Cyberbullying: Is Your District
Prepared To Respond?
A Legal and Policy Perspective for
Public Schools
A Webinar presented to National
Affiliate Member Districts of the
National School Boards Association
September 21, 2010
Sonja H. Trainor
NSBA Senior Staff Attorney
strainor@nsba.org
Copyright © 2010 National School
Boards Association. All rights reserved.
DISCLAIMER
This presentation does not constitute
legal advice, nor does it create an
attorney client relationship.
 It contains general recommendations and
should not be relied upon for any specific
purpose without consultation with legal
counsel or other professionals and in the
context of specific facts and
circumstances.

Copyright © 2010 National School
Boards Association. All rights reserved.
What would you do? A pre-test

Parent of a student who is the target of vicious
and lewd taunts by other students on You Tube
demands that “something be done.”
◦ Can school officials address this off-campus behavior
at all?
◦ If the parent sues, as promised, on what basis could
she bring her complaint?
◦ Should you pull up the video on your office computer
and identify the offending students, and promptly seek
expulsion?
◦ Who should administrators talk to in their
investigation?
Copyright © 2010 National School
Boards Association. All rights reserved.
What would you do?

Administrator is the subject of a vulgar
parody on MySpace.
◦ Is it the district’s responsibility to preserve
the administrator's reputation and deter
similar attacks by taking action against the
student?
◦ If yes, on what basis?
◦ If no, what other action may be taken?
Copyright © 2010 National School
Boards Association. All rights reserved.
What would you do?

A student receives rude emails and texts
from several classmates. She feels
humiliated. The messaging is not occurring
at school.
◦ Can the administration take action?
◦ If so, what?
◦ If not, why?
Copyright © 2010 National School
Boards Association. All rights reserved.
What do school officials need to know?
Rights, Responsibilities, Ramifications
What is cyberbullying
and how it is done
 Laws and court
decisions that address
cyberbullying
 Preventative measures
and policy drafting
 Response measures
and record keeping

Copyright © 2010 National School
Boards Association. All rights reserved.
Why cyberbullying is our problem

Liability to the
victim and the
perp – emotional
and physical harm,
constitutional
violations

Suicides: Megan
Meier (MO), Megan
Gillan (England),
Tempest Smith (MI),
Jessica Logan (OH),
Alex Moore (AL),
Phoebe Prince (MA)
Why cyberbullying is our problem
– cont’d
Recent verdict and settlement for ongoing
harassment
 Off campus speech decisions
 Public uproar
 Legal requirements to report, remove,
investigate
 Focus of current administration on
enforcement

Copyright © 2010 National School
Boards Association. All rights reserved.
What is cyberbullying?



Traditional bullying using
technology
◦ Intentional
◦ Repeated
◦ Aggressive or unwanted
behavior
+
◦ Power imbalance
Some researchers say its not
cyberbullying unless it is “a part
of or related to offline bullying.”
The most hurtful incidents
typically involve a personal
relationship (real life).
Copyright © 2010 National School
Boards Association. All rights reserved.
What is cyberbullying – in legal terms?

State anti-bullying laws
◦ Most do not have separate definition for
cyberbullying, but define it as bullying through
electronic communication.
◦ Common components of bullying definition:
 Intentional act (gesture, written, verbal, physical)
 Reasonably perceived as motivated either by an
actual or perceived characteristic
 That takes place on school property, at any schoolsponsored function or on a school bus AND
Copyright © 2010 National School
Boards Association. All rights reserved.
State anti-bullying laws definition, cont’d
 That a reasonable person should know will have the
effect of harm or placing in reasonable fear of harm
to student or property; OR
 That has the effect of insulting or demeaning any
student or group of students so as to cause
substantial disruption in, or substantial interference
with, orderly operation of the school.
New Jersey anti-bullying statute, 18A:37-14.
Copyright © 2010 National School
Boards Association. All rights reserved.
State anti-bullying laws definition, cont’d
Some state statutes include use of school
equipment, network or software (GA, FL)
 Some reach off-campus (MD, MA)
 Very few address student-to-staff (AR,
CA, FL (“harassment” only; “bullying”
applies only to students))

Copyright © 2010 National School
Boards Association. All rights reserved.
State anti-bullying laws definition, cont’d
MA reaches far:
Bullying is prohibited even at non-schoolrelated locations/events or through use of
non-school-owned technology if it creates
a hostile environment at school for the
victim, infringes on the victim’s rights at
school, or materially and substantially
disrupts the education process or the
orderly operation of the school.
MA anti-bullying statute, Section 5(b).

