Bullying and Cyberbullying … What’s My Responsibility?

Bullying and Cyberbullying…What’s My Responsibility? A Guide for School Personnel Presented by Kathleen Conn, Ph.D., J.D., LL.M. Assistant Professor, Neumann University Adjunct Professor, Widener School of Law

The “Small Print” • This presentation is a general guide and does not constitute legal advice • It does not create an attorney-client relationship • Please consult your district legal counsel for specific advice

Bullying Lawsuits on the Rise • Who is suing? • Parents of bullied students on behalf of the students, students themselves • Who is being sued? • NY Times, June 2010: • Parents increasingly turning to schools to solve the problem of bullying

Responsibilities Also Rising • Oct. 26, 2010 “Dear Colleague” Letter • Russlyn Ali, Asst. Secy. OCR • Some bullying misconduct also triggers responsibilities mandated by federal anti-discrimination statutes • Title VI • Title IX • Section 504 • Title II of the ADA

The “Dear Colleague” Message • Harassment creates a hostile environment that interferes with a student’s ability to benefit from educational opportunities • The liability standard is “knows or reasonably should have known” • The harassment may be obvious to other students/staff, or uncovered during investigations

PA’s Anti-Bullying Statute • House Bill No. 1067, Session of 2007 • B+ from www.bullypolice.org • Part of an omnibus bill that included many other provisions • Required schools to adopt or amend bullying policies by Jan. 1, 2009 • MUST list consequences for bullying, identify staff person to receive reports of bullying

PA’s Anti-Bullying Statute, cont. • MAY provide prevention, intervention, and education programs • MUST make policy available on website and in every classroom • MUST review policy within 90 days of adoption and annually afterwards • Thorough review required every 3 years

PA’s Anti-Bullying Statute, cont. • A SCHOOL ENTITY SHALL NOT BE PROHIBITED FROM DEFINING BULLYING IN SUCH A WAY AS TO ENCOMPASS ACTS THAT OCCUR OUTSIDE A SCHOOL SETTING IF THOSE ACTS MEET THE FOLLOWING REQUIREMENTS:

PA’s Anti-Bullying Statute, cont. • INTENTIONAL ELECTRONIC, WRITTEN, VERBAL or PHYSICAL ACT or ACTS: • Directed at another student(s) in a school setting; that is • Severe, persistent or pervasive; and • Substantially interferes with a student's education; • Creates a threatening environment; or • Substantially disrupts the orderly operation of the school

The Bottom Line • School administrators are under the gun to eliminate bullying and cyberbullying

How Did We Get Here? • The 1990s saw students creating websites demeaning their school administrators, publishing “hit lists,” and hacking into school files • Hackers were disciplined • But what about the First Amendment? Students’ freedom to express opinions?

First Amendment Protection The First Amendment does NOT protect : • Obscenity • Child pornography • Defamation • “Fighting words” • “True threats”

Bad News for School Districts • Beussink v. Woodland R-IV Sch. Dist.1998 E.D. Missouri case • Student created web page, criticized his high school administration • Principal suspended him • ACLU brought suit on behalf of the parents • no documented disturbance at school • Principal had no right to suspend Beussink simply because he “disliked” the student’s Web site or was “upset” by it

Bad News Continued Sean O’Brien, Ohio • Web page called band teacher “fat man who doesn’t like to get haircuts” • Out of court settlement; district paid him $30,000, admitted “overlooking” the First Amendment Nick Emmett, Seattle, WA • Posted humorous(?) fake obituaries • Court said no proof of threats, only “undifferentiated fears” • District had to pay family’s attorneys’ fees

Only One Victory for Schools • J.S. v. Bethlehem Area Sch. Dist. (2002) • Middle school student created web site at home in 1998 • Showed algebra teacher with her head severed, bloody; solicited money to hire a hit man to get her (“Send me $20 so I can get rid of her”) • Said Principal was having extramarital affair with another local administrator

Partial Victory for the Teacher • Algebra teacher sued J.S. and parents • Court ruled: • Defamation? NO • Negligent supervision, emotional distress? YES • $500,000 damages

Websites Not Today’s Problem • No need to create websites • Chat Rooms • Blogs • Webcams, YouTube • Cell Phones & Text Messaging • E-mails & Instant Messaging • Social Networking Sites • Females catching up!

Social Networking Sites • Facebook eclipsed MySpace • Now, April 7, 2011: Formspring.me • Users can post questions anonymously, post insults, bully and taunt others • MIT tech people now in partnership with Formspring; trying to invent ways to detect bullying statements and prevent their posting

Students Creating “Imposter Profiles” • Two Pennsylvania students in two separate schools created imposter profiles of their principals • The schools disciplined both of them • The parents of both students sued the schools • One student’s discipline was upheld by the courts; the other’s was not

The Facts Were Very Similar • Justin Layshock, HS honor student in Hermitage School District, W.D. Pa., represented his principal with a “big” theme; cut and pasted principal’s picture into the MySpace profile • About 20 students saw the profile • The school threw the book at him: sent him to Alternative School, took away privileges

The Facts Were Very Similar • J.S., MS honor student from Blue Mountain School District, M.D. Pa., created sexually nasty imposter profile of her principal, cut and pasted principal’s picture into the MySpace profile • About 20 students saw the profile • Principal suspended her

Outcomes Were Different • W.D. Court said school district had no right to discipline Justin Layshock • M.D. Court upheld discipline for J.S. • Both decisions were appealed to the Third Circuit Court of Appeals, and decisions were handed down on the same day, February 4, 2010

Outcomes Were Different • Court in AM said school had no right to discipline Layshock because no nexus between his posting and the school • Court in PM said OK to discipline J.S. because principal reasonably feared disruption of school activities • BOTH DECISIONS NOW VACATED • New ruling awaited!

