Comments on Proposed Changes to Wisconsin’s Bullying Law (2013 Senate Bill 184)

Posted by Justin W. Patchin on October 3, 2013

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The Wisconsin Senate Committee on Education is meeting today to discuss a proposal to revise the state’s bullying law. You can read the text of the bill here. Wisconsin’s bullying law can be found here. I was asked to offer comments on the proposal and below are the comments that I sent to Senator Cullen’s office. If you live in Wisconsin and have thoughts about this proposal, feel free to contact your local legislator.

Comments on Proposed Changes to Wisconsin’s Bullying Law
(2013 Senate Bill 184)

Justin W. Patchin, Ph.D.
Professor of Criminal Justice,
University of Wisconsin-Eau Claire
Co-director, Cyberbullying Research Center
October 2, 2013

Background

I have spent over a decade researching adolescent bullying, with a specific focus on cyberbullying. 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 four years I have spoken to over 100,000 people on this topic. My research partner, Sameer Hinduja (Florida Atlantic University), and I co-direct the Cyberbullying Research Center and have formally surveyed over 14,000 middle and high school students from various schools around the United States. We have also surveyed teachers, parents, and law enforcement officers. Using those data, I have co-authored numerous articles for academic and professional publications and have written four books, including three on the topic of cyberbullying and teen technology misuse. A fifth book (Words Wound: Delete Cyberbullying and Make Kindness Go Viral) will be published this December. Our website (www.cyberbullying.us) received approximately 1.2 million unique visitors in the last 12 months (over 30 million hits).

I am very familiar with most of the bullying laws across the U.S. having authored and regularly updated a fact sheet on our website (www.cyberbullying.us) entitled “A Brief Review of State Cyberbullying Laws and Policies.” Forty-nine states now have bullying laws in place as of October 2013. 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. Current law requires, among other things, 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. A previous attempt update the law in 2011 (Senate Bill 427) failed. Like the earlier effort, the currently proposed changes (Senate Bill 184) are a small step forward but do not significantly address the concerns that I have with Wisconsin’s existing bullying law. Nor does the new proposal recognize the issues I raised in my earlier testimony, submitted in February of 2012, in response to 2011 Senate Bill 427.

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 core 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 recognized 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.”  Although, 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 proposed amendment which directs the DPI to include language in their model policy 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.

Newly proposed in the 2013 bill is a provision that requires school employees who witness or learn about any bullying that may be a violation of criminal law to report the behavior to law enforcement. Specifically, the addition reads:  “A requirement that a school district official or employee who has reasonable cause to suspect that a bullying incident is a violation of a criminal law, report the incident to a law enforcement agency” (118.46 (1) (a) 12). I have some reservations about this because I personally do not feel it is appropriate to get law enforcement involved in all bullying cases, but essentially the vast majority of cases could fall under this, to the extent they involve behaviors that: “frighten, intimidate, threaten, abuse, or harass another person” or “harass, annoy, or offend another person” (947.0125). Since this covers just about every imaginable type of cyberbullying and similar language is included 947.013 for face-to-face incidents that would cover the majority of bullying behaviors, is the intent here to have schools report every incident to the police?  And are school employees trained enough in the law to know the point at which a crime has been committed? I personally don’t think that this is a good idea or wise use of scarce law enforcement resources.

Recommendations

My principal 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 (1) disrupts the ability of a student to learn, (2) infringes on the rights of a student (including the right to be “let alone” at school), or (3) 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.

Finally, and most importantly, I encourage the legislature to provide resources to schools so that they can effectively implement the recommendations and/or requirements included in the law. Schools genuinely do 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. Additional support staff (e.g., school counselors and social workers) would enable schools to intervene earlier in peer relationship problems while funding for appropriately training school-based law enforcement officers (school resource or liaison officers) would allow schools to respond to the worst cases of violence and aggression that occur or impact the school environment. Furthermore, preventing bullying from occurring in the first place is always preferable to waiting until it happens and being forced to respond. Research is now emerging that clearly shows the ability of social emotional learning programming to halt many forms of student misbehavior, including bullying (Espelage & Low, 2012). Other programmatic strategies such as Positive Behavioral Interventions and Supports (PBIS) and Response to Intervention (TRI) have also been shown to improve the quality of the climate in school. Such comprehensive efforts require resources (both staff and money) to implement effectively yet most schools are lacking significantly in that regard.

