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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.

As we begin the new school year and reaquaint ourselves with some of the negatives implications that student-owned electronic devices at school may have, I’ve been thinking a lot recently about teachers and administrators confiscating cell phones due to school policy violations. Many of us know from experience that it may be more of a headache than it is worth because students can be crafty and even defiant at times.  Let’s say that your school policy prohibits their display or use, and you see a 9th grader texting under his desk during Geometry.  You then stop what you are doing, go up to him, and ask him to give you his phone.  He could then do any of the following:

1.  Tell you he didn’t know about the policy.

2.  Straight up refuse to give you his phone.

3.  Tell you that he can’t give you his phone because his parents paid a lot of money for it, and will beat him if he gets it confiscated.  (By the way, what do you do with that?)

4.  Discreetly switch out the phone he actually uses with an older phone he keeps in his pocket or backpack or desk – and give you that one.  You wouldn’t know the difference.

5.  Give you the phone but keep the battery.  This of course keeps you from searching its contents should you have suspicion of another policy violation (apart from just cell phone display or use) or suspicion of a crime committed, with evidence reasonably believed to exist on the phone.

6.  Give you the phone but keep the SIM card.  (Justin and I have heard stories where the student has actually swallowed the SIM card to keep it from being confiscated).

7.  Give you the phone but not tell you the lock code or password on it.  This keeps you from searching the contents as described above.

8. Tell you to take it from them, which could lead to a tug-of-war over the device and physical contact and conflict that we want to avoid at all costs with a student.

Are there any other outcomes that have happened to you when you’ve tried to confiscate?

To note, we’ve written extensively on when you can and cannot SEARCH the contents of phones (see here and the Related Posts, as well as Chapter 9 of our new book.  In this blog, I wanted to focus in on confiscation complications.  Let us know your thoughts and experiences!

Many educators have struggled to confront the challenges associated with high-tech devices in the classrooms (especially cell phones).  Cyberbullying.  Cheating.  Distractions.  Inappropriate digital material. There is no shortage of possible issues. The seemingly easy way to respond to these concerns has been to ban all personal electronic devices from the classroom (or the entire school).  I have heard about penalties that include students being fined or surrendering the device until the end of the day or even until the end of the school year!  This is just crazy.  First of all, short of strip-searching students as they enter the school, it is practically impossible to enforce a complete ban on technology in the school.  Most administrators have largely conceded this point and therefore enacted policies which say something to the effect of: “If I see it, you lose it.”  A colleague of ours recently quipped that schools approach cell phones the same way they do underwear: “We know you have them, we just don’t want to see them in class.”  It is really unfortunate that these powerful devices have been excluded from learning environments where they could actually be put to positive uses.

Recently, however, it seems that increasing numbers of schools are looking to loosen their overly restrictive cell phone policies. We have received a number of queries over the last couple of months from districts that would like to allow students to bring their own devices, to be used for educational purposes.  It is easy to see how cell phones, iPads, or laptops could augment curriculum delivery in the classroom: flash-polling; looking up multi-media definitions of difficult concepts; pulling up a map of a far-off place; viewing a video of an endangered species…. The possibilities are literally endless.  And we also know that the vast majority of teens already have, and regularly use, these devices (e.g., 75% of 12 to 17 year-olds have their own cell phones, according to Pew).  So there is enormous upside here.

But we do need to recognize the potential problems that may accompany the positives when students “bring their own devices” to school.  It is important to stress, though, that the problem isn’t cell phones or other particular devices.  The problem is how these devices are being (mis)used by some.  Most schools already have a bullying/harassment policy.  These documents should be reviewed to make sure they explicitly cover cyberbullying.  Students, staff, parents, and others need to understand that inappropriate behaviors will not be tolerated and are subject to discipline.  And be specific—talk about harassment and cheating and disrupting the class environment by texting or Facebooking, etc.  Clearly outline the consequences for such behaviors.  Get students and parents in on this discussion.  Schools will have problems as the school community gets used to these changes, but hopefully the problems will be few and far between and will get better with time.  Students will learn appropriate behaviors and it should – in time – become the norm if done right.  For example, ten years ago cell phones were much more of a problem in my college classrooms than they are now.  University students, at least in my experience, have gotten better at cell phone etiquette and are not letting the devices distract the learning that is occurring.  Sure, occasionally a phone will go off in class, but usually the student is apologetic and immediately realizes the faux pas.  Of course middle and high school students are different than those in a univesrity, but I am optimistic that we can work through the same challenges at the secondary school level.

