Cyber-Bullying

1. Cyber-Bullying Jointly presented by: James Scot Yarnell, Partner, AALRR; and Sally Jensen Dutcher, General Counsel, Napa Valley Unified School District

2. Five Areas for Discussion Agenda • Cyber-Bullying • Discipline for Cyber-Bullying • Legislative Response (AB 86 and 919) • School Board Response-Policies • Investigation and Searches

3. Cyber-Bullying • Internet? • Intranet? • UTube? • MySpace? • Facebook? • Second Life?

4. Cyber-Bullying • Emails? • Chat rooms? • Cell phones? • Texting? • “Sexting”?

5. Cyber-Bullying • Mean, vulgar or threatening messages • Posting sensitive, private info about someone • Pretending to be someone else to make another look bad • “Sexting”

6. Cyber-Bullying • 18% of students in grades 6-8 said they had been cyberbullied at least once w/in 2 months • 11% of students in grades 6-8 said they cyberbullied someone else w/in that period • 1 in 3 teens age 12-17 and 1 in 6 -6-11 year olds reported someone said threatening or embarrassing things about them thru email, IM, web sites or text messages • Girls are twice as likely as boys to be victims and perpetrators of cyberbullying • 38.3% of girls ages 8-17 said they had been bullied on line, of those girls, 20.5% said they never knew who was bullying them

7. Cyber-Bullying • Bullying in general creates fear about going to school, loneliness, humiliation and insecurity • Causes children to struggle with relationships; have difficulty making emotional and social adjustments • Cyberbullying can cause greater harm; online communications can be distributed worldwide and are often irretrievable • Teens may be reluctant to tell adults what is happening for fear of losing online and cell phone privileges

8. Cyber-Bullying-Worst Case Scenarios Sexting Leads to Suicide Recent Missouri Case (Morgan Meier): • Student developed relationship on MySpace with person she thought was new boy in area • Relationship was the result of a ruse created by several persons, including mother of another student that first student fought with • When plot was revealed, student killed herself

9. Cyber-Bullying-Worst Case Scenarios Threats of Violence • Columbine shooters predicted actions online • Wisniewki v. Bd. of Ed. of Weedsport Cent. Sch. Dist. (D. N.Y. 2006): • Instant message: gun, bullet, head splattering blood • “Kill Mr. VanderMollen” • Court held: True threat, should have known

10. Cyber-Bullying • Can a school district discipline students for bullying or threats by means of electronic communications?

11. Discipline for Cyberbullying • Raises First Amendment/Free Speech issues • Nexus to school attendance/activities • Tinker v. Des Moines=substantial disruption • Lovell by Lovell v. Poway USD= Threats not protected free speech where it is reasonably foreseeable that message would be perceived as a threat

12. Can Student A be disciplined for this conduct? Cyber-Bullying Hypothetical While at home, Student A sends an e-mail to Student B, who is her neighbor, stating that the next time she sees him she is going to put him in a body cast.

13. Discipline for Off-Campus Cyberbullying Layshock v. Hermitage Sch. Dist. (W.D. PA 2006) • Parody of principal attracted such attention from students at school that district had to shut computer system down for 5 days, and staff had to devote much time to issue • Court Held: Material and substantial disruption J.S. v. Bethlehem Area School District (PA 2000) • Website about teacher: “Why She Should Die,” solicited contributions for hit man, graphic imagery • Court found: Substantial disruption where teacher so upset she had to take leave

14. Discipline for Off-Campus Cyberbullying Emmett v. Kent (W.D. Wash. 2000) • Mock obituaries of students, solicited votes on “Who should be the next to die” • Note: Disclaimer said for entertainment purposes only • Court found: Off-campus, no disruption, and no evidence of intent to threaten or violent tendencies California Cases?

15. Discipline for Cyberbullying in CA California Education Codes 48907-Student Exercise of Free Expression Pupils of the public schools shall have the right to exercise freedom of speech and of the press . . . . except that expression shall be prohibited which is obscene, libelous, or slanderous. Also prohibited shall be material that so incites pupils as to create a clear and present danger of the commission of unlawful acts on school premises or the violation of lawful school regulations, or the substantial disruption of the orderly operation of the school.

