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I was a guest on the New Hampshire Public Radio show “Word of Mouth” with Virginia Prescott this morning where I talked about the proposed Megan Meier Cyberbullying Prevention Act.  You can listen to the brief interview here.  They were gracious enough to send me some potential questions a couple of hours before the interview so I knew what to expect.  Here is a short summary of my responses (even though some of these questions were not ultimately asked):

LORI DREW, THE ADULT DEFENDANT IN THIS CASE, WAS FOUND GUILTY OF VIOLATING MYSPACE’S TERMS-OF-SERVICE… AND ALSO THE “FEDERAL COMPUTER FRAUD AND ABUSE ACT” – ESSENTIALLY AN ANTI-HACKING LAW.  SINCE THERE ARE NO FEDERAL LAWS AGAINST CYBERBULLYING, HOW DO STATES CURRENTLY APPROACH THE ISSUE?

Most states have simply directed school districts to deal with the problem.  They have passed legislation recommending or requiring local school districts to update their harassment and bullying policies to include electronic variants. Unfortunately they have stopped short of providing concrete information regarding when and how schools can respond.  For example, it’s pretty clear that students who use school owned equipment or technology (such as email addresses), or who are on campus when they cyberbully are subject to school discipline.  But what about students who engage in cyberbullying using their own computers on their own time in their bedroom at home?  Does the school have a responsibility or right to discipline the bully in this case?  This is unclear, though there is some existing case law to suggest that if the cyberbullying results in a “substantial disruption” at school that it is then subject to school discipline.  But what exactly is a substantial disruption?  If you are cyberbullying me, Virginia, away from school but we are in the same class at school, clearly my ability to learn is being substantially disrupted.  Nevertheless, I’m not sure this would meet the standard.  These issues need to be clarified.

SINCE MANY OF THESE LAWS ARE LIMITED TO ONLINE HARASSMENT THAT TAKES PLACE ON SCHOOL GROUNDS, WHAT HAPPENS WHEN KIDS GO HOME AND USE THEIR LAPTOPS OR CELL PHONES?

That is one of the biggest problems.  Most cyberbullying incidents are initiated or escalated away from school.  Clearly parents have a major role to play in preventing and responding to these behaviors.  Nevertheless, I still feel that schools can be involved as well—at least informally (though parent/principal conferences, education, etc).  And in certain circumstances, like when the behaviors do result in a substantial disruption at school, more formal discipline may be allowed.

ARE THERE ANY STATES WHERE A SCHOOL DISTRICT CAN TAKE ACTION AGAINST AN ADULT?

I am not aware of any state where schools can take action against adults for cyberbullying.  I assume you are referring to a situation where a parent would be somehow disciplined for the actions of their child—again, I am not aware of any such law.  And I don’t know of any situation where a school could take action against an adult in a case like the Lori Drew cyberbullying incident.

GETTING BACK TO THE PIECE OF LEGISLATION THAT’S ON THE TABLE, CONGRESSWOMAN LINDA SANCHEZ HAS PROPOSED A BILL WOULD MAKE IT A FELONY TO “INTIMIDATE OR HARASS SOMEONE USING ELECTRONIC MEANS… AS PART OF A PATTERN OF REPEATED AND HOSTILE BEHAVIOR.”  WHAT EXACTLY DOES THIS MEAN?

This is the big question—what exactly does that mean?  One of the problems with the proposal is that it can be interpreted in many different ways by many different people.  This is something we have been wrestling with for years: how to come up with a sufficient, concise, and clear definition of cyberbullying.  Due to the nature of the behaviors, any comprehensive definition of cyberbullying risks being too broad.  And lawyers and judges don’t like broad laws.  In spirit, I like the proposed bill.  I’m glad that there is a national discussion about cyberbullying.  Unfortunately, I just don’t think it will hold up in court.

THIS BILL WAS ORIGINALLY INTRODUCED IN MAY 2008, BUT IT DIED IN COMMITTEE.  NOW THE BILL HAS SEVENTEEN CO-SPONSORS.  WHY DO YOU THINK MORE MEMBERS OF CONGRESS ARE SUPPORTING IT THIS TIME AROUND?

I think there have been several high profile cases of cyberbullying over the last year and more and more people are as a result beginning to recognize its harmful nature.  Again, this is a good thing.  Even if this proposal isn’t successful, I am glad to see that we are moving in the direction of identifying cyberbullying as something society would like to prevent and condemn.

ON HIS BLOG, UCLA PROFESSOR OF LAW EUGENE VOLOKH ARGUES THAT THIS BILL IS TOO BROAD TO BE CONSTITUTIONAL.  HE SAYS IT COULD BE USED AGAINST ANYONE WHO SENDS ANGRY EMAILS TO A POLITICIAN OR STARTS A BLOG THAT REPEATEDLY CRITICIZES A COMPANY.  COULD THIS BILL LIMIT FREE SPEECH?

