Anthony Zeno v. Pine Plains Central School District
A new bullying case has emerged from the Second Circuit Court of Appeals (New York) which demonstrates that schools could potentially be held liable for monetary damages even in cases where they do take steps to respond to harassment that occurs in school. The point this particular case makes is that a school response needs to be effective to be sufficient.
According to court documents, Anthony Zeno moved to Stissing Mountain High School mid-way through his freshmen year (in 2005). Very early on he was inundated with threats and subject to racial slurs from students at the predominantly white school (Anthony is half-white and half-Latino). When his mother reported the first incident to the school, principal John Francis Howe reportedly told her that: “this is a small town and you don’t want to start burning your bridges.” So the harassment continued. Anthony repeatedly reported incidents to the school and his mother contacted the District superintendent and school board. Nobody at the District level responded. In some cases individual students were warned and even suspended, but the behaviors continued.
The incidents escalated in his sophomore year with students threatening him in the cafeteria and on the football field. “Zeno is dead” and “Zeno will die” was scrawled on the school bathroom walls. In multiple occasions he was threatened with specific references to a lynching. Again, the school responded by suspending the students for individual cases and even moved one of the aggressors to another school. Principal Howe asked staff to keep an eye on Anthony.
Despite the racially motivated nature of the threats, the school’s Title IX compliance officer did not investigate the allegations (she is also responsible for enforcing Title VI of the Civil Rights Act of 1964 which prohibits recipients of federal funds from discriminating on the basis of race). During Anthony’s sophomore year, the school contracted with an individual to provide information to students, staff, and parents on bullying and harassment, but the program did not include any substantive discussion of racial discrimination. In his junior year, the school hired someone to train faculty and staff on racial diversity and stereotypes and to conduct student focus groups and surveys. No actual training was conducted that year however.
The incidents continued into his senior year. Though less frequent, they reportedly became more serious. According to the lawsuit, in one incident “a student called Anthony’s sister a ‘slut’ and threatened to kick Anthony’s ‘black ass.’” There was a fight and one of Anthony’s friends was choked to the point of losing consciousness.
Because of the daily harassment, Anthony struggled with his academic work and fell behind. He didn’t have enough credits to graduate with a full diploma so he settled for an “IEP diploma” which allowed him access to some community colleges but would make him ineligible for the military, trade schools, or more comprehensive post-secondary education. He didn’t think he could endure another year or two at that school.
In July of 2007 Anthony sued the school, alleging discrimination based on his race. He argued that he was denied educational benefits as a result of the racial harassment. The trial began in March of 2010 and a jury found that the School District had violated Anthony’s civil rights under Title VI and awarded him $1.25 million. A subsequent district court ruling reduced that award to $1 million plus attorney’s fees.
The Second Circuit Court of Appeals concurred with the earlier ruling, agreeing that the school was deliberately indifferent to the harassment that was taking place, even though punishment was meted out after most incidents. The court pointed out that victims “do not have a right to specific remedial measures” (p. 26), but noted that “the sufficiency of a response, however, must be considered” (p. 34). Even though the school District “suspended every student who was identified as harassing Anthony” (p. 33), the behaviors became increasingly severe. As such, the court agreed that the school should have done more.
What educators should take away from this ruling is that once they learn of harassment taking place, they have an obligation to do everything in their power to ensure that it stops. Simply disciplining the student who did the bullying, without following up to make sure that it actually stops and that the person targeted is safe, is not enough. Applying discipline and implementing new programming is only sufficient to the extent that the behaviors desist. Citing Wills v. Brown University the court stated: “[E]vidence of an inadequate response is pertinent to show fault and causation where the plaintiff is claiming that she was harassed or continued to be harassed after the inadequate response.” The jury in Anthony’s case found, and the appellate court agreed, that “the District’s additional remedial actions were little more than halfhearted measures” (p. 38).
Implementing a particular response without concern for its efficacy evidently is not enough to protect a school from a claim of deliberate indifference. Responses to bullying need to be targeted (focusing on the nature of the harassment), comprehensive (long-term recurring programming vs. a one-time brief presentation), and effective (the bullying has to stop or at least be reduced significantly in frequency and seriousness). Due diligence involves more than just applying an immediate response – it demands that the response move behaviors in the desired direction.
