Anti-Bullying Policy Takes a Village

Examining J.C. v. Beverly Hills Unified School District 711 F. Supp. 2D 1094: Balancing parental responsibility & school duty in bullying and harassment rules

Does social media bullying raise to the level of “substantial disruption;” in Tinker v. Des Moines, should parents be held responsible; if so how? [6][1][7]

DISCLAIMER: This article is written for educational purposes only, it does not construe legal, financial, nor investment advice. Views are my own. This article was adapted from a paper written for my MLAW course Bullying & Harassment Law.

Secret Weapon: Recruiting Parents to Stop Bullying

Cyberbullying is a pervasive problem that is vastly misunderstood. In this article, elements of anti-bullying policy are addressed. First, the problem is generally explored from the lens of policy. Then, the case within the New York Times, JC V. Beverly Hills Unified School District (2010), is examined to understand the schools limitations with respect the students First Amendment rights according to case law. [5] Finally, the elements of proactive policy are used to evaluate the parental actions of CC and JC’s parents and offer both take aways and other factors to consider as we move from an analog to a digital world.

In response to the New York Times article, Online Bullies Pull Schools Into the Fray, which discusses appropriate behavior and liability surrounding cyberbullying, we must hold parents responsible for these behaviors just as we hold schools accountable.[1] However, in schools this responsibility looks different than the accountability of the child/student, in that a parent’s responsibility parallels that of the schools. When a child is found to have bullied another through the school policy of due process as outlined in the student handbook, said parent should be mandated to an educational session on appropriate behavior and the imminent dangers of cyberbullying. [27][13]

The intervention should not be an arbitrary process, but rather, a simple expectation, clearly found in the school handbook, and should be offered as if bullying was a topic under response to intervention (RTI). Schools can use this as a way to strongly “suggest” the severity of Article III, akin to ‘social standing.’ [13][14][15] The rationale of why we must involve parents in matters such as this is multifaceted. First, it is important to work with parents to achieve meaningful change, or change a culture of bullying. Second, it is important for the parent to realize the pervasive problem of bullying and harassment, before these behaviors become criminal, or worse, deadly. [4][5][13]

New Title IX Amplifies 9X

In the middle of the Pandemic, the U.S. Dept. of Education released new regulations that severely change previous law and policy. Schools are an Institution of learning, but when we punish versus re-teach, we lose this element, and criminalize our youth. Stated another way, most parents would likely rather have their students make mistakes when they can still guide and educate, this is why we do not send children to prison. The School to Prison Pipeline muddies these waters. Beyond the scope here, but discussed in Comments to Chicago Police Department in Response to the Consent Order. [15]

The need to educate becomes exceedingly important with respect to the new Title IX regulations, which all but turn schools, including K-12, into mini Courtrooms with respect to sexual harassment, promulgated with the force of law from the U.S. Dept. of Education, and currently being litigated via a multi-state suit. [10][11] Of note is the removal of protections for students within the LGBTQ+ population, one of the student communities who remains at greatest risk of adversity in bullying and harassment, sadly, this does not only come from other students, students have relayed this comes from teachers and parents as well. [12] These factors point to the need for a societal change. Finally, it is important for parents to link the idea of damages and defamation to these behaviors. [16][19] If these behaviors are repetitive, they may rise to the level of same. [19]

Yet, as always in education, it is fundamental, that the environment of parental liability not be addressed with blame, but rather enlisting the help of a team member. [17] There is little case precedent on this and Courts have not created a consistent application. [22] Therefore, while one could navigate the expensive litigation process, it would be more beneficial to resolve with expediency. Days can feel like years to a humiliated student.[4] Further, the need for appropriate usage of social media is omnipresent in our digitalized world. In sum, the return on investment when education is the focus, versus punishment and adversarial Court processes will likely be larger than any arbitrary attempt to hold parents accountable for their child’s behaviors through lengthy litigation and missing the key teachable moment. While awaiting adjudication. How many more students may be collateral damage?[21]

Ideation of What Parental Education Looks Like in Bullying Responsibility

Stronger than the “general” parental awareness programs and more impactful than a module or webinar with a simple assessment, the education session may be as simple as attending a group study on 13 Reasons Why.[4] We do not need a “Bueller” class. We need a quick remedy to propel change. [23] Where the child, parent, or child and parent are led in an exploration of the dangers of bullying, the ramifications of defamation, and the impact on the student record. In short, schools must use proactive policy to create sustainable change immediately. Our students’ lives are too important watch this impending carnage as unaddressed behaviors are allowed, and students’ lives are forever changed, and or tragically ended.

