Transcript 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
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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
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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
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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.
[email protected]