School districts chafing at cyberbullying liability should have heeded the “Spider-Man Rule”

The U.S. Department of Education’s broadside warning that school districts may violate federal civil-rights law if they fail to prevent “cyberbullying” is provoking some pushback from the nation’s school districts.

The chief legal counsel for the National School Boards Association, Francisco Negron, told the DOE earlier this month that the Department’s recent reinterpretation of the Title IX of the Civil Rights Act dangerously lowers the threshold for holding schools liable for student-on-student harassment.

In a Dec. 7 letter to his DOE counterpart, Negron cautioned that the Department’s proposed standards for defining cyberbullying as a civil-rights violation “will invite misguided litigation that needlessly drains precious school resources and creates adversarial climates that distract schools from their educational mission.”

The Department’s assistant secretary for civil rights, Russlynn Ali, issued a lengthy series of interpretive guidelines to the nation’s school districts Oct. 26, spelling out when the Department will consider student bullying to rise to the level of a civil-rights violation that can be the basis of a DOE enforcement action or a private lawsuit.

Ali’s standards left the impression that the Department was lowering the threshold for holding schools responsible for the online conduct of their students. Normally, a school cannot be liable under civil-rights law for students’ harassing behavior unless there is proof that the school actually knew of the behavior, and that the harassment was severe and pervasive. Ali’s letter glossed over these legal niceties.

Expanded liability is the reward that schools should have known they would reap when they began asserting control over students’ off-campus conduct. It is now commonplace for schools to discipline students for underage drinking based on evidence no weightier than being depicted on Facebook hoisting a red plastic cup. If schools wish to redefine themselves as the “good behavior police,” then they must be prepared to assume the consequences as well as the benefits.

In the Dec. 7 letter, Negron warned the DOE that Ali’s cyberbullying guidance overlooks the First Amendment right of students to express themselves non-disruptively. “School districts,” he wrote, “have a limited ability to discipline students for speech that occurs on-campus and off-campus.”

Negron’s caution to the DOE is difficult to reconcile with his organization’s enthusiasm for the proposition that, as a result of the Supreme Court’s 2007 Morse v. Frederick ruling and subsequent cases expanding on it, schools now have the power to regulate what students say, regardless of where it is said, “where the student welfare is at stake.”

Negron himself coined that “student welfare” standard in a 2009 American University Law Review article. While the article was a relatively even-handed academic presentation of developments in First Amendment law, the NSBA’s enthusiasm for expanded authority to punish student speech was unrestrained. Describing the Negron “student welfare” article on its official blog, the NSBA gushed: “If this trend continues, school districts will be better able to keep students safe from potentially dangerous expression.  Now that’s a decision [we] can get behind!”

Significantly, in none of the online-speech cases being litigated before federal courts of appeal today did schools limit their exercise of authority to the protection of “student welfare.” In each instance — one case pending before the Second Circuit U.S. Court of Appeals in New York and two pending before the Third Circuit in Philadelphia — schools asserted authority to protect their own principals against ridicule on student-created blogs and social networking pages. This illustrates exactly why empowering schools to punish speech on the grounds of “student welfare” is tantamount to saying “do whatever you want” — because so many administrators have convinced themselves that whatever is good for the principal necessarily is good for the students.

One hopes that the NSBA is also cautioning its own members that violating the First Amendment rights of students, such as by punishing them for speech that is merely critical of school officials or policies, “needlessly drains precious school resources and creates adversarial climates that distract schools from their educational mission.”

If schools are intent on maximizing their financial exposure for failing to adequately restrain the online behavior of their students, then there is no better strategy than to claim authority over that behavior. “With great power there must also come great responsibility” is the guidestar whether your power is shooting webs, crawling walls, or throwing kids out of schools.