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Bullying and Cyberbullying… Whats My Responsibility? A Guide for School Personnel Presented by Kathleen Conn, Ph.D., J.D., LL.M. Assistant Professor, Neumann.

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Presentation on theme: "Bullying and Cyberbullying… Whats My Responsibility? A Guide for School Personnel Presented by Kathleen Conn, Ph.D., J.D., LL.M. Assistant Professor, Neumann."— Presentation transcript:

1 Bullying and Cyberbullying… Whats My Responsibility? A Guide for School Personnel Presented by Kathleen Conn, Ph.D., J.D., LL.M. Assistant Professor, Neumann University Adjunct Professor, Widener School of Law

2 The Small Print This presentation is a general guide and does not constitute legal advice This presentation is a general guide and does not constitute legal advice It does not create an attorney-client relationship It does not create an attorney-client relationship Please consult your district legal counsel for specific advice Please consult your district legal counsel for specific advice

3 Bullying Lawsuits on the Rise Who is suing? Who is suing? Parents of bullied students on behalf of the students, students themselves Parents of bullied students on behalf of the students, students themselves Who is being sued? Who is being sued? NY Times, June 2010: NY Times, June 2010: Parents increasingly turning to schools to solve the problem of bullying Parents increasingly turning to schools to solve the problem of bullying

4 Responsibilities Also Rising Oct. 26, 2010 Dear Colleague Letter Oct. 26, 2010 Dear Colleague Letter Russlyn Ali, Asst. Secy. OCR Russlyn Ali, Asst. Secy. OCR Some bullying misconduct also triggers responsibilities mandated by federal anti-discrimination statutes Some bullying misconduct also triggers responsibilities mandated by federal anti-discrimination statutes – Title VI – Title IX – Section 504 – Title II of the ADA

5 The Dear Colleague Message Harassment creates a hostile environment that interferes with a students ability to benefit from educational opportunities Harassment creates a hostile environment that interferes with a students ability to benefit from educational opportunities The liability standard is knows or reasonably should have known The liability standard is knows or reasonably should have known The harassment may be obvious to other students/staff, or uncovered during investigations The harassment may be obvious to other students/staff, or uncovered during investigations

6 PAs Anti-Bullying Statute House Bill No. 1067, Session of 2007 House Bill No. 1067, Session of 2007 B+ from B+ from Part of an omnibus bill that included many other provisions Part of an omnibus bill that included many other provisions Required schools to adopt or amend bullying policies by Jan. 1, 2009 Required schools to adopt or amend bullying policies by Jan. 1, 2009 MUST list consequences for bullying, identify staff person to receive reports of bullying MUST list consequences for bullying, identify staff person to receive reports of bullying

7 PAs Anti-Bullying Statute, cont. MAY provide prevention, intervention, and education programs MAY provide prevention, intervention, and education programs MUST make policy available on website and in every classroom MUST make policy available on website and in every classroom MUST review policy within 90 days of adoption and annually afterwards MUST review policy within 90 days of adoption and annually afterwards Thorough review required every 3 years Thorough review required every 3 years

8 PAs Anti-Bullying Statute, cont. A SCHOOL ENTITY SHALL NOT A SCHOOL ENTITY SHALL NOT BE PROHIBITED FROM DEFINING BULLYING IN SUCH A WAY AS TO ENCOMPASS ACTS THAT OCCUR OUTSIDE A SCHOOL SETTING IF THOSE ACTS MEET THE FOLLOWING REQUIREMENTS:

9 PAs Anti-Bullying Statute, cont. INTENTIONAL ELECTRONIC, WRITTEN, VERBAL or PHYSICAL ACT or ACTS: INTENTIONAL ELECTRONIC, WRITTEN, VERBAL or PHYSICAL ACT or ACTS: Directed at another student(s) in a school setting; that is Directed at another student(s) in a school setting; that is – Severe, persistent or pervasive; and – Substantially interferes with a student's education; – Creates a threatening environment; or – Substantially disrupts the orderly operation of the school

10 The Bottom Line School administrators are under the gun to eliminate bullying and cyberbullying School administrators are under the gun to eliminate bullying and cyberbullying

11 How Did We Get Here? The 1990s saw students creating websites demeaning their school administrators, publishing hit lists, and hacking into school files The 1990s saw students creating websites demeaning their school administrators, publishing hit lists, and hacking into school files Hackers were disciplined Hackers were disciplined But what about the First Amendment? Students freedom to express opinions? But what about the First Amendment? Students freedom to express opinions?

