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Cyberbullying: Is Your District Prepared To Respond? A Legal and Policy Perspective for Public Schools Sonja H. Trainor NSBA Senior Staff Attorney

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Presentation on theme: "Cyberbullying: Is Your District Prepared To Respond? A Legal and Policy Perspective for Public Schools Sonja H. Trainor NSBA Senior Staff Attorney"— Presentation transcript:

1 Cyberbullying: Is Your District Prepared To Respond? A Legal and Policy Perspective for Public Schools Sonja H. Trainor NSBA Senior Staff Attorney strainor@nsba.org Copyright © 2010 National School Boards Association. All rights reserved. A Webinar presented to National Affiliate Member Districts of the National School Boards Association September 21, 2010

2 DISCLAIMER This presentation does not constitute legal advice, nor does it create an attorney client relationship. It contains general recommendations and should not be relied upon for any specific purpose without consultation with legal counsel or other professionals and in the context of specific facts and circumstances. Copyright © 2010 National School Boards Association. All rights reserved.

3 What would you do? A pre-test Parent of a student who is the target of vicious and lewd taunts by other students on You Tube demands that “something be done.” ◦ Can school officials address this off-campus behavior at all? ◦ If the parent sues, as promised, on what basis could she bring her complaint? ◦ Should you pull up the video on your office computer and identify the offending students, and promptly seek expulsion? ◦ Who should administrators talk to in their investigation? Copyright © 2010 National School Boards Association. All rights reserved.

4 What would you do? Administrator is the subject of a vulgar parody on MySpace. ◦ Is it the district’s responsibility to preserve the administrator's reputation and deter similar attacks by taking action against the student? ◦ If yes, on what basis? ◦ If no, what other action may be taken? Copyright © 2010 National School Boards Association. All rights reserved.

5 What would you do? A student receives rude emails and texts from several classmates. She feels humiliated. The messaging is not occurring at school. ◦ Can the administration take action? ◦ If so, what? ◦ If not, why? Copyright © 2010 National School Boards Association. All rights reserved.

6 What do school officials need to know? Rights, Responsibilities, Ramifications What is cyberbullying and how it is done Laws and court decisions that address cyberbullying Preventative measures and policy drafting Response measures and record keeping Copyright © 2010 National School Boards Association. All rights reserved.

7 Why cyberbullying is our problem Liability to the victim and the perp – emotional and physical harm, constitutional violations Suicides: Megan Meier (MO), Megan Gillan (England), Tempest Smith (MI), Jessica Logan (OH), Alex Moore (AL), Phoebe Prince (MA)

8 Why cyberbullying is our problem – cont’d Recent verdict and settlement for ongoing harassment Off campus speech decisions Public uproar Legal requirements to report, remove, investigate Focus of current administration on enforcement Copyright © 2010 National School Boards Association. All rights reserved.

9 What is cyberbullying? Traditional bullying using technology ◦ Intentional ◦ Repeated ◦ Aggressive or unwanted behavior + ◦ Power imbalance Some researchers say its not cyberbullying unless it is “a part of or related to offline bullying.” The most hurtful incidents typically involve a personal relationship (real life). Copyright © 2010 National School Boards Association. All rights reserved.

10 What is cyberbullying – in legal terms? State anti-bullying laws ◦ Most do not have separate definition for cyberbullying, but define it as bullying through electronic communication. ◦ Common components of bullying definition:  Intentional act (gesture, written, verbal, physical)  Reasonably perceived as motivated either by an actual or perceived characteristic  That takes place on school property, at any school- sponsored function or on a school bus AND Copyright © 2010 National School Boards Association. All rights reserved.

11 State anti-bullying laws definition, cont’d  That a reasonable person should know will have the effect of harm or placing in reasonable fear of harm to student or property; OR  That has the effect of insulting or demeaning any student or group of students so as to cause substantial disruption in, or substantial interference with, orderly operation of the school. New Jersey anti-bullying statute, 18A:37-14. Copyright © 2010 National School Boards Association. All rights reserved.

