Cyberbullying: Can Your District Discipline for Online Behavior?
A group of girls create a website where they post stories, hurtful jokes, and photos making fun of
a fellow classmate. The website allows all viewers to submit their own comments and even
includes a link to the classmate’s email.
Using his personal profile, a student posts a mean message about a classmate on a social media
website that is regularly seen by many students. Other classmates comment on the post and share
the messages, which eventually get back to the subject of the comments.
While at school, a student composes and sends a text message to 25 of her closest friends making
fun of a new student’s haircut.
Does this conduct meet the legal definition of cyberbullying?
Yes. Depending on the circumstances, all of the conduct described above could constitute
cyberbullying, which the Texas Education Code defines as the use of any electronic
communication device to engage in bullying or intimidation.1 The Texas Education Code defines
bullying as: “engaging in written or verbal expression, expression through electronic means, or
physical conduct that occurs on school property, at a school-sponsored or school-related activity,
or in a vehicle operated by the district and that:

has the effect or will have the effect of physically harming a student, damaging a
student’s property, or placing a student in reasonable fear of harm to the student’s person
or of damage to the student’s property; or

is sufficiently severe, persistent, and pervasive enough that the action or threat creates an
intimidating, threatening, or abusive educational environment for a student.”
The conduct is considered bullying if it: (1) exploits an imbalance of power between the student
perpetrator and the student victim through written or verbal expression or physical conduct; and
(2) interferes with a student’s education or substantially disrupts the operation of a school.”2
School districts are required to adopt a student code of conduct that prohibits bullying, harassment,
and making hit lists and to ensure that district employees enforce those prohibitions.3 In addition,
districts are required to adopt a policy regarding certain issues specifically related to preventing,
investigating, and responding to allegations of bullying. The policy must:
1
2
3

prohibit the bullying of a student;

prohibit retaliation against any person who, in good faith, reports or provides information
of an incident of bullying;
Tex. Educ. Code § 37.218(a)(2).
Tex. Educ. Code § 37.0832(a)-(b).
Tex. Educ. Code § 37.001(a)(7).
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
provide procedures for providing notice to a parent or guardian of the victim and a parent
or guardian of the perpetrator within a reasonable time about an incident of bullying;

establish actions a student should take to obtain assistance and intervention;

set out available counseling options for students;

establish procedures for reporting an incident of bullying, investigating and determining
whether the reported incident of bullying occurred;

prohibit the discipline of a student found to be a victim of bullying if the student engaged
in self-defense in response to the bullying; and

