Editor's note: Our sister paper, the Palo Alto Weekly, published this story. The entire in-depth package on cyberbullying has been posted here.
Youth and their parents should know and discuss the basic legal rules of the road related to online use and abuse. Here are some key areas to consider, identified through Weekly interviews and the sources listed below.
School cell-phone rules
Palo Alto middle schools prohibit the use of cell phones and cell cameras during the school day. The phones must be turned off (not on vibrate or silent) and out of sight. They also may not be used at school dances. Inappropriate use may result in school discipline and/or police involvement, per school handbooks. To possess a cell phone on campus at Terman, a student and parent must sign a contract form, kept on file in the main office.
At Gunn High School, use of a cell phone or cell camera is not permitted in the classroom without express consent from staff. Staff is authorized to confiscate the electronic device if a violation occurs and turn it in to the main office for collection at the end of the school day. Escalating disciplinary consequences and parent contact will result with repeated violations.
Palo Alto High School's policies employ a more general standard. If an electronic communication device is judged to be "disruptive" or "interfering with learning," it may be confiscated at the discretion of the teacher or other staff member.
Some parents and teachers interviewed by the Weekly argue there should be a "no cell use" policy at high schools as well as middle schools, to reduce the potential for disruption to learning and to promote the social and emotional benefits of a media-free zone.
School cybercitizenship curriculum
The federal Broadband Data Improvement Act (2008) promotes a safe Internet for children and specifically requires "elementary and secondary schools with computer access to the Internet to educate minors about appropriate online behavior, including online interaction with other individuals on social-networking websites and in chat rooms, and cyberbullying awareness and response." The Palo Alto Unified School District has responded to this law by developing its Library Guides ("LibGuide") with links to BrainPop videos that address the requirements of the federal law, starting with age-appropriate curriculum in second grade. In addition, all schools are utilizing a variety of other supplemental curricula and activities focused on cybersafety, anti-bullying and social kindness.
School jurisdiction to discipline cyberbullying
A school's authority to suspend or recommend expulsion of a student derives from the California Education Code. For some types of misconduct, administrators are required to suspend (e.g., a physical fight on campus). In other situations administrators have discretion over the penalty. These instances can involve gray areas, leaving the administrator's decision to suspend or recommend expulsion potentially open to legal challenge from the disciplined student.
If a cyber-incident occurs on school computers or otherwise at school, during lunch periods or while traveling to and from school or a school-sponsored activity, then California Education Code section 48900(r) authorizes school officials to take disciplinary action if a student's bullying reaches a legal standard that is defined as "severe or pervasive physical or verbal act or conduct" (including by electronic means) that threatens or harms another student or interferes with school activities. "Electronic means" covers content on Facebook pages, email, instant messaging, text messaging, mobile phones, blogs, YouTube, Twitter, chat rooms, social networking, etc. To suspend, the administrator must find facts that support the "severe or pervasive" standard and also the requisite level of harm.
Recently enacted AB 1732 also allows schools to take disciplinary action against students who create online profiles impersonating others or setting up "burn pages" containing material intended to harm others.
More difficult jurisdictional issues arise if a cyberbullying incident occurs off-campus during non-school hours, unconnected to school activity. The law states that schools have disciplinary authority over students in such cases if the incident causes "a substantial disruption" on campus (or is reasonably foreseen to cause a substantial disruption).
According to Fagen Friedman & Fulfrost's website, the Palo Alto school district's law firm, examples of substantial disruption include: administrators missing school activities in order to respond to a deluge of phone calls and parent complaints (but it must be more than administrators being pulled away from ordinary tasks) or sustained conversations about the incidents by several groups of students such that lesson plans or classroom direction from a teacher is substantially undermined.
In a key 2009 court case (J.C. v. Beverly Hills Unified School District), involving a profane and insulting video (made after school hours) about a student and then posted on YouTube, a California federal court held that the school did not have jurisdiction to suspend the student who made the video because the school had not presented enough specific facts to show "substantial disruption." The court said "substantial disruption" goes beyond ordinary personality conflicts, hurt feelings or embarrassment that occurs among students.
Documents posted on the California School Board Association's website suggest that in situations regarding off-campus conduct, districts need to proceed cautiously when considering discipline, consult with legal counsel, and document specific examples of how the conduct was disruptive or likely to disrupt school activities and the targeted student's educational performance.
Many experts say the better route for dealing with cyber-incidents does not lie in trying to document grounds for suspension or expulsion. For one thing, few geographic bright lines exist between what happens on and off campus when it comes to social media. Online life occurs everywhere for students and does not divide easily into school and non-school activities. The burden on schools to make this determination can be great.