Should Cities Have a Cyberbullying Ordinance?
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.
Teens and Technology, School District Policy Issues, 2012-2013
With the beginning of the school year upon us again, I thought it might be valuable to review a very important topic. One of the most important steps a district can take to help protect their students and protect themselves from legal liability is to have a clear and comprehensive policy regarding bullying and harassment, technology, and their intersection: cyberbullying.
Almost every state requires districts to have a comprehensive policy in place, and generally involve one (or more) of the following elements:
1. requirement to add “cyberbullying” or “electronic bullying” to current anti-bullying policies;
2. provision of specific graduated consequences and remedial actions for cyberbullying;
3. provision to allow administrators to take reasonable action when off-campus actions have affected on-campus order;
4. requirement to develop new investigative, reporting and disciplinary procedures in cyberbullying cases;
5. Mandate that schools create and implement prevention programming (such as Internet safety, ethics, etiquette training and curricula).
In our award-winning book Bullying Beyond the Schoolyard, we fleshed out what we believe are the most important components of an effective school cyberbullying policy. This stemmed from our research into what schools were currently doing, and what was working, and what was not. Apart from the aforementioned elements, we believe that tying bullying/cyberbullying prevention/response to a more holistic initiative to improve school climate will be most promising. Let’s explain further the elements that should comprise these policies, so you can make sure your school has solid footing before you deal with any incidents this year.
First, it is important that the policy clearly defines the behaviors it seeks to proscribe. The more specific the policy is, the more likely it will withstand legal challenges. As William Shepherd, a Statewide Prosecutor in Florida’s Office of the Attorney General cautions, however, “The law or policy should be specific, but behavior changes over time, so you must have the ability to grow with the times.”
Also, we list below several forms of bullying that should be clearly delineated in your policy. Generally speaking, any communication that has been perceived by a student as unwanted, vulgar, obscene, sexually explicit, demeaning, belittling, defaming in nature, or is otherwise disruptive to a student’s ability to learn and a school’s ability to educate its students in a safe environment, or causes a reasonable person to suffer substantial emotional distress or fear of bodily injury, should be subject to discipline.
Forms of Bullying
Bullying can occur by one individual or a group of individuals, can be direct or indirect, and can take the following forms:
A. “Physical bullying” – demonstrations of aggression by pushing, kicking, hitting, gesturing, or otherwise invading the physical space of another person in an unwelcome manner. It also includes the unwanted tampering with or destruction of another person’s property.
B. “Verbal bullying” – demonstrations of aggression through insults, teasing, cursing, threatening, or otherwise expressing unkind words toward another person.
C. “Relational bullying” – demonstrations of aggression through exclusion, rejection, and isolation to damage a person’s position and relationship within a social group.
D. “Cyberbullying” – the intentional and repeated harm of others through the use of computers, cell phones, and other electronic devices.
Cyberbullying can result in discipline whether it occurs on or off campus, irrespective of whether it involves an electronic device at school, at home, or at a third-party location, and if it results in a substantial disruption of the school learning environment as defined in this policy.
It is also important to remember that many districts already have policies in place that prohibit various forms of harassment, including harassment based on race or sex. Any behavior that constitutes sexual harassment, for example, should be handled under those provisions, irrespective of whether the behavior is also considered bullying or cyberbullying.
With regard to penalties, any student found to be participating in, contributing to, and/or encouraging acts of cyberbullying and/or harassment towards another student or staff member must be disciplined. Your policy must identify what specific actions will be taken. To determine the severity of the harassment or discrimination, the following may be considered: how the misconduct affected one or more student’s education; the type, frequency, and duration of the misconduct; the number of persons involved; the subject(s) of harassment or discrimination; the situation in which the incident occurred; and other related incidents at the school. Any cyberbullying that has been perceived as a criminal act, such as a threat to one’s personal or physical safety, will be subject to discipline and result in the notification of law enforcement.
