Cyberbullying and Schools: Reducing the Risk of Litigation

1. Cyberbullying and Schools: Reducing the Risk of Litigation TIES 2012 Education Technology Conference

2. Disclaimer The information in this presentation is not legal advice and is not intended as legal advice.  It is intended to provide general legal information.  It does not cover all issues related to the topics discussed.  The specific facts that apply to your matter may make the outcome different than you might anticipate based on the material presented.  Please consult with your own attorney with regard to specific issues.

3. Defining “cyberbullying” • “cruel[ty] to others by sending or posting harmful material or engaging in other forms of social aggression using the Internet or other digital technologies.” (Nancy Willard) • “Bullying means the use of words, images, or actions, in one or a series of incidents, either through direct or indirect interactions between individuals or through technology, that a reasonable person would or should know, under the circumstances, will have the effect of interfering with the ability of one or more individuals, including students who observe the conduct, to participate in a safe and supportive environment.” (MN Prevention of School Bullying Task Force Report, p. 9)

4. Cyberbullying vs. traditional bullying Cyberbullying has unique features: • Anonymity of the Internet • Global forum – even strangers can join in • Pervasive and ever present Although different studies reveal different statistics, there is no disputing that even the lowest numbers are high enough to provoke concern. Numbers are expected to continue rising due to increased Internet access and students’ dependence on the Internet for school work and communicating.

5. What we know about cyberbullies and their victims July 2011 study by the Massachusetts Aggression Reduction Center (MARC): bullies and victims are more likely to: • Be on Type 3 IEP’s (no IEP during elementary school, but IEP during middle/high school) • Have significantly poorer social skills • Report they had been bullied by a sibling (and that parents did not adequately respond to the bullying) • Report involvement with alcohol • Engage in digitally risky behaviors • Report they were pressured to “sext”

6. Cyberbullying in the news Reported incidents and lawsuits

7. Bell v. Itawamba County School Board (N.D. Miss.; Mar. 15, 2012) • High school senior suspended for 7 days, then transferred to an alternative school for the remaining 5 weeks of the school year for threatening school staff members in a rap song video that was distributed to 1300 students via Facebook • Bell’s rap song lyrics: looking down girls’ shirts drool running down your mouth messing with the wrong one gonna get a pistol down your mouth middle fingers up if you can’t stand that nigga middle fingers up if you want to cap that nigga

8. R.S. v. Minnewaska Area School District No. 2149 • On September 6, 2012, US Judge Michael Davis refused to dismiss claims that the Minnewaska Area School violated the First Amendment (freedom of speech) and Fourth Amendment (unreasonable search and seizure) rights of a 12-year-old student by forcing her to hand over her Facebook password to school officials who in turn used it to search for messages they deemed inappropriate. • If the alleged facts are proven to be true at trial, the school will likely have to pay damages to the student (claims for “intentional inflection of emotional distress” were dismissed by the judge).

9. Additional cases challenging school discipline • Twin brothers, high school juniors, were suspended for 180 days after creating a blog, which featured several crude posts about another student. The boys claimed they created the posts at home, on their personal computers. The school claims the boys used district computers to make the offensive blog. • Three 14 year old Indiana students are challenging their expulsion from school after commenting on Facebook about wanting to kill classmates. The ACLU, which is representing the girls, claims school officials violated the girls’ civil rights by expelling them on the basis of a personal, off-campus conversation, and that it is clear the girls were joking because their remarks were accompanied by smiley faces and other emoticons, along with Internet shorthand, such as “LOL.” The comments included names of at least five classmates and discussions of using guns, knives, box cutters and gasoline and filling a bath tub with acid to dissolve a body.

10. Criminal charges in Maine • A former high school student in Orono, Maine faces felony terrorizing charges after allegedly sending dozens of threats electronically to a 15 year old former classmate, including: “Your face is like a baby seal. Fat, furry and just asking to be clubbed to death.”

11. Defamation lawsuits • A Georgia middle school student is suing 2 classmates for libel for bullying statements they made about her on Facebook. She decided to sue after police and school officials told her there was not much they could do. • A Houston, TX father filed defamation suit against 3 of his daughter’s classmates who filmed themselves making false sexual remarks about his daughter and posting the video to Facebook. The complaint was settled months later with apologies from the girls and a small donation to charity.

