The American Association For Justice; September 2015

BULLYING IN A DIGITAL WORLD

William S. Friedlander

When you represent a child who has been a victim of cyberbullying or sexting, you will face a long road ahead, from variances in state laws, government immunity defenses, and First Amendment protection. Be ready to dig in and get creative.

The story is all too common: Your client’s 13-year-old daughter “Amanda”—who has some medical and mental disabilities—was pressured to text a partially nude selfie to her boyfriend. He sent it to his high school athlete friends, who used it in an online and locker room blackmail competition, in which competitors threatened to post a girl’s picture unless more were sent. Soon groups of students were penly sharing these photos, often in plain view or with the knowing nods of teachers and administrators.

The principal, who ignored a school policy requiring prompt investigation of bullying complaints, threatened to have Amanda arrested for creating a disturbance and distributing child pornography. Amanda’s complaints of online shunning and in-school assault—and her parents’ repeated requests for school intervention and school transfer—were likewise ignored. Amanda’s medical problems flared up; she became depressed, hurt herself, and missed a year of school. It turns out, there have been other victims of the athletes’ sexting competition at school. What do you do?[1]

Bringing a cyberbullying or sexting lawsuit is not for the faint of heart. It will involve many challenges at the pleading and proof stages and finding ways around the confines of federal and state laws. Here is what to be aware of before you take one of these cases.

One study found that, like Amanda, about 25 percent of American teens have been the victims of “cyberbullying,” or “willful and repeated harm inflicted through the use of computers, cell phones, and other electronic devices[2].” It’s an increasing problem in a nation where 95 percent of teens are online and 74 percent access the Internet on mobile devices unsupervised by parents or adult authorities[3]. Postings can be anonymous, falsely attributed, and quickly go viral; new apps emerge almost daily; and the skills of young technology users readily outpace enforcement mechanisms[4].

Amanda also was a victim of “sexting,” the exchange of sexually explicit electronic messages, with or without photographs. In fact, new apps such as Meerkat and Periscope allow Twitter users to live-tream video that recipients can share with others, raising the bar for sexting content[5].

A 2014 Drexel University survey found that about 54 percent of college students had engaged in the electronic transmission of sexually explicit material as teens, even though 71 percent of them reported knowing that others had experienced negative consequences from sexts gone awry[6]. Survey respondents generally agreed that sexting and cyberbullying can be more harmful than in-person bullying[7].

Legislation

States have recognized that cyberbullying and related conduct can hurt victims, perpetrators, families, and schools, and have adopted responsive legislation—often as a component or extension of antibullying legislation. As of July 2015, every state and the District of Columbia has an antibullying statute, with 48 specifically addressing cyberbullying or electronic harassment as a form of bullying (Alaska and Wisconsin are the exceptions[8]). Sixteen of them impose criminal sanctions for cyberbullying. Every state but Montana requires school authorities to develop antibullying policies, and 44 states authorize schools to sanction bullying[9].

Fourteen states explicitly allow schools to punish or sanction students who engage in off-campus electronic postings that create a hostile environment, infringe on a student’s rights at school, or cause or threaten substantial disruption of the educational process or orderly operation of a school[10]. Notably, there is no federal antibullying or cyberbullying statute[11].

Some states also have passed legislation addressing sexting. As of January, 20 states have criminalized or penalized the transmission of sexually explicit images or text messages involving minors; in 18 states, recipients of sexts who do not delete or report the offensive material also can be punished. Penalties range from education to felony conviction. Beyond the scope of the legislation, schools are encouraged to develop policies for the prohibition of sexting, investigation protocols, and enhanced penalties for sextbased bullying and images obtained by threat[12].

Courts have justified the off-campus reach of schools under antibullying statutes and anti-sexting advocacy based on Tinker v. Des Moines Independent Community School District, a First Amendment challenge to school disciplinary action. In Tinker, the U.S. Supreme Court held that school authorities could limit student speech “to avoid interference with school discipline or the rights of others[13].” Although Tinker involved on-campus speech (wearing protest armbands), later cases have applied Tinker’s “substantial interference” test to uphold student discipline for off-campus electronic postings that materially and substantially interfere with the requirements of appropriate discipline in the operation of the school and collide with the rights of others.

