​EDEN WORMER, AN EIGHTH GRADER at Cascade Middle School in Vancouver, Washington, hanged herself in March 2012 after enduring years of bullying. She left a note on her Facebook page saying she loved her haters. According to the ABC News report of the incident, she had asked her sister not to report the repeated harassment from girls in her classes. And after the suicide, according to the report, police said that they found no evidence that the bullying violated any state laws.

The incident illustrates two of the types of challenges schools face in trying to deal with this serious problem, which one in five students has dealt with, according to the Centers for Disease Control and Prevention. Those challenges are a lack of reporting and a lack of clear legal authority.

The advent of the Internet and social networking sites has exacerbated the problem, creating new avenues for bullying and new legal mazes schools must navigate. Here’s a look at some of the things school districts must keep in mind when formulating policies, and some recommendations, with a focus on cyberbullying prevention.

Types of Bullying
Bullying can be peer to peer, older on younger, student to teacher, or teacher to student. It can occur on and off campus. It can be physical, verbal, or virtual.

Virtual v. physical. Since bullying in the virtual world can have very real effects, many states and schools treat cyberbullying as an extension of normal bullying. Mia Doces, who works for the Committee for Children and provides bullying awareness in schools, says “We actually don’t differentiate too much between bullying and cyberbullying because it all stems from the same sorts of behaviors or lack of skills, or just problem behaviors in general.”

But there is something that makes cyber bullying different from face-to-face bullying: its permanence. “Most students and parents don’t necessarily realize that once they put something out there for the world on the Internet, it’s out there. And it’s difficult, if not impossible, to take back,” says Robert Yatsuk, supervisor of school security for Anne Arundel County Public Schools in Maryland.

When schoolchildren began using the Internet, they quickly learned how to bully each other with this new technology. Parry Aftab, founder of WiredSafety and StopCyberbullying.org, says that she first encountered cyberbullying in the late 1990s. Kids would bully each other through e-mail messages, on peer-to-peer networks, in chat rooms, and even via an early instant messaging service, ICQ.

The bullies now also use text messages and social networks. Facebook, with nearly one billion users worldwide, is the site that seems to be mentioned the most in today’s cyberbullying incidents. There are also several other sites students turn to for bullying, such as Reddit and Yahoo! Answers, says Yatsuk.

The bullying can take many forms. Among the tactics are to post information or threats about people on their own Facebook walls, to make false accounts and befriend somebody for a nefarious purpose, or even to make a false Facebook account with another person’s name. Sexting, where students send nude pictures of themselves or others electronically, can be part of bullying, and because it is legally child porn, it requires special attention (more on this later).

The public and social aspect of online sites gives the bullying a high profile that adds to its emotional impact.

Legal Issues 
The National Conference of State Legislatures cites about three dozen state laws that address cyberbullying in schools. Among the provisions included in some of the laws are grounds for suspension and expulsion, mandates for schools to have bullying policies and prevention programs, and Internet safety plans and curriculum. Some of the laws make bullying a criminal offense. Each school district must familiarize itself with state laws and district mandates to make sure that its policies comply with any requirements. (It should be noted that this article looks specifically at the legal angles as the law applies to public schools; private schools have more leeway in regulations and policy-making.)

Schools must also be aware of court rulings that have established precedents with regard to student free speech rights under the First Amendment and other issues.

In 2002, for example, the Supreme Court of Pennsylvania upheld the expulsion of a high school student who had been punished for making a Web site attacking and threatening a teacher, because the actions were found to fulfill the Tinker standard of substantial disruption to the school. That standard came from the 1968 case of Tinker v. Des Moines, which stated that in order for schools to regulate students’ freedom of speech, the school must show that the action made a significant disruption to school life, rather than that it was merely uncomfortable or deemed wrong by the school.

Though that 2002 case upheld expulsion, a 2009 case in California (J.C. v. Beverly Hills Unified School District) found in favor of a student who had been suspended for posting a video mocking a classmate on YouTube. The video had been made off campus and posted off campus (more on this distinction ahead). The federal court in California found that there had been no significant disruption at school from this action and that, therefore, free speech rights had priority, despite the video being viewable on campus and causing hurt feelings. The school district had to pay for J.C.’s legal fees.

It’s not always clear how much the school can do, and as evident in cases like J.C.’s, schools can be penalized when they make a misstep.

Location matters. As noted, bullying can occur on or off campus. Depending on where the bullying occurs, a different set of rules may apply.

On campus. When the bullying happens on school campuses, school officials are on firmer ground regarding their ability to discipline the bullies. But the institutions have to be aware of student rights. For example, schools must still contend with the legal question of search and seizure; specifically, whether school administrators or faculty members can look at a student’s smartphone to analyze text messages or see what bullying has been done from the phone.

According to Todd DeMitchell, a professor of education and justice studies at the University of New Hampshire, per the 1985 Supreme Court case of New Jersey v. TLO, schools are not held to the same standard on the Fourth Amendment search and seizure rules that police are. While police need to prove probable cause to conduct a search, schools need only prove reasonable suspicion.

