2011 Law Review Bullying and Cyberbullying Tripp Walter Staff Attorney 1401 West Capitol, #465 Little Rock, AR

BULLYING & CYBERBULLYING 2

Bullying & Cyberbullying Ark. Code Ann. § , originally enacted in 2003 and amended in 2005, 2007 and 2011, requires the Board of Directors of every school district in the state to adopt policies to prevent bullying. 3

Bullying - Policies The policies shall:  Clearly define conduct that constitutes bullying 4

Bullying - Policies  Prohibit bullying while in school, on school equipment or property, in school vehicles, on school buses, at designated school bus stops, at school-sponsored activities, at school-sanctioned events; or by an electronic act that results in the substantial disruption of the orderly operation of the school or educational environment, whether or not the electronic act originated on school property or with school equipment, if the electronic act is directed specifically at students or school personnel and maliciously intended for the purpose of disrupting school, and has a high likelihood of succeeding in that purpose; 5

Bullying - Policies  State the consequences for engaging in the prohibited conduct, which may vary depending on the age or grade of the student involved;  Require that a school employee who has witnessed or has reliable information that a pupil has been a victim of bullying as defined by the district shall report the incident to the principal; 6

Bullying - Policies  Require that the person or persons who files a complaint will not be subject to retaliation or reprisal in any form;  Require that notice of what constitutes bullying, that bullying is prohibited, and that the consequences of engaging in bullying be conspicuously posted in every classroom, cafeteria, restroom, gymnasium, auditorium, and school bus in the district; and 7

Bullying - Policies  Require that copies of the notice of what constitutes bullying, that bullying is prohibited and the consequences of engaging in bullying be provided to parents, students, school volunteers and employees. Each policy shall require that a full copy of the policy be made available upon request. 8

Bullying A school employee who has reported violations under the school district’s policy shall be immune from any tort liability that may arise from the failure to remedy the reported incident. The local school board of directors may provide opportunities for school employees to participate in programs or other activities designed to develop the knowledge and skills to prevent and respond to acts covered by the policy. 9

Bullying The school district shall file with the Department of Education a copy of the policies adopted in compliance with this section. The State Board of Education shall review the policies provided by the school districts and may recommend changes or improvements to the districts if the state board determines that the policies need improvement. 10

What is Bullying? Bullying means the intentional harassment, intimidation, humiliation, ridicule, defamation, or threat of violence by a student against another student or public school employee by a written, verbal, electronic, or physical act that may address an attribute of the other student, public school employee, or person with whom the other student or public school employee is associated and that causes of creates actual or reasonably foreseeable (underlined changes are from Act 907 of the Regular Session of the 88 th General Assembly): 11

What is Bullying?  Physical harm to a public school employee or student or damage to the public school employee’s or student’s property;  Substantial interference with a student’s education or with a public school employee’s role in education; 12

What is Bullying?  Hostile educational environment for 1 or more students or public school employees due to the severity, persistance, or pervasiveness of the act; or  Substantial disruption of the orderly operation of the school or educational environment.  Other Act 907 changes: 13

What is Bullying? Definition of “Attribute”:  Attribute means an actual or perceived personal characteristic including without limitation race, color, religion, ancestry, national origin, socioeconomic status, academic status, disability, gender, gender identify, physical appearance, health condition, or sexual orientation. 14

What is Bullying? Bullying of a public school student or a public school employee is prohibited. A school principal or his or her designee who receives a credible report or complaint of bullying shall promptly investigate the complaint or report and make a record of the investigation and any action taken as a result of the investigation. 15

What is Bullying? A school district shall provide training on compliance with the antibullying policies to all public school district employees responsible for reporting or investigating bullying under this section. 16

What is Bullying? This section is not intended to:  Restrict a public school district from adopting and implementing policies against bullying or school violence or policies to promote civility and student dignity that are more inclusive than the antibullying policies required under this section; or  Unconstitutionally restrict protected rights of freedom of speech, freedom of religious exercise, or freedom of assembly. 17

