Bullying, Students with Disabilities, and Federal Law
At a recent conference in Chester County, Pennsylvania, I had the privilege of getting to know Andy Faust, who is an authority on special education law at Sweet, Stevens, Katz & Williams LLP. In particular, I was impressed by his level of expertise and intrigued by his astute observations about the Individuals with Disabilities Education Act (IDEA), and how some kids who are bullied – and some kids who bully others – may be entitled to the federal law’s protections as “children with disabilities.” I told Andy that no one is really talking about the reality and implications of this in my circles, and that it is worth sharing to our readership so that they can fully understand the situation. So, he and I have been going back and forth to flesh this out, and his insights are as follows:
Based on my review of certain court cases, Office of Civil Rights opinions, and “Dear Colleague” guidance documents, as well as informed inference and anecdotal experience acquired over 28 years of practice, many kids who chronically engage in bullying behaviors (e.g., aggressors, offenders) can be categorized as “children with disabilities” under the IDEA. In particular, chronic or severe acting out by these kids would easily meet the definition of “severely emotionally disturbed” (SED) —which is one of the twelve disability categories under which students can qualify for special education services. The definition of SED requires that the child in question demonstrate any one of separate five “characteristics” to a “marked degree and over a long period of time.”
- 2.08 (3) (a) (i) An inability to learn which is not primarily the result of intellectual, sensory or other health factors;
- 2.08 (3) (a) (ii) An inability to build or maintain interpersonal relationships which significantly interferes with the child’s social development;
- 2.08 (3) (a) (iii) Inappropriate types of behavior or feelings under normal circumstances;
- 2.08 (3) (a) (iv) A general pervasive mood of unhappiness or depression; and/or
- 2.08 (3) (a) (v) A tendency to develop physical symptoms or fears associated with personal or school problems.
It seems obvious that this list of characteristics could easily describe what we commonly associate with “bullying” behavior. To note, though, there is a so-called “socially maladjusted” rule-out in the SED definition – which basically means that you cannot state that a child is severely emotionally disturbed if this is the case. Well, you might wonder exactly what “socially maladjusted” means. It is a term with no resonance in modern clinical practice, but one that many associate with “conduct disorder” or sociopathic behavior, and therefore ultimately subject to interpretation.
The problem with all of this is that one cannot easily discriminate between behavior that is “inappropriate … under ordinary circumstances” and that which is socialized in the child, or is a conscious source of pleasure or positive reinforcement for the child when they bully others. It is difficult to figure out, then, if bullying aggressors are intentionally hurtful towards others, or their bullying behavior is simply an unhealthy byproduct of the fact that they are possibly severely emotionally disturbed (see the bullet-pointed characteristics above). If the former, those who bully others do not qualify for special education services because they are socially maladjusted. However, those kids could very well be the latter, and thereby deserving of special education services.
On the other side of the equation, many bullying targets also can readily demonstrate one or more of the characteristics mentioned above “to a marked degree and over a long period of time.” As stated earlier, these include “inappropriate type of behavior under ordinary circumstances,” “an inability to develop or maintain satisfactory relationships with peers or adults,” and “fears or anxiety associated with school or other issues.” As such, demonstrating these symptoms in sufficient severity warrants their classification under the SED label – rendering them due special education services under the IDEA. As another outcome, some kids who are bullied also can act out not just as a coping mechanism, but possibly because they have or develop ASD (autism spectrum disorder(s)). Autism is, of course, another of the twelve labels available under the IDEA for classification of students in need (and deserving) of special education services.
All of this begs the question: to what are bullied youth – and youth who bully others – entitled as it relates to special education interventions if considered to be students with disabilities? Under the IDEA, the purpose of special education is not just correction and support of academic deficits. Indeed, social and behavioral deficits that affect participation in the learning process or access to the learning environment are regarded in much the same way an academic deficit is regarded. Just as we can teach a struggling reader the foundational phonological awareness, decoding, and fluency skills needed to comprehend grade-level text, so too we can teach children with learning-interfering behaviors to:
~ self-monitor the thoughts and physical symptoms that accompany feelings of frustration, anger, fear, or anxiety;
~ identify the circumstances that trigger these feelings;
~ rate the level of their emotional state; and,
~ apply replacement strategies to address those feelings when they arise.
We can also teach a child with social skills deficits to recognize non-verbal social cues and the meaning of colloquial and idiomatic language (so they don’t take certain statements expressed by their peers too seriously or literally), and to initiate and sustain appropriate conversations with peers and adults. These outcomes can be described and monitored measurably as annual goals in an Individual Education Program (IEP) and implemented through direct, explicit instruction in a special education classroom (in Pennsylvania, there are programs that provide “emotional support” and others that provide ‘autistic support,” and most states have similar vehicles). Alternatively, they can be implemented in the form of a “related service” such as general counseling, psychological and mental health counseling, and social work services, whether delivered individually or in a group setting.