For example, if the school has a regulation that states that no cell phones are allowed in class, the school can confiscate students’ phones if they use them there. However, the seizure alone does not provide the ability to search the phone. To search the phone, there must be reasonable suspicion that the phone was being used to do something that also violates regulations, such as a drug deal. And the administrator carries the burden of proving there was reasonable suspicion behind the search rather than it being just a fishing expedition, says DeMitchell.

Michael Ganio, director of security compliance and operations at Orange County Public Schools in Florida, says his school district’s cyberbullying policy outlines the school’s authority in this area. The “policy allows [the school authorities] if they suspect that there’s cyberbullying going on or there might be a trail of text messaging, that they can search a student’s device.” If reasonable suspicion of bullying can be proved, the search is authorized.

Fortunately for schools trying to get to the bottom of cyberbullying, a lot of it happens in public or on sites where access to content is not restricted, so they don’t typically need to search a student’s phone in order to verify that the bullying was done.

Schools must have a policy and process for investigating allegations of bullying. School resource officers or administrators must also have clear-cut policies on when to take the issue to outside authorities. For example, a threat that a student is going to bring a gun to school would obviously be the type of issue that should be brought to law enforcement. Some states have proposed laws that would make less threatening types of cyberbullying a crime that law enforcement and prosecutors would have to deal with, so schools must be aware of whether they are responsible for reporting these incidents.

Off campus. With the rise of smartphones and the ubiquity of personal laptops, a lot of cyberbullying occurs outside of school or on technology owned by the student. When parents or students ask the school to take action in such cases, the question of when a school can intercede in cyberbullying is the greatest challenge says Aftab.

Schools have to tread carefully. They may get sued for doing too much. If public schools “exceed their authority by dealing with something that doesn’t have a direct threat or impact on the school, they get sued. So if they suspend or expel a student because of this, they get sued,” says Aftab.

According to DeMitchell, “Our authority to punish, in my estimation, is attenuated by the constitutional right that students do have.” And “the further away from the schoolhouse gate that the school goes and asserts authority over the students, the more tenuous its actions are going to be.”

The freedom students have applies especially to speech that others might object to. DeMitchell says that if freedom of speech is only used to protect bland, nice speech, it’s not much of a right; it must also protect offensive speech.

But if the off-campus bullying results in on-campus disruption, then the school’s right to act is more likely to be justifiable, such as when there are fights or other disruptions in the classroom. Schools are also often free to take action when there is a forecast of disruption; for example, if fights broke out the last time this sort of incident occurred. However, if the action is offensive but not necessarily disruptive, the school may not be able to defend itself for violating First Amendment rights in that case, explains DeMitchell.

There is no bright line between what is permissible and not, however. “The Supreme Court hasn’t yet clearly spoken on this issue,” says Aftab.

Some schools are making more specific policies and regulations that give them written permission from the parents to exert more authority over cyberbullying when it occurs outside of the school. (More on this later.)

Sexting. Sexting poses a unique set of challenges from just normal cyberbullying, though it can involve cyberbullying. Sexting can mean many things, but in this context, we’ll refer to it as students sending nude pictures of themselves or others electronically. Many schools and states include sexting laws and regulations under the bullying and cyberbullying fold.

The additional issue is that sexting often is categorized legally as child pornography. “That means anybody who touches [the images], has possession of them, or gives them to somebody else can be convicted of the crime of possession or distribution of child pornography. If they make copies, they are producing child pornography,” Aftal says.

Because the images are considered child pornography, the child is also subject to “sextortion,” which is when somebody who gets the images then compels the child to engage in sexual activities or produce more photos. Aftab says there is a movement for states to stipulate that a child who voluntarily sexts won’t be charged with pornography, but that is not the case in every state.

School officials dealing with these cases have sometimes gotten into legal trouble, because they don’t understand the laws. Aftab says that school officials have to be trained in the laws related to sexting. “They need to talk to law enforcement…. And they then need to establish clear policies that spell out what is legal.”

Responses
The two most basic punishments schools mete out for major cyberbullying offenses are suspensions and expulsions. But schools have tried other options as well, such as kicking students off of activities such as student council. In some instances, these punishments have been upheld by courts.

Schools must do more than deal with the bully. They must also ensure that the victim is able to continue in the school environment. That may mean dealing with the tension between the two parties. “You don’t try to bring them together. It’s more of a working with the individual parties separately so that the student who’s being victimized has the kind of support and is getting the kind of skills or strategies that are going to help them be safe and that the students who are doing the behaviors have some sort of plan for correcting the behaviors themselves,” says Doces.

Removal of content. Sometimes school districts find themselves involving private companies in taking care of the problems. Yatsuk says some school resource officers in his school were able to contact Internet service providers (ISPs) regarding Web sites created by students to insult others and have the sites pulled down because they went against the terms of service in the ISP contracts.

