The purpose of this Article is to set forth a comprehensive model cyberbullying policy for primary and secondary public schools that meets educational goals and considers constitutional challenges. This first Part of this Article explores the current problems caused by cyberbullying and why these problems are unique from off-line bullying. Because of the unique problems caused by cyberbullying, some state legislatures are beginning to enact specific laws to address cyberbullying. The current statutes are summarized in Appendix A of this Article. Those statutes, however, provide little to no direction on how public schools should create cyberbullying policies that are constitutional while also meeting statutory requirements. Thus, Appendix B of this Article sets forth a model cyberbullying policy for public schools.
The second and main Part of this Article considers three constitutional challenges public schools face in adopting a cyberbullying policy. First, public schools wrestle with how to define “cyberbullying” without violating the students’ First Amendment rights to free speech. The crux of the problem concerns speech that students make off of school grounds but that impacts other students at school (for example, creating a website at home, which is then accessed at school, that harasses another student). This Part sets forth a novel way of approaching the conflicting legal precedents by separately considering jurisdictional and substantive issues. The second constitutional challenge is composing a cyberbullying policy that does not violate due process rights or that is written in language that is unconstitutionally vague or overbroad. The third constitutional challenge is formulating a way for school officials to know when they can search students’ personal electronic devices without violating the Fourth Amendment.
The final Part of this Article addresses pedagogical concerns such as reporting requirements, disciplinary matters, and educating students, parents, and school officials about cyberbullying. All of these topics should be considered in order to construct a comprehensive cyberbullying policy. The model cyberbullying policy for public schools set forth in Appendix B of this Article adopts language that attempts to combat cyberbullying while complying with constitutional requirements and meeting educational goals.
