E-Cruelty: Cyberbullying in California

"We've all seen them: on the playground, at the store, walking on the street. They creep us out and make us feel sick to our stomachs," Eric Cartman said in a speech to his fourth-grade classmates. "Ginger Kids are born with a disease which causes very light skin, red hair, and freckles. This disease is called 'Gingervitis,' and it occurs because Ginger Kids have no souls."

Cartman is a fictional character on the animated television series South Park. Since the episode first aired in 2005, nearly 5,000 people have joined an online Facebook campaign to proclaim November 20 "National Kick a Ginger Day." The irony apparently was lost on some students at A. E. Wright Middle School in Calabasas, an affluent city in Los Angeles County known for its stellar school rankings. On Kick a Ginger Day there in 2009, at least eight students did just that - kicked and punched several red-haired classmates.

Three boys were arrested; two 12-year-olds were booked on suspicion of battery on school property, and a 13-year-old was charged with a novel crime: threatening to inflict injury by means of cyberbullying. Parents of one of the attacked students sued.

Dean A. Olson, a partner at Morris Polich & Purdy in Los Angeles, represented a defendant who was eventually dismissed from the lawsuit (two other cases are ongoing). Olson says the plaintiff was "scraped up" but had no permanent physical or psychological injuries. And he says sheriff's deputies and school officials quickly did a thorough investigation and emphasized that the behavior was unacceptable. "The incident should be the spark to find ways to prevent this from happening [again], versus setting up a college fund for this individual [to compensate] for what essentially was scrapes and bruises," Olson said.

California was one of the first states to pass a law directly addressing schoolyard cyberbullies. Since 2009 its education code has authorized school officials to suspend or expel any student who engages in a "severe or pervasive physical or verbal act or conduct" - including by electronic means - that frightens or harms another or interferes with school activities. (See Cal. Educ. Code § 48900 (r).) That section covers content on Facebook pages, email, instant messaging, text messaging, mobile phones, blogs, YouTube, Twitter, chat rooms, and websites. The provision applies to students at school, during lunch periods, and while traveling to or from school or a school-sponsored activity.

Later legislation added a patchwork of protections for students, but as technology evolves lawmakers have struggled to keep up with newer twists on the ancient problem of schoolyard bullying.

The most comprehensive bill was prompted by the plight of a 13-year-old Kern County boy who committed suicide in 2010 after classmates repeatedly harassed and taunted him with gay slurs. Seth Walsh's mother later sued authorities at Jacobsen Middle School, and that case helped spur AB 9, also known as Seth's Law. The law, which took effect last July, doesn't directly address cyberbullying, but it focuses on protecting the most common targets: gay and lesbian students. Seth's Law requires intervention by school personnel who witness discrimination or intimidation. It also mandates that district policies spell out what behaviors are prohibited, including harassment, intimidation, and bullying based on sexual orientation - along with a process for investigating complaints. (See Cal. Educ. Code § 234-234.5.)

After Seth Walsh's death, other suicides purportedly prompted by cyberbullying were reported around the country.

"When we see ten beautiful gay boys killing themselves in three weeks because it's easier to do than going to school, why don't the schools circle the wagons and get [the bullies] all the help they can?" asks Karyl E. Ketchum, assistant professor of women and gender studies and queer studies at California State University at Fullerton.

What did circle was a whirl of legislation from Sacramento.

One measure, which also took effect July 1, expanded the definition of bullying to include harassment by "means of an electronic act," recognizing that abusive behavior often affects students' physical and mental health and academic performance. Further, it encourages anti-bullying training for school officials and allows a bullied student to be transferred to another school district. (See Cal. Educ. Code §§ 32283, 46660.)

In addition, AB 746 specifically included social networking in the definition of cyberbullying, and AB 1732 added punishments for the creators of offensive burn pages (online areas where people post harsh comments), Internet impersonations, and false profiles.

Although many experts applaud the broader laws, others are quick to point out their limitations.

"The biggest problem with California's response is that it's all grounded in suspending or expelling the bully, and there's simply no evidence that this is effective," says Nancy E. Willard, director of the Oregon-based nonprofit organization Embrace Civility in the Digital Age. "The statutes don't mention alternative solutions. The better approach is to implement an effective intervention and conduct an evaluation."

But in an environment of fiscal crisis where administrators and teachers are increasingly asked to do more with less, that may not be possible. State budget constraints have meant cutting the very counselors and support staff who formerly dealt with such delicate psychological issues.

"There is a legal definition [of cyberbullying] now, but it puts site-level principals in the position of making the decision about whether a claim rises to bullying - and that's a legal determination," says Gretchen M. Shipley, a partner in Fagen Friedman & Fulfrost's San Diego office who advises school districts on legal matters and conducts workshops on cyber-citizenship.