12. Minnesota Nice? A film by a Minnesota high school senior

13. Controlling cyberbullying Current attempts to stem the tide

14. Criminalizing it • Megan Meier Law – proposed in Congress but did not succeed due to Free Speech concerns • Interstate Communications Act • Computer Fraud and Abuse Act • State laws criminalizing cyber stalking and cyber harassment (including a recent amendment to a North Carolina statute, expanding its protection to include school employees) • Municipal ordinances e.g. Detroit’s ordinance making it a misdemeanor to bully children in person or online

15. Legislating against it • Protecting Children in the 21st Century Act (mandates that schools educate students about online behavior, safety, and cyberbullying or risk losing E-Rate discounts) • 49 states have passed anti bullying mandating school policy development (Montana is the lone holdout; Minnesota’s law has received the lowest “grade” for its law on BullyPolice.org) • Task Force Recommendation #1: The repeal of existing ineffective Minnesota statutes on bullying, harassment, and intimidation and the replacement of such statutes with strong and effective law(s) incorporating the recommendations contained in the Task Force report.

16. Civil lawsuits against bullies, parents, schools • Defamation • Intentional infliction of emotional distress • Negligence • “Deliberate indifference” as a violation of a student’s 14th Amendment rights • Civil causes of action for alleged free speech, equal protection, and privacy violations (asserted on behalf of a bully disciplined by a school)

17. Cybervigilante –ism: Anonymous, Rustle League, and Tumblr

18. Do these efforts work?

19. Criminalizing it • Few of the criminal laws against cyber stalking and cyber harassment are broad enough to address cyberbullying • Criminalizing cyberbullying seems inappropriate, given that many of the students engaging in cyberbullying may be acting recklessly and immaturely, but without criminal intent

20. Legislating against it • Legislation is helpful in that it focuses our attention on the most important issues in our society; adults who otherwise may not have considered cyberbullying an important problem might reconsider when a law is passed • Broadly written laws are subject to constitutional challenges that they infringe on free speech and are void for vagueness • Laws mandating school policy rarely cover intimidation outside of school property • The issue of whether schools may censor students who are off campus when they cyberbully has led to split decisions in the federal appeals courts

21. Civil lawsuits • Cyberbullying itself is not an actionable tort; neither does it fall squarely within other existing torts (Cf. negligent entrustment of chattel) • Parental immunity protects parents from being sued for the negligent acts of their children and the Communications Decency Act protects ISPs from liability so plaintiffs are left without a remedy • Intentional infliction of emotional distress has a high threshold: generally speaking, insulting language, without more, does not constitute the requisite outrageous conduct

22. Civil lawsuits, cont’d • Defamation cases can be defended on the grounds that the statements were “rhetorical hyperbole” or “vigorous epithets” that no one would believe to be true • Defamation cases can be defended on the grounds that the statements are true • Even if defamation can be proven, plaintiffs may have a hard time proving damages to reputation that are monetarily worthwhile to pursue • Civil actions are very costly and most cyberbullying defendants are judgment proof

23. The Role of the Schools Why the heavy lifting has fallen to you

24. Rationale for putting schools at the forefront of anti-bullying efforts • Professional educators are in the best position to effectively train young people on appropriate uses of technology, ethical behavior, and social issues • Funding channels are already established • Task Force Recommendation #8: Fiscal resources commensurate to fulfilling the recommendations of the Task Force be provided at the state and local levels in order to help school districts implement the bullying, harassment, and intimidation recommendations. • “An essential foundation to student learning and academic success is a comprehensive focus on the school environment that addresses the physical health, mental health, social-emotional well-being, and safety of all students.” (MN Prevention of School Bullying Task Force Report, p. 15)

25. Problems associated with putting schools at the forefront • Legislatively mandated policies can potentially conflict with free speech guarantees • Schools are already strained without becoming the primary enforcers of cyberbullyinglegislation