Discipline can include a number of different actions. These can include:
• Parental contact
• Behavioral contracts
• Loss of privileges (either in-school or extracurricular)
• Conferences with students, parents, teachers, or administrative staff
• Interventions by school guidance personnel
• School service work or student work detail
• Removal of student from class
• Loss of bus privileges (parents are thus responsible for transportation)
• In-school alternative assignments or intervention programs
• Detentions (before, during, after school, or on Saturday)
• Restorative Justice
• Assignment to alternative program in lieu of suspension days
• Suspension – removal of student from school for up to 10 days
• Assignment to an alternative educational facility
• Expulsion – removal of student from school for remainder of year plus one additional year
We’ve discussed before that it is critical to link specific behaviors with specific disciplinary outcomes so that students know exactly what may happen if they are caught engaging in cyberbullying behaviors. Don’t be afraid to think creatively about alternative sanctions instead of relying on detention or suspension. For example, cyberbullies could be required (based on the grievance) to research and write an essay on the negative affects of cyberbullying. They could also be required to write a formal apology to the aggrieved party or parties. Disciplinary outcomes should be considered and carried out on a case-by-case basis.
We really think that you should be as specific as possible in your policy – make sure you cover harassment and cheating and disrupting the class environment by texting or Facebooking, and talk about threats and explicit pictures and pornography laws and police intervention. Clearly outline the consequences for prohibited behaviors. Get students and parents in on this discussion. Schools will have problems as the school community gets used to these changes, but hopefully the problems will be few and far between and will get better with time.
Students will learn appropriate behaviors and these should—in time—become the norm if a positive school climate is prioritized and established. For example, ten years ago, cell phones were much more of a problem in our college classrooms than they are now. University students, at least in our experience as professors, have gotten better at cell phone etiquette and are not letting the devices distract from learning. Sure, a phone occasionally will go off in class, but usually the student is apologetic and immediately acknowledges the faux pas. Of course middle and high school students are different from those in a university, but we are optimistic that we can work through the same challenges at the secondary school level.
After a policy is created or revised, the school community needs to be educated about it. Students should be informed about the circumstances under which their personal portable electronic devices can be confiscated and searched. They should also be reminded that anything they do on a school-owned device is subject to review and appropriate discipline. This should be explained to students and parents, possibly through assemblies, orientations, community meetings, and messaging strategies (voice mails, memorandums, etc.). Be intentional about conveying these messages, and don’t just assume they know your policy! As a student recently told us:
“I think it’s a good idea that all schools include in their handbook definitions of the types of bullying and sexting as well as the consequences and/ or disciplinary actions, but then perhaps kids should be quizzed on this every school year. Call me an airhead, but I never read the school’s student handbook until my family moved to Florida my junior year of high school. I remember I got in trouble the first day of school because I clearly did not read the dress code part of the student handbook. My old school handed out agendas and handbooks at the beginning of the school year, but no one ever read them. Those things would just get stuffed at the bottom of our lockers. If all schools enforced something as simple as reading the student handbook and made sure students understand what they’re reading, then I think they would be a step closer to educating kids that they can get help if they’re being bullied.
—Anonymous student from Florida
We’ll talk more about policy and school climate in our next blog, so look for that next week!
Guidelines for updating your school’s social networking policy
As a followup to our last blog post, we’d like to share some more guidance to keep in mind as you are updating and refining your school’s policy related to Facebook (and other social networking sites). We hope this is helpful for you. Please remember, though, that you must do a lot more than policy enhancements to be in compliance with the FCC’s new mandates, and to make a meaningful difference in protecting students and avoiding liability issues. Thanks again to Mike Donlin for his excellent summary on these matters!
Preliminary Guidance on the use of Facebook, MySpace and other Social Networking Sites in Schools
- Recognizing the value of social networking in 21st century education,
- Recognizing that social networking is specifically mentioned in Protecting Children in the 21st Century Act and FCC guidance,
- Recognizing that the FCC guidance states specifically that filtering of Facebook, My Space and other social networking sites is not necessarily required, and finally,
- Recognizing that there are potential safety, security and liability issues, the following is preliminary guidance for educators on the use of social networking sites in schools:
1. Check and follow your most current district / school policies and procedures on the use of social networking tools in schools. The policy you may be called by some variation of your district’s Internet Use, Network Use, Internet Access, or Network Access policy. You will also want to check your district’s Internet or network use/access agreement for students and staff.
a. There might be different, separate accounts through the same service, however.
b. Do not use social networking sites which do not come through your district network.
