Plain Old-Fashioned Harassment, Part 3
This article is the last of a three-part discussion on the nature of, and relationship between, cyber-bullies, griefers and the legal concept of harassment.
Because the terms “cyber-bully” and “griefer” are often tossed around interchangeably, I began the first part of this “trilogy” by clarifying the term “griefer.” I began the second part, I clarifyied what we refer to as a “cyber-bully,” and by explaining (in both cases) when and under which circumstances the two terms were meaningfully distinguished.
I will begin this section by introducing the legal term harassment.
Where Cyber-Bullying Becomes Harassment
We can certainly get picky over whether we’re looking at a simple case of “griefing” or “cyber-bullying” or whatever else one might decide to call it. But, whenever we’re looking at conduct that substantially interferes with the education or physical or mental health of a student, or that threatens or intimidates a student — we are at the same time, looking at what the courts have overwhelmingly held as “plain, old-fashioned harassment.”
Once the bully has engaged in harassment, the law could care less whether they were doing so while playing an online game (as a “griefer”), or whether they were just making fun of a fellow student (as a “cyber-bully”). Either way, a pattern of inappropriate, disrespectful behaviors, becomes unlawful when (a) enduring the offensive conduct becomes a condition of continued employment (for the victim), or (b) when the conduct is severe or pervasive enough to create an educational environment that a third party, reasonable person would consider intimidating, hostile, or abusive.
“Online harassment,” aside from occurring in an online environment, can still be argued as simple harassment. It can be direct or indirect, where direct online harassment would include threats, intimidating messages and/ or bullying that is submitted directly to a victim by electronic mail or other forms of online communication, or by hindering the victim’s internet service, by hacking.
Chat rooms, instant messaging services, and social networking sites are all among the most popular venues for cyberbullying, and account for mostly all instances of online harassment.
Online harassment can even follow the victim home. Two of the more important things we learn by looking at cyber-bullying from what the law says, is that (a) where harassment is found, the responsibility for creating a safe and respectful school environment is placed on the manager; and (b) companies have a legal responsibility to intervene when the principal knows or suspects students are being harassed. Ignorance is no defence because, according to law, they either knew about the situation, or should have known.
One way to intervene is to punish. But, before punishing students, schools must draw a distinction between harassment and student expression (i.e., free speech) that is protected by law.
“. . . schools do not need to wait to respond to conduct until it escalates to a point where it may be punished. Schools may respond to such conduct in ways other than punishment. In fact, they have a responsibility to do so. For example, if a teacher were to overhear a student directing a homophobic slur at another student, he would have a positive legal responsibility to explain why such language is inappropriate and harmful. The teacher should also point out that if such conduct continues, it could be subject to punishment. There is no better way to prevent student harassment than to educate students about why slurs and other harassing behaviors are harmful.”
- ACLU
By narrowly tailoring its punishments to fit the case at hand, a school strikes the proper balance between two equally important and entirely compatible constitutional rights — the right to equal protection of the laws and the right to free speech.
Insofar as my professional training does not lie directly in the area of law, I think it best at this point to simply direct your attention to the ACLU, which provides a model anti-harassment policy that can prevent harassment without violating student’s free speech rights. Great job.
This entry was posted on Sunday, May 31st, 2009 at 1:41 pm and is filed under General. You can follow any responses to this entry through the RSS 2.0 feed. Both comments and pings are currently closed.