It’s Not Just Kid-Stuff: Peer to Peer Cyberbullying Continues in Colleges and Universities
Posted on December 1st, 2014
by Dr. Kathleen Conn
In 2005, Darby Dickerson, then-Vice-President and Dean of Stetson University College of Law, wrote a legal commentary warning the higher education community to be alert to the dangers from a “sinister e-culprit,” the cyberbully. Since the publication of Dickerson’s commentary, thousands of articles have been published on the topic of cyberbullying, most dealing with the problem of cyberbullying in K-12 public schools and others with cyberbullying in the workplace. If the extent of the cyberbullying problem in higher education were to be judged by its media coverage, it would seem that cyberbullies take time off during college and university years. Unfortunately, this is not the case. Cyberbullies are alive and well on campuses of higher education; they are simply operating under the radar.
Cyberbullying is a technology-facilitated version of traditional face-to-face bullying. Because of its anonymity, cyberbullying is even more distressing for its targets than face-to-face bullying. Cyberbullying messages are intentional and aggressive; they are disinhibited because they are devoid of feedback cues from targets. Also, the imbalance of power present in face-to-face bullying, where the bully is more powerful physically or psychologically, can be reversed in cyberbullying. The cyberbully can torment the college president or a professor who assigned an unwelcome grade, as well as fellow students. The torment can go on indefinitely as the cyberbullying message is repeated and spread with the click of a mouse. Cyberbullying is especially dangerous for college and university students who are in new, often stressful situations devoid of their traditional supports. In these students, cyberbullying has been linked to depression and ensuing student suicides.
Determining the extent of cyberbullying in colleges and universities is fraught with difficulty. Small-scale surveys probing cyberbullying prevalence on college and university campuses indicate that from 8.6% to 22% of students are targets of cyberbullies. However, many institutions of higher education are reluctant to survey students, for fear of negative publicity from the findings.
Colleges and universities must report certain so-called “Clery crimes,” but cyberbullying is not a reportable crime unless it escalates into cyberstalking. Suicides are also not reportable Clery crimes, so colleges and universities are not obligated to report student suicides precipitated by cyberbullying. Only when a suicide is headlined in the media, like that of Rutgers student Tyler Clementi who jumped to his death from the George Washington Bridge or of University of Wisconsin student Alyssa Funke who committed suicide after being cyberbullied for starring in a porn flick,is the public able to connect the dots.
Similarly, court records give us scant information about the extent of cyberbullying on campuses of colleges and universities. The right of academic institutions to regulate student speech is a gray area, with only four U.S. Supreme Court decisions dealing with the issue, and that solely in the context of K-12 public schools.
No Supreme Court case has dealt with post-secondary school student speech, so it falls to lower courts to apply the K-12 precedents in adjudicating cyberbullying communications in colleges and universities. The precedent overwhelmingly used is the 1969 decision of Tinker v. Des Moines Independent Community Schools, the “black armbands” case, where the High Court ruled that academic institutions may discipline students for speech that materially and substantially disrupts the operation of the school, or where such disruption is reasonably foreseeable. The application of this standard has led to conflicting results, as demonstrated in the following two court decisions.
In the first, Maciej Murakowski, a 19-year-old sophomore at the University of Delaware, set up a personal website where he posted graphic essays about his desires to kidnap, rape and torture women. Several female students became aware of his postings and reported Murakowski to campus police. Several complained that they felt uneasy and fearful, and one woman so feared for her personal safety that she requested to audit a course. The university ultimately sanctioned Murakowski and barred him from his dorm. However, Murakowski continued to enter his dorm. He was ultimately suspended and totally barred from campus.
Murakowski sued the university. The court applied a litany of student speech decisions from lower courts, but ultimately relied on the Tinker standard, ruling that, although some women were upset by Murakowski’s writings, others were not. The court described the writings as “racist, sexist, homophobic, insensitive, degrading,” and said the essays “contained graphic descriptions of violent behavior and promoted such behavior,” but they did not constitute true threats nor did they rise to material and substantial disruption of university operations. The court refused to grant the university’s motion for summary judgment on the issue of disciplining Murakowski for his online expression.
