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TIME: 2:40 ‐ 3:40 p.m.
THURSDAY
MARCH 8, 2018
2018 JUVENILE LAW SEMINAR
Educa on Spotlight: Cyberbullying and Delinquency
PRESENTED BY:
Nicole Proesch Iowa Department of Education Grimes State Office Building 400 E 14th St Des Moines, IA 50319
ISBA Juvenile Law conferenceMarch 8, 2018
Nicole M. Proesch, J.D., Legal Counsel, ALJ,Iowa Department of Education
“Johnny Lawrence”William Zabka in The Karate Kid (1984)
“Scut Farkus”Zach Ward in A Christmas Story (1983)
“Biff Tannen”Thomas F. Wilson in Back to the Future (1985)
“Laura Lizzie”Fairuza Balk in The Craft (1996)
“Regina George”Rachel McAdams in Mean Girls (2004)
• https://youtu.be/XMjNPbgQ_VA
“Mark Zuckerberg” Jessie Eisenberg in The Social Network (2010)
• Twitter• Facebook• Myspace• Snapchat• Pinterest• LinkedIn• Instagram• YouTube
1. a. A person commits harassment when, with intent to intimidate, annoy, or alarm another person, the person does any of the following:
1. (1) Communicates with another by telephone, telegraph, writing, or via electronic communication without legitimate purpose and in a manner likely to cause the other person annoyance or harm.
2. (5) Disseminates, publishes, distributes, posts, or causes to be disseminated, published, distributed, or posted a photograph or film showing another person in a state of full or partial nudity or engaged in a sex act, knowing that the other person has not consented to the dissemination, publication, distribution, or posting.
• b. A person commits harassment when the person, purposefully and without legitimate purpose, has personal contact with another person, with the intent to threaten, intimidate, or alarm that other person.
• Title IX Educational Amendments of 1972 (sex equity)• Title VI – Civil Rights Act of 1964 (race and national origin
equity)• Section 504 of the Rehabilitation Act of 1973 and Title II
Americans with Disabilities Act (disability equity)• Office for Civil Rights Guidelines 1979 (career and technical
education equity)
• Iowa Code § 216.9 - Prohibits discrimination by an educational institution -
• Iowa Code § 280.28 - Harassment & Bullying Prohibited
“Harassment” and “bullying” shall be construed to mean any electronic, written, verbal, or physical act or conduct toward a student which is based on any actual or perceived trait or characteristic of the student and which creates an objectively hostile school environment that meets one or more of the following conditions:
(1) Places the student in reasonable fear of harm to the student’s person or property.
(2) Has a substantially detrimental effect on the student’s physical or mental health.
(3) Has the effect of substantially interfering with a student’s academic performance.
(4) Has the effect of substantially interfering with the student’s ability to participate in or benefit from the services, activities, or privileges provided by a school.
“Electronic” means any communication involving the transmission of information by wire, radio, optical cable, electromagnetic, or other similar means. “Electronic” includes but is not limited to communication via electronic mail, internet-based communications, pager service, cell phones, and electronic text messaging.
• “Trait or characteristic of the student” includes but is not limited to age, color, creed, national origin, race, religion, marital status, sex, sexual orientation, gender identity, physical attributes, physical or mental ability or disability, ancestry, political party preference, political belief, socioeconomic status, or familial status.
A subset of bullying/harassment using technology to harass or threaten peers or educators.
• Anonymous• Impractical to alleviate it• Targets don’t complain • One click and its all over the internet
There must be a close connection (Nexus) to school for school officials to be able to regulate cyberbullying.
Additionally, because of free speech the school must demonstrate legitimate pedagogical concerns before courts will allow schools to take action.
Absent either impingement on the rights of others or the likelihood of a substantial and material disruption at school, school officials may not regulate student speech at school.
Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 89 S.Ct. 733 (1969)
Lewd, indecent, objectively offensive speech by students may be regulated by school officials.
Bethel School Dist. No. 403 v. Fraser, 478 U.S. 675, 106 S.Ct. 3159 (1986)
School officials may regulate speech that appears to promote illegal or harmful activity.
Morse v. Frederick, 127 S.Ct. 2618 (2007)
Facts: A high school student created a web site that used crude and vulgar language in criticizing the school administration.
• No school resources• Link to schools' official homepage• Received 10 Day Suspension
Ruling: Overturned - the principal testified that he suspended the student because he didn’t like the content. If principal had shown substantial disruption of educational time at school, there might have been a different outcome.
Beussink v. Woodland R-IV School District, 30 F.Supp.2d 1175 (E.D. Mo. 1998)
Facts: A student included mock obituaries of his friends in a web site he created and named “Unofficial Kentlake High Home Page.”
• Honors student - no prior discipline • Disclaimer “This site has no connection to school & is for
entertainment purposes only.” • Readers invited to vote on “who should die.” • Local media characterized the site as having a “hit list.” • Mortified, the student removed his site the day after.
Ruling: The court found in favor of the student. No evidence students felt threatened, no evidence that the creator of the web site intended to do any harm, and no evidence of any disruption to the educational environment.