require that any discipline for bullying of a student with disabilities complies with applicable
federal requirements and the Individuals with Disabilities Education Act (IDEA).4
TASB Policy FFI(LOCAL) includes the Texas Education Code’s definition of bullying as well
as the legally required elements a school district must address in its policy regarding bullying.
Under the policy, any district employee who suspects that a student has experienced bullying
must immediately notify the principal or designee. Whether a report of suspected bullying is
based on in-person conduct or online conduct, the administrator receiving the report must review
the situation in accordance with the investigative procedures set forth in the district’s bullying
policy. If the results of the investigation conclude that bullying or cyberbullying occurred, the
policy requires the district to take appropriate disciplinary action in accordance with the district’s
student code of conduct. The policy also states that the district may take other appropriate
corrective measures.
Does this conduct violate other laws?
Depending on the situation, conduct defined as bullying or cyberbullying might also be
considered unlawful harassment. The Texas Education Code defines harassment as:
threatening to cause harm or bodily injury to another student, engaging in sexually
intimidating conduct, causing physical damage to the property of another student,
subjecting another student to physical confinement or restraint, or maliciously
taking any action that substantially harms another student’s physical or emotional
health or safety.5
Federal nondiscrimination laws, such as Title IX of the Education Amendments of 1972, Section
504 of the Rehabilitation Act, and Title VI of the Civil Rights Act of 1964, protect a public
school student against harassment based on the student’s membership in a protected category.6 In
compliance with these laws, TASB policy FFH(LOCAL) defines harassment as “physical,
verbal, or nonverbal conduct based on the student’s race, color, religion, sex, gender, national
origin, disability, age, or any other basis prohibited by law that is so severe, persistent, or
pervasive that the conduct:
4
5
6
Tex. Educ. Code § 37.0832(c).
Tex. Educ. Code § 37.001(b)(2).
See Title IX of the Education Amendments of 1972, 20 U.S.C. §§ 1681-1688; Section 504 of the Rehabilitation
Act, 29 U.S.C. § 794; Title VI of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000d-2000d-7.
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1. Affects a student’s ability to participate in or benefit from an educational program or
activity or creates an intimidating, threatening, hostile, or offensive educational
environment;
2. Has the purpose or effect of substantially or unreasonably interfering with the student’s
academic performance; or
3. Otherwise adversely affects the student’s educational opportunities.”
If an administrator determines that allegations of bullying or cyberbullying may meet the legal
definition of harassment, dating violence, or other prohibited conduct on the basis of a student’s
membership in a protected category, the district’s investigation and response should proceed
under policy FFH(LOCAL). Nonetheless, if the conduct could be both bullying and harassment,
the district should make a determination as to both.
In some situations, a student’s online conduct could be subject to criminal penalties as well as
school discipline. For example, a person commits the offense of online impersonation by
creating certain web pages or messages, using the name or persona of another person without
consent, and with the intent to harm, threaten, or intimidate that person.7 If a student records,
broadcasts, transmits, or promotes intimate images of another student, without consent and with
the intent to invade the student’s privacy, the conduct may also be subject to prosecution as an
invasive visual recording.8
Does the school have jurisdiction to discipline cyberbullies?
This question is easier to answer if the students created or accessed the cyberbullying material
(e.g., website, posting, or messages) on campus or using the district’s technology resources. If
so, the students would be subject to the district’s acceptable use policy, found in CQ(LOCAL).
In addition, when there is a clear connection between the online conduct and the school, your
district’s student code of conduct must prohibit this type of bullying, as described above. For
example, the TASB Model Student Code of Conduct prohibits using an electronic device to:
send, post, or possess electronic messages that are abusive, obscene, sexually oriented,
threatening, harassing, damaging to another’s reputation, or illegal, including cyberbullying and
‘sexting,’ either on or off school property, if the conduct causes a substantial disruption to the
educational environment.
The question is harder to answer when the offensive material is developed and maintained
wholly off-campus. Districts may have jurisdiction to discipline for cyberbullying content or
messages developed and maintained wholly off-campus that cause a material or substantial
disruption to the educational process.9 Districts do not, however, have jurisdiction to discipline
for such materials if they do not cause a disruption at school.10 This is because a student’s offcampus expression is subject to a higher level of protection under the First Amendment. Courts
7
8
9
10
Tex. Pen. Code § 33.07(a).
Tex. Pen. Code § 21.15.
J.S. v. Bethlehem Area Sch. Dist., 757 A.2d 412 (Pa. Commw. Ct. 2000), aff’d, 807 A.2d 847 (Pa. 2002).
See Beussink v. Woodland R-IV Sch. Dist., 30 F. Supp. 2d 1175 (E.D. Mo. 1998) (enjoining district from
enforcing discipline based on website that student created using his home computer to criticize high school
administration).
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have held that a school may not discipline a student for off-campus speech protected by the First
Amendment, including websites and electronic messages, unless the school can show a material
and substantial disruption, or that school officials reasonably foresaw a material and substantial
disruption, resulting from the off-campus speech.
What have courts said about disciplining students for off-campus, online expression?
The Fifth Circuit Court of Appeals considered the issue of a student’s off-campus, online
expression in the case of Bell v. Itawamba County School Board, 799 F.3d 379 (5th Cir. 2015).
