School Liability: Holding Middle Schools Liable for Cyber-Bullying despite Their Implementation of Internet Usage Contracts

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I. INTRODUCTION

In a small town in Missouri, a thirteen-year-old girl hung herself after being rejected, insulted and harassed on the social networking site Myspace.1 Not far away, a teenage cheerleader in Florida was lured to a friend's home and then beaten in retaliation for taunting students on Myspace.2 While these two incidents bear characteristics common to old-fashioned bullying, they are unique in that they represent a growing trend in today's technological society, cyber-bullying.

Cyber-bullying is "the use of information and communication technologies to support deliberate, repeated, and hostile behavior by an individual or group, [which] is intended to harm others."3 While this definition suggests an endless number of forums for cyber-bullying, this note will focus on cyber-bullying on the Internet. As Internet usage has increased over the years,4 so has the incidence of cyber-bullying cases.5 Further, teenagers are commonly the victims.6 This fact is an impediment to the incorporation of computer technology into schools' learning strategies because it forces schools to develop bullying strategies rather than focus on the education of students, what they should be primarily concerned with.7

Unfortunately, rather than directly deal with the issue of cyber-bullying some schools have begun implementing Internet usage contracts (waivers) that purport to shift tort liability to students or their parents by way of express contract. Since these waivers overlap contract and tort law,8 an analysis of both is needed to determine their validity. This Note will discuss the contract and tort law reasons why Internet usage contracts should not be used to limit school liability for middle school cyber-bullying when a case involves a student under the charge of a middle school.

II. SCHOOLS OWE A FIDUCIARY DUTY TO STUDENTS

When one party owes to a second party the duties of good faith, trust, confidence, and candor, the first party is said to have a fiduciary duty to the second.9 In the educational environment, this duty arises because students have a right to be safe at school and while there, they are under the care of school officials.10 Courts have stated "the safety of children is entrusted to public school authorities during school hours, and the latter are bound to exercise an amount of care for their safety during that period commensurate with the immaturity of their charges and the importance of their trust."" Therefore, as a general rule, schools are liable for students when the students are at the school.12

III. CONTRACT LAW ARGUMENTS AGAINST USING INTERNET USAGE CONTRACTS TO AVOID LIABILITY

Viewed as contracts, Internet usage waivers provide an express means to exempt schools from liability they would have otherwise incurred had the contract not been in place. This is accomplished by making Internet usage by the student conditional on acceptance of shifted liability clauses within the contract. Internet usage waivers usually take one of two forms, either they are contracts between the students and the schools or contracts between the parents of the students and the schools.13 In both instances, contract law principles suggest these contracts should not be used to limit school liability.

A. School-Student Internet Usage Contracts

Internet usage contracts between the students and the schools can say the student accepts responsibility for the student's activities online, the student agrees to relieve the school of liability should the student engage in prohibited conduct, and the student agrees to reimburse the school if it incurs any fees related to the student's activities online. The contracts often appear as a pop up, once a student logs onto a computer system, and they prevent the student from "going online" unless he or she agrees to the terms. An analysis of this type of contract requires an analysis of the ability of minors to contract.

Students who attend middle schools are usually under the age of majority. …