Originally Posted On APRIL 28, 2014
Why Cyber Bullying Laws Don’t Protect Our Children Like They Should. In the United States, all but one state, Montana, has a cyber bullying law in place. Despite this remarkable achievement, a review by the Associated Press states that these laws have little or no effect. The cyber bullying-suicide cases of Rebecca Sedwick and Phoebe Prince from Florida and Massachusetts, respectively, show that laws in place are simply not effective. The overwhelming states’ response in enacting cyber bullying laws and the public’s impression that they work are in stark irony to the more sobering judgment of cyber bullying experts. It’s a bit of an “emperor has no clothes” situation as the public wonders why cyber bullies are able to escape culpability with little more than a slap on the wrist. Attorney and cyber law expert Parry Aftab was honored by Congress in 2005 for her work in cyber safety. Since 2005, however, accessibility to the Internet and social media, in particular, has increased and Parry describes cyber bullying now as a worsening pandemic. “I have been doing this for over the past 16 years and I’m losing this battle, “ she says. Ineffective or vague wording of laws, a misunderstanding of the law and available defense, fear of litigious reprisal from parents, or avoidance of negative publicity for the school or town could be a few reasons why cyber bullying laws don’t seem to work. Some believe simply improving communication and problem resolution skills between teens are key to resolving disputes before they lead to cyber bullying. However, another reason for this ever growing pandemic may be the leniency of discipline teens receive also.
In the Florida case, twelve-year-old Rebecca committed suicide after two teenaged girls threatened to beat her and repeatedly encouraged her to kill herself. Rebecca was tormented on social media. The school claimed it responded to complaints of bullying by changing Rebecca’s schedule. This response was inadequate, as the cyber bullying waged on. Rebecca’s mother removed her from the school. After Rebecca’s suicide, one of her tormentors wrote on a social media site, “Yes ik (I know) I bullied Rebecca and she killed her self but IDGAF” followed by a heart symbol. The girls were not charged with the cyber bullying law of their state, but rather with felony stalking. Eventually, even this charge was dropped in favor of the girls simply receiving counseling services. In the other case, Phoebe Prince had recently moved from Ireland and began high school in Massachusetts. She became the target of several girls who were angry that a newcomer dated a couple of boys that attended their school. She endured a barrage of torments, including threats of physical abuse. One of her tormentors threw garbage at her. School administrators denied knowing about the bullying and the school superintendent stated it was Phoebe who failed to alert the school of the plight she was in. But Author E.J. Fleming, who chronicled the case of in “Tread Softly: Bullying and the Death of Phoebe Prince,” had unprecedented access to many people in the town of South Hadley who had knowledge about the culture of the school. He was unsparing in his criticism of both the principal of the school and the superintendent, who he stated were more interested in covering up the case than investigating it. Phoebe’s tormentors were found guilty on criminal harassment charges but served no jail time and only community service. Bullying and cyber bullying do not often result in the victim committing suicide, but even when they do, such as in these two aforementioned cases, there appears to be a remarkable leniency in disciplining by courts and, in some cases, a complete failure of law. Let us examine some of the legal issues surrounding these two cases to understand what the legal rights and responsibilities of schools are, but also why some schools are still reluctant to help victims of cyber bullying. Let us also review the pre-existing mental illness defense, as it is becoming a common way for cyber bullies to escape culpability.