Special education, of course, is an intervention of extraordinary last resort. We should move to a special education solution for those kids who are bullied or who bully others who are already diagnosed and identified as disabled and whose behavior is a manifestation of their identified disabilities. For those children not diagnosed and identified as such, the law encourages the use of general intervention practices to provide the sorts of measurable, outcomes-driven support (such as that described above).
As I’ve been talking this out and digging deeper to understand all of the issues involved, I want to emphasize a very critical point (brought up to me by my longtime colleague and ADA attorney Mike Tully). When it can be shown certain behaviors are a result of a formally diagnosed impairment (bipolarity, obsessive compulsive disorder, attention deficit hyperactivity disorder, anxiety disorder, depression, oppositional/defiant disorder, etc.), schools are legally responsible to provide accommodation instead of discipline for the aggressors and additional services/support for the targets. Schools cannot discipline a disability, nor can they discipline and provide accommodations at the same time.
Parents of aggressors and targets can lobby for additional support, services, and resources for their kids under the auspices of the IDEA, but schools should make sure a formal medical diagnosis is made to avoid overidentification. This would be detrimental because a) public schools have little resources to go around as it is and b) there is a history of placing African-American males in special education programming simply because they tended to be more hyperactive – and this constitutes a form of segregation). Also, there is a need to protect against false claims that a student is SED and thereby a qualifier for special privileges and services. To reiterate, only if a child is formally diagnosed as suffering from a disability should we proceed in providing them with IDEA-related accommodations so that they can have educational opportunities without compromise. Furthermore, only then should that diagnosis change a school’s traditional response to their involvement in bullying as the offender or target.
Wisconsin Extends Restraining Orders Beyond State Borders
Last week Wisconsin Governor Scott Walker signed into law 2015 Assembly Bill 10, which amends state statute 801.04(1) so that Wisconsin judges can now issue restraining orders in cases of domestic abuse, child and at-risk adult abuse, and harassment against persons outside of the state of Wisconsin. Specifically, subsection 813.015 was added to 801.04(1):
813.015 Subject matter jurisdiction. In an action filed pursuant to s. 813.12, 813.122, or 813.125, the court has jurisdiction of the subject matter under s. 801.04 regardless of whether the alleged abuse or harassment occurred within the state.
The change is primarily designed, I think, to help provide relief to targets of domestic violence who come to Wisconsin from another state, but who continue to be victimized by someone who resides in another state. The measure is also being touted in the media as one designed to protect victims of cyberbullying. But will it?
First of all, it is unlikely that this change will have any significant impact on teens who are being cyberbullied, since research shows that most of the time they are mistreated by others from their own school (within the same state). While it is more common for adults to be harassed online by random people from further away (especially via commenting on blogs or articles), I still struggle to see the effectiveness of this law in preventing that from happening. As an example, if a judge in Wisconsin issues a restraining order prohibiting someone in Minnesota from contacting me in Wisconsin, and that person did subsequently contact me, could the Wisconsin State Patrol go over to Minnesota to arrest that person? Or could Wisconsin request the Minnesota State Patrol do it for them? Would the harasser be extradited from Minnesota to Wisconsin to stand trial for the charge?
My understanding of the inter-state jurisdictional issues involved would lead me to answer ‘no’ to all of these questions. The most that could possibly happen if a restraining order is violated by someone from outside the state is that a Wisconsin judge would issue a bench warrant. Then, then the next time that person is found to be in Wisconsin (perhaps they are pulled over for speeding when traveling through the state) they would be arrested on the warrant. But I think even this is highly unlikely. I ran this scenario by a friend who is a circuit court judge in Wisconsin, and he confirmed my skepticism about the practicality of this change.
Some of these issues have been worked out previously with respect to domestic violence cases specifically (e.g., handling of restraining orders that cross state borders), but nothing that I have seen focuses on harassment—especially when perpetrated online. “Traveling” across state lines for the purpose of stalking someone is a violation of federal law, but that would be handled in federal courts, not state courts.
So, what then is the point of this law change? Frankly, I’m not sure. I suppose symbolically it is saying that the state of Wisconsin will not tolerate abuses of its citizens from people in other states, but the symbolism falls flat the first time it is learned that the law is practically unenforceable. If our state government was interested in making a change that would have both symbolic and practical application, legislators and Governor Walker should remedy the fact that our state is the only one in the U.S. whose anti-bullying law does not explicitly include reference to cyberbullying or other electronic forms of bullying. How is this possible – especially since I have been doing this work while living in the state for over a decade? Thankfully the state Department of Public Instruction model policy does include mention of cyberbullying. But there are many more useful legislative changes that could help educators, parents, and others tackle the problem of bullying in Wisconsin. If you are a legislator in Wisconsin and want to do something meaningful, I am here to help.
State Sexting Laws
By Sameer Hinduja and Justin W. Patchin
This regularly updated fact sheet provides a brief overview and link to each of the state sexting laws. If you are aware of updates to the sexting laws in your state that are not included, please let us know.