For example, in Kowalski v. Berkeley County Schools, the Fourth Circuit held that a student was appropriately disciplined—despite a First Amendment challenge—for creating a website shaming a fellow student. The court concluded that the website was a targeted attack foreseeably interfering with the victim’s educational rights and school learning environment[14]. But the First Amendment line is a fine one: Derogatory or threatening online posts may be deemed protected speech if, for example, they are patently incredible or have only a remote nexus to a school community or learning environment[15].

Cyberbullying or Sexting Lawsuits Against Schools

Before filing a cyberbullying or sexting suit, assess the possible claims you can bring against the school, its personnel, and the school district.

Examine state law. Familiarity with relevant state statutes and enforcement schemes is a starting point. Does your state’s antibullying or sexting statute—or criminal law governing criminal harassment or, in the case of sexting, criminal use of a communications device—create criminal sanctions for the offensive behavior? A criminal judgment against a perpetrator may, at a minimum, provide your client with restitution and may furnish proof in a subsequent civil action against a school or the perpetrator’s family[16]. However, a growing body of case law has challenged the applicability, constitutionality, or appropriateness of criminal sanctions for teenage sexting indiscretions[17].

More likely, your state’s antibullying statute will require schools or districts to adopt bullying or cyberbullying policies. A review of these statutes will help determine whether you can assert a cause of action against the school. Here are some issues to look out for: Do statutory standards or resulting school policies address off-campus conduct having an on-campus nexus? Is there a reporting or investigation protocol? Is there a penalty or appeal process when schools fail to comply with the requirements? Most state antibullying statutes do not allow a private right of action for a school’s noncompliance, but many explicitly preserve a victim’s right to pursue recourse under other statutory provisions, which might include civil rights claims, negligence claims, or recovery using criminal statutes (such as harassment) as standards of care or common law[18].

Negligence claims. Typically, you will assert negligence claims against the school and school district in these cases. Some state courts have reviewed statutory requirements to determine the element of duty or the standard of care in a negligence or state statutory action against the school or its personnel. For example, the New Jersey Supreme Court held that the state’s antibullying statute imposes a duty of reasonable response to student bullying complaints, which is actionable under state discrimination law claims against the school district[19]. Additional state-law negligence claims may include negligent supervision, negligent hiring or training, and negligent infliction of emotional distress[20].

A common drawback to state negligence claims is that the defendants argue they are protected from liability by governmental immunity. These arguments often hinge on the ministerial or discretionary nature of the school’s duties and defaults, whether the school’s actions were intentional, the nature of the injuries alleged, and even the availability of insurance coverage—and courts have been receptive[21].

Another stumbling block may be state notice of claim requirements[22]. Making claims based on state torts, other than negligence, may obviate some of these defenses. For instance, claims against schools based on student bullying and cyberbullying often include counts of intentional infliction of emotional distress, outrage, and, occasionally, defamation[23]. However, few cases of outrage survive motions to dismiss because courts have found that school conduct is rarely outrageous enough to shock the conscience, a common liability standard[24].

Other state law claims. State law may also give rise to constitutional tort or state civil rights claims. But read the applicable state law carefully; sometimes schools, school conduct, and cyber conduct are covered under the statute, and other times they are not. Also look for potential defenses in the statutes, including government immunities, notice requirements, priority for administrative proceedings, and deference to overlapping federal claims that may defeat or complicate state civil rights litigation[25].

Federal civil rights claims. Given the challenges of establishing state claims, cyberbullying claims against school districts often have more success when they are based on violations of federal civil rights laws. These include—as in Amanda’s case—42 U.S.C. §1983 (due process or equal protection); Title IX of the Education Amendments of 1972 (gender-based harassment[26]); Title VI of the Civil Rights Act of 1964 (race or nationality-based harassment)[27]; and Title II of the Americans with Disabilities Act of 1990 (ADA) and Section 504 of the Rehabilitation Act of 1973 (disability-based harassment or deprivation[28]). The various elements and nuances of litigating under each statute are beyond the scope of this article, but the following are some general observations and cautions.

