Responding to Cyber Bullying: An Action Tool for School Leaders

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Jill Joline Myers, Donna S. McCaw & Leaunda S. Hemphill

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  • Back Matter
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  • Dedication

    I dedicate this book to my son Kole, whose excitement for knowledge keeps me seeking the wonderments of life. May we always search for solutions and great wisdom.

    —Jill Joline Myers

    I dedicate this book to two outstanding people: my best friend and husband Mark, and my mom Hiroko Mettler. My mom's active mind, love for learning, and youthful energy have always inspired me toward greater levels of excellence.

    —Donna S. McCaw

    A special dedication to the special people in my life: my best friend and husband Hoyet, my father, my children, and my grand baby. You are my inspiration and reason to live.

    —Leaunda S. Hemphill

    Copyright

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    Preface

    This manual is dedicated to the competing principles (1) that schools are not required to surrender control over school activities to students and (2) that students are exposed to a robust exchange of ideas.1 While the classroom needs to be a marketplace of ideas where First Amendment free expression exists, a safe and orderly school environment conducive to learning must be maintained. The increasing use of technologies, including the Internet, the most participatory form of mass speech yet developed,2 confounds administrative decision making. Technology use muddles the point at which students’ First Amendment protections end and a school's authority begins. The schoolyard may no longer be confined within its physical limitations.

    This manual provides public school leaders and front-line school personnel with data-driven solutions for resolving cyber bullying incidents. Included within the manual are the following:

    • Comprehensive and easily applied tests that differentiate netiquette violations from First Amendment protected expressions.
    • Strategies for school leaders to use to address and document aggressive cyber situations.
    • Real-world cyber bullying scenarios from court cases that address the authority of schools to regulate, censor, or sanction inappropriate cyber expression by students both on and off campus.
    • The cyber bullying School Sanctioning Worksheet that provides practical guidelines for school decision makers. These guidelines support transparent accountability, identify specific and objective factors for school personnel to assess in each case, and document a school's decision to sanction cyber bullying incidents.

    The primary focus of this manual concerns school leaders’ decision-making processes when dealing with incidents of cyber bullying. The real-world examples provided will equip school administrators with the knowledge and tools to lead their schools or districts through issues surrounding cyber bullying. It should be noted, however, that although differences between cyber bullying and bullying exist, these materials may also be used when dealing with other bullying or discipline issues. The suggestions included in this handbook may easily be applied to other student disciplinary decisions.

    The book is organized into four sections. The Introduction discusses cyber bullying as a recent, emerging phenomenon. Cyber bullying is defined within the context of appropriate school behavior. Examples of sexting and slamming support the statistical significance of the problem in public education. This section raises the challenges to school districts created by students’ inappropriate use of technology. A brief summary of current state remedies is also discussed.

    The next section of the book is titled Part I, Resolving School Cyber Situations. This section is divided into nine chapters that provide a brief update on recent court cases related to cyber bullying and public school safety. The purpose of this section is to provide a complete legal analysis of cyber bullying situations through the eyes of the courts. Case scenarios provide real-life examples of student expressions that are both terrifying and destructive to productive school functioning. The case discussions impart a strong foundation for making legally sound decisions, and they include the dictates of the courts regarding a school's duty to protect its students from harm.

    Chapter 1 identifies the issues and confusions existing in schools resulting from student cyber expressions. This chapter distinguishes protected expressions from unprotected expressions as this distinction is reflected in court decisions. Chapter 2 reviews the Supreme Court's perception of appropriate student expressions at school. It provides the three categories of student expression that can be controlled by school administrators. Chapter 3 discusses the state and local take on school-related expressions. Highlights of regional differences in resolving cyber bullying issues in schools are discussed. Too often, school administrators believe that the concept of in loco parentis authorizes total control of students while under school supervision. This is, in fact, no longer true. Public schools no longer act in the place of parents.

    Chapter 4 focuses on inappropriate student expressions that are vulgar, lewd, or developmentally unacceptable for the intended student audience. Chapter 5 examines the school official's ability to control pedagogy and school-authorized academic and extracurricular activities, publications, and events. Chapter 6 details disruptive student expressions that impact the educational environment. This includes expressions that disrupt by implying that there will be violence, causing administrative management issues, or undermining school leadership authority.