12 State anti-bullying laws definition, cont’d Some state statutes include use of school equipment, network or software (GA, FL) Some reach off-campus (MD, MA) Very few address student-to-staff (AR, CA, FL (“harassment” only; “bullying” applies only to students)) Copyright © 2010 National School Boards Association. All rights reserved.

13 State anti-bullying laws definition, cont’d MA reaches far: Bullying is prohibited even at non-school- related locations/events or through use of non-school-owned technology if it creates a hostile environment at school for the victim, infringes on the victim’s rights at school, or materially and substantially disrupts the education process or the orderly operation of the school. MA anti-bullying statute, Section 5(b). Copyright © 2010 National School Boards Association. All rights reserved.

14 Your definition School district policy ◦ State anti-bullying/other statutes ◦ State Dept. of Ed. regulations or model policy ◦ School safety plan ◦ Community input Copyright © 2010 National School Boards Association. All rights reserved.

15 How? Internet, Email, Text Accessed easily via cell phone. Copyright © 2010 National School Boards Association. All rights reserved.

16 What Law Applies? FederalState Statutes Constitution Case Law Regulations Statutes Constitution Case Law Regulations Copyright © 2010 National School Boards Association. All rights reserved.

17 Federal Statutes  Megan Meier Cyberbullying Prevention Act – never passed –would have made it a felony  Safe Schools Improvement Act – would amend the Safe and Drug-Free Schools and Communities Act to include bullying and harassment prevention programs.  Stored Communications Act,  Prohibits unauthorized access to stored communications  Court have held open emails do not meet definition of “electronic storage.”  Klump v. Nazareth Area School Dist., 425 F.Supp.2d 622 (E.D.Pa., 2006) – cell phone call log and phone number directory are not “communications” under PA’s statute. Voicemail/texts would be stored by provider, however, so searching may be unlawful access. Copyright © 2010 National School Boards Association. All rights reserved.

18 Federal Statutes, cont’d Electronic Communications Privacy Act Children’s Internet Protection Act and Neighborhood Children’s Internet Protection Act and Protecting Children in the 21 st Century Act (condition receipt of federal tech funds, including E-rate, upon fulfillment of requirements such as filtering, policies, education on online behavior) Anti-discrimination laws Title IX – gender Title VI – race Title VII – employment IDEA and §504 – disability FERPA Copyright © 2010 National School Boards Association. All rights reserved.

19 Federal Constitution 1 st Amendment. ◦ Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. 4 th Amendment – search and seizure 14 Amendment – equal protection and due process Copyright © 2010 National School Boards Association. All rights reserved.

20 State Statutes Anti-Bullying Laws ◦ 44 states ◦ Over half address cyberbullying in some way ◦ Many of the others have broad definitions of bullying that could include cyberbullying ◦ State Department of Education often required to develop a model ◦ School/district usually required to follow state model as a minimum Copyright © 2010 National School Boards Association. All rights reserved.

21 State Statutes, cont’d State Anti-Discrimination laws ◦ Often more protective than the federal ones ◦ For instance, many list “sexual preference” as a protected category State student records laws State criminal laws ◦ Harassment ◦ Stalking ◦ Child pornography ◦ Abuse/neglect reporting Copyright © 2010 National School Boards Association. All rights reserved.

22 State Constitution May provide rights BEYOND those of the federal constitution For instance, California’s constitution provides a explicit “right to privacy” which may affect the standard under which public entities may conduct searches of citizens’ personal effects (i.e., cell phones) AND state common law claims - negligence Copyright © 2010 National School Boards Association. All rights reserved.

23 How have these laws been applied to cyberbullying? Lawsuits filed by the perpetrator who had been disciplined alleging violation of: ◦ 1 st Amendment right to freedom of speech ◦ 14 Amendment due process right of parent to raise child Lawsuits filed by the victim alleging violation of: ◦ Anti-discrimination laws -- harassment based on a protected category ◦ State tort – duty to supervise, negligence Copyright © 2010 National School Boards Association. All rights reserved.

