improving the lives of their citizens.

This was a triumph for liberals but conservatives continued to grumble and fight a rear-guard action against what they called federal over-reach. The argument that somehow the Office for Civil Rights Dear Colleague Letters are unconstitutional, unlawful, or otherwise illegitimate are an outgrowth of this fringe view of federal authority over schools and over how its money is spent.

One reasonable question that Palo Altans should ask is "why isn't PAUSD cooperating fully with OCR?" Even if some people such as Richard Epstein, on the libertarian fringe, think that OCR has overstepped, is it a good idea to challenge the right of the federal government to prohibit cyberbullying based on sex or race? Why does Palo Alto have a dog in that particular fight?

Palo Alto should cooperate fully with federal civil rights investigators, stop resisting federal rules, and improve its practices. That is the right thing to do now.

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Posted by overstatement?
a resident of Another Palo Alto neighborhood
on Aug 20, 2013 at 8:45 am

Edmund Burke,

How laws in the US are made is factual, not ideological, and no where do government employees get to circumvent Congress and write their own laws.

The law does not mention K-12 schools' role in off-campus cyberbullying and no one, not even the President, can change that without Congressional approval.

More troubling though is the other point that you seem to be making.

My post says that, at best, the law on schools' role in off-campus cyberbullying is not settled so parents need to educate and monitor their children so that cyberbullying doesn't happen in the first place. That's called prevention.

You seem to instead focus on punishment, arguing that parents are off the hook because large, often understaffed, public schools will take care of this - monitoring and reprimands - for them. Too late and rather naive?

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Posted by overstatement?
a resident of Another Palo Alto neighborhood
on Aug 20, 2013 at 5:45 pm

Edmund Burke,

You say "CA law bans cyberbullying." That misses the point of my post: where in the California anti-bullying laws does it say that schools must intervene when the bullying happens off-campus only?

Seth's Law (2011) relates to "school-based discrimination (2x)," bullying "in schools," and when "school personnel witness an act." That means on campus, NOT off.

AB 86 Pupil Safety (2006), which specifically permits suspension for cyberbullying, says that the bullying must be "related to school... occurring within a school" while on school grounds, coming to or going from school, or during school lunch. NO bestowing jurisdiction on schools for night time or weekend off-campus bullying here either.

SB 719 (2003) calls for a school safety plan to address bullying but limits it to "incidents involving crime and violence on the school campus (3x)" and "at school-related functions." It relates to acts that student can be suspended for which, above, does NOT encompass night time or weekend off-campus bullying. AB 746 and 1156 (2011), which extend it to cyberbullying, reiterates that this relates to "school crime and violence (3x)" committed on "school campuses (2x)/at the schools where they have been victimized/at school-related functions." NOT off-campus here either.

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Posted by overstatement?
a resident of Another Palo Alto neighborhood
on Aug 20, 2013 at 5:56 pm

Edmund Burke,

Last post.

Not sure why you cite a 4th Circuit case when California is in the 9th Circuit. Other districts' court rulings are not precedent here.

Instead, take a look at what a California federal court recently said about off-campus cyberbullying and the First Amendment. You can see after reading this that schools are between a rock and a hard place if they want to step in, with few tools at their disposal and lots of legal fees if they try.

Beverly Hills Unified girls cyberbullied another girl after school and off-campus. J.C. - one of the bullies - videotaped the derogatory and profanity-laced exchange, posted the video on YouTube, and told others to watch it. Students talked about it at school the next day and the victim, understandably, did not want to go to class.

The school investigated. The school suspended the bully. The bully sued. The bully won.

The court did not say, as the Weekly reports perhaps based on your advice, that our schools have a duty to “take action to remedy ANY resulting hostile learning environment...regardless of whether it originated on or off campus." Hurt feelings at school and not wanting to go to school certainly make for a “hostile learning environment" for the girl, but didn't make the court's cut.

In that case the court said that “the Supreme Court has yet to address … whether a school can regulate student speech or expression that occurs outside the school gates.” The cases dealt with off campus acts involving something later brought to school which caused a “substantial disruption within a school.”