For more information:

Cyberbullying Research Center (www.cyberbullying.us)

Hinduja, S. & Patchin, J. W. (2009). Bullying beyond the Schoolyard: Preventing and Responding to Cyberbullying. Thousand Oaks, CA: Sage Publications (ISBN: 9781412966894).

Hinduja, S. & Patchin, J. W. (2011). Cyberbullying: A review of the legal issues facing educators. Preventing School Failure: Alternative Education for Children and Youth, 55(2), 71-78.

Hinduja, S. & Patchin, J. W. (2012). School Climate 2.0: Preventing Cyberbullying and Sexting One Classroom at a Time. Thousand Oaks, CA: Sage Publications (ISBN: 978-1412997836).

Espelage, D., & Low, S.M. (2012). Bullying among children and adolescents: Social-emotional learning approaches to prevention. In K. Nader (Ed.), School Rampage Shootings and Other Youth Disturbances: Early Preventive Interventions (pp. 205-219). New York: Routledge.

Patchin, J. W. & Hinduja, S. (2012). Cyberbullying Prevention and Response: Expert Perspectives. New York: Routledge (ISBN: 978-0415892377).

State Cyberbullying Laws: A Brief Review of State Cyberbullying Laws and Policies

Posted by Sameer Hinduja on June 25, 2013

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. (2013). 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

Download PDF

Should Cities Have a Cyberbullying Ordinance?

Posted by Justin W. Patchin on October 15, 2012

I have received quite a few inquiries in the last several months from local elected officials who are interested in proposing a city or county ordinance to address cyberbullying. An ordinance is basically a law or legal decree passed by local municipalities (usually a city, township, or county) that has the authority of law within the geographical limits of that municipality. Most cities have ordinances that govern parking, prohibit loud noises from vehicles, specify building standards, or require the licensure of pets, for example.  If one is found to be in violation of a municipal ordinance, the person is usually fined a relatively small amount of money.

Several cities in my home state of Wisconsin have recently passed ordinances (e.g., Viroqua; Franklin).  In addition, a number of cities in Missouri enacted local ordinances prohibiting cyberbullying following the tragic suicide of Megan Meier in 2006.  At that time, there appeared to be very few legal (criminal) options to hold someone accountable for cyberbullying or other forms of online harassment. The question to consider is whether a local cyberbullying ordinance is the right way to tackle this problem.  Here are my thoughts on this issue.

First, forty-nine states now have bullying laws in place and the vast majority of those (45) include provisions for electronic forms of harassment. The wording in these laws differs significantly from state to state, but all require schools to have policies in place to prohibit bullying and most prescribe school-based sanctions for participating in bullying. So these laws and a long line of court caselaw states that cyberbullying that occurs on school property or that substantially disrupts the school environment is subject to school authority and discipline.

Second, many states (including Montana—the one state without a formal bullying law) already have statewide criminal statutes that address cyberbullying.  For example, in Wisconsin, it is a Class B misdemeanor to send an email or other computerized communication: “With intent to frighten, intimidate, threaten, abuse or harass another person…”  Moreover, one is subject to a fine of up to $1,000 if they “harass, annoy, or offend another person” using an electronic communication system. Very few law enforcement officers I have communicated with here in Wisconsin have charged a student with violating this statute; however it is slightly more common for the police here (and in other places around the U.S.) to charge a student with disorderly conduct for harassing online behaviors.

So we need to ask ourselves what cyberbullying behaviors or scenarios exist that would not be covered under the above avenues and therefore would require a local ordinance?  I suppose if you are in a state that does not have suitable state bullying or harassment (online or otherwise) statutes, then pursuing a local remedy might be necessary.  Some of the local officials I have spoken to have indicated that their district attorney was reluctant or unwilling to file formal charges for cyberbullying behaviors and a city ordinance would give local police the ability to go after cyberbullies through the city attorney’s office.  I’m not convinced this is the best place to handle these cases, but it does provide an additional lever to pull for someone who continues to engage in problematic online behaviors.