Copyright © 2010 National School
Boards Association. All rights reserved.
Your definition

School district policy
◦
◦
◦
◦
State anti-bullying/other statutes
State Dept. of Ed. regulations or model policy
School safety plan
Community input
Copyright © 2010 National School
Boards Association. All rights reserved.
How?
Internet, Email, Text
 Accessed easily via cell phone.

Copyright © 2010 National School
Boards Association. All rights reserved.
Federal




State
Statutes
Constitution
Case Law
Regulations




Statutes
Constitution
Case Law
Regulations
What Law Applies?
Copyright © 2010 National School
Boards Association. All rights reserved.
Federal Statutes

Federal Statutes
 Megan Meier Cyberbullying Prevention Act – never
passed –would have made it a felony
 Safe Schools Improvement Act – would amend the
Safe and Drug-Free Schools and Communities Act
to include bullying and harassment prevention
programs.
 Stored Communications Act,



Prohibits unauthorized access to stored communications
Court have held open emails do not meet definition of
“electronic storage.”
Klump v. Nazareth Area School Dist., 425 F.Supp.2d 622
(E.D.Pa., 2006) – cell phone call log and phone number
directory are not “communications” under PA’s statute.
Voicemail/texts would be stored by provider, however, so
searching may be unlawful access.Copyright © 2010 National School
Boards Association. All rights reserved.
Federal Statutes, cont’d
Electronic Communications Privacy Act
 Children’s Internet Protection Act and Neighborhood
Children’s Internet Protection Act and Protecting
Children in the 21st Century Act (condition receipt of
federal tech funds, including E-rate, upon fulfillment of
requirements such as filtering, policies, education on
online behavior)
 Anti-discrimination laws


Title IX – gender
Title VI – race
Title VII – employment

IDEA and §504 – disability



FERPA
Copyright © 2010 National School
Boards Association. All rights reserved.
Federal Constitution
 1st Amendment.
◦ Congress shall make no law respecting an
establishment of religion, or prohibiting the
free exercise thereof; or abridging the
freedom of speech, or of the press; or the
right of the people peaceably to assemble, and
to petition the Government for a redress of
grievances.
 4th Amendment
– search and seizure
 14 Amendment – equal protection and
due process
Copyright © 2010 National School
Boards Association. All rights reserved.
State Statutes

Anti-Bullying Laws
◦ 44 states
◦ Over half address cyberbullying in some way
◦ Many of the others have broad definitions of
bullying that could include cyberbullying
◦ State Department of Education often required
to develop a model
◦ School/district usually required to follow state
model as a minimum
Copyright © 2010 National School
Boards Association. All rights reserved.
State Statutes, cont’d

State Anti-Discrimination laws
◦ Often more protective than the federal ones
◦ For instance, many list “sexual preference” as
a protected category
State student records laws
 State criminal laws

◦
◦
◦
◦
Harassment
Stalking
Child pornography
Abuse/neglect reporting
Copyright © 2010 National School
Boards Association. All rights reserved.
State Constitution
May provide rights BEYOND those of the
federal constitution
 For instance, California’s constitution
provides a explicit “right to privacy”
which may affect the standard under
which public entities may conduct
searches of citizens’ personal effects (i.e.,
cell phones)
 AND state common law claims negligence

Copyright © 2010 National School
Boards Association. All rights reserved.
How have these laws been applied to
cyberbullying?

Lawsuits filed by the perpetrator who had
been disciplined alleging violation of:
◦ 1st Amendment right to freedom of speech
◦ 14 Amendment due process right of parent to
raise child

Lawsuits filed by the victim alleging
violation of:
◦ Anti-discrimination laws -- harassment based
on a protected category
◦ State tort – duty to supervise, negligence
Copyright © 2010 National School
Boards Association. All rights reserved.
Early court decisions
Star Wars Kid (2002)
◦ Parents sued parents. The parties settled in
2006.
• Coy v. Bd. of Ed. of. North Canton City Schools (N.D.
Ohio 2002)
•
◦ Site insults “loser” classmates. Coy accesses his site from school
computer.
◦ Ct.: Would be unconstitutional if school imposed discipline just
because officials disliked content.
• Unusual: Even on school equipment!
•
Neal v. Efurd, (W.D. Ark. 2005)
◦ Website demeans athletes, band, administration
◦ Parent complains, quick reaction
◦ Ct.: No threat = no disruption
Copyright © 2010 National School
Boards Association. All rights reserved.
Court decisions about rights of the
perpetrator – 1st Amendment standard