12 First Amendment Protection The First Amendment does NOT protect : – Obscenity – Child pornography – Defamation – Fighting words – True threats

13 Bad News for School Districts Beussink v. Woodland R-IV Sch. Dist E.D. Missouri case Beussink v. Woodland R-IV Sch. Dist E.D. Missouri case Student created web page, criticized his high school administration Student created web page, criticized his high school administration Principal suspended him Principal suspended him ACLU brought suit on behalf of the parents ACLU brought suit on behalf of the parents – no documented disturbance at school – Principal had no right to suspend Beussink simply because he disliked the students Web site or was upset by it

14 Bad News Continued Sean OBrien, Ohio – Web page called band teacher fat man who doesnt like to get haircuts – Out of court settlement; district paid him $30,000, admitted overlooking the First Amendment Nick Emmett, Seattle, WA Nick Emmett, Seattle, WA – Posted humorous(?) fake obituaries – Court said no proof of threats, only undifferentiated fears – District had to pay familys attorneys fees

15 Only One Victory for Schools J.S. v. Bethlehem Area Sch. Dist. (2002) J.S. v. Bethlehem Area Sch. Dist. (2002) Middle school student created web site at home in 1998 Middle school student created web site at home in 1998 Showed algebra teacher with her head severed, bloody; solicited money to hire a hit man to get her Showed algebra teacher with her head severed, bloody; solicited money to hire a hit man to get her ( Send me $20 so I can get rid of her ) Said Principal was having extramarital affair with another local administrator Said Principal was having extramarital affair with another local administrator

16 Partial Victory for the Teacher Algebra teacher sued J.S. and parents Algebra teacher sued J.S. and parents Court ruled: Court ruled: – Defamation? NO – Negligent supervision, emotional distress? YES $500,000 damages $500,000 damages

17 Websites Not Todays Problem No need to create websites No need to create websites – Chat Rooms – Blogs – Webcams, YouTube – Cell Phones & Text Messaging – s & Instant Messaging – Social Networking Sites Females catching up! Females catching up!

18 Social Networking Sites Social Networking Sites Facebook eclipsed MySpace Facebook eclipsed MySpace Now, April 7, 2011: Formspring.me Now, April 7, 2011: Formspring.me Users can post questions anonymously, post insults, bully and taunt others Users can post questions anonymously, post insults, bully and taunt others MIT tech people now in partnership with Formspring; trying to invent ways to detect bullying statements and prevent their posting MIT tech people now in partnership with Formspring; trying to invent ways to detect bullying statements and prevent their posting

19 Students Creating Imposter Profiles Two Pennsylvania students in two separate schools created imposter profiles of their principals Two Pennsylvania students in two separate schools created imposter profiles of their principals The schools disciplined both of them The schools disciplined both of them The parents of both students sued the schools The parents of both students sued the schools One students discipline was upheld by the courts; the others was not One students discipline was upheld by the courts; the others was not

20 The Facts Were Very Similar Justin Layshock, HS honor student in Hermitage School District, W.D. Pa., represented his principal with a big theme; cut and pasted principals picture into the MySpace profile Justin Layshock, HS honor student in Hermitage School District, W.D. Pa., represented his principal with a big theme; cut and pasted principals picture into the MySpace profile About 20 students saw the profile About 20 students saw the profile The school threw the book at him: sent him to Alternative School, took away privileges The school threw the book at him: sent him to Alternative School, took away privileges

21 The Facts Were Very Similar J.S., MS honor student from Blue Mountain School District, M.D. Pa., created sexually nasty imposter profile of her principal, cut and pasted principals picture into the MySpace profile J.S., MS honor student from Blue Mountain School District, M.D. Pa., created sexually nasty imposter profile of her principal, cut and pasted principals picture into the MySpace profile About 20 students saw the profile About 20 students saw the profile Principal suspended her Principal suspended her

22 Outcomes Were Different W.D. Court said school district had no right to discipline Justin Layshock W.D. Court said school district had no right to discipline Justin Layshock M.D. Court upheld discipline for J.S. M.D. Court upheld discipline for J.S. Both decisions were appealed to the Third Circuit Court of Appeals, and decisions were handed down on the same day, February 4, 2010 Both decisions were appealed to the Third Circuit Court of Appeals, and decisions were handed down on the same day, February 4, 2010

