Legal Brief                                                         Page 10


Disciplining Student Misconduct

in Cyberspace  




Sexting, cyberbullying, tweeting, texting. These are words I hadn’t even heard just a few years ago, despite almost 30 years in the legal profession. Now, thanks to Facebook, Twitter, smartphones and a whole host of other new electronic communication, that vocabulary is a regular part of the work I handle as an attorney representing public schools and what school administrators confront daily.

Recently, a parent came to one of the school districts I represent with a copy of a Facebook message posted on her daughter’s wall that threatened to beat her up in the locker room for stealing another girl’s boyfriend. The principal who contacted me was struggling to determine the appropriate response.

Underlying Acts
Technology hasn’t really changed what students do, but it has significantly changed how they do it and how they act around others. In the dark ages when I was in school, we might publish an “underground” newspaper and distribute it surreptitiously in front of our hallway lockers. Maybe five kids would actually read our paper. Now, students post their gripes on Facebook, or their blogs, reaching a wider audience and encouraging other students to add to the complaints. In those days, a student might start a rumor about what happened at a wild party, but now we have live video detailing just how raunchy the activity actually was.

Step No. 1, then, in dealing with technology-enabled misconduct is to separate the medium from the message. Ask yourself: What is the underlying misconduct — drinking, name-calling, bullying? Once you determine that, you know where to start in the school discipline system.

In my case with the principal, the answer was easy. This was a threat to attack another student. Whether posted on the Internet or delivered face-to-face, it was a potentially expellable offense.

Targeting Location
Step No. 2 is to identify where and when the underlying misconduct occurred. That tells you whether it has a “nexus” (the lawyers’ term for connection) to school.

If it happened at school or on a school bus or at a school event or through use of the school’s computer network, the school can discipline for the misconduct. If it didn’t happen in any of those places but contained a threat to act at school or was so significant it disrupted school, then you also might be able to discipline the perpetrator.

One mistake some administrators make is to end their analysis there, believing if they can’t discipline for it, they shouldn’t address the matter at all. Yet schools have many other powerful tools to address student behavior. In addition, the U.S. Department of Education’s Office for Civil Rights has made bullying of protected groups, including cyberbullying, an enforcement priority, meaning the federal agency will take a hard look at these complaints and schools’ responses.

For those reasons, schools need to move beyond discipline when addressing these cyber issues. Educating students, providing social work support for victims and interventions for offenders, changing schedules or lunch periods to prevent continuing harassment, involving community organizations and even, in some cases, referring parents to the police are available options.

In my case involving student postings on Facebook, the threat itself apparently occurred outside of school, but it had sufficient nexus because the attack was going to occur on school grounds.

A Fluid Situation
Step No. 3 is to investigate thoroughly. One challenge in cyber cases is the ease with which photos, messages and even identities can be changed. In the case I handled, we discovered the alleged victim had altered an innocent posting to get her romantic rival in trouble.

Step No. 4 is to consult your school’s legal counsel, because the law in this area changes rapidly, and courts are struggling to balance schools’ need for discipline with their desire to protect students’ exercise of their First Amendment rights outside of school.

Our Facebook post dealt with an actual threat, which doesn’t enjoy constitutional protection, but many other postings, even offensive or sexually provocative messages, may raise constitutional concerns.

Nancy KRENT is a law partner with Hodges Loizzi Eisenhammer Rodick & Kohn LLP in Arlington Heights, Ill. E-mail:


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