    Chapter 7 addresses a school's authority to reach beyond the schoolyard gate. Off-campus activities that establish a sufficient nexus (connection) to school-related functions may be censored provided that they substantially disrupt the school or impede students from obtaining educational benefits. Chapter 8 focuses on a school's duty to protect from peer-on-peer cyber bullying. A school is not responsible for peer-on-peer activity unless the school is aware of the situation and is deliberately indifferent to the circumstances. Even then, the school would not be responsible for the harm unless a pattern of systemic abuse has occurred. Chapter 9 covers proactive approaches that have been developed to deal with school cyber bullying situations. These approaches include state and federal legislative mandates, community practices, and school-parent-student acceptable use policies.

    Part II examines the basic lessons and rules school administrators need to know to avoid liability for or litigation from inappropriately responding to cyber bullying situations. This part discusses the schools’ options while handling these incidents and the schools’ need to provide fact-intensive justification for its actions. This section is divided into two chapters. Chapter 10 discusses the lessons learned from decisions that school personnel have made in the past. In particular, this chapter demonstrates how costly cyber censoring mistakes are to school districts, and it lists options other than censorship that are available to schools. Chapter 11 summarizes the Top Ten Rules that generally govern school authority over student cyber expressions. These Rules stem from Supreme Court decisions and the lower courts’ interpretations thereof. The Top Ten Rules give school officials concise guidance regarding which student expressions can be regulated and which cannot.

    Part III gives the reader the tools needed to systematically evaluate and determine appropriate cyber bullying disciplinary actions. Chapter 12 introduces the MATRIX, a rubric that will assist administrators in formulating decisions that are not arbitrary and capricious. The chapter describes the need for such a decision-making tool and identifies the philosophical goals that support its use. Chapter 13 describes in detail how the MATRIX works. Included within this chapter is a sanctioning worksheet organized into six sections.

    Each section identifies specific information relevant to school discipline. The six sections are

    Section 1: The student/offender's pedigree information, general background information, and contact information for those involved in the incident.

    Section 2: The category and description of the cyber bullying presenting offense.

    Section 3: Numerical calculations correlating to the intensity of the presenting offense.

    Section 4: Numerical calculations correlating to the offender's status and personal characteristics.

    Section 5: Numerical calculations mitigating the offender's liability for his or her conduct.

    Section 6: The total sanctioning score and actual disposition received.

    A step-by-step description for completing the worksheet provides a straightforward guide with which to process and document a school's sanctioning decisions.

    Notes

    1. Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 512 (1969).

    2. Reno v. ACLU, 521 U.S. 844, 863 (1997).

    Acknowledgments

    Corwin gratefully acknowledges the following individuals for their editorial insight:

    Margarete Couture, Principal

    South Seneca Central School District

    Interlaken, NY

    Laurie Emery, Principal

    Old Vail Middle School

    Vail, AZ

    David Freitas, Professor

    Indiana University South Bend

    South Bend, IN

    Jill Gildea, Superintendent

    Fremont School District 79

    Mundelein, IL

    Barb Keating, Principal

    New Westminster School District

    Lord Kelvin Community School

    New Westminster, BC, Canada

    About the Authors

    Jill Joline Myers has extensive experience dealing with juvenile offenders through the criminal court system. In two decades as a state prosecuting attorney, she dealt with a wide spectrum of inappropriate and illegal behaviors, from school truancy to terrorism. As an associate professor at Western Illinois University teaching criminal justice courses, she is aware of the need for a straightforward, transparent, consistent, and nonbiased sanctioning process. Her research agenda includes civil liability of state agents, violence reduction strategies, and cyber bullying. She regularly instructs state and federal agencies on constitutional issues.

    Donna S. McCaw's three decades in public schools include experience in special education services and school counseling as well as positions as school principal and director of curriculum. Currently, she serves as a professor of educational leadership at Western Illinois University. In that capacity she teaches at the master's and doctoral levels. Her specialties include issues and challenges surrounding effective 21st-century leadership. In addition to a love of teaching, she has a commitment to work with public schools. Consequently, through her school consulting work, she spends much time guiding and directing improvement processes.

