By Steve Adams
The tragic suicide of 12-year-old Rebecca Sedwick last fall – following months of cyberbullying by two of her Florida middle school classmates – has highlighed the potential liability schools might face in a similar situation.
The mother of the deceased girl has indicated she plans to file wrongful death lawsuits against “those responsible” for the cyberbullying, including the school district. The mother alleges that she reported the bullying behavior to school officials prior to her daughter’s suicide.
Closer to home, does Rhode Island law impose liability against school districts and administrators for cyberbullying?
The short answer is “yes,” depending on the circumstances.
Schools have a legal duty to take reasonable steps to protect students in their charge from harm. This duty is based on their special relationship to students in essentially exercising quasi-parental supervision of students related to school activities.
This arguably extends beyond school property to off-campus activities that substantially disrupts the educational process or interferes with the rights of others.
What does a school need to do if made aware of cyberbullying of one of its students by other students?
An important consideration in determining potential civil liability of a school district is whether the school displayed “deliberate indifference” to the plight of a bullying victim.
Inaction can be worse than ineffective action. A school district most certainly does not want to be accused of looking the other way and ignoring the issue. At a minimum, school officials should thoroughly investigate reports of bullying, and should communicate with the parents of the alleged victim and perpetrators about the investigation.
School officials should also intervene if it learns of suicidal intentions of the bullying victim, such as informing his or her parents.
Though the specific liability theories and defenses are beyond the scope of this article, suffice it to say that if a bullied student commits suicide, a school’s potential exposure in a wrongful death lawsuit could be millions of dollars, especially if the school was aware of the issue and failed to take any meaningful steps to combat the problem.
Cyberbullying that doesn’t end in suicide is still potentially the basis for legal liability. Federal and state statutes and case law provide bullying victims and their families with several potential causes of action against a school district. The specific facts that a victim or his or her family would need to prove depend on the theory of liability.
Schools should consult their legal counsel, who can likely assist with risk management. In addition, schools must absolutely review their insurance coverage to ensure that the schools and the taxpayers who fund them are appropriately protected in the event of a serious incident.
Even when a school does everything right, a costly lawsuit can still be filed. Having the right kind of insurance can limit the exposure to necessary, but costly attorneys’ fees even where the case itself is meritless.
All Rhode Island public schools have to create and enforce a student discipline code (R.I.G.L. § 16-21-21). The definition of “bullying” and “cyberbullying” in the Safe Schools Act (R.I.G.L. §16-21-33) is arguably expansive enough to allow a school to tailor a policy to include the potential for discipline based on off-campus activity. Specifically, cyberbullying encompasses any electronic expression that “materially and substantially disrupts the education process or the orderly operation of a school.”
Federal courts have ruled that schools can regulate off-campus cyberspeech that is intimidating and harassing if the speech causes a substantial disruption in the school environment or interferes with the rights of others. Disciplining students and limiting this type of communications does not violate their First Amendment free speech rights.
Because the lines between home, school and work have become so blurred in recent years, it is important to have an off-campus cyberbullying provision in a school disciplinary code. The supervisory responsibilities of schools extend beyond the school property. Schools have to confront these issues because there are so many more mechanisms for kids to be mean to one another.
Steve is administrative partner in the Providence office of Barton Gilman, where he focuses his practice on advising education institutions and handling a wide range of civil litigation matters.