TIES 2012 Education Technology Conference Cyberbullying and
Schools: Reducing the Risk of Litigation
Slide 2
Disclaimer The information in this presentation is not legal
advice and is not intended as legal advice. It is intended to
provide general legal information. It does not cover all issues
related to the topics discussed. The specific facts that apply to
your matter may make the outcome different than you might
anticipate based on the material presented. Please consult with
your own attorney with regard to specific issues.
Slide 3
Defining cyberbullying cruel[ty] to others by sending or
posting harmful material or engaging in other forms of social
aggression using the Internet or other digital technologies. (Nancy
Willard) Bullying means the use of words, images, or actions, in
one or a series of incidents, either through direct or indirect
interactions between individuals or through technology, that a
reasonable person would or should know, under the circumstances,
will have the effect of interfering with the ability of one or more
individuals, including students who observe the conduct, to
participate in a safe and supportive environment. (MN Prevention of
School Bullying Task Force Report, p. 9)
Slide 4
Cyberbullying vs. traditional bullying Cyberbullying has unique
features: Anonymity of the Internet Global forum even strangers can
join in Pervasive and ever present Although different studies
reveal different statistics, there is no disputing that even the
lowest numbers are high enough to provoke concern. Numbers are
expected to continue rising due to increased Internet access and
students dependence on the Internet for school work and
communicating.
Slide 5
What we know about cyberbullies and their victims July 2011
study by the Massachusetts Aggression Reduction Center (MARC):
bullies and victims are more likely to: Be on Type 3 IEPs (no IEP
during elementary school, but IEP during middle/high school) Have
significantly poorer social skills Report they had been bullied by
a sibling (and that parents did not adequately respond to the
bullying) Report involvement with alcohol Engage in digitally risky
behaviors Report they were pressured to sext
Slide 6
Reported incidents and lawsuits Cyberbullying in the news
Slide 7
Bell v. Itawamba County School Board (N.D. Miss.; Mar. 15,
2012) High school senior suspended for 7 days, then transferred to
an alternative school for the remaining 5 weeks of the school year
for threatening school staff members in a rap song video that was
distributed to 1300 students via Facebook Bells rap song lyrics:
looking down girls shirts drool running down your mouth messing
with the wrong one gonna get a pistol down your mouth middle
fingers up if you cant stand that nigga middle fingers up if you
want to cap that nigga
Slide 8
R.S. v. Minnewaska Area School District No. 2149 On September
6, 2012, US Judge Michael Davis refused to dismiss claims that the
Minnewaska Area School violated the First Amendment (freedom of
speech) and Fourth Amendment (unreasonable search and seizure)
rights of a 12- year-old student by forcing her to hand over her
Facebook password to school officials who in turn used it to search
for messages they deemed inappropriate. If the alleged facts are
proven to be true at trial, the school will likely have to pay
damages to the student (claims for intentional inflection of
emotional distress were dismissed by the judge).
Slide 9
Additional cases challenging school discipline Twin brothers,
high school juniors, were suspended for 180 days after creating a
blog, which featured several crude posts about another student. The
boys claimed they created the posts at home, on their personal
computers. The school claims the boys used district computers to
make the offensive blog. Three 14 year old Indiana students are
challenging their expulsion from school after commenting on
Facebook about wanting to kill classmates. The ACLU, which is
representing the girls, claims school officials violated the girls
civil rights by expelling them on the basis of a personal,
off-campus conversation, and that it is clear the girls were joking
because their remarks were accompanied by smiley faces and other
emoticons, along with Internet shorthand, such as LOL. The comments
included names of at least five classmates and discussions of using
guns, knives, box cutters and gasoline and filling a bath tub with
acid to dissolve a body.
Slide 10
Criminal charges in Maine A former high school student in
Orono, Maine faces felony terrorizing charges after allegedly
sending dozens of threats electronically to a 15 year old former
classmate, including: Your face is like a baby seal. Fat, furry and
just asking to be clubbed to death.
Slide 11
Defamation lawsuits A Georgia middle school student is suing 2
classmates for libel for bullying statements they made about her on
Facebook. She decided to sue after police and school officials told
her there was not much they could do. A Houston, TX father filed
defamation suit against 3 of his daughters classmates who filmed
themselves making false sexual remarks about his daughter and
posting the video to Facebook. The complaint was settled months
later with apologies from the girls and a small donation to
charity.
