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We have just updated one of our most popular resources. You can find our latest bullying law fact sheet here. As you can see, all but 2 states now have bullying laws in place or scheduled to take effect in 2012. Most of these (35) include language about electronic forms of bullying while still relatively few (10) use the term “cyberbullying.” Several states have proposals being discussed for new or updated laws.

Regular readers of this blog know that I am skeptical about the ability of new laws to (by themselves) change behavior. I was talking with a friend last week about cyberbullying and he thought that the solution to the problem was simply to pass strict laws that punish those who bully others. When confronted with an opportunity to bully, the logic goes, a youth will think twice because they will not want to be arrested and punished (fined or even incarcerated). This is a reasonable idea in theory, but the fact is that teens are unlikely to be deterred by the threat of formal punishment. Spend some time reading the deterrence research literature and you will see that formal deterrence just isn’t effective, especially for adolescents. Informal deterrence, however, has shown to be useful. That is, youth are reluctant to get involved in behavior that they feel their parents or good friends would disapprove of. They don’t want to be “punished” by those they care about. Plus, it is a lot more likely that friends or family members will find out about their inappropriate behaviors than the formal justice system. So the bottom line is that educators, parents, and others who work with teens need to consistently condemn all forms of harassment so that youth will pick up the message that bullying is just plain wrong.

All of this is not to say that I do not see value in bullying laws, assuming they are reasonable and implementable. As I have discussed often on this blog, laws should be prescriptive by telling school officials and others (parents, law enforcement, etc.) what they can and should be doing to prevent and respond to bullying. But they should also provide resources so that these mandates can be carried out effectively. (see my analysis of New Jersey’s recently-enacted law for more discussion of this). Passing a law that merely prohibits bullying, or that requires schools to have a policy prohibiting bullying, does little to stop the behaviors if resources (money, professional development, and technical assistance) are not also made available. This is especially true for school officials who are genuinely interested in curtailing the harassment that is impacting their students and school.

Back to the new fact sheet. We also added an additional column to our summary table on the first page which specifies whether the state statutes explicitly allow for the discipline of students for their bullying behaviors that occur off of school property or outside of a school sponsored event. We know that most cyberbullying does occur away from school, and as a result some educators have been reluctant to get involved. A few states have included language in their new statutes which clarifies the school’s responsibility and role when it comes to off-campus incidents (see especially, Connecticut, New Hampshire, and New Jersey for good examples).

It needs to be pointed out, however, that even without this language in the new laws, current case law certainly does allow schools to reasonably and appropriately discipline students for their off-campus behaviors (such as cyberbullying), if the behaviors result or have a likelihood of resulting in a substantial disruption of the learning environment at school. This is the exact language used in many of the new laws because this is the standard that was established in the landmark Supreme Court case Tinker v. Des Moines back in 1969. Subsequent Supreme Court and other federal court decisions have applied this standard to a variety of situations, including the online behaviors of students. The Third Circuit Court of Appeals recently reviewed two cases where students used web sites to denigrate their principals. Even though the court ultimately sided with the students in both cases—saying that their respective schools went too far in disciplining them—the opinion clearly defended the substantial disruption standard that has long governed the actions of educators when confronting problematic student behavior that occurs away from school. Judge Jordon noted in a concurring opinion that: “The issue is whether the Supreme Court’s decision in Tinker, can be applicable to off-campus speech. I believe it can, and no ruling coming out today is to the contrary.” You can read my full analysis of this decision here.

In summary, take the time to review your state’s bullying law and make sure it is useful to you whether you are an educator, parent, or other concerned citizen. Don’t wait until something bad happens to get educated. Upon reviewing your state’s law you may find that it is insufficient or unclear and now is the time to lobby (and educate) your elected officials. Also take the time to review your school policy concerning bullying and harassment. Is it consistent with the law and does it provide you with the tools you need to effectively prevent and respond to bullying? Does it explicitly cover cyberbullying or other forms of bullying that occur away from school? What does it say about those behaviors that occur away from school?