Assuming that parents are held accountable, in a ‘not yet,’ educational manner, it would only be if they (1.) attempted to say their child’s action did not rise to that level, despite the school’s due process noting otherwise. (2.) If parents are in agreement that the behavior was bullying and will address, then the need is not present to attend the educational session, though perhaps it may be of benefit to them to work through a text. In the event this is not an involved parent, effort would need to be on the student completing this with the help of another adult or mentor in society. Perhaps, this could be modeled off of the mentorship of Big Brother’s Big Sisters.[25] In the event the parent knows that their child is bullying another child, the consequence would mirror that above. Re-education is sought. No exception, no excuse.

My rationale for this intervention/proactive policy is found in the father’s statements in J.C. v. Beverly Hills Unified School District, CV 08–03824 SVW (CWx) (C.D. Cal. 2010), which I argue shows the critical issue of disconnect, akin to a “not in my backyard,” mentality. Further discussion of the facts are found in the following section of this article.

despite the father “not condon[ing] cyberbullying…he describes [his daughter’s video as merely] “‘relentlessly juvenile.”’ [1]

In short denying that this case, where 90 views of the defamatory video was evidence of cyberbullying. [5]

Except taken from the New York Times article [1]

My ideation is only a rough outline on elements needed in a hypothetical policy, which places human respect as an essentially “critical competency.” When deficiency exists, re-teaching is needed, there is not allocation for non-proficiency, just as in the DuFours Professional Learning Communities views of academic competencies. [24] If the events of the last weeks, which surrounded the tragic death of George Floyd, have taught us anything, it is that every life matters, regardless of race, sexual orientation, religion, or disability. We must instill this level of humanity in every student, because our policy makers and judiciary have struggled to do same within the constraints of their authority. [26][15][28][29][30][31]

If not us who,

if not now, when?

https://cyberbullying.org/summary-of-our-cyberbullying-research

J.C. v. Beverly Hills Unified School District (2010)

As evident J.C. v. Beverly Hills Unified School District, CV 08–03824 SVW (CWx) (C.D. Cal. 2010), a student, JC, recorded a cruel video directed at one student and placed it on Youtube for all to see. While the court has been somewhat inconsistent towards cyberbullying, in this case, the court relied heavily on the “materially substantial disruption” test of Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503 (1969). [6] Where the Supreme Court famously held,

“It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”

The Court reasoned noting several other cases as evidence to guide the application of Tinker. The three largest cases are summarized below as applied to JC. This article is provided for educational purposes, it is not legal advice, but rather serves to illustrate what must be considered deferential in when drafting policy to balance the First Amendment rights of students against the need of schools to educate.

In JC, the issue of law the Court was called to address was whether or not the School wrongfully violated her First Amendment rights under 42 USC §1983.

Holding: The Court determined that despite’s JC’s mean comments, she has a First Amendment right. The Court ordered the District to pay over $107,000 in legal fees, but the School Administration was offered Qualified Immunity. [5]

Facts of the Case

The facts of the case are as follows: On the afternoon of Tuesday, May 27, 2008, after school was dismissed, JC and friends “gathered at a local restaurant,” where she recorded a 4 minute and 30 second video of “her friends talking.” The video was not recorded with any school resource, and was uploaded at her home later in the evening. J.C. then shared this with several students including the victim, C.C.,

“The video shows Plaintiff’s friends talking about a classmate of theirs, C.C….One of Plaintiff’s friends,

“R.S., calls C.C. a ‘slut,’ says that C.C. is ‘spoiled,’ talks about “boners,” and uses profanity during the recording…

R.S. also says that C.C. is ‘the ugliest piece of shit I’ve ever seen in my whole life…’

During the video, J.C. is heard encouraging R.S. to continue to talk about C.C., telling her to “continue with the Carina rant…“ [5]

“In the evening on the same day, [JC] posted the video on the website ‘YouTube’ from her home computer…a publicly-available website where persons can post video clips for viewing by the general public. While at home that evening, Plaintiff contacted 5 to 10 students from the School and told them to look at the video on YouTube. She also contacted C.C. and informed her of the video.” [JC] estimates that about 15 people saw the video the night it was posted. The video itself received 90 “hits” on the evening of May 27, 2008, many from [JC] herself…”

On May 28, 2008, at the start of the school day, JC overheard 10 students discussing the video on campus. …C.C. was very upset about the video and came to the School with her mother on the morning of May 28, 2008 so they could make the School aware of the video. C.C. spoke with school counselor Hart about the video. She was crying and told Hart that she did not want to go to class…

C.C. said she faced ‘humiliation’ and had ‘hurt feelings…’ Hart spent roughly 20–25 minutes counseling C.C. and convincing her to go to class.

