Blog

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.

We’ve talked in great detail about students bringing their personal electronic devices at school and the complications that may result.  We have also covered standards for searching these devices, and have provided a cell phone search checklist which may help administrators in these situations. In keeping with these discussions, I wanted to take some time to focus in on seizure – or confiscation – of these devices while bracketing the thorny subject of search for a while.  Specifically, I want to be clear and state that even with a suspected or actual policy violation by a student, it may not be in your school’s best interests to seize that student’s device.

I recently chatted this out with Mark Trachtenbroit, Assistant Principal at Wheeler High School in Georgia.  He remarked that his school used to take students’ personal devices when they were displayed or used between the morning bell and the afternoon bell because that contravened the formal rules their school had in place. However, it became a huge chore, leading to many of the complications I wrote about last week and the huge hassle of trying to warehouse, label, and manage all of the confiscated devices (and deal with angry parents who demanded their kid’s device be returned).

As such, the school decided that they would no longer confiscate phones, but just apply moderate penalties to students who broke the rules.  For instance, the first violation would be a stern verbal warning.  The second violation would lead to Saturday school.  The third violation would lead to In-School Suspension.  This tended to work in that it reduced the number of negative outcomes but seemed to be a less-than-ideal solution.  Administrators felt they were, as they say, cutting off their nose to spite their face because punishing teens in this way kept them out of the classroom where they would be learning.  This directly ties into the No Child Left Behind Act and the Adequate Yearly Progress measurement that allows our US Department of Education to determine how each school and school district is doing when it comes to properly educating our students (to do well academically on standardized tests) and meeting annual targets for reading, math, and graduation.  The consequences for failing to meet these goals and targets are simply not worth risking, and it just doesn’t make sense to sternly discipline kids in the 21st Century from being kids in the 21st century.  That is, the big-picture costs of punishing teens for being tethered to their technology is not worth potentially compromising the achievement of federally-mandated requirements.

This is an extremely important point, and one that many people do not seem to understand.

Perhaps the bottom line is that you cannot keep or deter all students from using their phones at school.  It is going to happen.  You can therefore decide to be prohibitive or permissive.  You can officially ban them from campuses, or allow them during certain times (or all times).

Whatever you do, though, you will have to figure out a way to get students, educators, and parents on board, and probably approach it in a way that represents the climate you are trying to build and maintain.  This climate should be all about encouraging the positive and responsible use of technology, and dissuading its misuse and abuse.  We’ll be giving you specific advice to make this happen in weeks ahead.

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!

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.