24 Early court decisions Star Wars Kid (2002) ◦ Parents sued parents. The parties settled in 2006. Coy v. Bd. of Ed. of. North Canton City Schools (N.D. Ohio 2002) ◦ Site insults “loser” classmates. Coy accesses his site from school computer. ◦ Ct.: Would be unconstitutional if school imposed discipline just because officials disliked content. Unusual: Even on school equipment! Neal v. Efurd, (W.D. Ark. 2005) ◦ Website demeans athletes, band, administration ◦ Parent complains, quick reaction ◦ Ct.: No threat = no disruption Copyright © 2010 National School Boards Association. All rights reserved.

25 Court decisions about rights of the perpetrator – 1 st Amendment standard Tinker review: ◦ Tinker (1969)  “Material and substantial disruption” or reasonable forecast thereof  “Impinge upon the rights of others” ◦ Hazelwood (1983)  School-sponsored speech ◦ Fraser (1987)  Lewd or vulgar speech ◦ Morse (2007)  Illegal drug-related speech Copyright © 2010 National School Boards Association. All rights reserved.

26 Tinker surfaces J.S. v. Bethlehem Area School District (S. Ct. of Pa.2002). 8th grader created offensive website directed toward staff. Accessed website at school. Permanently expelled. Though not a true threat, student’s behavior materially and substantially interfered with the educational process. Ct: on-campus speech because accessed site at school. Used Fraser test because “it is for school districts to determine what is vulgar, lewd or plainly offensive.” Copyright © 2010 National School Boards Association. All rights reserved.

27 Tinkering with Tinker Courts have repeatedly, though reluctantly applied Tinker to off-campus speech. Courts and attorneys have come to refer to the “nexus” between the behavior and the school. Courts tend to focus on Tinker’s “disruption” prong and pay little attention to the “rights of others” prong. Copyright © 2010 National School Boards Association. All rights reserved.

28 True Threats – the 1 st Amendment “exception” If speech constitutes a “true threat,” it is not protected under the 1 st Amendment. ◦ Watts v. U.S. (1969) (true threat on President prohibited by statute; statute found constitutional; speech here was not true threat, but political hyperbole) ◦ Wisniewski v. Bd. of Ed. Weedsport Central S.D. (2d Cir. 2007) (“We think that school officials have significantly broader authority to sanction student speech than the Watts standard allows.”) If NOT true threat, Tinker disruption test? ◦ Some courts give schools more latitude ◦ BUT, still good point of reference Copyright © 2010 National School Boards Association. All rights reserved.

29 Sufficient Nexus – undermining principal’s authority creates disruption J.S. v. Blue Mountain School District, 593 F.3d 286 (3 rd Cir. 2010). 2-1. VACATED, reheard with Layshock 6/3/10. Student created MySpace profile parody with principal’s photo from school website. Harshly offensive, pedophilia suggested. 10-day out-of-school suspension. No “geographic technicality” required. “We simply cannot agree that a principal may not regulate student speech rising to this level of vulgarity and containing such reckless and damaging information so as to undermine the principal’s authority in the school and potentially arouse suspicions among the school community about his character.” Copyright © 2010 National School Boards Association. All rights reserved.

30 Sufficient Nexus – when violence threatened Wisniewski v. Bd. Of Ed. Weedsport Central S.D., 494 F.3d 34 (2d Cir. 2007). Student’s IM message contain icon showing violence toward staff. Reasonably foreseeable that school officials would become aware of icon and then substantial disruption likely. Mardis v. Hannibal Public School District No. 60, 684 F.Supp.2d 1114 (E.D. Mo. 2010). Student’s IM message to classmate said he planned to get a gun and kill certain classmates. Student knew or should have known the message would reach the “victims” or school authorities. Reasonable recipient could believe true threats. Also disruption under Tinker. But qualified immunity for principal. Copyright © 2010 National School Boards Association. All rights reserved.

31 Sufficient Nexus – when disruption urged Doninger v. Niehoff, 527 F.3d 41(2d Cir. 2008). Student prevented from student government participation after offensive blog entry. Reasonably foreseeable the entry would be seen by school community and would substantially disrupt the school environment. Copyright © 2010 National School Boards Association. All rights reserved.

