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“Cyberbullying” is triggering widespread litigation and legislation, with everyone from teachers, parents and school districts pursuing legal action over nasty and threatening remarks posted by students on the Web. In Pennsylvania, a case is on appeal in the 3d U.S. Circuit Court of Appeals involving a student who was suspended for 10 days and sent to an alternative school for posting a fake Myspace profile that made derogatory remarks about his principal. A lower court ruled the school violated the student’s free speech rights, so the school appealed last month. Layshack v. Hermitage Area School District, No. 074465. In Florida, a teacher last month collected $1,000 from a student she had sued for allegedly posting demeaning sexual comments about her on a popular Web site, along with her picture. Waters v. Miller, No. 2006-CA-2690-SC (Sarasota Co., Fla., Cir. Ct.). In New Jersey, a school district paid a $117,500 settlement in 2005 to a teenager after a court ruled that it had violated the student’s First Amendment rights by suspending him over a Web site the teen had created criticizing his school and faculty. Dwyer v. OceanPort School District, No. 03-6005 (D.N.J.). A legal quandary Lawyers say school districts are in a legal quandary: If they punish students for something they did off school grounds, they could get hit with freedom of speech claims. If they do nothing, they could get hit with failure-to-act lawsuits. Adding to the problem is that courts are deeply divided on the issue, lawyers say, with some allowing schools to punish students for Internet postings made at home, and others rejecting such discipline on First Amendment grounds. “Schools have a growing concern about the problem, and their concern is whether they can discipline students and how far the bullying has to go before they can get involved,” said Kim Croyle of Bowles Rice McDavid Graff & Love in Morgantown, W.Va., who represents several school boards and lectures nationally on cyberbullying. To be able to punish cyberbullies, Croyle said, schools must show that the postings harmed the educational experience. For example, she said, a school could argue that a child is afraid to go to English class or a football game because a cyberbully is there, or a student is afraid to come to school at all because of a cyberbully. “Once the harm enters the school doors, schools have jurisdiction,” Croyle said. Meanwhile, legislation aimed at curtailing cyberbullying is popping up across the nation. Last week, a small Missouri town made Internet harassment a misdemeanor due to public outrage over the suicide of a 13-year-old girl who was bullied on the Internet. The 2003 suicide of a Vermont boy taunted on the Internet also has led to numerous state cyberbullying laws, largely due to the efforts of the boy’s father, John Halligan, who has been lobbing for cyberbullying legislation nationwide. In the past year, Arkansas, Florida, Minnesota, Nebraska, and Washington have considered bills that would mandate public schools to adopt cyberbullying policies. Similar laws already exist in Iowa, Oregon, South Carolina and Vermont. Constitutional issue Constitutional lawyers have been lining up across the country to defend students’ free speech rights involving Internet postings. They argue that some schools are taking the issue too far, punishing students for comments that are protected by the First Amendment and are neither harmful nor truly threatening. “The position that we have consistently taken is that speech that takes place at home is outside of the purview of the schools. They simply cannot punish for speech at home,” said Kim Watterson, a First Amendment and appeals lawyer at Reed Smith who has won four cyberbullying lawsuits in recent years on behalf of students. Among those victories was the case of Anthony Latour, a Pennsylvania student whose family won a $90,000 settlement from the school district for expelling him over rap songs he posted online that were deemed to be threatening � a violation of his First Amendment rights. Latour v. Riverside Beaver School Dist. No. 05-1076 (W.D. Pa.). Watterson said that a key to winning all of her cyberbullying cases was showing that there was no evidence that the online postings caused a substantial disruption of the school day. She said that, too often, schools are quick to punish a student for online behavior, rather than call the parents first and let them discipline the child, which could avoid a lawsuit.

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