There is one potential benefit to local ordinances that may be specific to Wisconsin (it may apply to other states, I just don’t know).  In Wisconsin, any contact that a person 17 years of age or older has with a circuit court (our lower level criminal court) is listed online through the Consolidated Court Automation Programs (CCAP).  Anyone can look others up online through this public record system by name and birth date to see what trouble they have gotten into.  When applying for jobs it is easy for hiring managers to look in this database to see whether someone has had a brush with the law.  For example, if a high school junior receives an under-age drinking ticket when she is 17 years old, that would be listed on this website.  Forever.  So if that same student is then issued a citation for misusing a computerized communication system (sends a harassing email to a peer), which is a violation of Wisconsin state law, that too would be listed on the website, seemingly forever.  If you are a victim of cyberbullying then maybe you think this is a good thing: the bully gets the punishment he or she deserves.  But I think it is unrealistic to assume that anyone, especially teens, will be deterred from cyberbullying others for fear of being arrested and put on this online court system.

That is where a benefit of a local ordinance might be useful. If a city has a municipal ordinance prohibiting online harassment and also has a municipal court, then potentially the infraction would be handled at the local level and therefore the citation would not end up on the online public record. The “bully” would be punished, but it wouldn’t necessarily impact them for the rest of their life like a state violation could.

Look, the bottom line for me in all of this is that I believe that the vast majority of cyberbullying incidents, at least those that occur among school-aged youth, can and should be handled at the local level: by parents working with schools to resolve the situation outside of the formal juvenile justice system.  If the harassment is particularly egregious or continues after other attempts have been made to stop it, then perhaps additional formal steps are necessary.  But I just don’t think a local ordinance, on balance, will do much to add to the toolkit of suitable response strategies for this problem.

One thing is clear: if states had practical cyberbullying legislation, then local communities would not need to be looking to develop their own legal responses.  I spend a lot of time working with legislators to develop cyberbullying laws. As I have mentioned on this blog before, despite my best efforts, my state of Wisconsin has a pretty poor bullying law that doesn’t even mention cyberbullying.  I advocate language that emphasizes the school’s recognized authority to discipline students for any behavior that interferes with another student’s ability to feel safe and to learn at school.  Specifically, I encourage legislators to adopt the following language:

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.

To be sure, this language focuses exclusively on the school’s role in responding to student bullying and cyberbullying.  It is also vitally important that parents are involved in disciplining their children when they misuse technology, but that is more difficult to legislate.

Of course the above legislative language wouldn’t address adult behaviors.  Those should be handled in civil court (intentional infliction of emotional distress, harassment, false light, etc.) or in rare cases criminal court (harassment, stalking, misuse of computerized communications devices).  For more information about responding to adult online harassment, see my blog here.

What do you think?  Does your city have a cyberbullying ordinance?  If you are a police officer or local prosecutor, I would love your opinion on whether you think local regulations are the way to go.

Remarks to the Minnesota Task Force on the Prevention of Bullying

Posted by Justin W. Patchin on May 22, 2012

Yesterday I had the opportunity to speak to members of the Minnesota Task Force on the Prevention of Bullying.  Members were appointed by Governor Mark Dayton with the charge of recommending a course of action to the governor about how best to prevent and respond to bullying.  Below were my comments to the group.

Remarks to Minnesota Governor Mark Dayton’s Task Force on the Prevention of Bullying

May 21, 2012

Justin W. Patchin, Ph.D.

http://www.cyberbullying.us/

Good afternoon ladies and gentlemen. I am happy to be with you today to talk a little bit about my research and life’s work over the last decade.  I have to say that I am not accustomed to writing my comments ahead of time and reading them in this way, but for this particular event I thought it was necessary to make sure I was able to convey as much of the important information as concisely as possible in about 10 minutes to set the stage for our discussion.  I am used to presenting a 6 hour workshop for educators and I don’t think anyone here would like it if I went that long.  In addition, I will make these remarks, with appropriate citations, available to you all for review following our discussion.

My name is Justin Patchin and I am an Associate Professor of criminal justice at the University of Wisconsin-Eau Claire.  I have just finished my 8th year on campus.  Prior to arriving in Eau Claire, I spent 5 years at Michigan State University, completing my graduate work, teaching classes, and conducting research.  I did my undergraduate work at the University of Wisconsin-Superior.  I grew up in Northern MN, on the Iron Range.  My parents still live up there and I frequently visit and spend time in and around the Boundary Waters.  Much of my extended family lives here in the metro area.