C.C. did return to class, and the record indicates that she likely missed only part of a single class that morning…”

Reasoning: Substantial Disruption: Tinker’s Balancing Test (1969)

The legal test used to determine whether the First Amendment rights of students have been violated is known as the, “substantial disruption” test. Tinker (1969)[6] This dates back to the Vietnam War where students wore black armbands in solidarity to protest the war. The Supreme Court opined that so long as there was not “material substantial disruption,” students retained their First Amendment rights. [6] In subsequent cases, even the mechanism by which the material may come to school and “disrupt,” e.g., email, newsprint, or posters was examined. We see this same reasoning in JC, where the Court opined that CC the victim, had not missed enough class, nor had the other accomplices, nor even the Administration to justify, “substantial disruption.” Further, the very site the video was uploaded to, Youtube, was blocked by the school. Therefore, the lack of a vehicle for disruption coupled with no “substantial disruption,” tips the scale in favor of Government overreach in JC’s suspension. [5]

“School administrators then investigated the making of the video. Lue-Sang viewed the video while on the school campus…She called Plaintiff to the administrative office to write a statement about the video. Lue-Sang and Hart also demanded that Plaintiff delete the video from YouTube, and from her home computer….School administrators questioned the other students in the video, including R.S., V.G., and A.B., and asked each of them to make a written statement about the video…R.S.’s father came to the School and watched the video with R.S. on campus…He then took R.S. home for the rest of the day….” JC (2010)[5]

Students Shall be Afforded Due Process, Goss v. Lopez (1975)

These “due process,” procedures should outlined in the school’s handbook on, which is required by law as noted in Goss v. Lopez (1975)[29] Generally, this consists de minimus of notice and opportunity for a hearing, though the formality surrounding same falls to academic deference. Id.

“Lue-Sang and Hart also contacted principal Warren regarding the video. Warren then contacted Amy Lambert, the Director of Pupil Personnel for the District, regarding whether the School could take disciplinary action against [JC] for posting the video on the Internet. Lambert discussed the situation with attorneys and advised Warren that Plaintiff could be suspended.”

“[JC] was suspended from school for two days. No disciplinary action was taken against the other students in the video.”

“[JC] had a prior history of videotaping teachers at the School. In April 2008, Plaintiff was suspended for secretly videotaping her teachers, and was told not to make further videotapes on campus. During the investigation about the YouTube video on May 28, 2008, school administrators also discovered another video posted by Plaintiff on YouTube of two friends talking on campus. It is unclear when this video was recorded or posted on the Internet, but it clearly was made while J.C. was at School.These videos are not of the same variety of the YouTube video that is the subject of this lawsuit.”

Hazelwood (1988) & Fraser (1986): Location Guides Authority

In two cases, location was largely found to be a relevant factor whether or not a school may censor content, the guidelines of such were clearly limited to “in school.” In Hazelwood School District v. Kuhlmeier, (1988), the Court held that the school could censor student editorials on both teenage pregnancy and divorce written in the school newspaper so long as it was tied to “pedological purposes,” due to “imprimatur” towards the Missouri school.[7]

Adding onto Hazelwood, in Bethel School Dist. №403 v. Fraser (1986), the Court held that a school was allowed to suspend a student running for elected office who used “lewd, vulgar, and ‘patently offensive,’ Language that is not protected by the First Amendment.[9] The Court reasoned since the speech was,“during school hours,” in a crowd of about 600 students, and further illustrated, “elaborate, graphic, and explicit sexual metaphor,” the student had violated school rules, which “prohibit conduct which materially and substantially interferes with the educational process . . . including the use of obscene, profane language or gestures.”Id. Noting the limitations the Court opined, schools have a duty to,

