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Back in March I wrote about this case, where a federal jury had ordered the Hudson Area School District in Michigan to pay $800,000 in damages to a student who was repeatedly harassed by classmates (and allegedly staff) for a period of several years.  A federal district court had been reviewing the facts of the case and recently overturned the jury’s order, stating that the harassment the student experienced was not sexual in nature and therefore not subject to a Title IX claim.  This despite being called a “queer” and “faggot” on a regular basis and his locker being “covered with shaving cream spelling out sexually oriented words.”  The court also asserted that the plaintiff failed to prove that the school was deliberately indifferent to the harassment that had been taking place.

There are a couple of important lessons that can be learned from this case.  First, holding incompetent school officials accountable for their actions, or lack thereof, can be very difficult.  To be fair, we were not present during the hearings and do not have access to all of the evidence presented.  From court records, however, it seemed clear to me that school officials were ignorant at best and most likely indifferent.  Obviously Federal Circuit Judge Lawrence Zatkoff didn’t agree with me.  Please read the facts of the case here and assess for yourself.

Second, it is important that students who are bullied keep very detailed records about what happened, what they did in response, who they told, and what that person did to fix the problem.  Targets of bullying also may need to fully exhaust all school-level mechanisms for responding to the bullying.  They need to give the school a chance to make things right.  School officials too need to keep very good records pertaining to bullying incidents so that they can articulate the steps that were taken to demonstrate, as apparently the Hudson Area School District did, that they took appropriate actions to remedy the problem.

School officials cannot become complacent and assume that there is zero liability if they ignore bullying that affects their learning environment and interferes with the rights of students to feel safe at school. Our colleague Nancy Willard pointed us to a couple of examples: In Vance v. Spencer County Public School District (2000), a jury ordered the school to pay the target of student-on-student sexual harassment $220,000.  In a similar case (Theno v. Tonganoxi Unified School District, 2005), another jury ordered the school district to pay the target $250,000 for being deliberately indifferent to, once again, student-on-student sexual harassment occurring at school.  Both of these cases involved sexual harassment that occurred at school and both involved jury orders.  Common citizens could clearly see that the schools in these cases were irresponsible, indifferent, and should have done more to protect students.  Interestingly, the facts of the Theno case are very similar to the Patterson case, especially with respect to the names that the target was being called.

If we have learned anything from all of these cases, it is that this is a legal area that is far from clear.  What do you think?  Were staff members at the Hudson Area School District indifferent to the harassment?

I have recently been chatting with Dr. Linda Young – whose work I greatly respect – about the topic of “humor limits.” In our trainings to youth-serving professionals, Justin and I discuss how teaching adolescents when comments made cross over a line and no longer are “funny” but are “abusive” and harmful. For example, the term “food baby” is currently used among teenagers to reference their slightly enlarged or bloated stomach after eating way too much. This is generally funny when a person points out their own food baby to others, but can cross a line and be intepreted as mean-spirited, embarrassing, or otherwise rude when a person points it out in someone else who may be self-conscious about their weight.

Additionally, many things are described by youth as “retarded” or “gay” – a practice which we do not condone in the slightest. While we wish that adolescents would not use these terms at all, those who do should be very careful as it may offend one or more persons in their social audience. Those words can easily exceed a standard of acceptability in conversations, and be perceived as prejudicial, hateful, and harassing.

Due to the anonymity, pseudonymity, and freedom that online communication allows as compared to face-to-face interactions, humor limits are easily crossed – and many statements made on Facebook walls and comment threads in an attempt to be sarcastic or humorous end up inflicting harm. This can at times be considered cyberbullying, and often leads to hurt feelings and broken friendships. We would do well to share various examples of this phenomenon with kids – and discuss them in detail – so that they more readily think about their audience and how their words might be interpreted before posting or sending potentially inflammatory content.

A colleague of mine recently posed the following questions after listening to my recent interview on Wisconsin Public Radio:

Q:  If a student were bullying someone & claimed they had the right of freedom of speech to say whatever they want, how would you respond?

Q:  If a public official felt they were being bullied & threatened by constituents who claimed right of freedom of speech to say what they wanted, what would you say?

I thought others might be interested in my perspective, so I post my response here. Freedom of speech is an important issue and it is vital that we protect that freedom.  We have the right to say a lot of things in the United States.  But we don’t have the right to threaten, harass, intimidate, or otherwise mistreat someone.  Moreover, even though the Supreme Court famously said that students ‘do not shed their free speech rights at the schoolhouse gate’ (Tinker v. Des Moines, 1969), they also said that the rules are different at schools for educators who have a responsibility to maintain an appropriate and safe learning environment at school (see, for example, Bethel School Dist. v. Fraser, 1986).  So it is easier to restrict student speech at school than student speech away from school.  Of course this creates many problems from a cyberbullying standpoint to the extent that much cyberbullying occurs away from school, but clearly could significantly affect the school.  There are many legal questions that remain unanswered or have been answered differently depending on various lower court rulings.