Substantive due process claims for student-on-student bullying under §1983 most often fail because most complaints rest on school indifference to bullying, not on the schools’ affirmative acts or specific undertakings to protect its students[29]. In addition, §1983 claims against a district, rather than against individual administrators, require plaintiffs to show that district policy or pervasive custom is the “moving force” behind a constitutional injury under Monell v. Department of Social Services of the City of New York.[30] Plaintiffs have met this standard by alleging the school district ‘failed to train’ staff to address egregious race- or gender-based bullying[31]. Unfortunately, the defense of qualified immunity often protects defendants in these cases.[32] Nonetheless, some recent cases against school districts have succeeded on this failure-to-train theory.

Equal protection claims under §1983 for cyberbullying and sexting have fared somewhat better. Bullying based on race, gender, sexual orientation, religion, or even disability may ground such a claim, although it may be difficult for the victim to prove that membership in a protected class, or even a “class of one,” led to school authorities engaging in differential treatment or intentional discrimination.[33] In Amanda’s case, however, a history of school action favoring male athletes over female victims might suffice to establish differential treatment and might also meet the Monell standard for district liability[34].

Title IX claims can only be brought against the municipal actor, not individuals. You must satisfy the elements the Supreme Court laid out in Davis v. Monroe County Board of Education: Gender-based harassment, sufficiently pervasive to create a hostile environment, was brought to the actual notice of the school authorities, who responded with deliberate indifference[35]. Likewise, for race- or nationality-based harassment claims under Title VI, the plaintiff must show severe discriminatory harassment, actual knowledge, and deliberate indifference[36]. In both instances, off-campus conduct may allow claims against the school or district where the Tinker test of “substantial interference” is met[37].

Subject also to the Tinker test, Title II of the ADA and §504 of the Rehabilitation Act can allow for recovery for disability-based harassment based on the same standards when an individual qualified for participation in a public or federally financed program is “denied the benefits of” or “subject to discrimination” in the program[38].

Alternative Remedies

Challenges of pleading and proof abound in sexting, cyberbullying, and bullying cases against school authorities. Unfortunately, alternative remedies such as suits against perpetrators and their parents, or against Internet or phone service providers, also pose high hurdles. Common state-law claims against cyberbullies and their parents might include defamation, intentional infliction of emotional distress, negligent supervision, or negligent use of a dangerous instrumentality[39].

However, many states have statutory parental-responsibility exemptions, parental insurance coverage is likely to exclude recovery for intentional or criminal actions, and defamation claims are difficult to prove and may engender anti-SLAPP litigation[40]. State and federal statutory defenses protect most Internet and phone service providers and carriers from liability for offensive content[41]. Service providers, however, may voluntarily respond to requests or demands that offensive posts be removed.[42]

While there are no easy, global remedies for the harmful and increasingly common problems of cyberbullying and sexting, attentive, creative lawyering can vindicate victims’ rights and reputations. In Amanda’s case, for example, the school district ultimately agreed to settle with her and two other victims after months of public exposure revealed a school district immersed in a culture of sexism and administrative inaction. Other notorious sexting cases have also been settled or resulted in a plaintiff’s verdict—although, sometimes, tragically only after the young victim has committed suicide[43]. Hopefully, school authorities will draw caution from these cases and take their antibullying mandates seriously so that cyberbullying cases will not routinely show up as front page news or talk show fodder.

_______________________________________

William S. Friedlander is a partner at Friedlander & Friedlander in Ithaca, N.Y. He can be reached at wsf@friedlanderlaw.com.

