November 10, 2010
RESPONSES TO CYBERBULLYING IN SCHOOLS
By: Judith Lohman, Assistant Director
James Orlando, Legislative Analyst II
You asked (1) for summaries of legislation recently enacted in other states to address “cyberbullying” in schools; (2) what authority school officials have over cyberbullying that occurs outside of school hours and off school grounds; and (3) for brief summaries of programs and policies recognized as successful in preventing cyberbullying in schools.
“Cyberbullying” is a form of bullying that involves one student or a group of students inflicting repeated harassment, threats, humiliation, or harm on another student (i.e., bullying him or her) through the use of a computer, cell phone, or other electronic device.
Several states have recently enacted laws to address cyberbullying, either by enacting new bullying laws that include cyberbullying or by expanding existing laws to cover it. Four states, Georgia, Louisiana, Massachusetts, and New Hampshire enacted cyberbulling prevention laws in 2010, and one, Nevada, did so in 2009. All five laws contain new or expanded definitions of bullying and cyberbullying. One of the states, Louisiana, made cyberbullying a separate crime. In the other states, although a student may commit crimes while engaging in cyberbullying, cyberbullying itself is not a crime. Instead, a student who engages in the activity is subject to regular school disciplinary procedures.
The Massachusetts and New Hampshire laws are the most detailed and comprehensive. Massachusetts enacted an expansive definition of cyberbullying that includes such activities as creating fake webpages and blogs and impersonating someone online for the purpose of bullying. Massachusetts and New Hampshire also empowers school officials to act against cyberbullying outside of school if the activity (1) interferes with the victim's educational opportunities or (2) substantially disrupts orderly school operations.
School officials have the authority to discipline students for certain out-of-school conduct, but the extent of their constitutional authority to discipline students for cyberbullying occurring outside of school remains unclear and depends on the particular facts of each case. School officials may punish students for out-of-school activities that pose a clear threat or disrupt other students' safety and ability to learn. However, the First Amendment imposes limits on school officials' ability to discipline students for out-of-school activities unrelated to school or the school environment.
Among the many anti-bullying programs available, this report lists six that are considered effective by The Center for the Study and Prevention of Violence (CSPV) at the University of Colorado. They are not aimed solely at cyberbullying, but rather, take a comprehensive approach to preventing school bullying by improving a school's social climate and affecting students' behavior and outlook. The federal departments of Health and Human Services and Justice also recommend several best practices to address school bullying and cyberbullying, including changing the school environment, gaining the support of school staff and parents, training school staff, and establishing and enforcing school anti-bullying policies.
RECENT STATE LEGISLATION
In 2010, Georgia amended its school bullying law to expand its definition of bullying to include intentional, written, verbal, and physical acts that:
1. are intended to threaten, harass, or intimidate;
2. are committed (a) on school property or vehicles, (b) at designated bus stops or school-related activities, or (c) by using data or software accessed through a school system's computer, computer system or network, or other electronic technology; and
3. (a) cause another person substantial physical harm, (b) substantially interfere with a student's education, (c) are severe, persistent, and pervasive enough to create an intimidating or threatening school environment, or (d) substantially disrupt orderly school operations.
Georgia's law also requires the state department of education to adopt a model bullying policy and provide a list of appropriate anti-bullying training programs and materials. It requires each local school board to adopt bullying policies for its schools, establish a process for determining whether bullying has occurred, and give notice to parents. Finally, the law gives immunity from civil liability to anyone who, in good faith, reports a bullying incident (SB 250, Act 471, signed by the governor on May 27, 2010).
A 2010 Louisiana law makes cyberbullying a crime. It defines cyberbullying as transmitting any “electronic textual, visual, written, or oral communication with the malicious and wilful intent to coerce, abuse, torment, or intimidate” someone under age 18. The penalty is a maximum fine of $500, six months in prison, or both, unless the perpetrator is under age 17, in which case the violation must be disposed of in juvenile court.
The law applies to communications through a computer online service, the Internet, or other electronic communication and includes messages sent via local bulletin board services, Internet chat rooms, electronic mail, or online messaging services. The crime can be considered as committed where the communication is originally sent, received, or viewed by any person (Louisiana House Bill No. 1259, Regular Session, 2010, Act No. 989, effective August 15, 2010).
Unlike Connecticut and many other states, Massachusetts had no state anti-bullying law before 2010. Thus, its 2010 law addresses all types of bullying. The summary below is limited to its cyberbullying provisions.
