Substantial Disruption » Speech

What Really Happened to Phoebe Prince?

abrnchood — Wed, 21 Jul 2010 16:00:25 +0000

(NOTE: This is an excellent piece by Emily Bazelon of Slate. The fact that Phoebe Prince apparently had serious emotional issues is not a surprise. That’s common with suicides. Most of us familiar with the facts of the Megan Meier case know that Megan also had serious issues. In both cases, the use of the criminal justice system is questionable. However, neither case excuses bullying behavior by peers or the failure of school authorities to properly address it. I’m not commenting on the role of the school authorities in the Prince case, given the ongoing investigation and discovery. But these cases remind us that some students are more vulnerable to bullying and cyberbullying than others. Their vulnerability does not excuse the bullying behavior. Quite the contrary. It raises the responsibility bar for students and school officials alike. -Mike)

One week last October, Bill Evans, the assistant principal of South Hadley High School in Massachusetts, chose two students to read public service announcements over the loudspeaker as part of the school’s participation in National Bullying Prevention Awareness Week. In selecting kids to read the PSAs, Evans thought about who would be a spokesperson that other kids would believe was speaking sincerely. He chose Sean Mulveyhill, a senior and star of the football team. “He was a natural selection—the kind of kid who would seek out someone having difficulty just to help him,” Evans says.

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Judge: University illegally searched journalist’s camera (CA)

Mike Tully — Tue, 22 Jun 2010 17:24:51 +0000

A judge has ruled that the University of California police illegally searched the camera of a photojournalist covering a protest outside the chancellor’s campus home, reports the Associated Press. Alameda County Superior Judge Yolanda Northridge on June 18 invalidated the search warrant used by UC Berkeley police to review photographs taken by David Morse at the Dec. 11 demonstration, according to the Oakland-based First Amendment Project, which represented him.

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Cyberbullying Prevention and Response Should Involve Teen Mentors

adminsta — Mon, 21 Jun 2010 19:44:57 +0000

June is National Internet Safety Month and one prominent issue surrounding Internet safety is the increase in cyberbullying. Primary concerns draw attention to the continuity of bullying outside of the school setting, affording children no respite or refuge. Some experts believe that until teens step into the resolution process, cyberbullying will never be eradicated.

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Blog Returns After Week Hiatus

adminsta — Mon, 07 Jun 2010 16:47:19 +0000

For those of you who missed your regular weekday dose of “Substantial Disruption,” please be assured this blog is alive and healthy. I was away from the office last week while conducting Olweus Bullying Prevention Program training on the Hopi Reservation in Northern Arizona.

This blog will continue its weekday postings without interruption for the foreseeable future. Please let me know if you have any questions or suggestions.

- Mike Tully

Beating the bullies – with statistics (UK)

adminsta — Thu, 18 Feb 2010 22:44:13 +0000

Statistical analysis software helps anti-bullying charity put pressure on social networking sites to take action against cyber-bullying
The advent of the web as a social medium has had an unhappy consequence for a large number of young people, namely cyber-bullying, defined by the UK government as “when one person or a group of people try to threaten, tease or embarrass someone else by using a mobile phone or the Internet”.

Much of this activity takes place on social networks, and pressure groups such as UK charity BeatBullying have called on the most popular sites to introduce functionality that prevents it from taking place. But just like conventional bullying, cyberbullying is a subtle affair, and understanding precisely how it takes place, and to whom, is challenging.

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Wrongful death suit filed against school district for fifth-graders suicide (IL)

Mike Tully — Tue, 02 Feb 2010 22:46:32 +0000

(NOTE: You can read the original story here. The article does not suggest that bullying was an issue in the child’s suicide. I suspect that may be clarified during court proceedings. – Mike)

Legal News for Illinois Wrongful Death Attorneys. School district sued for wrongful death of 10-year-old that hung himself at school.

Illinois wrongful death lawyer alerts- A wrongful death lawsuit filed against Evanston Skokie School District 65 for tragic incident involving fifth grader.

Cook County, IL—A tragic incident in which a young boy was found hanging in the school bathroom has resulted in a wrongful death lawsuit against the school district. The suit, brought upon by the fifth-grader’s parents, was filed on Friday, January 29, 2010, in regards to the February 3, 2009 incident, according to information provided by the Chicago Sun-Times.

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3rd Circuit Panel Mulls if Teen ‘Sexting’ Is Child Pornography (PA)

Mike Tully — Tue, 19 Jan 2010 21:24:16 +0000

(NOTE: This is less a “sexting” case than a portrait of an overbearing prosecutor. The trial judge issued a temporary restraining order against the prosecutor, which is how the case got to the Third Circuit. You can read the lower court’s opinion here. While I think it’s a very close call, I expect the Third Circuit to uphold the injunction. There is no question that “sexting” is a problem, but this kind of spurious prosecution — or, more accurately, threatened prosecution — is definitely not the remedy. – Mike)

Shannon P. Duffy
The Legal Intelligencer
January 19, 2010

As the nation’s first case involving criminal prosecutions of teenagers for “sexting” made its way to a federal appeals court in Philadelphia, all three judges seemed skeptical of the prosecutor’s claim that child pornography laws are violated when a teen transmits a nude image of herself.

The three 3rd U.S. Circuit Court of Appeals judges also appeared poised to declare that former Wyoming County District Attorney George Skumanick Jr. violated the First Amendment rights of three girls with his threat of a criminal prosecution if they refused to take a class he had designed to educate youths about the dangers of sexting.

“I don’t know of anything that says a district attorney’s office is allowed to, in effect, play the role of teacher,” Judge Thomas L. Ambro said.

