Posts tagged with "cyberbullying"

“Do Not Let Your Self-Worth Be Defined By Bullies”

“Jumping off the gw bridge sorry.” This was the “farewell message” of Tyler Clementi, an eighteen-year-old Rutgers University student, posted on Facebook after he discovered his roommate was spying on his sexual encounters with another man.

The Prevalence of Bullying

It almost goes without saying that bullying (and its technological brother, cyberbullying) is one of the most important topics of school law today. National surveys and studies conducted over the past several decades, along with the high-profile suicides of Clementi, Phoebe Prince, and Megan Meier, have provided startling information on the prevalence of bullying tactics both in person and through Internet channels of communication.

Indeed, “70 percent of middle and high school students have experienced bullying at some point,” with approximately 5 to 15 percent described as “chronic victims.”[1] Unfortunately, less than half actually report such incidents, and the short- and long-term effects on victims can be particularly devastating, such as depression, anxiety, poor health, and decreased academic performance and school participation.

How the nation has reacted has been as diverse as its population.[2] Efforts in Connecticut have been particularly extensive and comprehensive (as discussed here), though many States still find themselves unwilling, for whatever reason, to extend protections to particularly vulnerable groups of students, such as LGBT. Particularly shocking is the prevalence of laws specifically written to stigmatize LGBT students, mandating negative portrayal by the very faculty and staff we’d expect would protect students regardless of their differences.[3]

Liability in Cases of Harassment and Bullying

Courts appear more and more willing to subject school administrators, Boards of Education, and even towns to liability for the harms brought upon students at the hands of their peers. In the case of Tyler Clementi, however, the parents elected not to pursue litigation against the school or Tyler’s roommate because “[t]he family got to a place where they really felt an obligation and desire to use the publicity for positive purposes.”[4] Tyler’s roommate, Dharun Ravi, was convicted earlier this year of crimes related to the spying incidents,[5] though the seemingly lenient sentence has been widely called into question.[6]

If you personally or, if a parent, your child has been subject to bullying in school or on the Internet, it is imperative that you take to heart the message of Jennifer Livingston, a TV journalist thrust into the spotlight this past week regarding a viewer’s bullying of her weight:

To all the children out there who feel lost, who are struggling with your weight, with the color of your skin, your sexual preference, your disability, even the acne on your face. Listen to me right now. Do not let your self-worth be defined by bullies. Learn from my experience that the cruel words of one are nothing compared to the shouts of many.[7]

Written by Lindsay E. Raber, Esq.

Should you have any questions regarding school bullying or any other education law matter, please do not hesitate to contact Attorney Joseph C. Maya, Esq. He may be reached at Maya Murphy, P.C., 266 Post Road East, Westport, Connecticut (located in Fairfield County), by telephone at (203) 221-3100, or by email at JMaya@Mayalaw.com.

 


[1]“Bullying: A Module for Teachers,” by Sandra Graham, PhD, of the American Psychological Association. Accessed September 24, 2012: www.apa.org/education/k12/bullying.aspx

[2] See, for example, the following info-graphic: http://en.wikipedia.org/w/index.php?title=File:School_bullying_laws_in_the_United_States.svg&page=1

[3] See, for example, “States with Safe School Laws,” by GLSEN. Accessed October 8, 2012: http://www.glsen.org/cgi-bin/iowa/all/library/record/2344.html

[4] “Tyler Clementi’s family decides not to sue,” by Dominique Debucquoy-Dodley. Published October 6, 2012. Accessed October 8, 2012: http://www.cnn.com/2012/10/05/justice/new-jersey-tyler-clementi-lawsuit/index.html

[5] “Dharun Ravi apologizes for ‘childish choices,’ plans to head to jail,” by Logan Burruss. Published May 30, 2012. Accessed October 8, 2012: http://www.cnn.com/2012/05/29/justice/new-jersey-ravi-sentence/index.html

[6] See, for example, “Is 30-day sentence fair for student who bullied gay roommate?” by the CNN “This Just In” blog. Published May 21, 2012. Accessed October 8, 2012: http://news.blogs.cnn.com/2012/05/21/is-30-day-sentence-fair-for-student-who-bullied-gay-roommate/

[7] “Star brother Ron Livingston defends ‘fat’ anchor sister, Jennifer,” by News Limited Network. Published October 5, 2012. Accessed October 8, 2012: http://www.news.com.au/entertainment/celebrity/tv-anchor-jennifer-livingston-takes-on-bully-who-criticised-her-weight/story-e6frfmqi-1226488835303

Cyberbullying and the Fourth Amendment Right to Privacy

The American Civil Liberties Union (ACLU) has swiftly responded to the Fairfield school board’s proposed amendments to its internet use policy, contending that the proposed policy amendments will run afoul of the Fourth Amendment’s prohibition against unreasonable searches and seizures.