16. Discipline for Cyberbullying 48950-Freedom of Speech (a) School districts operating one or more high schools and private secondary schools shall not make or enforce a rule subjecting a high school pupil to disciplinary sanctions solely on the basis of conduct that is speech or other communication that, when engaged in outside of the campus, is protected from governmental restriction by the First Amendment to the United States Constitution or Section 2 of Article I of the California Constitution . . . . (d) This section does not prohibit the imposition of discipline for harassment, threats, or intimidation, unless constitutionally protected.

17. Discipline for Cyberbullying 48900(s)-Grounds for suspension/expulsion (nexus) A pupil may be suspended or expelled for acts that are enumerated in this section and related to school activity or attendance that occur at any time, including, but not limited to, any of the following: (1) While on school grounds. (2) While going to or coming from school. (3) During the lunch period whether on or off the campus. (4) During, or while going to or coming from, a school sponsored activity.

18. Legislative Response to Cyberbullying Education Code § 48900 (r) (added by A.B. 86) A student may be suspended or expelled if the student: Engaged in an act of bullying, including, but not limited to, bullying committed by means of an electronic act, as defined in subdivisions (f) and (g) of Section 32261, directed specifically towarda pupil or school personnel.

19. Legislative Response Education Code § 32261 (f) “Bullying” means: • One or more acts • By a pupil or group of pupils • Acts as defined in Sections 48900.2 (sexual harassment), 48900.3 (hate violence), or 48900.4 (harassment/ threats/intimidation)

20. Legislative Response Education Code § 32261 (g) “Electronic act”means the transmission of a communication, including, but not limited to, a message, text, sound or image by means of an electronic device, including, but not limited to, a computer, or pagertelephone, wireless telephone or other wireless communication device.

21. Legislative Response Penal Code § 653.2 (added by AB 929) • Misdemeanor to intentionally place another person in reasonable fear for his or her safety or the safety of the other person's immediate family • By means of an electronic communication device, without consent of the other person for the purpose of imminently causing that other person unwanted physical contact, injury, or harassment by electronically distributing personal identifying information of a harassing nature about another person • “[E]lectronic communication device” includes, but is not limited to, telephones, cell phones, computers, Internet Web pages or sites, Internet phones, hybrid cellular/Internet/wireless devices, personal digital assistants (PDAs), video recorders, fax machines, or pagers. “Electronic communication” has the same meaning as the term is defined in Section 2510(12) of Title 18 of the United States Code. • Defines “harassment” and “of a harassing nature”

22. School District Response-Policies Board Policy – Prohibited Student Conduct Prohibited student conduct includes, but is not limited to: Harassment of students or staff, such as bullying, including cyberbullying, intimidation, hazing or initiation activity, ridicule, extortion, or any other verbal, written, or physical conduct that causes or threatens to cause bodily harm or emotional suffering, in accordance with the section entitled “Bullying/Cyberbullying” below.

23. Cyber-Bullying Policies Board Policy – Definition of Cyberbullying “Cyberbullying” includes the transmission of communications, posting of harassing messages, direct threats, social cruelty, or other harmful texts, sounds, or images on the Internet, social networking sites, or other digital technologies using a telephone, computer, or any wireless communication device. Cyberbullying also includes breaking into another person’s electronic account and assuming that person’s identity in order to damage that person’s reputation or friendships.

24. Cyber-Bullying Policies Board Policy - Definition “Cyberbullying” includesthe transmission of communications, posting of harassing messages, direct threats, social cruelty, or other harmful texts, sounds, or images on the Internet, social networking sites, or other digital technologies using a telephone, computer, or any wireless communication device. Cyberbullying also includes breaking into another person’s electronic account and assuming that person’s identity in order to damage that person’s reputation or friendships.

25. Cyber-Bullying Board Policy - Definition “Cyberbullying” includes the transmission of communications, posting of harassing messages, direct threats, social cruelty, or other harmful texts, sounds, or images on the Internet, social networking sites, or other digital technologies using a telephone, computer, or any wireless communication device. Cyberbullying also includes breaking into another person’s electronic account and assuming that person’s identity in order to damage that person’s reputation or friendships.

