As the school year gets into full swing, education administrators continue to grapple with the ongoing problem of peer to peer bullying.  In addition to issues relating to the extent to which schools must prevent, intervene, and address on-campus bullying come free speech challenges and issues. At least one author has written about how Connecticut’s anti-bullying law would fare in the face of free speech issues, noting that “[t]he new law puts school officials in the position of having to pass judgment on off-campus speech with little legal precedent to guide them . . . If they clamp down on online comments, they risk First Amendment challenges.  If they’re too lenient, they could be deemed responsible if cyberbullying leads to tragedy.”[1]

 Regulating Students’ Speech and Conduct Online

What worries some officials and lawmakers is the prospect of the regulation of speech that doesn’t take place on school grounds.  Legal Director of the ACLU of Connecticut Sandra Staub stated during testimony in March of this year that “simply plugging the phrase ‘cyberbullying’ into the current statute on bullying policies will encourage and allow schools to regulate children’s speech and conduct while they are in their own homes.”[2] 

Essentially, Staub’s argument sounds in the notion that what children do in their own homes is under the control of their parents, who, pursuant to the United States Supreme Court, have a due process right to raise their children in the manner they see fit.  Permitting schools to regulate such speech turns schools into internet police.  Instead, Staub suggests that it is the school’s responsibility to provide an education that instills in students the means by which to deal with conflicts in an appropriate manner.

Pervasiveness of Cyberbullying

On the other side of the debate is the pervasiveness of cyberbullying and its devastating effects on children and young adults.  The nation woke up to the very real effects of bullying when Phoebe Prince, of Massachusetts, committed suicide in 2010 after her peers tormented her to the point at which she could not take it anymore.  Sadly, Prince’s story is not unique.

According to Connecticut’s General Assembly Commission on Children, “25 percent of Connecticut high school students – and 35 percent of the state’s 9th graders – report having been bullied or harassed on school property in the previous year.”[3] Furthermore, the report states that “[m]ore than 900,000 U.S. high school students reported being cyberbullied in one year.”[4] According to the U.S. Department of Justice, “Bullying may be the most underreported safety problem in American schools.”[5]

While cyberbullying remains prevalent in schools, school administrators will continue to police their students while attempting to avoid infringing free speech.  The line, however, is a thin and tricky one.

If you have any questions about bullying or cyberbullying, or education law issues in general, do not hesitate to contact Joseph C. Maya, Esq. in our Westport office, at (203) 221-3100, or at JMaya@Mayalaw.com.