    Over the past 20 years, Leaunda S. Hemphill has consulted with higher education and K–12 faculty on the use of effective instruction in computer-based and online environments. As an associate professor at Western Illinois University, she teaches instructional design and K–12 technology integration courses in the Instructional Design and Technology Department. She also teaches online student assessment for Illinois Online Network. She regularly conducts professional development workshops for state and international organizations. Her research includes evaluating online instruction and interactivity, and integrating emerging online technologies and virtual environments into the classroom.

  • Glossary

    Acceptable use policies (AUPs). Contractual agreements among school districts, students, and parents setting forth acceptable practices for decorum and equipment usage.

    Aggravating circumstances. Factors that compound or worsen the extent or effect of cyber aggressive conduct. Such factors include the duration, intensity, and viciousness of the cyber bullying activity as well as the motivation and impact on victims.

    Anonymizing. Hiding behind an intermediary website or anonymizer to prevent identification of the source.

    Bash boards. Internet discussion forums where people post highly critical statements, racial comments, condemning remarks, or gossip about others. Remarks typically focus on core characteristics or personality traits.

    Battle rap. A genre of music whereby artists try to outdo one another by depicting violent imagery and coarse vulgar language with no intent to harm.

    Bystanders. Onlookers present at an event or who receive online messages but do not actually contribute to the discussion or website materials. Bystanders include those who merely forward information to other nonparticipants. Although bystanders remain on the sidelines of cyber bullying, they contribute to the effects by witnessing the events and experiencing the emotional fallout created by the aggressive expressions. Bystanders often require psychosocial intervention due to the trauma caused from experiencing cyber bullying behavior.

    Columbine. The site of the April 20, 1999, school massacre in Columbine, Colorado, where 12 students and one teacher were killed and 24 other students were wounded. The phrase “going Columbine” commonly connotes death as a result of one or more students shooting other students and school personnel. The phrase is an off-handed expression depicting a desire to cause school violence similar to the phrase “going postal” intimating killing individuals in the workplace.

    Common law. A basis of law premised on the belief that similar situations should be treated the same. Common law is a legal system without a statutory basis or an executive mandate that gives precedential weight to previous judicial written opinions. Past opinions bind or dictate (establish precedent for) future opinions. Judges develop the common law as situations arise. Therefore, the common law changes or advances over time based on traditional jusrisdictional customs and mores.

    Communications Decency Act (CDA). An act designed by Congress in 1996 to regulate pornography (indecency and obscenity) over the Internet (Title V of the Telecommunications Act of 1996, Pub. L. No. 104–104, 110 Stat. 133 (1996), amended and codified at scattered sections of 47 U.S.C.). Specifically, the act criminalized the intentional transmission of “obscene or indecent” materials to persons under 18. In 1997, in ACLU v. Reno (929 F. Supp. 824 (E.D. Pa. 1996), affirmed 521 U.S. 844 (1997)), the Supreme Court held that the indecency portion of the act violated the First Amendment. Parents should decide what materials are appropriate or indecent for their children. In 2003, Congress amended the CDA by removing the indecency provisions. The Supreme Court indirectly upheld the constitutionality of the new statute in 2006 in the case of Nitke v. Gonzalez (413 F. Supp. 2d 262 (S.D. N.Y. 2005), affirmed 547 U.S. 1015 (2006)).

    Cyber bullying. The use of technology to harass, humiliate, hurt, or embarrass another. Not all forms of cyber bullying are illegal or sanctionable by school districts.

    Cyber bullying by proxy. Convincing others to send hate or flame mail to the victim and then, when the victim responds in an inappropriate way, forwarding the response to an authority figure who punishes the victim.

    Cyber stalking. Sending threatening messages of harm that are highly intimidating, causing victims to fear for their safety.

    Deliberate indifference. Acting with total disregard for the consequences of one's actions. The term requires that an individual has made a conscious choice among options available and has chosen to consciously or recklessly act regardless of the outcome. Deliberate indifference requires more than mere negligence.