This, again, does not mean that schools have to intervene if there is “ANY resulting hostile learning environment.” You admit to that in your post, but that is not how the story reports it.

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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.

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Posted by overstatement?
a resident of Another Palo Alto neighborhood
on Aug 21, 2013 at 7:18 am


Again, I am taking issue with the rule as stated in the Weekly’s article. A "'substantial disruption' to the school environment" which you say is what triggers a school inquiry is NOT the same as schools being required to engage in "ANY hostile learning environment" caused by cyberbullying on campus or off as the Weekly reports.

As for the legalities (mandatory vs. persuasive court decisions), you failed to mention two things.

*Persuasive does not mean that when there is no case on point in the 9th Circuit the case in another circuit will likely be persuasive to judges in our circuit (your words: "It is particularly likely to be influential"); judges MAY, but by no means are required to, rule in line with what other circuit courts have said. The 9th Circuit often marches to its own drummer, which may explain its reputation for being one of the two circuit courts that the US Supreme Court overturns the most. Web Link

*Also, why no mention of the split in circuit opinions on schools' role in off-campus bullying? Which circuit court would 9th Circuit align with when there is more than one to choose from? That is not clear.

It is easy to claim that it is easy for schools to intervene when there is bullying (your words: they "must restrict" it) and while doing so not step on the First Amendment, but the authorities - courtroom judges and even those cited by the Weekly for this article to name a few - don't agree with you on that.

Each case is different and, if schools get it wrong, students' constitutional rights could be violated. How in the world are schools supposed to navigate when there is so much at stake and so little guidance? Should schools, each time they hear rumor of in appropriate text exchanges about a pupil that happened while students were at home studying, hire lawyers to ask the court how to proceed so they don't get sued for doing too little or too much? Which classroom's budget will pay the attorney and court fees?

Hence, my posts: it is folly for parents to count on schools to take over parents’ job of monitoring and disciplining children who are bullying. Your focus on schools is after the harm is done (read, too late) and a red herring, floated it appears so you can post rhetoric about "rape culture," state fears as fact, and out independent school boards that do not share that world view.

My post, by the way, has nothing to do with what may or may not have happened at Paly or with the OCR. Now that you mention Paly though, how is it Mr. Burke that you seem to have facts about that case that have not been made public?

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Posted by overstatement?
a resident of Another Palo Alto neighborhood
on Aug 21, 2013 at 7:29 am


As for your citing the LeVine case, that case is not about cyberbullying and happened on campus, not off. Where does it tell schools what they must do and where does it hold that “any” hostile learning environment trumps students’ First Amendment rights?

The LeVine 9th Circuit Court case: Days after his girl friend broke up with him and he was in court on domestic abuse allegations he made against his father, a student, who had shared with his counselor that he had contemplated suicide, showed his teacher a poem he wrote about a Columbine-like attack at school. His poem detailed the number of victims and the horrific aftermath. The school suspended him to protect students’ lives.

The court sided with the school, saying that the student's First Amendment rights to free speech were not violated. In doing so, the court:

* Said the offensive speech (the poem) alone would not have been enough to give rise to a suspension and override his First Amendment rights, but the totality of the relevant facts that pointed to the threat to students’ lives at that school was.  

* Gave deference to the decisions schools make and reminded the parties of courts’ hands-off approach when asked to pass judgment on school officials. “‘[T]he determination of what manner of speech in the classroom or in school assembly is inappropriate properly rests with the school board,’ rather than with the federal courts.”  

* Acknowledged that, as I said above, this is not easy for schools. “School officials have a difficult task in balancing safety concerns against chilling free expression.  This case demonstrates how difficult that task can be.”

There is no mention in LeVine that the “geographic origin of the speech (off campus versus on) is unimportant to the Tinker analysis” as you say. LeVine happened on-campus and in that decision the 9th Circuit refers only to “speech in the classroom” and in school assemblies.

Mr. Burke, LeVine certainly seems to refute much of what you say the 9th Circuit would hold if confronted with an off-campus cyberbullying case. Got any better 9th Circuit case that is on point?