Hinduja, S. & Patchin, J. (2015). State Sexting Laws. Cyberbullying Research Center. Retrieved [insert date], from http://www.cyberbullying.us/state-sexting-laws.pdf
Educator Searches of Private Student Social Media Profiles: The Illinois Experiment
Last summer, Illinois (somewhat quietly) passed a new bullying law that took effect on January 1, 2015. The law includes language similar to at least 13 other states which makes it clear that schools have the authority to discipline students for cyberbullying that occurs off campus (and outside of a school-sponsored activity), when such behavior substantially disrupts its educational processes or orderly operation. This has been the long-held federal standard and I was happy to see Illinois moving in the right direction (see also, Minnesota’s recent update).
About the time this law was signed by the governor of Illinois, a former educator from that state told me about another aspect of the law that seemed to permit educators to demand passwords to private social media profiles of students suspected of inappropriate online behaviors impacting the school. I looked into it more, and it turns out that this comes from a separate law that actually took effect on January 1, 2014 (over a year ago). The 2015 law perhaps amplified the implications of the earlier provision with its focus on off-campus behaviors. But why did it take so long for the public to notice it?
The controversial law begins with a provision that appears to expressly prohibit schools from requesting password information from students or parents:
“(a) It is unlawful for a post-secondary school to request or require a student or his or her parent or guardian to provide a password or other related account information in order to gain access to the student’s account or profile on a social networking website or to demand access in any manner to a student’s account or profile on a social networking website.”
But when one reads more closely, the law also seems to create a loophole that would apparently allow educators to demand passwords in special circumstances (or at least not prohibit it):
“(d) This Section does not apply when a post-secondary school has reasonable cause to believe that a student’s account on a social networking website contains evidence that the student has violated a school disciplinary rule or policy.”
So which is it? Can schools request (or demand) this personal information or not?
It is true that students do have different privacy expectations while at school. Courts have allowed school officials to search for weapons or drugs in school-owned lockers, for example. They’ve also supported the school’s ability to “search” a student for drug use by randomly testing student athletes or others involved in extracurricular activities.
In New Jersey v. T.L.O. (1985), the U.S. Supreme Court addressed school searches of student-owned property at school. The Court specifically examined whether a school official can search a student’s purse when there is reasonable suspicion that the purse contained evidence of a violation of school policy (in the case of T.L.O., cigarettes). The Court affirmed that “Schoolchildren have legitimate expectations of privacy…But striking the balance between [that] and the school’s equally legitimate need to maintain an environment in which learning can take place requires some easing of the restrictions to which searches by public authorities are ordinarily subject.” In short, “The legality of a search of a student should depend simply on the reasonableness, under all the circumstances, of the search.” Ultimately the Court supported the search of the purse, ruling that it was reasonable given what was known.
Student Searches in the 21st Century
I’ve previously analyzed the case law as it relates to searches of student-owned cell phones, and wrote about lessons that can be learned from the 2014 Supreme Court case Riley v. California which restricts law enforcement access to cell phones. All things considered, I think it is safe to conclude that courts are generally inclined to err on the side of privacy, for students and others, when it comes to prying into personal digital data and private profiles. Students do generally have an expectation of privacy when it comes to the content of their private profiles, but exigent circumstances could mean that access to the profile would be warranted. If, for example, a reliable student reports to school officials that a classmate has made a bomb threat online or is talking of suicide, then time is of the essence and I suspect the courts would allow educators or the police to demand the necessary information for their investigation.
But what if a student posts the answers to an exam on a private profile? Or criticizes a teacher or teases a classmate? These behaviors surely “violate a school’s disciplinary rule or policy,” but are they covered by the law?
Last year a Minnesota school agreed to pay $70,000 in damages (without admitting liability) to settle a lawsuit in which they were accused of invading a sixth-grader’s privacy by demanding that she turn over the passwords to her email and Facebook profile. Originally, the student was given detention and forced to write a letter of apology for making disparaging remarks online about an adult hall monitor. When she returned to Facebook to vent her frustration and try to find out “who the F%$#” told on her, she was suspended (in-school) for insubordination. In a later incident, someone reported to the school that this same student had been communicating online with a classmate in a sexually inappropriate way. When interviewed by a counselor at the school, she admitted to saying “naughty” things to the classmate, but that it was off-campus and after school hours. School officials and a police officer then demanded her Facebook and email passwords so they could look into it. She initially refused, but school officials threatened her with detention and she eventually complied.
It’s important to acknowledge that the outcome of this case was a settlement, not a court order. So we really don’t know how a judge or jury would have felt about this. I personally think that the school was well within its rights to discipline the student for the inappropriate online comments about the hall monitor and the subsequent insubordination. Where the school went astray, in my opinion, was when they forced the student to turn over her passwords without evidence of a substantial disruption of the learning environment or an imminent threat to herself or others. It is unreasonable for a school, or police officer, to demand access to private communications absent that standard. If a social media profile is open to the public, however, then it is very likely fair game for anyone to review. But just because schools can look, doesn’t mean they should.
So Where Does This Leave Us?
The Illinois law has gained notoriety at a time when at least a dozen other states have enacted legislation to prohibit employers or universities from demanding passwords from employees or students. If nothing else, Illinois is clearly bucking the trend. That said, this law has apparently been on the books for over a year, and yet I am not aware of any schools that have attempted to apply it.
If I were a parent and a school official demanded that my child turn over the password to their private online profile, I would refuse to do so without a police officer and a warrant. Of course if there was legitimate cause for concern about the safety of my child or another, I would immediately review the profile myself, with my child, to evaluate the potential threat. Relevant information would then be turned over to the authorities as appropriate. I would also remind my children to double-check to make sure that all of their social media profiles are restricted so that only those they accept as friends or followers can view the information (i.e., that they are set to “private”). They should similarly ensure their cell phone is locked with a passcode.
If I were an educator, I would be extremely cautious when it comes to situations where I might invade a student’s privacy. Again, the law does give schools some latitude here, but schools really need to make the case for why the intrusion is necessary given the circumstances. If I had a bona fide concern about the safety of a student or staff member, it would be worth the risk. Short of that, I’m not sure. What is “reasonable” to one person might not be to another. And if that other person is a judge, it could spell trouble for the school. If you are an educator in Illinois who is dealing with the implications of this, or have an example you’d be willing to share, I’d be interested in your thoughts and experiences. I have no doubt that this law will eventually be a challenged. Here’s hoping it doesn’t involve you or your school.
The Case for Including Intent in a Definition of Bullying
Last week I presented at the International Bullying Prevention Association’s annual conference in San Diego, CA. This was the second time that I have participated in this event, and both experiences were enjoyable and educational. The attendees (over 700 strong this year) are generally very interested in the work that we are doing at the Cyberbullying Research Center, and the other presenters are uniformly among the best in the business.
The conversations that occur between the formal presentations are just as enlightening and thought-provoking as anything within the scheduled sessions. Talking with attendees and other speakers sparks insights about issues we are working on and allows us to view our research and writings from the perspective of informed others. It was a couple of these conversations that sparked my interest in writing this post.
Right before my first presentation, I got to talking with Stan Davis about how bullying is defined and specifically whether intent was a necessary component. Most definitions include this element, and ours is no different. Specifically, we define cyberbullying as “willful and repeated harm inflicted through the use of computers, cell phones, or other electronic devices.” Like most others, we argue that to be considered bullying, the behavior in question needs to be intentional.
Stan suggested that whether a behavior was deliberate or not was beside the point. If it was hurtful, or if the person doing it should have known that it could have resulted in harm to another, then it is bullying. His position was supported by Elizabeth Englander, another researcher at the conference whose work I very much respect. She added that the problem with including intent as a defining criteria is that it requires teachers in the classroom to get into the heads of students to try to figure out what they were thinking when they did what they did. This is a fair point, though one easy way to determine intent is to see if the behavior was repeated after some initial intervention. If the student is made aware that their behavior is causing harm to another (either by the target, a bystander, or other third party), and yet they continue to behave in the same way, then it’s clearly intentional.
After my presentation, Lori Ernsperger, another speaker who attended my session, came up to me to also discuss whether intent was really a necessary component of bullying. Lori and I chatted briefly about our respective positions on this issue, but because others were waiting to speak with me, we weren’t able to dig into the details enough to clearly explain where each other was coming from. I don’t think that Stan, Elizabeth, and Lori collectively conspired to critique this component of my presentation, so I did feel the need to consider this question further.
That’s why I was happy to receive an email from Lori shortly after the conference with additional information about why she felt it was imperative that we adjust our definition by removing the element of intent. She was particularly concerned with the implications of requiring intent to define something as bullying when it came to behaviors targeting students with disabilities. “Disability harassment,” she argued, “does not consider the intentionality of the bully, only if it is ‘unwelcome conduct.’ When the term ‘willful’ is used for defining bullying it requires schools to have separate policies and definitions for students within protected classes.”
She presented me with a hypothetical incident to consider:
A 16-year-old high school tennis player has a genetic disorder and diabetes. His teammates have been harassing him about going to the nurse’s office and requiring more snack breaks during practice. This goes on for a year. Coaching staff have observed this, but as required by law (FERPA), most school personnel do not know he is a child with a disability. After repeated teasing, he stops going to the nurse and eventually drops out of tennis. This is a clear violation of his civil rights, but the school said it was not “intentional” on the part of the other students (“they were good kids from good homes and did not mean it”) and they did not see this as willful behavior. But is does not matter, it was unwelcome conduct that changed this student’s educational experience. All school personnel should observe and intervene regardless of the intentionality.
First of all, regardless of intent, I agree wholeheartedly with the final sentence in her vignette. School personnel should intervene whether the behavior is defined as bullying or not. One thing is clear, the tennis players were being mean toward their teammate and that should be addressed. But was it bullying? If the students involved in harassing the tennis player for a whole year genuinely didn’t realize that what they were doing was harming the target, then it isn’t bullying. Or, if a reasonable person would have known that the behaviors were causing harm, then it would be intentional and be accurately categorized as bullying. As I have previously written, best friends can say things to each other that appear to be mean or that could unintentionally make someone upset. But are these things really bullying?
As a comparable example, maybe I say something to someone on a repeated basis, just thinking I am being funny, and that person completely ignores or even laughs along with what I am saying. But it turns out that the person is actually very hurt by my comments, yet he never expresses that to me (nor does anyone else). What I am saying may be mean or rude, but it isn’t bullying. Should it be addressed? Of course. Should it stop? Absolutely. If we were students at the same school it would be completely appropriate for a teacher or counselor or whomever to make me aware of the harm that I am causing. At that point, I should definitely apologize and not do it again. If I do repeat it, then that clearly demonstrates willfulness because I was informed of the hurtful nature of what I was saying, but still continued. And that would be bullying.
Lori insisted that the “unwelcome conduct” standard is really what matters. If something is unwelcome, then it is bullying. I don’t think it is that simple. What if I bump into someone in the hallway? Or spill my hot tea on someone’s lap? What if I crash into another vehicle when that person is stopped at a stoplight? These are all clear examples of unwelcome conduct, are they not? Would it be accurate to classify these as bullying—even if they were isolated events and completely accidental? Plus, in order for any of these behaviors to be considered “harassment” in a technical/legal sense, one would have to prove that they were done because of a person’s status (based on race, class, gender, disability, etc.). Harassment is different from bullying. Some bullying behaviors could accurately be classified as harassment, and some harassment could be bullying. But the overlap is not 100%. For example, harassment (again, as formally defined) is always based on a protected status, whereas bullying is not. Harassment could be a singular incident (though often not), whereas bullying is always repetitive (or at least presents an imminent expectation of repetition). I still can’t think of an example of a behavior that should be accurately defined as bullying where intent to cause harm is not present.
The bottom line is that we simply cannot call every harmful or hurtful or mean behavior between teens “bullying.” That dilutes the problem and is confusing to everyone involved. Bullying is a specific and more serious form of interpersonal harm and the term needs to be reserved for behaviors which are repeated and intentional.
That’s what I think. What about you?
State Cyberbullying Laws: A Brief Review of State Cyberbullying Laws and Policies
By Sameer Hinduja and Justin W. Patchin
This Research Summary summarizes the current state of cyberbullying bills and laws across the United States.
Hinduja, S. & Patchin, J. (2015). State Cyberbullying Laws:
A Brief Review of State Cyberbullying Laws and Policies. Cyberbullying Research Center. Retrieved [insert date], from http://www.cyberbullying.us/Bullying-and-Cyberbullying-Laws.pdf
Cyberbullying Law Ruled Too Vague
A couple of weeks ago I wrote about a cyberbullying ordinance in Albany County, New York, that was being challenged and subsequently evaluated by the New York State Court of Appeals. The incident that initiated the review occurred back in June of 2011 and involved a 15-year-old student who had posted photos and hurtful comments of a sexual nature about several of his classmates to a Facebook flame page. He was one of the first to be charged with the new cyberbullying law. His attorney challenged the law as being overly broad, but lost in city court and the student ultimately pled guilty (while still retaining the ability to appeal). He did appeal to the Albany County Court, but again lost. The New York State Court of Appeals agreed to review the case and today returned their opinion.
In short, in a 5-2 split decision, the court stated that the cyberbullying ordinance that Albany County had drafted was poorly written and was therefore invalid. As drafted, the law was too broad and as a result violated the Free Speech Clause of the First Amendment: “It appears that the provision would criminalize a broad spectrum of speech outside the popular understanding of cyberbullying, including, for example: an email disclosing private information about a corporation or a telephone conversation meant to annoy an adult” (p. 11).
While it is likely that the forthcoming headlines in most articles and commentaries about this case will proclaim this as a victory for Free Speech advocates and argue that the opinion confirms that criminalizing cyberbullying is not allowable, that is far from what the opinion really says. In fact, the court was careful to specify that proscription is possible, if a law can be more precisely crafted: “Cyberbullying is not conceptually immune from government regulation, so we may assume, for the purposes of this case, that the First Amendment permits the prohibition of cyberbullying directed at children, depending on how that activity is defined” (p. 8).
We can set aside for a moment the question of whether new criminal statutes will help us solve the cyberbullying problem. I have stated previously that I don’t believe they will contribute much, and that other measures are likely to be much more effective. But, is the kind of speech the student promoted on Facebook protected? The court inferred that most likely, it is not.
The court acknowledged that most would agree that the student’s behavior was “repulsive and harmful to the subjects of his rants, and potentially created a risk of physical or emotional injury based on the private nature of the comments” (p. 15). Again, the court was concerned principally with the sloppy language: “Even if the First Amendment allows a cyberbullying statute of the limited nature proposed by Albany County, the local law here was not drafted in that manner” (p. 14).
So what kind of language could pass constitutional muster? Well, there were some hints to this in the opinion. Albany County’s Ordinance states:
“Cyber-Bullying shall mean any act of communicating or causing a communication to be sent by mechanical or electronic means, including posting statements on the internet or through a computer or email network, disseminating embarrassing or sexually explicit photographs; disseminating private, personal, false or sexual information, or sending hate mail, with no legitimate private, personal, or public purpose, with the intent to harass, annoy, threaten, abuse, taunt, intimidate, torment, humiliate, or otherwise inflict significant emotional harm on another person.”
There are just a few specific words included that are problematic. In a dissenting opinion, Judge Smith argued that a cyberbullying law should be clear to apply only to students (as written, Albany’s ordinance seemingly applied also to adults and even possibly corporations) and that certain ambiguous terms would need to be removed: “The County concedes that the words ‘embarrassing’ and ‘hate mail’ are ‘vague and thus unenforceable.’ … Once these deletions are made, I see nothing in the law that renders it unconstitutional” (p. 2).
So Albany County is going back to the drawing board. County Executive Daniel McCoy said that they would work “to craft a (new) law that both protects free speech and keep kids safe.” Many other communities around the U.S. are likely in the same boat. While this ruling technically applies only to the state of New York, lawmakers in other communities would be advised to review their recently-passed laws to make sure they can withstand the scrutiny applied to this law.
Cell Phone Searches: Implications for Educators from Riley v. California
New insight about the issues associated with authorities searching the contents of cell phones has been provided by the U.S. Supreme Court. While this particular ruling deals specifically with the question of whether law enforcement officers can search the contents of cell phones possessed by people who are under arrest, educators can certainly learn from it as well. In the opinion released yesterday, the Court analyzed two separate incidents (one in California [Riley v. California] and another in Massachusetts [U.S. v. Wurie]) where officers searched—without a warrant—the cell phones of individuals they had arrested. In both cases the phones revealed incriminating evidence that was used at trial, and both defendants were convicted.
The Skinny on Search and Seizure
As a very rough and brief primer on basic criminal procedure law (don’t take this as legal advice!), the police are allowed to search the contents of, for example, a bag that a person is carrying, under a variety of circumstances. First, an officer could simply ask for permission to search it. If this isn’t granted, but the officer has reason to believe that the bag contains evidence of a crime, it could be seized and a search warrant could be obtained from a judge. The judge would review the evidence and determine if a search is appropriate. If the officer feels that time is of the essence, and that waiting to obtain a warrant could create a public safety risk (e.g., if the bag was thought to contain a bomb), then a warrant would not be needed for the search (these are referred to as “exigent circumstances”). The officer would be required to convince a judge of this necessity after the fact in order for any evidence obtained to be admissible in court.
There is another fairly common circumstance under which a person’s bag could be searched without a warrant, permission, or exigent circumstances. Once a person is under arrest, everything on their person and anything within the area of their immediate reach, is subject to search (this authority stems from another “Golden State” case: Chimel v. California ). The purpose here is to identify weapons or evidence of a crime that may have been stashed by the accused upon hearing that the police were at hand. It is this latter scenario that was evaluated by the court in the current opinion: Can cell phones be searched, without a warrant, once a person has been arrested?
Cell Phones are Different
Some have argued that a cell phone is in essence no different than a bag: it contains “stuff,” including possible evidence of a crime (though admittedly no weapons). And the rules, therefore, should be the same. If you are under arrest, the logic goes, then your cell phone should be eligible to be searched (at least that’s the way the cops in California and Massachusetts interpreted the law). Well, in the end, the Court unanimously disagreed with this interpretation and ruled that cell phones are different from other items (such as briefcases or purses) and therefore are subject to different rules.
It was reasoned that cell phones have the potential to contain so much information, both locally on the device, but also remotely through cloud storage and Internet access, and that the risk of invading one’s personal privacy is too great to allow a search without reasonable justification. And even then it is difficult, if not impossible, to put restrictions on what exactly is searchable. Text messages? Personal contacts? Photos? Videos? Notes? Just being arrested shouldn’t result in a person having to reveal everything about their lives that is on, or connected to, their cell phone.
To be clear, the Court did not say that searches of cell phones are completely off-limits. Rather, it ruled that a search is not automatically allowed when someone is arrested. There must be exigent circumstances or probable cause that the phone contains evidence of a crime.
Implications for Educators
So how does this ruling apply to educators? Well, it really doesn’t. Nothing included in the language of the ruling suggests a change in law or policy concerning the circumstances under which it is appropriate for educators to search the contents of student-owned cell phones (or other portable electronic devices, for that matter) that are brought to school. We know that the rules that govern police officer behaviors are different than those that apply to educators. I’ve also previously discussed on this blog the specific question of whether educators can search the contents of student-owned devices. My review of the relevant case law leads me to conclude that educators can in fact search student cell phones, under very restricted circumstances, but the parameters for such an action are not well specified and it can be difficult for most educators to determine when a search necessary and appropriate.
In New Jersey v. T.L.O (1985), the U.S. Supreme Court stated that students are protected from unreasonable searches, but also that the standard required by law enforcement officers (probable cause of a crime) is not the same for educators. School officials generally need only show that the search was “justified at its inception and reasonable in scope.” What makes a search justified? What is reasonable? The greatest legal minds debate the answers to these questions, so how on earth are we to hope that a school administrator can accurately sort it all out? It is likely that many of these questions will end up being resolved in a courtroom at some point, but it is best to keep you and your school out of it.
We have produced a basic checklist that educators can use to help determine if a search is reasonable and justified in their particular situation. But again, these standards have not been tested in a court of law, so they are only speculative at this point. Our best advice to educators is to resist searching a student-owned cell phone unless there is a possible safety concern (e.g., a student says that they just received a text message from another student who said they have a gun). And in this kind of situation, it is best to turn the case over to law enforcement officers, who should better understand the current legal framework for these circumstances. More importantly, it is advised that educators discuss these issues with their school resource/liaison officer and school district attorney so that everyone is more or less on the same page. Don’t wait until you are confronting a student who is believed to have contraband content on their phone before you develop appropriate procedures.
Image credit: Yataka Tsutano, Flickr, Creative Commons
The Criminalization of Cyberbullying
I have written quite a bit over the years on the question of whether it is necessary to enact new criminal statutes to combat cyberbullying. Be it a proposal for an amended state statute or a new city ordinance, it seems popular these days for politicians to publicly proclaim the scourge of cyberbullying by offering legislation to make it a crime. Few stand on the side of cyberbullies on Election Day, so it is probably a safe platform. But is it the right approach?
The latest incident to thrust this issue into the public light is a test case out of Albany, New York, where, back in 2011, a 15-year-old student was arrested and charged with a then recently-passed county-level cyberbullying law. The student in this case is accused of having created a “flame page” wherein he posted photos and disparaging comments about a number of his classmates. Some of the comments were sexual in nature. He attempted to challenge the law in city court, but lost and ultimately pled guilty to one count of cyberbullying, pending appeal. The Albany County Court affirmed the city court judge’s ruling and it is now being reviewed by the New York State Court of Appeals.
Proponents of the law (and of the criminalization of bullying behaviors generally) say that cyberbullies need to be held accountable, and if schools and parents can’t—or won’t—do it, then society should. Opponents see this law as an attack on free speech, or challenge it as hastily written, with many essential elements left undefined or otherwise ambiguous. Others point out (quite rightly, in my opinion), that further criminalization will do little to solve the underlying causes of bullying overall.
Generally speaking, I feel that the criminal justice system should be the absolute last resort when trying to resolve the vast majority of cyberbullying incidents. If a teen repeatedly targets a peer with hurtful, harassing, or malicious online insults, and family- and/or school-based responses prove ineffective, then perhaps law enforcement does need to get involved. Even with that, though, I would hope the police and prosecutor would work to develop an appropriate solution that avoids a criminal stigma being placed on the teen.
For example, one option might be a deferred prosecution deal that is contingent on improved online behaviors. If the teen refrains from inappropriate online interactions for a specified period of time, then the charges would go away. Or maybe the accused could participate in a teen court, or meet with people who have been victimized by bullying in the past in a kind of restorative justice approach. Again, there are so many other possible avenues for dealing with bullying that hold much more promise for effectiveness than a misdemeanor criminal charge. All of these other options should be exhausted before requiring the teen to appear in front of a judge.
The other, broader issue being evaluated in Albany, is whether laws like this one infringe on a person’s right to free speech. All U.S. citizens—even students—have free speech rights. There are, of course, limitations to this. We simply don’t have the right to say anything to anyone under any circumstances. Moreover, inasmuch as the content of the speech matters (what is being said), so too does the context and consequences of that speech.
For example, it is perfectly fine for me to express my hatred for the University of Michigan athletic teams. I can stand on a public park bench and proudly and loudly proclaim my disdain for the Wolverines. That is protected speech. But if I am a high school student and repeatedly express that view during the middle of algebra class, in a way that disrupts the learning environment at school, well then that speech which was otherwise protected is now subject to reasonable discipline. The school has long been recognized as a unique environment where extraordinary restrictions on speech and other forms of expression are allowed, when necessary, to uphold school rules and maintain an appropriate school climate. As noted in Bethel School Dist. No. 403 v. Fraser, 1986: “The undoubted freedom to advocate unpopular and controversial views in schools and classrooms must be balanced against the society’s countervailing interest in teaching students the boundaries of socially appropriate behavior. … Nothing in the Constitution prohibits the states from insisting that certain modes of expression are inappropriate and subject to sanctions.” More recently, this interpretation has been expanded to include some student behaviors and speech expressed from beyond the school walls (to the extent they impact the school).
Similarly, if I call someone up in the middle of the night and repeatedly, over the course of many weeks, tell them that “the Wolverines suck!” – that too may be subject to criminal sanction (for harassment or stalking). While the content of the speech is protected, the way in which it is conveyed is not. So, those tasked with keeping schools safe and orderly need to evaluate not only what was being said, but also what impact it had (or is likely to have) on the environment at school. Even speech that is protected in most circumstances could be subject to discipline under certain conditions.
I don’t know much more about the Albany case other than what has been discussed in the media, so it is difficult to comment on whether a criminal response was necessary in that particular situation. I don’t know if the school intervened or if the child’s parents disciplined their son in an effort to resolve the situation. But I also don’t believe that his speech should be protected by the First Amendment. The appellate court in New York is expected to return its findings within the next several weeks. But rest assured, no matter what the ruling, this will not be the end of this debate.
Image courtesy of Morse v Frederick (2007) (U.S. Supreme Court Case in which student speech was legitimately restricted)
Not Guilty? Implications for the Teens Charged with Bullying Rebecca Sedwick
Felony stalking charges have now been dropped for the two girls (one 14 years-old, the other now 13 years-old) who last month were implicated in the suicide of 12 year-old Rebecca Sedwick. They were alleged to have bullied Rebecca at school and online, including messages calling for Rebecca to end her life, such as “Drink bleach and die” and “Can you Die Please”? Rebecca did commit suicide and charges were filed. Polk County Sheriff Grady Judd made a public spectacle of the proceedings for the apparent purpose of sending a strong message to anyone who would bully: “We will prosecute anyone we can prove has bullied or stalked someone.”
In the wake of the news that the prosecutor declined to pursue formal charges, one of the girls told the Today Show that she didn’t feel guilty and does not feel that she did anything wrong. Of course she did something wrong – and if she doesn’t feel at least some measure of guilt, then that is certainly something the therapists will have to deal with. What is evident is that she has been well-coached by her powerful attorney, Jose Baez (of Casey Anthony fame), not to admit to anything that might be used against her in subsequent legal proceedings. These statements, along with other public posturing by Baez, are simply a counterbalance to Sheriff Judd’s rhetoric last month and should be taken with a grain of salt.
Guilty in the Court of Public Opinion
Despite what the prosecutor has decided, the two girls have already been convicted by the public. And as inappropriate as it is to publicly excoriate adults for their behavior prior to proper adjudication (whatever happened to “innocent until proven guilty?”), it’s even worse when the accused are juveniles. As hurtful as their behavior might have been, that is still no excuse for adults to target them with threats and hatred. Public castigation of those who bullied Rebecca does not bring us any closer to ridding our society of bullying. Quite the opposite, in fact. And to think many people often ask me where kids get the idea that it is OK to treat others so badly… (for Exhibit B, see this recent example of adult role modeling).
The weight of public opinion suggests that the girls were directly responsible for Rebecca’s death and therefore deserve severe punishment. Those who have studied the relationship between bullying and suicide know that there are almost always a variety of factors that lead a child to consider suicide, and very rarely can it be determined with any certainty that a specific experience with bullying directly caused one’s suicide. Most often youth who turn to suicide have experienced long-lasting struggles within their family and/or school, and suffer from a mental disorder. Indeed, bits of information are now emerging that point to a troubled family life for Rebecca. So even though what the two girls did was hurtful and wrong, it likely wasn’t the sole direct cause of Rebecca’s death. But that doesn’t mean that their behavior should not be addressed.
Not the End of the Story
Just because the felony charges have been dropped doesn’t mean that this is the end of the story or that the two girls who bullied Rebecca are off the hook. They certainly have not been “cleared of all wrongdoing” as I saw declared in at least one media account. The prosecutor simply recognized that pursuing a felony case against these minors was not the best course of action. The incident is now being handled within the confidential confines of the juvenile court, which is where it should have been all along. Because of the private nature of the juvenile system, we don’t know for certain what is happening. But from what has been revealed by the sheriff and respective defense attorneys, it appears that the prosecutor has agreed to divert the cases away from the formal system or at least defer prosecution for a period of time, pending the participation in some form of treatment and the ability of the teens to refrain from behaving badly toward others. In short, they are being given another chance.
Sheriff Judd insisted that his department is satisfied with this resolution since the girls involved will “receive the services they need,” which he further stated is “the best outcome for juveniles.” Perhaps it is—for them. But I am left feeling dissatisfied at this because it does not consider the concerns of the victim’s family. Their personal issues notwithstanding, Rebecca is still gone. And while a criminal charge will not bring her back, I can’t help but to have hoped for a more positive conclusion. Instead of high-powered lawyers and defiance and obstinance, it would have been better for all involved had the two girls who tormented Rebecca come forward with a simple, but genuine, expression of remorse. Whether they bullied her to death or not, they treated her in a way that was awful, and that requires amends. Maybe that will come in time. For now, we will wait and see.
Photo credit: family, via WTSP.com