26. Cyber-Bullying Policies Board Policy - Definition “Cyberbullying”includes the transmission of communications, posting of harassing messages, direct threats, social cruelty, or other harmful texts, sounds, or images on the Internet, social networking sites, or other digital technologies using a telephone, computer, or any wireless communication device. Cyberbullying also includes breaking into another person’s electronic account and assuming that person’s identity in order to damage that person’s reputation or friendships.

27. Cyber-Bullying Policies Board Policy – Use of Electronic Signaling Devices Board policies may prohibit possession of electronic signaling devices on school campuses; or Allow students to possess or use on school campus personal electronic signaling devices including, but not limited to, pagers and cellular/digital telephones …provided that such devices do not disrupt the educational program or school activity and are not used for illegal or unethical activities such as cheating on assignments or tests.

28. Students and Cell Phones A school district “may regulate the possession or use” of cell phones. (Education Code§ 48901.5)

29. Cyber-Bullying Policies Except that: No student shall be prohibited from possessing or using an electronic signaling device that is determined by a licensed physician or surgeon to be essential for the student’s health and the use of which is limited to health-related purposes. (Education Code § 48901.5 (b))

30. Cyber-Bullying Policies Board policies should define what devices are included as electronic signaling devices subject to the prohibitions, For example, electronic signaling devices include but are not limited to pagers; cellular/digital telephones for voice usage, digital imaging, or text messaging or other mobile communications devices such as digital media players, personal digital assistants (PDAs), compact disc players, portable game consoles, cameras, digital scanners, and laptop computers.

31. Cyber-bullying Board Policy –Discipline for On Campus Cyberbullying Any student who engages in cyberbullying using district-owned equipment, on school premises, or off-campus in a manner that impacts a school activity or school attendance shall be subject to discipline in accordance with district policies and regulations. If the student is using a social networking site or service that has terms of use that prohibit posting of harmful material, the Superintendent or designee also may file a complaint with the Internet site or service to have the material removed.

32. Cyber-bullying Board Policy-Discipline for Off Campus Cyberbullying Students also may be subject to discipline for any off-campus conduct during nonschool hours which poses a threat or danger to the safety of students, staff, or district property, or substantially disrupts the educational program of the district or any other district in accordance with law, Board policy, or administrative regulations.

33. Cyber-Bullying Key Points • Recent legislation enables School Districts to discipline students for cyber-bullying • Scope of new statutes is broad • District policies must be thorough and carefully drafted • School staff needs to be aware of new technologies

34. Cyber-Bullying Board Policy – Investigation of Cyberbullying When a student is suspected of or reported to be using electronic or digital communications to engage in cyberbullying against other students or staff or to threaten district property, the investigation shall include documentation of the activity, identification of the source, and a determination of the impact or potential impact on school activity or school attendance.

35. Investigations and Evidence Evidence can be quickly deleted There is always a “data trail” Check everywhere (computer(s), laptop, server, cell phone(s), Blackberries, web site, ISP, removable media, printer) Students are very “tech-savvy” Cyber-Bullying

36. Cyber-Bullying Board Policy – Investigation of Cyberbullying Students may submit a verbal or written complaint of conduct they consider to be bullying to a teacher or administrator and may also request that their name be kept in confidence. The Superintendent or designee may establish other processes for students to submit anonymous reports of bullying. Complaints of bullying or harassment shall be investigated and resolved in accordance with site-level grievance procedures specified in [AR 9999 – Sexual Harassment].

37. Case Study Administrator Prosecuted for Sexting Recent Washington D. C. Area Case: • School administrator investigating sexting misconduct • During investigation, transferred offending photo to his own cell phone • Parent very angry when told own child was sexting • Demanded suspension be withdrawn • Administrator was charged with failure to report child abuse, then trafficking in child pornography

38. Cyber-bullying Board Policy – Confiscation and Searches If a disruption occurs or a student uses any mobile communications device for improper activities, a school employee shall direct the student to turn off the device and/or shall confiscate it. If the school employee finds it necessary to confiscate the device, he/she shall return it according to the school’s procedures as written and shared publicly such as in the student handbook or by similar method of making the information public to students and parents.

