Christa R. Haggai, Attorney-at-Law
Social Networking Sites Have Changed the Dynamic of School Bullying
The news is filled with stories of suicides of students who were bullied using text messages, twitter, facebook and other social networking websites. These story rose to the public conscious when Tyler Clementi, an 18-year-old Rutgers University student jumped off the George Washington Bridge between New Jersey and New York after his roommate allegedly filmed him having sex with another man. Then there was Seth Walsh, a 13-year-old California teen, hung himself in September 2010 after reportedly being bullied because he was gay. Then a few months ago, Jamey Rodemeyer, a 14-year-old boy from Williamsville, N.Y., took his life after years of bullying because of struggles with his sexuality. These are just a few of the many stories we have all heard over the last few years. These stories are very disturbing and have parents worried on how to protect their children. School bullying has changed since the advent of the internet and social networking sites. Furthermore every kid has a cell phone. This has many of us wondering how we can protect our children. And, what responsibilities do the public schools have to protect our children?
In 2006 an ABC reported on a 2004 survey which found that 43% of teens, grades 4 through 8, had experienced Cyberbullying in the past year. In 2004, facebook was just getting started and no one was tweeting. Text messaging, email, facebook and twitter have made bullying easier for young people. It is much easier to shoot off a text or post something on twitter than to say something hurtful or mean to someone else’s face. Currently, there are over 800 million active users on facebook. More than 250 million photos are added every day. What is more, of these 800 million users, more than 350 million access facebook through mobile devices such as cell phones. (https://www.facebook.com/press/info.php?statistics) Kids are access facebook daily while at school making post to facebook. It is no wonder that cyberbullying is on the rise. When it happens at school, what is the responsibility of the school district?
Recently, the Huffington Post posted an article highlighting a proposed change to the law in Tennessee, which would make exceptions to the cyberbulling law, allowing kids who have Christian beliefs or political views that it is not appropriate to be gay, to bully gay, lesbian, bisexual or transgender children. (http://www.huffingtonpost.com/2012/01/04/tennessee-anti-bullying-law-change-gays-religion-_n_1183915.html.) This proposed change in the law would allow the very type of discrimination and bullying that has caused recent suicides. In fact, in Tennessee a gay student took his own life after being bullying because of his sexuality just a month before the change. Clearly, legislators are not even aware of the gravity of this issue. As is pointed out in the Huffington Post article, this law would allow students “to hide their irrational biases behind an extreme religious belief.”
Schools Are Responsible to Protect Our Children
Recently, a court ordered the release of a confidential settlement in a suit brought by journalist in a school bullying case in Massachusetts. In this case, the school district paid the parents of Phoebe Prince $250,000.00 following their daughter’s suicide. In this case, the school district was fully aware of bullying of Phoebe from her parents and other students; yet they took no action to protect her. (http://abcnews.go.com/blogs/headlines/2011/12/phoebe-princes-parents-settled-school-district-lawsuit-for-225000/)
So what is a Los Angeles, California school required to do? A school can be held responsible to harm caused to a student when the risk of harm to the student is foreseeable and the activity causing the harm occurs on school campuses. There is a special relationship that arises between a student and the school, resulting in an affirmative duty on the part of the school to take reasonable steps to protect its students. Schools are responsible to impose reasonable supervision on students while on school property to regulate conduct and prevent dangerous practices which might lead to harm of a fellow student.
New Law in California Allows School to Expel or Suspend Students Who Cyberbully
Further, recently, in California, Gov. Brown signed AB 746 into law to add to Section 32261 of the Education Code, relating to pupils. This law defines bullying as one or more acts of sexual harassment, hate violence, or intentional harassment, threats, or intimidation, directed against school district personnel or pupils, committed by a pupil or group of pupils. Under existing law, bullying, including bullying committed by means of an electronic act, such as text messaging, is a ground on which suspension or expulsion may be based. This bill would specify that an electronic act for purposes of the act includes a post on a social network Internet website, such as facebook or twitter, which was not clear from the prior law.