Slide 12
A film by a Minnesota high school senior Minnesota Nice?
Slide 13
Controlling cyberbullying Current attempts to stem the
tide
Slide 14
Criminalizing it Megan Meier Law proposed in Congress but did
not succeed due to Free Speech concerns Interstate Communications
Act Computer Fraud and Abuse Act State laws criminalizing cyber
stalking and cyber harassment (including a recent amendment to a
North Carolina statute, expanding its protection to include school
employees) Municipal ordinances e.g. Detroits ordinance making it a
misdemeanor to bully children in person or online
Slide 15
Legislating against it Protecting Children in the 21 st Century
Act (mandates that schools educate students about online behavior,
safety, and cyberbullying or risk losing E-Rate discounts) 49
states have passed anti bullying mandating school policy
development (Montana is the lone holdout; Minnesotas law has
received the lowest grade for its law on BullyPolice.org) Task
Force Recommendation #1: The repeal of existing ineffective
Minnesota statutes on bullying, harassment, and intimidation and
the replacement of such statutes with strong and effective law(s)
incorporating the recommendations contained in the Task Force
report.
Slide 16
Civil lawsuits against bullies, parents, schools Defamation
Intentional infliction of emotional distress Negligence Deliberate
indifference as a violation of a students 14 th Amendment rights
Civil causes of action for alleged free speech, equal protection,
and privacy violations (asserted on behalf of a bully disciplined
by a school)
Slide 17
Cybervigilante ism: Anonymous, Rustle League, and Tumblr
Slide 18
Do these efforts work?
Slide 19
Criminalizing it Few of the criminal laws against cyber
stalking and cyber harassment are broad enough to address
cyberbullying Criminalizing cyberbullying seems inappropriate,
given that many of the students engaging in cyberbullying may be
acting recklessly and immaturely, but without criminal intent
Slide 20
Legislating against it Legislation is helpful in that it
focuses our attention on the most important issues in our society;
adults who otherwise may not have considered cyberbullying an
important problem might reconsider when a law is passed Broadly
written laws are subject to constitutional challenges that they
infringe on free speech and are void for vagueness Laws mandating
school policy rarely cover intimidation outside of school property
The issue of whether schools may censor students who are off campus
when they cyberbully has led to split decisions in the federal
appeals courts
Slide 21
Civil lawsuits Cyberbullying itself is not an actionable tort;
neither does it fall squarely within other existing torts (Cf.
negligent entrustment of chattel) Parental immunity protects
parents from being sued for the negligent acts of their children
and the Communications Decency Act protects ISPs from liability so
plaintiffs are left without a remedy Intentional infliction of
emotional distress has a high threshold: generally speaking,
insulting language, without more, does not constitute the requisite
outrageous conduct
Slide 22
Civil lawsuits, contd Defamation cases can be defended on the
grounds that the statements were rhetorical hyperbole or vigorous
epithets that no one would believe to be true Defamation cases can
be defended on the grounds that the statements are true Even if
defamation can be proven, plaintiffs may have a hard time proving
damages to reputation that are monetarily worthwhile to pursue
Civil actions are very costly and most cyberbullying defendants are
judgment proof
Slide 23
Why the heavy lifting has fallen to you The Role of the
Schools
Slide 24
Rationale for putting schools at the forefront of anti-
bullying efforts Professional educators are in the best position to
effectively train young people on appropriate uses of technology,
ethical behavior, and social issues Funding channels are already
established Task Force Recommendation #8: Fiscal resources
commensurate to fulfilling the recommendations of the Task Force be
provided at the state and local levels in order to help school
districts implement the bullying, harassment, and intimidation
recommendations. An essential foundation to student learning and
academic success is a comprehensive focus on the school environment
that addresses the physical health, mental health, social-
emotional well-being, and safety of all students. (MN Prevention of
School Bullying Task Force Report, p. 15)
Slide 25
Problems associated with putting schools at the forefront
Legislatively mandated policies can potentially conflict with free
speech guarantees Schools are already strained without becoming the
primary enforcers of cyberbullying legislation
Slide 26
Recommendations Reducing the Risk of Litigation
Slide 27
MN Prevention of School Bullying Task Force Report get involved
Task force established February 21, 2012 Purpose: ensure that all
students in Minnesota schools are provided with a safe and
welcoming environment wherein each student is accepted and valued
in order to maximize each students learning potential. Final report
issued August 1, 2012 includes 8 specific recommendations
Slide 28
Provide required education under the Protecting Children in the
21 st Century Act Requires schools to certify as of July 2012 that
their Internet safety policy provides for the education students
about appropriate online behavior. Specifically, schools must
certify that, as part of their CIPA/Erate/Internet Safety Policies,
that they: educate minors about appropriate online behavior,
including... on social networking websites and in chat rooms and
cyberbullying awareness and response as part of that Internet
safety policy.