Internet Use Policy in Fairfield

The Fairfield School Board, under the direction of Superintendent David Title, has outlined changes to the type of content that students can access while at school.  While bans on viewing pornography and other illegal or explicit content have always been enforceable, the ACLU has taken issue with the amendment’s policy that would allow school administrators to look through students’ personal computers and devices to ensure that not only are students not looking at illegal or explicit content, but that they are not harassing or bullying other students online.  Such a policy, of course, invokes the right to privacy guaranteed by the Fourth Amendment.

Specifically, the ACLU has taken issue with a particular provision of the policy that reads, “Digital storage and electronic devices used for school purposes, whether district or personally owned, will be treated as district technology resources.  Therefore, all students must be aware that they should not have any expectation of personal privacy in the use of these resources.”  The provision does not distinguish between personally owned computers or devices, and school-owned devices.  So long as the device is used for “school purposes,” it would fall under the umbrella of this policy.

The school board met again, and was tasked with striking a better balance between a student’s right to privacy under the Fourth Amendment and the need for schools to ensure that students are not viewing illegal content or harassing other students using devices meant for school purposes. The results of that meeting have yet to be released.

If you have questions relating to your child’s rights in school settings, or about education or bullying law in general, contact Joseph C. Maya, Esq. in our Westport office at 203-221-3100 or at JMaya@Mayalaw.com.


Sources:

http://fairfield.patch.com/articles/school-board-rethinks-changes-to-student-internet-use-policy

www.fairfieldcitizenonline.com/news/article/ACLU-Schools-Internet-policy-changes-would-3893322.php

http://www.fairfieldcitizenonline.com/news/article/ACLU-asks-school-board-to-reject-amendment-to-3914671.php

http://fairfield.dailyvoice.com/schools/fairfield-schools-web-policy-faces-aclu-challenge

An Overview of Legal Issues Relating to Bullying and Cyberbullying in Connecticut

The purpose of this article is to explore the laws, statutes, and cases relating to school bullying in Connecticut, specifically “cyberbullying,” and to provide an overview of the types of legal avenues that may be available to a victim of bullying.

What is Cyberbullying?

According to Connecticut’s General Assembly Commission on Children, “25 percent of Connecticut high school students – and 35 percent of the state’s 9th graders – report having been bullied or harassed on school property in the previous year.”[1] Furthermore, the report states that “[m]ore than 900,000 U.S. high school students reported being cyberbullied in one year.”[2] According to the U.S. Department of Justice, “Bullying may be the most underreported safety problem in American schools.”[3]

The National Crime Prevention Council (NCPC) defines cyberbullying as “similar to other types of bullying, except that it takes place online and through text messages sent to cell phones.” www.ncpc.org.  The NCPC has said that cyberbullying can take the form of:

  • Sending mean or threatening emails, instant messages, or text messages;
  • Excluding someone from an instant messenger buddy list or blocking their email for no reason;
  • Tricking someone into revealing personal or embarrassing information and sending it to others;
  • Breaking into someone’s email or instant message account to send cruel or untrue messages while posing as that person;
  • Creating websites to make fun of another person such as a classmate or teacher;
  • Using websites to rate peers as prettiest, ugliest, etc.

One recent study from Texas describes cyberbullying as bullying in which bullies use the Internet, text messaging, and similar technology, “which give an illusion to anonymity, [and] encourage bullying by those who would not normally engage in such behavior.  They also allow a bully to avoid direct confrontation with the target.”[4]

I. Conn. Gen. Stat. §10-222d

In July 2011, Governor Dannel Malloy signed Public Act 11-232 into law, marking Connecticut’s first anti-bullying legislation.  The Act, known as “An Act Concerning the Strengthening of School Bullying Laws,” defines bullying as “the repeated use by one or more students of a written, oral or electronic communication, such as cyberbullying, directed at or referring to another student attending school in the same district.”[5] 

The law defines cyberbullying as “any act of bullying through the use of the Internet, interactive and digital technologies, cellular mobile telephone or other mobile electronic devices or any electronic communications.”[6]