Emmett v. Kent School District No. 415, 92 F.Supp.2d 1088 (W.D. Wash. 2000).
Ruling: The court reversed the expulsion of a student who posted derogatory comments on the student’s personal Web site about Canadians, lesbians, albino florists, oh, yes, and his teachers. School district also ended up paying the student $20,000.
Muss v. Beaverton School District, No. CV-02-1706-AA (D. Ore. 2002).
{If you’re keeping score, the school districts haven’t won yet; this next case ends that streak.}
Facts: A male middle school student who was a competitive ballroomdancer was verbally harassed and taunted by peers almost daily;
• Students posted derogatory comments about him on an internet chat room that was accessed from the school library.
• In response, the district made classroom announcements, contacted parents, and suspended students.
• The harassment continued; the family sued.
Ruling: Dismissed. The school showed that it took reasonable steps to try to get the harassment to stop.
Shaposhnikov v. Pacifica School District, WL 931731 (N.D. Cal. 2006).
Facts: A middle school student created an icon depicting his English Teacher being shot at home and sent it to 15 other students, one of whom showed it to the teacher.
• The teacher was distressed enough that he was allowed to stop teaching this student’s class.
Ruling: Suspension Upheld. The court concluded that “it was reasonably foreseeable that the IM icon would come to the attention of school authorities and the teacher whom the icon depicted being shot,” thus, the material and substantial disruption of the work of the school was met.
Wisniewski v. Weedsport Cent. School District, 494 F. 3d 34 (2nd Cir. 2007).
Facts: Student had sent IMs to a classmate from home computer; IMs were “true threats;” Student said he was going to get a gun and kill certain classmates. Student was suspended and arrested. Student alleged it violated his right to free speech.
Ruling: IMs caused a substantial disruption for the school. Suspension upheld.
Mardis v. Hannibal Public School District, 684 F.Supp.2d 1114 (E.D. Mo. 2010)
Layshock Facts: A senior with no disciplinary history and who was academically successful decided just before the Christmas recess to create a “parody profile” of one of the high school principals on MySpace.com.
• It was juvenile, vulgar, and crude. • No school equipment or school time.
Ruling: The student’s off-campus speech did not result in a substantial disruption of school operations; therefore, it granted summary judgment to the student.
Layshock v. Hermitage School District, 496 F.Supp.2d 587 (W.D. Pa. 2007)
J.S. facts: As in Layshock, the student created a fake MySpace profile and used a photo of the principal from the district’s Web site.
• Depicted the principal as a pedophile and sex addict.
Ruling: School officials did not violate a student’s free speech rights by disciplining her, and granting the school’s motion for summary judgment. Frasier applied.
J.S. v. Blue Mountain School District, No. 07-585 (MD. Pa. 9/11/08)
On April 10, 2010, the U.S. Court of Appeals for the Third Circuit (PA, NJ, DE, VI) granted the motions for rehearing en banc in J.S. and Layshock. Both cases were argued before the en banc court on June 3, 2010.
On June 13, 2011, the Third Circuit issued its ruling, finding in favor of the students in both cases.1. Can’t apply Fraser
standard outside of school.
2. There was no substantial disruption.
3. Tinker was not meant to protect school officials.
The school district appealed this case is to the U.S. Supreme Court and on January 17, 2012, the court denied hearing the case leaving the ruling in favor of students free speech.
Sexting includes:• Sending photos or
messages meant to harass recipient
• Sending photos or messages meant to humiliate subject
• Sending obscene materials to minors, even if consensual
Facts: An Iowa High school student Jorge complied with a request from a minor female friend to send her a picture of his penis. The young lady was not offended by this; she testified that “all my friends are doing this…it’s just a joke.” BUT – her mother saw the picture and was not amused.
Ruling: Jorge ended up being convicted of dissemination of obscene material to a minor. He was on our sex offender registry until June of 2016.
State v. Canal, 773 N.W.2d 528, (Iowa 2009).
Investigate• If a complaint is filed the school must investigate under 280.28
& determine if founded or unfounded.• May also be a violation of Title IX of ICRA if involves
discrimination or sexual harassment.• If founded, may be able to punish.
• Nexus to school = Ability to discipline.• No Nexus = No ability to discipline.• Good Conduct Policy?
• If unfounded, correct bad behavior.• Always report crimes to LE
Discipline• The Iowa Legislature has conferred broad authority to local
school boards to adopt and enforce its own rules and disciplinary policies. See Iowa Code §§ 279.8 & 282.4.
• Under section 279.8, “the board shall make rules for its own government and that of the . . . pupils, and for the care of the school house, grounds, and property of the school corporation, and shall aid in enforcement of the rules.”
• Local school boards have the explicit statutory authority to expel or suspend students for violating school rules pursuant to Iowa Code section 282.4.
Discipline• School districts have broad discretion to punish
students who break the rules as long as the district follows appropriate due process requirements. In re Suspension of A.W., 27 D.o.E. App. Dec. 587 (2015).
• The State Board will not overturn a local board’s decision unless it is unreasonable. In re Jesse Bachman, 13 D.o.E. App. Dec. at 363.
