School rules and laws related to online abuse
Original post made
on Aug 16, 2013
Youth and their parents should know and discuss the basic legal rules of the road related to online use and abuse. Here are some key areas to consider, identified through Weekly interviews and the sources listed below.
Read the full story here Web Link
posted Friday, August 16, 2013, 7:00 AM
Posted by Edmund Burke
a resident of Another Palo Alto neighborhood
on Aug 20, 2013 at 1:04 am
I write to correct the misinformation presented by "overstatement?" regarding the function, purpose, and legitimacy of Dear Colleague Letters issued by the US Department of Education Office for Civil Rights.
Before I do that, it would be well to review the facts that have caused Palo Alto to become concerned about the role of the Dear Colleague Letters in the first place. In December 2012, the Office for Civil Rights issued a Letter of Finding against PAUSD in a case involving the bullying of a disabled child. The Office found that PAUSD had failed to respond appropriately to the bullying, by failing to intervene effectively to stop the harassment. Instead, district personnel treated the issue as a "personal conflict" between the victim and the bullies, and allowed the situation to spiral out of control. Despite the parents' constant pleas for help to every district official, including the district special ed coordinator, the associate superintendent, the superintendent, and all the board members, nothing was done to effectively end the harassment or remedy its effects.
Since that time, five other OCR complaints have been publicized, and OCR has itself, perhaps fed up with PAUSD, launched a "compliance review" on its own initiative, to look at whether PAUSD is in compliance with Title IX given the publicized "rape culture" at Paly. In that case, a student was severely bullied after coming forward to report a rape. The harassment, which was both in-person and electronic according to the Verde, was so severe that the victim was forced to leave Paly.
In a 2001 Dear Colleague Letter, OCR makes it clear that off-campus sexual or other harassment based on such categories as race, sex, or disability can violate civil rights laws if the effects are felt on campus and amount to a severe, pervasive, hostile educational environment. Where a school knows or has reason to know that off campus harassment has reached that level (severe, pervasive, hostile environment) the school must intervene to effectively stop the harassment and must offer the victim remedies to protect him or her from the effects of that harassment.
None of the things that must be done to intervene effectively or remedy the harassment includes suspending or expelling a student. That may be a consequence to the student through an appropriate disciplinary process that properly observes the First Amendment and state law governing suspension and expulsion. But Title IX is not a disciplinary process. It is a law that bars discrimination against female students in all educational programs funded by the federal government. Title IX requires a prompt, equitable process to resolve complaints of sexual harassment, including cyber harassment under certain conditions.
OCR is the agency delegated by Congress to enforce Title IX an other civil rights laws. The DCLs are intended to help districts understand their obligations and assist them in complying with the law. The interpretations OCR makes are not notice and comment rulemaking, that is true. But few of the interpretations of law made by the government are issued in that manner. The fact that the letter is not entitled to Chevron-style deference does not mean it is entitled to no respect by the courts. That is particularly true, where as here, it is not a command-and-control regulation of private enterprise but a regulation that applies only to those districts who voluntarily and willingly enter into an agreement with the federal government to accept funds on the known condition that they comply with the federal civil rights law.
Taking the specific misinformation point by point:
1."overstatement" writes that "CA law does not require schools to get involved in off-campus cyberbullying except in extreme situations and, even then, cautions them when they do."
This is false. CA law bans cyberbullying. The only restriction on the ability of the district to address it is of a public school district to suspend or expel for conduct protected by the First Amendment. However, as the story notes, conduct off campus that creates a "substantial disruption" or "material interference" in school meets this criteria. See Kowalski v. Berkeley County Schools, (4th Cir. 2011) Web Link
As the Fourth Circuit held, "According to a federal government initiative, student-on-student bullying is a "major concern" in schools across the country and can cause victims to become depressed and anxious, to be afraid to go to school, and to have thoughts of suicide. Just as schools have a responsibility to provide a safe environment for students free from messages advocating illegal drug use, schools have a duty to protect their students from harassment and bullying in the school environment. Far from being a situation where school authorities "suppress speech on political and social issues based on disagreement with the viewpoint expressed," school administrators must be able to prevent and punish harassment and bullying in order to provide a safe school environment conducive to learning."