That is the biggest concern.  We always have to balance free speech with responsible speech.  We also have to remember that while students at school don’t “leave their free speech rights at the school house gate,” the rules are different.  Schools have a role to play in teaching students appropriate means of discourse and communication.  They can limit speech that is threatening, offensive, or counter to their educational mission at school.  And once again, if that speech occurs away from school but results in a substantial disruption at school, the school has the authority to respond.

CONGRESSWOMAN SANCHEZ DEFENDED HER BILL ON THE HUFFINGTON POST LAST WEEK.  SHE WROTE, “WHEN SO-CALLED FREE SPEECH LEADS TO BULLIES HAVING FREE-REIGN TO THREATEN KIDS, IT’S TIME TO ACT.”  JUSTIN, YOUR BLOG FOCUSES ON THE CAUSES AND CONSEQUENCES OF ONLINE HARASSMENT.  DO YOU AGREE THAT IT’S TIME FOR ACTION?

Yes, I agree that it is time for action.  I agree 100% with what congresswoman is saying, I’m just unsure that this particular bill will be the best means toward that end.  I talk to victims of cyberbullying all of the time.  I have spoken to Tina Meier, I know what cyberbullying has done to her life.  We need to take action.  In my view, however, most of the action needs to be at the local level—parents, schools, and other local community members need to get involved in preventing and responding to cyberbullying.  Only in rare cases will cyberbullying rise to the level where criminal intervention is necessary.  And in most cases there already exists sufficient laws to prosecute based on these circumstances (harassment or stalking laws, for example).  I would hate to see a 15-year-old get sent to jail for 2 years for engaging in typical cyberbullying.

WHAT WOULD A GOOD PIECE CYBERBULLYING LEGISLATION LOOK LIKE, IN YOUR OPINION?

I good piece of legislation would clearly define cyberbullying in a way that is clear, concise, and comprehensive.  Again, this is a big challenge, but this definition should be based on the growing body of evidence emerging from cyberbullying research.  I would like the legislation to clearly spell out the circumstances under which schools can get involved in cyberbullying cases—especially when they occur away from school.  Good legislation would require schools to educate students about the responsible use of technology—and provide funding for that purpose.  Whose responsibility is it to teach kids to use computers and cell phones responsibly?  Again, parents have a role, but often-times their kids know more about the technology than they do.  Since schools are often providing access to computers and/or requiring students to utilize technology to complete school work, they have a responsibility as well to teach youth to use it responsibly.

BOTH CHILDREN AND ADULTS COULD BE PROSECUTED UNDER THIS BILL.  IF IT DOES BECOME LAW, WOULD THE THREAT OF BEING SENT TO JAIL DETER KIDS FROM HARASSING EACH OTHER ONLINE?

It is unlikely that children (or adults for that matter) would be deterred from engaging in cyberbullying because of this law.  In order to act as a deterrent, a punishment needs to be certain, swift, and sufficiently severe.  While our criminal justice system has been very good at ratcheting up the severity of punishments, there is very little certainty or swiftness of punishment in our system.  It is more likely that students will be deterred by the potential disapproval of parents or peers than any formal criminal justice sanction.  As such, we need to create a culture where all forms of harassment are viewed by society as taboo.

This article from British Columbia refers to a high school principal who bought a cell phone signal jammer from an online dealer in China in order to thwart students from using their phones at school in violation of district policy.  First off, hats off to the resourcefulness of the principal in this situation – even though what he did was later deemed unlawful.  He was probably fed up with abuse and misuse of cell phones on his campus, and his decision may have been prompted by cases that severely compromised the learning environment he was trying to create.  It’s disheartening, though, that it came to this – that educational efforts, deterrent strategies, formal policies in place, and vigilant monitoring and sanctioning did not decrease the problem enough.  I’m not sure of the extent to which they were implemented.  Students are going to use cell phones at school if there is not a complete prohibition against it (and likely even still unless the accompanying penalties are heavy).  Secondly, maybe we can reduce the amount of texting students do between each other during the school day.  That said, we’re finding that parents are often contributing to the problem.  Parents are so used to reaching their children easily and quickly through cell phones.  This convenience is extremely valued, and even if you request them to relay messages through the school front office, it probably is not going to happen.  This is further reason why parents should perhaps formally agree to a policy at the beginning of the school year detailing the penalties their child will face if caught using their phone on campus – and maybe that will dissuade them from contributing to the problem.  Better yet – and as we’ve mentioned in a previous post – make it so the parents are meaningfully inconvenienced when their child breaks the rules.

