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Cyberbullying: What Every Educator Needs to Know Karen Haase Harding & Shultz (402) 434-3000 khaase@hslegalfirm.com H & S School Law @KarenHaase


This is not your y Grandma’s assemblyy


Bullying? “any any ongoing pattern of physical, verbal, or electronic abuse on school grounds, in a vehicle hi l owned, d leased, l d or contracted t t db by a school beingg used for a school p purpose p by a school employee or his or her designee or at school-sponsored designee, activities or school-sponsored athletic events.�


Cyberbullying? Cyberbullying, v: the use of technology such as computers and cell phones to engage in i repeated, t d and dh hostile til b behavior h i byy an individual or group, g p that is intended to harm others. The term "cyberbullying" cyberbullying is used when the victim or bully is a child or teen. The term cyber harassment is used when the victim is an adult.


Cyberbullying y y g Example of cyberbullying b b ll i on iChat (Apple’s instant messaging) i )

Divagirl: Hey, loser, watch your back. t t323 What tmt323: Wh t r u talking about? Divagirl: Why don't you kill yourself while u r ahead? tmt323: Why can't you just leave me alone? Divagirl: Ugly girls like u need to be put in their place.


Not Myy Students! Tell teacher: 27% of preteens and only 9% of teens Tell friend: 44% of preteens and 72% of teens Told no one: 16% of preteens and teens


Educators’ Responses to Cyberbullying


Cyberbullying y y g of Staff


J.S. v. Blue Mountain Sch. Dist.  Middle School Student made fake MySpace profile for principal • Included photo from school website • Initially public; then limited • Students could only access off campus • Student suspended for 10 days; parents sued d


Layshock v. Hermitage Sch. Dist  High School Student made fake MySpace profile for principal • Included photo from school website • Other students created similar and more offensive ff i profiles fi • Students only accessed off campus • Student suspended for 10 days; placed l d iin alt. l sch, h banned b d ffrom extracurriculars, no commencement


J.S. and Layshock Inconsistent  Third Circuit granted en banc rehearing  Oral Argument June 3, 2010  Decision issued June 13, 2011  The Bottom Line? Schools lost both cases


J.S. and Layshock  Key legal points • School can’t punish off-campus speech because it is vulgar, inappropriate or even criminal • School S can only punish i off-campus ff p that is substantiallyy speech disruptive


What About the Staff?  “We recognize that vulgar and offensive speech such as that p y in this case – even made in employed just – could damage the careers of teachers and administrators and we conclude only that the punitive action taken by the school district violated the First Amendment free speech rights i ht off JS.” JS ”  i.e. “We don’t care”


Cyberbullying y y g of Students


T.K. v. New York Dept’t of Ed., (E.D.N.Y 2011) < LD student bullied by peers < Ct.: Ct : < No First Amendment protection for bullies < “…merely …merely requires schools do what the Department of Ed Education ti h has ttold ld th them tto d do ffor years.”


J.C. v. Beverly Hills Unif. Sch. Dist. (Cal.)  8th grade girls talking smack about a peer; uploaded l d d tto Y YouTube T b  Principal p suspended p student who uploaded  Court: no disruption to school school, no nexus to education, no basis for punishment


Los Angeles (CA) Unif. Sch. Dist., 46 IDELR 198 (OCR 2006) < SpEd Student bullied and cyberbullied < “…the teacher's actions and inactions created a hostile environment for the Student based on disability.”


Kowalski v. Berkeley Co Schs (4th Cir. Ci 2011) Student created MySpace group harassing another student Creator of the page received • 10 10-day day suspension from school • 90-day “social suspension” Ct speech Ct.: h caused d substantial b t ti l disruption, p , therefore discipline p appropriate


Sexting? ď&#x20AC;żMaterial can be distributed via:

-Text messages -Downloads onto laptops/computers -E-mail -Downloads D l d onto t ii-pods/mp-3 d/ 3 players l -Social Networking Sites


How Common is Sexting? g  Sexually suggestive photos sent: – 20% overall –22% girls –11% young teen girls (ages 13-16) –18 % boys


How Common is Sexting? g Sexually suggestive messages sent: –39% of all teens –37% girls –40% 40% boys 48% of teens say they have received sexting ti photos h t or messages.


Serious Consequences: Jessica Logan


Criminal Implications Under Nebraska Law  NEB. REV. STAT. 28-813: Class IV felony to:

─ knowingly solicit, coax, entice, or lure ─ a child sixteen years of age or y younger g ─ by means of an electronic communication device ─ to t postt images i that th t would ld qualify lif as child pornography under state law


Criminal Implications Under Nebraska Law  Affirmative Defense:

─ the picture is only of the defendant;

─ ─ ─ ─ ─ ─ ─

or defendant was younger than 19 picture i is i off someone at least l 15 picture was taken voluntarily picture was given voluntarily picture contains only one child defendant hasn’t shared the picture; AND d f d defendant did didn’t ’ coerce taking ki or sending di


In re Katrina R.  15 year old texted nude pics to her BF  Was adjudicated “a child who deports herself so as to injure j or endanger g seriously the morals or health of herself e se or o others” ot e s • Placed in legal custody of HHS • 6 months’’ probation i • Required counseling and community service.


Practical Steps in Dealing with i Sexting S i in i Schools S When You Catch Kids Sexting


Cyber/bullying Responses  Keep “Responding and Reporting” separate in your mind (and your staff’ss mind) staff  Focus on Small Stuff  DOCUMENT, DOCUMENT DOCUMENT, DOCUMENT DOCUMENT  Look for nexus  Don Don’tt make promises you can can’tt keep


Helping Kids Deal; Tell them to: ►Stop.

Don’t respond to the bully.

►Block.

Block the cyberbully or limit all communications to those you can trust trust.

►Tell.

Tell a trusted adult.


If you discover bullying  Do not close your eyes  Report R t tto administration d i i t ti asap  Document ocu e t everything eve yt g


Does the Victim Need Interventions?  Inerventions • Social S i skill i training i i • Hygiene yg training g with,, sped p teacher, counselor or other staff • Peer mentor  Be ready for a 504 or SpEd request


Cyberbullying: What Every Educator Needs to Know Karen Haase Harding & Shultz (402) 434-3000 khaase@hslegalfirm.com H & S School Law @KarenHaase


Cyberbullying Inservice for Crete