Others say the new legal controls don't reach far enough. "There's no carrot or stick attached to these laws," says Cal State's Ketchum. "The closest thing we have ... is the right to transfer a student. But there's a fear that schools will want to use it as a way to push kids out, particularly LGBT kids."

At Fullerton, Ketchum teaches an online course titled Understanding and Addressing Bullying, and she teaches from experience: Four years ago, several senior boys made a video threatening to rape her daughter in the back of a truck and shoot her in the head, and they posted it on Facebook. Ketchum contacted police - who just talked to the boys - and also went to school authorities, who refused to impose any punishment.

"The rationale was that it didn't take place at school," she says. "But to make that distinction is to live in a world that no longer exists. In students' minds, the world unfolds online - and it happens all day long. When you post a video on Facebook, it's akin to setting up a video on a big screen in the middle of the quad, on a continuous loop."

Regardless of how cyberbullying is defined and policed, reports are that it's on the rise.

"Three years ago, we had one or two complaints about cyberbullying a year," says Kevin Silberberg, superintendent of schools in Standard in Tuolumne County. "In the last couple years, it's grown to one or two a week." Complaints range from a parent irked about offensive language on a Facebook page to federal authorities identifying potential "terrorist" emails sent by students threatening those in another school district.

Justin W. Patchin is codirector of the Cyberbullying Research Center, an online resource that summarizes findings on the topic. He says that by the most conservative estimates, 20 percent of all middle- and high-school-age students have been cyberbullied at some point.

Students commonly react to bullying by being truant - staying home from school because they fear being bullied, teased, or excluded by their peers.

For gay, lesbian, and transgender kids, the problem is much more acute. According to a recent survey by the Gay, Lesbian and Straight Education Network, nearly nine out of ten students in middle and high school experience harassment at school, two-thirds say they feel unsafe at school, and nearly one-third had skipped a day of school in the preceding month due to perceived abuse by classmates. Not surprisingly, these students also have a dropout rate three times the national average.

"Cyberbullying is worse for LGBT teenagers because it turns the Internet - which is supposed to be a safe place - into a danger zone," according to Ari Ezra Waldman, an adjunct assistant professor who teaches Internet law at Brooklyn Law School. "Bullies know it's an easy place to reach them - and it's much easier to be mean when you're not face to face."

While most agree the problem needs fixing, there's heated disagreement about where the buck stops: with parents, school administrators, teachers, legislators - or student peers.

"We're the educators. We have to teach kids the difference between insightful and inciteful," says school superintendent Silberberg.

But most teachers don't know how to uncover and crack down on bad online behavior. Part of the problem, of course, is that unlike the "digital natives" born into a technology-obsessed world, parents, legislators, teachers, and school administrators for the most part didn't grow up with computers or the other forms of constant communication and multimedia so prevalent today. On the other hand, 95 percent of U.S. students ages 12 to 17 use the Internet, and 77 percent own cell phones.

"Educators are old and the kids are young," notes Bobbin Tobin, who teaches a Human Interaction class to freshmen at Petaluma High School. "The thing about cyberbullying is, it follows you day and night and goes fast. We forget kids don't know how to handle such complex interactions." Adds Tobin, "[P]arents are not very helpful as guides, because they're kind of clueless. They don't know to take away their kids' electronics."

School districts are on their own to make sense of the new regulations that require ready responses to perceived cyberbullying.

"The whole social networking thing has exploded in our faces," says Stephen Carr, chief technology officer for the Ventura County Office of Education. "And with every new technology, there's this knee-jerk reaction to create a policy to deal with it."

Kelly Calhoun, chief technology officer and assistant superintendent in the Santa Clara County Office of Education, sees administrators scrambling to write additional policies as technology evolves. "I refer to this as nailing Jell-O to a wall," she says. "And a number of law firms have been giving free workshops on what's required now. In all honesty, it's really just training focused on case law, which is currently contradictory."

Indeed, the case law at hand lends little guidance on how and when to intervene in cases involving student rights and wrongs. Meanwhile, principals say they're consumed with trying to investigate, says Fagen Friedman's Shipley.

The U.S. Supreme Court has decided only a few cases weighing students' First Amendment free speech rights against school officials' duty to maintain order and safety in a classroom. In the first and best known of them, decided 43 years ago, the Court upheld public high school students' right to wear black armbands to protest the Vietnam War. In Tinker v. Des Moines Indep. Comm. Sch. Dist. (393 U.S. 503 (1969)), Justice Abe Fortas famously opined: "It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." (393 U.S. at 506.) But the Court ultimately ruled that student speech can be constrained if it poses a "material and substantial interference" with schoolwork or discipline. (393 U.S. at 511.)