Cyberbullying – Electronic Act An electronic act means without limitation a communication or image transmitted by means of an electronic device, including without limitation a telephone, wireless phone or other wireless communications device, computer, or pager. 18

Cyberbullying Q: Where must the “electronic act” occur to violate your district policy – only on school property? A: No! The “electronic act” can occur/originate anywhere (i.e., student’s home computer). Example: Postings on a Facebook page; comments on Twitter or MySpace; s sent from one student to another student. 19

Cyberbullying How do you get the evidence you need to establish a cyberbullying violation? 20

Bullying & Cyberbullying – Your Response “I don’t know why everyone’s making such a big deal out of this bullying stuff. It’s been going on in schools for YEARS. A little name-calling never hurt anyone; come on, kids will be kids! 21

Is this a common response at your school/district? How seriously does your staff/administration/Board take bullying? Why is it important? How do you handle it?! Is it child maltreatment under Ark. Code Ann. §§ (bullying) or (cyberbullying)? Bullying & Cyberbullying – Your Response 22

Examples of Bullying & Cyberbullying Sarah Butler, a 12 year old 7 th grader in Williford committed suicide by hanging on Sept. 26, She left a note saying she couldn’t handle what others were saying about her. Sarah had a MySpace page and was reportedly very active on it. The last message Sarah read basically said that she was easily forgotten and that she was just a stupid little naïve girl and that no one would miss her. 23

Examples con’t. On May 12, 2010, a U.S. District Court jury in Arkansas returned a verdict in favor of Fayetteville School District (FSD) in a Title IX peer sexual harassment suit. The suit brought by Billy Wolfe, a former student, alleged that FSD failed to do enough to stop sexual harassment by his classmates. 24

Examples – FSD con’t. Specifically, the jury found for FSD on Wolfe’s claims of Title IX sex-based harassment and Title IX retaliation. According to the Northwest Arkansas Times, Wolfe claimed he was beaten and sexually harassed by classmates because he did not meet their stereotypical expectations of male masculinity. 25

Examples – FSD con’t. Wolfe’s suit sought $2.5 million in damages. The Times reported that Wolfe’s attorney, Arthur Benson, argued that the school failed to act to stop harassment of Wolfe by other students that continued over several years. This case started as a bullying case but was changed to allege violations of Title IX. 26

Bullying Facts Ark. Code Ann. § does not provide for criminal penalties for those who commit acts of bullying or cyberbullying, but Act 905 of the Regular Session of the 88 th General Assembly created new Ark. Code Ann. § which makes the offense of cyberbullying a Class B misdemeanor (which is punishable by a fine of up to $1, and/or imprisonment for up to ninety (90) days). 27

Bullying Facts A person commits the offense of cyberbullying if:  He or she transmits, sends, or posts a communication by electronic means with the purpose to frighten, coerce, intimidate, threaten, abuse, harass, or alarm another person; and  The transmission was in furtherance of severe, repeated, or hostile behavior toward the other person. 28

Bullying Facts The offense of cyberbullying may be prosecuted in the county where the defendant was located when he or she transmitted, sent, or posted a communication by electronic means, in the county where the communication by electronic means was received by the person, or in the county where the person targeted by the electronic communications resides. 29

Bullying Facts On April 2, 2009, the Megan Meier Cyberbullying Prevention Act was introduced in the U.S. House of Representatives. The purpose of the bill is to amend the federal criminal code to impose criminal penalties (fines, up to 2 years imprisonment, or both) on anyone who transmits in interstate or foreign commerce a communication intended to coerce, intimidate, harass, or cause substantial emotional distress to another person, using electronic means to support severe, repeated, and hostile behavior. No substantive action has been taken on the bill. 30

Tripp Walter, Staff Attorney 1401 West Capitol, Suite 465, Little Rock, AR Phone: