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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.

Justin and I had a great time at Lady Gaga’s Born This Way Foundation launch at Harvard University last week.  It was amazing to be surrounded by such brilliant scholars, researchers, and practitioners from across the United States, and even a few from England and Australia.  The professional event we were a part of was entitled “Symposium on Youth Meanness and Cruelty,” and this involved an all-day meeting and brainstorming session to identify priorities for the Foundation.  Afterwards, the highly-publicized launch event at Harvard’s Sanders Theatre gave Oprah Winfrey and other luminaries like Deepak Chopra and the Secretary of Health and Human Services Kathleen Sebelius the opportunity to ask meaningful questions to Lady Gaga about the genesis, role, and goals of her new Foundation.

I should mention that Lady Gaga also gave her mom Cynthia Germanotta the opportunity to share from her heart, as this Foundation (or Movement, as they would prefer to characterize it) is their joint project.  Both were very eloquent and impressive, and we definitely appreciated what they had to say.  Most important to me was the fact that they desired to do this work against the backdrop of solid research which could properly inform them as to what can work and what will fail.  A handful of celebrities have come up with similar campaigns but have not sought the assistance of scholars in the field to let them know where and how to direct monies and other resources.  Finally, I should say that it’s somewhat unbelievable that we were just a handful of feet away from arguably the two most influential women in the entire world, in our generation.

My task at the Symposium was to help lead the School Climate/Culture stream (there were five other streams which included: Classroom-based curricula, Curricula as campaign for a networked age, Evaluation and assessment, Grassroots and peer-driven initiatives, and Law and policy—which Justin participated in).  I was particularly excited about my role in the school climate stream because of our forthcoming new book entitled “School Climate 2.0” – we’ll share more information about that in the weeks ahead.  The Foundation is dedicated to youth empowerment, and believes that: (1) all youth have the right to be safe; (2) all youth need to have the skills to be successful; and  (3) all youth need to have opportunities to be productive citizens.  Our Stream goals were to identify gaps, holes, and issues in the school climate arena, and to inform the Foundation’s agenda in this space.

Here’s basically what we came up with together, as a team (including Rick Weissbourd – my co-leader, Peggy Sheehy, Peter Smith, Arthur Horne, Gary McDaniel, Dierdre O’Connor, Lee Rush, Howard Gardner,  Deborah Temkin, Peter Wyman, Margot Strom, Larry Magid, Jeff Parotti, Ned Crowley, and Hannah Deresiewicz).

NEED TO KNOW POINTS:

1. Schools do not operate in a vacuum, but are rather embedded in a culture and society. Therefore, any focus on schools alone is limited. The shift needs to occur in culture and civil society, both from the top down (institutionally) and from the bottom-up (grassroots). That being said, schools are not powerless and have important access and resources (albeit never enough of the latter). Expecting schools to be the only site of social change, however, will fail to affect the entire environment youth inhabit.

2. In a similar vein, bullying is not an isolated youth phenomenon. Aggressive, prejudiced, and mean behavior is common among adults as well. Therefore, any solution to meanness and cruelty must confront these problems across demographics and while keeping in mind their causes (e.g. prejudice). Such a solution precludes adult-driven, vertical reflections and interventions that do not engage youth.  As such, young people can contribute to these reflections, as they offer perspective and experience not available to adults.

3. Traditionally, students in schools are often grouped as “successful,” “lost causes,” “athletes,” “geeks,” “outsiders,” and so forth. Reinforcing these often artificial categories limits both young people’s identities and our imagination when it comes to interventions. For example, zero-tolerance policies classify rule-breakers as “bad kids” incompatible with the school. Schools should encourage and build structures that lead to cross-interaction between groups and micro-cultures. For example, low-achieving students working with high-achieving peers begin to adopt better behavior. This is likewise true when it comes to social exposure (e.g. Gay-Straight Alliances).

4. Successful programs out there are diverse but share some characteristics. These include:

• youth involvement in agenda-setting, implementation, and evaluation;
• sustained and more meaningful parent involvement;
• investment by teachers, administrators, system, and community, especially in terms of funding;
• attention to students’ social success as well as academic, moving away from narrow attention to academic standards;
• direct interventions for particularly at risk groups blended with school climate initiatives (paying attention to the vast majority that are doing fine, while also “catching” the 5% at high risk through personal interventions).

ACTION ITEMS:

1. Prevention and intervention needs to begin at the youngest ages. While interventions for older young people are critical, there are diminishing returns to culture shifts once behaviors become firmly entrenched. Therefore, values and social-emotional skills should be part of core-learning goals from early education onward.

2. Training for the change-makers (teachers, students, community) should be undertaken strategically with express attention to cruelty and meanness. This is especially true for in-service and pre-service teacher training, which necessarily involves also meaningful feedback from young people. Likewise, progress toward this end should be assessed and made available to the public.

3. Supporting collaborative campaigns that harness youth collective power along with untapped resources, such as policy or even celebrity (this is where Lady Gaga can have a huge impact).