The law requires that each local and regional board of education develop and implement a specific bullying policy addressing the existence of bullying within its schools.  Specifically, the law requires the school policy to:

  • Enable students to anonymously report acts of bullying to school administrators;
  • Appoint a safe school climate coordinator to facilitate the school’s plan;
  • Enable the parents or guardians of students to file written reports of suspected bullying;
  • Require school administrators (including teachers and staff) who witness bullying or receive reports of bullying to notify a school administrator no more than one day after the employee witnesses or receives the report of bullying; and to file a written report no more than two school days after making such oral report;
  • Provide for the inclusion of language in student codes of conduct concerning bullying;
  • Require each school to notify the parents or guardians of students who commit bullying and the parents or guardians of students who are the victims of bullying, and invite them to attend at least one meeting.
The Governmental Immunity Barrier

The doctrine of governmental immunity may preclude a plaintiff in Connecticut from recovering on a claim against a school district. Where the defendants’ activities in a bullying case are discretionary, they may enjoy the defense of governmental immunity; conversely, where the defendants’ activities alleged in the complaint are ministerial, they cannot be shielded by governmental immunity.[7] 

A ministerial act is an act which is “performed in a prescribed manner without the exercise of judgment or discretion . . ..”  There must be a “written policy, directive, or guidelines mandating a particular course of action.”[8] If a court deems the acts and responsibilities of a school district to be ministerial, governmental immunity will not serve to provide immunity.

That distinction was tested in Santoro v. Town of Hamden. There, the Connecticut Superior Court held that plaintiffs, parents of a bullying victim, could not maintain a private cause of action under §10-222d, finding that “section 10-222d does not provide a basis for circumventing the doctrine of sovereign immunity.” As such, the court granted defendants’ motion to strike two counts of plaintiffs’ complaint on the grounds that the school district was shielded by governmental immunity.[9]

Exception to Immunity Defense

There is an exception to the immunity defense, which permits a tort action in the circumstance of “perceptible harm to an identifiable person.” Scruggs, at *70.  The “identifiable person, imminent harm exception” applies when the circumstances make it apparent to the public officer charged with the exercise of discretion that his or her failure to act would be likely to subject an identifiable person to imminent harm.  Rigoli v. Town of Shelton, 2012 Conn. Super. LEXIS 349, at *9 (Feb. 6, 2012).

Connecticut courts adhere to a three-pronged test.  Failure of a plaintiff to meet all three prongs will be fatal to a claim. Id. The test requires: (1) an imminent harm; (2) an identifiable victim; and (3) a public official to whom it is apparent that his or her conduct is likely to subject that victim to that harm.  Id. The Court in Esposito concluded that schoolchildren are a “foreseeable class to be protected.” Esposito, at *28.

II. Criminal Statutes and Cyberbullying

The 2011 revision to Connecticut’s anti-bullying statute included a new provision requiring the school principal, or the principal’s designee, “to notify the appropriate local law enforcement agency when such principal, or the principal’s designee, believes that any acts of bullying constitute criminal conduct.”[10]

Below is a non-exhaustive list of crimes that may be implicated by school bullying.

a. Criminal Harassment

Connecticut General Statute § 53a-182b, Harassment in the first degree, and 53a-183, Harassment in the second degree, are Connecticut’s criminal harassment statutes.

A person is guilty of harassment in the first degree when, “with the intent to harass, annoy, alarm or terrorize another person, he threatens to kill or physically injure that person or any other person, and communicates such threat by telephone, or by telegraph, mail, computer network, as defined in section 53a-250, or any other form of written communication, in a manner likely to cause annoyance or alarm and has been convicted of [a specifically enumerated felony].”

A person is guilty of harassment in the second degree when, “(1) By telephone, he addresses another in or uses indecent or obscene language; or (2) with intent to harass, annoy or alarm another person, he communicates with a person by telegraph or mail, by electronically transmitting a facsimile through connection with a telephone network, by computer network, as defined in section 53a-250, or by any other form of written communication, in a manner likely to cause annoyance or alarm; or (3) with intent to harass, annoy or alarm another person, he makes a telephone call, whether or not a conversation ensues, in a manner likely to cause annoyance or alarm.”