“…instill ‘fundamental values of `habits and manners of civility’ essential to a democratic society’ and to teach students ‘the boundaries of socially appropriate behavior’…Thus, while Matthew Fraser could have given his salacious speech outside of the school and could not have been ‘penalized simply because government officials considered his language inappropriate,’the same is not true of speech occurring within the school. Id. at 688 (Blackmun, J. concurring);” [5]

Morse: Time Determines Authority (2007) BONG HiTS Jesus

In Morse v. Frederick, 551 U.S. 393 (2007), A student was denied his First Amendment rights during an off campus, school event opining, one, “cannot stand in the midst of his fellow students, during school hours, at a school-sanctioned activity and claim he is not in school,” it was this reasoning that permitted the School to have jurisdiction over Freedom of Speech, as it relates to a “governmental interest in stopping student drug abuse” and concluded that schools may restrict student expression at a school-sponsored event that they reasonably regard as promoting illegal drug use. [8]

“In Morse, a student attending the Olympic Torch Relay that passed on the street in front of his high school unfurled a 14-foot banner that read ‘BONG HiTS 4 JESUS.’ The school principal asked that the student take the banner down, and he refused. The principal confiscated the banner and suspended the student. Id.”

Analysis & Conclusion: School Does Not Possess Authority

In JC the recording occurred off campus, on private equipment, and uploaded and sent after school hours. Further, again, YouTube was not accessible to students during school hours.

Students at the School cannot access YouTube or other social networking websites on the School’s computers, as those websites are blocked by means of a filter…Certain cell phones can access the Internet, including the YouTube website, and allow the user to view videos…the School is not aware of how many students have cell phones with that capability….Students at the School are prohibited from using their cell phones on campus in any manner…There is no evidence that any student viewed the YouTube video on his or her cell phone while at School. The only instances the video was viewed on campus, to the parties’ knowledge, were during the school administrator’s investigation of the video.[5]

Without substantial disruption as outlined above, and applying Hazelwood, no imprimatur was found “in school;” applying Frazer, the Court found that, while potentially lewd, Jus. Blackburn specifically carved out “in school,” as the means by which the School was extended authority. Finally, in comparing to Morse, the video was taken at a school-sponsored activity, nor did it inspire illicit drug use. Therefore in JC, the School did not meet any of the tests to assert their authority.

Policy Implications: Proactive Education RE: JC

This scenario is hardly unusual within the reality of schools. In JC, several parties failed to act proactively, which ultimately highlight that parents as well as students need education so that they may set proper examples for their children to follow, and use teachable moments to provide a unified front of respect. Let’s look at this from both parents perspectives: As a parent of CC, I would not have asked for the video to be left up, only so I may present it to the school. By doing such, I am amplifying the issue, (allowing more people to view) and modeling a response that could lead to victimization. Instead a proactive response is to screen record it, and contact the other party stating in no uncertain terms that the video was cruel and requesting it be taken down immediately. Currently, there is even a Youtube feature where one can report such. As JC’s parent, I would have been more than receptive to learn that my child had behaved in a manner that if as an adult, may jeopardize employment or depending on the nature, incur criminal charges or defamation, I would have sought to support the school, and used the school handbook of policies and procedures as my guide. Instead this parent felt that litigation was the answer.

A Word on Data, Privacy, & Surveillance

Of future interest, yet not elaborated further here, is that several other cases used previous data points to answer the pertinent questions raised in Tinker, Morse, Hazelwood, and/or Faser. The unequal reliance on same could intensify as schools lean more heavily on surveillance technology and ubiquitous student data records. E.g., JC had been suspended prior within the year for video recording teachers and students without permission and placing these on YouTube. [5] In JC, this was determined to be a non sequitur as these were unrelated to speech, but rather, “conduct.” In other cases prior behaviors seemingly unrelated were considered.

Cyberbullying: Parents as Partners

Again, the solution lies in parents and schools working together to mitigate, educate, and prevent. Education differs from punishment. I strongly urge any school to have a clearly articulated policy on cyberbullying including clear decisive actions that the school will and will not take. These actions should illustrate suggested consequences as a function of severity and incorporate the laws of the jurisdiction when possible. Clear expectation management is key to creating, facilitating, and maintaining a culture of respect. It is unclear if this was or was not done within Beverly Hills Unified School District. Nonetheless, parents are an asset to anti-bullying initiatives, they must be are educated and leveraged as key partners in cyberbullying initiatives. The School over reach cost over $107K. Per the New York Times

“Mr. Cohen hopes his daughter learns…about the limits on governmental intrusion…But Mr. Cohen keeps it posted, he said ‘as a public service,’ so viewers can see ‘what kids get suspended for in Beverly Hills.’”

