Fundamental #1 - How is cyberbullying different from traditional bullying?
Cyberbullying is different from traditional bullying in three primary ways.
First, cyberbullies can attack anonymously. Before advances in technology, bullying required face-to-face interaction. Today, however, bullies can hide behind virtual identities as they bully their victims at any time of day or night. This lack of face-to-face contact makes the cyberbully less aware of the consequences of his actions and less likely to stop his behavior.
Second, cyberbullies have the Internet to increase their audience. While traditional bullying may have included a bully or two, cyberbullies can target a single victim with the click of a mouse and once the information is uploaded onto the Internet, it is permanently published. This makes cyberbullying a potentially endless experience for the victim.
Third, although teachers and parents can monitor traditional bullies, they often lack the technological expertise to monitor cyberbullies. Traditional bullying victims can depend on school officials or parents to intervene and stop the bullying. However, teachers and parents may no longer be able to provide a safe harbor to those students who are cyberbullied.
Fundamental #2 - Does South Dakota recognize cyberbullying as a form of bullying?
Yes. S.D.C.L. § 13-32-15 defines bullying as:
"A pattern of repeated conduct that causes physical hurt or psychological distress on one or more students that may include threats, intimidation, stalking as defined in chapter 22-19A, physical violence, theft, destruction of property, any threatening use of data or computer software, written or verbal communication, or conduct directed against a student that:
1. Places a student in reasonable fear of harm to his or her person or damage to his or her property; and either
2. Substantially interferes with a student’s educational performance; or
3. Substantially disrupts the orderly operation of a school."
S.D.C.L. § 13-32-18 also provides that “[n]either the physical location nor the time of day of any incident involving the use of computers or other electronic devices is a defense to any disciplinary action taken by a school district for conduct determined to meet the definition of bullying. . . .”
Fundamental #3 - May a school district discipline students for “on-campus” cyberbullying activities?
Yes. Because the United States Supreme Court has already addressed the issue of “on-campus” student speech, the rules pertaining to “on-campus” cyberbullying should be relatively clear. School officials should be able to discipline students engaging in “on-campus” cyberbullying without violating the students’ First Amendment rights.
Fundamental #4 - How have the courts analyzed cyberbullying activities that occur “off-campus”?
In Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), the United States Supreme Court determined that school districts could regulate student speech if that speech would “substantially disrupt” the school environment.
With the evolution of the Internet and social media, it is becoming more difficult to draw the line between “on-campus” speech that falls within a school district’s regulatory power and “off-campus” speech that is beyond a school district’s reach.
The United States Supreme Court has never issued a decision concerning cyberbullying. This leaves the various courts throughout the nation to fashion rules, limits, and guidelines for school districts. Courts generally use the Tinker test to analyze cyberbullying that originates on personal computers but affects students in public schools.
Fundamental #5 - What is the primary court case that analyzes "off-campus" cyberbullying?
In Kowalski v. Berkeley County Schools, 652 F.3d 565 (4th Cir. 2011), a high school student was suspended for five days after creating and posting to MySpace.com a webpage regarding another student called “S.A.S.H.” (“Students Against Shay’s Herpes”). The federal court found that the school district was authorized to discipline the student because (1) “the nexus of . . . [her] speech to [the school district’s] pedagogical interests was sufficiently strong to justify the action taken by school officials in carrying out their role as the trustees of the student body's well-being”; (2) “the speech was materially and substantially disruptive in that it interfered . . . with the school’s work [and] collided with the rights of other students to be secure and to be let alone”; and (3) it was foreseeable that the student’s conduct would reach the school.
In other words, the federal court found that “schools have a duty to protect their students from harassment and bullying in the school environment” and “school administrators must be able to prevent and punish harassment and bullying in order to provide a safe school environment conducive to learning.”
For more about "Cyberbullying," read Chapter 17 of The South Dakota School Law Deskbook.