In that case, Mississippi high school student Tyler Bell created and published a rap song on
Facebook and YouTube accusing two coaches of misconduct with female students. Bell’s song
contained vulgar language, profanities, and references to shooting the coaches with a firearm. As
a consequence, the district sent Bell to an alternative school and barred him from extracurricular
activities. When Bell challenged his discipline in court, a panel of the Fifth Circuit initially ruled
that the district had violated the First Amendment because the district could not produce any
evidence of a material and substantial disruption based on the rap, which the student created and
produced off-campus using his home computer. On appeal to the entire Fifth Circuit, however,
the court held differently. Recognizing that “[o]ver 45 years ago, when Tinker was decided, the
Internet, cellphones, smartphones, and digital social media did not exist,” the court found that it
was reasonable for school officials to forecast a material and substantial disruption based on the
rap, which the student acknowledged placing online specifically so that it would reach the school
community.11 Therefore, because the speech was intended to reach the school community and to
threaten, intimidate, and harass employees, the school had disciplinary jurisdiction.12
In a different case, Kara Kowalski, a high school student in West Virginia, created a MySpace
webpage that promoted the idea that a fellow classmate had herpes and featured a picture of the
classmate with the caption, “portrait of a whore.” Kowalski created the webpage off-campus,
after school, using her home computer, but she invited approximately 100 of her MySpace
“friends” to join the discussion group, and at least two dozen of her classmates responded. When
the parents of the student portrayed on the MySpace page complained to the school, the district
suspended Kowalski from school for five days, issued a 90-day “social suspension” from school
events, and prohibited her from participating on the cheerleading squad for the rest of the school
year. The Fourth Circuit Court of Appeals upheld the discipline, observing that it was reasonable
to expect that Kowalski’s off-campus activities would reach the school community. Further, the
court found a sufficient nexus between Kowalski’s expression and the school officials’
pedagogical interests in providing a safe educational environment.13
As the case law develops, courts may be applying greater deference to school officials’ attempts
to discipline for off-campus speech, due in part to increased public concern about school
violence, as well as greater awareness of the insidious effects of cyberbullying. Nonetheless,
each case is fact-specific, and different courts hearing cases with similar facts to the cases above
have reached the opposite conclusion. For example, the Third Circuit Court of Appeals decided
11
12
13
Bell v. Itawamba County Sch. Bd., 799 F.3d 379, 399 (5th Cir. 2015) (en banc), cert. denied, 136 S. Ct. 1166.
Bell v. Itawamba County Sch. Bd., 799 F.3d 379, 399 (5th Cir. 2015) (en banc), cert. denied, 136 S. Ct. 1166
(citing Tinker v. Des Moines Indep. Comm. Sch. Dist., 393 U.S. 503 (1969)).
Kowalski v. Berkeley County Sch., 652 F.3d 565 (4th Cir. 2011), cert. denied, 132 S. Ct. 1095.
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in two companion cases that school districts could not lawfully discipline students for fake
MySpace profiles that the students created off campus of their respective principals, because,
even though the websites contained crude sexual remarks and insulting language, there was no
evidence of a material and substantial disruption at school.14
How do school administrators know when discipline for online behavior is appropriate?
Because case law on this matter is limited, there is no bright-line rule governing when school
discipline for cyberbullying is appropriate, but some guidelines are clear. Administrators should
be able to govern student speech when it appears to be sponsored by the school, such as a student
contribution to an official school district website. If there is an obvious connection between a
student’s internet activity and school, such as a website created and maintained on campus, the
school district will most likely have jurisdiction to discipline for bullying.
The harder question arises when the on-line speech takes place off campus. Based on courts’
traditional understanding of the First Amendment’s protections for student speech, there must be a
substantial and material disruption to school operations in order for the school to take disciplinary
measures based on off-campus expression. As demonstrated by the cases above, courts may be more
likely to defer to school administrators when the off-campus speech targets a student or threatens
school safety, as opposed to making fun of school personnel. In addition, courts are more likely to
uphold disciplinary measures that are reasonably tailored to match the severity of the offense. When
in doubt as to the district’s jurisdiction, administrators should always consider responding to
cyberbullying in non-punitive ways and involving the students’ parents.
If a district seeks to punish a student for off-campus internet activity, TASB Legal Services
recommends that administrators investigate and document any evidence of a connection between
this online behavior and school. Before attempting to discipline for off-campus behavior, contact
your local school district attorney or call TASB Legal Services on the toll free Legal Line (800580-5345).
This document is provided for educational purposes only and contains information to facilitate a general
understanding of the law. It is neither an exhaustive treatment of the law on this subject nor is it intended to
substitute for the advice of an attorney. It is important for the recipient to consult with the district’s own attorney in
order to apply these legal principles to specific fact situations.
Updated July 2016
14
See J.S. ex. Rel. Snyder v. Blue Mountain Sch. Dist., 650 F.3d 915 (3d. Cir. 2011) (en banc) (barring school
district from disciplining eighth grade student for fake MySpace profile of his principal); Layshock v.
Hermitage Sch. Dist., 650 F.3d 205 (3rd Cir. 2011) (en banc) (overturning discipline of student for fake
MySpace profile of principal including profanity, even though students accessed the site on campus during
school hours).
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