Updated Cyberbullying from School Law Update

Bullying y g and Cyberbullying y y g Kelley K ll Baker B k & Bobby Truhe Harding & Shultz (402) 434 434-3000 3000 kbaker@hslegalfirm.com btruhe@hslegalfirm.com @ g

Bullying y g (§§ 79-2,137) Bullying “any ongoing pattern of physical, verbal, or electronic abuse on school grounds, in a school vehicle owned, leased, or contracted by a school b i used being d ffor a school h l purpose b by a school employee p y or his or her designee g or at school-sponsored activities or school sponsored athletic events school-sponsored events.

Cyberbullying Cyberbullying: the use of technology such as computers and cell phones by an individual or group to engage in repeated, and hostile behavior, that is i t d d tto h intended harm others. th “Cyberbullying" y y g is used when the victim or bullyy is a child or teen. “Cyber harassment� is used when the victim is an adult.

3 Policyy Steps p

1. Make Workable Policies  Make sure that your policies are more than just j lip i service i  If yyou follow your y policies, p , will the school and its students be safe?  Create an anti anti–bullying bullying program that involves all kinds of people  Students, Classified/Certified Staff Administrators Staff, Administrators, Parents

2. Make Your Education Count  

Provide practical, not just scary, bullying prevention education Work with students to create and meet actual goals to reduce bullying incidents Once students receive your bullying education, they should know how to reportt b bullying ll i without ith t fear f

3. Don’t Keep it a Secret 

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Work with your district’s legal counsel to ensure appropriate i responses to all ll bullying reports Let students know that you foster an environment of anti-bullying y g with posters, announcements, etc.

Report bullying to social media sites like Facebook and Twitter

Cyberbullying

Common Cyberbullying Tactics  Stealing someone’s online name and using it to write nasty rumors, comment or spread gossip comment, gossip.  Altering someone’s message or doctoring photographs to say somethingg different or make fun of a person.

Common Cyberbullying Tactics Commenting on Facebook and having others “Like” it. Posting damaging information on blogs or web sites. C ti or ttaking Creating ki partt in i Internet I t t polling p g or list-makingg Making mock profiles and websites

Common Cyberbullying Tactics Commenting on Facebook and having others “Like” it. P ti damaging Posting d i information i f ti on blogs g or web sites. Creating or taking part in Internet polling or list-making Making mock profiles and websites

Common Cyberbullying Tactics Commenting on Facebook and having others “Like” it. Posting damaging information on blogs or web sites. C ti or ttaking Creating ki partt in i Internet I t t polling p g or list-makingg Making mock profiles and websites

Kowalski v. Berkeley Co. Schools Kara Kowalski – senior, Musselman Hi h School, High S h l B Berkeley k l C Co., W W.V. V Created MySpace discussion group webpage “S.A.S.H.” on home computer Ridiculed Shay N., another student KK -- “Students Against Sluts Herpes” Cl Classmate t -- S.A.S.H S A S H was acronym ffor “Students Against Shay’s Herpes”

Kowalski v. Berkeley Co. Schools KK invited 100 “friends” to join group About two dozen students joined Ray, a student, joined the group from a school computer. computer He added: “Shay Has Herpes” and pictures of Shay:  With red dots on face With sign over pelvis “Warning: Enter at your own risk” And “portrait portrait of a whore whore”

Other vulgar comments

Kowalski v. Berkeley Co. Schools Shay skipped school P Parents complained l i d off harassment h Principal p investigated g – spoke p with KK and “friends” – and determined: KK had created a hate web site She had violated Code of Conduct and policy prohibiting harassment, bullying and intimidation

Consequences Consequences for KK: S Suspended d d ffrom school h l 10 d days ((later cut to 5)) 90-day social suspension -- couldn’t attend school events if she was not a direct participant Couldn’t crown new “Queen of Charm Charm”

KK’s Lawsuit Isolated at school Ad i i t t Administrators and d teachers t h gave her h th the cold shoulder Filed suit alleging violation of: 1st Amendment – free speech p 5th Amendment – due process 8th Amendment – cruel and unusual 14th Amendment – equal protection West Virginia Constitution Intentional infliction emotional distress

Court of Appeals for 3rd Circuit Facts KK targeted t t d Shay Sh Encouraged classmates to target Shay KK’s role in webpage “particularly mean spirited and hateful” hateful Other students’ conduct “indisputably h harassing i and db bullying” ll i ” Behavior violated school p policies & regulations

Court of Appeals for 3rd Circuit Free Speech – were KK’s actions w/in b boundaries d i school’s h l’ llegitimate iti t interest i t t in i maintaining order and protecting students well being and education rights? YES – Tinker v. Des Moines Student rights not coextensive w/ adults Special characteristics of school Material and substantial disruption

First Amendment School responsible for safe environment D t tto protect Duty t t students t d t ffrom b bullying ll i and harassment  Webpage was platform for attacks  Shay has herpes, was a slut  Defamatory photos and accusations  “Whore” “Wh ” and d ““screw h her” ” Not “habits and manners of civility”

Free Speech Issue Tinker: “[C]onduct by [a] student, in class or out of it it, which for any reason reason--whether whether it stems from time, place, or type of b h i behavior--materially t i ll disrupts di t classwork l k or involves substantial disorder or invasion of the rights of others is, of course, not immunized byy the constitutional gguarantee of freedom of speech.” Schools have “compelling compelling interest” interest

Nexus With the School KK – my conduct took place at home Court – where did speech take place? “Kowalski “knew that the electronic response would ld be, b as it in i fact f t was, published beyond her home and could reasonably be expected to reach the school or impact p the school environment.” KK intended and knew it would reach the school.

