Cyberbullying policy required
WSSDA offers sample policy
From WSSDA
Policy News, April 2008
Original Anti-bullying Bill
In 2002, the legislature passed a law requiring school districts
to prohibit harassment, intimidation and bullying between
students. Districts were required to adopt policies by August 1,
2003. At that time, WSSDA issued a model policy containing
provisions for districts to consider. The primary requirement
was that districts include a definition of bullying that was
consistent with the legislature’s definition:
“Harassment, intimidation, or
bullying” means any intentional written, verbal, or physical
act, including but not limited to one shown to be motivated
by any characteristic in RCW 9A.36.
080(3), or other distinguishing characteristics, when the
intentional written, verbal, or physical act: (a) Physically
harms a student or damages the student’s property; or (b)
Has the effect of substantially interfering with a student’s
education; or (c) Is so severe, persistent, or pervasive
that it creates an intimidating or threatening educational
environment; or (d) Has the effect of substantially
disrupting the orderly operation of the school. Nothing in
this section requires the affected student to actually
possess a characteristic that is a basis for harassment.”
(RCW 28A.300.285)
WSSDA’s model policy explains
specifically the characteristics required and clarifies that the
policy applied to all bullying regardless of motivation and
regardless of whether or not the student even possessed the
characteristic for which they were bullied.
The model policy provided flexibility and the ability for
administrative decision makers to use their discretion. The
ultimate goal was to help the bullied student, restore the
culture of the school and change the negative behavior.
Cyberbullying
At the time of the original
legislation, the methods of bullying were primarily written or
verbal. The emergence of technology has provided an additional
vehicle for messages that may be considered harassment,
intimidation or bullying. In an Olweus Bully/Victim
Questionnaire: Bullying is defined as “when another student, or
several other students do any of the following: say mean and
hurtful things or make fun of him or her or call him or her mean
and hurtful names; completely ignore or exclude him or her from
their group of friends or leave him or her out of things on
purpose; hit, kick, punch, shove around, or lock him or her
inside a room; tell lies or spread false rumors about him or her
or send mean notes and try to make other students dislike him or
her; and other hurtful things like that.” Cyberbullying occurs
when these acts are committed electronically. Cyberbullying is
also succinctly defined as “an overt, intentional act of
aggression towards another person online.” Cyberbullying
includes misusing technology such as e-mail, cell phones, pager
text messages or instant messaging to harass, tease, intimidate,
threaten or terrorize another person by sending or posting
inappropriate and hurtful e-mail messages, instant messages,
text messages, digital pictures or images or Web site postings,
including blogs.
Cyberbullying presents challenges
for school districts in several ways because of the devastation
it brings to the student victim and the disruption to the school
and environment. Cyberbullying is harmful to individual students
because bullies easily hide behind the anonymity that the
Internet provides, the misinformation is spread very quickly to
a wide audience and it can be challenging to identify the source
of the bullying.
Administrative challenges include
responding and inflicting appropriate punishment for behavior
that occurs in “cyberspace.” From the district perspective, it
is clear that if students use district computers discipline is
appropriate. However, grey areas exist because the bullying can
start outside of school and outside of the school day, but
impact students in the school environment. The district
administrator must then determine their authority to impose
discipline. In making that determination the district must
consider the safety and security of all students as well as the
individual free speech rights of students.
The impacts of cyberbullying in
the educational environment led our legislature to revisit the
issue of harassment, intimidation and bullying, but this time
with the emphasis on electronic transmission of messages or
images.
Cyberbullying Legislation
In 2007 the legislature passed a
new law requiring WSSDA, with the assistance of the Office of
Superintendent of Public Instruction (OSPI), to convene an
advisory committee and develop a policy “prohibiting acts of
harassment, intimidation, or bullying that are conducted via
electronic means by a student while on school grounds and during
the school day.” The law also requires that districts
disseminate information to parents on the seriousness of
cyberbullying.
Each district is required to
adopt its own policy by August 1, 2008. A district is not
required to adopt the WSSDA model, but must adopt a policy. The
WSSDA model can be used as a framework for the policy the
district chooses to adopt.
Workgroup
In response to the legislative
directive, working with OSPI, WSSDA convened a workgroup
representing various stakeholders. The groups invited to
participate in the taskforce included representatives of
principals, teachers, law enforcement, American Civil Liberties
Union, superintendents, school board members, the Parent
Teachers Association and legislative staff.
Over the course of several
months, the workgroup reviewed the legislative charge, reviewed
cyberbullying policies from other states and drafted various
proposals. The workgroup agreed that cyberbullying is not a new
concept but rather the act of bullying carried out with a
different mode of transmission. Therefore, a completely new
policy was not necessary, because all districts are currently
required to have a harassment, intimidation and bullying policy
adopted consistent with the legislative mandate from 2002.