Notes

1. Sample facts drawn from Harrison v. Clatskanie Sch. Dist. #6J, No. 3:13-cv-01847-ST (D. Or. filed Dec. 5, 2013), http://cdn-static.wildabouttrial.com/wp-content/uploads/2013/12/First-Amended-Amended- Federal-Complaint-r.pdf; see also School Settles ‘Sextortion’ Suit After Allegations Boys Pressured Girls for Nude Photos, FoxNews.com (Apr. 12, 2015), http://tinyurl.com/qf77old.

2. Sameer Hinduja & Justin W. Patchin, Cyberbullying Fact Sheet: Identification, Prevention, and Response, Cyberbullying Research Ctr. (Oct. 2014), http://cyberbullying.us/Cyberbullying- Identification-Prevention-Response.pdf.

3. Id. at 3; see also T.K. v. New York City Dep’t of Educ., 779 F. Supp. 2d 289, 297 (E.D.N.Y. 2011).

4. T.K., 779 F. Supp. 2d at 300.

5. See Laura Sydell, Live Video Apps Like Periscope Make Life Even Less Private, All Tech Considered, NPR (May 26, 2015), www.npr.org/sections/alltechconsidered/2015/05/26/406228549/with-live-videoapps-like-periscope-life-becomes-even-less-private; Tajha Chappellet-Lanier, The App Of The Moment: Meerkat Tests Our Desire To Share Live Video, All Tech Considered, NPR (Mar. 11, 2015), www.npr.org/sections/alltechconsidered/2015/03/11/392116744/the-app-of-the-moment-meerkattests-our-desire-o-share-live-videol.

6. Heidi Strohmaier et al., Youth Sexting: Prevalence Rates, Driving Motivations, and the Deterrent Effect of Legal Consequences, 11 Sexuality Res. & Soc. Policy 245–55, June 2014, http://link.springer.com/article/ 10.1007/s13178-014-0162-9.

7. Id.; see also Teen Online & Wireless Safety Survey, Cyberbullying, Sexting, and Parental Controls, Cox Commc’ns & the Nat’l Ctr. for Missing & Exploited Children (May 2009), http://tinyurl.com/nuxhszt.

8. Sameer Hinduja & Justin W. Patchin, State Cyberbullying Laws: A Brief Review of State Cyberbullying Laws and Policies, Cyberbullying Research Ctr. (July 2010), updated July 2015, www.cyberbullying.us/Bullying-and-cyberbullying-Laws.pdf.

9. Id.

10. Id.; see also Policies & Laws, stopbullying.gov, www.stopbullying.gov/laws/index.html; Victoria Stuart- Cassel et al., Analysis of State Bullying Laws and Policies, U.S. Dep’t of Educ. (2011), www2.ed.gov/rschstat/eval/bullying/state-bullying-laws/state-bullying-laws.pdf (statutes explicitly preserve victims’ right to legal recourse).

11. Under 18 U.S.C. §2261A (2) (2013), however, interstate cyberstalking is a federal crime. See, e.g., United States v. Sayers, 748 F.3d 425 (1st Cir. 2014).

12. Sameer Hinduja & Justin W. Patchin, State Sexting Laws, Cyberbullying Research Ctr. (July 2015), http://cyberbullying.us/state-sexting-laws.pdf; Sameer Hinduja & Justin W. Patchin, Sexting: A Brief Guide for Educators and Parents, Cyberbullying Research Ctr. (2010), www.cyberbullying.us/Sexting- Fact-Sheet.pdf.

13. 393 U.S. 503, 513 (1969).

14. 652 F.3d 565 (4th Cir. 2011).

15. J.S. v. Blue Mountain Sch. Dist., 650 F.3d 915 (3d Cir. 2011) (student online profile of principal not disruptive, protected by First Amendment); J.C. ex rel. R.C. v. Beverly Hills Unified Sch. Dist., 711 F. Supp. 2d 1094 (C.D. Cal. 2010) (off-campus video of fellow student not disruptive, author can’t be suspended); Rosario v. Clark Cnty. Sch. Dist., 2013 WL 3679375 (D. Nev. 2013) (First Amendment challenge to discipline for student’s derogatory tweets against coach and team).