Tinker review:
◦ Tinker (1969)
 “Material and substantial disruption” or reasonable forecast
thereof
 “Impinge upon the rights of others”
◦ Hazelwood (1983)
 School-sponsored speech
◦ Fraser (1987)
 Lewd or vulgar speech
◦ Morse (2007)
 Illegal drug-related speech
Copyright © 2010 National School
Boards Association. All rights reserved.
Tinker surfaces

J.S. v. Bethlehem Area School District (S. Ct. of Pa.2002).
8th grader created offensive website directed toward
staff. Accessed website at school. Permanently
expelled. Though not a true threat, student’s behavior
materially and substantially interfered with the
educational process. Ct: on-campus speech because
accessed site at school. Used Fraser test because “it is
for school districts to determine what is vulgar, lewd or
plainly offensive.”
Copyright © 2010 National School
Boards Association. All rights reserved.
Tinkering with Tinker
Courts have repeatedly, though
reluctantly applied Tinker to off-campus
speech.
 Courts and attorneys have come to refer
to the “nexus” between the behavior and
the school.
 Courts tend to focus on Tinker’s
“disruption” prong and pay little attention
to the “rights of others” prong.

Copyright © 2010 National School
Boards Association. All rights reserved.
True Threats – the 1st Amendment
“exception”
If speech constitutes a “true threat,” it is not
protected under the 1st Amendment.
◦ Watts v. U.S. (1969) (true threat on President
prohibited by statute; statute found constitutional;
speech here was not true threat, but political
hyperbole)
◦ Wisniewski v. Bd. of Ed.Weedsport Central S.D. (2d
Cir. 2007) (“We think that school officials have
significantly broader authority to sanction student
speech than the Watts standard allows.”)
• If NOT true threat, Tinker disruption test?
◦ Some courts give schools more latitude
◦ BUT, still good point of reference

Copyright © 2010 National School
Boards Association. All rights reserved.
Sufficient Nexus – undermining
principal’s authority creates
disruption
J.S. v. Blue Mountain School District, 593 F.3d 286 (3rd Cir.
2010). 2-1. VACATED, reheard with Layshock 6/3/10.
Student created MySpace profile parody with principal’s
photo from school website. Harshly offensive,
pedophilia suggested. 10-day out-of-school suspension.
No “geographic technicality” required.
“We simply cannot agree that a principal may not regulate
student speech rising to this level of vulgarity and
containing such reckless and damaging information so as
to undermine the principal’s authority in the school and
potentially arouse suspicions among the school
community about his character.”

Copyright © 2010 National School
Boards Association. All rights reserved.
Sufficient Nexus – when violence
threatened


Wisniewski v. Bd. Of Ed. Weedsport Central S.D. , 494
F.3d 34 (2d Cir. 2007). Student’s IM message
contain icon showing violence toward staff.
Reasonably foreseeable that school officials would
become aware of icon and then substantial
disruption likely.
Mardis v. Hannibal Public School District No. 60, 684
F.Supp.2d 1114 (E.D. Mo. 2010). Student’s IM
message to classmate said he planned to get a gun
and kill certain classmates. Student knew or should
have known the message would reach the “victims”
or school authorities. Reasonable recipient could
believe true threats. Also disruption under Tinker.
But qualified immunity for principal.
Copyright © 2010 National School
Boards Association. All rights reserved.
Sufficient Nexus – when disruption
urged

Doninger v. Niehoff , 527 F.3d 41(2d Cir.
2008). Student prevented from student
government participation after offensive
blog entry. Reasonably foreseeable the
entry would be seen by school
community and would substantially
disrupt the school environment.
Copyright © 2010 National School
Boards Association. All rights reserved.
Insufficient Nexus – disruption not
argued

