Legal Basis for School Authority Over Cyberbullying

Your child is being cyberbullied.

What does that mean, exactly?

Cyberbullying is using technology to harass, threaten, embarrass, or target someone on social media, gaming platforms, or messaging apps. This can include spreading rumors, posting hurtful messages or embarrassing photos, creating fake accounts, or sending threatening communications. 

The reasons why cyberbullying is so pervasive, particularly among children and teens, are that it can be anonymous, and the content can reach a large audience practically instantly. While cyberbullying doesn’t always result in physical injury, the harm to children and teens can be very consequential. Victims experience feelings of depression, anxiety, and isolation; it affects their confidence and self-esteem, along with impacts on their school or home life.

One reason why cyberbullying often has a greater effect on a victim is that they can’t get away from it—when bullying happened in the “old days”, it was at school, on the playground, or in the street. The victim could go home or to a safe space and escape from the threat. Cyberbullying, by nature, exists in their phones. Therefore, the victim has nowhere to turn for safety or for a break from the aggressor—a digital device can be carried anywhere, and the bullying can continue through the night, on weekends, and be persistent and unrelenting. Sometimes, the bully posts anonymously and the victim doesn’t know who to trust or who to avoid.

Can a school handle discipline of off-campus cyberbullying?

This is a complicated question. Typically, a school can have jurisdiction over student discipline depending on where and how the behavior occurs and whether it impacts the school environment. 

A school has broad authority to discipline students in these situations:

During school hours or on school property

• Classroom misconduct, including disruptions to learning or refusing to follow directions 
• Physical fights, such as bullying, harassment or threats
• Damage to school property, such as vandalism or graffiti 
• Bringing prohibited items like weapons, drugs or alcohol to school 
• Cheating, plagiarism, or academic dishonesty

School-sponsored activities

• Sports games, field trips, after-school programs, dances and extracurriculars
• School buses, or while traveling to and from school 
• Behavior that undermines the safety or integrity of school events

Off-campus behavior with school impact

To meet this criterion, the conduct must have a clear effect on the school environment.

• Cyberbullying, or harassment online that leads to fear, absenteeism, fights, or disruption at school 
• Threats or violence, particularly in the form of online posts or messages that target the school or staff
• Criminal acts, including drug distribution or assaults, if they directly affect school safety or operations

Limitations on a school’s jurisdiction

• Private conduct. The school may not punish a student for lawful off-campus behavior that does not impact school life.
  
  For example, if a student posts rude comments about a peer late at night on a personal account, but the comments never reach the school, cause disruption, or affect the peer’s participation in class, the school would not have jurisdiction over discipline for the comments.
• First Amendment rights. Protected speech, including criticism of school or staff that isn’t disruptive or harassing cannot generally be disciplined.
  
  Criticism, venting, or profanity directed at school or staff that isn’t disruptive is often protected speech. If the online conduct is mean-spirited but doesn’t disrupt learning or make a student feel unsafe at school, it might fall outside school authority.
  
  If the online behavior doesn’t involve classmates, teachers, or the school community, the school would likely not have jurisdiction. For instance, if a student bullies someone outside the school community, like a gamer in another state, using a personal account, this would not be under the school’s jurisdiction.
• Due process. Students are entitled to notice and a fair hearing must take place before a suspension or expulsion.

Legal basis for cyberbullying in schools

How schools handle cyberbullying largely depends on three factors: Constitutional law, state anti-bullying laws, and school codes of conduct.

Constitutional law and cyberbullying

Although cyberbullying wasn’t a problem in 1969, a Supreme Court case from that year established precedent for students’ First Amendment rights in school. Tinker v. Des Moines (1969) involved students who were suspended for wearing black armbands to protest the Vietnam War. Since their protest was silent, symbolic, and did not cause disorder, the Court ruled that students have a right to freedom of expression, including symbolic speech, and cannot be punished for it unless it materially disrupts the school environment or infringes on others’ rights. 

The Court found that the act of wearing armbands was “pure speech”, which is a nonverbal form of communication protected by the First Amendment. It held that students don’t lose their constitutional rights at the schoolhouse gate, and that schools may not censor student speech unless it causes “substantial disruption” to the educational environment or interfered with others’ rights. 