Slide 29
Updating AUPs - four big ideas Responsible personal conduct
within the online environment is no different than responsible
personal conduct face-to-face. Individuals must protect personal
safety online Civic life has an expanding digital dimension that
demands responsible engagement by individuals and groups. There are
long--lasting implications to publishing in the online environment.
See, http://www.k12.wa.us/EdTech/InternetSafety/Acceptable
UsePolicyInfo.aspx
http://www.k12.wa.us/EdTech/InternetSafety/Acceptable
UsePolicyInfo.aspx
Slide 30
AUP recommendation: reference off campus behavior A student or
employee engaging in [unacceptable uses] of the Internet when off
school district premises and without the use of the school district
system also may be in violation of this policy as well as other
school district policies. In situations when the school district
receives a report of an unacceptable use originating from a
nonschool computer or resource, the school district may investigate
such reports to the best of its ability. Students or employees may
be subject to academic sanctions or disciplinary action for such
conduct including, but not limited to, suspension or cancellation
of the use or access to the school district computer system and the
Internet and discipline under other appropriate school district
policies, including suspension, expulsion, exclusion, or
termination of employment. Internet Acceptable Use and Safety
Policy (Policy 524), Edina Public Schools
Slide 31
Policy recommendation: address student owned mobile devices
Draft policy or procedures prohibiting students from using outside
networks to access the Internet from campus Make sure policies are
worded in a way that takes into account the various uses of
technology in schools and not particular devices (e.g. the cheating
policy should be worded in a way that encompasses cheating via a
cell phone, laptop, passing notes)
Slide 32
Focus on school climate Bullying policies are never as
important as what actually happens in school. Task Force
Recommendation #7: The creation of a School Climate Center within
the Minnesota Department of Education which will provide
information and technical assistance to school districts on
implementing strategies, techniques, and programs that remove
social-emotional impediments to learning; improve positive, safe,
and supportive whole-school learning environments for students; and
increase restorative practices and disciplines which focus on
remediation whenever incidents of bullying, harassment, and
intimidation occur.
Slide 33
Train staff Give staff the tools to respond appropriately To
reports of bullying to gateway behaviors subtle, psychological
bullying behaviors that express contempt and dominance but do not
break any formal rules (e.g. eye rolling, subtle name calling) to
cyberbullying by students in which staff are the targets (experts
contend cyberbullying of adults should be regarded as an attempt to
engage adults for help and a possible signal that the student is
struggling to handle bullying or cyberbullying).
Slide 34
Involve students Train student bystanders to intervene safely
and to report bullying behaviors to adults (MN Prevention of School
Bullying Task Force Report, p. 16) Teach students the skills of
self-advocacy and how to advocate for others (MN Prevention of
School Bullying Task Force Report, p. 16) Support student
collaborations that promote a healthy school climate (MN Prevention
of School Bullying Task Force Report, p. 16) Include students in
program and policy development and school leadership for bullying
prevention and intervention efforts, including social-emotional
learning, conflict resolution, and school climate (MN Prevention of
School Bullying Task Force Report, p. 18)
Slide 35
Integrate anti bullying messages and activities into general
curriculaum Student created anti-bullying PSA
Slide 36
Summary Schools are well positioned to have the greatest impact
on curbing cyberbullying Legal approaches and remedies will
continue to evolve preventative approaches (like those suggested in
the Prevention of School Bullying Task Force Report) will be most
effective, although the deterrent effect of an effective form of
legal redress, should one be developed, will not be overlooked.
Free speech concerns still temper the level of disciplinary
activity schools may engage in; educational efforts (for staff,
students, and the general school community) provide the greatest
avenues for creativity and influence.
Slide 37
Aimee M. Bissonette, JD Little Buffalo Law & Consulting
www.littlebuffalolaw.com Thank you!