However, in a more recent case, Osei v. Temple University, application of the Tinker standard resulted in an opposite outcome. Michael Osei was a Ghanian student who was dissatisfied with his grade of “C” in his Fall 2009 graduate Organic Chemistry class. He contacted his professor, Dr. Grant Krow, by email in mid-December, and requested details of his grade calculation and a copy of his examination paper. Feeling that Krow’s response was inadequate, Osei sent a total of three subsequent mass emails to all students in Krow’s Organic Chemistry course. Osei also sent two additional emails to Dr. Krow, saying in one, “If my grade was not a genuine or fair grade . . . It will be a curse against your life and family forever. I am serious!”
In another, Osei said, “Your game is over! Mine begins. You played with the wrong person this time,” and “Marl [sic] my words. The year 2010 will not start well for you.”
Dr. Krow reported Osei’s emails to his Department Chair and to campus police. Osei was charged with violating the Temple University Student Code of Conduct by sending what were believed to be threatening emails to Dr. Krow.
After several hearings at which Osei apologized for his flawed English, Osei was suspended from Temple; when his appeal was unsuccessful, Osei began legal action. Osei claimed violations of due process, infringement of his First Amendment right to freedom of speech, retaliation, discrimination, and other claims. The court quoted Tinker, affirming Osei’s right to freedom of speech, but also quoted extensively from the Murakowski decision to establish that “true threats,” such as the troublesome language in Osei’s emails to Dr. Krow, are not protected by the First Amendment.
Ultimately, Osei’s federal claims were dismissed with prejudice, and the court declined to exercise supplemental jurisdiction on any remaining state claims.
The Bottom Line
These two court decisions underscore the tension inherent in the First Amendment’s guarantee of freedom of speech on college and university campuses. However, when cyberbullying is allowed to flourish under the radar on those same campuses, students end up getting hurt.
College administrators should not bury their collective heads in the sand. Awareness assemblies, training for faculty, staff, and students to recognize cyberbullying, and mechanisms for reporting are recommended. Cyberbullies do not take time off during college and university years.
KingSpry is available to assist administrators with this process. We recommend you contact your legal counsel with questions on this issue.
This Collegiate Comment is a publication of the KingSpry Higher Education Law Division. It is meant to be informational and does not constitute legal advice.
It’s Not Just Kid-Stuff: Peer to Peer Cyberbullying Continues in Colleges and Universities
Posted on December 1st, 2014
by Dr. Kathleen Conn
In 2005, Darby Dickerson, then-Vice-President and Dean of Stetson University College of Law, wrote a legal commentary warning the higher education community to be alert to the dangers from a “sinister e-culprit,” the cyberbully. Since the publication of Dickerson’s commentary, thousands of articles have been published on the topic of cyberbullying, most dealing with the problem of cyberbullying in K-12 public schools and others with cyberbullying in the workplace. If the extent of the cyberbullying problem in higher education were to be judged by its media coverage, it would seem that cyberbullies take time off during college and university years. Unfortunately, this is not the case. Cyberbullies are alive and well on campuses of higher education; they are simply operating under the radar.
Cyberbullying is a technology-facilitated version of traditional face-to-face bullying. Because of its anonymity, cyberbullying is even more distressing for its targets than face-to-face bullying. Cyberbullying messages are intentional and aggressive; they are disinhibited because they are devoid of feedback cues from targets. Also, the imbalance of power present in face-to-face bullying, where the bully is more powerful physically or psychologically, can be reversed in cyberbullying. The cyberbully can torment the college president or a professor who assigned an unwelcome grade, as well as fellow students. The torment can go on indefinitely as the cyberbullying message is repeated and spread with the click of a mouse. Cyberbullying is especially dangerous for college and university students who are in new, often stressful situations devoid of their traditional supports. In these students, cyberbullying has been linked to depression and ensuing student suicides.
Determining the extent of cyberbullying in colleges and universities is fraught with difficulty. Small-scale surveys probing cyberbullying prevalence on college and university campuses indicate that from 8.6% to 22% of students are targets of cyberbullies. However, many institutions of higher education are reluctant to survey students, for fear of negative publicity from the findings.
Colleges and universities must report certain so-called “Clery crimes,” but cyberbullying is not a reportable crime unless it escalates into cyberstalking. Suicides are also not reportable Clery crimes, so colleges and universities are not obligated to report student suicides precipitated by cyberbullying. Only when a suicide is headlined in the media, like that of Rutgers student Tyler Clementi who jumped to his death from the George Washington Bridge or of University of Wisconsin student Alyssa Funke who committed suicide after being cyberbullied for starring in a porn flick, is the public able to connect the dots.
