Disciplining Cyberbullies

Brad Banasik

By Brad Banasik, MASB Legal Counsel/Director of Labor Relations & Policy

DashBoard, Dec. 13, 2017

Is there a legal responsibility for school officials to control cyberbullying that occurs off school grounds and outside of the school day? Yes, for multiple reasons.

Michigan’s Revised School Code requires school districts to adopt and implement a policy prohibiting bullying at school. This law provides that the policy’s prohibition of bullying shall include “cyberbullying as a form of bullying.” While the law indicates the policy must prohibit bullying and cyberbullying “at school,” this phrase is defined to include “conduct using a telecommunications access device or telecommunications service provider that occurs off school premises if the telecommunications access device or telecommunications service provider is owned by or under the control of the school district.” Additionally, the definition of “cyberbullying” includes multiple provisions that could encompass off-campus conduct that amounts to bullying “at school.” For example, under the law, cyberbullying includes an electronic communication that is intended to harm students either directly or indirectly by “substantially interfering with educational opportunities, benefits, or programs of [one] or more pupils.”

Title IX provides that “[n]o person in the United States shall, on the basis of sex, be excluded from participation in, or be denied benefits of, or be subjected to discrimination under any education program or activity. . .” Consequently, Title IX covers harassing conduct that creates a hostile educational environment for a student based on sex, which could include making sexual comments or jokes, displaying or distributing sexual explicit drawings, pictures or written materials; calling students sexually charged names; spreading sexual rumors; or circulating, showing, or creating emails or websites of a sexual nature. Thus, under Title IX, cyberbullying conduct that involves sexual or gender-based harassment that is severe and pervasive to the extent that it limits a student’s ability to participate in and benefit from the school’s education program, must be investigated and steps must be taken to end the harassment, eliminate any hostile environment and prevent its recurrence.

Similarly, cyberbullying conduct involving peer harassment based on race, color, national origin or disability that is sufficiently serious so that it creates a hostile environment for the affected student must also be addressed, investigated and stopped to comply with other civil rights laws.

Schools officials, however, must always consider a student’s First Amendment rights when addressing a cyberbullying claim. Generally, a “nexus” test should be used to determine if the school district may discipline a cyberbully for his or her off-campus speech. This test inquires whether there is a sufficient nexus between the student speech and the school’s educational or pedagogical interest to justify the student discipline. Clearly, if cyberbullying creates a hostile educational environment for a student as noted above, a nexus is established.

For additional information and guidance on addressing cyberbullying in your school district, make plans to attend the Jan. 12, 2018 School Law and Policy Seminar: Critical Technology Issues, presented by MASB and NEOLA.

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