26. Reducing the Risk of Litigation Recommendations

27. MN Prevention of School Bullying Task Force Report – get involved • Task force established February 21, 2012 • Purpose: “ensure that all students in Minnesota schools are provided with a safe and welcoming environment wherein each student is accepted and valued in order to maximize each student’s learning potential.” • Final report issued August 1, 2012 includes 8 specific recommendations

28. Provide required education under the Protecting Children in the 21stCentury Act • Requires schools to certify as of July 2012 that their Internet safety policy provides for the education students about appropriate online behavior. • Specifically, schools must certify that, as part of their CIPA/Erate/Internet Safety Policies, that they: educate minors about appropriate online behavior, including . . . on social networking websites and in chat rooms and cyberbullying awareness and response as part of that Internet safety policy.

29. Updating AUP’s - four “big ideas” • Responsible personal conduct within the online environment is no different than responsible personal conduct face-to-face. • Individuals must protect personal safety online • Civic life has an expanding digital dimension that demands responsible engagement by individuals and groups. • There are long--lasting implications to publishing in the online environment. • See, http://www.k12.wa.us/EdTech/InternetSafety/AcceptableUsePolicyInfo.aspx

30. AUP recommendation: reference “off campus” behavior A student or employee engaging in [unacceptable uses] of the Internet when off school district premises and without the use of the school district system also may be in violation of this policy as well as other school district policies. In situations when the school district receives a report of an unacceptable use originating from a nonschool computer or resource, the school district may investigate such reports to the best of its ability. Students or employees may be subject to academic sanctions or disciplinary action for such conduct including, but not limited to, suspension or cancellation of the use or access to the school district computer system and the Internet and discipline under other appropriate school district policies, including suspension, expulsion, exclusion, or termination of employment. Internet Acceptable Use and Safety Policy (Policy 524), Edina Public Schools

31. Policy recommendation: address student owned mobile devices • Draft policy or procedures prohibiting students from using outside networks to access the Internet from campus • Make sure policies are worded in a way that takes into account the various uses of technology in schools and not particular devices (e.g. the cheating policy should be worded in a way that encompasses cheating via a cell phone, laptop, passing notes)

32. Focus on school climate • Bullying policies are never as important as what actually happens in school. • Task Force Recommendation #7: The creation of a School Climate Center within the Minnesota Department of Education which will provide information and technical assistance to school districts on implementing strategies, techniques, and programs that remove social-emotional impediments to learning; improve positive, safe, and supportive whole-school learning environments for students; and increase restorative practices and disciplines which focus on remediation whenever incidents of bullying, harassment, and intimidation occur.

33. Train staff Give staff the tools to respond appropriately • To reports of bullying • to “gateway” behaviors – subtle, psychological bullying behaviors that express contempt and dominance but do not break any formal rules (e.g. eye rolling, subtle name calling) • to cyberbullying by students in which staff are the targets (experts contend cyberbullying of adults should be regarded as an attempt to engage adults for help and a possible signal that the student is struggling to handle bullying or cyberbullying).

34. Involve students • Train student bystanders to intervene safely and to report bullying behaviors to adults (MN Prevention of School Bullying Task Force Report, p. 16) • Teach students the skills of self-advocacy and how to advocate for others (MN Prevention of School Bullying Task Force Report, p. 16) • Support student collaborations that promote a healthy school climate (MN Prevention of School Bullying Task Force Report, p. 16) • Include students in program and policy development and school leadership for bullying prevention and intervention efforts, including social-emotional learning, conflict resolution, and school climate (MN Prevention of School Bullying Task Force Report, p. 18)

35. Integrate anti bullying messages and activities into general curriculaum Student created anti-bullying PSA

36. Summary • Schools are well positioned to have the greatest impact on curbing cyberbullying • Legal approaches and remedies will continue to evolve – preventative approaches (like those suggested in the Prevention of School Bullying Task Force Report) will be most effective, although the deterrent effect of an effective form of legal redress, should one be developed, will not be overlooked. • Free speech concerns still temper the level of disciplinary activity schools may engage in; educational efforts (for staff, students, and the general school community) provide the greatest avenues for creativity and influence.

37. Thank you! Aimee M. Bissonette, JD Little Buffalo Law & Consulting www.littlebuffalolaw.com