Laws

Include applicable laws, constitutional provisions, statutes, public policy, court decisions, legal arguments.
 * Cyberbullying Laws affecting schools**

The law differentiates between cyberbullying that occurs at school, and cyberbullying that occurs outside of school. Schools have much more control over student speech and conduct at school than away from school. "At school" includes school-related activities such as on the bus, at a football game, etc. It also includes school-sponsored digital forums such as the school website, an online school class, or the school's email system. Speech that originated on campus using a personal digital device is a grey area.

The California Legislature passed an amendment to the California Education Code that “//A pupil shall not be suspended from school or recommended for expulsion, unless the superintendent or the principal of the school in which the pupil is enrolled determines that the pupil has committed an act as defined pursuant to any of subdivisions (a) to (r) inclusive: (r) 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.”// CA Ed. Code 48900. This seems simple and straightforward on its face but it leads to a certain amount of confusion when determining the jurisdiction of the schools.

Cyber-bullying or the action of bullying by electronic means has seen a rapid increase during the last few years. The effects of these actions have ranged from humiliation to suicide. These effects have resulted in a number of states passing regulations such as the changes in the California Ed. Code shown above. Sexting is simply a new variation of cyber-bullying. In sexting, a person sends nude or suggestive photographs to another. The bullying action occurs when the receiver of these photos distributes them in a manner so as to expose the originator in a negative way. Since the majority of these cases occur between school age children, schools have been pressured to act. The Ed. Code is easily understood if the actions of cyber-bullying occurred on campus. The misuse of school computers and networks falls easily under school jurisdiction. Students using cell phones on campus also fall under school jurisdiction. In these cases, the school can and is required under the Ed. Code to act.

The murky side of the law falls under two broad concepts. The first is the privacy concern of material stored on cell phones. The second is the connection between the off campus actions of posting the offensive material and the on campus effects of the act. Case law seems to treat cell phones on campus similarly to lockers. If school officials have a reasonable suspicion of the offensive material on the cell phones, then they may search the directory an act on that material. Case law on off-campus action falls under the rulings of //Tinker v. Des Moines (1969).// This case established that students maintained their First Amendment right to free speech unless the speech “//materially and substantially// disturbs school discipline, or class work.” Students do not leave their first amendment rights at the school house gate. Some have explained this as the establishment of the school as a nexus by connecting the off campus action to on-campus bullying. This connection allows the schools to apply the Ed. Code to the off campus action. According to the Tinker Test, schools can discipline students for off-campus misconduct if it substantially interferes with school discipline.

“Substantial disruption” means: Significant interference with instructional activities, school activities, or school operations • An environment for any student that is abusive, intimidating, threatening, or hostile and impairs that student’s ability to participate in educational programs or school activities • Physical or verbal violent altercations between students Willard (2007)

The statutory law requires California schools to establish procedures to deal with cyber-bullying. If the action occurs at school or at a school based activity then the school has the right and duty to punish the offenders through suspension and even recommendation for expulsion. As we have noted, this applies to actions taken on school computers or school based networks or on cell phones used during school time. It also applies to off campus actions if a connection is made to on-campus effects. If schools cannot make these connections, then they must report the activity to other authorities for action outside of the school. This can be supported by the same laws that require teachers to be designated reporters of child abuse. In all cases, schools must do everything possible to establish and maintain a good educational environment for all students.

[|California Education Code §§51870-51874]: The California Technology Assistance Project, among other things, requires school districts as a condition of receiving a technology grants from the State Department of Education to have education technology plans, which include educating pupils and teachers on the “appropriate and ethical use of information technology in the classroom, Internet safety, the manner in which to avoid plagiarism, the concept, purpose, and significance of copyright.”

[|S.1492 “Broadband Data Improvement Act” (Title I) and “Protecting Children in the 21st Century Act” (Title II]): Among other things, this law [signed by the President on 10/10/08, amending 47 U.S.C. 254 (h)(5)(b), the Communications Act of 1934] requires that elementary and secondary schools having computers with Internet access MAY NOT RECEIVE SERVICES AT DISCOUNT RATES [i.e., E-Rate grants] __unless they submit__ to the Commission __a certification__ that as part of their Internet safety policy they are “educating minors about appropriate online behavior, including interacting with other individuals on social networking websites and in chat rooms and cyberbullying awareness and response.” See i-SAFE's [|E-Rate Internet Safety Education Certification Toolkit].

[|California Education Code §§ 32261, 32265, 32270, and 48900] defines bullying of pupils to include bullying committed by means of an electronic act, and authorizes school officials to suspend or recommend for expulsion pupils who engage in bullying.

//Lovell v. Poway Unified School District// (1996): A true threat is a statement that, considered as a whole, would cause a reasonable person to regard the statement as showing an immediate, unequivocal attempt to cause harm. True threats are not protected speech under the First Amendment.