In addition, there is a growing chorus of educators and youth experts who believe that suspension is not the answer to preventing or stopping bullying. Emily Bazelon writes in her book on bullying ("Sticks and Stones"): "It turns out there's no evidence to suggest that sending a troublemaking kid home will make him easier to reach, less angry or more malleable." Bazelon cites the American Psychological Association as finding that zero-tolerance policies don't deter bad behavior or make schools safer. Several educators interviewed by the Weekly said that suspending a student "doesn't teach him anything" and may inhibit bullying reports. Targets often don't want to be responsible for getting other students in trouble. Discipline, or the threat of it, can contribute to the risk of retaliation, many believe.
Others disagree and argue for the value of discipline, including suspension. They believe discipline, and the threat of it, is an important factor in deterring unwanted behavior and sending a strong message to those who have engaged in it. In this community, the threat of a black mark on a college application can be a powerful tool in keeping campuses safe, some educators, parents and teens say.
Depending on the circumstances, and especially for off-campus cyberbullying, alternatives like mediation, parent and student conferences, behavior contracts, counseling and education campaigns may offer more effective and efficient paths to resolution.
Discriminatory harassment issues
Schools have a legal duty to maintain a nondiscriminatory educational environment free of harassment. When students use the Internet or cell phones to harass others based on sex, race, disability, sexual orientation or other legally "protected classes," school civil-rights law obligations come into play, including the duty to investigate and take action to remedy any resulting "hostile learning environment." The harassing conduct may be called bullying, hazing or teasing, but regardless of the label, and regardless of whether it originated on or off campus or is subject to disciplinary authority, the conduct itself must be assessed by the school for civil-rights implications in addition to any other local or state policies or laws that may also apply, according to the U.S. Department of Education's Office for Civil Rights.
This is the term used to describe the sending of nude images or sexually suggestive text messages on cell phones. According to 2009 Pew Research Center data, nearly 15 percent of teenagers with cell phones have received nude photos through texting. In California, pursuant to Penal Code section 311, sexting images may be considered transmission of child pornography. Administrators or teachers who discover a sexting image should not pass it on to another staff member but should seal it immediately and turn it over to law enforcement, according to information on the Fagen Friedman & Fulfrost website.
Penal Code section 311 may also cover images posted on Facebook and other social media.
Also, sexting does not guarantee privacy. Often, sexting images are sent to other students, especially after breakups. These can also be used as blackmail or more serious forms of sexual harassment.
Federal and state cybercrimes
When cyberbullying involves the activities listed below, it may be considered a crime and should be reported to law enforcement, according to U.S. Department of Health & Human Services website StopBullying.gov:
Child pornography including sexually explicit messages or photos
Taking a photo or video of someone in a place where he or she would expect privacy
Under federal law, according to the Palo Alto law office of Skadden Arps' presentation to Palo Alto high schools' "Living Skills" classes, it is unlawful: to transmit any communication containing a threat to injure another; to use a telecommunications device, without disclosing one's identity, with intent to annoy, abuse, threaten or harass; and to use a telecommunications device to: (i) make, create or solicit, and (ii) initiate the transmission of any comment, request, suggestion, proposal, image or other communication which is obscene or child pornography.
Also, California Penal Code section 422 prohibits "criminal threats" of bodily injury to another person verbally, in writing or by means of an electronic device, even if there is no intent of actually carrying it out, where the threat is immediate and specific and conveys to the person threatened reason to be in sustained fear for his or her safety (or family's safety).
California Penal Code section 653m prohibits phone calls or electronic communications (including texts) involving obscene language, threats or repeated annoying calls, made with intent to harass or annoy.
According to the Skadden Arps presentation, the following penalties may be imposed for cybercrimes:
Cyberharassment: Up to one year in county jail, plus restraining order and fines.
Cyberstalking: Up to five years in state prison, plus restraining order and fines.
Obscene materials: Up to five years in federal or eight years in state prison and fines.
Also, persons convicted of most sex crimes must register (for a lifetime) as "sex offenders." This includes dissemination of obscene images of minors. Courts may also order registration if any criminal offense committed was sexually motivated. Santa Clara County has 2,378 registered offenders.
Responding to cybercrimes
Skadden Arps' presentation offers this advice in all instances of cyberbullying or cyberstalking:
* Preserve electronic evidence. If you receive a cruel or threatening message, do not delete the message. You should take a screenshot of the message or store the message in a folder, as this may be important evidence for law enforcement.
* Ignore or block the sender. You can call your phone company and ask them to block the number so that the person can no longer call you by phone. You can also set up a rule to block the sender's email address.
* Tell a trusted adult.
* If you feel you are in danger, call 911 immediately.
"E-Cruelty: Cyberbullying in California" by Barbara Kate Repa, California Lawyer (Jan 2013)
Palo Alto law office of Skadden Arps' presentation (at pp. 7-27) to Palo Alto high schools' Living Skills classes providing a legal perspective on cyberbullying and related misconduct, done as a community service project.
Information from the website of Fagen Friedman & Fulfrost (PAUSD's law firm)