What About the Kids? (New Case Continues Troubling Trend of Adult Bias)

A NEW CASE OUT OF A CALIFORNIA FEDERAL COURT CONTINUES AN UNFORTUNATE LINE OF CYBER-BULLYING OPINIONS THAT FOCUS ON ADULT ISSUES, NOT ON THE KIDS.

Note:  New Links Added at End of Article

The case is J.C. vs. Beverly Hills Unified School District and was just handed down by a federal district court in California.  It’s a cyber-bullying case that involves speech content created by a student away from school that is critical of a fellow student.  To simplify the facts, JC met several schoolmates at a restaurant and video-recorded a conversation that villified another student, an 8th grader.   JC posted the video on You Tube and told the victim about it.  The victim and her father complained to the school and JC was disciplined.  That led to the lawsuit, in which the federal judge ruled that the discipline violated JC’s First Amendment right to freedom of expression.

This is consistent with a line of cases arising from situations in which students make fun or — or even threaten — teachers and administrators over the Internet.  Courts generally apply the Tinker v Des Moines standard and look for “substantial impact” on the educational setting — or a reasonable belief that substantial impact is likely.  That usually calls for speculative evidence that is unlikely to successfully defend a free speech challenge (although some recent cases tend to lower the standard).  But the JC vs Beverly Hills case is the first one to address off campus Internet mischief when another student, not a teacher or administrator, is the target.

The target of the cyberbullying, not surprisingly, was devastated by the video and what her classmates had to say about her.  The Court acknowledged that she sought out a counselor, wanted to stay home from school, and suffered some distress.  The Court also acknowledged that at least half the 8th graders had seen the video.  Nonetheless, the Court dismissed the girl’s suffering because her individual situation did not amount to a “substantial impact” on the education process.

The Court mentioned, but did not give much weight to, the “other prong” of Tinker, which focused on violating the rights of other students.  Few cases have considered the second prong of Tinker.  The most famous “second prong” case is Harper vs. Poway School District, an addle-brained opinion that reduces important free speech issues to nothing more than political correctness and is too broad to be of any practical use.  However, there must be a place for consideration of the impact on student victims of off-campus cyberbullying in some rational zone between Harper and the “substantial impact” cases.

The problem may be that courts historically view school speech cases through adult eyes.  For the courts, “substantial impact” on the “educational system” means adult inconvenience.  So, a traumatized teacher in J. S. v Bethlehem Schools meets the test, as does the harried administrator in  Doninger v Neihoff, as do the administrators who were offended by childish drawings in Wisniewski v. Board of Education.  This focus on adult issues and its blithe dismissal of the effect cyberbullying has on kids borders on a denial of equal protection for children in public schools.  If the courts were not so confined to seeing everything through adult eyes the cases might actually help out the victims of vicious and defamatory products of the JCs of the world.  A positive step  would be to convince courts to apply the second prong of Tinker in a “reasonable” student analysis.  In other words, if the target of the abuse suffers an uncomfortable school environment, thereby impacting the student’s educational experience, and a “reasonable student” in the same position would also likely suffer, then the second prong of Tinker should protect school authorities from a First Amendment based lawsuit.  A rational application of the second prong (not the Ninth Circuit’s ridiculous application in Harper) would recognize that students, such as the vicim of JC’s outrageous video, have a right to be heard and supported — whether or not the adults were “impacted.” 

Relevant Links

Read Nancy Willard’s Comment on J.C. v Beverly Hills USD Here

Read Sameer Hinduja’s Blog Comment Here

Read the Los Angeles Times Article About the Case here

We’d appreciate hearing from others regarding the impact of this case and whether it’s actually good law.

-Mike