16. See Gary D. Nissenbaum & Laura J. Magedoff, Potential Legal Approaches to a Cyberbullying Case, 17 The Young Lawyer (July/Aug. 2013), www.americanbar.org/publications/young_lawyer/2012- 13/july_august_2013_vol_17_no_9/potential_legal_approaches_to_a_cyberbullying_case.html.

17. See, e.g., People v. Marquan M., 994 N.Y.S.2d 554 (2014); Miller v. Mitchell, 598 F.3d 139 (3d Cir. 2010).

18. See Scott D. Camassar, Cyberbullying and the Law: An Overview of Civil Remedies, 22 Albany L.J. Sci. & Tech. 567 (2012); see also Stuart-Cassel, supra note 10.

19. L.W. ex rel. L.G. v. Toms River Reg’l Schs. Bd. of Educ., 915 A.2d 535 (N.J. 2007); see also Esposito v. Town of Bethany, 2010 WL 2196910 (Conn. Super. Ct. May 3, 2010) (school bullying policy addresses nature of school duty to investigate and supervise, bearing on applicability of state immunity statute).

20. See, e.g., Sanchez v. Unified Sch. Dist., 339 P.3d 399 (Kan. Ct. App. 2014) (bullying victim’s claim of negligent supervision proceeds against school district, even where individual employees are immunized).

21. See Dornfried v. Berlin Bd. of Educ., 2008 WL 5220639 (Conn. Super. Ct. Sept. 26, 2008) (supervision during voluntary afterschool program involves discretionary oversight, so school is immune); see also Thomas v. East Orange Bd. of Educ., 998 F. Supp. 2d 338 (D.N.J. 2014) (school immune from negligent infliction of emotional distress claim under N.J. statute); Wolfe v. Fayetteville, AR, Sch. Dist., 600 F. Supp. 2d 1011 (W.D. Ark. 2009) (state law immunizes school districts against liabilities for which theylack insurance). But see Oliver v. Waterbury Bd. of Educ., 2014 WL 1246711 (D. Conn. Mar. 24, 2014) (governmental immunity not available for intentional conduct).

22. See, e.g., Preston v. Hilton Cent. Sch. Dist., 876 F. Supp. 2d 235 (W.D.N.Y. 2012).

23. See, e.g., Wolfe, 600 F. Supp. 2d 1011 (claims against school authorities include outrage, defamation, and false light/invasion of privacy); see also Shively v. Green Local Sch. Dist. Bd. of Educ., 579 Fed. App’x 348 (6th Cir. 2014) (Ohio governmental immunity law does not apply to malicious or reckless conduct). But see Y.S. v. Bd. of Educ. of Mathews Local Sch. Dist., 766 F. Supp. 2d 839 (N.D. Ohio 2011) (no exception from Ohio governmental immunity law for intentional tort).

24. See, e.g., Shea v. Union Free Sch. Dist. of Massapequa, 2009 N.Y. Misc. LEXIS 3905 (N.Y. Sup. Ct. Jan. 6, 2009).

25. See, e.g., G.D.S. v. Northport-East Northport Union Free Sch. Dist., 915 F. Supp. 2d 268 (E.D.N.Y. 2012).

26. 20 U.S.C. §1681 et seq. (2002).

27. 42 U.S.C §2000d et seq. (1964).

28. 42 U.S.C. §12131 et seq. (1990); 29 U.S.C. §701 et seq. (2014).

29. Deshaney v. Winnebago Cnty. Dep’t of Soc. Servs., 489 U.S. 189 (1989) (requires a showing of either “state-created danger” or “special relationship”); see, e.g., Morrow v. Balaski, 719 F.3d 160 (3d Cir. 2013).

30. 436 U.S. 658 (1978).