39. Disruption … Student Uses … Device…Improper Purpose… School Employee Shall … Confiscate it … Students and Cell Phones Board Policy - Confiscation If a disruption occurs or a student uses any mobile communications device for improper activities, a school employee shall direct the student to turn off the device and/or shall confiscate it. If the school employee finds it necessary to confiscate the device, he/she shall return it according to the school’s procedures as written and shared publicly such as in the student handbook or by similar method of making the information public to students and parents.

40. Students and Cell Phones Board Policy – Searches Of Devices In accordance with the Board’s policy and administrative regulation on search and seizure, a school official may search a student’s mobile communications device, including, but not limited to, reviewing messages or viewing pictures.

41. Students and Cell Phones Modern cellular phones have the capacity for storing immense amounts of private information. Unlike pagers or address books, modern cell phones can: • Record incoming and outgoing calls • Contain address books, calendars, voice and text messages, email, video and pictures • Are capable of storing highly personal information such as a student’s most private thoughts and conversations such as through email, text, voice and instant messages United States v. Park (2007) 2007 WL 1521573

42. Students and Cell Phones In Re William G. (1985) 40 Cal.3d 550, 563 “The right to privacy is vitally important. It derives, in this state, not only from the protections against unreasonable searches and seizures guaranteed by the Fourth Amendment and Article I, Section 13, but also from Article I, Section I of our state Constitution … The privacy of a student, the very young or the teenager, must be respected. By showing that respect the institutions of learning teach constitutional rights and responsibilities by example.”

43. Before searching a student’s cell phone: • School officials must have reasonable grounds for suspecting the search will turn up evidence the student has violated or is violating either the law or school rules • The scope of the search must be reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction • New Jersey v. T.L.O. (1985) 469 U.S. 325 Students and Cell Phones

44. Students and Cell Phones What is “reasonable suspicion?” • Reasonable suspicion is not simply an “inchoate and unparticularized suspicion or hunch” • Before a student’s cell phone may be searched, school officials must be able to point to “objective and articulable facts” that support the assertion that the search will provide evidence that the student is violating the particular rule he or she is suspected of violating.

45. Students and Cell Phones • The fact that a student is violating one school rule does not provide reasonable suspicion to support a search to determine whether the student may also be violating some other rule. • Nor is it permissible to search one student’s cell phone to determine whether other students may be violating the law or school rules. (Klump v. Nazareth Area School Dist. (E. D. Pa. 2006) 425 F.Supp.2d 622.)

46. Students and Cell Phones • Can students use their cell phones to record audio/ video in the classroom?

47. Students and Cell Phones Education Code § 51512 The Legislature finds that the use by any person, including a pupil, of any electronic listening or recording device in any classroom of the elementary and secondary schools without the prior consent of the teacher and the principal of the school given to promote an educational purpose disrupts and impairs the teaching process and discipline in the elementary and secondary schools, and such use is prohibited. Any person, other than a pupil, who willfully violates this section shall be guilty of a misdemeanor. Any pupil violating this section shall be subject to appropriate disciplinary action.

48. Use of recording or listening device in a classroom without prior consent = unlawful Students & Cell Phones – § 51512 Education Code § 51512 The Legislature finds that the use by any person, including a pupil, of any electronic listening or recording device in any classroom of the elementary and secondary schools without the prior consent of the teacher and the principal of the school given to promote an educational purpose disrupts and impairs the teaching process and discipline in the elementary and secondary schools, and such use is prohibited. Any person, other than a pupil, who willfully violates this section shall be guilty of a misdemeanor. Any pupil violating this section shall be subject to appropriate disciplinary action. This section shall not be construed as affecting the powers, rights, and liabilities arising from the use of electronic listening or recording devices as provided by any other provision of law.

49. Students and Cell Phones • Can students use their cell phones to record audio/ video in non-classroomareas on campus?

50. Students and Cell Phones Electronic Eavesdropping Statutes • Penal Code § 632 Confidential Communications Reasonable expectation of privacy Fines, criminal penalties Evens v. Superior Court (1999) Student’s concealed taping of teacher in class ruled admissible (77 Cal.App.4th 320) School District Rules