While I was in college I started working with delinquent youth in residential and then day treatment in Duluth.  I was talked into applying for graduate school and when I got accepted to Michigan State, intended to get a Master’s Degree in criminal justice with an emphasis on juvenile delinquency prevention and then come back to MN to be a juvenile probation office.  Well, I just enjoyed MSU so much I stuck around long enough for them to give me a PhD.

In my first days on campus, I met up with Sameer Hinduja, who came to Michigan State to study computer crime.  We shared a very small office together and one day just started talking about our respective interests: mine in juvenile delinquency, school violence, and bullying; and his in computer crime, identity theft, and other emerging forms of high-tech crime.  We started thinking about the ways that youth were using technology to cause harm to one another.  We had heard of the term “cyberbullying” but didn’t know what it really involved.  This was around 2001 and no one else was really studying the problem either, so we started to.  Since then we have conducted 7 formal surveys of over 12,000 students in over 80 schools from around the United States.  We have also surveyed parents, educators, and law enforcement officers on their perspectives of this problem. I want to spend a few brief minutes talking about what we have learned over the last 10 years through these studies, focusing specifically on 3 areas: 1) Research; 2) Legislation; and, 3) Prevention.

Now, we have also asked questions about traditional bullying that happens at school, but there are many other competent researchers who have addressed this problem, so I will focus my comments on cyberbullying.  We define cyberbullying as “willful and repeated harm inflicted through the use of computers, cell phones, or other electronic devices” (Hinduja & Patchin, 2009).  Admittedly, this is an imperfect definition, which is why when we survey others about this problem, we approach it from two perspectives.  First, we instruct respondents that “cyberbullying is when someone repeatedly harasses, mistreats, or makes fun of another person online or while using cell phones or other electronic devices.”  We then ask if they have experienced this or done this to others in their lifetime or the previous 30 days.  Second, we ask them about particular behaviors they have experienced.  Specifically, we ask them if they have experienced or done any of the following:

•    posted mean or hurtful comments online
•    posted a mean or hurtful picture online
•    posted a mean or hurtful video online
•    created a mean or hurtful web page
•    spread rumors online
•    threatened to hurt through a cell phone text message
•    threatened to hurt online
•    pretended to be me someone else and acted in a way that was mean or hurtful

We also spend a great deal of time trying to keep up with the research that others are doing, both in the U.S., and abroad.

What We Know About Cyberbullying

Estimates of the number of teens who have experienced cyberbullying are all over the map. I can point you to a paper published in a peer-reviewed academic journal that says that 72% of students have been cyberbullied while another published study puts the number at less than 5%. The numbers are similarly varied when it comes to the number of students who have cyberbullied others. So how many teens have been involved?  Last summer we reviewed all of the published papers on cyberbullying to try to get a handle on this question. These results were published last year in our book Cyberbullying Prevention and Response: Expert Perspectives, which included contributions from a number of knowledgeable sources from around the United States.

As of the summer of 2011, there had been at least forty-two articles on the topic of cyberbullying published in peer-reviewed journals across a wide variety of academic disciplines. Although there are additional articles being published quite regularly and it is likely that we have missed some published works, this review represents the most comprehensive summary of available research findings at the time of its writing.

Among the thirty-five papers published in peer-reviewed journals prior to the summer of 2011 that included cyberbullying victimization rates, figures ranged from 5.5% to 72% with an average of 24.4%. Most of studies (n=22) estimate that anywhere from 6% to 30% of teens have experienced some form of cyberbullying. These findings are consistent with our own research over the last ten years. The percent of youth who responded to our surveys who have experienced cyberbullying at some point in their lifetime ranged from 18.8% to 40.6% in our studies, with an average of 27.3%. Our most recent study based on data collected in the spring of 2010 found that about 21% of youth had been the target of cyberbullying.

