Preserving the schoolhouse gates: an analytical framework for curtailing cyberbullying without eroding students' constitutional rights.

• Author: Weil, Olivia A.

"The mere fact that the internet may be accessed at school does not authorize school officials to become censors of the world-wide web." (1)

INTRODUCTION

The advent of a dot-com world and the consequential birth of revolutionary social networking sites, such as Facebook and MySpace, have furnished youth across the globe with access to one another at their fingertips. However, with this unprecedented instant interaction has come a detrimental--and in some cases, a fatal--price of admission: cyberbullying. Adolescents (2) using the Internet today may experience cyberbullying through any one of modern-day technology's communication avenues: websites, social networks, blogs, chat rooms, online videos, instant messages, message boards, or other areas of the Internet. The surfeit of benefits the Internet has introduced--increased efficiency, social networking, instantaneous news, enhanced research--are accompanied by a multitude of perils: cyberbullying, online harassment, identity theft, and hacking, to name a few. (3) These associated dangers pose difficulties and new obstacles for policymakers, school officials, and parents striving to develop adequate protections for adolescents. Although policymakers have enacted legislation to combat cyberbullying, school officials have struggled with effective implementation--an understandable confusion in consideration of the disparate case precedent and grave jurisprudential confusion surrounding schools' authority with off-campus student speech.

In 2006, the horrifying effects of cyberbullying were palpable. The mother of thirteen-year-old Megan Meir returned home one day to find her daughter hanging in her closet from a belt tied around her neck. (4) Megan's mother would later discover that her daughter's suicide resulted from a barrage of cruel and degrading attacks launched through MySpace (5) by a purported fellow teen, Josh Evans. (6) Josh's once friendly and flirtatious exchanges with Megan quickly morphed into insulting and disparaging attacks against her. On the day of Megan's suicide, Josh's last message taunted: "The world would be a better place without you." (7) The heartrending events following Megan's death revealed that the professed "Josh Evans" was actually Loft Drew, the mother of one of Megan's female friends. (8)

Regrettably, Megan's story is far from rare. According to the National Crime Prevention Counsel, forty-three percent of teens have endured cyberbullying. (9) The United States Department of Education recently reported that about nineteen percent of school administrators said they had to deal with cyberbullying daily or at least once per week. (10) The breadth and severity of cyberbullying demands a response from communities, parents, schools, and legislatures. However, regulation of online speech treads on delicate constitutional territory. Thus, in our efforts to garnish children with adequate protection from cyberbullying, we must proceed cautiously so as not to erode the freedom of speech guaranteed by the First Amendment of the United States Constitution.

This Note examines the anomaly of cyberbullying and explores the exploding role of technology in the lives of students today. Part I expounds the distinction between cyberbullying and its traditional counterpart and, ultimately, reveals that the insidious nature of cyberbullying--in comparison to traditional bullying--exponentially amplifies the detrimental psychological effects experienced by victims. Given that the Internet has become so omnipresent in youth culture today, coupled with the more vicious effects cybervictims endure, Part I concludes that the cyberbullying phenomenon demands a comprehensive response from parents, school officials, and policymakers.

Part II denotes that constitutional challenges frequently confront school authorities in disciplinary instances of cyberbullying. Part II then enumerates the limited circumstances, as determined by the Supreme Court, in which school officials may proscribe student speech without offending the First Amendment. The following five cases comprise the seminal Supreme Court decisions regarding student speech: (1) Tinker v. Des Moines, (2) Bethel v. Fraser, (3) Hazelwood v. Kuhlmeier, (4) Morse v. Frederick, and (5) Virginia v. Black. Part II then discusses the Third Circuit split to elucidate that the state of the law concerning cyberbullying is constantly in flux, and at best, confused.

Part III, after examining the flaws with proposed and current cyberbullying legislation, argues that many existing cyberbullying laws are subject to invalidation under the argument that the policies are overly-inclusive and vague. Part III ultimately concludes that many cyberbullying laws are patent violations of students' First Amendment rights and, therefore, fail to garnish today's youth with adequate protection from cyberbullying.