I have my own views on this statement, I will leave them for another post, they are unfavorable. I will close with this, while he chooses to leave the video on display, it is unknown how many students may view and suffer in silence. Perhaps he has reconsidered, as he does not “condone” cyberbullying. In sum, I respect the lesson he taught, but not the manner in which he arrived there, i.e., the ends do not justify the means.

Resources Consulted

[1] Online Bullies Pull Schools Into the Fray (2010) https://t.co/SpZ3et2ImP?amp=1

[2] https://twitter.com/LulaEDUcate/status/1269823836817707009?s=20; https://t.co/Fkk08ZWLPP?amp=1

[3] https://twitter.com/LulaEDUcate/status/1262964129591185408?s=20

[4] https://www.amazon.com/Thirteen-Reasons-Why-Jay-Asher-audiobook/dp/B000XSAY00

[5] J.C. v. Beverly Hills Unified School District, CV 08–03824 SVW (CWx) (C.D. Cal. 2010) https://casetext.com/case/jc-v-beverly-hills-unified-school-district

[6] Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503 (1969) https://casetext.com/case/tinker-v-des-moines-independent-community-school-district

[7]Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988) https://casetext.com/case/hazelwood-school-district-v-kuhlmeier

[8] Morse v. Frederick, 551 U.S. 393 (2007) https://casetext.com/case/morse-v-frederick

[9] Bethel School Dist. №403 v. Fraser, 478 U.S. 675 (1986) https://casetext.com/case/bethel-school-district-no-403-v-fraser#p684

[10] https://www.scribd.com/document/464910836/Titleix-Overview

[11]https://www.scribd.com/document/464929205/Title-i-x-Complaint

[12]https://www.cdc.gov/lgbthealth/youth.htm

[13]https://www.cbsd.org/site/handlers/filedownload.ashx?moduleinstanceid=55435&dataid=135741&FileName=Cyberbullying%20Article%20Example.pdf

[14]https://cyberbullying.org/summary-of-our-cyberbullying-research

[15] https://medium.com/@lulaeducate/response-to-the-chicago-police-department-school-resource-officer-policy-comment-period-238f205be301

[16]https://www.jdsupra.com/legalnews/all-rise-article-iii-standing-continues-72375/

[17]https://www.pta.org/home/family-resources/safety/Digital-Safety/Parents-Can-Prevent-Cyberbullying

[18]https://www.rasmussen.edu/degrees/justice-studies/blog/is-cyberbullying-illegal/

[19]https://www.publicjustice.net/wp-content/uploads/2016/02/2015-How-to-Evaluate-a-School-Bullying-Case.pdf

[20]https://criminal.findlaw.com/criminal-charges/cyber-bullying.html

[21]https://en.wikipedia.org/wiki/List_of_suicides_that_have_been_attributed_to_bullying

[22]https://www.stompoutbullying.org/get-help/about-bullying-and-cyberbullying/when-bullying-and-cyberbullying-become-crime/

[23]https://www.youtube.com/watch?v=f4zyjLyBp64

[24]https://www.edglossary.org/professional-learning-community/

[25]https://patch.com/new-york/newcity/big-brothers-big-sisters-cyberbullying-prevention-program; https://www.bbbsjc.org/2020/01/10/how-to-recognize-address-cyberbullying/

[26]https://www.nytimes.com/2020/05/31/us/george-floyd-investigation.html

[27]https://www.aclu.org/legal-document/open-letter-schools-about-addressing-anti-lgbt-bullying

[28]https://aplatformforgood.org/how-to-talk-to-your-kids-about-bullying/

[29] Goss v. Lopez, 419 U.S. 565 (1975) https://casetext.com/case/goss-v-lopez-8212-898?

[30] https://www.wrightslaw.com/info/harassment.index.htm

[31]https://cyberbullying.org/religious-based-bullying

Dir. of Presentations, Athena.Trade|Consultant| |Educator|ADD/ADHD Coach|M.Ed. |Writer|MLAW student|Founder of MinED & Lula & CO|Mom (12yo ESports Gamer/Writer)