Blog

We discuss the legal issues associated with schools responding to cyberbullying incidents quite often in this space. You can find many blog posts which attempt to clarify the variety of issues raised (see here and here) and we have a summary fact sheet that is available here.  Of course the law, and our understanding of it, is constantly evolving.  So I thought I would post a (relatively) simplified update with the lineage of case law that demonstrates that schools do in fact have the authority to apply reasonable discipline to students who participate in cyberbullying while away from school.  Below I provide a brief one or two sentence summary of the ruling, but I encourage everyone to read the actual facts of each case so that you can better understand the unique contexts of each incident.

Tinker v. Des Moines Independent Community School District (1969): Students have free-speech rights.  “A prohibition against expression of opinion, without any evidence that the rule is necessary to avoid substantial interference with school discipline or the rights of others, is not permissible under the First and Fourteenth Amendments.” Students have constitutional rights under the First Amendment. Those rights, however, do not grant students the right to substantially interfere with school discipline or the “the rights of other students to be secure and to be let alone.”

Bethel School District No. 403 v. Fraser (1986): Student’s free-speech rights are limited while at school. “[T]he constitutional rights of students in public school are not automatically coextensive with the rights of adults in other settings….”  The Supreme Court ruled that there is a substantive difference between a non-disruptive expression (such as in Tinker) and “speech or action that intrudes upon the work of the schools or the rights of other students.”

Davis v. Monroe County Board of Education (1999): If a school knows about harassment or other hurtful actions against students and doesn’t respond effectively to prevent it from continuing, they may be held responsible.  “…the common law, too, has put schools on notice that they may be held responsible under state law for their failure to protect students from the tortious acts of third parties.”

J.S. v. Bethlehem Area School District (2000): Schools can discipline students for their off-campus electronic speech (student created a threatening web page about his algebra teacher).  “…school officials are justified in taking very seriously threats against faculty and other students.”

Wisniewski v. Board of Education of the Weedsport Central School District (2007): “…it was reasonably foreseeable that Wisniewski’s communication would cause a disruption within the school environment…. The fact that Aaron’s creation and transmission of the IM icon occurred away from school property does not necessarily insulate him from school discipline. We have recognized that off-campus conduct can create a foreseeable risk of substantial disruption within a school…”

Barr v. Lafon (2007): Schools do not need to wait for a substantial disruption to occur at school before taking action.  The U.S. Court of Appeals (6th Circuit) ruled that “…appellate court decisions considering school bans on expression have focused on whether the banned conduct would likely trigger disturbances such as those experienced in the past” and pointed to the fact that the high school had even positioned law enforcement officials on campus in previous years to maintain order in an environment of racial hostility and violence. Citing Lowery v. Euverard (2007), the court stated: “…under the Tinker standard a school does not need to wait until a disruption has actually occurred before regulating student speech.”

Kowalski v. Berkeley County Schools (2011): Schools can discipline students for their online speech, consistent with Tinker. “Kowalski used the Internet to orchestrate a targeted attack on a classmate, and did so in a manner that was sufficiently connected to the school environment as to implicate the School District’s recognized authority to discipline speech which “materially and substantially interfere[es] with the requirements of appropriate discipline in the operation of the school and collid[es] with the rights of others.”

There are several examples of cases where students were successful in their lawsuits against schools when the student was disciplined for off-campus behavior (see: Klein v. Smith, 1986; Emmett v. Kent School District No. 415, 2000; Layshock v. Hermitage School District, 2010; Blue Mountain School District v. J.S., 2010. In all of these cases, however, the school was incapable of demonstrating that the off-campus behavior or speech resulted in, or had a likelihood of resulting in, a substantial disruption at school. In fact, when the 3rd Circuit Court of Appeals ruled against the schools in Layshock and Blue Mountain, Judge Kent Jordan stated: “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.”

Finally, it is important to point out that I correspond with many of the best and brightest legal minds in the United States and many of them disagree about these issues!  We are at a challenging and uncertain time (to say the least) when it comes to education in this country, and the legal ambiguity concerning a school’s authority to respond to off-campus behaviors is just one more example.  But the reality, in my view, is that there is no uncertainty about this issue.  Schools simply do have the authority to reasonably discipline students for any behavior (whether at school or away from school) if such behavior results in, or has a high likelihood of resulting in, a substantial or material disruption at school or if the behavior infringes on the rights of other students. So the short answer to the question posed in the title of this blog post is: YES!

