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Much of our work to teach adults about what teens are doing online is directed toward educators or parents, but increasingly we are working with law enforcement officers – especially those assigned to a school setting (school resource or liaison officers). Like the others, police officers often find themselves in a difficult situation when confronted with a cyberbullying incident because of unfamiliarity with the technology or ambiguity in currently laws not designed to address such behaviors. Despite deficiencies in the law, most officers recognize that their role goes beyond simply enforcement. This is especially true for school-based officers who are mentors, educators, investigators, first responders, and so much more. Even when it comes to responding to cyberbullying or other teen technology misuse, law enforcement officers should be encouraged to use their discretion to “handle” the particular situation in an informal and creative way, when appropriate. Threats of arrest or detention don’t usually deter students from misbehaving, because they often feel invincible or able to elude the law. But the student who develops a strong bond to an officer will no doubt follow the law voluntarily in order to avoid disappointing their mentor. This is related to the broader issue of the importance of developing a caring and respectful climate at school—one in which the school law enforcement officer is a contributing part.

Over the last couple of years, we have formally surveyed approximately 1,000 law enforcement officers (including over 300 school resource officers) to better understand their unique perspectives concerning cyberbullying and other online behavioral problems. I will be presenting some of this research at the annual meeting of the Midwestern Criminal Justice Association later this week in Chicago. In general, over 85% of the officers surveyed said that cyberbullying was a serious concern that warrants the response of law enforcement. Almost 90% of the school resource officers had dealt with a cyberbullying case “sometimes” or “often.” Interestingly, though, about 25% of the school resource officers and over 40% of the traditional law enforcement officers didn’t know if their state had a law specific to cyberbullying. If you are one of those people, see our summary here.

So what we have learned in our preliminary research and discussions with law enforcement officers is that they realize they have a role to play, but they need more training. More and more states are passing laws on bullying and cyberbullying and while most of the legislation focuses on the responsibilities of educators, many school administrators are turning to their law enforcement partner for assistance. If you are a school-based officer, then you are in the right place to learn about these issues. If you are an educator or parent, you might want to pass our site on to them so they have a resource to turn to.

If we want to stop cyberbullying, all of the adults who interact with students need to recognize it as something worth stopping. That means we should talk with adolescents about online responsibility and integrity and intervene when we see or hear something inappropriate. Again, that doesn’t mean we should arrest and formally sanction those who engage in bullying. We have long argued that most cyberbullying cases should be handled informally. I believe that law enforcement officers should be in on these efforts as well. We need to remember that the primary goal is to get the bullying, no matter where it is happening, to stop. The more we accept that as our underlying mission, the easier it will become to see what needs to be done.

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.

Do students have an expectation of privacy on their cell phones while at school? The short answer to this is a qualified yes. Whether educators have the authority to search the contents of student cell phones depends on a lot of factors. The key issue in this analysis (that we have raised before on this blog) is the standard of reasonableness. According to New Jersey v. T.L.O (1985) students are protected by the Fourth Amendment to the U.S. Constitution which protects citizens against unreasonable searches and seizures. In T.L.O., the Supreme Court goes on to say that the standard that law enforcement officers must reach to conduct a search (probable cause that a crime has been committed), is not required of educators. In general, the standard applied to school officials is whether the search is “justified at its inception and reasonable in scope.” Of course there is a bit of subjectivity to this standard and what appears to be reasonable for one person may not be for another. In T.L.O., the Court ruled that for a search of student property to be justified, there must exist: “reasonable grounds for believing that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school.” This seems to be the standard by which schools should determine whether a search of a student cell phone is allowable.

There are a couple of cases which have been decided that shed some light on how this particular standard would apply to the search of student cell phones. The case most often cited is Klump v. Nazareth Area School District (2006). In this case, a teacher confiscated a student’s cell phone because it was visible during class – which was in violation of school policy (it accidentally fell out of the student’s pocket). The teacher and assistant principal then searched through the cell phone’s number directory and attempted to call nine other Nazareth students to determine if they too were in violation of the policy. They also accessed text and voice mail messages and communicated with the student’s brother without indicating to him that they were school staff.

The Court agreed that the school was justified in seizing the phone, but should not have used the phone to “catch other students’ violations.” In summary, the U.S. District Court in Klump concluded: “Although the meaning of ‘unreasonable searches and seizures’ is different in the school context than elsewhere, it is nonetheless evident that there must be some basis for initiating a search. A reasonable person could not believe otherwise.”

In November 2010, a Mississippi federal court identified no Fourth Amendment violation when a teacher seized, and administrators reviewed, photos and text messages in a cell phone confiscated from a boy who used it in violation of a schoolwide ban (J.W. v. Desoto County School District, 2010). Of course, the seizure was allowed because the school had a policy prohibiting the possession or use of cell phones at school. The issue in this case was the legitimacy of the search of the phone’s contents, which included incriminating pictures of the student wearing what appeared to be gang clothing.