23 Outcomes Were Different Court in AM said school had no right to discipline Layshock because no nexus between his posting and the school Court in AM said school had no right to discipline Layshock because no nexus between his posting and the school Court in PM said OK to discipline J.S. because principal reasonably feared disruption of school activities Court in PM said OK to discipline J.S. because principal reasonably feared disruption of school activities BOTH DECISIONS NOW VACATED BOTH DECISIONS NOW VACATED New ruling awaited! New ruling awaited!

24 Confusion Reigns! No wonder school administrators are conflicted about whether to discipline students for cyberbullying No wonder school administrators are conflicted about whether to discipline students for cyberbullying But what about parents suing school personnel who do not discipline students?? But what about parents suing school personnel who do not discipline students??

25 Liability Issues for Schools, School Personnel Allegations of civil liability of two kinds: Allegations of civil liability of two kinds: Tort liability, e.g., negligence for not dealing with known bullying; violation of ministerial duties; violation of state anti-bullying statutes Tort liability, e.g., negligence for not dealing with known bullying; violation of ministerial duties; violation of state anti-bullying statutes Section 1983 liability, for a state actor depriving a student of a constitutional or federal statutory right Section 1983 liability, for a state actor depriving a student of a constitutional or federal statutory right

26 Tort Liability State anti-bullying statutes? State anti-bullying statutes? Courts in several states have ruled that state anti-bullying statutes include Courts in several states have ruled that state anti-bullying statutes include no private right of action

27 Tort Liability, cont. School districts and school personnel are often immune from liability for discretionary acts or for failure to perform a discretionary act School districts and school personnel are often immune from liability for discretionary acts or for failure to perform a discretionary act They may be liable for failure to perform a ministerial act They may be liable for failure to perform a ministerial act Ministerial acts must be based on clearly adopted policy; rare Ministerial acts must be based on clearly adopted policy; rare

28 Section 1983 Is a Means of Enforcing Rights A plaintiff alleges that a state actor has deprived her of a federal right or a right guaranteed by the US Constitution A plaintiff alleges that a state actor has deprived her of a federal right or a right guaranteed by the US Constitution Can include Title VI, Title IX, Bill of Rights guarantees Can include Title VI, Title IX, Bill of Rights guarantees Very powerful tool Very powerful tool Provides attorneys fees if successful Provides attorneys fees if successful

29 Section 1983: Constitutional Tort Applies only to public schools Applies only to public schools School districts, School Boards, individual school personnel: all can be named as defendants in a Section 1983 lawsuit School districts, School Boards, individual school personnel: all can be named as defendants in a Section 1983 lawsuit State actors State actors Burden of proof on plaintiff is high Burden of proof on plaintiff is high

30 Section 1983: Constitutional Tort Courts have ruled that school officials actions must shock the conscience Courts have ruled that school officials actions must shock the conscience For Title VI liability, plaintiff must show intent to discriminate For Title VI liability, plaintiff must show intent to discriminate For Title IX liability in peer-peer bullying, plaintiff must show severe, pervasive and objectively offensive conduct that deprives the victim of educational opportunity For Title IX liability in peer-peer bullying, plaintiff must show severe, pervasive and objectively offensive conduct that deprives the victim of educational opportunity

31 Private Schools Have More Leverage Private schools are governed by contract law Private schools are governed by contract law Parents pay tuition and agree to abide by the rules of the school Parents pay tuition and agree to abide by the rules of the school Private schools can enforce their student expectations Private schools can enforce their student expectations

32 A Deprivation of Life? What about students who commit suicide because they were bullied and cyberbullied after sexting? What about students who commit suicide because they were bullied and cyberbullied after sexting? Parents are suing schools Parents are suing schools Is suicide an intervening, superseding act that negates schools liability? Is suicide an intervening, superseding act that negates schools liability?