Not all cyberbullying, however, rises to the level of statutorily defined harassment.  As one author has noted, “it is more difficult to prosecute bullies under anti-harassment or anti-stalking statutes due to the mens rea requirement in criminal proceedings . . . [and] thus, criminal statutes do not offer victims of cyberbullying a viable option to seek redress against their harassers.”[11]

b. Bias Crimes

A person is guilty of intimidation based on bigotry or bias when such person maliciously, and with specific intent to intimidate or harass another person because of the actual or perceived race, religion, ethnicity, disability, sexual orientation or gender identity or expression of such other person, causes serious physical injury to such other person or to a third person.[12] 

Furthermore, a person is guilty of intimidation based on bigotry or bias when such person maliciously, and with specific intent to intimidate or harass another person because of the actual or perceived race, religion, ethnicity, disability, sexual orientation or gender identity or expression of such other person, does any of the following:

  • Causes physical contact with such other person;
  • Damages, destroys or defaces any real or personal property of such other person; or
  • Threatens, by word or act, described in subdivision (1) or (2) of this subsection, if there is reasonable cause to believe that an act described in subdivision (1) or (2) of this subsection will occur.[13]

In an action for damages resulting from intimidation based on bigotry or bias, any person injured in person or property as a result of such an act may bring a civil action against the person who committed such act to recover damages for such injury.  Where a plaintiff in such an action prevails, the court shall award treble damages and may award equitable relief and reasonable attorneys’ fees in its discretion.[14]

c. Criminal Threats

Under Connecticut law, a person is guilty of threatening when: (1) by physical threat, such person intentionally places or attempts to place another person in fear of imminent serious physical injury; (2) such person threatens to commit any crime of violence with the intent to terrorize another person; or (3) such person threatens to commit such crime of violence in reckless disregard of the risk of causing such terror.[15]

III. Other Legal Issues Relating to Cyberbullying
a. Defamation/Slander

In Connecticut, “a defamatory statement is defined as a communication that tends to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.”[16] To establish a prima facie case of defamation, a plaintiff must show that: (1) the defendant published a defamatory statement; (2) the defamatory statement identified the plaintiff to a third person; (3) the defamatory statement was published to a third person; and (4) the plaintiffs reputation suffered injury as a result of the statement.”  Id.

Cyberbullying by means of social networking sites such as Twitter or Facebook may give rise to defamation claims, if the plaintiff can meet all of the elements of defamation in Connecticut.  Sometimes, however, “the tortious statements are not necessarily published or widely disseminated to cause harm, but are specifically aimed at inflicting distress on a particular target based on the content of the communication itself . . ..”[17]

Therefore, defamation might not be a viable claim if the hurtful speech or writing is not disseminated to a wide enough audience.  It is, however, an avenue to be explored.

b. Intentional Infliction of Emotional Distress

In order for a plaintiff to prevail in an intentional infliction of emotional distress cause of action, the plaintiff must show: (1) that the actor intended to inflict emotional distress, or that he knew or should have known that emotional distress was likely a result of his conduct; (2) that the conduct was extreme and outrageous; (3) that the defendant’s conduct was the cause of the plaintiff’s distress, and (4) that the emotional distress sustained by the plaintiff was severe.”[18] In order for liability to be imposed, the conduct must exceed “all bounds usually tolerated by decent  of a very serious kind.”[19]

Though it can be difficult to prove that the conduct was of such a level as to be intolerable by any measure of societal standards, egregious cases of cyberbullying may gave rise to successful IIED claims.  To prove an IIED claim, there is no requirement that the plaintiff suffer any physical harm.  As the Connecticut Supreme Court stated in Whelan v. Whelan, “The enormity of the outrage carries conviction that there has in fact been severe mental distress which is neither figured or trivial so that bodily harm is not required.”[20] It should be noted that “mere insults, indignities, threats, petty oppressions, or other trivialities” will not give rise to a successful IIED claim.[21]

Continuing Course of Conduct 

An interesting facet of IIED law in Connecticut, and one that may apply to cyberbullying claims, is the invocation of the continuing course of conduct argument. While IIED has a three-year statute of limitations, the Connecticut Supreme Court has stated: “Courts that have applied the continuing course of conduct doctrine to claims for intentional infliction of emotional distress have done so on the ground that it is the repetition of the misconduct that makes it extreme and outrageous.  Watts v. Chittenden, 301 Conn. 575 (2011).

In other words, a cause of action for IIED might not begin to accrue until plaintiff has endured such a repetitive course of conduct such that it has amounted to conduct that is extreme and outrageous.