Zero tolerance. DeMitchell warns against having zero tolerance policies, noting that “sometimes zero tolerance sacrifices common sense.” He describes it as “the knee-jerk reaction of mandated discipline.”

DeMitchell cites an example of a situation where one student took a knife away from another student because that student had threatened to commit suicide. The student who took the knife was then expelled for having a knife, despite being the person trying to prevent an incident.

Task force. Aftab, who helps schools in developing cyberbullying-prevention policies, recommends that schools put together a cyberbullying task force. He advises that the task force include a guidance counselor, a technology teacher, a gym teacher, a couple of students, the school nurse, and a school administrator, such as a principal or vice principal, as well as some parents and teachers.

StopCyberbullying.org provides a cyberbullying tool kit that contains advice on how the task force should proceed and on other cyberbullying topics. It is important to remember, however, that there is not one set of perfect guidelines for a school to follow. Each institution and district needs to figure out what its own cyberbullying issues are and how to address them.

Among the issues to assess are whether smartphones should be allowed in schools and whether access to certain Web sites should be blocked. Yatsuk’s district maintains filters for certain Web sites.

Schools might also want to regulate whether teachers can friend students on social media or otherwise engage with them. “This is a development stage…what kind of a relationship should [there] be between, say, an educational staff and students?” asks Yatsuk. He says Anne Arundel County is not encouraging social media relationships other than if schools are using sites that promote the educational process and provide for lesson material and homework material.

“There is no one size fits all on this,” says Aftab. She says another factor to consider is how much to involve students and parents in formulating regulations and programs. If, in that community, those groups indicate a desire to be more engaged, the schools may want to be more inclusive, says Aftab.

Schools might also consider asking parents to sign consent forms that give school officials the authority to discipline their children for cyberbullying, even if it occurs off campus. Having that written consent can be useful if the school’s actions are later challenged in court.

Communication. Whether or not parents were involved in formulating the policy, it’s important that they be educated about it once it is established. “They should read it, they should understand it. They should be somewhat familiar with the technology piece of it that’s going on,” says Melissa Straub, director of Without a Trace Investigations in Leonia, New Jersey.

In addition, “communication between law enforcement, the school, and the parents” is key, Straub says.

Training. Once policies are established, school resource officers, administrators, counselors, and others must be trained on what those policies are and what to do if an incident occurs. The Committee for Children’s program stresses three “Rs.” This includes teaching students to “recognize” what bullying is, because it is a special kind of victimization; how to “report” what is going on; and how to “refuse” the action when they can, either for themselves or for a peer.

Straub helps conduct training. Again, each school is different. Some schools are required by the district or state law to have a cyberbullying expert. Some specific training is often called for as well, such as for school resource officers who may have to handle the transition of shifting an investigation from the school over to the police.

Schools must also train both faculty and students in the procedures for reporting any cyberbullying incidents. And they have to do more than say what the policies are. They have to encourage participation.

“You lay out policies. You let the students know where to report things. You create an anonymous tip line or a little suggestion box the kids can put tips in when they see it. But they don’t want to be involved,” says Aftab. So you have to do more.

Another important issue training should address is what to report. In states like New Jersey, which Straub says has incredibly strict cyberbullying laws, there is sometimes a tendency to overreport. The lack of education on what is necessary to do and fear of being held liable for doing nothing leads to that problem, she says.

The same applies with regard to what level of response is applied when an incident does occur. They either overreact and suspend a student or take some other strong action even if they don’t legally have to or shouldn’t or “they underreact and tell the parents there’s nothing they can do,” says Aftab. She says both approaches are wrong.

Schools need to understand their options. For example, she says, even when there is no clear legal authority to mete out discipline in a case, such as one that occurs off campus, “there’s no reason why they can’t pull both sets of parents and the students in” and have them all talk about the issue with the guidance counselor.

Outreach
There are many school district and school-based programs that aim at preventing or putting a stop to cyberbullying by raising awareness. Anne Arundel County has a Digital Citizenship program, which teaches rules of good online behavior, including online etiquette, protecting private information, and dealing with bullying. Digital Citizenship lessons are conducted by teachers, mainly in social studies classes.

There are also programs developed by outside organizations. WiredSafety started the Teenangels program, which is an online safety ambassador program, using teens as the ambassadors.

Doces says that the Committee for Children’s cyberbullying prevention program stresses the collective power of a group of people. “We look at the research, and we find that when someone steps in, when someone has a friend, when someone has social support, they are less likely to be bullied or the bullying will stop quickly if a peer intervenes,” Doces says.

Another component of the outreach is educating students on what cyberbullying is rather than having them misunderstand it if someone is just mean once or twice. Bullying is persistent and includes threats.

Bullying is a serious problem, but the good news is that most children do not condone it, says Aftab, “The kids want to change this. They want to make a difference. They just need to know how. And they need somebody to give them permission and to be involved,” says Aftab.