33 Jessica Logans Suit Parents sued school district and school personnel, School Resource Officer and city that employed him, and classmates Parents sued school district and school personnel, School Resource Officer and city that employed him, and classmates Parents settled with classmates Parents settled with classmates Court said SRO and city had qualified immunity Court said SRO and city had qualified immunity Suit going forward against school district Suit going forward against school district

34 Eric Mohats Suit Five students from Mentor HS in Ohio committed suicide within a short period of time Five students from Mentor HS in Ohio committed suicide within a short period of time Erics parents want no money, just want school district to pay attention Erics parents want no money, just want school district to pay attention They had problem with suing before Erics estate was set up, but suit now back in original court They had problem with suing before Erics estate was set up, but suit now back in original court

35 The Tide May Be Turning New Jersey courts have allowed lawsuits to go forward against school districts under its state Law Against Discrimination (NJLAD) New Jersey courts have allowed lawsuits to go forward against school districts under its state Law Against Discrimination (NJLAD) Several Connecticut courts have allowed parents suits against school districts to go forward on a theory that the bullied student was an identifiable person Several Connecticut courts have allowed parents suits against school districts to go forward on a theory that the bullied student was an identifiable person

36 IDEA May Also Protect If bullying or cyberbullying deprives a special education student of FAPE, IDEA may provide special needs students with another layer of protection If bullying or cyberbullying deprives a special education student of FAPE, IDEA may provide special needs students with another layer of protection However, according to several courts, the harm must be a direct result of the actions of a school district or its employees However, according to several courts, the harm must be a direct result of the actions of a school district or its employees

37 Cyberbullying Starts in School School is where kids meet and decide to torment a peer or peers School is where kids meet and decide to torment a peer or peers It spills over after school and goes home with the bullies who then use technology to continue and to escalate the torment It spills over after school and goes home with the bullies who then use technology to continue and to escalate the torment If school personnel KNOW or SHOULD KNOW, they have a moral duty to intervene If school personnel KNOW or SHOULD KNOW, they have a moral duty to intervene

38 D---ed If I Do, D---ed If I Dont? School Administrators fear that they will be sued if they intervene in bullying or cyberbullying situations, and they fear that they will be sued if they do not! School Administrators fear that they will be sued if they intervene in bullying or cyberbullying situations, and they fear that they will be sued if they do not! How far does the disciplinary arm of the school extend? How far does the disciplinary arm of the school extend? If school personnel know or should know, the answer if FAR ENOUGH! If school personnel know or should know, the answer if FAR ENOUGH!

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40 Remember… The First Amendment protects students speech and expression, but not if it is obscene, defamatory The First Amendment protects students speech and expression, but not if it is obscene, defamatory STUDENT CONDUCT IS NOT PROTECTED STUDENT CONDUCT IS NOT PROTECTED

41 The Dear Colleague Message Take prompt and effective steps Take prompt and effective steps Dont penalize the target Dont penalize the target Dont simply discipline the offender Dont simply discipline the offender Provide comprehensive training where needed Provide comprehensive training where needed Provide needed services to the target Provide needed services to the target Prevent retaliation Prevent retaliation Followup Followup

42 Arne Duncans Letter: Bullying triggers schools legal responsibilities under OCR and DOJ anti-discrimination statutes Bullying triggers schools legal responsibilities under OCR and DOJ anti-discrimination statutes Schools must help both targets and bullies Schools must help both targets and bullies The federal government is serious; it has initiated a Stop Bullying Now! campaign and Safe and Supportive Schools grants The federal government is serious; it has initiated a Stop Bullying Now! campaign and Safe and Supportive Schools grants

43 Parents Do Not Get a Free Pass We have been talking this afternoon about schools responsibilities We have been talking this afternoon about schools responsibilities Parents are the first line of defense Parents are the first line of defense Get technology out of the childrens bedrooms; keep computers, laptops and cell phones in family areas Get technology out of the childrens bedrooms; keep computers, laptops and cell phones in family areas

44 The Take-Home Message It is truly a matter of school safety It is truly a matter of school safety Every child will feel safe only if we work together to eliminate bullying and cyberbullying. Every child will feel safe only if we work together to eliminate bullying and cyberbullying. None of us can be bystanders. None of us can be bystanders. Parents, administrators, teachers, staff and students must work together… it is a MORAL OBLIGATION. Parents, administrators, teachers, staff and students must work together… it is a MORAL OBLIGATION.

45 I HOPE THIS HAS BEEN HELPFUL. Kathleen Conn, Ph.D., J.D., LL.M. Thank you for your attention.


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