Outlawing Cyberbullying

John Mooney | October 26, 2010 | Education
Bipartisan legislation aims to stop intimidation and harassment via the Internet and texting -- but how far can it go?

Among its many facets, new bipartisan legislation announced yesterday to combat bullying in schools and on campuses includes language that will give schools greater authority in trying to deal with the growing scourge of cyberbullying.

For the first time, the proposed “Anti-Bullying Bill of Rights” would specifically extend protections and requirements to address actions off school grounds, including intimidation or harassment over the Internet and through cellphone texting.

‘We must accept that kids can be bullied at any time and any place, whether it be face-to-face or through hateful messages on a cell phone,” said state Sen. Barbara Buono (D-Middlesex), a prime sponsor of the bill.

“We must protect our kids and allow them to grow up free of the emotional pain that can lead them into despair that life is not worth living,” she said.

Off School Grounds

But while easy to convey in a press conference or a release, the proposal raises anew the vexing question — not to mention the unsettled legal one — of how much schools can be held responsible for actions taking place outside their purview.

Few argue that there isn’t some guidance needed; it’s just how far it can go. The courts and even New Jersey’s own education commissioner recently have sent mixed signals to schools extending their powers beyond school grounds.

“I think there remains a real question to what are the outer limits of enforcement against cyberbullying,” said Jonathan Busch, an attorney for Schwarz Simon Edelstein and Celso, a Morristown law firm that represents more than 100 school boards.

Still, Busch and others said the proposed law could be a welcome start. “I think this is an attempt by the state to give school boards greater ability to wrap their arms around this,” he said.

An Old Story

Attempts to address cyberbullying are hardly new to state and school policy. In 2007, Gov. Jon Corzine signed legislation that would add harassment and intimidation by electronic means to the state’s landmark 2002 restrictions against bullying, which were among the first in the nation.

Still, a seminal 2009 report that led to the latest proposal continued to point out that the previous laws failed to address actions taken away from schools and specifically cyberbullying, even as these incidents were being increasingly recognized as affecting the in-school environment.

The report by the New Jersey Commission on Bullying in Schools recommended that the state allow schools to apply the same student code of conduct off-campus and on.

“Without more effective tools to address these types of incidents, administrators and parents will have limited ability to directly address inappropriate conduct,” read the report, titled ”There Isn’t a Moment to Lose.”

Key Provisions

Stuart Green, the chairman of the commission, said yesterday that the latest proposal’s provisions to include cyberbullying are among its most important.

“It holds schools responsible if the bullying negatively impacts the lives of students and what is happening in schools,” he said. “It states it more clearly and directly than any state in the nation.”

But he, too, conceded the language stopped short of making schools culpable for such off-campus bullying and said the tricky legal questions are yet to be resolved.

“That will be worked out,” he said. “All the law would require is that schools at least pay attention to these actions that so impact the lives of these students. . . In the absence of a statement by the legislature that directs them to pay attention, there is a lot of confusion to what they should do.”

How far they can go beyond that remains unclear. Most recently, a federal judge in California last year found in favor of a student who had posted a demeaning video of another, saying it has not significantly affected the school environment.

Much of the rulings have dated back to the U.S. Supreme Court’s Tinker v. Des Moines decision that struck down a school’s suspension of a student for his protest the Vietnam War on freedom of speech grounds.

New Jersey recently saw its own related case that had school boards checking their conduct policies.

In September, acting Education Commissioner Rochelle Hendricks upheld an administrative ruling that struck down Ramapo-Indian Hills school district’s policy that led to the punishment of a student for a substance abuse offense outside school. However, the decision left open the possibility the same finding would not pertain to anti-bullying
policies, since she said the statute does allow for such measures where there is “some link between the conduct and the school environment.”

Either way, Green was adamant that any such legal exclusions should not apply when it comes to bullying, but agreed the matter is yet to be fully settled.

“That is resolvable,” he said. “What remains is there isn’t a First Amendment right to assault someone.”