A trio of cases after Tinker carved out additional categories of expression that may be restricted in school: speech that is lewd, vulgar, or patently offensive (Bethel Sch. Dist. v. Fraser, 478 U.S. 675 (1986)); speech related to "legitimate pedagogical concerns" (Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260 (1988)); and speech promoting illegal drug use (Morse v. Frederick, 551 U.S. 393 (2007)).

Even now, school officials are left without guidance about when an interference is "substantial." And last winter the Court declined to review several cases involving a more contemporary concern: how schools should deal with "off-campus" cyber-misconduct.

"I'd say 98 percent of our cyberbullying in the last three years is after school and on weekends," says Silberberg, the superintendent. "When the students separate from the school, then it's the Wild, Wild West. We're put in the position of taking reactive rather than proactive action."

One of the key California holdings arose after a Beverly Vista High School student (J.C.) made a profanity-laced video branding another student a "slut," "spoiled," and "the ugliest piece of shit I've ever seen in my life." The four-and-a-half minute video, recorded after school hours at a local restaurant, received nearly 90 hits the first night it was posted on the YouTube website. When the parents of the maligned student complained, school authorities suspended J.C. from school for two days.

J.C.'s father, a lawyer, sued the school district on the grounds that the suspension violated his child's First Amendment rights. The video was constitutionally protected speech, he contended, and because it took place off campus, the school administration had no basis to impose discipline. Following the parties' cross motions for summary judgment, the U.S. District Court for the Central District of California held that the suspension violated J.C.'s free-speech rights because school administrators did not establish that the video "had a substantial disruptive impact on school-related activities." (J.C. v. Beverly Hills Unified Sch. Dist., 711 F. Supp. 2d 1094 (C.D. Cal. 2010).) J.C.'s father was awarded more than $100,000 in attorneys fees and costs.

"The holding in the case is so troubling," says Shipley of Fagen Friedman. "What is the take-away? That the school shouldn't have done anything?"

In anonymous online comments, some critics claim that what those who cry "cyberbully" need most is a stiff upper lip. And although such protests surely don't apply to the most vile of cyber-taunts, they do raise a question or two: Are kids just more thin-skinned these days? Or are "helicopter" parents more apt to swoop in and try to shield them from unpleasantness?

On the Internet, the stakes are higher all around.

"The impulsive act of posting something stupid like a nude photo or writing an angry message creates a permanent record [online] that expands the degree of harm it causes," says Nancy Willard of Embrace Civility. She emphasizes that cyberspace postings also have the potential to change the balance between the bully and the bullied. "If you're weak, you may not stand up to others on the playground, but you might do it with a computer," she says. "That also explains why there are so many postings from students about teachers and principals."

Indeed, most of the cyberbullying cases that have made it through the courts so far involve allegations that students have abused teachers or principals. (The students' defense is they have a constitutional right to compose and post freely.) In one example, the Third Circuit Court of Appeals held in 2011 that a middle school student was wrongfully suspended after she created a parody on MySpace describing her principal as a "tightass" and "sex addict" whose child "looks like a gorilla." (J.S. v. Blue Mountain Sch. Dist., 650 F.3d 915 (3d Cir. 2011) (en banc), cert. denied, 132 S.Ct. 1097 (2012).)

"I am surprised by all the First Amendment claims," says Shipley. "For some reason, the parents who sue tend to be lawyers. It's pretty laughable."

For now, the best solutions to cyberbullying by school kids may lie outside the law. Most experts recommend alternatives short of suspension or expulsion, to help mend fences between the bullies and the abused. Options include counseling, mentoring, parent/teacher conferences, education and awareness campaigns, gay/straight alliances, anonymous tip lines for students and parents, and, if necessary, a "provisional suspension" that can be removed from a student's record after a period of good behavior.

Santa Clara's Calhoun helped head a statewide effort to simplify the matter for administrators, focusing on model school policies that foster proper behavior in general. "For example, instead of saying it's wrong to copy stuff off the Internet, focus on academic honesty. Don't draft a Facebook policy, but have one on appropriate communications between students, students and staff, staff and family members," she explains. The suggested policies are to be posted soon on www.onthelineca.org.

Connie Williams is a teacher-librarian at California's Petaluma High School who has been credited with sensibly integrating technology into her school district. "I encourage the idea of looking at restitution as a process," she says, "making a learning opportunity for both victims and bullies."

Williams also supports something called Safe School ambassadors - kids who are identified as student leaders and invited to attend training programs for dealing with conflicts. "They don't walk around and narc on their friends, but they speak up for an injustice when they see it," she explains.

And Petaluma teacher Tobin proposes a low-tech solution: "I'd like to see electronic-free times at home," she says. "Talk about turning off tech just for an hour a day - unhooking the drug."

Barbara Kate Repa is a lawyer, writer, and editor in San Francisco and a frequent contributor to California Lawyer.

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