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Posted by grandeur
a resident of Adobe-Meadow
on Aug 21, 2013 at 8:25 am

@Edmund Burke,
"I am loathe to criticize Professor Epstein because of his institution's long relationship with me, Edmund Burke, and its reverence for my contribution to modern thought"
I hate to break this to you, Edmund, but the society you link to is referring to the Edmund Burke who lived in the 1700's. If this is the level of your research, and your belief the society was referring to you indicates it is, this paints your other "facts" in in a very poor light.

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Posted by Edmund Burke
a resident of Another Palo Alto neighborhood
on Aug 21, 2013 at 9:48 am

1. The poem in LaVine was written off campus but came onto campus, much as the cyber bullying occurs off campus but is brought to campus. It is about off-campus speech that is brought into campus and creates a disruption once there. That is contrasted from on-campus speech such as a child holding up a sign at a school event that says "Bong Hits for Jesus." What your comment on LaVine illustrates is only that the line between on and off campus speech, especially in the Internet age, is impossibly difficult to define and not worth it since the standard to be applied is identical ("substantial disruption").

2. A discussion of why the Ninth Circuit is often reversed is beyond the scope of this post but it is not because it "marches to its own drummer." It's because it is the largest circuit, and because the Ninth Circuit follows the law as it exists. The Supreme Court is engaged in a process of changing the law to make it more conservative and more pro-business. As a result, judges who try to follow the law as it exists prior to the change by the Court will be reversed more frequently. The reversal rate of the Ninth Circuit is not because, as you imply, the Ninth Circuit gets it wrong. It is because the Supreme Court gets the final say.

3. I didn't discuss the circuit split because this isn't a law school seminar and you didn't ask. You asked about the Ninth Circuit.

4. All of the facts in my post about Paly were reported in the Verde story.

I've tired of this. As a member of the English Parliament who supported the American Revolution, I've been subject to worse attacks, of course, than what you are making but still, as an icon of clear analysis and thought paloaltoonline gives me a headache. I'm off to the pub for a Guiness.

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Posted by overstatement?
a resident of Another Palo Alto neighborhood
on Aug 21, 2013 at 9:49 am

This perspective may be helpful.

US Department of Education (as of 2011):

* 41 states had model bullying policies
* 36 included cyberbullying
* Only 13 say that schools have jurisdiction over off-campus behavior shows only 11 states with cyberbullying laws that relate to off-campus behaviors (as of July 2013).

California is NOT one of those 13/11.

The California Department of Education drafted a sample bullying policy for school boards to consider adopting, which was updated two months ago. It applies to on-campus bullying only, not off:

"This policy applies to students on school grounds, while traveling to and from school or a school-sponsored activity, during the lunch period, whether on or off campus, and during a school-sponsored activity."

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Posted by Data please
a resident of Adobe-Meadow
on Aug 21, 2013 at 10:37 am

Anyone notice how "overstatement" confidently states that schools don't have to respond to cyberbullying, and then when Burke demolishes her arguments with facts she just moves on to some other half-baked case as if nothing had happened? Just another apologist for the idea that the rules don't apply to Palo Alto. That's how we got into this mess.

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Posted by Paly parent
a resident of Palo Alto High School
on Aug 21, 2013 at 11:17 pm

@Overstatement is spouting the same Tea Party nonsense that Barb Mitchell put forth in "confidential" email from June. Mitchell thinks that Palo Alto should go down the same road of ginning up a Constitutional defense against federal law. No wonder Mitchell wanted to remain secret and @overstatement prefers anonymity herself.

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Posted by grandeur
a resident of Adobe-Meadow
on Aug 22, 2013 at 1:12 pm

"I'm off to the pub for a Guiness."
You do realize Guinness is an Irish drink - that research thing again. Perhaps you meant a "pint of bitter". From your posts, it would have been more appropriate.

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Posted by Somewhere a history teacher is weeping
a resident of Adobe-Meadow
on Aug 22, 2013 at 6:02 pm

@grandeur -- Edmund Burke was Irish.

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Posted by grandeur
a resident of Adobe-Meadow
on Aug 22, 2013 at 7:45 pm


Sorry, but further commenting on this topic has been closed.

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