    De minimis. Minimal or with very little significance or importance.

    Denigrating. Dissing (disrespecting) someone online by posting cruel statements, gossip, or rumors to destroy or damage his or her reputation.

    Due Process Clause. A provision within the Fourteenth Amendment that protects rights of individuals and corporations. Due process includes both procedural and substantive protections before deprivations of life, liberty, or property may be imposed.

    Duty to protect. The legal responsibility of a school district to intervene and afford protection for students under its care. Typically, schools have no legal obligation to protect students from peer-to-peer harm. However, if there is a systemic violence, then schools may be required to intervene and not act with deliberate indifference to the peer-to-peer harm in certain situations.

    Eleventh Amendment. The constitutional provision that provides that “The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” This amendment is interpreted as granting immunity in the federal courts to each state from lawsuits by citizens of its own state, other states, foreign countries, or citizens of foreign countries.

    Elementary and Secondary Education Act (ESEA). An act that established equality in educational access and standards for accountability. In 2002, this act was amended and became the No Child Left Behind (NCLB) legislation.

    Exclusion or Boycott. Intentionally excluding a person from an online group, chat room, game, or IM buddies list.

    Fighting words. Words that intentionally provoke a specific group to immediately react in a hostile manner.

    First Amendment. The constitutional provision that prohibits legislation abridging freedom of speech. Although no right is absolute, the limitations to free expression are strictly and narrowly defined and enforced.

    Flaming. Posting or sending extremely nasty electronic messages in a public forum to inflame or enrage the recipient. Flaming typically results in retaliatory online fighting.

    Foreseeability. The predictability or natural and probable consequences of one's actions. Harm is foreseeable when a reasonable person would anticipate or expect such a result from certain behavior.

    Frenemy. An offender who uses a personal relationship with a victim to gain or gather information to exploit, harass, or humiliate someone who has trusted him or her.

    Happy slapping. A physical attack or provocation of an unsuspecting target. An accomplice records the incident and posts it online, distributes it electronically, or shares with friends. The intention of happy slapping is to record a real-life drama.

    Harassment. Repeatedly sending offensive, rude, and insulting messages.

    Hate mail. Messages exposing prejudices, including those involving race and sex.

    Impersonation. Masquerading as the victim, the perpetrator posts messages containing embarrassing or insulting information with the intent to damage a friendship or reputation. Readers believe that the victim wrote the posts.

    Impinge-on-the-right-of-others test. The test created by the Supreme Court in Tinker v. Des Moines Independent Community School District that allows censorship of student expression under the First Amendment. The test allows censorship when the expression actually interferes with a student's right to educational benefits or substantially detracts from the learning environment. Typically this test is limited to those expressions that attack core characteristics of race, ethnicity, religion, gender, sexual orientation, or disability.

    Imprimatur. The official authorization or sanctioning approval by a school.

    Immunity. A legal status that immunizes individuals or entities from lawsuits. The concept removes them from the potential of liability and, in essence, places them above or free from legal obligations, including liability for damages or harm.

    In loco parentis. English translation of this Latin term means “in place of the parent.” In school settings, the doctrine has come to mean that schools stand in place of the parents with regard to children under their charge. Under the common law of England, schools were responsible for both the educational and moral development of school children. Hence the school's authority over school children at school was as extensive as the parents’ authority. However, since the children's rights movement of the 1960s and recent Supreme Court cases, public schools no longer stand as parents over school children. School children retain their own constitutional rights (within limits), and parents maintain authority over their children's moral education.

    Internet polling. Participating in online polls that critically rate a victim's physical appearance or other characteristics.

    Mitigating circumstances. Events or factors that lesson or reduce liability for one's actions. In terms of cyber bullying, such factors include cognitive development, age, atonement, and current behavioral status.

    Netiquette. A term that evolved from “network etiquette;” it refers to a set of social guidelines that encourage civil interaction over electronic technology. The term implies proper manners to be used when communicating online.

    Nexus. A legal term meaning causal connection or linkage between two events. In terms of cyber bullying sanctioning, a sufficient association or relationship must be demonstrated between the student's expression and the harm caused to another student or the disruption to the institution before punishment may inure.