In Kowalski, the Fourth Circuit held that a district may suspend a student for off-campus cyberbullying (slut-shaming) without running afoul of the First Amendment.
That's why CA law specifically provides an exception to the general rule that conduct protected by the First Amendment for bullying and harassment: "imposition of discipline for harassment, threats, or intimidation" is allowed despite a general prohibition on punishing off-campus speech, unless it would be unconstitutional to do so. Cal Ed. Code 48950(d).
2. overstatement also claims that "One of the many problems with these 2010 and 2011 letters is that the one federal employee who wrote them included rules that would effectively amend the US Constitution despite constitutional amendments requiring the pre-approval of 2/3rds of both houses of Congress and a blessing from all 50 states."
OCR has specifically stated that the DCLs do not prohibit any First Amendment protected speech. The only action that districts are required to take is to intervene effectively to stop the harassment and to remedy its effects on the victim. So long as the cyber harassment meets the criteria of being a substantial disruption or a material interference with the school, then this test is satisfied. Any conduct that meets the criteria in Title IX or other civil rights law of being severe, pervasive to the extent that it limits the victim's participation the educational program would by definition meet the criteria of being a substantial disruption. Thus, there is no constitutional violation that is the result of stopping the harassment.
3. overstatement links to an article that purports to establish the lack of legitimacy for the 2011 DCL on sexual harassment. But this is a link to a far-right-wing source, which in turn links to other far right wing sources. These sources, such as University of Chicago's Richard Epstein, abhor the US Department of Education, the Office for Civil Rights, Civil Rights generally (Epstein famously argued in Forbidden Grounds for the repeal of all federal employment anti-discrimination laws) and especially Title IX. The evils of Title IX in particular have been a right-wing hobby horse for many years. Another persistent concern of conservatives has been the expansive reading of the "unconstitutional conditions" doctrine such that virtually anything that the government wants from the recipients of its grants amounts to an unfair or unlawful burden on the local government receiving the funds.
I am loathe to criticize Professor Epstein because of his institution's long relationship with me, Edmund Burke, and its reverence for my contribution to modern thought: Web Link
Nevertheless I must respectfully disagree with Professor Epstein on this subject and hope it will not cause the University of Chicago Law School to cease to revere me.
Conservatives have been upset about this since Franklin Roosevelt used a federal-state grant arrangement to create unemployment insurance and the southern democrats balked at providing federal money to their black agricultural labor. Later they became even more concerned when Lyndon Johnson decided to use the power of the purse to reign in segregation and offered money to set up Head Start and Medicaid programs. States disappointed the right by eagerly accepting the funds and improving the lives of their citizens.
This was a triumph for liberals but conservatives continued to grumble and fight a rear-guard action against what they called federal over-reach. The argument that somehow the Office for Civil Rights Dear Colleague Letters are unconstitutional, unlawful, or otherwise illegitimate are an outgrowth of this fringe view of federal authority over schools and over how its money is spent.
One reasonable question that Palo Altans should ask is "why isn't PAUSD cooperating fully with OCR?" Even if some people such as Richard Epstein, on the libertarian fringe, think that OCR has overstepped, is it a good idea to challenge the right of the federal government to prohibit cyberbullying based on sex or race? Why does Palo Alto have a dog in that particular fight?
Palo Alto should cooperate fully with federal civil rights investigators, stop resisting federal rules, and improve its practices. That is the right thing to do now.