We will continue to update this fact sheet regularly as new laws are proposed and passed so feel free to bookmark the link (http://www.cyberbullying.us/Bullying_and_Cyberbullying_Laws.pdf) so that you always have the most recent version. And if you are aware of any new proposals or laws in your state that are not included in our fact sheet, please let us know.

New Jersey’s updated bullying law took effect today amid controversy and confusion.  The New York Times recently reported on the law and I have received numerous calls from folks interested in my take on certain provisions.  Bullying and cyberbullying legislation has been the topic of much discussion on this blog, and regular readers know that we see a place for evidence-based, fiscally supported state legislation that helps clarify school responsibilities and provides them with the tools to better manage bullying and cyberbullying incidents.  We haven’t seen the perfect law yet, and New Jersey’s iteration is not it either.

New Jersey’s law seems to focus much attention on accountability – not on holding the bully accountable, but making sure school officials take certain actions expeditiously.  There are a series of requirements in the law that designate a very tight timeline for school actions:

• Principal must investigate incidents within one school day of witnessing or receiving a report of bullying
• Investigation must be completed within ten school days
• Results of the investigation must be sent to superintendent within two school days of completion
• Results must be reported to the board of education at the next scheduled meeting
• Parents need to be informed of investigation within five school days of board notification
• Parents may request a hearing of the board, which must be held within 10 days

The impetus for providing a detailed paper-trail and strict timeline for dealing with each incident likely comes from parents or student targets who feel as though their reports of harassment have been ignored, but holding schools to such a firm schedule will prove challenging.  And depending on how each school interprets the definition of “bullying,” staff could quickly become mired in a bureaucracy and be forced to spend more time on paperwork than actually problem solving.

In fact, an interesting aspect of the language in this law is that it explicitly includes single incidents which traditionally would not have been considered bullying:  “‘Harassment, intimidation or bullying’ means any gesture, any written, verbal or physical act, or any electronic communication, whether it be a single incident or a series of incidents…”  Clearly it is important to address all forms of harassment, even one-time incidents, no matter how minor, but to require schools to formally document every single case could easily overwhelm them with paperwork.

The law follows the pattern of other recent state legislation (see our analysis of New Hampshire’s law) in adding language that incorporates off-campus behaviors that substantially disrupt the learning environment at school.  This seems to be one of the most controversial aspects of the law even though nothing has really changed with this.  For decades the standard has been that any behavior, whether on campus or off, that substantially or materially disrupts the learning environment at school is subject to the school’s authority.  This was originally articulated in Tinker v. Des Moines in 1969 and several subsequent Supreme Court cases have applied this precedent to numerous incidents where schools disciplined students for off-campus speech or behavior.  States have simply tried to codify this so that the standard is more widely understood.  This law does not require teachers to police the Internet, but it does insist that they respond when reports of cyberbullying that are disruptive to students at school are made.  Since most schools are already doing that, the only significant change is the amount of documentation that is required within a very short period of time.

In general, much of the provisions in the law are actually positive, and again most schools are already doing many of the elements included.  The major problem is that no money has been allocated to pull any of this together.  For example, each school needs to designate an “anti-bullying specialist” and each district needs to name a “bullying coordinator” (contact information for these folks must be listed on the school’s web page).  Since no resources have been provided to schools to hire actual specialists, these duties will no doubt fall on staff who may or may not have expertise in bullying prevention and response.  Moreover, schools are now required to provide training to staff and volunteers, but information is lacking regarding evidence-based training programs or curricular enhancements.  Therefore, many schools will be forced to create an ad-hoc program or pay for someone to provide programming that might not be effective or informed by research. These mandates are coming at time when schools in New Jersey and across the United States are laying off teachers and essential support staff left and right.  If New Jersey and other states really wanted to send a strong message that bullying prevention and response is a priority, then they would provide resources for schools to implement these policies and practices effectively.   Until then, the new law is only a bunch of words on paper.  Complete details of the law are available here.