32 Insufficient Nexus – disruption not argued Layshock v. Hermitage Sch. Dist., 593 F.3d 249 (3 rd Cir. 2010). VACATED, reheard with J.S. 6/3/10. High School student created parody MySpace profile of principal using photo from school district website. “Big” used often; not pedophilia. When word spread, students accessed profile on school computers. Relationship between conduct and school too attenuated. Use of school district web site did not constitute entering school. Note: punishment particularly harsh: 10-day suspension, AEP, ban from extra-curriculars, and no graduation ceremony. Layshock’s was first of several more offensive sites, but he was the only one punished. Copyright © 2010 National School Boards Association. All rights reserved.

33 Insufficient Nexus – not enough harm J.C. v. Beverly Hills Unified School District, 2009 WL 1914215 (C.D. Cal. 2009, 2010). Offensive You Tube video directed at student. You Tube blocked at school. No classroom disruption, fear of students taking sides “speculative.” Not violent; no threats. Court held: ◦ Geographic origin of the speech is not relevant; Tinker applies to on-campus and off-campus speech. ◦ There was clearly a “nexus” to the school here. ◦ But no substantial disruption or reasonable forecast thereof. Hurt feelings alone ≠ school disruption ◦ Not sufficient interference with rights of others under 2 nd prong of Tinker. Copyright © 2010 National School Boards Association. All rights reserved.

34 Insufficient Nexus – not enough disruption Evans v. Bayer, 684 F.Supp.2d 1365(S.D. Fla. 2010). Student created Facebook page critical of teacher. 3-day suspension and removal from AP classes. Though law confusing, free speech right clearly established because even on-campus standard not met here. Speech arguably aimed at a particular audience at the school ≠ on-campus speech. Copyright © 2010 National School Boards Association. All rights reserved.

35 Court decisions about the rights of the perpetrator – search and seizure 4 th Amendment -- Government searches of individuals must be reasonable. In the school context, the Supreme Court said in New Jersey v. T.L.O. (1985) that the search must be:  Justified at inception – reasonable grounds for suspecting search will turn up evidence a school rule has been violated  Permissible in scope – measures adopted are reasonably related to the objectives of the search and not excessively intrusive Copyright © 2010 National School Boards Association. All rights reserved.

36 Search and seizure – cell phones Klump v. Nazareth Area Sch. Dist. (E.D. Pa. 2006). Teacher confiscated cell phone because prohibited during school hours. Then teacher and VP called other students listed in the phone’s directory to see if they were violating school policy. Court found the scope of the search violated the student’s 4 th Am. rights. There was no reason to suspect Klump was violating another policy – just trying to catch other students. Copyright © 2010 National School Boards Association. All rights reserved.

37 Cell Phone Searches: Recent Lawsuits PA sexting case. Student suing for 4th Amendment violation – searching cell phone without reasonable suspicion or probable cause. TX parent claims school officials violated daughter’s constitutional rights by taking cell phone and reading texts. Copyright © 2010 National School Boards Association. All rights reserved.

38 Court decisions about the rights of the victim Federal/state anti-discrimination statutes State tort claims Basic claim is that the student has a right to be safe and free from harassment/bullying at school, and school officials breached their duty to keep the student free from harassment/bullying. Copyright © 2010 National School Boards Association. All rights reserved.

39 Court decision about rights of the victim R.S. v. Bd. of Educ. of the Hastings-On- Hudson Union Free Sch. Dist. (2 nd Cir. 2010) ◦ Parent sued school officials claiming his daughter has been sexually harassed through 3 emails and one conversation, and that the school’s investigation was inadequate. ◦ Court of Appeals upheld trial judge’s decision to grant SJ in favor of district. ◦ Conduct falls short of harassment under Title IX or Equal Protection violation under 14 th Am. Copyright © 2010 National School Boards Association. All rights reserved.

40 Court decisions about the rights of the victim, cont’d Most state anti-bullying laws specifically do not create a cause of action (a basis for suit). A Connecticut court declined to find one. Dornfried v. Berlin Bd. of Ed. (Conn.Supr. 2008). Plaintiffs’ attorneys tend to bring suits based on harassment, if possible – gender, race, or other protected classification Copyright © 2010 National School Boards Association. All rights reserved.