As you probably know, for many purposes, teachers are considered public officials.  But the key to your second question is the nature of the speech.  Again, Americans have the right to criticize public officials (including students criticizing teachers).  They simply must do so in a responsible and respectful manner.  From a school perspective, if a student criticizes a teacher in a manner that results in a material and substantial disruption at school, then the school has the authority to formally discipline (they always have the right to informally discipline—calling parents, meeting with principal, etc.).  So a student is free to post on his Facebook page that ‘Mr. Smith is a bad teacher.’  But if he does so in a way that is disruptive at school, discipline could result.  Of course irrespective of the ability of the school to intervene, the target of the criticism could sue the bully civilly for harassment or intentional infliction of emotional distress or libel or something else if he chooses.  It is unclear how a judge would respond to this – I imagine it could vary widely depending on a lot of circumstances.

It is not completely clear how these broad principles would apply to a student criticizing (bullying?) another student.  It’s even muddier in the context of cyberbullying.  The same disruption standard would generally apply—at least for a school to discipline the bully, but I’m not aware of any case law that has addressed this question specifically.

So the bottom line is schools are different and treated as such by the law.  That doesn’t mean that everything is cut and dried, though.  What do you think?  Should educators be able to discipline students for their harassing speech at school?  What about away from school?

A federal jury recently ordered the Hudson Area School District (Michigan) to pay $800,000 in damages to a student who endured years of emotional, physical, and sexual bullying.  Dane Patterson was in middle school when the bullying began as simple name calling and verbal harassment.  It escalated in high school and included being pushed into lockers and at least one incident in 10th grade where he was sexually harassed – which involved “a naked student rubbing against him” in a locker room.

Most states require their schools to have an anti-bullying policy, and Hudson Schools did.  On some occasions when bullying was reported to the school and the perpetrators could be identified, they were punished.  In other cases teachers who witnessed bullying or who were made aware of it failed to follow through with involving school administration.  And according to court records, in one case a geography teacher actually contributed to the problem by making fun of Patterson in front of the entire class by saying: “How does it feel to be hit by a girl?” after he was slapped by a female student when he attempted to stop her from bullying a classmate.  This is almost unbelievable.

This case is a clear message to schools that inaction, or even a simple unwise reaction, is not enough when it comes to dealing with bullies.  Districts need to be proactive in preventing bullying from getting out of control.  It is one thing to have a policy in place prohibiting bullying.  It is so much important for schools to actively enforce it and take additional steps to foster a positive climate in which bullying of all kinds is not tolerated (by staff or students).  Staff need to educate students about appropriate behaviors and take action (informal or formal) against bullies.  Adults who argue that bullying is a normal part of growing up (“kids will be kids”) are contributing to the problem. Students, too, have a role when they see bullying occurring.  Standing by and watching it occur without doing anything is also contributing to a culture where bullying is considered normative behavior and therefore passively condoned and tolerated.  If you are a student and see someone being bullied, please tell an adult in the school that you trust will take appropriate actions (without making things worse for you or the target).  Together, students and staff can work together to create and maintain a positive learning environment free from harassment and abuse.

An interesting controversy has emerged in the last couple of weeks over the word “meep.”  What does meep even mean?  Frankly, it doesn’t really matter.  In fact there are numerous and varied definitions of, and uses for, the word meep.  The most frequent use among adolescents, it seems, is to replace an inappropriate word with meep, as in “What the meep!?!”

So the recent controversy emerged when students at Danvers High School in Massachusetts threatened to disrupt the school environment by muttering, yelling, and collectively spewing the word meep during class time.  Danvers Principal Thomas Murray was tipped off about the planned disruption and preemptively threatened to suspend students who spoke the word or showed up to school with the word printed on clothing.  This, of course, incited folks from around the country to contact Mr. Murray to express their dissatisfaction with this seemingly ludicrous policy.  To be sure, the courts have ruled that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”  That said, school officials do have the right to restrict speech and/or discipline students for speech or behavior that results in (or has a high likelihood of resulting in) a substantial and material disruption of the learning environment.  In this case, I think it is clear that the students involved were in fact planning a substantial disruption.  So, it doesn’t matter that the speech involved wasn’t really even a real word.

When I was in middle school, my classmates and I started humming in English class.  The teacher was getting pretty upset by this and was walking around the classroom trying to identify the offending party.  When he went to one side of the classroom, students in the other side would start humming.  When he moved to the other side, the other students stepped up and continued the humming.  Clearly, the act of humming is not obscene or otherwise generally subject to discipline in any environment outside of the school.  But at school, if it causes or threatens to cause a substantial disruption, it can (and should be) stopped.  In our case, the teacher refused to administer our planned quiz until the humming stopped.  It didn’t, so we all failed the quiz.  To this day I have a hard time identifying prepositions!

This is an important case because as much as I agree with everyone that restricting the use of a nonsensical word is in itself nonsensical, it is necessary that school administrators have the ability to maintain an appropriate, civil, and safe learning environment at school.  Educators need the support of parents and other community members when they take actions to ensure an appropriate school climate.  This is especially true since many forms of relational aggression, including cyberbullying, are often more subtle and therefore may not be automatically identifiable as something warranting intervention.   At the same time, they also need to be held accountable when their policies or practices cross the line of being overly restrictive.  In the case of meep, from what I have seen, I think they were being reasonable in their efforts to prevent a disruption from occurring.  What do you think?  Is Principal Murray going too far with this?