The court ruled that the school was justified in searching the cell phone: “Upon witnessing a student improperly using a cell phone at school, it strikes this court as being reasonable for a school official to seek to determine to what end the student was improperly using that phone. For example, it may well be the case that the student was engaged in some form of cheating, such as by viewing information improperly stored in the cell phone. It is also true that a student using his cell phone at school may reasonably be suspected of communicating with another student who would also be subject to disciplinary action for improper cell phone usage” (J.W. v. Desoto County School District, 2010).

I personally believe that the Mississippi court got this case wrong. Searching the student’s phone will not yield any additional evidence that he is in violation of the school’s policy prohibiting possession of the phone at school. Seeing the phone in school already sufficiently established that point. The court argues that “…a student’s decision to violate school rules by bringing contraband on campus and using that contraband within view of teachers appropriately results in a diminished privacy expectation in that contraband.” Clearly the court in Klump did not agree with this reasoning as the court sided with the student. And while New Jersey v. T.L.O. established a different search and seizure standard for educators, the Supreme Court did not in this case suggest that any policy violation whatsoever negated any expectation of privacy a student previously held. The court in J.W. seems to suggest that if a student chooses to deliberately violate a school policy, that student should also be willing to shed any other constitutional protections with respect to the contraband. It should be noted, though, that the Mississippi court did attempt to distinguish the facts of J.W. from Klump by saying J.W. intentionally violated school policy whereas Klump accidentally violated the policy. I’m unconvinced that this should be a salient factor. Does it really matter that much if a policy is accidentally or intentionally violated? Given the many apparent contradictions between Klump and J.W. (and other student cell phone search cases), I would love to see the U.S. Supreme Court review this issue to provide much needed clarity to educators and school law enforcement officers.

At both ends of the continuum of circumstances, the law is fairly clear. For example, if a reputable student advises a staff member that another student has the answers to the math exam on his mobile device, this would almost certainly allow for a search by an administrator. At the other extreme, conducting a search of a cell phone that was confiscated because it was ringing in a student’s backpack would likely not be allowed. Of course, there is quite a bit of gray ground in between to cover.

With all of this said, schools would be wise to include a specific statement in their policies that regulate student-owned devices brought to school. The policy should advise everyone that students who bring their own devices to school are subject to a reasonable search if suspicion arises that the device contains evidence of a violation of school policy or the law. Students, staff, parents, and law enforcement officers working in the schools need to be aware of this policy so that no one is surprised if/when certain actions are taken.

What do you think? Given your knowledge of current law, are educators allowed to search student cell phones simply when they are possessed (with the possession being the sole school policy violation)? Or, should they be allowed to search student cell phones only if they can articulate that they reasonably believe that evidence on the phone will reveal another policy violation? Do you believe the laws need to be changed in this area? Increasing numbers of schools are opening their doors and classrooms to cell phones and other mobile devices. As such, it is imperative that clarity is established in this area of case law and policy.

Our state-by-state bullying and cyberbullying laws fact sheet is one of the top-most documents downloaded from our site; we encourage you to check it out if you haven’t already. That said, it is also a fluid resource that we are constantly updating. Some recent questions have been posed, and so I wanted to take the opportunity to clarify some of its content. If you have further questions, please keep sending them in, as we want this resource to be extremely helpful to those on the front lines of this issue.

Question: “A significantly larger number of states passed bullying laws that include electronic harassment but not cyberbullying. Could you clarify why electronic harassment is not included under “cyberbullying”? What are the technical differences between the two?”

Answer: There is very little, if any, difference between “electronic harassment” and “cyberbullying.” We can only think of a few exceptions to this (for example one instance of harassment online might not be considered cyberbullying because we usually conceptualize ‘bullying’ as repetitive behavior). All we were trying to capture was whether or not the laws included the word ‘cyberbullying’ in them. As you can see, most did not. Either way, electronic harassment and cyberbullying are essentially synonymous when it comes to the content and intent of these laws.

Question: “Do those states that specify criminal sanctions criminalize only face-to-face bullying or cyberbullying as well?”

Answer: Under the criminal sanction portion of our chart, we only noted ‘YES’ for those states that have a criminal sanction for certain types of *electronic* harassment (or cyberbullying). We did not include states that just have criminal sanctions for face-to-face bullying or harassment, which most states do have (but are typically classified under “assault” and “stalking” statutes).

Question: “In regard to the criminal law system’s authority over the issue of cyberbullying, in your professional opinion, should more laws be passed criminalizing cyberbullying? Beyond the principle of the law, are they effective in practice?”

Answer: Please see this recent blog post on cyberbullying laws which summarizes our position on this question. We have also posted other blogs that might be of interest to your work – feel free to search for ‘law’ in the blog search engine, or simply browse some of our recent posts.