This article is part of a series addressing cyberbullying and related issues. The previous installment can be found in The Campbell Law Observer archives.
The last article in this series briefly discussed the problem of cyberbullying and how states are attempting to address the issue. This installment takes a closer look at North Carolina’s bullying statutes.
The art of bullying begins at home. Siblings pick on one another, tease each other, and sometimes fight. From this perspective, the common understanding of bullying is nothing new—it is simply something we learn to deal with as human beings living in close proximity to others. Sibling rivalry is one thing, but the bullying that takes place in the schoolyard is completely different. The Internet has opened up plenty of opportunities for school conflicts to infiltrate the safety of the home, where Mom and Dad cannot tell those kids to knock it off the same way they can with sibling fights. So what can we do to get our kids some peace?
The North Carolina General Assembly reached for this peace in 2009, when it passed two bullying-centered statutes in the same legislative session. The School Violence Prevention Act (SVPA) addresses “bullying or harassing behavior” in the school context, while the new Cyberbullying statute criminalizes a conduct that is elusively defined. To see how these two statutes work together, we will take a closer look at each one in turn.
The SVPA is codified at N.C. Gen. Stat. § 115C-407.15 through § 115C-407.18. It is geared towards policing what the statute terms “bullying or harassing behavior” on school property, school buses, and at school sponsored functions. But how do we know what bullying is? How does the State define it? According to the statute,
“any pattern of gestures or written, electronic, or verbal communications, or any physical act or any threatening communication, that takes place on school property. . .that (1) places a student or school employee in actual and reasonable fear of harm to his or her person or damage to his or her property; or (2) creates or is certain to create a hostile environment by substantially interfering with or impairing a student’s educational performance, opportunities, or benefits.”
That is quite a mouthful, but this definition is still pretty vague. At first glance, it sounds like what we might think it is: kids picking on other kids at school. But there are some interesting elements to the definition. First of all, the definition includes electronic communication that takes place on school property. (Does this sound like it might include cyberbullying? Hold that thought, because we will turn to that in a moment.) Secondly, the communications must place the victim of the communication “in actual and reasonable fear of harm.” Under that definition, a claim of bullying based solely on hurt feelings is out of the question. Except the definition includes part two, which seems to indicate that words which cause hurt feelings would constitute bullying if those words created a “hostile environment” under the statute. Not only that, but part one allows for situations where school employees may feel threatened by the bullying behavior. All of a sudden, this issue is not restricted to the schoolyard at recess. It becomes a school-wide issue in which both victims and perpetrators can be students, teachers, and other school employees. The only requirement here is that the conduct occurs on school property to fall subject to the school’s policy on bullying.
The statute also imposes a duty to report on school employees if they witness “or [have] reliable information that a student or school employee has been subject to any act of bullying or harassing behavior.” Students and volunteers “should” report bullying if they witness it or have that same kind of “reliable information” – but there is no affirmative duty for students to step in on behalf of their classmates. In both instances, the statute does not discuss what actually comprises “reliable information” to lead them to report instances of bullying or harassing behavior.
Other parts of the SVPA set minimum requirements for school bullying policies, including publication of school policy and integrating those policies into teacher training. Section 115C-407.18 specifically states that school officials cannot use school policies against bullying as an excuse to punish student speech or student expression merely because officials are apprehensive that students’ speech will cause disturbances at school. The same section specifically provides that the statute does not create any new protected or suspect classes – the bullying context does not allow for heightened scrutiny unless the victim falls into an already-defined suspect class.
But as this article is supposed to be part of a series on cyberbullying, how does the SVPA fit in? It all comes down to the definition of “bullying or harassing behavior” set forth in the statute. While the statute supposedly addresses bullying that takes place on school grounds, the definition of the conduct still includes “any pattern of gestures or written, electronic, or verbal communications . . . that takes place on school property” (emphasis added). There is a potential problem with the phrasing of this portion of the definition. How can schools determine whether the electronic communication in question took place on school property? Furthermore, can a communication that initially took place off school property (at home, for instance) but is downloaded on school property fall under this definition?
A few examples can help illustrate the stickiness of the electronic portion of the SVPA (and the stickiness of trying to define cyberbullying in a school context). A student who uses a school-owned computer on campus to post a threatening message on a classmate’s Facebook page clearly falls under the statute. The communication itself occurred on campus, even though the student sends that message into the void of cyberspace where it can be viewed by anyone on or off campus. A student who sends text messages during the school day from her cell phone could also fall under the statute if she is physically on campus when she sends the messages. (She may be in trouble for having the cell phone at school, depending on school policy, but the message falls under a completely separate policy.)
But what about the student who is on her laptop at home when she posts that same Facebook threat, or sends the text message? What if that student at home posts trash talk about her teachers? The initial posting does not take place on campus, but (depending on the content of the message) it has the possibility of creating actual and reasonable fear of harm, or of creating a hostile school environment under the statute. And while the initial posting does not take place on campus, other students may have access to it from on-campus sources, participate in the dissemination of the messages, and repeat them both online and in person. But how far can the school reach to bar or discourage this behavior from its students? Like we said before, the SVPA specifically bars schools from censoring student speech out of mere anxiety that the speech itself will cause a disturbance at school – but that portion applies solely to the speech that occurs on campus. After all, we have already established in Tinker v. Des Moines Independent Community School District that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Can the schools touch the student who threatens her classmate or her teacher from her home laptop? Perhaps not – despite the capability for the threat to be downloaded and distributed on school property, the student’s speech arguably occurs off school property, and is protected from school policy.
However, that does not mean the same student is not subject to the other bullying-related statute passed in 2009 – the Cyber-bullying Misdemeanor. While the SVPA attempts to protect students and teachers from one another at school, the context of cyberbullying itself is much broader. The same student may be protected from school discipline for her at-home Internet posts ridiculing or threatening her classmates, but she may find herself subject to criminal charges for the same posts.
The next installment will address the Cyber-bullying Misdemeanor statute (N.C. Gen. Stat. § 14-458.1).