For content as well as logistical reasons, it made sense to
include cyberbullying in the existing policy. The policy does
not contain the word “cyberbullying” but rather refers to
“electronically transmitted” messages or images. The work-group
chose not to put a definition of “cyberbullying” in the sample
policy because although it could be instructive, a definition
could also be another area subject to interpretation and
consequently create more uncertainty for school administrators.
“On school grounds and during
school day”
The 2007 law, specifically
contained language prohibiting cyberbullying “on school grounds
and during the school day.” This language was designed to ensure
that school districts operate only within their legal authority.
The taskforce chose not to include this specific phrase in the
policy because of the uncertain and evolving nature of the law.
It is true that harassment often
occurs off school grounds and outside of the school day and this
is an area over which a school district does not have authority.
However, the U.S. Supreme court has given schools the ability to
censor inappropriate on-campus speech. But this right is based
on the premise that the prohibited speech will cause disruption
at school and cause an adverse impact to the educational
environment. If the speech does not happen at school and is not
disruptive to the school environment, the district does not have
a right to intervene. The challenge is that the electronic
speech is not “cut and dried.” Obviously, if there are threats
that will be acted out at school or a school-related event the
district can intervene.
Due to the fluid nature of
cyberbullying, we did not try to capture all the nuances of the
legal requirements in our policy. Responses to cyberbullying
will be a case-by-case determination, weighing the facts and
determining whether the school is within its legal authority.
Districts are advised to consult their school attorney for
guidance when responding to cyberbullying in their districts.
We acknowledge that the legal
uncertainty is particularly challenging for administrators. It
is clear that an administrator may discipline a student when the
student’s behavior causes substantial disruption to the
educational environment. Obviously, a district has the authority
to monitor their own systems and to take away computer
privileges and impose discipline for improper use. In the case
of electronic harassment, it is unclear what the courts will
consider as substantial disruption. To date, the outcome of the
court decisions are mixed. It is conceivable that the courts
would permit administrators to discipline where the activity
results in cessation of instruction or educational activities,
the inability of students or staff to focus on learning or
function as an educational unit because of a hostile
environment.
Due to the legal uncertainty,
commentaries on the legal issues for off-campus student speech
often cite, Tinker v. Des Moines Independent Community School
District. In Tinker, the court clarified that school personnel
have the burden of demonstrating that the speech or behavior
resulted in a substantial interference with the educational
environment or the rights of others.
Although not binding on
Washington school districts, a Pennsylvania case (J.S. v.
Bethlehem Area School District, 2000) found that schools do have
the authority to discipline students when off-campus speech or
behavior results in a clear disruption of the classroom
environment. In that case, a student had been expelled for
creating a Web site that included threatening and derogatory
comments about specific school staff. Similarly, in Laycock v.
Hermitage School District (2006), a U.S. District Court found
that a Web site parody making fun of the principal in a
nonthreatening, non-obscene manner was subject to discipline
because it did disrupt the educational program by requiring
staff time to resolve the problem and resulted in a shutdown of
the school computer system.
One Washington case had the
opposite result, in Emmett v. Kent School District No. 415
(2000), the U.S. District Court for western Washington found
that a student’s Web site with mock obituaries of students and
an online mechanism for visitors to vote on who should die next
did not actually intend to threaten anyone and therefore was
insufficient evidence of school disruption. A case with a
similar outcome was, Beussink v. Woodland R-IV School District,
a federal court in eastern Missouri found that a student’s use
of vulgar language to criticize his school and its faculty on an
off-campus Web site was protected by the First Amendment because
it was not materially disruptive.
A recent U.S. Supreme Court
decision may also impact a district’s ability to impose
discipline for off-campus conduct. In Frederick v. Morse, the
court confirmed that a student’s free speech rights are limited
by the special circumstances of the school environment and that
a student could be disciplined because his banner proclaiming
Bong Hits 4 Jesus could be viewed as promoting illegal drug use,
and not merely offensive speech.
The impact of these decisions in
Washington is yet to be determined. It is recommended that
districts consult legal counsel before implementing formal
discipline in cases involving off-campus conduct.
What can the district do in
situations when discipline is not within their scope of
authority? There are other options available such as contacting
the parents of the students involved, notifying the Internet
host or the cell phone carrier. If the harassment involves
threats, notify law enforcement authorities and, possibly most
effective, the district should use a proactive approach with
students. Educating students regarding appropriate and
inappropriate uses for electronic media may be the best method
for preventing cyberbullying. All of these factors are important
considerations as the board develops its policy.
Policy Considerations
The sample policy should be
considered in the context of the district’s overall approach to
school safety. The district’s overall goal is to provide a
positive school environment that maximizes student learning.