    Outing and phishing. Engaging or encouraging victims into online conversations so that the victim is tricked into revealing sensitive or confidential information. The perpetrator then viciously forwards the embarrassing information to others, allegedly as a “joke.”

    Overbreadth. A legal doctrine that applies to regulation of free speech. Regulation that is overbroad prohibits both restrainable and nonrestrainable speech. Policies or regulations that attempt to broadly or extensively censor content of expressions are often found to violate this doctrine. School policies that attempt to regulate expressions invoking “ill will” are generally illustrative of an overly broad policy, because the term “ill will” includes both sanctionable and nonsanctionable behaviors.

    Poking. To reach out and virtually touch someone online. For example, poking a friend on a social networking site (such as Facebook, MySpace, or Bebo) causes the friend to receive a message that he or she has been poked. Not all pokes are harmless.

    Polling. Creating polls on websites at which site visitors vote on undesirable characteristics, such as who is the fattest, ugliest, sluttiest, geekiest, and so forth.

    Precedent. A legal doctrine that requires courts to follow the previous practices or rulings of superior courts.

    Presenting conduct. Refers to the categories of cyber bullying conduct corresponding to criminal offenses or legal precedent.

    Procedural due process. A provision within the Fourteenth Amendment that requires a process or series of steps to be undertaken before the government may deprive individuals or corporations of life, liberty, or property. Typically, procedural due process includes such measures as notice of impending deprivation and the right to respond, have counsel, or appeal. All of these measures must be taken in a meaningful and timely manner.

    Proximate cause. The legal cause of harm. Harm or injury that results as a natural consequence of conduct is found to support legal causation. Proximate cause of an injury includes conduct that but for its occurrence, no injury would have resulted. To determine proximate cause, many courts consider whether the conduct played a substantial role (though not necessarily the only role) in producing the negative consequence.

    Public forums. Spaces where persons may openly express their opinions. Typically public forums include public streets, parks, and other traditional open forums. Since schools are not deemed public forums, school officials may regulate the content of students’ expressions.

    Rational basis analysis. A judicial standard of review that determines whether censorship of an expression is based upon a reasonable and legitimate government interest or is an arbitrary and capricious decision.

    School-to-prison pipeline. A belief that students who are prosecuted are funneled on a path to prison.

    Sexting. Posting an embarrassing, sexually explicit photo on the Internet or sending sexually explicit text messages or photos on a cell phone.

    Sovereign immunity. The Eleventh Amendment's legal protection that prevents state or federal governmental entities from being sued without their consent. The doctrine developed from the belief that the king could do no wrong; therefore, he could not be challenged.

    Spam. Flooding the Internet with multiple copies of the same message to voluntary and involuntary recipients.

    Substantial and material disruption test. A test created by the Supreme Court in Tinker v. Des Moines Independent Community School District that allows censorship of student expression under the First Amendment. The test requires more than ordinary disruption but less than complete chaos.

    Substantive due process. A part of the Fourteenth Amendment's Due Process Clause. Substantive due process affords protection from deprivations of unenumerated rights, including parental, privacy, and marriage rights. For example, the right to bodily integrity, the right to life, and the right to raise one's children as one chooses fall within this protection.

    Territoriality. A term that defines a border or a limitation of jurisdiction. With regard to cyber expressions, territoriality refers to the geographic area wherein an expression originated or was received. School districts have jurisdiction over expressions that are made within their schoolyard gates or that detract substantially and materially from the educational process.

    Threat. A deliberately posted statement that indicates intent to harm another person. Only threats of serious, imminent harm may be sanctioned.

    Title IX. A title of the Education Amendments of 1972 that states, “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” Most commonly, Title IX is discussed in terms of its impact on athletics, but it covers all educational activities (band, science clubs, cheer-leading, etc.) and access to their benefits.

    Trolling. Intentionally posting messages that provoke or bait victims into “flaming” or fighting. Typically the messages relate to material that is sensitive to the victims.

    True threats. Expressions communicated directly to another person that are interpreted as serious expressions of an intention to inflict bodily harm upon or to take the life of the target.


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