The new law incorporates cyberbullying and electronic expressions, as well as other forms of hostile or threatening activity, into its definition of prohibited bullying. It defines “cyberbullying” as electronic message transmission in various forms, including via wire, electronic mail, the
Internet, instant messages, and fax. It also includes:
1. creating blogs or web pages on which the creator pretends to be someone else,
2. impersonating someone when posting content or messages, or
3. electronically distributing or posting material so it can be seen by one or more other people.
In order to be considered bullying or cyberbullying, the electronic activity must:
1. cause or give the victim a reasonable fear of physical or emotional harm or damage his or her property,
2. create a hostile environment for the victim or infringe on the victim's rights at school, or
3. materially and substantially disrupt the education process or orderly school operations.
The law prohibits bullying and cyberbullying through any school-owned, -leased, or –used technology or electronic device or, if it meets conditions two or three above, through any other technology or device (“An Act Concerning Bullying in Schools,” Massachusetts Senate, No. 2404, 2010 Session, signed May 3, 2010).
In 2009, Nevada prohibited bullying and cyberbullying by any member of a school district board of trustees; school employee; or pupil on the premises of a public school, at a school-sponsored event, or on a school bus. It also bars anyone from using cyberbullying to deliberately threaten to cause death or bodily harm to a public or charter school employee or student.
Nevada defines bullying as a deliberate act or course of conduct that exposes a pupil, repeatedly and over time, to negative actions that are “highly offensive” to a reasonable person. The acts must be (1) intended to cause the victim harm or serious emotional distress and (2) not legally authorized. “Cyberbullying” is bullying carried on by “electronic communication,” which is written, verbal, or pictorial communication through an electronic device, such as a telephone, cell phone, or computer.
The law requires the Nevada Education Department to adopt regulations to establish a policy for the ethical, safe, and secure use of computers and other electronic devices, including ways to prevent cyberbullying. It requires each school district to include the state policy in its individual policies on providing a safe and respectful learning environment (Nevada Senate Bill No. 163, Chapter 188, 2009 Session).
New Hampshire passed a comprehensive bullying and cyberbullying law in its 2010 legislative session. The new law defines bullying as a single incident or pattern of incidents of written, verbal, or electronic communications, physical acts, or gestures directed at another student that:
1. physically harms the victim, damages his or her property, or causes the victim emotional distress;
2. interferes with the victim's educational opportunities;
3. creates a hostile education environment; or
4. substantially disrupts the orderly operation of the school.
The definition applies to:
1. actions motivated by “a power imbalance” based on the victim's personal characteristics, beliefs, or behaviors or the victim's association with another person and based on that other person's personal characteristics, beliefs, or behaviors; and
2. cyberbullying, i.e., bullying by means of electronic devices, including phones, cell phones, computers, pagers, e-mail, instant and text messaging, and websites.
The New Hampshire law requires school authorities to act whenever bullying or cyberbullying:
1. occurs on, or is delivered to, school property or a school-sponsored event or activity on or off school property, or
2. occurs elsewhere if it interferes with the victim's educational opportunities or substantially disrupts orderly operation of a school or school-sponsored event.
Like the Massachusetts law, New Hampshire's law sets out detailed requirements for school boards and charter school boards of trustees to adopt policies prohibiting bullying and cyberbullying. It requires school policies to include specific procedures for reporting and investigating bullying incidents; notifying the parents of both the victim and the perpetrator; reporting verified incidents to the state; and providing annual training for school staff, students, and parents on how to prevent, identify, respond to, and report bullying or cyberbullying incidents (New Hampshire HB 1523, Chapter 155, 2010 session, effective July 1, 2010).
Other States' Activities
In addition to the states that passed the new state laws summarized above, Rhode Island and Utah also took measures relating to cyberbullying in 2010. Rhode Island established an 11-member Senate commission to study the problem of “cyberthreats, cyberbullying, bullying, and sexting” (10-R274, S 2871, enacted May 25, 2010) and the Utah State Board of Education adopted regulations defining bullying, hazing, and cyberbullying in schools and requiring school boards and charter schools to implement and provide training on the policies (Utah Administrative Code § R277-613).
Finally, a bipartisan group of New Jersey legislators plan to introduce an “Anti-Bullying Bill of Rights” in the state's upcoming legislative session. According to press reports, the bill will require, among other things,
1. training for teachers and school administrators;
2. each school district to establish anti-bullying programs;
3. the appointment of a school safety team in each school to foster a positive school climate;
4. school officials to report to school boards twice a year on all acts of “violence, vandalism, harassment, or bullying;” and
5. the state education commissioner to “grade” schools on their anti-bullying efforts.
No draft of the proposed bill is available as of the date of this report.
