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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?

It is imperative that everyone who works with youth, but especially law enforcement officers, stay up-to-date on the ever-evolving state and local laws concerning online behaviors, and equip themselves with the skills and knowledge to intervene as necessary. In recent survey of approximately 500 school resource officers from around the United States, we found that almost one-quarter of respondents did not know if their state had a cyberbullying law. This is surprising since their most visible responsibility involves responding to actions which are in violation of law (e.g., harassment, threats, stalking).

A couple of weeks ago, we posted a brief summary of the state laws concerning bullying and cyberbullying. At last count, 44 states had laws regarding bullying, and 30 of those included some mention of electronic forms of harassment. Almost all of these laws simply direct school districts to have a bullying and harassment policy, though few delineate the actual content of such policies. Please review this document and let us know if anything is inaccurate as we want to try to keep it as up-to-date as possible.

Some states, like Wisconsin, have both a bullying law (which recently passed) and separate statutes regulating telephones and other forms of electronic communication. Specifically, in Wisconsin it is a misdemeanor crime to threaten to “inflict injury or personal harm” through the use of e-mail or another computerized communication system. It is also illegal to harass, annoy, or otherwise offend another person electronically. Each state is different with respect to the extent that they specifically address electronic forms of harassment. Educators, parents, and  law enforcement officers need to be sure to carefully review and understand the statutes in their own state to understand the formal legal implications of participating in cyberbullying.

Blue Mountain School District v. J.S. and Layshock v. Hermitage School District. These are two cases that we have discussed quite frequently on this blog.  We have been waiting a long time to receive clarification from a high court regarding the circumstances under which schools can discipline students for their off-campus online speech and we thought these two cases would provide that guidance.  As we’ve noted before, the default standard has generally been that school administrators can discipline students for off-campus behavior if it can be demonstrated that such behavior resulted in a “substantial and material disruption” of the school environment (Tinker vs. Des Moines, 1969).  One problem is this issue has never really been addressed in the digital age.  Another problem is, what constitutes a disruption of a ’substantial’ caliber is clearly in the eyes of the beholder.

Take the example of Justin Layshock, the 17-year-old Hickory High School senior who in 2005 created a “nonthreatening, non‐obscene parody profile making fun of the school principal” from his grandmother’s home using her computer.  The school suspended Layshock for 10 days, which was initially upheld in a 2006 hearing, but later overturned by the judge in the case, saying the school went too far.  Last February, a panel of judges from the 3rd U.S. Circuit Court of Appeals weighed in and agreed.  In this specific case it appeared the school failed to effectively argue that Layshock’s actions caused a substantial disruption at school.

In the related case, a 14-year-old eighth-grade student from Blue Mountain Middle School also created a MySpace profile of the principal which included, among other things, an accusation that he was a “sex-obsessed pedophile.”  This student was also suspended for 10 days for violating the school’s discipline code and for using the schools copyrighted material (the principal’s picture from the school’s web site) without permission. The lower court refused to grant the student a temporary restraining order or preliminary injunction ruling that schools can in fact discipline students for lewd off-campus behavior, even if such behavior doesn’t cause a substantial disruption.  Another, separate panel from the 3rd U.S. Circuit Court of Appeals agreed with the lower court in an opinion that seemed inconsistent with the Layshock ruling.

In an effort to resolve these two conflicting perspectives, the 3rd U.S. Circuit Court of Appeals is now revisiting both cases, by employing a 15-judge panel instead of the original separate smaller panels.  Oral arguments started today and we’ll be sure to update this post when a decision is reached.  What do you think the judges will decide?  At what point can schools take action?  At what point must they take action?

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?

It is not often that students are charged in criminal court for their participation in bullying.  But that is what happened this week.  As has been well-publicized, 15-year-old Phoebe Prince of South Hadley, Massachusetts, committed suicide in January after experiencing extreme levels of bullying from her classmates.  After conducting a thorough investigation, District Attorney Elizabeth Scheibel announced that nine teens who were implicated in the bullying have now been charged with various crimes, including: violation of civil rights, criminal harassment, and disturbing a school assembly.  Two male students have also been charged with statutory rape.  We will closely follow this case through the courts as it represents an extreme response to an extreme incident, and may well serve as precedent for future cases.

No matter how you view this case, it is tragic.  A 15-year-old girl took her own life after what appears to be relentless emotional and psychological bullying from her peers.  Unfortunately “bullicide,” as it has been termed, is not altogether uncommon.  Many parents experience a horrific void for the rest of their lives after losing a child to suicide stemming directly or indirectly from experiences with bullying.  Adults who dismiss bullying as simple “kids will be kids” behavior or a “rite of passage” should pay close attention to these worst case scenarios.  I have been asked many times by naïve adults over the years: “What’s the big deal, it is only text?”  I simply tell them to ask John Halligan or Mark Neblett or Debbie Johnston or now Anne O’Brien Prince, or any one of the other parents who have had children take their own lives as a result of bullying.  It can take an unimaginable toll on the loved ones left behind.

While the bullying actions of the teens involved are reprehensible, I am interested in where the adults were during all of this and what their response was.  I am especially interested in learning more about what the school (teachers and administrators) knew.  There is conflicting information in the media reports about whether administrators knew about the bullying, and the specific actions that were taken.  The law is clear that if it can be shown that schools are ‘deliberately indifferent’ to harassment, they could be found liable for damages.  Burying one’s head in the proverbial sand and pretending that bullying isn’t occurring is not a legitimate response.  Not morally, and not legally.

If parents, teachers, and administrators would have identified and responded to the bullying of Phoebe Prince in a meaningful way, the loss of life may not have occurred.  If you are an educator or a parent, don’t think that your students and children are safe just because bullying is not a major, visible problem in your school.  Be proactive about educating youth regarding appropriate behaviors and empower them to let you know about any actions or interactions that may compromise the safe and secure environment that should be in place on campus. Teens are reluctant to tell adults about their bullying experiences because they are afraid it will only make the situation.  Parents and educators need to present a clear and unified front against all forms of bullying, and let would-be bullies know that disciplinary action will be taken.  While I am not convinced that criminal action is the most appropriate course to take in all cases, it certainly sends a strong message to teachers, parents, and students.