After being bullied in school and online this year, 15-year-old Phoebe Prince hung herself outside her Massachusetts home. As a result, school districts and states across the country have been updating policies and passing laws against bullying.
In May, Massachusetts and Wisconsin passed anti-bullying legislation. In June, New York followed suit, bringing the total of states with anti-bullying laws to 44.
In July, Chicago Public Schools increased the punishment for cyberbullying to suspension and possible expulsion — the same discipline that students receive for aggravated assault, burglary and gang activity. The updated student code of conduct also requires schools to notify the police.
In August, Seattle Public Schools included this phrase in its student code of conduct: "The district will respond to off-campus student speech that causes or threatens to cause a substantial disruption on campus or interferes with the right of students to be secure and obtain their education."
In September, the Oak Harbor School District School Board in Washington plans to vote on a revised students and telecommunication devices policy — one that will allow schools to search student electronic devices if they have a reasonable suspicion that it will reveal the student violated school rules like cyberbullying.
These Washington school districts have taken steps to protect their students from the damaging effects of cyberbullying, but their efforts also raise legal concerns.
When it comes to handling cyberbullying, school districts face four major challenges, said Peter Hunt, president of the Oak Harbor School Board.
Washington has legislation on the books against cyberbullying, and both Oak Harbor and Seattle have had cyberbullying policies for several years.
As districts face tough budget times, Oak Harbor wants to allow students to research, interact and participate in class with their personal devices.That's why the board gives teachers the option to authorize students to use them for learning.
But at the same time, allowing students to use personal devices opens up more opportunities for bullies to harass other students.
“We need to be ahead of the game and deal with the inevitable unintended consequences of trying to leverage that technology to make a more effective classroom experience for the students," Hunt said.
This summer, Oak Harbor started reviewing its Students and Telecommunication Devices policy, gearing it more toward cyberbullying. In August, the board read the proposed policy and procedure at two meetings and could vote on it Sept. 13.
As of the last meeting, the policy includes this passage:
"By bringing a cell phone and other electronic devices to school or school sponsored events, the student and parents consent to the search in accordance with the limitations imposed by state and federal law. A search of the device will only occur when school officials have a reasonable suspicion, based on objective and articulable facts, that such a search will reveal a violation of school rules. The scope of the search will be limited to the violation of which the student is accused."
The Washington State School Directors' Association and the state attorney general are reviewing the policy, and the wording may change based on their legal recommendations. Currently the policy implies consent to a search, but if that is not a legal way to obtain consent, it will change.
“We are not searching folks’ cell phones without consent,” Hunt said. "That’s not what’s going to happen.”
But unless the school is justified in searching an individual's cell phone, it does not have the right to do so, said Edward F. Dragan, an education law expert who runs Education Management Consulting LLC. The justification for searching would be that the information or rumors communicated through the cell phone is causing a disruption of the school program.
That's a pretty high standard from a legal perspective, he said. If a parent protests a search conducted under a policy like this, we'll find out how strong this type of policy is. The American Civil Liberties Union of Washington says the search raises privacy concerns, and instead of searching phones, officials should turn them over to the police.
In Seattle, the district board has no intention of searching student phones, said Harium Martin-Morris, a Seattle school board director. On Aug.18, the board approved changes to the student code of conduct that address cyberbullying. But Seattle will not search student phones like Oak Harbor could do.
“They have the same law on the books that we do, but they’ve kind of taken it up a notch,” Martin-Morris said. "We really haven’t changed our policy. All we’ve done is said to students, ‘If this happens to you, come talk to us about it.’ That’s really it.”
And while Seattle doesn't like the privacy concerns that searching student phones would bring, Oak Harbor doesn't want to extend its authority outside of school.
“If it’s not an act that is being perpetrated on the district property or at a school function, then frankly it’s none of our business,” Hunt said.
Cyberbullying on school equipment, property and at sponsored activities has strong case law behind it, Dragan said.
“There’s well-established law in that area that’s been tested," he said. "Where it hasn’t been tested a whole lot is when it extends beyond the school outside of the school walls.”
In Seattle, school officials must judge every harassment, bullying and intimidation situation that occurs off campus against the standard it has put in the policy. The standard includes whether the bullying has substantially disrupted the school or interferes with students rights to be secure and obtain an education. And that's going to be tough, Dragan said.
If a kid is scared to go to school because of something someone said through a mobile device, that message is depriving him of the right to an education, Martin-Morris said. “We’re trying to protect our students in the most positive way, and not invade their privacy.”
Part of that protection includes using cyberbullying curriculum. The district developed curriculum a few years ago that has been hailed as a model for urban school districts. By coupling the curriculum with the new student code of conduct statement, the district hopes to raise awareness of cyberbullying and show students what they should do when they're bullied, Martin-Morris said.
“I want every student first to be aware of it, and secondly, if it does happen to them, that they know that they can go to a responsible adult at the district, and we have their back.”
But if someone is violating the law by cyberbullying, the victim's parents must go to law enforcement, Dragan said. And that's what Chicago Public Schools has done with revisions to its student code of conduct this year. Legal violations could include sexting and threatening a student.
Case law has produced mixed results in cyberbullying online. And this year, as more schools beef up their cyberbullying policies and procedures, these types of measures will be tested.
“I think it’s going to be interesting to see where these situations are going to go," Dragan said. "This school year I believe is going to put out a lot of test cases if schools actually follow through with the implementation of some of these policies.”