Was it bullying? Or cyberbullying? Does it matter?

Let’s get the ugly facts out there right away so we can put them out of our minds and focus on the legal nuggets in the case from Plano.  A 14-year old boy, soon to be known as “the Plaintiff,”  celebrated his birthday  by having some friends spend the weekend at his house. Late on Saturday night, after one of the boys had fallen asleep, the student (“Plaintiff”) “urinated in a cup, slapped a groggy [other boy] awake, and caused [the other boy] to drink from the cup.” 

Oh boy.  Middle school.  But wait….it gets even worse.  In a footnote, the court notes that while “there is no evidence that [the Plaintiff’s] conduct that night was racially-motivated, the fact that [the other boy] was the only Black student present is important to give context to the following events.”

Are you surprised to also learn that this incident was captured on video? And that the video was widely disseminated in the community? And that this created a lot of pressure on the school district to “do something” about this?  I didn’t think so.

The school did something.  It charged the Plaintiff with cyberbullying and assigned him three days of suspension followed by 75 days in the DAEP.   However, the federal court reversed all of that.  After a trial, the judge ruled that the district’s disciplinary action was arbitrary and violated the student’s right to substantive due process. 

So let’s get to the legal nugget in this messy situation. The legal nugget is that you have to pay close attention to the specific violation that you charge the student with.   In this case it was cyberbullying.  But there was a problem with that.  The Plaintiff did not record, possess, or disseminate the video. Furthermore, the court concluded that he did not even know that it was being recorded.  Remember that the district did not charge him with bullying. They charged him with cyberbullying, which required evidence that he “used” an electronic device to bully another student.

The Plaintiff slapped the other student and forced him to drink urine. Why not charge him with bullying? Why label it “cyberbullying”?  The court had an explanation:

But it is clear why the District chose to do so.  The District admitted at trial that under current law, it did not have authority to punish [the Plaintiff] for purely physical bullying that occurred off campus and was unrelated to any school activity.  Thus, but for the fortuitous occurrence that [the Plaintiff’s] conduct was caught on video, [the Plaintiff’s] discipline was beyond the reach of the District.

At the time, however, the District was placed in a difficult situation.  The District was deluged with daily protests, death threats, accusations of turning a blind eye to racism, and masses of phone calls and emails, many of which personally attacked School and District administrators for not doing enough to discipline the students involved in the incident. 

The court rejected a number of arguments put forth by the Plaintiff and his father. No, the district did not infringe on the parent’s right to direct and control his child’s upbringing. No, the Constitution does not protect the Plaintiff’s “right” to be on the football team.  No, the district did not violate his Due Process protections in the way it handled his three-day suspension.  No, the removal to DAEP does not require constitutional Due Process. No, the Code of Conduct was not so vague as to violate legal standards.

But the sticking point was the district’s interpretation of the word “use” in the cyberbullying law.  The court held that it was arbitrary.  Being caught on video doing something deplorable, when you don’t even know that you are being recorded is not the “use” of an electronic device. So it’s not cyberbullying.

It’s A.V. v. Plano ISD, decided by the federal court for the Eastern District of Texas on February 14, 2022.  It’s published at 2022 WL 467393.


Got a question or comment for the Dawg?  Let me hear from you at jwalsh@wabsa.com