But I will conclude my thoughts by asking all of you who read this to let us know if you are aware of any cases where a school was found to be liable for damages for disciplining a student for their off campus behavior which resulted in a substantial disruption at school.  I am not aware of any such cases.  Part of the trouble here, I think, is that examples of cases like that have not reached a court and therefore we have not received reassurance in our interpretation of the law.  Most of the time schools get it right and they do not end up in court. Until more case law is established, we will continue to recommend that schools act in accordance with the cases discussed above.

As a resident of the state of Wisconsin and someone who follows bullying legislation from around the United States pretty closely (see our summary here), I was particularly interested to learn that a proposal was being put forward to update Wisconsin’s bullying law.  Wisconsin’s law  took effect in 2010 and requires schools to have a bullying policy and directs our state department of education (the Department of Public Instruction) to develop a model policy that includes several specific elements.  Schools may or may not adopt the model policy.  The proposed changes can be read here and there is a press release about the proposal here.  Individuals in Wisconsin who are interested in this proposal, or the existing bullying law are encouraged to attend a public hearing that will be held on February 28th in Madison.  Those who would like to comment on the proposal but who cannot attend the hearing are encouraged to email their comments to Senator Luther Olsen who is the chair of the Committee on Education.  That is what I did.  Below are my comments about Wisconsin’s bullying law and the proposed changes.

Comments on Proposed Changes to Wisconsin’s Bullying Law
(2011 Senate Bill 427)

Justin W. Patchin, Ph.D.
Associate Professor of Criminal Justice, University of Wisconsin-Eau Claire
Co-director, Cyberbullying Research Center
February 24, 2012

Introduction

I have spent over a decade researching adolescent bullying, with a specific focus on cyberbullying. As co-director of the Cyberbullying Research Center, I travel across the United States, and abroad, educating school officials, parents, law enforcement officers, other adults who work with youth, and the teens themselves about using technology safely and responsibly. In the last two years I have spoken to over 60,000 people on this topic.  I have also authored twenty refereed journal articles and four books, including three on the topic of cyberbullying and teen technology misuse. Finally, I am very familiar with most of the bullying laws across the United States having authored and regularly updated a fact sheet on our web site (www.cyberbullying.us) entitled “A Brief Review of State Cyberbullying Laws and Policies.”

Forty-eight states now have bullying laws in place or scheduled to be implemented in 2012.  Wisconsin was one of the more recent states to adopt a bullying law (Wisconsin Act 309; 2009 Senate Bill 154), which took effect in May of 2010.  The law required, among other points, that schools adopt bullying policies by August 15, 2010. While the existing law is useful to the extent that it publicly denounces bullying and requires the Department of Public Instruction (DPI) to develop a model policy that may be adopted by schools, it falls short on a number of levels.  The currently proposed changes, while a small step forward, do not significantly address the concerns which I present below.

Weaknesses of Wisconsin’s Existing Bullying Law

One major shortcoming of Wisconsin’s existing bullying law is that it simply directs the DPI to create a model bullying policy. That policy may or may not be adopted by schools.  Schools must have a bullying policy in place, but the elements of that policy could vary significantly from school to school.  While many schools may elect to adopt the model policy as developed by the DPI, they are not required to.  I do believe that every school should have the flexibility to develop a policy that is appropriate for their needs, but it would be better to require certain elements to be included in all school policies across the state, including a comprehensive definition of bullying (that includes cyberbullying), procedures for reporting and investigating, appropriate consequences, as well as others listed in 118.46 sub. (1) (a) 1-10.

Another significant problem with the current law is that it does not explicitly mention cyberbullying or other forms of electronic harassment.  While cyberbullying is a subset of bullying, the law does not even provide a definition of what bullying is and leaves this up to the DPI and individual districts.  Specifically acknowledging cyberbullying as a unique form of bullying that requires response is important given its prevalence and impact on 21st Century schools.

Finally, there is nothing in current law that acknowledges the school’s ability to intervene or reasonably respond to incidents of bullying that occur off school grounds.  Many schools across the state wrongly believe that if bullying occurs away from school there is nothing that the school can do to respond.  Longstanding case law gives schools the authority to respond to off campus behaviors that disrupt the learning environment at school.