4. Do not share personal information on your professional/educational site.
5. Remember: using a social networking site for educational purposes has the potential for extending your school day beyond the school day and the school walls.
- It also has the potential of exposing students to your own or to others’ personal information, even inadvertently.
6. All rules which apply to your bricks-and-mortar classroom and school apply to the online, social networking environment: bullying, harassment, courtesy, appropriate language, timeliness, etc.
7. Inform and involve school administration
8. Inform and involve parents/guardians as appropriate. However, this also may be problematic:
a. Inviting parents to join/participate would be tantamount to inviting parents to be involved in your classroom every day.
b. The parents would have to know that they should not join using their ‘personal’ sites.
c. Remember: there are students from broken, blended or other non-standard families, as well as some with no-contact orders. The teachers would have to be able to negotiate through all that in some, not too demanding way.
d. This might involve a small number of students, but potential risk and liability issues arise.
9. Do not friend other adults on your educational site.
a. Allow for the possibility of inviting “special guests” for specific educational purposes.
b. For such a professional guest profile-type, establish a vetting process, done by the educator using some sort of rubric.
c. Establish what the expert guest would need to agree to be involved.
d. Consider the involvement of teaching team members, student teachers, specialists, counselors and/or administrators
Public schools, Facebook, and the FCC
Our colleague Mike Donlin and I have been talking out some issues related to public education and teen technology use. He has recently pointed out that there are certain points that the FCC would like schools to know as it relates to their intersection with and use of social networking sites. Specifically, schools need to be very familiar with the Protecting Children in the 21st Century Act, and that it:
1. Adds statutory language to existing FCC rules for implementing the Children’s Internet Protection Act
2. Has an impact on eRate compliance
3. Requires that school districts’ board policies provide for the education of minors regarding appropriate online behavior including interacting with other individuals on social networking websites and in chat rooms, and regarding cyberbullying awareness and response
4. This requirement is in addition to existing Children’s Internet Protection Act requirements (requiring blocks/filters, and education of staff, students, parents, etc.)
Also, in addition to policy language, it is important to note that the FCC also specifically mentions Facebook and MySpace, as well as addressing other social networking sites. The FCC finds that:
1. Individual pages on Facebook or MySpace might be potentially harmful to minors, but
2. these sites are not “harmful to minors”, per se, and
3. do not fall into a category of websites which must be blocked.
4. Further noting recent work by the Department of Education, the FCC and the DOE suggest that “social networking websites have the potential to support student learning…” (FCC 11-125 Report and Order, p.8)
So, what are the implications of all of this?
1. By July 1, 2012, School Boards will have to create or update current Internet Use policies to include wording that they are teaching Internet safety
2. Districts will have to decide how, who and with what they will implement this new requirement
3. With the comments on Facebook and other social networking sites, and with the inclusion of social networking within required Board policy language, education and training around both appropriate and pedagogical uses of social networking resources will be critical
4. Districts and schools will need background and training on issues, materials, approaches, resources
5. Cyberbullying awareness and response will need to be included within ongoing harassment, intimidation and bullying training and program implementation
6. As the education of minors about appropriate online behavior, digital citizenship, cyberbullying, etc., covers a wide range of issues and topics, it will be very important for prevention-intervention, school safety, counseling, educational technology and content specialists to work closely to create as effective and all-encompassing digital safety education program as possible
So, the major question are as follows: Is your district positioned to address all of these requirements? How specifically are you making this happen? What will you use to educate staff and students? What protocols are currently in place as it relates to prevention, investigation, and response? Are they ideal? I know that many states just wrapped up standardized testing, and are just trying to make it through the end of the school year. These matters, though, will have to be addressed before administrators take a break for the summer.