When prosecutors dropped criminal charges against Rebecca Sedwick’s tormentors, many people wondered why. Moreover, many wanted to understand why prosecutors never applied the anti bullying statute that had already been enacted in their state and, instead, opted to charge Rebecca’s tormentors with felony stalking. The reason is because Florida’s cyber bullying statute is different than most states. The error in the language of their cyber bullying law is that it gave the authority to address bullying only to schools, not to law enforcement also. The schools’ had the authority to address cyber bullying whether or not it occurred on school property, if it impacts the learning environment at school. However, what if, as was the case here, the superintendent or other school administrators deny knowledge of the cyber bullying? In the Florida case, the Polk County School denied knowing about the cyber bullying. In other reports, however, the school stated they did receive complaints and responded by changing Rebecca’s schedule. This was similar to the Massachusetts case as the South Hadley superintendent stated school officials did not know about Phoebe being bullied until “just days before her suicide.” But Northwestern District Attorney Elizabeth Scheibel, who prosecuted the Phoebe Prince case, had this to say in response to the superintendent’s denial: “Contrary to previously published reports, Phoebe’s harassment was common knowledge to most of the South Hadley High School student body. The investigation has revealed that certain faculty, staff and administrators of the high school also were alerted to the harassment of Phoebe Prince before her death. Prior to Phoebe’s death, her mother spoke with at least two school staff members about the harassment Phoebe had reported to her.” The unwillingness of both schools to admit knowledge of the cyber bullying or the extent of it begs the question: Why are some school administrators reluctant to investigate and discipline students who cyber bully? The reluctance to acknowledge cyber bullying and take disciplinary action may have several reasons. Cyber bullying is the negative “buzz” word today, and school administrators may balk at the unwanted attention that these cases bring. School administrators may also be closely monitoring public sentiment on the issue of school disciplining, and are keenly aware that some parents perceive it as an interference with parental authority. Schools may worry about the litigious reprisals of parents. Some parents do not believe the school has the authority to discipline their child, particularly when the violation occurs off school property. When the Beverly Vista School in Beverly Hills, California disciplined Evan S. Cohen’s eighth grade daughter for cyber bullying, the attorney took on the school district. His daughter videotaped friends at a café, egging them on and they made mean spirited and sexual comments about another eighth grade girl. Cohen’s daughter then posted it on YouTube. The school suspended her for two days. Cohen states, “What incensed me was that these people were going to suspend my daughter for something that happened outside of school…The school doesn’t have that kind of power. It’s up to the parents to discipline their child.” Did Mr. Cohen discipline his daughter? Yes, he told her, “It wasn’t a nice thing to do.” The reaction of this parent may be representative of many parents and it is concerning for other schools that contemplate extending their own disciplinary arm for cyber bullying.
Cyber bullying laws may also not work as intended if schools are not clear on their legal responsibility and right. Nearly every state now has cyber bullying laws in place, but whether these laws pass legal, and particularly constitutional, muster remains to be seen. The Supreme Court has denied review to three school cyber bullying cases. In doing so, it may appear that it leaves the law unclear on this issue, making schools hesitant to discipline cyber bullies. However, a denial to review may indicate the Supreme Court’s agreement with the ruling of lower courts. Therefore, the Supreme Court’s stand on school discipline of cyber bullying may still be parsed from a review of these three cases even though they were denied review. In two of the cases that petitioned the Supreme Court, students had created MySpace profiles of their school’s principal and identified the principal with many defamatory descriptions. The students were disciplined. In these cases, the students sued the school, citing their First Amendment rights to free speech were violated. In both cases, the circuit courts found the profile to be “spoof” profiles and, therefore, did not foresee a substantial interference with school. However, in the third case, the circuit court upheld the suspension of the student who created a defamatory MySpace profile of another student. The difference in this third case was that the court characterized the MySpace page as a chat group, with approximately 100 other students that were invited to join. Here, the circuit court cited the well-known litmus test of the 1969 Supreme Court case of Tinker v. Des Moines Independent Community School District. In the Tinker case, a group of teenagers wore black armbands to school in protest of the Vietnam War. Their school instituted a policy that students who did not remove the armbands would be suspended. The Iowa Civil Liberties Union, along with help from the ACLU, brought a lawsuit on behalf of the students. The case went before the Supreme Court. The Supreme Court stated that students have First Amendment rights in school and unless the students’ speech or expression disrupted the school environment, their MySpace profiles were protected speech. The Tinker test is still used today to determine if a school has violated a student’s protected speech or expression. The importance of the Tinker case is that the Supreme Court acknowledged the need for schools to regulate speech in certain instances. Speech or expression that “interfered with the school’s work and discipline”, “disrupts class work, creates substantial disorder, and collides with or invades the rights of others” is no longer protected speech and schools may regulate it. Therefore, the circuit court in the Beverly Vista School case interpreted this language to mean that schools have a compelling interest to regulate a student’s speech if it is harassment and bullying and disrupts the school environment. In this case, the Judge overturned the school suspension, stating that the YouTube video’s disruption to the school environment was only minimal. There were only a few girls in the video, other students were not encouraged to view it, and administrators dealt with the matter quickly and quietly and before lunch. Although the Judge defended this teenager’s video as protected speech, the case still makes clear that when cyber bullying does impact the school environment, schools have thelegal right and responsibility to investigate and discipline. Not surprisingly, when schools do not understand their rights and responsibilities under the law, they are more hesitant to respond appropriately to cyber bullying incidents. Even when schools fail to take ownership of cyber bullying that disrupts the school environment, law enforcement must. However, even when law enforcement does act, few cyber bullying cases are successful. The defense of “pre-existing mental illness” is often used to exonerate cyber bullies. To establish causation, the state must show the cyber bullying caused the victim harm. By injecting the possibility that the victim suffered from a mental illness before the cyber bullying ever began, the defense may prove that mental illness was the cause for victim harm, not cyber bullying.