SCHOOL OFFICIALS' AUTHORITY OVER CYBERBULLYING OCCURRING OUTSIDE OF SCHOOL
The extent of school officials' constitutional authority to discipline students for cyberbullying occurring outside of school is somewhat unclear. School officials have authority to punish students for out-of-school activities that pose a clear threat or disrupt other students' safety and ability to learn. However, the First Amendment imposes limits on school officials' ability to discipline students for speech arising outside of school and unrelated to school activities or the school environment.
U.S. Supreme Court Rulings
In 1969, the U.S. Supreme Court ruled that it is unconstitutional for a school to prohibit student speech unless there is evidence that the restriction is necessary to avoid substantial interference with school work or discipline (Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969)). Tinker involved speech occurring in school—students wearing black armbands to protest the Vietnam War. The Court stressed that students' right to free speech extends beyond the classroom, but did not address the extent to which schools may regulate speech occurring wholly outside of school.
Although the basic Tinker standard still applies, the U.S. Supreme Court has since carved out exceptions for certain types of speech which schools are free to prohibit (for example, offensively lewd and indecent speech) or situations in which other standards apply (for example, school officials' authority to exercise editorial control over a school newspaper). However, these cases have involved in-school activity or school-sponsored events and did not directly address the scope of school authority to discipline students for speech occurring wholly outside of school and not connected to school-sponsored activities.
Lower Court Rulings
Several lower courts have applied the Tinker analysis to situations in which students challenge a school's authority to discipline them for speech occurring outside of school. Cases assessing a school's authority to discipline students for out-of-school cyberbullying or related behavior are very fact specific, and depend on the severity of the conduct and the potential for disruption to the school environment. Courts generally find the discipline to be authorized when the out-of-school speech involves at least potentially threatening, rather than just offensive, language. Courts are also more likely to uphold discipline when the speech is transmitted to or accessed at school (for example, a note or website written outside of school that is then read by other students at school) than when the speech remains entirely outside of school.
A recent case in the Second Circuit Court of Appeals, although dealing with threats regarding a teacher rather than another student, provides an example of the type of behavior that satisfies the Tinker standard authorizing schools to discipline students for out-of-school speech that disrupts the school. In Wisniewski v. Board of Education of Weedstock Central School District, 494 F.3d 34 (2007), the parents of an eighth-grade student in upstate New York brought a lawsuit against their son's school, challenging on First Amendment and other grounds their son's suspension prompted by online activity. Using the family's home computer, the student's instant messaging icon displayed a drawing of a gun firing at a person's head, with dots representing blood, and the words “Kill Mr. VanderMolen” (the student's English teacher). The student sent instant messages displaying the icon to 15 people (some of whom were classmates), but not to the teacher or other school officials. Eventually, a student informed the teacher and provided him with the icon. The teacher forwarded it to school administrators, who suspended the student.
The Second Circuit applied the Tinker standard and affirmed the district court's dismissal of the case, determining that the school had the authority to discipline the student. The court concluded that the icon “crosses the boundary of protected speech and constitutes student conduct that poses a reasonably foreseeable risk that the icon would come to the attention of school authorities and that it would 'materially and substantially disrupt the work and discipline of the school.' ” The court expressly noted that “[t]he fact that [the student's] creation and transmission of the [instant messaging] icon occurred away from school property does not necessarily insulate him from school discipline,” citing to an earlier Second Circuit case as well as cases from other circuits. The court further discussed this point:
[T]he panel is divided as to whether it must be shown that it was reasonably foreseeable that [the student's] IM icon would reach the school property or whether the undisputed fact that it did reach the school permits any inquiry as to this aspect of reasonable foreseeability. We are in agreement, however, that, on the undisputed facts, it was reasonably foreseeable that the IM icon would come to the attention of school authorities and the teacher whom the icon depicted being shot. The potentially threatening content of the icon and the extensive distribution of it, which encompassed 15 recipients, including some of [the student's] classmates, during a three-week circulation period, made this risk at least foreseeable to a reasonable person, if not inevitable. And there can be no doubt that the icon, once made known to the teacher and other school officials, would foreseeably create a risk of substantial disruption within the school environment (Wisniewski, 494 F.3d at 39-40 (2007)).
Connecticut's bullying law allows the anti-bullying policies required of local and regional school boards to “include provisions addressing bullying outside of the school setting if it has a direct and negative impact on a student's academic performance or safety in school” (CGS § 10-222d).
ANTI-BULLYING PROGRAMS AND BEST PRACTICES
Among the many anti-bullying programs available, the following have been found effective by the Colorado Bullying Prevention Initiative and the Bullying Prevention Institute in Pennsylvania. More information about each program and its success may be found by following the links below.
Olweus Bullying Prevention Program (BPP) is a whole-school intervention program that restructures a school's learning environment to create a social climate characterized by supportive adult involvement; positive adult role models; firm limits; and consistent, noncorporal sanctions for bullying behavior.
