The Dignity Act

A Resource and Promising Practices Guide for School Administrators & Faculty

 

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SECTION VII: GUIDANCE ON BULLYING AND CYBERBULLYING

The U.S. Department of Health and Human Services National Bullying Prevention Campaign: Take a Stand. Lend a Hand. Stop Bullying Now!” defines bullying as aggressive behavior that is intentional and involves an imbalance of power or strength. It is generally repeated over time. Traditionally, bullying has involved actions such as hitting or punching (physical bullying), teasing or name-calling (verbal bullying), or intimidation through gestures or social exclusion.

In recent years, technology has given people a new means of bullying each other. Cyberbullying takes place through the use of computers, cell phones and other electronic devices. Examples of cyberbullying include:

  • Sending hurtful, rude, or mean text messages to others
  • Spreading rumors or lies about others by e-mail or on social networks
  • Creating websites, videos or social media profiles that embarrass, humiliate, or make fun of others

Bullying online is very different from face-to-face bullying because messages and images can be:

  • Sent 24 hours a day, 7 days a week, 365 days a year
  • Shared to a very wide audience
  • Sent anonymously

www.stopbullying.gov/topics/cyberbullying/

An awareness and support of student behavior are often overlooked aspects of a comprehensive policy for dealing with issues of bullying and cyberbullying. As a result, students who are victimized often become alienated due to the fact that they are simply unsure of the appropriate steps to take to address the situation. To ensure that these circumstances do not occur, school administrators are strongly encouraged to provide support for students through guidance, social work, and/or psychological services in the district. Schools are also encouraged to include local social service agencies in this process.

Cyberbullying can be understood in a variety of ways, but all include the following: it is deliberate; harmful; uses electronic technologies; and is usually repeated over time. An imbalance of power is usually involved, but may be more difficult to describe since it may come from having proficiency with technology, or due to having possession of some information or content that can be used to harm someone else. The most common forms of cyberbullying include: harassment, flaming, cyber stalking, denigration, impersonation, sexting, happy slapping, outing, and trickery.

One incident of bullying is too many. Bullying in general, and cyberbullying in particular, are becoming increasingly important concerns to educators, students, and parents and have created new challenges for school administrators in their efforts to create and maintain safe and secure learning environments. Students need to feel safe in order to maximize their academic and social potential.

The threats of cyberbullying and its continuous exposure to students makes this a particularly important topic for all school building administrators, teachers, and support staff to address. The fact that cyberbullying has no geographic boundaries adds another level of complexity to the issue. Thus, students require clear and unambiguous guidance so they do not become overwhelmed or feel as though they have to manage the threat alone if confronted by a cyberbullying or bullying threat. This guidance provides educators with policy, program, and legal considerations for dealing with the issues of bullying, cyberbullying, and general internet safety. It is also designed to assist schools in developing a comprehensive approach for dealing with these issues, which, if left unaddressed, can lead to the creation of unsafe school environments.

Educators are encouraged to consult with the attorney in their school district during the development of their bullying, cyberbullying, and Internet safety policies.

School and District Practice and Policies

A school’s culture may be the single most important factor in preventing, limiting, and/or dealing with bullying and cyberbullying incidents. Educators need to work diligently to create school cultures that value and teach respect for all. The most positive school cultures are culturally sensitive and model positive behavioral interactions.

Potential strategies available to create a comprehensive response to bullying and cyberbullying include policies and programs that address school climate; Code of Conduct; Children’s Internet Protection Act; Internet Safety Policies; and the analysis of Violent and Disruptive Incident Reports (VADIR).