In the landmark case Tinker v. Des Moines (1969) the Supreme Court stated: “it can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate…” and that only speech or behavior which “materially and substantially interfere(s) with the requirements of appropriate discipline in the operation of the school” are subject to discipline.  Barr v. Lafon (2007) clarified that schools need not wait for a disruption to occur before intervening and that if they can articulate a clear threat to the order of the school than can take appropriate actions.  We know from Thomas v. Board of Education, Granville Central School District (1979) that student speech that occurs away from school is generally more protected that the speech that occurs at school, but several recent cases have demonstrated that off campus behaviors and speech are subject to school discipline, if the behavior or speech: (1) substantially or materially disrupts the learning environment at school; (2) interferes with the educational process or school discipline; or (3) threatens or otherwise infringes on the rights of other students (see J.S. v. Bethlehem Area School District, 2000; Wisniewski v. Board of Education of the Weedsport Central School District, 2007; and especially Kowalski v. Berkeley County Schools, 2011).  The key issue that has been addressed in many cases is that the behavior that occurs away from school results in (or has a likelihood of resulting in) a substantial disruption at school (see Layshock v. Hermitage School District and Blue Mountain School District v. J.S. which were both recently reviewed by the Third Circuit Court of Appeals [2011]). If a student is being harassed or threatened repeatedly by another student, whether online or at school, there is little question that the ability of that student to learn is being disrupted. As such, it is important that a bullying law includes this information so that schools know that they do in fact have the authority to respond.

Strengths of the Proposal

The current bill does propose some modest improvements to Wisconsin’s bullying law, especially by requiring that the DPI model policy include bullying by “electronic means.”  This may be superfluous as the existing model policy already includes “sending insulting messages or pictures by mobile phone or using the internet – also known as cyber bullying.” It also encourages the model policy to include information about responding to bullying behaviors that occur off school grounds.  The amendment which includes language that a school board may prohibit bullying that occurs away from school that creates a hostile environment at school for the pupil bullied or substantially disrupts the orderly operation of the school is exactly what is needed.  However, this leads me to the major weakness of current law and the proposed bill.

Weaknesses of the Proposal

The primary problem with the proposed bill, and indeed the existing law, is that it is only a mandate to the DPI to include certain elements in a model policy and not a requirement for schools to include any of these elements in their respective bullying policies. Schools are not required to modify their policies at all – they are only required to have a policy (irrespective of its content and effectiveness).  The proposal also states that the DPI model policy must include “appropriate responses to bullying that occurs off school grounds in certain circumstances.”  While it is nice to see that the proposal acknowledges the school’s authority to respond to off campus behaviors, what exactly are the “circumstances” where this is appropriate? If this could be clarified in the DPI policy, it would strengthen the understanding of the necessary conditions particularly if specific language was included in the law (see below).  The proposed amendment is a significant step in the right direction but only to the extent that it clarifies that what the law is talking about are those off campus incidents that create a hostile environment or that substantially disrupt the learning environment.

Recommendations

My concern with the proposal is that it doesn’t go far enough. I urge the legislature to adopt even stronger language clearly demonstrating that any and all forms of bullying, no matter where it occurs, that disrupts the ability of a student to learn, or that creates a hostile learning environment, is subject to reasonable school discipline.  Specifically, I urge the legislature to adopt a modified version of New Hampshire’s recently-passed bullying law (HB 1523):

“Schools have the authority and responsibility to apply reasonable and educationally-based discipline, consistent with a pupil’s constitutionally granted privileges, to bullying that: (a) Occurs on, or is delivered to, school property or a school-sponsored activity or event on or off school property; or (b) Occurs off of school property or outside of a school-sponsored activity or event, if the conduct interferes with a pupil’s educational opportunities, creates a hostile environment for that pupil or others, or substantially disrupts the orderly operations of the school or school-sponsored activity or event.”

Similar language has also been adopted in New Jersey and Connecticut law recently. I have modified it minimally to ensure that a student’s constitutionally protected speech is not infringed upon by threatening to discipline a student who is exercising protected speech.  As Tinker clearly stated, students have free speech rights, but they are not free to disrupt the learning environment at school (create a disruption, threaten or infringe on the rights of others, etc.).

It is also important that all schools adopt policies that include elements such as those listed in current law (118.46).  Alternatively, all schools should be required to adopt the minimum elements included in the DPI model policy.

I also encourage the legislature to provide resources to schools so that they can effectively implement the recommendations and/or requirements included in the law.  Schools want to prevent and adequately respond to all forms of bullying and harassment and are simply looking for resources that they can use to assist in such efforts.  For instance, the bill should provide staff development and training resources to the DPI, the CESAs or some other state educational training service providers in order for school officials to learn about the law and about how to respond to cyberbullying more effectively.

If I can be of assistance in the further development of this law, please do not hesitate to call upon me.

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.