IV. An Emerging Section 1983 Area: Bullying and Cyberbullying

• Library: Sword and Shield: A Practical Approach to Section 1983 Litigation (ABA) (2015 Ed.)

IV. AN EMERGING SECTION 1983 AREA: BULLYING AND CYBERBULLYING

Words that convey ideas are one thing; words that are used as assault weapons are quite another.¹¹⁷

In recent years, school focus has shifted to aggressive and harmful student behavior widely characterized as bullying. The U.S. Department of Health and Human Services defines bullying as: "unwanted, aggressive behavior among school-aged children that involves a real or perceived power imbalance. The behavior is repeated, or has the potential to be repeated, over time. Bullying includes actions such as making threats, spreading rumors, attacking someone physically or verbally, and excluding someone from a group on purpose."¹¹⁸ Moreover, the U.S. Department of Education has demanded that local schools work aggressively to eliminate bullying, which it considers to be a civil rights issue.¹¹⁹ Faced with activist federal and state governments,¹²⁰ litigious parents, and instant—and often alarming— communication,¹²¹ the field is ripe for development and exploitation.¹²² This is particularly the case when parents assert that some bullies' speech may be protected by the First Amendment.¹²³

Parents have attempted to hold schools accountable for such behavior. In Morrow v. Balaski,¹²⁴ the Third Circuit declined to find the school district liable under § 1983, but the dissenting judges clearly felt uncomfortable by its constraint:

While turning away the Morrows may be convenient as a matter of management of judicial resources or as a matter of school policy, it is neither expedient nor sound as a matter of constitutional law. The majority avers that students and concerned parents may seek redress from their legislatures, but concedes that the law as it exists today, at least in Pennsylvania, immunizes schools from such suits. See Majority Op. at 177 (citing Auerbach v. Council Rock Sch. Dist., 74 Pa.Cmwlth. 507, 459 A.2d 1376, 1378 (1983)). Perhaps students may seek redress under other federal statutes for certain instances of pervasive or race-motivated harassment. But these limited remedies will not be available for all cases, and we should not require that the level of attacks reach frightening extremes before school officials are required to intervene. "When claims like these fall through the cracks, § 1983 seems less than the powerful tool to vindicate constitutional rights it was designed to be." Black v . Indiana Area Sch. Dist., 985 F.2d 707, 715 (3d Cir.1993) (Scirica, J., concurring).¹²⁵

The...