How does this apply to cyberbullying? The courts use the Tinker test to apply to cyberbullying:

• Does the online harassment spill into school by creating fights, widespread fear, absenteeism, or distraction, enough to be considered a “substantial disruption”?
• Does the cyberbullying target another student and make them feel unsafe at school?

The Tinker case says that the school may discipline the bully under these circumstances.

There are many examples where Tinker has been upheld, and also at least one case in which it was limited. Mahanoy Area School District v. B.L. (Supreme Court, 2021) involved a cheerleader who used Snapchat to criticize school and the cheer team. This speech was protected because it wasn’t harassment and didn’t disrupt school operations.

State anti-bullying laws

Most states have anti-bullying statutes that explicitly extend schools’ responsibility to address off-campus or online bullying if it creates a hostile environment at school or interferes with a student’s ability to learn.

For example, the New Jersey Anti-Bullying Bill of Rights Act requires schools to investigate cyberbullying that affects the school environment, even if it happens outside school hours.

School codes of conduct

Many school districts adopt student handbooks or codes of conduct that explicitly prohibit cyberbullying, whether it occurs on campus, after school, or online. These policies allow the school administration to discipline students whose off-campus behavior impacts the school community.

In other words, the school may not act as a general monitor of student behavior online. It may only step in if the cyberbullying targets other students or staff, and creates a substantial disruption or makes the school environment unsafe. If not, responsibility would shift to the parent, social media platforms, or police, rather than the school.

When does cyberbullying cross the line from school discipline to criminal behavior?

Each school will have its own policies for dealing with cyberbullying based on its code of conduct. However, certain types of behavior cross the line from the school’s discipline to when police might get involved.

• Threat of violence. This includes any post, message, or video that threatens to harm a student, teacher, or school (possible charges: terroristic threats, harassment, assault).
• Stalking or harassment. Typically repeated, targeted online contact that causes fear or distress. Many states have cyber-harassment or cyberstalking statutes.
• Hate crimes. This would entail bullying based on race, religion, disability, sexual orientation, or another protected category may lead to enhanced criminal charges.
• Distribution of sexual images. Sharing nude or sexual images of minors (even consensually between teens) can lead to child pornography or “sexting” charges.
• Identity theft or hacking. This could be a student impersonating another student online to cause harm, among other things.

What happens if the police get involved?

If the police find merit to the accusation, there are a couple ways they might deal with the student:

• Juvenile diversion programs
• Probation or juvenile detention 
• Protective or restraining orders
• School/police partnership

Do you (the parent) have grounds for a lawsuit if your child is a victim of cyberbullying?

You might have grounds for a lawsuit under these circumstances:

1. Severe or repeated harm
   • If your child suffers serious physical injuries or psychological harm (anxiety, depression, PTSD) from bullying
   • Requires medical or mental health treatment
2. School negligence
   • If you’ve reported to school officials and they failed to act or didn’t follow required procedures under state anti-bullying laws
   • If staff ignored complaints, minimized the problem, or retaliated against your child instead of addressing the bullying 
3. Civil rights violations
   • If bullying is based on race, gender, disability, or religion, you might have a claim under Title IX (sex-based harassment), Americans with Disabilities Act (ADA) or Section 504 of the Rehabilitation Act
   • These apply when a school shows deliberate indifference to harassment
4. Intentional torts by students or parents
   • In some cases, you may sue the bully or their parents for torts like assault, battery, or intentional infliction of emotional distress, especially if the conduct was extreme and ongoing 
   • See also: How to document bullying

How do you know if you should file a lawsuit for cyberbullying?

The first step is to contact the school and encourage it to take action; this will be your best bet for a swift resolution. If the bullying is outside the school’s jurisdiction, or if the school does not respond in a way that protects your child, you might consider filing a lawsuit if:

• The bullying continues despite repeated reports.
• Your child’s health, safety, or education is seriously affected.
• The school has clearly failed to fulfill its duty under state anti-bullying statutes or federal civil rights laws.
• Settlement negotiations with the school or district are unsuccessful.

While the school doesn’t have unlimited authority over cyberbullying, it does have some ability to intervene, particularly if your child is a clear victim.