Justin and I have been trying to figure out a way to help inform school administrators as to when they can go ahead and search the contents of student cell phones. Week after week after week, this is one of the primary questions we receive from them. We want to help guide them in a meaningful way without getting enmeshed in a large number of due process and consent issues. As such, I’d like to present this checklist as a flowchart of sorts to assist with the decision-making process whenever student cell phones are displayed and used in school environments where that display and use is prohibited. To note, this is a work-in-progress, and we would love to dialogue with you more about what is missing. As always, please consult your school district attorney before engaging in an action where you are unsure of the legal implications.

Cell Phone Search Checklist for School Administrators

Has the student consented to the search?

Yes or No (circle one)

If student will not consent, has the student’s parent consented?

Yes or No (circle one)

If no consent from student or parent, is it an emergency (an actual or imminent threat to public health or safety, which may result in loss of life, injury or property damage)?

Yes or No (circle one)

If no consent from student or parent, and no emergency is indicated, is it reasonable for you to believe a school policy violation has occurred and evidence that proves that violation is possibly on the device? Would you be able to articulate the reasoning before a court of law if necessary?

Yes or No (circle one)

Do you understand the scope of your cell phone search can go no further than the data locations (such as call logs, text records, photos) that specifically relate to the suspected policy violation?

Yes or No (circle one)

Have you spoken to other School District officials AND Legal Counsel to determine if it is to discuss the proposed search and surrounding
circumstances and ensure their appropriateness?

Yes or No (circle one)

Are you sure that this is not a law enforcement matter that then would require probable cause for a law enforcement officer to search the phone?

Yes or No (circle one)

Do you have an agreement with local law enforcement (including a stationed school resource officer at your school), that outlines a specific process, supported by state and federal search and seizure law, for conducting cell phone searches by police officers?

AT TIME OF INCIDENT:

Describe the circumstances under which the student’s cell phone was seized:

Describe the circumstances that you think give rise to a reasonable suspicion that the cell phone was used in violation of the law or a district policy:

—–

What do you, our readers, think – based on your own experiences? Our ultimate goal with this is to more concretly ensure that the school administration has thought things through, and have received informed input from legal counsel and law enforcement as needed.

As we have discussed several times on this blog in recent years, there are two cases that addressed issues with off-campus online speech by students that resulted in seemingly conflicting responses by the same court. They potentially have implications for how schools can respond to cyberbullying incidents, so are important to follow. To refresh your memory, Layshock v. Hermitage School District involved 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. In February of 2010, a panel of judges from the Third U.S. Circuit Court of Appeals weighed in and agreed. In this case it appeared the school failed to effectively argue that Layshock’s actions caused a substantial disruption at school – the standard that was established in the seminal Supreme Court case Tinker vs. Des Moines (1969). According to Tinker, 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.

In the other case (Blue Mountain School District v. J.S.), 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 Third U.S. Circuit Court of Appeals agreed with the lower court in an opinion that seemed inconsistent with the Layshock ruling.

To resolve these disparate views, the Third Circuit agreed to review the cases collectively (“en blanc”) to offer a perspective. In short, there is nothing too surprising about the remarks of the majority opinions released on Monday. The court re-asserted that schools cannot punish students for off-campus behavior or speech without evidence of a substantial disruption at school (or a high likelihood that such a disruption will occur).

In the Layshock case, the school district conceded that the creation of the MySpace parody profile did not cause a disruption at school. So it is clearly outside the boundaries of formal school discipline. The court also listed several cases where schools were allowed to discipline students for the off-campus behavior (J.S. v. Bethlehem Area Sch. Dist., 807 A.2d 847 (Pa. 2002); Wisniewski v. Bd. of Educ. of Weedsport Cent. Sch. Dist., 494 F.3d 34 (2d Cir. 2007); and Doninger v. Niehoff, 527 F.3d 41 (2d Cir. 2008), noting that “each of those cases involved off campus expressive conduct that resulted in a substantial disruption of the school, and the courts allowed the schools to respond to the substantial disruption that the student’s out of school conduct caused.”