There should also be some discussion in school policy that administrators can conduct a reasonable “search” of the contents of these devices when there is “reasonable suspicion” that evidence of a violation of school policy is on the device.  Schools can’t search these devices whenever they feel like it, but if the search is reasonable and supported by a justifiable need, it could be allowed.  There is some debate about this, so be sure to run it by your legal counsel (you can read more about this here.  We also discuss it in great detail in our new book.) Either way, the circumstances under which school officials can search student-owned devices need to be made explicit.  This will definitely come up, so make sure you are ready.  And again, students, parents, and others need to know the standards.  If you are an educator in a school that recently opened up to electronic devices, please let us know how it is going (the good and the bad!).  If you are a student, we would appreciate hearing your experiences as well.

As we continue to work with public and private schools around the nation, we see much variability in the formal policies in place related to student-owned electronic devices and their display and use on campuses. Some schools have simply elected to ban all netbooks, tablets and iPads, laptop computers, smartphones (e.g., iPhones, Blackberrys, Evos), Nintendo DSis, and other portable electronic devices that are Web-enabled in some capacity. These actions have lead to criticism by some parents, who say they need to be able to contact their kids in the case of an emergency – and who don’t want educators to handle or look through expensive personal items that aren’t theirs in the first place. It can also be very difficult to enforce a complete ban without searching all students as they enter the school each day.

A better approach may be to have clearly specified guidelines for when and where the devices are allowed and what will happen if a student is caught using a device at a prohibited time or place. The following is a list of rules that you may want to consider. Please note that this list is a “work in progress” and presented for the purposes of fostering discussion on the topic, rather than as a formal recommendation from our Research Center.

Possible Rules for Portable Electronic Devices at School

Portable electronic devices include – but are not limited to – laptops, cell phones, personal data assistants, portable electronic games, digital audio players, digital cameras, and gaming wristwatches.

1. Students must have all portable electronic devices turned off during the school day except during prescribed times (e.g., the lunch period).

2. No portable electronic device may be visible during the school day except during prescribed times (e.g., the lunch period).

3. Students are not allowed to use any device to photograph or record (either in audio or video format) another person on school property at any time without that person’s permission. Students should use our anonymous reporting system/form (NOTE: You, the reader, should create one for your school or district!) to let us know when you see violations of this rule.

4. Portable electronic devices are not allowed in any classroom, bathroom, or locker room.

5. Any unauthorized use of portable electronic devices will lead to confiscation.

6. Any confiscated portable electronic device may be searched by parents or law enforcement as necessary. (NOTE: They may not, but they may – it is not necessary to get into the specifics of this in your formal policy).

7. Students who violate this policy may also be subject to disciplinary action as noted in the Student Handbook.

To be sure, we have also discussed how some districts require parents to retrieve confiscated phones (instead of handing them back to the student) – and also require a nontrivial fine to be paid (typically between $15 and $25). I also know of schools where a rule violation leads to phone confiscation for five school days (for example, if the phone is confiscated on a Thursday, it is returned the following Wednesday). This, of course, is a significant loss since many teens *need* their cell phones on the weekends – and parents need their teens to have a cell phone to reach them when they are out and about on the weekends. If the student resists giving up the phone, it becomes ten days. Our readers might find that excessive, but youth need to internalize the reality of consequences that have teeth to them.

What is your school doing? Has it worked in reducing cyberbullying and other inappropriate uses of these devices on campus? What might be added to this list? We look forward to hearing input from those of you on the front lines of this complicated issue.