Due Process• Due process requires “notice and opportunity for
hearing appropriate to the nature of the case.” Goss v. Lopez, 95 S. Ct. 729, 738 (1975).
• However, due process does not “shield [a student] from suspensions properly imposed”. Id. at 739.
Due Process• An expulsion or a long-term suspension will
generally be upheld as long as the student received written notice of the alleged offense; notice of the time, date, and place of the hearing; sufficient time to prepare an adequate defense, to present witnesses, and to cross examine witnesses; notice of individual rights; and if the hearing conducted by the board was free of bias.
Off school Grounds?• Inherent in Iowa Code section 279.8 is the school’s
broad authority to adopt and enforce a good conduct policy.
• Schools may govern out of school conduct of its students who participate in extra-curricular activities because “these students are looked up to and emulated” and “they represent the school and depict its character.”
Bunger v. Iowa High Sch. Athletic Assn., 197 N.W. 2nd
555, 564 (Iowa 1972).
Off school Grounds?• In Brands, the leading case in Good Conduct Appeals the court
established that:1) A secondary student has no right to participate in
interscholastic athletics or extracurricular activities.2) Since there is no right the amount of due process owed is
minimal.3) In order for a student to be disciplined under the schools
Good Conduct policy there need only be “some evidence” that the student violated the policy.
Brands v. Sheldon Community School District, 671 F. Supp. 627, 630-631 (N.D. Iowa 1987)
Investigate• Work with the school to investigate the complaint
of harassment.• Determine if this will be handled by the school or LE
or both. • Determine if the student can be charged with a
crime. • If yes, begin delinquency proceedings.• If no, work with the school and the victim.
• https://youtu.be/1HJ9XM77L8U
• Facts:• Biff (18) and Lorraine (15) were dating over the
summer of 2017. During that time the two were intimate. Unbeknownst to Lorraine, Biff recorded their encounter on his cell phone. The two broke up after school started. Biff is a member of the school football team. Biff began circulating the video of the encounter to other classmates on his phone and Lorraine found out. Dr. Brown suspended Biff from the football team for several games.
• School Districts Role• Investigate for violation of Bullying & Harassment, Title IX,
and Iowa Code section 216.9.• Is there a first amendment issue?• Is there a sufficient nexus to the school?
• If yes, school can investigate and discipline – which can include suspension or expulsion.
• If no nexus, school may discipline for conduct off school grounds because the student is subject to a good conduct policy.
• Notify the school resource officer and/or local law enforcement.
• Institute a safety plan for the victim.
• Law Enforcement Role• Work with the school to investigate the
complaint of harassment.• Determine if this will be handled by the school. • Determine if the student can be charged with a
crime – harassment? Dissemination of obscene material to a minor? Dissemination of child porn?
• If yes, charge the student and begin delinquency proceedings.
• Institute a safety plan for the victim.
• Facts:• Johnny and three other members of the High
School Karate team were photographed wearing white hoods, brandishing a Confederate flag and rifle and standing in front of a burning cross. The image spread like wildfire across social media and a minority member of the karate team was offended by the post. The school and local law enforcement were contacted. The students were all suspended from karate by Mr. Miagi for the remainder of the school year.
• School Districts Role• Investigate for violation of Bullying & Harassment, Title VI,
and Iowa Code section 216.9.• Is there a first amendment issue?• Is there a sufficient nexus to the school?
• If yes, school can investigate and discipline the students – which can include suspension or expulsion.
• If no nexus, school may discipline for conduct off school grounds because the students are subject to a good conduct policy.
• Notify the school resource officer and/or local law enforcement.
• Law Enforcement Role• Work with the school to investigate the
complaint.• Determine if this will be handled by the school. • Determine if the students can be charged with a
crime – harassment? Hate crime?• If yes, charge the students and begin
delinquency proceedings.• Institute a safety plan for the victim.
• Facts:• Several students at North Shore High School,
received inappropriate text messages from Regina George that showed her naked. Rather then report it, the students including Regina’s arch nemesis Cady Heron, forwarded the text to other students including Aaron Samuels who was dating Regina. Aaron reported it Ms. Norbury. However, by this time the photos had been sent and received all over the school and other students were sharing similar pictures of themselves.
• School Districts Role• Investigate for violation of Bullying & Harassment, Title VI,
and Iowa Code section 216.9.• Is there a first amendment issue?• Is there a sufficient nexus to the school?
• If yes, school can investigate and discipline the students – which can include suspension or expulsion.
• If no nexus, school may discipline for conduct off school grounds because the students are subject to a good conduct policy.
• What about to amount of students involved?• Do you refer all of the students involved to LE? Or is this a
teachable moment for the school.
• Law Enforcement Role• Work with the school to investigate the
complaint.• Determine if this will be handled by the school. • Determine if the students can be charged with a
crime – harassment? Hate crime?• If yes, charge the students and begin
delinquency proceedings.• Maybe it wouldn’t be appropriate to charge all
the students.
Resources: [email protected] www.educateiowa.gov/pk-12/accreditation-program-approval/equity-education