But attorney Michael J. Donohue of Kreder Brooks Hailstone in Scranton, Pa., argued that Skumanick was right to take the cases seriously when school officials informed him of a rash of sexting incidents, and that each of the students had the option to refuse the class and “face the music” in a juvenile court proceeding.

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Judge weighs Haddonfield school’s 24-7 rule (NJ)

Mike Tully — Mon, 11 Jan 2010 23:52:17 +0000

(NOTE: The issue of school discipline jurisdiction for off-campus activity is a critical one that repeatedly comes up in cyberbullying cases. This “coach inspired” policy seems facially unconstitutional and is likely to be overturned. – Mike)

By LAVINIA DeCASTRO
Courier-Post Staff

A Superior Court judge could temporarily prohibit the Haddonfield School District from enforcing its 24-7 drug and alcohol policy.

On Jan. 26, Judge Mary Eva Colalillo is expected to decide whether to grant a preliminary injunction prohibiting the district from enforcing the 3-year-old policy, which allows schools to discipline students arrested for using drugs or alcohol even if the offense occurred off campus.

Matthew Wolf, a lawyer representing a 15-year-old girl charged with alcohol possession, challenged the board’s right to discipline students for off campus activities in a lawsuit filed on Dec. 18.

“We believe that the policy is beyond the scope of what the law authorizes school boards to regulate,” said Wolf, who lives in Haddonfield.

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Kids Are Mean: Cyber-Bullying, “Sexting,” and Other Harmless Pranks

Mike Tully — Tue, 05 Jan 2010 22:18:12 +0000

(Note: Mel Riddle is the Associate Director for High School Services for the
National Association of Secondary School Principals. This is his blog entry in reaction to the J.C. v Beverly Hills USD case. -Mike)

January 05, 2010

by Mel Riddile

The L.A. Times editorial staff believes that kids are naturally mean, and, when they are mean to each other, school officials should mind their own business. “Mean girls—and mean boys—have been terrorizing their classmates since the first schoolhouse was built.”

The editorial points out that some courts are refusing to back schools in their efforts to reign in the reputed bad online behavior because it did not occur on school grounds and because the schools failed to prove that the behavior could reasonably be expected or did cause a substantial disruption to the operation of the school.

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What About the Kids? (New Case Continues Troubling Trend of Adult Bias)

Mike Tully — Mon, 28 Dec 2009 23:58:45 +0000

A NEW CASE OUT OF A CALIFORNIA FEDERAL COURT CONTINUES AN UNFORTUNATE LINE OF CYBER-BULLYING OPINIONS THAT FOCUS ON ADULT ISSUES, NOT ON THE KIDS.

Note: New Links Added at End of Article

The case is J.C. vs. Beverly Hills Unified School District and was just handed down by a federal district court in California. It’s a cyber-bullying case that involves speech content created by a student away from school that is critical of a fellow student. To simplify the facts, JC met several schoolmates at a restaurant and video-recorded a conversation that villified another student, an 8th grader. JC posted the video on You Tube and told the victim about it. The victim and her father complained to the school and JC was disciplined. That led to the lawsuit, in which the federal judge ruled that the discipline violated JC’s First Amendment right to freedom of expression.

This is consistent with a line of cases arising from situations in which students make fun or — or even threaten — teachers and administrators over the Internet. Courts generally apply the Tinker v Des Moines standard and look for “substantial impact” on the educational setting — or a reasonable belief that substantial impact is likely. That usually calls for speculative evidence that is unlikely to successfully defend a free speech challenge (although some recent cases tend to lower the standard). But the JC vs Beverly Hills case is the first one to address off campus Internet mischief when another student, not a teacher or administrator, is the target.

The target of the cyberbullying, not surprisingly, was devastated by the video and what her classmates had to say about her. The Court acknowledged that she sought out a counselor, wanted to stay home from school, and suffered some distress. The Court also acknowledged that at least half the 8th graders had seen the video. Nonetheless, the Court dismissed the girl’s suffering because her individual situation did not amount to a “substantial impact” on the education process.

The Court mentioned, but did not give much weight to, the “other prong” of Tinker, which focused on violating the rights of other students. Few cases have considered the second prong of Tinker. The most famous “second prong” case is Harper vs. Poway School District, an addle-brained opinion that reduces important free speech issues to nothing more than political correctness and is too broad to be of any practical use. However, there must be a place for consideration of the impact on student victims of off-campus cyberbullying in some rational zone between Harper and the “substantial impact” cases.

The problem may be that courts historically view school speech cases through adult eyes. For the courts, “substantial impact” on the “educational system” means adult inconvenience. So, a traumatized teacher in J. S. v Bethlehem Schools meets the test, as does the harried administrator in Doninger v Neihoff, as do the administrators who were offended by childish drawings in Wisniewski v. Board of Education. This focus on adult issues and its blithe dismissal of the effect cyberbullying has on kids borders on a denial of equal protection for children in public schools. If the courts were not so confined to seeing everything through adult eyes the cases might actually help out the victims of vicious and defamatory products of the JCs of the world. A positive step would be to convince courts to apply the second prong of Tinker in a “reasonable” student analysis. In other words, if the target of the abuse suffers an uncomfortable school environment, thereby impacting the student’s educational experience, and a “reasonable student” in the same position would also likely suffer, then the second prong of Tinker should protect school authorities from a First Amendment based lawsuit. A rational application of the second prong (not the Ninth Circuit’s ridiculous application in Harper) would recognize that students, such as the vicim of JC’s outrageous video, have a right to be heard and supported — whether or not the adults were “impacted.”

Relevant Links

Read Nancy Willard’s Comment on J.C. v Beverly Hills USD Here

Read Sameer Hinduja’s Blog Comment Here

Read the Los Angeles Times Article About the Case here

We’d appreciate hearing from others regarding the impact of this case and whether it’s actually good law.

-Mike