Evidently, the waters of cyberbullying case law are still murky. Due to variability in opinions and perspectives across jurisdictions and adjudicators, clear precedent is still sometimes elusive. Consider the following case from late 2009 from a California District Court (08-cv-03824, J.C. v. Beverly Hills Unified School District), in which an eighth-grader was cyberbullied through the posting of a YouTube video created by peers denigrating her as “spoiled,” “a brat,” and a “slut.” The target tearfully reported this to her counselor, and indicated strongly that she was upset, humiliated, and did not feel able to go to class and focus on school. The counselor discussed the matter with administration as well as with school district attorneys, classified the behavior as “cyberbullying,” and the offending girl who posted the video online was suspended for two days. Her family decided to sue, and took the case to federal court on the grounds that her First Amendment right to free speech had been violated.
Even though extant case law seems to support corrective action if a target is unable to feel safe and supported to learn without distractions of harassment within a school environment, the federal judge in this case ruled that school authorities overstepped their bounds. This decision was based on the fact that the school could not prove that the offending speech and actions caused a “substantial disruption” of school activities or goals. Moreover, the ruling judge stated that “the court cannot uphold school discipline of student speech simply because young persons are unpredictable or immature, or because, in general, teenagers are emotionally fragile and may often fight over hurtful comments.”
This is particularly disconcerting to me. The judge completely disregarded the emotional and psychological well-being of the target in this case, even though any adult who serves youth or works for the best interests of youth is taught that they must not view the internalization of harm in a critical manner, but must empathize with it. That is, adults must not discount the reality of pain experienced by adolescents through their experiences with bullying or cyberbullying, because this casts blame on the victims themselves. This small-minded mentality is, in part, why we have teenagers who kill themselves – because they feel that their viewpoint is not appreciated but rather trivialized and discarded.
Demonstration of “substantial [schoolwide] disruption” is a sufficient clause to uphold school discipline of cyberbullying behaviors that are initiated off campus. However, it is not a necessary clause because there are other aggravating factors that impel student disciplinary sanction by schools. One primary factor is the harm personally and subjectively experienced by victimized youth. Without question, the ability of the victim in this case to learn in a safe and secure environment at school was substantially disrupted. But apparently that wasn’t enough.
In essence, the judge asserts that the adolescent victim in this case – and others like her – should have tougher skin, and should not allow hurtful comments to bother her so much. He summarily dismisses the gravity of her pain in one fell swoop, and bases his decision on an impersonal aspect of the case, rather than the very real, very visceral effect that cyberbullying had on a young girl.
Finally, the victim in this case is being denied the benefits of, and is subjected to discrimination under, a federally-funded educational program (the public school), which undermines her civil rights. As such, I would not at all be surprised if this case goes to the appellate level and is overturned. In fact, I am hopeful that it will be.