Transcript Presentation - California School Boards Association

Cyber-Bullying
Jointly presented by: James Scot Yarnell, Partner, AALRR; and
Sally Jensen Dutcher, General Counsel, Napa Valley Unified
School District
Agenda
• Cyber-Bullying
• Discipline for Cyber-Bullying
• Legislative Response (AB 86 and 919)
• School Board Response-Policies
• Investigation and Searches
Five Areas for
Discussion
1
Cyber-Bullying
• Internet?
• Intranet?
• UTube?
• MySpace?
• Facebook?
• Second Life?
2
Cyber-Bullying
• Emails?
• Chat rooms?
• Cell phones?
• Texting?
• “Sexting”?
3
Cyber-Bullying
• Mean, vulgar or
threatening messages
• Posting sensitive,
private info about
someone
• Pretending to be
someone else to make
another look bad
• “Sexting”
4
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
5
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
6
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
7
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
8
Cyber-Bullying
• Can a school district discipline
students for bullying or threats
by means of electronic
communications?
9
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
10
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.
Can Student A be
disciplined for this
conduct?
11
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
12
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?
13
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.
14
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.
15
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.
16
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 toward a
pupil or school personnel.
17
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)
18
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 pager telephone, wireless telephone
or other wireless communication device.
19
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”
20
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.
21
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.
22
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.
23
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.
24
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.
25
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.
26
Students and Cell Phones
A school district “may
regulate the possession
or use” of cell phones.
(Education Code § 48901.5)
27
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))
28
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.
29
Cyber-bullying
Board Policy –Discipline for On Campus Cyberbullying
Any student who engages in cyberbullying using districtowned 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.
30
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.
31
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
32
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.
33
Cyber-Bullying
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”
34
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].
35
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
36
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.
37
Students and Cell Phones
Board Policy - Confiscation
If a disruption Disruption
occurs or a …
student uses any mobile communications
device for improper
Studentactivities,
Uses … a school employee shall direct the
student to turn
off the device and/or shall confiscate it. If the
Device…Improper
school employee
finds itSchool
necessary to confiscate the device, he/she
Purpose…
shall returnEmployee
it according
to the
Shall
…school’s procedures as written and
shared publicly
such as initthe
Confiscate
… student handbook or by similar
method of making the information public to students and parents.
38
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.
39
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
40
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.”
41
Students and Cell Phones
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
42
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.
43
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.)
44
Students and Cell Phones
• Can students use their cell
phones to record audio/
video in the classroom?
45
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.
46
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
Use of recording
elementary and secondary schools, and such use is prohibited. Any person, other than a
or listening
pupil, who willfully
violates thisdevice
section shall be guilty of a misdemeanor.
in a classroom
without
Any pupil violating
this sectionprior
shall be subject to appropriate disciplinary action.
consent =
This section shall notunlawful
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.
47
Students and Cell Phones
• Can students use their cell
phones to record audio/
video in non-classroom
areas on campus?
48
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
49
Students and Cell Phones
Key Points
• School Districts can regulate student cell phone
possession/use at school
• Students have a right to privacy
• District must have “reasonable suspicion” before
conducting a search of a student’s cell phone
• Scope of the search must be reasonably related to
the objectives of the search
50
Students and Cell Phones
Key Points (cont.)
• Students cannot record audio/video in a classroom
without permission
• Penal Code prohibits recording “confidential”
communications
• Ability of students to make recordings in nonclassroom locations on campus is subject to school
district rules
51
Students and Cell Phones
Teacher catches Student A sending a text
message in class, in a clear violation of
school rules. Before administration can
conduct an investigation, Student B reports
that he received Student A’s message, and
it read “Hey everybody, come watch me kick
(Student C’s) butt after school.”
Unfortunately, Student B already deleted his
message.
Student A can be disciplined, but how
should administration handle the
investigation, including the search of cell
phone(s)?
52
Sexting
• “Sexting” consists of electronically
sending sexually explicit communications
• Frequently takes the form of photographs
• Students take pictures of themselves or
others and broadcast them
• A form of sexual harassment
• Invasion of privacy
• Cyberbullying
53
Case Study
Sexting = Child Porn??
Tunkhannock, PA
• Local District Attorney threatens to bring
felony child pornography charges against
students
• Parents: gross overreaction
• Long term effect: children have to register as
sex offenders?
• Some photos were innocent (photo taken at
slumber party)
54
Question
Answer
Session
Thank You
For questions or comments, please contact:
James Scot Yarnell
Atkinson, Andelson, Loya, Ruud & Romo
(916) 923-1200
[email protected]
Sally Jensen Dutcher
Napa Valley Unified School District
(707) 253-3578
[email protected]