  • School culture: NYSED, in conjunction with the New York State Office of Mental Health, has developed Guidelines and Resources for Social and Emotional Development and Learning (SEDL) in New York State. This document, and other SEDL resources to assist schools in developing positive school climates and cultures, can be found at www.p12.nysed.gov/sss/sedl/.
  • Code of Conduct: All public schools must adopt and implement a code of conduct for the maintenance of order on school property and at school functions. The code of conduct governs the conduct of students, teachers, other school personnel and visitors (see, Education Law §2801[2] and Commissioner’s Regulation 8 NYCRR §100.2[l] [2] [i]).
    • An age-appropriate summary of the code of conduct must be provided to students and all persons in parental relation to students at the beginning of each school year. This also provides an opportunity for school personnel to both review the code of conduct with students and parents and identify possible gaps in policy, practices, and procedures. State Law requires that the school code of conduct be reviewed annually and updated if necessary, taking into consideration the effectiveness of code provisions and the fairness and consistency of its administration (see Education Law §2801[5][a] and 8 NYCRR §100.2[l][2][iii][a]).
    • The annual review provides an opportunity to assess whether the code of conduct needs to be revised to address, among other things, the use of new forms of technology on school grounds and/or at school functions by students, teachers, other school personnel and visitors. A district may establish a committee to facilitate the review of its code of conduct and the district’s response to code of conduct violations (see Education Law §2801[5][a] and 8 NYCRR §100.2[l][2][iii][a]). The review team/committee should include student, teacher, administrator, and parent organizations, school safety personnel and other personnel. Such committee might also include school staff, concerned community members, and law enforcement officials. It is also recommended that individuals with strong technology skills and a thorough understanding of how students, teachers, and staff are using technology be recruited to assist in the review of the code of conduct. This will help ensure that the code of conduct reflects current and anticipated challenges that have been created or are anticipated through the evolution of technology.
    • The code of conduct is an ideal document to establish expectations and consequences for student and staff conduct regarding internet safety and the use of technology while on school grounds and/or at school functions. Teachers must be provided with a copy of the code of conduct and copies of the code of conduct must also be made available for review by students, persons in parental relation to students, and other community members (see, Education Law §2801[4] and 8 NYCRR §100.2[l][2][iii][b]). The code of conduct, including any annual updates or other amendments, must be posted on the school district’s website, if one exists (8 NYCRR §100.2[l][2][iii][b][1]).
    • The code of conduct should address such Internet and electronic device safety issues as cyberbullying and sexting. Commissioner’s regulations regarding the uniform violent or disruptive incident reporting (VADIR) system defines “intimidation, harassment, menacing, and bullying and no physical contact” as “[t]hreatening, stalking or seeking to coerce or compel a person to do something; intentionally placing or attempting to place another person in fear of imminent physical injury; or engaging in verbal or physical conduct that threatens another with harm, including intimidation through the use of epithets or slurs involving race, ethnicity, national origin, religion, religious practices, gender, sexual orientation, age or disability that substantially disrupts the educational process” (8 NYCRR §100.2[gg][1][vi][j]).
    • The following definitions from the New York State Division of Criminal Justice Services (NYSDCJS) may be used as a guide to develop policies and practices regarding cyberbulling and sexting:
  • Peer Mediation involves an impartial, third party mediator (in a school, a student who has been trained to serve as a peer mediator) facilitates the negotiation process between parties who are in conflict so that they can come to a mutually satisfactory resolution. Mediation recognizes that there is validity to the conflicting points of view that the disputants bring to the table and helps disputants work out a solution that meets both sets of needs. Disputants must choose to use mediation and must come to the process willingly. Mediation is not used in situations in which one individual has been victimized by another.

CONFLICT RESOLUTION

Conflict resolution refers to various processes that may be used to facilitate resolution of a conflict between two or more disputants. Most non-violent conflict resolution falls into one of the following four categories:

Diagram indicating Input and Control Over the Outcome of Dispute, from most to least: Negotiation, Mediation, Arbitration, Litigation

Collaborative Negotiation: The most direct method of conflict resolution is collaborative negotiation in which one or both disputants knows and understands the strategies and skills needed to talk through a conflict.

An individual trained in collaborative negotiation knows how to facilitate a direct conversation with the person with whom s/he is in conflict. During the collaborative negotiation process, s/he will articulate her/his position and underlying need(s), surface the position and underlying need(s) of the person with whom s/he is in conflict and reframe the conflict into a mutual problem to be resolved by both parties.

The goal of a collaborative negotiation is to arrive at a mutually agreed upon resolution that meets the needs of both parties.

Mediation: Mediation is a collaborative negotiation which is facilitated by a neutral third party - the trained mediator.

At the start of the mediation, a trained mediator will lay out the ground rules for the mediation process. During the mediation, the mediator will facilitate a conversation between the two disputants to surface the position and underlying need(s) of each person and reframe the conflict into a mutual problem to be resolved by both parties.

The goal of a mediation is for the two disputants to arrive at a mutually agreed upon resolution that meets the needs of both parties.

The Difference between Negotiation and Mediation versus Arbitration and Litigation

In both the negotiation and mediation process, the resolution of the conflict is arrived at by the individuals who are personally involved in the conflict. In arbitration and litigation, the decision as to how a conflict is resolved is removed from the individuals involved.