**District Liability: When must a school respond to cyberbullying? ** District liability concerns are raised when cyberbullying is occurring through district Internet system or via cell phone or other digital devices used on campus. They may arise if the combination of off campus online activity and student interactions at school rise to the level that is so hostile it is preventing a child from receiving an education.

**Negligence:** Do schools have a duty to exercise precautions against student cyberbullying through district Internet system and through use of cell phones on campus? Did the school fail to exercise a reasonable standard of care? Was it foreseeable that students would use the district Internet system to cyberbully others? Is there an actual injury? **“Reasonable” Steps** • Personal opinion of “reasonable steps:” – Assess problem – Evaluate Internet and PDD policies and Internet use management practices – Ensure effective practices to supervise and technically monitor student Internet use – Educate students and teachers – Implement an effective report, review, and intervention process – Engage in ongoing evaluation

**Civil Rights Liability:** School officials can be held liable under civil rights laws if they are – Deliberately indifferent to harassment – Of which they have actual knowledge Davis v Monroe (1999) School officials can be help liable under civil rights laws if they have the authority to respond to a pervasively hostile environment, but fail to do so. Can school officials be held liable if they fail to respond to off-campus online speech combined with on-campus-related activities have created a pervasively hostile educational environment for a student? Search of Internet and Personal Digital Device Records When can a school monitor and search student Internet use records and files? The locker search standard should apply to student Internet use. Students have a limited expectation of privacy on the district's Internet system. Routine maintenance and monitoring, technically and by staff, should be expected. An individual search of computer and Internet use records can be conducted if there is reasonable suspicion that the student has violated district policy, including policies against bullying. Schools should determine who has authority to authorize individual search and record-keeping procedures. Clear notice to students can enhance deterrence. When can a school search electronic records on a student’s personal digital device? There are some legal concerns related to conducting a search of a student’s personal digital device, including cell phone, PDA, or personal laptop. Such a search may be a violation of wiretapping laws. Willard (2007) First, courts consider the origin of the expression. If school property was used, then courts are likely to uphold any disciplinary action flowing from the student having violated school district policy. If, however, the expression occurred off school grounds, then courts are likely to find in favor of the student unless the school district can demonstrate the expression had a disruptive impact on school operations.
 * Search and Seizure issues:** Schools have a right to search students' cell phones and personal digital devices if a "reasonable suspicion" exists that the student has used the device to bully another member of the school community. //Cite search and seizure case.//

If the student threatens to harm another student or staff member via a computer, the student may not merely be subjected to disciplinary action under school district policies, but depending on the nature of the language used in making the threat, the student also could be charged with a criminal violation. The School Administrator (2007)
 * Criminal Law**

CA Ed. Code (discipline) http://www.guhsd.net/GUHSD/programs/speced/Resourece%20&%20link/Resouces/Behavior%20Discip%20Resources/Discipline%20Resources/CA%20Ed%20Code%20Discip.pdf
 * Supporting Articles (all internet based)**

Cyberbullying: Legal Issues http://www.ebasedprevention.org/toolbox/bullying/cyberbullying-legal-issues School Cyberbullying Law takes Effect January 1st http://www.dailybulletin.com/news/ci_11286458 Cyberbullying case sparks debate on school district's role http://www.paloaltoonline.com/weekly/story.php?story_id=10586

====[|Cyber Bullying Case Law is Limited, But Consider Civil and Criminal Laws] http://stopallbullyingnow.blogspot.com/2008/11/cyber-bullying-case-law-is-limited-but.html====

Cyber Bullying http://www.asbj.com/MainMenuCategory/Archive/2009/April/Cyber-Bullying.aspx


"
 * Tinker Doctrine**: students have rights of freedom of speech and expression. They are protected by the First Amendment. As long as their actions don’t //materially and substantially// disturb school discipline, or class work. Other students’ right to safety and education trumps freedom of speech. Schools can’t restrict speech because they disagree with the political viewpoint.

