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
• 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
• 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.
PA’s Anti-Bullying Statute, cont.
• Directed at another student(s) in a
school setting; that is
– Severe, persistent or pervasive; and
– Substantially interferes with a student's
– 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
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
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
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
• 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
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
• 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
• 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
• Courts in several states
have ruled that state
anti-bullying statutes
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
• 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
• Private schools are governed
by contract law
• Parents pay tuition and agree
to abide by the rules of the
• 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
• Parents settled with classmates
• Court said SRO and city had qualified
• Suit going forward against school
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
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
• 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
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!
•The First Amendment
protects students’ speech
and expression, but not if it
is obscene, defamatory
The “Dear Colleague” Message
• Take prompt and effective steps
• Don’t penalize the target
• Don’t simply discipline the offender
• Provide comprehensive training where
• 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
• 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
• None of us can be bystanders.
• Parents, administrators, teachers, staff
and students must work together… it is a
Thank you for your attention.
Kathleen Conn, Ph.D., J.D., LL.M.