Layshock v. Hermitage Sch. Dist., 593 F.3d 249 (3rd Cir.
2010). VACATED, reheard with J.S. 6/3/10. High
School student created parody MySpace profile of
principal using photo from school district website. “Big”
used often; not pedophilia. When word spread, students
accessed profile on school computers. Relationship
between conduct and school too attenuated. Use of
school district web site did not constitute entering
school. Note: punishment particularly harsh: 10-day
suspension, AEP, ban from extra-curriculars, and no
graduation ceremony. Layshock’s was first of several
more offensive sites, but he was the only one punished.
Copyright © 2010 National School
Boards Association. All rights reserved.
Insufficient Nexus – not enough
harm

J.C. v. Beverly Hills Unified School District, 2009 WL
1914215 (C.D. Cal. 2009, 2010). Offensive You Tube
video directed at student.You Tube blocked at school.
No classroom disruption, fear of students taking sides
“speculative.” Not violent; no threats. Court held:
◦ Geographic origin of the speech is not relevant; Tinker applies to
on-campus and off-campus speech.
◦ There was clearly a “nexus” to the school here.
◦ But no substantial disruption or reasonable forecast thereof.
Hurt feelings alone ≠ school disruption
◦ Not sufficient interference with rights of others under 2nd prong
of Tinker.
Copyright © 2010 National School
Boards Association. All rights reserved.
Insufficient Nexus – not enough
disruption

Evans v. Bayer, 684 F.Supp.2d 1365(S.D. Fla.
2010). Student created Facebook page
critical of teacher. 3-day suspension and
removal from AP classes. Though law
confusing, free speech right clearly
established because even on-campus
standard not met here. Speech arguably
aimed at a particular audience at the
school ≠ on-campus speech.
Copyright © 2010 National School
Boards Association. All rights reserved.
Court decisions about the rights of the
perpetrator – search and seizure
 4th Amendment
-- Government searches
of individuals must be reasonable.
 In the school context, the Supreme Court
said in New Jersey v.T.L.O. (1985) that the
search must be:
 Justified at inception – reasonable grounds for
suspecting search will turn up evidence a school
rule has been violated
 Permissible in scope – measures adopted are
reasonably related to the objectives of the search
and not excessively intrusiveCopyright © 2010 National School
Boards Association. All rights reserved.
Search and seizure – cell phones

Klump v. Nazareth Area Sch. Dist. (E.D. Pa.
2006). Teacher confiscated cell phone
because prohibited during school hours.
Then teacher and VP called other
students listed in the phone’s directory to
see if they were violating school policy.
Court found the scope of the search
violated the student’s 4th Am. rights.
There was no reason to suspect Klump
was violating another policy – just trying
to catch other students.
Copyright © 2010 National School
Boards Association. All rights reserved.
Cell Phone Searches: Recent
Lawsuits
PA sexting case. Student suing for 4th
Amendment violation – searching cell
phone without reasonable suspicion or
probable cause.
 TX parent claims school officials violated
daughter’s constitutional rights by taking
cell phone and reading texts.

Copyright © 2010 National School
Boards Association. All rights reserved.
Court decisions about the rights of the
victim
Federal/state anti-discrimination statutes
 State tort claims
 Basic claim is that the student has a right
to be safe and free from
harassment/bullying at school, and school
officials breached their duty to keep the
student free from harassment/bullying.

Copyright © 2010 National School
Boards Association. All rights reserved.
Court decision about rights of the
victim

R.S. v. Bd. of Educ. of the Hastings-OnHudson Union Free Sch. Dist. (2nd Cir. 2010)
◦ Parent sued school officials claiming his
daughter has been sexually harassed through
3 emails and one conversation, and that the
school’s investigation was inadequate.
◦ Court of Appeals upheld trial judge’s decision
to grant SJ in favor of district.
◦ Conduct falls short of harassment under Title
IX or Equal Protection violation under 14th
Am.
Copyright © 2010 National School
Boards Association. All rights reserved.
Court decisions about the rights of the
victim, cont’d
Most state anti-bullying laws specifically
do not create a cause of action (a basis
for suit).
 A Connecticut court declined to find one.
Dornfried v. Berlin Bd. of Ed. (Conn.Supr.
2008).
 Plaintiffs’ attorneys tend to bring suits
based on harassment, if possible – gender,
race, or other protected classification

Copyright © 2010 National School
Boards Association. All rights reserved.
Court decisions in cases brought by
victims