Moreover, the number of youth who admit to cyberbullying others at some point in their lives is a bit lower, though quite comparable.  Among twenty-seven papers published in peer-reviewed journals that included cyberbullying offending rates, 3% to 44.1% of teens reported cyberbullying others (average of 18%).  Across all of our studies, the rates ranged from about 11% to as high as 20% in our most recent study (average 16.8%).

A couple of other broad generalizations can be made about cyberbullying, based on the extant literature:

•    Adolescent girls are just as likely, if not more likely than boys to experience cyberbullying (as a victim and offender) (Kowalski et al., 2008; Hinduja & Patchin, 2009)

•    Cyberbullying is related to low self-esteem, suicidal ideation, anger, frustration, and a variety of other emotional and psychological problems (Hinduja & Patchin, 2010; Patchin & Hinduja, 2010; Patchin & Hinduja, 2011)

•    Cyberbullying is related to other issues in the ‘real world’ including school problems, antisocial behavior, substance use, and delinquency (Hinduja & Patchin, 2007; Hinduja & Patchin, 2008)

•    Traditional bullying is still more common than cyberbullying (Lenhart, 2007; Smith et al., 2008)

•    Traditional bullying and cyberbullying are closely related: those who are bullied at school are bullied online and those who bully at school bully online (Hinduja & Patchin, 2009; Ybarra, Diener-West, & Leaf, 2007)

Of course more research is necessary.  We do not have any good longitudinal research on cyberbullying.  We also do not have any good evaluations of programs that target online safety or cyberbullying.  The Olweus Prevention program has demonstrated some success with respect to bullying at school, especially internationally, but even that program could benefit from more sophisticated process and outcome evaluations.  Such endeavors are costly and take time, but would be well worth the money in the long run.

Legislative Issues

Forty-nine states now have bullying laws in place or scheduled to be implemented in 2012.  Minnesota law requires schools to have a bullying policy that seemingly includes “electronic forms and forms involving Internet use” but does not explicitly refer to cyberbullying or include guidance for responding to off-campus incidents of bullying.  Educators are particularly challenged by this last issue; that is, knowing whether or not they can discipline students for cyberbullying when the behaviors largely occur away from school.  Thankfully, caselaw provides much guidance on this question.

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 and imminent threat to the order of the school then appropriate action can be taken.

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 than 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]). In short, if one 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.  Moreover, a target’s right “to be secure and to be let alone” (also from Tinker) is being violated.  As such, it is important that any state bullying law includes this information so that schools know that they do in fact have the authority to respond.  It is also important that schools include this information in their policies because students need to be notified that their off campus conduct is subject to school sanction, within the above-discussed parameters.

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.).

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, legislation should provide staff development and training resources to the Department of Education or other state educational training service providers in order for school officials to learn about the law and about how to prevent and respond to cyberbullying more effectively.

The Importance of School Climate

The benefits of a positive school climate have been identified through much research over the last thirty years. It contributes to more consistent attendance, higher student achievement, and other desirable student outcomes. Though limited, the research done on school climate and traditional bullying also underscores its importance in preventing peer conflict. Existing research has consistently identified an inverse relationship between specific components of school climate and bullying among students (e.g., Gottfredson & Gottfredson, 1985; Malecki & Demaray, 2004; Rigby, 1996; Whitney & Smith, 1993).  Our recently published book: School Climate 2.0: Preventing Cyberbullying and Sexting One Classroom at a Time argues that the impact of a positive climate extend beyond the classroom walls.

For example, our research has shown that students who experienced cyberbullying (both those who were victims and those who admitted to cyberbullying others) perceived a poorer climate at their school than those who had not experienced cyberbullying. Youth were asked whether they “enjoy going to school,” “feel safe at school,” “feel that teachers at their school really try to help them succeed,” and “feel that teachers at their school care about them.” Those who admitted to cyberbullying others or who were the target of cyberbullying were less likely to report feeling safe and cared about at school.  The better the climate, the fewer problematic online behaviors were reported by students (cyberbullying and sexting).

We also found that teachers who talk about these issues with their students are making a difference. Even though almost half (46 percent) of students said their teacher never talked to them about being safe on the computer and 69 percent of students said their teacher never talked to them about using a cell phone responsibly, when these conversations happen, they seem to have a positive impact.  Students who told us that a teacher had talked to them about being safe on the computer were significantly less likely to report that they had cyberbullied others in the previous 30 days.