  • In arbitration, a neutral third party hears both sides of the conflict and decides upon the resolution. While each disputant provides his or her side of the story, neither disputant has input or control over the final resolution.
  • Disputants in litigation are further removed from the resolution process. Generally they do not present their own case. In most instances, a disputant’s case is presented by an attorney and regardless of whether or not a disputant represents her/himself in litigation process; s/he has no control over the resolution. Either a judge or jury ultimately decides the final resolution.

The code of conduct should also include statements that make it abundantly clear that cyberbullying is a form of electronic aggression and that both it and sexting are inappropriate and will not be tolerated on school grounds or at school-sponsored events or functions, using either school or personal information technology equipment. Sexting incidents should be reported on the VADIR in either IHMB (category 10) or other disruptive incidents (category 20), provided these reporting thresholds are met: the incident is violent/disruptive; it occurred on school property/ school sponsored events; and it meets/exceeds the disciplinary actions. Disciplinary or referral actions include the following:

  • Referral to counseling;
  • Teacher removal (formal 3214 hearing);
  • Suspension from class or activities; in-school equivalent of one full day;
  • Activities or transportation for five (5) consecutive school days;
  • Out of school suspension: equivalent of one full day;
  • Transfer to alternative setting; or
  • Transfer to law enforcement.

Incidents in the IHMB category that come to the attention of the principal or school administrator, but do not rise to the disciplinary threshold, are logged by the school and are reported in Item 2 on page 3 of the VADIR Summary each year. Please refer to the Glossary of Terms used in reporting Violent and Disruptive Incidents for a description of the incident categories at: (www.p12.nysed.gov/ssae/schoolsafety/vadir/   glossary08aaug.html).

Off Campus Cyberbullying

As discussed above, the Dignity Act prohibits discrimination and harassment of students on school property, including at school functions, by any student and/or employee. However, harassment may include, among other things, the use, both on and off school property, of information technology, including, but not limited to, e-mail, instant messaging, blogs, chat rooms, pagers, cell phones, gaming systems and social media websites, to deliberately harass or threaten others. This type of harassment is generally referred to as cyberbullying. Since regulation of harassment in the form of cyberbullying implicates students’ constitutionally protected speech under the First Amendment, this section seeks to clarify when a school can become involved in bullying that occurs off campus.

While school districts are not required by Education Law §2801 to include provisions regulating off-campus conduct by students in their codes of conduct, they are not precluded from doing so. Prior Commissioner’s decisions have upheld the suspension of students for off-campus conduct (Appeal of K.S., 43 Ed Dept Rep 492, Decision No. 15,063; Appeal of Ravick, 40 id. 262, Decision No. 14,477; Appeal of Orman, 39 id. 811, Decision No. 14,389). Students may be disciplined for conduct that occurred outside of the school that may endanger the health or safety of pupils within the educational system or adversely affect the educative process (Matter of Coghlan v. Bd. of Educ. of Liverpool Cent. School Dist., 262 AD2d 949, citing Pollnow v. Glennon, 594 FSupp. 220, 224, affd 757 F2d 496). While none of these cases involve First Amendment speech or expression, they are relevant to a district’s authority to regulate off-campus conduct.

Since regulation of harassment in the forms of bullying, cyberbullying and sexting may involve free speech and expression, constitutional issues arise regarding the ability of a school district, BOCES, or charter school to restrict these forms of speech and expression and to discipline students for engaging in them. In Tinker v. Des Moines Indep. Community Sch. Dist. (393 US 503 [1969]), the U.S. Supreme Court stated that school administrators may prohibit student expression where it “materially and substantially disrupt[s] the work and discipline of the school” (Tinker v. Des Moines Indep. Community Sch. Dist., 393 US 503, 513).

The Second Circuit Court of Appeals has found that school administrators were not prevented from disqualifying a student from a school election after she posted a vulgar message about the cancellation of a school event on an internet blog (Doninger v. Niehoff, et al., 527 F3d 41 [2008] [Doninger I]; Doninger v. Niehoff, et al., 642 F3d 334, cert den 132 SCt 499 [2011] [Doninger II]). In Doninger I, the Second Circuit stated that “a student may be disciplined for expressive conduct, even conduct occurring off school grounds, when this conduct ‘would foreseeably create a risk of substantial disruption within the school environment,’ at least when it was similarly foreseeable that the off-campus expression might also reach campus” (Doninger I, 527 F3d 41, 48; see also Wisniewski v. Board of Educ. of the Weedsport Central School Dist., 494 F3d 34 [2d Cir 2007], cert den 552 US 1296 [2008] [court upheld suspension of student who sent internet “instant message” of a drawing depicting a teacher being shot, stating that “off-campus conduct can create a foreseeable risk of substantial disruption within a school” and that it was “reasonably foreseeable that the [drawing] would come to the attention of school authorities and the teacher”]).