Confusion Reigns! • No wonder school administrators are conflicted about whether to discipline students for cyberbullying • But what about parents suing school personnel who do not discipline students??

Liability Issues for Schools, School Personnel • Allegations of civil liability of two kinds: • Tort liability, e.g., negligence for not dealing with known bullying; violation of ministerial duties; violation of state anti-bullying statutes • Section 1983 liability, for a state actor depriving a student of a constitutional or federal statutory right

Tort Liability • State anti-bullying statutes? • Courts in several states have ruled that state anti-bullying statutes include no private right of action

Tort Liability, cont. • School districts and school personnel are often immune from liability for discretionary acts or for failure to perform a discretionary act • They may be liable for failure to perform a ministerial act • Ministerial acts must be based on clearly adopted policy; rare

Section 1983 Is a Means of Enforcing Rights • A plaintiff alleges that a state actor has deprived her of a federal right or a right guaranteed by the US Constitution • Can include Title VI, Title IX, Bill of Rights guarantees • Very powerful tool • Provides attorneys’ fees if successful

Section 1983: “Constitutional Tort” • Applies only to public schools • School districts, School Boards, individual school personnel: all can be named as defendants in a Section 1983 lawsuit • “State actors” • Burden of proof on plaintiff is high

Section 1983: “Constitutional Tort” • Courts have ruled that school officials’ actions must “shock the conscience” • For Title VI liability, plaintiff must show intent to discriminate • For Title IX liability in peer-peer bullying, plaintiff must show severe, pervasive and objectively offensive conduct that deprives the victim of educational opportunity

Private Schools Have More Leverage • Private schools are governed by contract law • Parents pay tuition and agree to abide by the rules of the school • Private schools can enforce their student expectations

A Deprivation of Life? • What about students who commit suicide because they were bullied and cyberbullied after sexting? • Parents are suing schools • Is suicide an intervening, superseding act that negates schools’ liability?

Jessica Logan’s Suit • Parents sued school district and school personnel, School Resource Officer and city that employed him, and classmates • Parents settled with classmates • Court said SRO and city had qualified immunity • Suit going forward against school district

Eric Mohat’s Suit • Five students from Mentor HS in Ohio committed suicide within a short period of time • Eric’s parents want no money, just want school district to pay attention • They had problem with suing before Eric’s estate was set up, but suit now back in original court

The Tide May Be Turning • New Jersey courts have allowed lawsuits to go forward against school districts under its state Law Against Discrimination (NJLAD) • Several Connecticut courts have allowed parents’ suits against school districts to go forward on a theory that the bullied student was “an identifiable person”

IDEA May Also Protect • If bullying or cyberbullying deprives a special education student of FAPE, IDEA may provide special needs students with another layer of protection • However, according to several courts, the harm must be a direct result of the actions of a school district or its employees

Cyberbullying Starts in School • School is where kids meet and decide to torment a peer or peers • It spills over after school and goes home with the bullies who then use technology to continue and to escalate the torment • If school personnel KNOW or SHOULD KNOW, they have a moral duty to intervene

D---ed If I Do, D---ed If I Don’t? • School Administrators fear that they will be sued if they intervene in bullying or cyberbullying situations, and they fear that they will be sued if they do not! • How far does the “disciplinary arm” of the school extend? • If school personnel know or should know, the answer if FAR ENOUGH!

Remember… • The First Amendment protects students’ speech and expression, but not if it is obscene, defamatory • STUDENT CONDUCT IS NOT PROTECTED

The “Dear Colleague” Message • Take prompt and effective steps • Don’t penalize the target • Don’t simply discipline the offender • Provide comprehensive training where needed • Provide needed services to the target • Prevent retaliation • Followup

Arne Duncan’s Letter: 12-10 • Bullying triggers schools’ legal responsibilities under OCR and DOJ anti-discrimination statutes • Schools must help both targets and bullies • The federal government is serious; it has initiated a “Stop Bullying Now!” campaign and Safe and Supportive Schools grants

Parents Do Not Get a Free Pass • We have been talking this afternoon about schools’ responsibilities • Parents are the first line of defense • Get technology out of the children’s bedrooms; keep computers, laptops and cell phones in family areas

The Take-Home Message • It is truly a matter of school safety • Every child will feel safe only if we work together to eliminate bullying and cyberbullying. • None of us can be bystanders. • Parents, administrators, teachers, staff and students must work together… it is a MORAL OBLIGATION.

Thank you for your attention. I hope this has been helpful.Kathleen Conn, Ph.D., J.D., LL.M.connk@neumann.edu

Bullying and Cyberbullying … What’s My Responsibility?