Cyberbullying: What Every Educator Needs to Know Karen Haase Harding & Shultz (402) 434-3000 khaase@hslegalfirm.com H & S School Law @KarenHaase
This is not your y Grandma’s assemblyy
Bullying? “any any ongoing pattern of physical, verbal, or electronic abuse on school grounds, in a vehicle hi l owned, d leased, l d or contracted t t db by a school beingg used for a school p purpose p by a school employee or his or her designee or at school-sponsored designee, activities or school-sponsored athletic events.�
Cyberbullying? Cyberbullying, v: the use of technology such as computers and cell phones to engage in i repeated, t d and dh hostile til b behavior h i byy an individual or group, g p that is intended to harm others. The term "cyberbullying" cyberbullying is used when the victim or bully is a child or teen. The term cyber harassment is used when the victim is an adult.
Cyberbullying y y g Example of cyberbullying b b ll i on iChat (Apple’s instant messaging) i )
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.
Not Myy Students! Tell teacher: 27% of preteens and only 9% of teens Tell friend: 44% of preteens and 72% of teens Told no one: 16% of preteens and teens
Educators’ Responses to Cyberbullying
Cyberbullying y y g of Staff
J.S. v. Blue Mountain Sch. Dist. Middle School Student made fake MySpace profile for principal • Included photo from school website • Initially public; then limited • Students could only access off campus • Student suspended for 10 days; parents sued d
Layshock v. Hermitage Sch. Dist High School Student made fake MySpace profile for principal • Included photo from school website • Other students created similar and more offensive ff i profiles fi • Students only accessed off campus • Student suspended for 10 days; placed l d iin alt. l sch, h banned b d ffrom extracurriculars, no commencement
J.S. and Layshock Inconsistent Third Circuit granted en banc rehearing Oral Argument June 3, 2010 Decision issued June 13, 2011 The Bottom Line? Schools lost both cases
J.S. and Layshock Key legal points • School can’t punish off-campus speech because it is vulgar, inappropriate or even criminal • School S can only punish i off-campus ff p that is substantiallyy speech disruptive
What About the Staff? “We recognize that vulgar and offensive speech such as that p y in this case – even made in employed just – could damage the careers of teachers and administrators and we conclude only that the punitive action taken by the school district violated the First Amendment free speech rights i ht off JS.” JS ” i.e. “We don’t care”
Cyberbullying y y g of Students
T.K. v. New York Dept’t of Ed., (E.D.N.Y 2011) < LD student bullied by peers < Ct.: Ct : < No First Amendment protection for bullies < “…merely …merely requires schools do what the Department of Ed Education ti h has ttold ld th them tto d do ffor years.”
J.C. v. Beverly Hills Unif. Sch. Dist. (Cal.) 8th grade girls talking smack about a peer; uploaded l d d tto Y YouTube T b Principal p suspended p student who uploaded Court: no disruption to school school, no nexus to education, no basis for punishment
Los Angeles (CA) Unif. Sch. Dist., 46 IDELR 198 (OCR 2006) < SpEd Student bullied and cyberbullied < “…the teacher's actions and inactions created a hostile environment for the Student based on disability.”
Kowalski v. Berkeley Co Schs (4th Cir. Ci 2011) Student created MySpace group harassing another student Creator of the page received • 10 10-day day suspension from school • 90-day “social suspension” Ct speech Ct.: h caused d substantial b t ti l disruption, p , therefore discipline p appropriate
Sexting? ď&#x20AC;żMaterial can be distributed via:
-Text messages -Downloads onto laptops/computers -E-mail -Downloads D l d onto t ii-pods/mp-3 d/ 3 players l -Social Networking Sites
How Common is Sexting? g Sexually suggestive photos sent: – 20% overall –22% girls –11% young teen girls (ages 13-16) –18 % boys
How Common is Sexting? g Sexually suggestive messages sent: –39% of all teens –37% girls –40% 40% boys 48% of teens say they have received sexting ti photos h t or messages.
Serious Consequences: Jessica Logan
Criminal Implications Under Nebraska Law NEB. REV. STAT. 28-813: Class IV felony to:
─ knowingly solicit, coax, entice, or lure ─ a child sixteen years of age or y younger g ─ by means of an electronic communication device ─ to t postt images i that th t would ld qualify lif as child pornography under state law
Criminal Implications Under Nebraska Law Affirmative Defense:
─ the picture is only of the defendant;
─ ─ ─ ─ ─ ─ ─
or defendant was younger than 19 picture i is i off someone at least l 15 picture was taken voluntarily picture was given voluntarily picture contains only one child defendant hasn’t shared the picture; AND d f d defendant did didn’t ’ coerce taking ki or sending di
In re Katrina R. 15 year old texted nude pics to her BF Was adjudicated “a child who deports herself so as to injure j or endanger g seriously the morals or health of herself e se or o others” ot e s • Placed in legal custody of HHS • 6 months’’ probation i • Required counseling and community service.
Practical Steps in Dealing with i Sexting S i in i Schools S When You Catch Kids Sexting
Cyber/bullying Responses Keep “Responding and Reporting” separate in your mind (and your staff’ss mind) staff Focus on Small Stuff DOCUMENT, DOCUMENT DOCUMENT, DOCUMENT DOCUMENT Look for nexus Don Don’tt make promises you can can’tt keep
Helping Kids Deal; Tell them to: ►Stop.
Don’t respond to the bully.
►Block.
Block the cyberbully or limit all communications to those you can trust trust.
►Tell.
Tell a trusted adult.
If you discover bullying Do not close your eyes Report R t tto administration d i i t ti asap Document ocu e t everything eve yt g
Does the Victim Need Interventions? Inerventions • Social S i skill i training i i • Hygiene yg training g with,, sped p teacher, counselor or other staff • Peer mentor Be ready for a 504 or SpEd request
Cyberbullying: What Every Educator Needs to Know Karen Haase Harding & Shultz (402) 434-3000 khaase@hslegalfirm.com H & S School Law @KarenHaase