This is the main statute governing cyberbullying. Schools can discipline students for actions outside of school if those actions affect school discipline. There are precedents of schools disciplining students for misconduct outside of school because that misconduct affected school discipline. Students possess liberty and property interests in their education, and this trumps the 1st amendment rights of students. Jeffrey Johnston Stand Up for All Students Act." Florida Statute - passed in 2008 This law was passed as a result of a student committing suicide because of bullying and cyberbullying. The law prohibits bullying or harassment of any student or employee of a public K-12 educational institution. It directly addresses cyberbullying as well. "Bullying and harassment is prohibited through the use of data or computer software that is accessed through a computer, computer system, or computer network of a public K-12 educational institution." The statute defines harassment as "any threatening, insulting, or dehumanizing gesture, use of data or computer software, or written, verbal, or physical conduct against a student or school employee that: 1. Places a student or school employee in reasonable fear of harm to his or her person or damage to his or her property; 2. Has the effect of substantially interfering with a student's educational performance, opportunities, or benefits; or 3. Has the effect of substantially disrupting the orderly operation of the school. It also specifies, "The definitions of bullying and harassment include: Perpetuation of conduct listed in paragraph (a) (bullying) or paragraph (b) (harassment) by an individual or group with intent to demean, dehumanize, embarrass, or cause physical harm to a student or school employee by: Accessing or knowingly causing or providing access to data or computer software through a computer, computer system, or computer network within the scope of the district school system." The statute also says that "each school district shall adopt a policy prohibiting bullying and harassment of any student or employee of a public K-12 educational institution." In this policy the school district must include consequences for a student or employee who commits an act of bullying or harassment and must include a procedure for the prompt investigation of a report of bullying or harassment, among other things. The statute says, "The investigation of a reported act of bullying or harassment is deemed to be a school-related activity and begins with a report of such an act." The statue also says the district must have a procedure for immediate notification of the parents of the victim and the parents of the perpetrator, as well as notifying all local agencies where criminal charges may be pursued against the perpetrator. The statute ends with the statement that "Nothing in this section shall be construed to abridge the rights of students or school employees that are protected by the First Amendment to the Constitution of the United States." (www.leg.state.fl.us/statutes)

One legal argument implied in this case relating to previous court cases. In Tinker V. Des Moines in order to prohibit speech, there must be "substantial disruption of the educational environment." In the Jeffrey Johnston statute there is language that refers to the Tinker decision: Harassment is partially defined as activity that "Has the effect of substantially disrupting the orderly operation of the school."

Background of the case: Jeff Johnston was bullied beginning in 7th grade. "Cyberbullying was just one more way the bully targeted Jeff, fracturing his confidence." His mother said that other students didn't stand up for him because they were afraid of being a target. "The bully was relentless. He used the computer to lob attacks at Jeff, and destroy a video game he and his friend worked on all summer." Jeff was also bullied at school even though his mother was a teacher at his school. Jeff ultimately hung himself at home after two and a half years of bullying. He left a note typed on his computer six weeks before his suicide, written to his friends. The note said, "I'm just writing to tell you I won't be in school anymore. I decided to commit suicide because my life is too hard to live with." ("Bullying Moves from School to Cyberspace" Todd Jurkowski, www.ncb-2.com, November 7, 2005)

Assembly Bill 86 by Assemblyman Ted Lieu, D-Torrance, was signed by Governor Arnold Schwarzenegger and became effective January 1, 2009. The Lieu bill adds bullying to the list of acts for which a student can be suspended or expelled, adding subsection (r) to existing California Education Code (EC) Section 48900: 48900. A pupil shall not be suspended from school or recommended for expulsion, unless the superintendent or the principal of the school in which the pupil is enrolled determines that the pupil has committed an act as defined pursuant to any of subdivisions (a) to (r) inclusive: (r) 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 Secion 32261, directed specifically toward a pupil or school personnel.
 * Assembly Bill 86: California Cyber Bullying Code, Active Jan 1, 2009**

Date of Hearing: January 16, 2008 ASSEMBLY COMMITTEE ON EDUCATION Gene Mullin, Chair AB 86 (Lieu) - As Amended: January 7, 2008

[] EDUCATION CODE SECTION 48900 A pupil shall not be suspended from school or recommended for expulsion, unless the superintendent or the principal of the school in which the pupil is enrolled determines that the pupil has committed an act as defined pursuant to any of subdivisions (a) to

(r) 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.

(s) A pupil shall not be suspended or expelled for any of the acts enumerated in this section, unless that act is related to school activity or school attendance occurring within a school under the jurisdiction of the superintendent of the school district or principal or occurring within any other school district. 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.

[] 48900.4. In addition to the grounds specified in Sections 48900 and 48900.2, a pupil enrolled in any of grades 4 to 12, inclusive, may be suspended from school or recommended for expulsion if the superintendent or the principal of the school in which the pupil is enrolled determines that the pupil has intentionally engaged in harassment, threats, or intimidation, directed against school district personnel or pupils…

California Education Code Section 32261** (g) As used in this chapter, an "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 telephone, wireless telephone or other wireless communication device, computer, or pager.
 * []

The basic legal standard is that school officials can place educationally based restrictions on student speech that appears to be sponsored by the school or that is necessary to maintain an appropriate school climate. This standard probably applies to student speech through the district Internet system used at school. Based on Hazelwood v Kuhlmeier, which set the precedent that schools can restrict student speech in school-sponsored publications. Willard (2007)

A victim of cyberbullying can file a civil suit against the bully. Legal actions are possible for: defamation, invasion of privacy, and intentional infliction of emotional distress. Criminal cases are also possible for things such as harassment, sexual exploitation, etc. Willard (2007)