A case filed in the U.S. District Court in Tennessee illustrates the growing liability risks associated with cyber bullying. The parents of a middle school boy have filed a complaint against the Williamson County Board of Education and thirty-one of their son’s classmates.

The plaintiff was born in Ethiopia and was adopted in 2010 which is when he enrolled at Grassland Middle School. By 2012 a number of students allegedly engaged in a pattern of cyber bullying that included racist and profane statements, photographs and a racist death threat.

The Complaint alleges violations of the Civil Rights Act of 1964 and the Tennessee Bullying Prevention Act. Tennessee, along with several other states, has directly addressed the problem of cyber bullying. Children and teenagers today spend large amounts of time on cell phones, instant messaging, Facebook and other online activities. It is estimated that almost half of American teens have experienced some form of cyber bullying.

The Tennessee statute defines cyber bullying as bullying that takes place using electronic technology. Examples may include mean text messages or emails, rumors sent by email or posted on social networking sites, and embarrassing pictures, videos, websites or fake profiles. The statute also requires that school districts develop a policy prohibiting cyber bullying along with implementing procedures for the prompt investigation and remedial action as a consequence for a person found to have committed an act of cyber bullying.

In the Mihnovich case, the plaintiff was harassed via text messages with racial and profane statements  by thirty-one of his classmates. A public Facebook page was created as a forum for the students to make racist comments about the plaintiff. In response, the plaintiff’s parents contacted the school to discuss what the school should do to protect the plaintiff. Allegedly the school advised the parents and subsequently their attorney, through a letter that is annexed to the Complaint, that the school system was not required to take any action.

The school took the position that there was no proof that the actions occurred during school hours. However, the plaintiffs allege the school had an affirmative duty to investigate and take disciplinary action against the perpetrators of hate speech regardless of where the speech originated because it was reasonably foreseeable that such hate speech would interfere with the plaintiff’s education, opportunities and performance.

As the Tennessee statute demonstrates, the law has caught up with cyber bullying. Massachusetts also has a law prohibiting cyber bullying as well as procedures in place for schools to develop and implement a policy to address the existence of bullying in its schools. In Mihnovich, the plaintiff is seeking $1.1 million in compensatory damages as well as punitive damages. Access to smartphones, Facebook and other internet sites is only going to increase and parents and schools should not ignore the potential legal liability posed by cyber bullying.