2011 Spring, Pg. 42. Is Cyber-Bullying The Next "Columbine": Can New Hampshire Schools Prevent Cyber-Bullying and Avoid Liability?.

• Author: By: James A. O'Shaughnessy

New Hampshire Bar Journal

2011.

2011 Spring, Pg. 42.

Is Cyber-Bullying The Next "Columbine": Can New Hampshire Schools Prevent Cyber-Bullying and Avoid Liability?

New Hampshire Bar JournalVolume 52, No. 1Spring 2011Is Cyber-Bullying The Next "Columbine":Is Cyber-Bullying The Next "Columbine": Can New Hampshire Schools Prevent Cyber-Bullying and Avoid Liability?By: James A. O'Shaughnessy(fn1)I. INTRODUCTION

Media coverage in 2009 of the tragic suicide of Phoebe Prince, the sophomore from South Hadley, Massachusetts hit close to home for many New Hampshire families. With the increasing use of social-networking sites such as Facebook, MySpace, IWitter and now Formspring and lum-blr, as well as the wide-spread use of mobile phones, text messaging, and instant-messaging services, children now use technology to perpetuate bullying in troublesome ways that cause more harm in less time. In New Hampshire, concerned parents and lawmakers have made it a priority to end cyber-bullying.

Since Governor John Lynch signed the newly amended bullying law, RSA 193-F on June 15, 2010, school districts across the state have been busy drafting new polices and training staff, students, and parents. The new bullying law has already raised many practical questions for school districts and parents. Take for example the events at Concord High School where four students were disciplined for "bullying" a fellow student into getting an offensive tattoo on his buttocks.(fn2) When the story broke it gained national attention.(fn3) Somebody then created an anonymous Facebook site ridiculing the victim and inviting others to join.(fn4) How far must the school go to stop the student who created the site? What about the students that have joined thus far? How far can the school go, e. g., can the school discipline the student even if the site was created off-campus? Will the student's first amendment rights protect such speech?

The first and second parts of this article provide background and definitions of cyber-bullying. Next, the new state law aimed at preventing cyber-bullying in New Hampshire is discussed. The fourth part reviews the free speech standards established by the United States Supreme Court and the lower federal courts' interpretation of these standards as applied to off-campus cyber-speech. The fifth part of this article discusses potential liability for school districts, and, the final and sixth part of the article offers practical recommendations for school districts to prevent and cope with bullying and cyber-bullying.

II. WHAT IS CYBER-BULLYING?

a. Story of Jessica Logan

On the summer night that her mother found her dead in her bedroom, Jessica Renee Logan was 18 years old and a recent graduate of Sycamore High School in Greater Cincinnati, Ohio. Her mobile phone sat or her dresser, her hair straightener was still warm. Unfortunately, it would be the last time that Jessica would get ready to go out with friends.

In the spring of her senior year Jessica made a decision that would change her life: she took a nude photograph of herself from the neck down and texted(fn5) it to her then boyfriend, a fellow senior. The relationship ended soon thereafter and the ex-boyfriend "texted" the photo to four other girls, three of whom attended a different high school. One of Jessica's childhood friends learned that the photo had been disseminated further when she noticed two students showing it to fellow classmates.

Devastated and distraught, Jessica pleaded with the school guidance counselor to stop students from further texting of the photo. The counselor referred Jessica to the high school resource officer.(fn6) She begged the resource officer to make the students delete the photo from their phones. The resource officer told Jessica that the only thing he could do was ask the students to delete the photos.

That same day, the resource officer went to Loveland High School and asked the three girls to delete the photo. Rather than having the intended effect, the harassment continued. Jessica asked the resource officer for help a second time, but he again told her that there was nothing more that he could do. No administrator, guidance counselor, principal, or teacher came forward to help Jessica or to stop the photo from being further disseminated.

The teasing and harassment continued unabated. The students at both high schools would send Jessica harassing texts during school calling her names like "whore," "slut," and "skank." Eventually Jessica began skipping school to avoid the bullying. At home she received more "texts" and messages on her Facebook and MySpace pages. Her grades plummeted, jeopardizing her plan to attend the University of Cincinnati-Jessica was helpless.