Posted by Edmund Burke
a resident of Another Palo Alto neighborhood
on Aug 21, 2013 at 12:26 am
I believe "understatement" could benefit from a bit of information about how courts view the decisions of other courts. There are two kinds of precedent among courts: binding and persuasive. Binding precedent consists of the decisions of courts that a court MUST follow. This is primarily hierarchical but also geographical.
All courts must follow the precedent of the Supreme Court. District courts within the Ninth Circuit must follow Ninth Circuit precedent, as must subsequent panels of the Ninth Circuit itself. Persuasive precedent, alternatively, is exactly what it sounds like. It is particularly likely to be influential when there is no binding precedent within a circuit. So, when the Ninth Circuit has no case on a subject, it will look to the opinions of other circuit courts of appeals to see how they have decided a particular matter. Because there are implications if a circuit split is created, this kind of inquiry can prove to be important. District court opinions are generally not treated by courts of appeals as any kind of authority, binding or persuasive except in exceptional circumstances.
Now that we have some basics covered, let's return to your question, which is: what has the Ninth Circuit said on this topic? The answer is that in the Ninth Circuit, the test that is applied for determining whether or not off-campus speech can be censored or sanctioned is the "substantial disruption" test derived from the Supreme Court's ruling in Tinker.
Incidentally, another prong of Tinker, the "rights of others" prong, was used to uphold discipline of anti-gay speech in Poway, but that case was vacated by the Supreme Court in 2007. It is still interesting to read that case, in which Judge Reinhardt -- the court's foremost First Amendment absolutist -- took a very forward-looking stand against anti-gay bullying. If that case was decided by the Supreme Court now, post Lawrence, and post-DOMA, it is very likely that Judge Reinhardt would be upheld. As it is, that decision will have to wait for another day because after cert was granted the case was mooted and the Court never decided it one way or the other. Nonetheless, Judge Reinhardt's beautifully written opinion gives voice to the concern over bullying:
"Being secure involves not only freedom from physical assaults but from psychological attacks that cause young people to question their self-worth and their rightful place in society. The "right to be let alone" has been recognized by the Supreme Court, of course, as "`the most comprehensive of rights and the right most valued by civilized men.'" Hill v. Colorado, 530 U.S. 703, 716-17, 120 S.Ct. 2480, 147 L.Ed.2d 597 (2000) (quoting Olmstead v. United States, 277 U.S. 438, 478, 48 S.Ct. 564, 72 L.Ed. 944 (1928) (Brandeis, J., dissenting)). Indeed, the "recognizable privacy interest in avoiding unwanted communication" is perhaps most important "when persons are `powerless to avoid' it." Id. at 716, 120 S.Ct. 2480 (quoting Cohen v. California, 403 U.S. 15, 21-22, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971)). Because minors are subject to mandatory attendance requirements, the Court has emphasized "the obvious concern on the part of parents, and school authorities acting in loco parentis, to protect children especially in a captive audience. . . ." Fraser, 478 U.S. at 684, 106 S.Ct. 3159. Although name-calling is ordinarily protected outside the school context, "[s]tudents cannot hide behind the First Amendment to protect their `right' to abuse and intimidate other students at school." Sypniewski v. Warren Hills Reg'l Bd. of Educ., 307 F.3d 243, 264 (3rd Cir.2002)." Harper v. Poway, 445 F.3d 1166 (9th Cir. 2006).
In other words, even as strong a First Amendment advocate as Stephen Reinhardt concluded that bullying of students on the basis of protected classifications was sufficiently grave in nature that it intruded on their rights such that a school was permitted to regulate that speech, even when it would ordinarily be protected by the First Amendment.
However, because that case was vacated, the opinion stands only for the fact that two Judges on the Ninth Circuit, in 2007 -- before the link between bullying and suicide was well-established -- believed that discriminatory harassment was sufficiently damaging to student psychological well being to justify abrogating the First Amendment. That's a harbinger -- a sign about what the Ninth Circuit would do with such a case if it got it now that we know so much more about the potential disruptions and harm that can be caused to an entire school (the empirical evidence has grown in the intervening years) by bullying, particularly bullying based on sex, race, or other protected classifications.