31. See, e.g., Wolfe, 600 F. Supp. 2d 1011 (Monell standard); see also T.E. v. Pine Bush Cent. Sch. Dist., 58 F. Supp. 3d 332 (S.D.N.Y. 2014); Belcher v. Robertson Cnty., 2014 WL 6686741 (M.D. Tenn. Nov. 26, 2014) (“failure to train” claims survive summary dismissal).

32. See, e.g., DiStiso v. Cook, 691 F.3d 226 (2d Cir. 2012) (equal protection claims dismissed on qualified immunity but rejects immunity claims regarding response to bully’s use of racially charged language).

33. See Nabozny v. Podlesny, 92 F.3d 446 (7th Cir. 1996) (permitting equal protection claim to go forward in case of harassment based on gender and sexual orientation); G.D.S. v. Northport-East Northport Union Free Sch. Dist., 915 F. Supp. 2d 268 (E.D.N.Y. 2012) (equal protection claim based on religion proceeds on allegations of deliberate indifference amounting to intentional discrimination); but see Preston v. Hilton Cent. Sch. Dist., 876 F. Supp. 2d 235 (W.D.N.Y. 2012) (dismissing equal protection claim involving gender-based bullying where plaintiff fails to allege deliberate indifference).

34. See Shively, 579 Fed. App’x 348; Fitzgerald v. Barnstable Sch. Comm., 555 U.S. 246 (2009) (identifying elements of claims brought against a school on §1983 equal protection grounds and similar sexual harassment claims brought simultaneously under Title IX).

35. 526 U.S. 629 (1999). For Title IX cases, see, e.g., Price ex rel. O.P. v. Scranton Sch. Dist., 2012 WL 37090 (M.D. Pa. Jan. 6, 2012); Doe v. East Haven Bd. of Educ., 200 Fed. App’x 46 (2d Cir. 2006).

36. For Title VI, see, e.g., Zeno v. Pine Plains Cent. Sch. Dist., 702 F.3d 655 (2d Cir. 2012) (in-school harassment of Jewish students).

37. See, e.g., Mihnovich v. Williamson Cnty. Bd. of Educ., 2014 WL 5586198 (M.D. Tenn. Nov. 3, 2014) (questions of fact about nexus between racially offensive texts and Face book posts and victim’s school experience bar summary judgment on Title VI cyberbullying claim).

38. K.M. ex rel. D.G. v. Hyde Park Cent. Sch. Dist., 381 F. Supp. 2d 343 (S.D.N.Y. 2005) (in-school bullying claims proceeding under Title II and Section 504); see also K.J. v. Greater Egg Harbor Reg’l High Sch.Dist. Bd. of Educ., 2015 WL 1816353 (D.N.J. Apr. 21, 2015) (identifying elements of ADA and Section 504 claims).

39. D.C. v. R.R., 182 Cal. App. 4th 1190 (Cal. Ct. App. 2010); Finkel v. Dauber, 29 Misc. 3d 325 (N.Y. Sup. Ct. Nassau Cnty. 2010).

40. For parental immunity, see, e.g., Buono v. Scalia, 843 A.2d 1120 (N.J. 2004). For defamation, see, e.g., Finkel, 29 Misc. 3d 325. For anti-SLAPP statutory defenses, see, e.g., D.C., 182 Cal. App. 4th 1190.

41. See, e.g., Shiamili v. Real Estate Grp. of N.Y., Inc., 17 N.Y.3d 281 (N.Y. 2011) (website immune from state law claims).

42. See, e.g., Cyberbullying Victims Fight Back With Lawsuits, Associated Press Wire Report (Apr. 27, 2012), www.firstamendmentcenter.org/cyberbullying-victims-fight-back-with-lawsuits.

43. See Logan v. Sycamore Cmty. Sch. Bd. of Educ., 2012 WL 2011037 (S.D. Ohio June 5, 2012) (Jessica Logan committed suicide after a sexting indiscretion made her the brunt of in-school harassment and public humiliation); see also Public Justice, Jury Verdicts and Settlements in Bullying Cases (March 2015 ed.), http://publicjustice.net/sites/default/files/Bullying%20Verdicts%20and%20Settlements-

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