Bullying, Cyberbullying and Sexting Eric G. Rodriguez & Maxine Longoria-Nash

Bullying. Take a deep breath.  OCR: Bullying is often “discriminatory treatment”  Do more than just discipline  School is responsible for WHAT IT KNOWS or SHOULD HAVE KNOW  Label used to describe incident doesn’t matter as much as the nature of the conduct itself  What are you doing PROACTIVELY about bullying?  Who is your 504 Coordinator?  You are “responsible employees”

Bullying  Expression: written, verbal, and through electronic means  Physical conduct  That occurs on school property, school sponsored or school related activities, or in a vehicle operated by the district  Physical harm, damage to property  Severe, persistent, or pervasive = intimidating, threatening or abusive educational environment

Changes in Bullying law  Bullying:  exploits an imbalance of power between the student perpetrator and the student victim through written or verbal expression or physical conduct; and  interferes with a student’s education or substantially disrupts the operation of a school.  Cyberbullying, internet conduct, and texting are now included  Board may transfer victim OR bully  Staff development must include preventing, identifying, responding to, and reporting incidents of bullying  Boards must adopt certain policies, and the procedures for reporting bullying must be posted on your website

Exhale.  Bullying:  exploits an imbalance of power between the student perpetrator and the student victim through written or verbal expression or physical conduct; and  interferes with a student’s education or substantially disrupts the operation of a school.

What to do.  Take any report of bullying to the campus administrator or designee  Campus principal or designee reduces any oral complaint of bullying into writing  Investigate any report of bullying  Take interim steps to prevent bullying during investigation  Prepare a written report of investigation  Complete and send report to Superintendent or designee within 10 District business days

If bullying occurred?  Take appropriate disciplinary or corrective action  Address misconduct consistent with student code of conduct  Corrective action may include counseling, extra monitoring and supervision, and/or other supports or interventions  Transfer (of victim or bully) to another classroom or campus  What if bullying occurred on bus or during extracurricular activities?

Special Ed Considerations  No discipline until ARD committee has reviewed the conduct  If transferring a student in special education to another classroom or campus, this is likely a change of placement (and a discipline consequence) requiring ARD meeting

Cyberbullying  No legal definition in Texas  Generally, any behavior or act of bullying that is conducted through some form of technology  Sending or posting harmful material  Other forms of social aggression using the Internet  Can occur any time, any place, and with anonymity

School Property Acceptable Use Policy  Require students to sign AUP  Use of District technology is a privilege  Used for authorized purposes only  No right to privacy  Random monitoring of equipment  Can’t use it to harass, threaten, or intimidate others  Can’t use it to share, view or transfer unlawful, obscene or sexually-related content

Student’s Personal Property  Probably not wise to ban all cell phones from school  Develop practical and defensible rules  Thorny issues related to possession or use of cell phones, including recording of voice or images  Make sure the options, and consequences, are clear

Sexting  Texas Penal Code  Knowing/intentional possession of  Visual material of child (under 18 at time image taken) engaging in sexual conduct  Person knows that material depicts the child  Find this on a student’s phone:  Don’t transmit it, or return it  Don’t delete it  Confiscate and secure it

Sexting, cont.  Misdemeanor offense  Refers to “promoting” through electronic means from one minor to another, visual material depicting a minor engaging in “sexual conduct.”  Also prohibits possession of such material  But, not necessarily required to report possession of child pornography as a report of child abuse…

Use of Technology Away from School  First Amendment – freedom of speech/expression dilemma  Does the school have a legitimate interest in regulating student behavior away from school?  Courts apply one of the “tests” that the U.S. Supreme Court has approved

Tinker Test  Presumption that student expression is constitutionally protected  Unless school administrators can reasonably forecast a material and substantial disruption of school  Unspoken factor: severity of punishment  Public ridicule and hard feelings not enough  See O.Z. case (School wins, pg. 22), and compare with Layshock case (Student wins, pg. 19)

Fraser Test  Expression at school/school activities that is lewd, sexually explicit, or vulgar is not protected  If it occurs away from school, then the school must show that the conduct was directly targeted or aimed at school activities  See Requa case (School wins, pg. 19)

Bong Hits Test  Student expression that advocates illegal drug use is not protected  See Ponce case (School wins, pg. 20)

Ponce Test  Student expression advocating demonstrably grave harm to the physical safety of students at school is not constitutionally protected.  See Ponce case (School wins, pg. 20)

Public Ridicule Not Enough  Students win:  Comments are critical, vulgar, offensive, demeaning and personal…  School wins:  Comments include depictions of violence or threats; and student sexual harassment of school official

Thank you! Eric G. Rodriguez Maxine Longoria-Nash Walsh Anderson