CYBERBULLYING AND THE LAW Common Mistakes Schools Make by Mary Jo McGrath All Rights Reserved.

Transcription

1 CYBERBULLYING AND THE LAW Common Mistakes Schools Make 1

2 Two Distinct Worlds of Bullying Socio / Emotional / Behavioral vs. Legal 2

3 Scope Of This Presentation Common Mistakes Ignoring or being unaware of the legal implications of Cyberbullying Missing that Federal Civil Rights Mandates are at play Not knowing when and how the school has a duty to respond Not understanding District and individual liability for failure to act or remediate upon notice of the harm. Best Practices What are the Best Practices in dealing with Cyberbullying/harassment from a legal perspective? 3

4 State and Federal Mandates At the State Level: Of the 49 States with Anti-bullying laws, 47 States include electronic harassment (18 specifically calling it Cyberbullying ) 11 States codify off-campus behaviors, however Federal case law dictates that off-campus behaviors are included under conditions enumerated later. At the Federal Level: Proposed Federal Anti-bullying laws have not yet made it past Congressional committees. However, when bullying behaviors target or name a protected class, Civil Rights Laws come into play. 4

5 Illustrative Scenario Julio: 13-year old middle school student. American-born of Mexican ancestry. Mother has made numerous reports to the school principal about Julio being bullied by several boys in his class, at school and on the internet. Reports include the boys making gender and ethnic slurs, and sexually suggestive gestures. The slurs were delivered both at school and on Facebook. Interviews with the accused boys were not documented. 5

6 Illustrative Scenario, cont d. The mother produced a print-out of an online chat between Julio and three of the boys involve. The online exchange included the boys calling him a Mexican queer, gay, fag, and taunting him about his friendship with another boy. They told him he should go back to Mexico where he came from. The day after this exchange, Julio started a fight in gym class with one of the boys. Julio was disciplined, the other students involved in the exchange were not. Julio s performance in his classes declined and he was frequently absent. 6

7 When Does Cyberbullying Become Cyber-Harassment? In 2010 the OCR made clear its position on bullying and, most importantly, on the relationship between bullying and discrimination. In the Dear Colleague letter of October 26, 2010, they write: [S]ome student misconduct that falls under a school s anti bullying policy also may trigger responsibilities under one or more of the federal antidiscrimination laws enforced by the Department s Office for Civil Rights (OCR) [By] limiting its response to a specific application of its anti bullying disciplinary policy, a school may fail to properly consider whether the student misconduct also results in discriminatory harassment. 7

8 When Does Cyberbullying Become Cyber-Harassment? OCR Dear Colleague letter, continued: If an investigation reveals that discriminatory harassment has occurred, a school must take prompt and effective steps reasonably calculated to end the harassment, eliminate any hostile environment and its effects, and prevent the harassment from recurring. These duties are a school s responsibility regardless of whether a student has complained, asked the school to take action, or identified the harassment as a form of discrimination. 8

9 When Does Cyberbullying Become Cyber-Harassment? From a legal perspective, Bullying turns into unlawful Harassment when a protected class is involved. The following characteristics comprise current Federally Protected Classes: Race Color National origin Sex Disability Religion* *Although the US Department of Education, under Title VI of the Civil Rights Act of 1964 does not directly cover religion, often religious based harassment is based on shared ancestry of ethnic characteristics which is covered. 9

10 When Does Cyberbullying Become Cyber-Harassment? What to look for: Were there: Racial slurs or slurs based on someone s ancestry? Stereotyping behavior based on gender? Uninvited sexual comments? Taunts involving someone s religion? Taken in context, these comments can provide evidence that there are Title VI violations, and your Title IX protocols must be engaged. In Julio s case, there were several instances of him being called Stupid Mexican and being told he should go back where he came from 10

11 When Is A School Required to Respond to Cyberbullying/Harassment? When the act takes place off school property or outside a school-sponsored activity, the school has a duty to respond if the act: is directed specifically at a student or students, and has the effect of creating a hostile educational environment, or otherwise creates a substantial disruption to the educational environment or learning process. 11

12 How Is A School Required to Respond to Cyberbullying/Harassment? A closer look at the OCR s 2010 Dear Colleague letter shows the steps expected of a school when harassment is reported: If an investigation reveals that discriminatory harassment has occurred, a school must take prompt and effective steps reasonably calculated to end the harassment, eliminate any hostile environment and its effects, and prevent the harassment from recurring. In effect: 1. An investigation MUST occur 2. Prompt, effective steps must be taken to end the harassment 3. The hostile environment and its effects must be eliminated 4. The school must take steps to prevent the harassment from recurring. 12

13 How Is A School Required to Respond to Cyberbullying/Harassment? What comprises a legally fit, educationally sound investigation? The OCR and most State laws require that investigations into reports of bullying and harassment be: Prompt Thorough Well-documented After appropriate investigation, steps must be taken to remediate and follow up to confirm that the actions taken were effective in eliminating the hostile environment. 13

14 BEST PRACTICES 1. Take it seriously: If Cyberbullying is impacting a child at school or creating a hostile environment, you have a duty to respond. 2. Understand the context: Does the Cyberbullying exchange establish a pattern of bullying? Is what you are seeing a reaction to bullying that has occurred before? Does it document harassment based on a protected class? 3. Watch out for blaming the victim, and be aware of the pitfalls zero-tolerance policies. 4. Follow through: You must know if your actions had an impact. Follow up. 5. DOCUMENT, DOCUMENT, DOCUMENT: You MUST have a system in place for documenting the steps taken to investigate and remediate. 14

15 REFERENCES Front-page image from State Cyberbullying Laws: A Brief Review of State Cyberbullying Laws and Policies; Sameer Hinduja, PhD and Justin W. Patchin, PhD; Cyberbullying Research Center; July 2013 Dear Colleague, Harassment and Bullying; US Dept. of Education Office of Civil Rights; October 26, 2010 Bullying and Harassment Solutions for Schools: How to Educate, Investigate and Remediate; Mary Jo McGrath, JD; 2011 For more information, or to find out about available programs and services, contact McGrath Systems : By at info@mcgrathinc.com, or By calling