Cyberbullying and school liability

08/21/2013  |  By LARRY D. TEVERBAUGH, Ph.D., PE
School Security
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Not a day goes by that we are not introduced to a new product or service that enhances our ability to communicate, work, play or learn via the Internet. The speed of technical innovation is often breathtaking leaving educators racing to catch up to the “early adopters.” Unfortunately, as these technologies enter into the mainstream of our society, finding their way into our schools, they may also introduce a “dark side” that disrupts the ability to keep our students and teachers safe. Witness the growing backlash to the recent launch of Google Glass, an innovative, wearable computer product that allows users to connect to the Internet, record video and post pictures. While a technical marvel, dozens of articles have been posted in just the past week arguing the right to privacy — fear of potential abuse and electronic harassment — versus First Amendment rights. How will our policies address this product as it enters our schools? What new liabilities will we face?

— National Crime Prevention Council defines cyberbullying as
The process of using the Internet, cell phones or other devices to send or post text or images intended to hurt or embarrass another person.

As we find an overwhelming amount of new technology in the form of smart phones, tablets, laptop computers and other devices, the misuse of these products on our campuses is becoming more and more prevalent. According to a 2011 MTV/AP study, 76 percent of 14-24 year olds say digital abuse is a serious problem for people their age, with 56 percent reporting that they have experienced abuse through social and digital media. That figure is up from the 50 percent who reported suffering digital abuse in a 2009 MTV/AP survey. One in four said they had experienced digital abuse in the past six months in which people were writing things online that were not true (26 percent), writing things online that were mean (24 percent) and forwarding Instant Messages that were intended to stay private (20 percent).

Even more troubling has been the recent number of suicides where teenagers have resorted to taking their own lives to escape the torment after undergoing persistent online harassment. In a 2012 study of 41 youth suicide cases aged 13 to 18 years old, 78 percent of adolescents who committed suicide were bullied at school and online, while 17 percent were targeted online only. (Source: American Academy of Pediatrics)

As a matter of course, parents are generally responsible for the acts of their children until the age of 18. However, during school hours, public schools assume the custodial role over children. The United States Supreme Court has held that teachers and school administrators, it is said, act in loco parentis in their dealings with students; their authority is that of the parent. Under this assumption, parents entrust the safety and wellbeing of their children to teachers and administrators. As we might expect, and as the reports of cyberbullying incidents rise, so has the number of lawsuits against schools, teachers and administrators.

A New York Business Law website posting titled “Cyberbullying Litigation on the Rise,”September 2011, stated that one attorney in Texas claims to have processed between 60 and 70 bullying cases in the past two years. Unfortunately, the case law with regard to cyberbullying has not established a clear path for school policies, particularly with regard to student First Amendment rights. To meet this challenge, 47 states and Washington D.C. have bullying laws that include electronic harassment (Cyberbullying Research Center April 2013 report).

Under these laws and in some cases under existing federal laws, parents or guardians may sue school staff members — on behalf of their children — for negligence, failing to use reasonable care to protect students from harm caused by cyberbullying. The cost of litigation for schools can be significant, with bullying lawsuits that have been reported in the press ranging from $1 to $10 million. An outcome of the Anthony Zeno versus Pine Plains School District Second Circuit Court of Appeals (New York) was a judgment of $1 million plus attorney fees. A posting by Justin W. Patchin on the Cyberbullying Research Center website stated:

“What educators should take away from this ruling is that once they learn of harassment taking place, they have an obligation to do everything in their power to ensure that it stops. Simply disciplining the student who did the bullying, without following up to make sure that it actually stops and that the person targeted is safe, is not enough. Applying discipline and implementing new programming is only sufficient to the extent that the behaviors desist.

Citing Wills v. Brown University the court stated: “Evidence of an inadequate response is pertinent to show fault and causation where the plaintiff is claiming that she was harassed or continued to be harassed after the inadequate response.” The jury in Anthony’s case found, and the appellate court agreed, that “the District’s additional remedial actions were little more than halfhearted measures.”

As educators, we need to be proactive in working with our school boards and other stake holders to develop policies to educate our students, staff, and parents on the harmful effects of cyberbullying and other misuses of online technologies that can threaten the self-esteem, emotional wellbeing or social standing of students. We also need to ensure that we regularly review and update school policies with regard to state and federal bullying and online harassment laws and local ordinances.

Considering the risks to students and teachers, we need to have bullying policies implemented to support counseling and educational outreach in our schools and communities. Lastly, we must take steps to ensure that we not only respond to harassment, but that our response is effective in promoting the safety and protecting the wellbeing of our teachers and students.

Dr. Teverbaugh is the Founder and CEO of CareerSafe, an organization dedicated to providing students and teachers with safety awareness education.
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