Private defamation suits
◦ D.C. v. R.R. (Cal.App. 2010). Student A had
self-promotional website. Several fellow
students (Group B) posted offensive
comments and threats on the site. Not
disciplined by the school. Student sued
Group B and parents, alleging defamation, hate
crimes, and intentional infliction of emotional
distress. Court found defendants were not
protected by anti-SLAPP statute. Not able to
show protected speech.
Copyright © 2010 National School
Boards Association. All rights reserved.
Private defamation suits, cont’d
Finkel v. Dauber (N.Y. Sup. 2010). Private
Facebook group posted many derogatory
comments about the plaintiff. She sued
them and parents, alleging defamation,
negligent entrustment by the parents of a
dangerous instrument (computer!) and
negligent supervision. Court decided
postings were not statements of fact, but
“attempts to outdo.”
 Court: NY courts have not recognized a
cyberbullying tort action.

Copyright © 2010 National School
Boards Association. All rights reserved.

Prevention
◦ School/community awareness
◦ School/community
cooperation

Policy
◦ Law of the school district
◦ Provides notice to all –
students, staff, parents,
community

Procedures
◦ Investigations
◦ Disciplinary hearings
Preventative measures and
policy drafting
Copyright © 2010 National School
Boards Association. All rights reserved.
Preventative Measures and Policy
Drafting
State anti-bullying statute?
 State school boards association
 State DOE
 ADL
 Your school attorney

Copyright © 2010 National School
Boards Association. All rights reserved.
Policy – suggested components
Define of bullying/harassment to include
electronic
 Explain the geographical or electronic
boundaries of the school’s authority
 Include possible consequences
 Make it consistent with your acceptable
use policy (school equipment)
 Consider students signing off on code of
conduct

Copyright © 2010 National School
Boards Association. All rights reserved.
Procedures

Investigate
◦ Talk to offending student
◦ Review the offending internet or cell phone
communications – but stay within your
established procedures and within a
reasonable scope
◦ Cell phone searches:
 Fourth Amendment
 Stored Communications Act
 Caution: approaches calling for probable cause
standard
Copyright © 2010 National School
Boards Association. All rights reserved.
Procedures, cont’d

Save evidence
◦ Print all relevant content
◦ Save it electronically, but beware of
nude/semi-nude photos.
◦ Consult with IT staff to override any
automatic deletions
◦ Document and save all communications with
parents and students and all supportive
actions after-the-fact
Copyright © 2010 National School
Boards Association. All rights reserved.
Procedures, cont’d

Contact website
◦ MySpace Administrator’s guide prepared specifically
for use by superintendents, principal, counselors and
resource officers.
◦ Facebook collaboration with National PTA.
Contact all families involved
 Involve law enforcement

Copyright © 2010 National School
Boards Association. All rights reserved.
Procedures, cont’d
Consult your attorney
 Follow up with perpetrator’s family
 Provide support – (legal concerns)

◦ Prevent further harassment
◦ Document efforts
Block harassers, if possible
 Report as required by state law

Copyright © 2010 National School
Boards Association. All rights reserved.
Practical Tips



Staff awareness
◦ Of policies, of legal basics
◦ Of technology
*Administration should be fluent in sites: MySpace,
Facebook, Xanga, Friendster, myYearbook, Tagged,
Twitter
Victims may have recourse where schools hands are
tied
Cooperate proactively with law enforcement
◦ Criminal code and law enforcement can be useful
leverage in resolving situation
◦ Caveat: Criminalizing immature behavior, schools-toprison pipeline, etc.
Copyright © 2010 National School
Boards Association. All rights reserved.
Practical Tips

Consider full range of options
◦ Alternatives to disciplinary action?
◦ Suspensions & expulsions have constitutional
implications
Copyright © 2010 National School
Boards Association. All rights reserved.
Back to the scenarios . . .
Parent of a student who is the target of
vicious and lewd taunts by other students
on You Tube demands that “something be
done.”
 Administrator is the subject of a vulgar
parody on MySpace.
 A student receives rude emails and texts
from several classmates. The messaging is
not occurring at school.

Copyright © 2010 National School
Boards Association. All rights reserved.
DISCLAIMER
This presentation does not constitute
legal advice, nor does it create an
attorney client relationship.
 It contains general recommendations and
should not be relied upon for any specific
purpose without consultation with legal
counsel or other professionals and in the
context of specific facts and
circumstances.

Copyright © 2010 National School
Boards Association. All rights reserved.