Here’s a recent query I received from an educator who I have worked with in the past.  I thought her question and my response would be of interest to others so I am posting both here.  Does your school district have a policy regarding cyberbullying or Facebook?  How about cyberbullying on Facebook?

Question: “The reason for my email is that we have recently had issues with Facebook brought to our attention by parents.  Cyberbullying is taking place among our 8th graders and it seems to be affecting the classroom environment.  The principal and I are wondering if you have any sample policies that might help us as we are looking to establish some type of policy quickly to address this problem.”

Response: I am sorry to hear that you are facing problems with Facebook.  We don’t have a sample policy per se, but we suggest elements that you might want to include in your policy.  The problem really isn’t isolated to Facebook.  That is, you don’t need a “Facebook Policy.”  If you tried to be that specific, you would have to update your policy every 6 months or so as different Web sites come in and out of popularity.  You just need a general policy that will cover the kinds of behaviors that are detrimental to your school environment.  You have our book, and you should definitely revisit chapter 5 – especially pages 118-126 to see how your existing policy could be improved based on these suggestion.  Essentially, your policy needs to state that any behavior that disrupts the school environment is subject to discipline.

As I mentioned in my presentation to your folks, you might want to see if you can convene a group of staff, parents, and even students to review your existing policy and to make recommendations for updating it based on these new behaviors that are emerging.  This shouldn’t be a very large group – perhaps 2 or 3 members from each of the above groups – otherwise it may be difficult to get everyone to agree.  This group can then inform your school’s overall approach.  They can make recommendations additions to the policy and for appropriate disciplinary sanctions based on violations of the policy.  I know you are looking for a quick fix (aren’t we all!), but taking the time to develop comprehensive policy, and involving parents and students, will yield dividends in the long run.  It will be easier to sell the policy to parents if key parents are involved in the process.  And the students can help to make sure the policy is comprehensive and realistic.

By the way, in general, if you can demonstrate that the behaviors are substantially disrupting your school environment, even though those behaviors are occurring away from school, the courts have upheld disciplinary sanctions.  And that legal perspective is essentially directed at public schools.  Since you are a private school, you have much more latitude in basically doing what you think is appropriate.  That said, it is still important to have a good policy that parents and even students can get behind.

One of the questions we field sometimes involves how private schools differ from public schools in their response to instances of cyberbullying and student misuse of technology.  A case from a private Michigan college illustrates the general distinction that we’ve seen.  In this situation, a 19-year-old male was placed on six-month probation after being accused of posting a crude sexual message on Facebook about his ex-girlfriend.  This punishment will force him to wait a year to continue his education at the same institution.  Largely speaking, private schools can exercise much discretion in these cases, allowing them to enact a penalty that may seem unreasonable and without complete merit (in this situation, the school authorities do not have incontrovertible evidence that the accused actually committed the act – he claims that his Facebook account password was stolen and exploited towards this end).   It is interesting that college administrators referenced integrity and values when providing some reasoning behind the sanction.  When we have worked with private schools (and colleges), reference is often made to a general honor code to which students informally or formally agree – and offline or online peer harassment is clearly a violation to this honor code and therefore warrants some measure of discipline.  I believe this is the best way to go.  I’m going to generalize a bit here, but we’ve found that sometimes in public schools students thumb their noses at the rules and it is often perceived as “cool” to break them.  In private schools, however, there tends to be a larger shared perception among the student body that the honor code is something to be respected, and it is definitely “not cool” to transgress it.  Not cool at all.   I like that.  I wish we had better success promoting such a worldview in the public school system.

There was an article published in the New York Times last week which discussed the case of Katherine Evans.  Katherine was displeased with her high school English teacher and posted about this displeasure on Facebook: “To those select students who have had the displeasure of having Ms. Sarah Phelps, or simply knowing her and her insane antics: Here is the place to express your feelings of hatred.”

Katherine apparently removed the post only after a few days, but a couple of months later was suspended by her school for “cyberbullying.”  [point of order: we typically do not refer to online harassment involving an adult as cyberbullying]  From the media reports, Katherine’s actions neither constituted a threat nor resulted in a disruption at school—the two common features of cyberbullying incidents that would warrant a significant formal response from the school.   Did Katherine cross the line?   Without question her actions were inappropriate.  Were they subject to discipline at school?  Maybe—but probably not suspension.  Students are allowed to criticize teachers and other school officials, again, as long as it is not threatening or disruptive to the school.  This can be a fine line indeed.  It will be interesting to see how the courts rule in this case.  My gut is telling me that the school could have handled this case differently, but I’m sure we do not have all of the details yet.  Stay tuned.