It should also be noted that, in 2011, the Fourth Circuit Court of Appeals upheld the suspension of a student who created and posted from her home computer a webpage ridiculing another student (Kowalski v. Berkeley County Schools, et al., 652 F3d 565 [4th Cir 2011]). Citing Tinker, as well as the Second Circuit’s decisions in both Doninger I and Wisniewski, the Fourth Circuit stated that “the language of Tinker supports the conclusion that public schools have a ‘compelling interest’ in regulating speech that interferes with or disrupts the work and discipline of the school, including discipline for student harassment and bullying” (Kowalski v. Berkeley County Schools, et al., 652 F3d at 572). Other federal Circuit Courts of Appeal, notably the Third Circuit, have taken a more restrictive view of the application of Tinker and the ability of a school district to discipline students for bullying or cyberbullying involving speech or expression protected by the First Amendment (see, e.g.,Layshock ex. rel. Layshock v. Hermitage School Dist., 650 F.3d 205 [3rd Cir. 2011].

Thus, there is currently a split among the federal Circuit Courts of Appeal regarding application of the Tinker standard to off-campus speech and/or expression. Until the U.S. Supreme Court rules differently, the Doninger and Wisniewski cases represent the state of the law in the Second Circuit, which encompasses all of New York State. Accordingly, school districts in New York State may take action when students engage in off-campus conduct that would foreseeably create a risk of substantial disruption within the school and should consider doing so, as part of a comprehensive approach to intervening to prevent harassment and cyberbullying that includes interventions other than out-of-school suspension.

Because this area of law continues to evolve, NYSED recommends that districts, BOCES, and charter schools consult with their attorneys in developing policies – and periodically reviewing existing policies – on bullying, cyberbullying, and sexting to determine whether the proposed policy is consistent with case law and Commissioner’s decisions.

The Children’s Internet Protection Act (CIPA) CIPA is the primary federal law concerning access to offensive content over the Internet on school and library computers (http://fcc.gov/cgb/consumerfacts/cipa.htmlexternal link icon). According to the Federal Communications Commission, requirements of this law include:

  • Schools and libraries subject to CIPA may not receive the discounts offered by the E-rate program unless they certify that they have an internet safety policy that includes technology protection measures. The protection measures must block or filter internet access to pictures that are: (a) obscene; (b) child pornography; or (c) harmful to minors (for computers that are accessed by minors). Before adopting such an internet safety policy, schools and libraries must provide reasonable notice and hold at least one public hearing or meeting to address the proposal.
  • Schools subject to CIPA are required to adopt and enforce a policy to monitor online activities of minors.
  • Schools and libraries subject to CIPA are required to adopt and implement an internet safety policy addressing: (a) access by minors to inappropriate matter on the internet; (b) the safety and security of minors when using electronic mail, chat rooms, and other forms of direct electronic communications; (c) unauthorized access, including so-called “hacking,” and other unlawful activities by minors online; (d) unauthorized disclosure, use, and dissemination of personal information regarding minors; and (e) measures restricting minors’ access to materials harmful to them.

Internet Safety Policies

In light of these requirements, a school district should revisit its policy regarding the use of social networking web sites and Instant Messaging Centers. A decision needs to be made as to whether the school district supports the use of these sites to encourage communication between staff, students, and persons in parental relation to students. If it encourages the use of these sites for such communications, it is wise to establish parameters to ensure that staff, students, and persons in parental relation to students are not placed at risk. There are many resources available for teaching internet safety in your school or district, including free lesson plans.

Analysis of anti-bullying legislation and reporting requirements

Since 2006, approximately 20 states have enacted cyberbullying legislation. A review of this enacted legislation shows a focus on expanding the definition of bullying and/or harassment to include the use of information technology equipment, including, but not limited to, e-mail, instant messaging, blogs, chat rooms, pagers, cell phones, and gaming systems, to carry out the acts.

This guidance is meant to provide ideas to address the issue of cyberbullying. You are invited to contact the Office of Student Support Services at (518) 486-6090 or the www.p12.nysed.gov/dignityact if you require additional assistance.

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Last Updated: May 30, 2012