Finally students from schools with a better climate were more likely to report that they felt as though their school was likely to respond to incidents of cyberbullying when it was reported to a teacher or other educator at school.  In short, educators who do establish a nurturing and caring classroom and school climate will make great strides in preventing a whole host of problematic behaviors, both at school and online.

Conclusion

In conclusion, I would like to advocate for three specific areas of focus as you move forward with your work.  First, more research is necessary.  We need to know more about all forms of bullying, and especially what works in the areas of prevention and response.  Second, we need legislation that is prescriptive, thoughtful, evidence-based, and supported with adequate resources. If legislators are serious about doing something to stop bullying, they must move beyond the rhetoric and provide appropriate resources for schools, parents, law enforcement, and other community institutions to tackle this problem.  Third, focusing on improving the climate at school can have a significant impact on a host of problematic behaviors.  If students believe that they are cared about at school, and they value those relationships with their teachers, counselors, and administrators, they will in turn refrain from engaging in behaviors that would risk damaging those relationships.  That said, bullying and cyberbullying are not just school problems, they are societal problems.  Everyone has a role and responsibility to do something, and it can start right here with us today.

Thank you.

Works Cited

Gottfredson, G. D., & Gottfredson, D. G. (1985). Victimization in schools. New York: Plenum Press.

Hinduja, S. & Patchin, J. W. (2007). Offline consequences of online victimization: School violence and delinquency. Journal of School Violence, 6(3), 89-112.

Hinduja, S. & Patchin, J. W. (2008). Cyberbullying: An exploratory analysis of factors related to offending and victimization. Deviant Behavior, 29(2), 129-156.

Hinduja, S. & Patchin, J. W. (2009). Bullying beyond the Schoolyard: Preventing and Responding to Cyberbullying. Thousand Oaks, CA: Sage Publications (ISBN: 9781412966894).

Hinduja, S., & Patchin, J. W. (2010). Bullying, Cyberbullying, and Suicide. Archives of Suicide Research, 14(3).

Hinduja, S. & Patchin, J. W. (2012).  School Climate 2.0: Preventing Cyberbullying and Sexting One Classroom at a Time.  Thousand Oaks, CA: Sage.

Kowalski, R. M., Limber, S. P., & Agatston, P. W. (2008). Cyber bullying: Bullying in the digital age. Malden, MA: Blackwell Publishing.

Lenhart, A. (2007). Cyberbullying and Online Teens. Retrieved June 27, 2007, from http://www.pewinternet.org/pdfs/PIP%20Cyberbullying%20Memo.pdf

Malecki, C. K., & Demaray, M. K. (2004). The role of social support in the lives of bullies, victims, and bully-victims. In D. L. Espelage & S. M. Swearer (Eds.), Bullying in American schools (pp. 211-225). Mahwah, NJ: Lawrence Erlbaum.

Patchin, J. W. & Hinduja, S. (2010). Cyberbullying and self-esteem. Journal of School Health, 80(12), 614-621.

Patchin, J. W. & Hinduja, S. (2011). Traditional and nontraditional bullying among youth: A test of general strain theory. Youth and Society, 43(2), 727-751.

Patchin, J. W. & Hinduja, S. (2012).  Cyberbullying Prevention and Response: Expert Perspectives.  New York: Routledge (ISBN: 978-0415892377).

Rigby, K. (1996). Bullying in schools: And what to do about it. London: Jessica Kingsley Publishers.

Smith, P. K., Mahdavi, J., Carvalho, M., Fisher, S., Russell, S., & Tippett, N. (2008). Cyberbullying: its nature and impact in secondary school pupils. Journal of Child Psychology and Psychiatry, 49(4), 376-385.

Whitney, I., & Smith, P. K. (1993). A survey of the nature and extent of bullying in junior/middle and secondary schools. Educational Research, 31(1), 3-25.

Ybarra, M. L., Diener-West, M., & Leaf, P. J. (2007). Examining the Overlap in Internet Harassment and School Bullying: Implications for School Intervention. Journal of Adolescent Health, 41, S42-S50.

Wisconsin’s Bullying Law

Posted by Justin W. Patchin on February 24, 2012

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.