ESU 15 & 16 cyberbullying

Cyberbullying On and Off School Grounds Karen Haase Harding & Shultz (402) 434-3000 khaase@hslegalfirm.com H & S School Law @KarenHaase

Bullying? “any ongoing pattern of physical, verbal, or electronic abuse on school grounds, in a vehicle owned, leased, or contracted by a school being used for a school purpose by a school employee or his or her designee, or at school-sponsored activities or school-sponsored athletic events.�

Cyberbullying?

Cyberbullying, v: the use of technology such as computers and cell phones to engage in repeated, and hostile behavior by an individual or group, that is intended to harm others.

The term "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 Example of cyberbullying on iChat (Apple’s instant messaging)

Divagirl: Hey, loser, watch your back. tmt323: What 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.

Is This Really a Problem?  1 in four kids admit they’ve been cyberbullied  65% of kids know someone who has been cyberbullied  22% of teens have been cyber pranked.  29% of teens admit that they have posted mean info about someone else  24% of teens have had private or embarrassing information revealed against their will

Is This Really a Problem?  86% of teenagers have been stalked by a stranger on their Facebook account.  55% of teens admit they’ve given personal information to someone they do not know  30% of teens have arranged to meet in person someone they met on social media

Isn’t this a Parent Issue?

• 47% of parents admit that they “do little or nothing” to monitor their teens’ online behavior • 67% of teenagers say they know how to hide what they do online from parents.

• 43% of teens say they would change their online behavior if they knew that their parents were watching them.

• 39% of teens think their online activity is private from everyone, including parents.

Cyberbullying of Students

T.K. v. NY Dept’t of Ed., (2011)  LD student bullied by peers  Ct.: • No First Amendment protection for bullies • “…merely requires schools do what the Department of Education has told them to do for years.”

J.C. v. Beverly Hills Unif. S. D. (Cal.)  8th grade girls talking smack about a peer; uploaded to YouTube  Principal suspended student who uploaded  Dad was an entertainment industry lawyer; sued district claiming First Amendment protection

J.C. v. Beverly Hills Unif. S. D. (Cal.)  Court: The good intentions of the school notwithstanding, it cannot discipline a student for speech, “simply because young persons are unpredictable or immature, or because, in general, teenagers are emotionally fragile and may often fight over hurtful comments.”  $107,150.80 in attorneys fees

J.C. v. Beverly Hills Unif. S. D. (Cal.)  Dad: • Hopes his daughter learns a lesson about the limits on governmental intrusion.

• “The school doesn’t have that kind of power. It’s up to the parents to discipline their child.”

• Chastised daughter: “That wasn’t a nice thing to do.”

Los Angeles Unif. S. D., (2006)  SpEd Student bullied and cyberbullied  “…the teacher's actions and inactions created a hostile environment for the Student based on disability.”

Shea v. Union Free Sch. Dist. of Massapequa, (N.Y. 2009).  Teenage girl bullied in person and online in middle and high school  Girl dignosed with PTSD and anxiety  School: motion to dismiss  The court denied the district’s motion  Lawsuit settled

Responding to Cyberbullying

Cyber/bullying Responses    

Keep “Responding and Reporting” separate in your mind (and your staff’s mind) DOCUMENT, DOCUMENT, DOCUMENT Look for nexus Don’t make promises you can’t keep

Board Role in Responding • • • •

Bullying policy 1:1 issues Accountability for supervision Raising adult awareness –Administration –Staff –Parents

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.



Tell. Tell a trusted adult.

Does Victim Need Interventions? 

Interventions • Social skill training • Hygiene training with, sped teacher, counselor or other staff • Peer mentor  Be ready for a 504 or SpEd request

Cyberbullying 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

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 profiles • Students only accessed off campus • Student suspended for 10 days; placed in alt. sch, banned from 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 can only punish off-campus speech that is substantially disruptive

What About the Staff?

“We recognize that vulgar and offensive speech such as that employed in this case – even made in 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 of JS.” • i.e. “We don’t care”

Cyberbullying: What Every Educator Needs to Know Karen Haase Harding & Shultz (402) 434-3000 khaase@hslegalfirm.com H & S School Law @KarenHaase