41 Court decisions in cases brought by victims Private defamation suits ◦ D.C. v. R.R. (Cal.App. 2010). Student A had self-promotional website. Several fellow students (Group B) posted offensive comments and threats on the site. Not disciplined by the school. Student sued Group B and parents, alleging defamation, hate crimes, and intentional infliction of emotional distress. Court found defendants were not protected by anti-SLAPP statute. Not able to show protected speech. Copyright © 2010 National School Boards Association. All rights reserved.

42 Private defamation suits, cont’d Finkel v. Dauber (N.Y. Sup. 2010). Private Facebook group posted many derogatory comments about the plaintiff. She sued them and parents, alleging defamation, negligent entrustment by the parents of a dangerous instrument (computer!) and negligent supervision. Court decided postings were not statements of fact, but “attempts to outdo.” Court: NY courts have not recognized a cyberbullying tort action. Copyright © 2010 National School Boards Association. All rights reserved.

43 Preventative measures and policy drafting Copyright © 2010 National School Boards Association. All rights reserved. Prevention ◦ School/community awareness ◦ School/community cooperation Policy ◦ Law of the school district ◦ Provides notice to all – students, staff, parents, community Procedures ◦ Investigations ◦ Disciplinary hearings

44 Preventative Measures and Policy Drafting State anti-bullying statute? State school boards association State DOE ADL Your school attorney Copyright © 2010 National School Boards Association. All rights reserved.

45 Policy – suggested components Define of bullying/harassment to include electronic Explain the geographical or electronic boundaries of the school’s authority Include possible consequences Make it consistent with your acceptable use policy (school equipment) Consider students signing off on code of conduct Copyright © 2010 National School Boards Association. All rights reserved.

46 Procedures Investigate ◦ Talk to offending student ◦ Review the offending internet or cell phone communications – but stay within your established procedures and within a reasonable scope ◦ Cell phone searches:  Fourth Amendment  Stored Communications Act  Caution: approaches calling for probable cause standard Copyright © 2010 National School Boards Association. All rights reserved.

47 Procedures, cont’d Save evidence ◦ Print all relevant content ◦ Save it electronically, but beware of nude/semi-nude photos. ◦ Consult with IT staff to override any automatic deletions ◦ Document and save all communications with parents and students and all supportive actions after-the-fact Copyright © 2010 National School Boards Association. All rights reserved.

48 Procedures, cont’d Contact website ◦ MySpace Administrator’s guide prepared specifically for use by superintendents, principal, counselors and resource officers. ◦ Facebook collaboration with National PTA. Contact all families involved Involve law enforcement Copyright © 2010 National School Boards Association. All rights reserved.

49 Procedures, cont’d Consult your attorney Follow up with perpetrator’s family Provide support – (legal concerns) ◦ Prevent further harassment ◦ Document efforts Block harassers, if possible Report as required by state law Copyright © 2010 National School Boards Association. All rights reserved.

50 Practical Tips Staff awareness ◦ Of policies, of legal basics ◦ Of technology *Administration should be fluent in sites: MySpace, Facebook, Xanga, Friendster, myYearbook, Tagged, Twitter Victims may have recourse where schools hands are tied Cooperate proactively with law enforcement ◦ Criminal code and law enforcement can be useful leverage in resolving situation ◦ Caveat: Criminalizing immature behavior, schools-to- prison pipeline, etc. Copyright © 2010 National School Boards Association. All rights reserved.

51 Practical Tips Consider full range of options ◦ Alternatives to disciplinary action? ◦ Suspensions & expulsions have constitutional implications Copyright © 2010 National School Boards Association. All rights reserved.

52 Back to the scenarios... Parent of a student who is the target of vicious and lewd taunts by other students on You Tube demands that “something be done.” Administrator is the subject of a vulgar parody on MySpace. A student receives rude emails and texts from several classmates. The messaging is not occurring at school. Copyright © 2010 National School Boards Association. All rights reserved.

53 DISCLAIMER This presentation does not constitute legal advice, nor does it create an attorney client relationship. It contains general recommendations and should not be relied upon for any specific purpose without consultation with legal counsel or other professionals and in the context of specific facts and circumstances. Copyright © 2010 National School Boards Association. All rights reserved.


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