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We’ve been discussing the recent case in Britain involving 18-year-old Keeley Houghton, who posted a death threat on Facebook and was subsequently incarcerated.  Specifically, the aggressor wrote the following on her own profile page, “Keeley is going to murder the bitch. She is an actress. What a ******* liberty. Emily ****head Moore.”

Those with whom I’ve talked are split on whether they agree with this sanction.  In this case there had been a pattern of bullying behavior displayed by the aggressor against the target, who had been harassed face to face several times before the online incident occurred.  Some may argue that free speech is being usurped, but just as you don’t yell “fire” in a crowded theater, you don’t threaten someone’s life in writing for the whole world to see.  I think it’s correct for threats of this magnitude – whether physical or verbal to be taken seriously, as they may preempt needless and senseless violence.  No threat should be taken lightly or regarded as meritless, and even those which may have been said in jest should be investigated and, if necessary, punished in some capacity.  In this case, jail time was assigned.  Will Keeley be deterred from doing something similar in the future?  Will her friends, after hearing about what happened and seeing the reality of someone they know locked up?  Will others across Britain who read or hear about the news story?  I do believe this sends a message, and that some youth will definitely think more carefully about engaging in a similar behavior while communicating in cyberspace.

Following up from my last blog post, and after talking to a number of individuals working in various school districts, this is what we know:

1) FERPA allows schools who learn the identity of a cyberbully upon investigation of an incident that affects the climate or environment or values of the school to protect that identity and refuse to share it with a cyberbully victim (or their family).

2) Some states require schools to report behaviors in violation of state law just as they are required to report other criminal acts (e.g., drug use, weapons possession, sexual assault).  For example, here in Florida the scenario depicted in my last post could be classified as a violation of the following criminal law: “Any person who willfully, maliciously, and repeatedly follows, harasses, or cyberstalks a minor under 16 years of age commits the offense of aggravated stalking, a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.”  As such, the school would be obligated to report that to the police.

3) A cyberbullying victim (or their family) may therefore be able to learn the identity of a cyberbully by contacting law enforcement, who would not be bound by FERPA.

I hope this helps us a little.  If you have further insight into this issue, please let us know.

I was talking to a school administrator yesterday…and she posed a question that I couldn’t clearly answer because it doesn’t seem there is a clear answer.  So I wanted to see if any of our readers had some thoughts about it.

If a parent comes to you (you as an educator in the school system) and says that their child is being anonymously cyberbullied by someone from school, and their child is being affected at school because of it – and you do your investigation and find out the identity of the bully (and that it definitely is someone from school) – do you have to keep the identity of that bully private because of FERPA?  What if the parent demands to know who it is, arguing that such information could help that parent better protect the child in the future?  Furthermore, if the parent of the victim adamantly demands to know what the school is doing to specifically discipline that bully and address the issue, do you have to share that information – or can you just say that your school is dealing with the problem and the parent should let you know if it continues?  How exactly does FERPA play a role in these situations?

We’ve covered this issue a couple of times before on this blog, but given the interest I thought I would respond to some of the comments that have been posted and provide some insight gained from discussions I have had with folks over the past few months.  Some people have suggested that students have effectively no right to privacy in schools.  On its face, this is patently false – students do in fact have *some* privacy rights in schools.  That said, the rules are different in schools than in other public places.

All Americans are protected against “unreasonable” searches and seizures (4th Amendment), and what can be classified as “reasonable” varies depending on the context.  In schools, educators can generally search student property if (and only if) they have a good reason to believe that evidence exists therein which will reveal a violation of school policy.  If that evidence is found, the offending student may be subject to an administrative sanction by the school (e.g., detention, suspension, etc).  For example, if a credible student tells a principal that another student at school has a phone in the classroom that includes the answers to the algebra exam, then a search may be allowable given these circumstances.

This ability to search can be contrasted with that of law enforcement, who are required to abide by a higher standard.  School (or other) police officers must have probable cause that evidence of a crime exists in order to conduct a search of property.  To be clear, mere suspicion is not enough for law enforcement officers.  They must be able to articulate to a judge that probable cause existed (either before the search is conducted or after at trial).  For example, if a credible student informs a school resource officer (a sworn police officer) that another student has a gun in his or her backpack, clearly the officer would be able to search the backpack.

If we apply these principles to the issue of cell phones in the classroom, we know that educators or law enforcement officers can in fact search a cell phone under some circumstances.  Either way, there has to be some articulable level of knowledge that the cell phone contains evidence of a violation of school policy or criminal law (depending on who is performing the search).  In the opinion of many, simple possession of the phone in the classroom, while in itself a violation of school policy, does not provide license to search that phone by anyone.

Always remember that neither Sameer nor I are attorneys, and so this should not be interpreted as legal advice.  Furthermore, these are very complicated issues that cannot be adequately covered in a short blog posting.  There are many exceptions to the basic principles outlined above.  As always, consult an attorney who specializes in school and/or privacy law.  Even they, however, often disagree as to how these laws and court rulings can or should be interpreted.   Case law and precedent are currently being formed as schools and courts wrestle with these issues.  If you are aware of any incidents that have gone to court related to this topic, please pass them along so that we can analyze and distill what can be learned from them.

A colleague sent along this article detailing how some public schools are issuing PDAs to third, fourth, and fifth graders in an effort to render them comfortable with the technology, and as another medium through which they can learn.  For example, they can use it to draw pictures, write essays, study flash cards, and take photos.  The vast majority of schools are not this progressive, and most can’t afford such a program, but I think it’s ingenious and would love to see additional districts responsibly implement it.

Elementary schoolers do need to become familiar and proficient with these technologies (to keep pace with peers, and because learning about many things should start as early as possible).  Using them in school allows for a number of “teachable moments” to instruct kids on their proper use (and how they should not be misused).  Some educators expect parents to teach youth about cyberbullying and responsible social networking since parents see their children using the devices all the time (i.e., more than administrators and teachers see it).  Having the technology used in a positive way within the school system may induce and even compel educators to bear their share of the burden in promoting digital citizenship.  Furthermore, it may finally force teachers and administrators to get up to speed with the pros and cons of online communication tools if they are strongly encouraged (or even required) to use them to facilitate instruction during the new school year.