Well, okay, maybe that’s not exactly what the headline on The Daily Caller actually says, and I’m quite sure it’s not how the feds would describe their actions, but their attempts to deal with cyberbullying and harassment may ride roughshod over student privacy and speech while imposing more liability on schools.
Neil Munro of The Daily Caller provides an overview of what the government wants to happen. Much of it was outlined in a directive from education officials published in October 2010 as a “Dear Colleague” letter. Significantly, it informs schools that they are liable for harassment if they “reasonably” could have or should have known about it and failed to address it. What’s noteworthy is that their definition of harassment includes the use of the Internet and cellphones without restricting the definition to in-school use of such devices or means.
Munro describes the response of the National School Boards Association (NSBA):
The department’s re-interpretation expands legal risks for schools beyond those set by the Supreme Court in a 1999 decision, said a Dec. 7 NSBA statement. The court decision, which interprets several federal laws, says schools are liable for harassment that school officials know about and that “effectively bars” a student’s access to an educational benefit.
The remedies being pushed by administration officials will also violate students’ and families’ privacy rights, disregard student’s constitutional free-speech rights, spur expensive lawsuits against cash-strapped schools, and constrict school official’ ability to flexibly use their own anti-bullying policies to manage routine and unique issues, said the NSBA letter. The government has not responded to the NSBA letter.
I often disagree with the NSBA and actually think that more liability can be a good thing as there have been some horrendous harassment cases where school officials did nothing to address harassment and got away with it. But those cases involved actions and statements on school property during the school day or at school-sponsored events. If we start making schools legally liable for student conduct that occurs in their homes or while not on school premises, then it becomes an unrealistic burden on schools, even though the conduct may have an impact on the students while in school and even though the schools should try to address it.
While I want the schools to try to address such problems as they will spill over into the school setting, I don’t think that it is fair to hold them any more liable for non-responsiveness to out-of-school behavior than it is to hold the parents of the student liable. If the harassment occurs via postings on Facebook made from the student’s computer at home, who should have responsibility here – the schools or the parents? And who should have any legal liability here for failure to stop it or address it – the schools or the parents? And no, I’m not forgetting to hold students responsible for, and accountable for, their own behavior, but some of these children are young.
Apart from the privacy issue of essentially demanding that schools intrude into the student’s life outside of school hours and setting, we also need to be very careful here that political correctness does not trump protected speech. One reasonably likely outcome of such enhanced liability is that more schools will engage in more warrantless searches of students’ cellphones in order to conduct the investigation that they will need to perform to demonstrate that they responded to allegations of harassment.
All in all, this strikes me as a poor approach to a serious problem. But then, this is the same federal education department that has routinely failed miserably to deal effectively with serious problems in the schools.