When mean or hateful posts about a student are done during school hours or on school property, this means the school absolutely has the right to punish the offender by suspension or expulsion. If this is the case, when the school does not act, liability could arise for harm caused as a result of the cyberbullying. This begs the question… what is a foreseeable harm resulting from cyberbullying? The answer seems clear in light of the news stories we continuously hear and read about teen suicides occurring after cyber attacks by fellow students, particularly when these attacks go viral.
The effects on a child resulting from school bullying may not result in suicide in all cases by any stretch of the imagination. However, the psychological damage to a developing child’s self esteem is evident. California law imposes a duty upon school districts to carefully supervise students while they are on the school premises during the school day, and districts may be held liable for injuries caused by the failure to exercise such care. Public employees, including school teachers, principals and administrators, are liable for injury caused by their own acts or omissions to the same extent as a private person, and public entities, including school districts, are liable for injuries caused by acts or omissions of their employees within the scope of employment.
Due to the special relationship between a school district and its students and their families, there is an affirmative duty on the district to take all reasonable steps to protect its students. This duty is based in part on the compulsory nature of education. Since students spend most of their time in the classroom under the supervision of teachers, the burden to provide a safe and peaceful environment falls on their shoulders. As employees of a school district, public school teachers have a statutory duty to supervise their students in order to maintain this safe and welcoming environment. Teachers are required to “hold pupils to a strict account for their conduct on the way to and from school, on the playgrounds, or during recess,” and may impose reasonable necessary physical restraint in order to maintain a safe environment.
The “safe and welcoming environment” extends to areas outside the classroom as well. One of the most important areas that must be continually and conscientiously supervised is the outside the classroom, where students who have been confined in a chair for hours are suddenly free to move about, and may interact in aggressive ways. Courts have noted that such supervision is required so that discipline may be maintained and precisely because of the commonly known tendency of students to engage in aggressive and impulsive behavior which exposes them and their peers to the risk of serious physical harm. If a teacher is not available, the duty falls to the site administrator present at the time (including the principal, vice principal, or lead teacher), to assure that students are supervised and that playground activities are safe.
The standard of care imposed upon school district employees is that degree of care “which a person of ordinary prudence, charged with (comparable) duties, would exercise under the same circumstances.” Either a total lack of supervision or ineffective supervision may constitute a lack of ordinary care. Thus, it is not enough to be merely present; care must be taken to foresee and avoid any situation that could be potentially dangerous, even if the precise injury has never occurred before.
At recesses and breaks students are most likely to engage in prohibited activities, requiring extra vigilance on the part of educators. For instance in one California case, a 16-year-old high school student suffered fatal injuries while engaging in “slap-boxing,” a prohibited activity, in a school gym during lunch hour. The California Supreme Court cited evidence of negligence by district employees, including failure by the responsible department head to develop a comprehensive schedule of supervising assignments and instruct his subordinates as to what was expected of them while they were supervising. The Court also noted that the instructor ostensibly on duty at the time of the accident had remained inside an office during the entire lunch period, eating, talking on the phone and preparing future class assignments.
Many of the reported California cases have not necessarily predicted how students’ behavior must be monitored since facebook, twitter, email and text messaging. If it is foreseeable that a fatal injury may occur while playing prohibited sports, it is certainly foreseeable that a student might be emotionally traumatized to the point of suicidal thoughts or action as a result of consistent emotional trauma caused by school bullying occurring virally over the internet.
If your child is a victim of school bullying, please make sure that you report this to your child’s teachers and/or school administrators. Monitor your child’s social networking accounts and cell phone text messaging. Make sure you understand what they are experiencing on the internet. Further, if your child is a victim of cyberbullying which is being ignored by the school administrators and/or teachers, it is important to have your child seen by a mental health professional. Further, it is important to speak with an experienced lawyer. This problem can only be resolved if school districts, teachers, principals and administrators are held accountable for their negligent conduct in supervising students. You have entrusted your child to their care. They must protect them while they are at school or doing a school related activity.
Call us at the Haggai Law Firm. One of our experienced attorneys can talk to you about your child’s experience. We can help you protect your child from further harm.