So now let's look at what law we do have in the Ninth Circuit for precedent. The case you cited, JC v. Beverley Hills USD is a district court case, not a Ninth Circuit case. But the Ninth Circuit did indicate in LaVine v. Blaine School District, 257 F.3d 981 (9th Cir. 2001) that the geographic origin of the speech (off campus versus on) is unimportant to the Tinker analysis of whether or not the speech causes a "substantial disruption" to the school environment (or whether or not school officials reasonably believe that such speech is likely to create a substantial disruption if it has not already occurred).
As the court you cited, JC v. Beverly Hills concluded in 2010 after an extensive review of the precedents, "In sum, the substantial weight of authority indicates that geographic boundaries generally carry little weight in the student-speech analysis. Where the foreseeable risk of a substantial disruption is established, discipline for such speech is permissible."
Thus, whether the bullying occurs on or off campus, on the internet or via smokesignal or semiphore, the test is the same: does the speech cause a substantial disruption to the school environment? If the answer is yes, then the school can regulate it, including disciplining the involved students (subject to any discipline rules in the state education code). If the answer is no, then the First Amendment may provide some restrictions on what the school can do.
As to whether or not cyberbullying causes a "substantial disruption," that is a highly fact-intensive inquiry sensitive to the circumstances of each case. However, it is clear that where harassment based on protected classifications rises to the level of being severe, pervasive, and creating a hostile educational environment, it is almost certainly the case that it is a "substantial disruption." That is because in order to be "severe" and "pervasive" it would meet the requirements for "substantial."
A disruption is "substantial" under Tinker when it "materially disrupts classwork or involves substantial disorder or invasion of the rights of others." Tinker, 393 U.S. at 513, 89 S.Ct. 733. In the JC case the district court found that the specific facts of that case, in which the student targeted was not at risk, no classes were missed or teachers were taken from their work, and the video was only posted to YouTube for 24 hours, it did not meet that test. By contrast discriminatory harassment targeting members of a protected classification based on that status is by definition going to be a substantial "invasion of the rights of others."
It is worth noting that the JC case was decided before the epidemic of highly publicized teen suicides related to cyber bullying occurred, such as that of Reteah Parsons, Audrie Pott. That was before Steubenville, and before it was clear just how dangerous such online cyberbullying related to rape can be. JC was not decided by the Ninth Circuit, and based on Harper and LaVine it is very hard to see the Ninth Circuit coming out the same way.
In the current Paly case, which is what I am sure this flood of defensive posts from "overstatement" is actually about, the facts are far worse and more disruptive to the school environment than those in the JC case. In the Palo Alto High School rape culture case, a student was raped at an off campus event. The rape was made known to a school based ACS counselor. The police were notified by the school. The victim was harassed both electronically and on campus. The effects of the off-campus harassment were felt on campus. The harassment was so extreme that the victim left school, with the knowledge of school officials, who did not apparently intervene effectively to stop the harassment or remedy its effects. This is a far more severe, pervasive, and substantially disruptive situation than that in the JC case.
OCR's Dear Colleague Letters do not require any discipline to be imposed and none needs to be imposed. OCR explicitly does not require districts to ban conduct that is permitted under the First Amendment. But school districts have tremendous leeway to regulate student speech to maintain a safe learning environment. The regulation of speech that is discriminatory and bullying falls into the category of speech that schools not only can restrict but must restrict to provide an opportunity to all students to achieve. That is the promise of public education, it is why we have public schools.
It is absolutely unacceptable that PAUSD is resisting complying with federal civil rights laws that are intended to all all students an equal chance to better themselves. This isn't hard, it isn't complicated, and it doesn't take a towering figure of intellectual history such as myself, Edmund Burke, to figure out the right course to follow.