Texas Supreme Court Issues Form for Legal Action Against Cyberbullying

The Texas Supreme Court has preliminarily published a “Petition to Stop Cyberbullying” form to be included in the Texas Civil Practice and Remedies Code.

The form comes five years after the bipartisan passage of Senate Bill (SB) 179, also known as “David’s Law,” which was authored by Sen. Jose Menendez (D-San Antonio).

David Molak, for whom the law is named, took his own life at age 16 after his family says he was “overwhelmed with hopelessness after being continuously harassed, humiliated, and threatened by a group of students through text messages and social media.”

“David’s Law is a comprehensive bill that addresses cyberbullying by providing tools to schools as well as individuals that are being targeted by this form of abuse,” wrote Maureen Molak, David’s mother and co-founder of anti-bullying nonprofit David’s Legacy, in a statement to The Texan.

In an interview with The Texan, Menendez, like Molak, expressed his gratitude that the Texas Supreme Court put out this form. He believes it will be especially useful to parents of any socioeconomic background who find their students are being bullied.

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David’s Legacy has provided forms on its website for use in cyberbullying incidents and has also facilitated pro bono legal assistance. Menendez said he is glad the form includes information about free legal aid groups around the state that can help families with limited financial means.

Before using the form to get a court-ordered injunction against an accused cyberbully, a victim is encouraged to try to settle the matter out of court, including by engaging with the accused bully’s parents.

In 2021, the Legislature added provisions to “David’s Law” requiring school districts to develop a rubric or checklist to assess an incident of bullying and determine the district’s response, co-author Sen. Paul Bettencourt’s (R-Houston) office told The Texan.

Each district must also track and report “​​the number of reported incidents of bullying that have occurred at each campus.”

Joe Cohn, the legislative and policy director for the Foundation for Individual Rights and Expression (FIRE), believes “David’s Law” has an overly broad definition of what constitutes bullying that is different from the precedent established by the U.S. Supreme Court in Davis v. Monroe County Board of Education.

In 1999, the U.S. Supreme Court found that in order for an act to be considered student-on-student bullying the person must be targeted for a protected reason, the conduct must be offensive to a reasonable person, and the conduct must be so severe and pervasive such that it would deny a victim equal access to educational opportunities provided by the school, Cohn explained.

When the government — whether a school or a court  — burdens free speech, the standard is very high, he noted.

“In addressing student-on-student harassment or bullying it is of utmost moral and legal importance that it carefully defines those terms to avoid silencing or punishing protected speech,” Cohn told The Texan. “‘David’s Law’ allows parents to seek court injunctions against minors — silencing them well before their speech crosses constitutional lines. The legislature should revisit the law and amend its definitions so it conforms with the First Amendment.”

Texas law defines bullying as an act or series of acts that “exploits an imbalance of power,” has the effect of harming of student or placing them in “reasonable fear of harm,” and is “sufficiently severe, persistent, or pervasive” so that it “materially and substantially disrupts the educational process.”

Because the U.S. Supreme Court requires that the behavior be both “severe and pervasive” while Texas law allows that it be either “severe, persistent, or pervasive” Cohn believes it won’t be long “before it is challenged constitutionally.”

“We have seen reports showing a reduction in cyberbullying in the State of Texas since ‘David’s Law’ was passed. These forms will not stop the problem, but we feel that they will certainly have a greater impact and, hopefully, other states will follow our lead,” Molak emphasized.

On the other hand, Cohn believes the “creation of these forms is likely to increase the number of people who sue to try to silence students using overly broad definitions.”

Interested parties may submit comments and feedback to the Texas Supreme Court about the “Petition to Stop Cyberbullying” in writing by December 1.

Texas Supreme Court Issues Form for Legal Action Against Cyberbullying