Bullying, Cyberbullying and Sexting

1. Bullying, Cyberbullying and Sexting Eric G. Rodriguez & Maxine Longoria-Nash

2. Bullying. Take a deep breath. • OCR: Bullying is often “discriminatory treatment” • Do more than just discipline • School is responsible for WHAT IT KNOWS or SHOULD HAVE KNOW • Label used to describe incident doesn’t matter as much as the nature of the conduct itself • What are you doing PROACTIVELY about bullying? • Who is your 504 Coordinator? • You are “responsible employees”

3. Bullying • Expression: written, verbal, and through electronic means • Physical conduct • That occurs on school property, school sponsored or school related activities, or in a vehicle operated by the district • Physical harm, damage to property • Severe, persistent, or pervasive = intimidating, threatening or abusive educational environment

4. Changes in Bullying law • Bullying: • exploits an imbalance of power between the student perpetrator and the student victim through written or verbal expression or physical conduct; and • interferes with a student’s education or substantially disrupts the operation of a school. • Cyberbullying, internet conduct, and texting are now included • Board may transfer victim OR bully • Staff development must include preventing, identifying, responding to, and reporting incidents of bullying • Boards must adopt certain policies, and the procedures for reporting bullying must be posted on your website

5. Exhale. • Bullying: • exploits an imbalance of power between the student perpetrator and the student victim through written or verbal expression or physical conduct; and • interferes with a student’s education or substantially disrupts the operation of a school.

6. What to do. • Take any report of bullying to the campus administrator or designee • Campus principal or designee reduces any oral complaint of bullying into writing • Investigate any report of bullying • Take interim steps to prevent bullying during investigation • Prepare a written report of investigation • Complete and send report to Superintendent or designee within 10 District business days

7. If bullying occurred? • Take appropriate disciplinary or corrective action • Address misconduct consistent with student code of conduct • Corrective action may include counseling, extra monitoring and supervision, and/or other supports or interventions • Transfer (of victim or bully) to another classroom or campus • What if bullying occurred on bus or during extracurricular activities?

8. Special Ed Considerations • No discipline until ARD committee has reviewed the conduct • If transferring a student in special education to another classroom or campus, this is likely a change of placement (and a discipline consequence) requiring ARD meeting

9. Cyberbullying • No legal definition in Texas • Generally, any behavior or act of bullying that is conducted through some form of technology • Sending or posting harmful material • Other forms of social aggression using the Internet • Can occur any time, any place, and with anonymity

10. School PropertyAcceptable Use Policy • Require students to sign AUP • Use of District technology is a privilege • Used for authorized purposes only • No right to privacy • Random monitoring of equipment • Can’t use it to harass, threaten, or intimidate others • Can’t use it to share, view or transfer unlawful, obscene or sexually-related content

11. Student’s Personal Property • Probably not wise to ban all cell phones from school • Develop practical and defensible rules • Thorny issues related to possession or use of cell phones, including recording of voice or images • Make sure the options, and consequences, are clear

12. Sexting • Texas Penal Code 43.26 • Knowing/intentional possession of • Visual material of child (under 18 at time image taken) engaging in sexual conduct • Person knows that material depicts the child • Find this on a student’s phone: • Don’t transmit it, or return it • Don’t delete it • Confiscate and secure it

13. Sexting, cont. • Misdemeanor offense • Refers to “promoting” through electronic means from one minor to another, visual material depicting a minor engaging in “sexual conduct.” • Also prohibits possession of such material • But, not necessarily required to report possession of child pornography as a report of child abuse…

14. Use of Technology Away from School • First Amendment – freedom of speech/expression dilemma • Does the school have a legitimate interest in regulating student behavior away from school? • Courts apply one of the “tests” that the U.S. Supreme Court has approved

15. Tinker Test • Presumption that student expression is constitutionally protected • Unless school administrators can reasonably forecast a material and substantial disruption of school • Unspoken factor: severity of punishment • Public ridicule and hard feelings not enough • See O.Z. case (School wins, pg. 22), and compare with Layshock case (Student wins, pg. 19)

16. Fraser Test • Expression at school/school activities that is lewd, sexually explicit, or vulgar is not protected • If it occurs away from school, then the school must show that the conduct was directly targeted or aimed at school activities • See Requa case (School wins, pg. 19)

17. Bong Hits Test • Student expression that advocates illegal drug use is not protected • See Ponce case (School wins, pg. 20)

18. Ponce Test • Student expression advocating demonstrably grave harm to the physical safety of students at school is not constitutionally protected. • See Ponce case (School wins, pg. 20)

19. Public Ridicule Not Enough • Students win: • Comments are critical, vulgar, offensive, demeaning and personal… • School wins: • Comments include depictions of violence or threats; and student sexual harassment of school official

20. Thank you! Eric G. Rodriguez Maxine Longoria-Nash Walsh Anderson erodriguez@wabsa.com mnash@wabsa.com