Due Process/Other Issues KK – rule was unconstitutionally vague KK received student handbook Bullying policy Student Code of Conduct Principal p conferred with KK Satisfied Goss. v. Lopez requirements Dismissed claim of intentional infliction of emotional distress – no merit

Recommendations Student handbook should contain: Prohibition of bullying y g Code of conduct re proper behavior Inform and orient students to policy Investigate complaints carefully M k sure of/be Make f/b able bl tto prove connection ti between misconduct and school interest Disrupts classwork Involves substantial disorder Invades rights of others

Cyberbullying y y g Example of cyberbullying on iChat (Apple’s instant messaging)

Divagirl: Hey, loser, watch your back. t t323 What tmt323: Wh t r u talking about?

Divagirl: Why don't you kill yourself while u r ahead? tmt323: Why can't you just leave me alone?

Divagirl: Ugly girls like u need to be put in their place.

How Common is Cyberbullying? ďƒ˜ One in four students between the ages of 11 and 19 have been the y y g victim of cyberbullying. ďƒ˜ About 65 percent of students know of someone who has been cyberbullied.

Not my Kids!

43% of teens are exposed to cyberbullying in one form or another yet only 1 in 10 kids told their parents, according to a 2008 report f from th the U U.S. S N National ti lC Crime i Prevention Council

So what’s what s the big deal?

Civil Consequences q  Student and parents can be sued • Homeowners insurance often pays  Suit S it can b be ffor: • Intentional infliction of emotional di t distress • Tortuous interference • Slander Sl d

D.C. v. R.S. (Cal. 2010) High school student posted on victim’ss website victim • I want to rip out your f-ing heart and f d iit to you. feed • I've wanted to kill you.

• If I ever see you I'm going to pound yyour head in with an ice pick. p

 Family sued; student it was a “joke”  Litigation Liti ti allowed ll d to t continue ti

School Consequences q  Neb. Rev. Stat. 79-2,137 ,  Definition: “an ongoing pattern of physical verbal or electronic abuse physical, abuse”  Consequences: ─ Loss of extracurricular e trac rric lar privileges pri ileges ─ Detentions ─ Short and Long Term Suspension ─ Expulsion ─ Alternative School Assignment

Examples  Seattle, WA: Facebook page bullied a girl (fat, (fat stupid, stupid ugly)  21 students “liked” the Facebook page p g  School suspended bully and all 21 who “liked” her page (punishment upheld)  Memphis p TN: Honors student commented on a friend’s status  Suspended for 180 days

Nebraska Student Discipline Act Misconduct must occur: –On school grounds –In In a school vehicle –At At a school activity

Constitutional Considerations < Constitutional Analysis y < Schoolâ&#x20AC;&#x2122;s Restrictions v. Studentâ&#x20AC;&#x2122;s Right to Free Expression

Constitutional Analysis  Tinker (1969) “the forbidden speech [must] materially and substantially interfered with the operation of the school . . . ”

 Fraser (1986) “The school’s interest in teaching students the boundaries of socially appropriate behavior gives the school the right to determine what manner of speech in the classroom or in a school assembly is inappropriate.”

 Hazelwood (1988) “A school does not have to tolerate speech that disrupts the school’s educational mission.”

Criminal Consequences  Neb. Rev. Stat. 28-311.01  Terroristic Threats: “threatens to commit anyy crime of violence …

• With the intent to terrorize another • In reckless disregard of the risk of causing such terror  Class Cl IV F Felony l punishable by: • Up to 5 years in prison and/or • $10,000 $10 000 fine fi

In re Minor Child (Alabama)  High school students arrested at school h l for f th threatening t i a classmate l t on MySpace, saying: • They would beat him up They’d d plant a bomb in his locker • They • He deserved to die  Charged bullies with making terroristic threats

Serious Consequences: Jessica Logan

What They y Are Saying y g  Office of Civil Rights g  Watch labeling and policies  Nebraska Dept. of Education  Comprehensive Comprehensi e prevention pre ention  ACLU  Guide for students and parents

Pre-discipline Analysis Location? ocat o ?  Created with school computers or on school property?  Contemplates C t l t actions ti taken t k att school or school activity?  Brought to or promoted at school or school activity?

Bullying y g and Cyberbullying y y g Kelley Baker & Bobby Truhe Harding & Shultz (402) 434-3000 kbaker@hslegalfirm.com @ g btruhe@hslegalfirm.com