CROSS STREAM COLLABORATION:

1. Grassroots and peer-driven initiatives – school culture is created by everyone in the environment (and influenced by outside). Collaboration among all stakeholders guided by common principles will create comprehensive shifts. Relevant stakeholders include parents, law-enforcement, youth workers, mental health professionals, and others who work with and care about students.

2. Classroom-based curriculum: resources that draw on young peoples’ input and intrinsic motivation, including games, new media, social media.

3. Evaluation and assessment: Socio-emotional learning should be a core part of curriculum and mission, but standardizing it can be challenging and problematic.

BIG PICTURE IDEAS:

1. Young people have a collective intelligence that we do not have and cannot develop naturally. This is born of engagement with new media (game environments, virtual worlds, etc.). We can transcend the boundaries between youth and adults by using youth’s natural skills and intrinsic motivations.

2. Mini-documentaries can be created by youth featuring schools that are highlighting climate best practices, perhaps also tapping into the celebrity network of Lady Gaga for greater cache.

3. Collaborative efforts between youth, teachers, and other adults should be solicited and rewarded. It is important that we not create “adult solutions” to “kid problems,” but that we focus on human solutions to human problems.

As you can see, it was a pretty remarkable day.  I know that the Symposium was just the first step in what will be a long dialogue and a lot of work in this area.  We’re excited to be plugged in and will do what we can – with the help of so many other scholars and educators on the front lines – to assist Lady Gaga’s movement and make a measurable difference in emboldening students, equipping youth-serving adults, and promoting a kinder, braver world.

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.

I have been chatting with my colleague Nancy Willard of the Center for Responsible Internet Use about Facebook in schools, and how they should and should not be used by educators. These are her recent thoughts with some of my input added…just to get some more discussion going on this issue. We both think that schools MUST shift to the use of interactive technology environments to effectively prepare students for success in their future. There are incredibly effective tools to do this, like EPals and EdModo. However, Facebook in its current instantiation may not be perfectly suited for certain uses by educators. For example, the use of Facebook for community outreach – by schools or extracurricular organizations – is perfectly appropriate. In addition, there may be times that it would be helpful and appropriate for students to access material on Facebook for instructional purposes. However, I would hesitate to recommend that Facebook be used as a platform for instructional activities based on its current limited feature set for schools and educators. The potential problems – including potential liability for schools – are significant.

These include:

- The privacy of student work products must be protected under the Federal Educational Rights and Privacy Act. Having students publicly post their work on Facebook could very well violate this federal statute. (Justin and I recommend that schools and teachers set up Facebook Fan Pages which ensures that communications between the adults and students are public…but Facebook is testing the capability for Fans (students, in this case) to send private messages to the owner (adult educator, in this case) of the Fan page. See here for more information.)

- Schools would have to ensure that every adult has effectively set up the appropriate group protections to avoid the potential of liability.

- If a teacher has access to student Facebook profiles, these profiles could reveal evidence of abuse. If a teacher fails to detect and report such abuse, the teacher might be in violation of state mandatory reporting laws.

- Facebook requires individuals to be at least 13 years of age to sign up. Schools must adopt interactive platforms that can be used throughout their K-12 system.

- Students deserve privacy in their personal and social communications. Being required to use Facebook for their instructional activities disrespects this privacy for some. Also, some students and their parents might prefer not to have an account on Facebook.

- Facebook’s business model is focused on market profiling and advertising. Whether instructional environments should be engaged in these activities is definitely a controversial issue.

- Teachers and other school staff who want to friend students on Facebook are possibly setting themselves up for difficulties. School staff should certainly maintain friendly and supportive relationships with students. But do we want to *formally* encourage teachers to become students’ “friends?” Should they also go and hang out at the mall and go to movies with students? Or should they maintain a distinction in the status of their relationship? This, of course, is a polarizing debate with many strong opinions on one side or the other.

To summarize, these are some of the difficulties associated with teacher friending of students:

- The aforementioned mandatory reporting requirement

- Activities in an environment that is fundamentally built for sharing personal information, thoughts, experiences, photos, and videos (as compared to other social networking platforms like LinkedIn)

- Perceived pressure on students to allow teachers to have (at least some) access to their personal social environment, which may violate their privacy

- Perceived grading bias if some students establish deeper or stronger “connections” or friendships than others

- Possible expectation that busy teachers take on some of the responsibility of monitoring and intervening in student-student personal relationships when they are out of school

I really want to hear your thoughts on this…again, keeping in mind the caveats I have stated. I am not suggesting we throw the proverbial baby out with the bathwater. Facebook is great and has numerous benefits and incredible potential. I just don’t think it is where it needs to be yet in terms of providing what schools and educators need to deliver education and provide connections in a perfectly appropriate way.

Here are some sample policies that may help you within your school or district as you seek to establish or revise your current formal rules.

Facebook has also contracted with a third-party to create a Guide for Educators, and it is available here.

Chime in and let’s talk this out!

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.