However, it is well known in both tort law and criminal law that per the “Eggshell skull” rule, a defendant is responsible for all harm that results from his actions, even those that are not foreseeable and even the exacerbated harm that result from the defendant’s pre-existing ailments. Many states and experts recognize mental illness as a pre-existing ailment under the “eggshell skull” rule. An example of mental illness falling within the ‘eggshell skull” rule is the Maine law governed under the case Therriault v. Swan. In this case a law court recognized a special “eggshell psyche” rule. A plaintiff suffered severe emotional distress when a car had crashed just inches from her home. The defendant asserted that the car crash had not cause plaintiff’s emotional distress, but instead was caused by her employment status. The Court’s decision was based on whether a plaintiff exhibited evidence of physical injury also. If the plaintiff had not suffered from any accompanying physical injury, then the plaintiff had to show that the harm reasonably could have been expected to befall the ordinarily sensitive person. If the harm reasonably affected only the hurt feelings of the super sensitive plaintiff, there is no entitlement to recovery. If, however, the plaintiff had suffered from accompanying physical injury, then she would be entitled to recover based on the “eggshell psyche” rule. The Journal of the American Medical Association (JAMA) published the findings of an extensive research study establishing the clear link between cyber bullying and suicide ideation among teens. It appears likely that the suicides of both Rebecca Sedwick and Phoebe Prince had been in response to the torment they endured by their cyber bullies and not from pre-existing mental illness. Even if both girls had pre-existing mental illnesses, under the “eggshell psyche” rule, it would appear their cyber bullies should have been held responsible for their death. It is likely that the defense in the Rebecca Sedwick case would have shown evidence that she had attempted suicide once before. Even if Rebecca’s previous suicide attempt had raised any question as to the inevitability of her suicide, the defendant would still bear the burden of proving that the plaintiff’s harm was attributable to causes independent of the their cyber bullying. If they had failed to meet this burden, the defendant would have still been responsible for the harm caused. Additionally, if it was true that Rebecca or Phoebe had severe mental illnesses, then it would have been the school’s responsibility to request a full psychiatric evaluation for these students and provide accommodations for them under The Individuals with Disabilities and Education Act (IDEA). The specific issue of bullying and harassment was addressed by the Department of Education’s Office of Special Education and Rehabilitative Services. The Office stated that schools had a responsibility to ensure equal educational opportunity for all students and that bullying and harassment denied that right. Therefore, schools that failed to remove a hostile environment were denying the affected student an equal opportunity for education.“In 2000, the Department of Education’s Office of Special Education and Rehabilitative Services and Office on Civil Rights issued a joint, “Dear Colleague” letter highlighting the issue of disability harassment, a category within which bullying of students with disabilities is included (DOE, 2000). The letter noted that several laws were relevant to the issue of disability harassment. It notes that educational institutions, including both K-12 schools and institutions of higher education, have a responsibility to ensure equal educational opportunity for all students and that disability harassment denies that right and as a result is a form of discrimination prohibited by Section 504 of the Rehabilitation Act and Title II of the Americans with Disabilities Act. The DOE (2000) letter defines disability harassment as “intimidation or abusive behavior toward a student based on disability that creates a hostile environment by interfering with or denying a student’s participation in or receipt of benefits, services, or opportunities in the institution’s program…When harassing conduct is sufficiently severe, persistent, or pervasive that it creates a hostile environment, it can violate a student’s rights under the Section 504 and Title II regulations…even if there are no tangible effects on the student (DOE, 2000, p. 3).” The letter also notes that failure to address disability harassment may constitute a violation of the Individuals with Disabilities Education Act’s (IDEA) guarantee of a Free and Appropriate Public Education (FAPE) for students with disabilities when harassment prevents or diminishes the ability of a student to benefit from his or her education (DOE, 2000. p.4).”19 Therefore, if Rebecca and Phoebe had mental illnesses, their schools should have been responsible for ensuring both students had been able to attend school free of any harassment or bullying that impacted their education or school environment. When a teen victim of cyber bullying commits suicide, the public often feels enormous sympathy and guilt in the days following. The sympathy is felt for the teenager who clearly felt no one could help her and the guilt is felt because adults question what more could have been done. Thus, when Emily Bazelon, Senior Editor for Slate, published an extremely critical report about Phoebe’s mental illness and poor choices of behavior as possible factors that invited cyber bullying, the public frowned. 20 She wrote that Phoebe “helped set in motion the conflicts with other students that ended in them turning on her.” Ms. Bazelon’s criticism of the suicide-victim is analogous to blaming a rape victim because she wore a short skirt and batted her eyes. Moreover, if every teenager’s occasionally poor choice in behavior resulted in the backlash of torture Phoebe endured, there would likely be a significant increase in the number of teenagers committing suicide because of bullying. Poor choices in behavior are sometimes the outward symptoms of mental disability also. Poor choices do not, however, condone retaliatory cyber bullying or absolve cyber bullies of wrongdoing. Northwestern District Attorney Elizabeth Scheibel stated, “As a matter of law, the existence of a victim’s disability does not legally excuse a defendant’s criminal actions. Under many statutory schemes, it serves to aggravate the offense, rather than mitigate it.”