Similarly, court records give us scant information about the extent of cyberbullying on campuses of colleges and universities. The right of academic institutions to regulate student speech is a gray area, with only four U.S. Supreme Court decisions dealing with the issue, and that solely in the context of K-12 public schools.
No Supreme Court case has dealt with post-secondary school student speech, so it falls to lower courts to apply the K-12 precedents in adjudicating cyberbullying communications in colleges and universities. The precedent overwhelmingly used is the 1969 decision of Tinker v. Des Moines Independent Community Schools, the “black armbands” case, where the High Court ruled that academic institutions may discipline students for speech that materially and substantially disrupts the operation of the school, or where such disruption is reasonably foreseeable. The application of this standard has led to conflicting results, as demonstrated in the following two court decisions.
In the first, Maciej Murakowski, a 19-year-old sophomore at the University of Delaware, set up a personal website where he posted graphic essays about his desires to kidnap, rape and torture women. Several female students became aware of his postings and reported Murakowski to campus police. Several complained that they felt uneasy and fearful, and one woman so feared for her personal safety that she requested to audit a course. The university ultimately sanctioned Murakowski and barred him from his dorm. However, Murakowski continued to enter his dorm. He was ultimately suspended and totally barred from campus.
Murakowski sued the university. The court applied a litany of student speech decisions from lower courts, but ultimately relied on the Tinker standard, ruling that, although some women were upset by Murakowski’s writings, others were not. The court described the writings as “racist, sexist, homophobic, insensitive, degrading,” and said the essays “contained graphic descriptions of violent behavior and promoted such behavior,” but they did not constitute true threats nor did they rise to material and substantial disruption of university operations. The court refused to grant the university’s motion for summary judgment on the issue of disciplining Murakowski for his online expression.
However, in a more recent case, Osei v. Temple University, application of the Tinker standard resulted in an opposite outcome. Michael Osei was a Ghanian student who was dissatisfied with his grade of “C” in his Fall 2009 graduate Organic Chemistry class. He contacted his professor, Dr. Grant Krow, by email in mid-December, and requested details of his grade calculation and a copy of his examination paper. Feeling that Krow’s response was inadequate, Osei sent a total of three subsequent mass emails to all students in Krow’s Organic Chemistry course. Osei also sent two additional emails to Dr. Krow, saying in one, “If my grade was not a genuine or fair grade . . . It will be a curse against your life and family forever. I am serious!”
In another, Osei said, “Your game is over! Mine begins. You played with the wrong person this time,” and “Marl [sic] my words. The year 2010 will not start well for you.”
Dr. Krow reported Osei’s emails to his Department Chair and to campus police. Osei was charged with violating the Temple University Student Code of Conduct by sending what were believed to be threatening emails to Dr. Krow.
After several hearings at which Osei apologized for his flawed English, Osei was suspended from Temple; when his appeal was unsuccessful, Osei began legal action. Osei claimed violations of due process, infringement of his First Amendment right to freedom of speech, retaliation, discrimination, and other claims. The court quoted Tinker, affirming Osei’s right to freedom of speech, but also quoted extensively from the Murakowski decision to establish that “true threats,” such as the troublesome language in Osei’s emails to Dr. Krow, are not protected by the First Amendment.
Ultimately, Osei’s federal claims were dismissed with prejudice, and the court declined to exercise supplemental jurisdiction on any remaining state claims.
The Bottom Line
These two court decisions underscore the tension inherent in the First Amendment’s guarantee of freedom of speech on college and university campuses. However, when cyberbullying is allowed to flourish under the radar on those same campuses, students end up getting hurt.
College administrators should not bury their collective heads in the sand. Awareness assemblies, training for faculty, staff, and students to recognize cyberbullying, and mechanisms for reporting are recommended. Cyberbullies do not take time off during college and university years.
KingSpry is available to assist administrators with this process. We recommend you contact your legal counsel with questions on this issue.
This Collegiate Comment is a publication of the KingSpry Higher Education Law Division. It is meant to be informational and does not constitute legal advice.