In response to her absences, the Sycamore High School administration sent truancy notices to Jessica's parents threatening that Jessica might not be able to graduate. However, the school did not make any further attempts to contract the parents to inform them about what was happening to her daughter at school. The school did not conduct an investigation and no notices were sent to other parents about the explicit photo or the harm being caused by cyber-bullying. The four students who disseminated the original text were never disciplined.

Jessica managed to graduate on time and began making plans to find a summer job. Sadly, the night after attending the funeral of a fellow student who had committed suicide, Jessica took her own life.

On December 2, 2009, Cynthia and Albert Logan, Jessica's parents, sued the Sycamore Community School Board, the resource officer, the City of Montgomery Police Department, the ex-boyfriend, and the four original recipients of the ex-boyfriend's text. The lawsuit alleges, in relevant part, that: (1) the Sycamore Board violated Jessica's right to be free from discrimination on the basis of sex under Title IX, the Equal Opportunity in Education Act; and (2) the Sycamore School, the ex-boyfriend, and the four original recipients intentionally and/or negligently inflicted severe emotional distress on Jessica and her parents.

This tragic story illustrates two key points. First, electronic media can transform a single act of harassment into something powerful enough to destroy a young person's life. Second, while it may seem inappropriate to blame the school for failing to stop behavior that occurred off-campus, Jessica's story may have been different if the school took any one of the following steps to help Jessica: inform her parents, contact the other school's administration, discipline the perpetrators to try to stop the bullying, or provide Jessica with support and counseling.

B. Cyber-bullying Defined

While traditional methods of bullying-stealing lunch money, teasing students in the cafeteria, shoving classmates into lockers-have not vanished, they apparently have been replaced by new techniques such as impersonating a student on Facebook, ostracizing an ex-girlfriend on MySpace, or sending denigrating text messages during lunch. One popular website defines cyber-bullying as "when someone repeatedly harasses, mistreats, or makes fun of another person online or while using mobile phones or other electronic devices."(fn7) The New Hampshire Attorney General defines cyber-bullying as being cruel to others by sending or posting harmful material or engaging in other forms of social cruelty by using the Internet or other digital technologies.(fn8)

Recent research suggests that cyber-bullying is a growing trend in schools. Using a random sample of approximately 4,000 students between the ages of 12 and 18 from 41 schools in the southern United States, researchers Sameer Hinduja (Florida Atlantic University) and Dr. Justin Patchin (University of Wisconsin-Eau Claire) found that nearly 17 per cent of respondents had been cyber-bullied in the previous 30 days while more than 20 percent reported being cyber-bullied at least once in their lifetime.(fn9)

As one court put it: "we are not living in the same world that existed in 1979 . . . [t]oday students are connected to each other through email, instant messaging, blogs, social networking sites, and text messages.(fn10) An email can be sent to dozens or hundreds of other students, teachers, and administrators alike. Off-campus speech can become on-campus speech with the click of a mouse."(fn11) The following is a list of some common types of bullying that can be carried out using electronic devices:

* Harassment - repeatedly sending offensive messages. (fn12) May occur in public or private, and is usually one-sided. (fn13) Black's Law Dictionary defines harassment as "words, conduct, or action (usually repeated or persistent) that, being directed at a specific person, annoys, alarms, or causes substantial emotion distress in that person."(fn14)

* Sexting - the act of sending, receiving, or forwarding sexually explicit messages, photos, or images via mobile phone, computer, or other digital device. These messages, photos, and images are then often being further disseminated through email and internet-based social networking websites well beyond their original intended recipients.(fn15)

Flaming - online "fights" using electronic messages, typically occurring in "public" settings like chat rooms or discussion groups rather than private email exchanges.(fn16)

* Denigration - sending or posting information about a person that is derogatory and untrue with the intent to damage that person's reputation or friendships. Included in this category is sending digitally altered photos, and negative lists posted online.(fn17)

* Impersonation - posing as a person and then engaging in negative, cruel, or inappropriate communications with others as if the target was voicing those thoughts. The perpetrator may steal the target's password in order to change the target's online profile on a social network site. The cyber bully is typically trying to make the target look bad or damage...