Sadly, Rebecca Sedwick and Phoebe Prince’s case are not the last cases of cyber bullying-suicide. The more recent California case of Audrie Potts is a horrific case of a teenager being gang raped by other students and then shamed and bullied with pictures that were published online. Audrie committed suicide and it took seven months for the teenage rapists to be arrested. The boys’ attorney suggested that Audrie’s parents caused Audrie’s suicide as she had longstanding and serious emotional problems. Sadly, these cases reflect the sobering reality that cyber bullying is not new but the evolution, progress, and proper application of law is far too slow for anyone’s comfort. R.I.S.E. & STAND TEAM References: Zirm, Jordan. “States Fail to Enforce Anti-Bullying Laws.” Schoolhouse Talk. Sept. 22, 2009.http://schoolhousetalk.wordpress.com/2009/09/22/states-fail-to-enforce-anti-bullying-laws/. Koebler, Jason. “Cyber bullying grows more malicious, experts say.” U.S. News & World Report. June 3, 2011.http://www.usnews.com/education/blogs/high-school-notes/2011/06/03/cyber-bullying-growing-more-malicious-experts-say. Paulson, Amanda. “Rebecca Sedwick suicide: What response is needed to combat cyber bullying?” The Christian Science Monitor. Oct. 15, 2013. CNN.com. “Schools chief: we’re unfairly blamed in bullying-related suicide.” April 5, 2010. Contrada, Fred. MassLive “Phoebe Prince’s death chronicled in book that takes hard look at South Hadley.” <http://www.masslive.com/news/index.ssf/2012/11/new_phoebe_prince_book_takes_h.html> Cahill, Patricia. “In South Hadley, Phoebe Prince Bullying Case Brings Mixed Feelings.” MassLive. May 4, 2011. <http://www.masslive.com/news/index.ssf/2011/05/in_south_hadley_phoebe_prince_bullying_case_resolutions_bring_mixed_feelings.html>. Paulson, Amanda. The Christian Science Monitor. “Rebecca Sedwick suicide: What response is needed to combat cyber bullying?” October 15, 2013. Heller, David. 10News. “Why didn’t Florida’s new cyber bullying law help Rebecca Sedwick?” WTSP.com. “Statement from Northwestern D.A. Elizabeth D. Scheibel.” Boston Herald. March 30, 2010. Ibid. Hoffman, Jan. The New York Times. “Online Bullies Pull Schools Into the Fray.” June 27, 2010. Carillo, Christian A. Morris, Polich & Purdy. “The Supreme Court’s Refusal to Hear Cyber bullying Cases Leaves Law Unclear.” <www.mpplaw.com> Hoffman, Jan. The New York Times. “Online Bullies Pull Schools into the Fray.” June 27, 2010. Eggshell Skull Law and Definition. < http://definitions.uslegal.com/e/eggshell-skull/>. Silin, Steven D. Berman and Simmons,. “Representing Eggshell Plaintiffs and Others with Pre Existing Conditions or Injuries post Lovely.” Rakowsky, Judy. People.com. “Lawyer: Mental Health – not Bullying Caused Phoebe Prince’s Suicide.” August 9, 2010. www.people.com. van Geel M,Vedder P,Tanilon J. JAMA Pediatrics. March 10, 2014. “Relationship Between Peer Victimization, Cyber bullying, and Suicide in Children and Adolescents: A Meta-analysis.” < http://www.ncbi.nlm.nih.gov/pubmed?term=Tanilon%20J%5BAuthor%5D&cauthor=true&cauthor_uid=24615300>.Dr. Jonathan Young , Chairman, National Council on Disability, Ari Ne’eman , Vice Chair for Engagement, National Council on Disability, Sara Gelser, Member, National Council on Disability. National Council on Disabilities. “Briefing Paper – Bullying and Students with Disabilities.” 2011. < http://www.ncd.gov/publications/2011/March92011>. Billups, Andrea. “Another Steubenville, CA teens arrested in sexual assault and suicide case.” April 2, 2013.