Bullying Remains at Forefront of Education Law as One State Criminalizes Student-on-Teacher Bullying

In an interesting article, author John Ross reported on a newly-enacted North Carolina law that criminalizes student-on-teacher cyberbullying, a less discussed but still pervasive bullying issue.  Students who use computers with the “intent to intimidate or torment” school employees can be subjected to a Class 2 misdemeanor under North Carolina’s new measure.  The law is the first in the nation to directly address student-on-teacher bullying.

A Relevant Case

Despite North Carolina being the first to criminalize such behavior, other states, including Connecticut, have addressed student-on-teacher bullying cases.  In a 2008 case, the Second Circuit considered an appeal in which the plaintiff, a student in Burlington, Connecticut, claimed that school administrators violated her First Amendment rights by preventing her from running for senior class secretary because of off-campus speech she engaged in in which she called school administrators derogatory names after they cancelled a school event that plaintiff was in charge of organizing.[1]

Alleging a violation of her First Amendment rights, plaintiff moved for a preliminary injunction to void the election for Senior Class Secretary and order the school to hold a new election.  Both the district court and the appellate court denied the motion for a preliminary injunction, thereby upholding the school district’s punishment relating to plaintiff’s blog posts.[2]

The Court’s Decision

The Second Circuit reconciled the U.S. Supreme Court’s seminal holding in Tinker v. Des Moines, 393 U.S. 503 (1969) (students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate) with the competing notion that “the constitutional rights of students in public school ‘are not automatically coextensive with the rights of adults in other settings.’”[3] 

Ultimately, the Second Circuit, in an opinion in which now-U.S. Supreme Court Justice Sonia Sotomayor concurred, based its argument on the holding of an earlier decision, which held that “a student may be disciplined for expressive conduct, even conduct occurring off school grounds, when this conduct ‘would foreseeably create a risk of substantial disruption within the school environment,’ at least when it was similarly foreseeable that that the off-campus expression might also reach campus.”[4]

Concluding that it was “reasonably foreseeable that [plaintiff’s] posting would reach school property,”[5] the Second Circuit held that plaintiff failed to show that her First Amendment rights were violated when she was disqualified for running for a student government position.  The Court did note that its decision was narrow, leaving open the possibility that a more severe punishment by the school may have given rise to a constitutional violation.[6] That issue remains to come before the Second Circuit.

The attorneys at Maya Murphy, P.C. are experienced in education matters.  If you have any questions relating to education, bullying, or cyberbullying issues, do not hesitate to contact Joseph C. Maya, Esq. in our Westport, CT office at 203-221-3100 or JMaya@Mayalaw.com.

[1] Doninger v. Niehoff, 527 F.3d 41 (2d Cir. 2008).

[2] Id.

[3] Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 682 (1986).

[4] Doninger, 527 F.3d at 48, quoting Wisniewski v. Bd. Of Educ., 49 F.3d 34, 40 (2d Cir. 2007).

[5] Id. at 50.

[6] Id. at 53.