In the other case, the Bethlehem Area School District did initially attempt to argue that J.S.’s activities resulted in a significant disruption at school, though neither the District Court nor the Third Circuit Court of Appeals accepted that argument so they backed off. In the original hearing, the District Court supported the disciplinary actions of the school, not because there was evidence of a substantial disruption, but because the content of the off-campus speech was “vulgar, lewd, and potentially illegal.” This was consistent with Supreme Court decisions in Fraser (1986) and Morse (2007). In its review, however, the Third Circuit noted that in both of these cases, the speech was delivered at school (Fraser) or a school sponsored activity (Morse). As such, the vulgarity of the speech was irrelevant and therefore the singular issue is to consider is whether the off-campus speech resulted in a substantial disruption. Therefore, in a divided opinion (8-6) the Third Circuit overturned the District Court, concluding that: “…the school district violated J.S.’s First Amendment free speech rights when it suspended her for speech that caused no substantial disruption in school and that could not reasonably have led school officials to forecast substantial disruption in school.”

Judge Jordon noted in a concurring opinion, however, that: “The issue is whether the Supreme Court’s decision in Tinker, can be applicable to off-campus speech. I believe it can, and no ruling coming out today is to the contrary.” So students can be punished for off-campus speech or behavior (consistent with Tinker’s disruption clause).

So where does this leave us. Well, the key issue to keep in mind, it seems, is whether a student’s off-campus speech or behavior results, or has a high likelihood of resulting in, a substantial disruption at school. We have little additional clarity regarding what that actually looks like, but we know a bit more about what it isn’t. Staff accessing a harassing profile at school does not constitute a substantial disruption. A student bringing a printed copy of a Web site to school at the request of staff does not cause a substantial disruption. A few students talking in class does not equal substantial disruption.

It also appears that vulgarities directed toward school officials from an off-campus location are not automatically subject to school discipline. Now, if that speech substantially and/or materially disrupts the learning at school, it may be fair game for sanction. It is interesting that free speech advocates are touting this as a victory for students, suggesting these opinions are evidence that there are no conditions under which schools can discipline students for their off-campus speech. This is clearly an incorrect interpretation of the facts. We have long known that students have free speech rights. We also know that those rights are constrained a bit while at school and where the speech substantially disrupts the school environment. That hasn’t changed.

It is important to also point out that both of these cases involved students who were targeting staff. I would be very interested to see if the opinions changed if all players involved were students. If a student creates a Facebook parody profile about another student, could the target’s ability to learn at school be substantially disrupted? It sure seems so. But it remains to be seen whether the higher courts would agree with this rationale.

I encourage you all to read the full versions of the opinions (over 100 pages in total). Layshock is available here and Blue Mountain is here. And feel free to weigh in with your thoughts.

On Thursday March 10, 2011, the White House convened a conference to address the issue of bullying. First Lady Michelle and President Obama welcomed parents, students, researchers, industry leaders and others to discuss the negative effects of bullying and highlight some of the best-practices and promising approaches in prevention and response. I was honored to be invited to be a part of an expert panel to share with attendees what we have learned through our efforts at the Cyberbullying Research Center. You can see video of the proceedings and my contributions here.

Other researchers on the panel were Sue Swearer (University of Nebraska at Lincoln), Catherine Bradshaw (Johns Hopkins), and George Sugai (University of Connecticut). We spoke about noteworthy efforts to address bullying in general, and I focused on the unique characteristics and strategies associated with cyberbullying. Additionally, Sameer and I – along with these and other researchers – wrote topic-specific white papers for the conference. All of these documents can be found here.

Overall, it was a great experience. I enjoyed being at the White House and seeing many friends and colleagues from around the country who are as passionate as I am about addressing the problem of bullying and peer harassment. A lot of great ideas were shared, and I am hopeful that attendees will continue to work together to develop and implement comprehensive anti-bullying initiatives.

I was also reassured by the number of laypersons in attendance who identified needing additional research as essential. Especially needed are more systematic evaluations of bullying policies, programs, and curricula. If nothing else, I am hopeful that this event raised national and even international awareness about a problem that some still dismiss as lacking import. Try telling that to Tina Meier, Sirdeaner Walker, Kevin Epling, or Kirk and Laura Smalley, all of whom were at the White House because they had lost a child to suicide linked to bullying. We continue to have so much work to do, but I remain encouraged and undaunted.