WSSDA’s Policy 3207, Harassment, Intimidation and Bullying, has
been expanded to include electronic messages and images. In
addition, model policy 2022, Electronic Information System
(WSSDA’s sample will be updated this summer), model policy 3220,
Freedom of Expression, and the district’s comprehensive safety
plan should all be considered if the board decides to make major
policy changes regarding cyberbullying.
As districts develop, review or
revise policies, they should consider the following issues:
► Education of students,
parents and staff.
Students should be informed of the dangers of cyberbullying,
what to do if they or someone they know is being bullied in this
way, and the district’s policy pertaining to appropriate use of
district technology and the consequences of improper conduct.
Similarly, school staff and parents should be educated on how to
recognize warning signs of harassing /intimidating behaviors and
be provided with effective prevention and intervention
strategies. The OSPI has developed an Internet safety brochure
which provides guidance for students, parents and staff. The
brochure can be downloaded from the OSPI Safety Center Web site
and schools/districts may provide a link to the brochure on
their Web sites:
► Acceptable use of the
district’s technological resources.
Schools can exercise reasonable precautions against using the
district’s Internet system for inappropriate activity. Board
policies, as well as the district’s acceptable use agreement
which some districts have students and parents sign as a
condition of using the district’s technological resources,
should include an explicit statement that prohibits the use of
the district’s system to bully or harass other students.
► Supervision and monitoring
of students’ online activity.
A necessary precaution against cyberbullying includes
supervision of students while they are using the district’s
online services. Classroom teachers, computer lab teachers,
library/media teachers or other staff overseeing student use of
the district’s online services should understand their
responsibility to closely supervise students’ online activities.
If teacher aides, student aides or volunteers are asked to
assist with this supervision, they should receive training or
information about the district’s policy on acceptable use.
In addition, districts have the right to monitor the use of
their equipment and systems. If a district receives Federal
Title II technology funds or E-rate discounts, it is obligated
under 20 USC 6777 or 47 USC 254 to enforce the operation of
technology protection measures, including monitoring the online
activities of minors. Districts determine how such monitoring
will be accomplished, including whether they want to track
Internet use through personally identifiable Web monitoring
software or other means.
Maintenance and monitoring of the district’s system should be
routine, technical and conducted by appropriate staff. Some
districts use “intelligent content analysis” which monitors all
Internet traffic and reports on traffic that has elements that
raise a “reasonable suspicion.”
Students should understand that there is no expectation of
privacy and that use of the district’s system can be monitored.
Clear notice of this fact may deter improper activity.
► Reporting Cyberbullying.
Students should be informed to notify school staff, their
parents or another adult when they are being cyberbullied, they
suspect that another student is being victimized or they see a
threat posted online. The district needs to remember that
students are often reluctant to report such incidents to an
adult because they fear retaliation by the aggressor or his or
her friends. Thus the district should consider ways that
students can confidentially and anonymously report incidents.
► Investigation of reported
incidents.
WSSDA’s sample policy includes a grievance procedure that is
based on the sexual harassment procedure. It describes an
effective vehicle for reporting and handling complaints of
cyberbullying. The student who is being victimized should be
encouraged not to respond to the cyberbullying and to save and
print out the messages or pictures as evidence, rather than
deleting them.
The investigation should include efforts to identify the
individual who is harassing the student. There may be a way to
track him or her through the Internet service provider, even if
the individual is using a fake name or someone else’s identity.
If the district suspects that the cyberbullying is criminal,
local law enforcement may be asked to track the individual’s
identity.
If the cyberbullying is initiated off campus, it will be
necessary to show that it has substantially impacted school
attendance or the educational program in order for the district
to impose discipline on the student perpetrator. The
investigation should include a process for assessing and
documenting the impact of the cyberbullying on students, staff
or school operations.
► Responses to incidents of cyberbullying.
Existing school rules pertaining to student discipline may be
used in the event that a student is found to have engaged in
cyberbullying or the district may decide that other actions are
needed on a case-by-case basis. Depending on the seriousness of
the harassment, responses might include: (1) notifying the
parents of both the victim and perpetrator; (2) filing a
complaint with the Internet service provider or social
networking site to have the content removed and/or the student’s
user privileges revoked; (3) using conflict resolution
procedures; (4) suspending or expelling the perpetrator and/or
(5) contacting law enforcement if the behavior involves: (a) a
threat of violence to a person; (b) a threat of damage to
property; (c) extortion; (d) obscene or harassing phone calls or
text messages; (e) stalking; (f) a hate crime; (g) invading
someone’s privacy by taking a photo where there should be a
reasonable expectation of privacy; or (h) sending sexually
explicit images of children or teens. The student perpetrator
and his or her parents should be informed of the potential
consequences to which they may be subjected, including potential
civil law liabilities. The district should also support the
victim through counseling or referral to mental health services.
