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 ProtectionThe 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.

I HOPE THIS HAS BEEN HELPFUL.

Kathleen Conn, Ph.D., J.D., LL.M.connk@neumann.edu

Thank you for your attention.