What's the Rule on Cyber-Bullying? Who knows.

Well, it's official. There is still no single rule on schools disciplining students who post things on the internet from home that would break school rules if done when under the jurisdiction of the school.  This week the U.S. Supreme Court decided not to hear appeals from Pennsylvania or West Virginia, letting stand the prior decisions of the Third and Fourth Circuits.  Unfortunately, it appears that those circuit court decisions came to opposite conclusions on the issue, and even in the Third Circuit the two cases do not give us a very clear rule.

To illustrate the point, here in Pennsylvania, the Third Circuit at one point had two cases with almost identical facts. In each case the student made a MySpace page about a school administrator alleging various false and unsavory facts.  After the principal found out, he punished the student and the families sued.  The two lower courts split, one saying it was ok for the school to punish and the other said it was not.  The cases were appealed to the Circuit Court.  There, at first, individual panels each upheld the lower courts' differing rulings.  Realizing that was a problem, the court withdrew those rulings and issued new ones that both said those schools could not punish for this off-campus behavior in these particular circumstances.

Unfortunately, those Third Circuit decisions came to their single conclusion using different bases.  In fact, when you factor in the concurrences, there are many differing ways of reaching that end.  As a result, the rule here in the Third Circuit is not really clear.  Hooray for students' free speech rights, right? Well ....

In Pennsylvania, the School Code includes a section on bullying (§1303.1-A), which includes what we would normally consider cyber-bullying.  It gives schools jurisdiction over bullying activity taking place outside the school setting so long as there is an impact either on the school environment or on a student's education.  This is good, right?  Well, this is essentially the Tinker standard that the Third Circuit could not figure out if it wanted to follow.  Maybe because it involves student-on-student misbehavior it will be upheld in any future challenge.

This brings us to the Fourth Circuit.  That case, also turned down by the U.S. Supreme Court, did involve a student harassing another student online.  And there, the court ruled that it is ok to discipline the bullying student, finding that some sort of disruption was foreseeable.

I would hope that Pennsylvania schools do not ignore cyber bullying based upon the Third Circuit cases and that they follow the model of the Fourth.  Until there is a clearer rule from the various courts, the school administrators should examine those situations and decide if they need to get involved to protect the students attending their schools.

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