Proceedings of the Fourth Annual Teachers College Educational ...

“dangerous or violent behavior.” It is measured on a scale of Level 4 out of 5 levels of infractions, higher
levels denoting worse behavior. This language “[e]ngaging in intimidating and bullying behavior, including
cyber-bullying” appears to equate actual/physical bullying with virtual/cyberbullying. Students spend more
time online, equivalency appears prudent. Protecting staff is also important given the ease with which
questionable virtual behavior can become public and have real-world lasting effects.
Disciplinary responses are wide: parent conference, in-school disciplinary actions, removal from the
classroom by teacher, suspensions by principals and superintendents as well as expulsion (Discipline
Code, 2010, p. 22). This diverse list implicitly acknowledges the variety of cyberbullying, allowing tailoring
of punishment.
New York State
The Dignity for All Students Act (2009) is a similarly well-balanced piece of legislation, protecting multiple
stakeholders. Section 12, subsection 1 states “[n]o student shall be subjected to harassment by
employees or students on school property or at a school function; nor shall any student be subjected to
discrimination based on a person’s actual or perceived race, color, weight, national origin, ethnic group,
religion, religious practice, disability, sexual orientation, gender, or sex by school employees or students
on school property or at a school function” (Dignity for All Students Act, 2009). Due to this general
definition of “bullying,” “cyberbullying,” a specific subset of bullying behavior is presumably covered. Any
student subjected to these enumerated types of discrimination through electronic means would be
afforded similar protection.
Unfortunately, the term “cyberbullying” is not included in this Act. This could prove problematic in litigation
since the aggrieved would presumably have to prove cyberbullying is a form of bullying and benefit from
its protection.
Common Law
Common law has been inconsistent in its application of the First Amendment to off-campus speech
regarding social networking sites, at least at the Federal Court of Appeals. Conflicting decisions in
Layshock (2011) and Blue Mountain (2011) led the Third Circuit to vacate these differing opinions. Upon
reconsideration they held that the Fraser (1978) standard only applied to on-campus speech and that the
Tinker (1969) standard applied to off-campus speech (Sneed et al., 2011) - regulating off-campus speech
can only occur if there is a reasonable likelihood that the speech in question will have a material and
substantial disruption at the school in question (Sneed et al., 2011). Cases outside the Third Circuit will
clarify the disruption necessary to limit off-campus speech.
Non-Legal Considerations
Limit of Locally-Created Acceptable Use Policies
Given my previous experiences as a teacher in Canada and the United Kingdom as well as a researcher
in New York schools, I appreciate educator demands in the public system. Given the time and care
necessary to draft legally-sound Acceptable Use Policies (AUP), I believe that writing these on anything
smaller than a school-district scale by licensed lawyers invites the potential for needless litigation in terms
of the AUP being either too stifling in prohibiting or loose in allowing behavior. However, a town hall-type
discussion of the language of the AUP, the legal-political-social-educational-technological context that
necessitated its creation, and the need for administrators, teachers, parents and students to be vigilant in
its application, is prudent.
The Virtual v. The Real
Social media plays an increasing role in communications. Educators must help students appreciate the
costs of using networked communication insensitively. Cognitive development involves an understanding
of the differentiation between the physical/real versus the abstract/virtual. Too many students have
insufficient understanding of these differences, especially in terms of the real-world costs of imprudent
virtual behavior. Educators must be involved in this important, but sensitive, area.
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