Bully-Proof Your School (BPYS) targets students in kindergarten through 8th grade. It is a comprehensive program for handling bully-victim problems by creating a “caring majority” of students who take the lead in establishing and maintaining a safe and caring school community.
PATHS (Promoting Alternative Thinking Strategies) Curriculum provides elementary school teachers with a systematic developmental procedure for helping children understand their feelings, tolerate frustration, and come up with constructive solutions for dealing with conflict. It includes information and activities for use with parents.
Second Step is preschool-through-grade-nine program that weaves lessons about empathy, impulse control, and other social skills into everyday curriculum. It involves families through group meetings, a parents' guide, and a video program.
Steps to Respect is for grades three to six. It (1) establishes a school-wide framework of anti-bullying policies and procedures; (2) trains staff and parents to handle bullying; and (3) teaches students to recognize, refuse, and report bullying.
Safe School Ambassadors trains selected students in grades 4-12 to intervene with their peers to prevent and stop acts of cruelty and reduce tension. It engages the socially influential “opinion leaders” from a school's diverse groups and equips them with nonviolent communication and intervention skills to use with their peers. Training and ongoing group meetings empower students to use the skills to prevent or stop incidents.
Stop Bullying Now! This website, operated by the federal Department of Health and Human Services' Health Resources and Services Administration (HRSA), recommends the following best practices to prevent and stop bullying:
● Focus effort on the school's social climate and norms to make it “uncool” to bully others or fail to help students being bullied and to make it normal for school staff to notice and intervene when students are bullied or left out.
● Assess bullying in the school by administering an anonymous questionnaire to students.
● Get buy-in from the school's staff and parents.
● Form a group to coordinate the school's bullying prevention activities.
● Train the school's staff in bullying prevention.
● Establish and enforce school rules and policies related to bullying.
● Increase adult supervision in hot spots where bullying occurs.
● Intervene consistently and appropriately in bullying situations.
● Focus on bullying prevention in class.
● Continue efforts over time.
HRSA's recommendations for addressing cyberbullying include:
● Educating students, teachers, and other staff members about cyberbullying, its dangers, and what to do if someone is cyberbullied.
● Ensuring that the school's anti-bullying rules and policies address cyberbullying.
● Closely monitoring students' use of computers at school.
● Using filtering and tracking software on all computers, but do not rely solely on this software to screen out cyberbullying and other problematic online behavior.
● Investigating reports of cyberbullying immediately. If the cyberbullying occurs off-campus, considering what actions may be taken to help address it.
U.S. Department of Justice Community Oriented Policing Services (COPS). A COPS paper on school bullying summarizes the best available evidence on the effectiveness of 17 responses to school bullying. The COPS recommendations include:
1. using a whole-school program, such as Oleweus BPP mentioned above, to change the school's environment;
2. increasing student reporting of bullying through use of a hotline or “bully box” where students report anonymously;
3. developing activities in less-supervised areas such as schoolyards and lunchrooms to limit opportunities for bullying;
4. reducing students' unsupervised time; and
5. training teachers and school staff in classroom management and bullying identification and intervention.
(Sampson, Rana. “Bullying in Schools,” Problem-Oriented Guides for Police, Problem-Specific Guides Series #12, Center for Problem-Oriented Policing, U.S. Department of Justice Office of Community Oriented Policing Services, 2009.)
The Center for the Study and Prevention of Violence http://www.colorado.edu/cspv/index.html
Georgia SB 250, Act 471 http://www.legis.state.ga.us/legis/2009_10/sum/sb250.htm
Louisiana House Bill No. 1259 http://www.legis.state.la.us/billdata/streamdocument.asp?did=723230
Massachusetts Senate, No. 2404 http://www.malegislature.gov/Laws/SessionLaws/Acts/2010/Chapter92
Nevada Senate Bill No. 163, Chapter 188 http://www.leg.state.nv.us/Session/75th2009/Bills/SB/SB163_EN.pdf
New Hampshire HB 1523, Chapter 155, http://www.gencourt.state.nh.us/legislation/2010/HB1523.html
Rhode Island 10-R274, S 2871 http://www.rilin.state.ri.us/PublicLaws/law10/res10/res10274.htm
Utah § R277-613
New Jersey Press Reports
Colorado Bullying Prevention Initiative
Bullying Prevention Institute
Olweus Bullying Prevention Program (BPP)
Bully-Proof Your School (BPYS)
PATHS (Promoting Alternative Thinking Strategies) Curriculum
Steps to Respect
Safe School Ambassadors
Stop Bullying Now!
“Bullying in Schools,”