Finally, Part IV discusses the complexities and ambiguities saddling school officials and, accordingly, proffers a non-legal preventative measure to curtail cyberbullying. Part IV proposes the "Positive Action" program as a comprehensive framework for families and community leaders to implement prevention or intervention efforts against cyberbullying. The "Positive Action" program, developed by Dr. Carol G. Allred, is a proven evidence-based program for improving adolescent behavior and already has enjoyed success in traditional and cyberbullying prevention, reducing as much as forty percent of bullying behaviors.

As this Note will demonstrate, constructing effective legislation--that both furnishes students with adequate protection against cyberbullying without simultaneously eroding their First Amendment rights--has proven to be an exigent, and arguably unsuccessful, task. Accordingly, the solution lies, not within the confines of the legislature, but within the hands of those closest to our students--their parents.

1. CYBERBULLYING

   Decades ago, if we had asked parents, teachers, and school officials the forum in which bullying occurred, we would have heard one resounding yet simple answer--"the schoolyard." Today, however, the proverbial schoolyard has expanded, compounded, and undergone a technological face-lift.

   Traditional "bullying" has been defined as repeated intimidation, over time, of a physical, verbal, and psychological nature of a less powerful person by a more powerful person or group of persons. (11) It can be physical (e.g., punching), verbal (e.g., name-calling), and/or social (e.g., circulating rumors). (12) In short, traditional "bullying" is repetitive and encompasses an intrinsic power imbalance between the bully and the victim, one who is typically feeble or incapable of self-defense. (13)

   Though often compared to traditional schoolyard bullying, a key component that differentiates cyberbullying from traditional schoolyard bullying is the use of technology to harass the victim. "Cyberbullying" is commonly defined as the "willful and repeated harm inflicted through use of computers, cell phones, and other electronic [communication] devices," (14) which is done to harass, intimidate, and threaten others. Cyberbullying has been further defined as involving "the use of information and communication technologies such as email, cell phone and pager text messages, instant messaging, defamatory personal websites, and defamatory online personal polling websites, to support deliberate, repeated, and hostile behavior by an individual or group that is intended to harm others." (15) From the aforementioned definitions, we can extract the following elements: (1) willful, (2) repeated, (3) harm, and (4) through the use of computers, cell phones, or other electronic devices. (16)

   Cyberbullying victimization may share with its traditional counterpart similar developmental trajectories--both suggest victims wrestle with substance use, depression, suicidal ideation, and psychosomatic symptoms, to name a few. (17) The insidious nature of cyberbullying--which invites anonymity, instantaneity, and potential for perpetuity--may also augment the intensity of the psychological effects endured by victims. (18) For example, cell phones may seem like innocuous tools for making social plans, but at the same time, they serve as convenient vehicles through which bullies can launch an onslaught of verbal taunts at their victims. Or consider, for instance, a fictitious screen name or e-mail address as the chosen medium through which an unidentified bully disseminates his attacks; such anonymity creates a potential safe-haven for bullies. Moreover, the viral nature of cyberbullying enables a bully to spout vile vituperations that can reach a victim instantaneously, spread to mass audiences, and perpetuate in existence.

   Simply put, the widespread use of the Internet and social networking sites have invited, indeed provoked, bullying to occur well beyond the schoolyard. According to the Pew Research Center's Internet & American Life Project, "[s]ocial media use has become so pervasive in the lives of American teens that having a presence on a social networking site is almost synonymous with being online." (19) The Pew Research Center's 2011 Report further indicates that ninety-five percent of all teens ages twelve to seventeen are online, and eighty percent of those online teens use social media websites. (20) In addition to computers and the Internet, seventy-five percent of teens ages twelve to seventeen as of September 2009 owned a cell phone through which they communicated both verbally and textually. (21) As evidenced by that data, the majority of today's American youth are embedded in an online culture that is largely inseparable and indistinct from their offline world.

   With this ubiquitous use of the Internet and technological mediums, online harassment and cyberbullying have become more prevalent. For instance, eighty-eight percent of social-media-using teens reported to have witnessed other people act cruel on...