In a 2003 case, the Connecticut Superior Court denied defendants’ motion to strike plaintiff-student’s claim for IIED, where the defendant co-conspirators locked the plaintiff in a locker, doused him with water, and threatened him with electrocution.[22]

Conversely, in Brodsky v. Trumbull, the court declined to exercise supplemental jurisdiction over plaintiff’s state-law IIED claim, having granted summary judgment as to all of plaintiff’s federal claims in favor of defendants.[23]

c. Negligence

Many bullying cases sound in negligence. In a 2007 case, plaintiff parents alleged that defendant school district owed their son, the victim, “a duty to protect him and prevent intentional harm, provide him with a safe and productive learning environment, and supervise students at [the school] to prevent the alleged acts which harmed [plaintiff].”[24] The Court, finding that plaintiff did not make a proper showing of entitlement to the “identifiable person-imminent harm exception to governmental immunity for tort claims” (discussed infra), granted defendants’ motion for summary judgment on the state-law negligence claim.

In Esposito, plaintiff student, a victim of bullying, brought an action alleging that the defendant school district, town, and the individual defendants were negligent in failing to follow its own bullying policies, thereby failing to ensure that plaintiff could attend school in a harassment-free environment.[25] Unlike in Scruggs, the court in Esposito denied the school board’s motion for summary judgment, finding that governmental immunity did not apply and that the plaintiff met the identifiable person-imminent harm exception, as “schoolchildren are a foreseeable class to be protected.” Id.

Finally, the doctrine of negligent supervision, codified at Conn. Gen. Law 52-572, may be available as a claim against the parents of a bully.

d. Recklessness

In a 2010 decision, a Connecticut court denied defendant school district’s motion for summary judgment, finding that the student-plaintiff stated a plausible cause of action based on the defendants’ “reckless and wanton” supervision of plaintiff’s fellow classmates.[26] The court found that the defendant school board “offered no argument as to why a claim of common-law recklessness [was] not cognizable,” given the specific facts of the case.[27]

e. Privacy Tort Laws

The emergence of cyberbullying by means of Facebook and Twitter and other social networking sites may give rise claims sounding in tort privacy laws.  Connecticut recognizes four distinct kinds of invasion of privacy torts.[28] Connecticut first recognized a cause of action for invasion of privacy in Goodrich v. Waterbury Republican, Inc., 188 Conn. 107 (1982), in which the Supreme Court clarified that the invasion of one’s privacy developed into “four distinct kinds of invasion of four different interests,” each of which “represents an interference of the right of the plaintiff to be let alone.”  Goodrich, at 125.

The four categories of invasion of privacy are: (1) unreasonable intrusion upon the seclusion of another; (2) appropriation of the other’s name of likeness; (3) unreasonable publicity given to the other’s private life; or (4) publicity which unreasonably places the other in a false light before the public. Id.; 3 Restatement (2d) of Torts.

A cyberbullying claim may implicate the third cause of action – unreasonable publicity given to the other’s private life, and may also implicate the fourth cause of action – false light.  To successfully allege a false light claim, a plaintiff must allege that “defendant gave publicity to a matter concerning the plaintiff.”  Goodrich.

“Publicity” refers to a matter made public through communication “to the public at large or to so many persons that the matter must be regarded as substantially certain to become one of public knowledge.”  3 Restatement of Torts (2d) §252d comment A.  The Restatement clarifies that publication do a small group of people will not give rise to a false light cause of action.   

f. Free Speech

A 2011 article in Law Technology News questioned how Connecticut’s anti-bullying law would fare in the face of free speech issues, noting that “[t]he new law puts school officials in the position of having to pass judgment on off-campus speech with little legal precedent to guide them . . . If they clamp down on online comments, they risk First Amendment challenges.  If they’re too lenient, they could be deemed responsible if cyberbullying leads to tragedy.”[29]

What worries some officials and lawmakers is the prospect of the regulation of speech that doesn’t take place on school grounds.  Legal Director of the ACLU of Connecticut Sandra Staub stated during testimony in March of this year that “simply plugging the phrase ‘cyberbullying’ into the current statute on bullying policies will encourage and allow schools to regulate children’s speech and conduct while they are in their own homes.”[30] 

Essentially, Staub’s argument sounds in the notion that what children do in their own homes is under the control of their parents, who, pursuant to the United States Supreme Court, have a due process right to raise their children in the manner they see fit.  Permitting schools to regulate such speech turns schools into internet police.  Instead, Staub suggests that it is the school’s responsibility to provide an education that instills in students the means by which to deal with conflicts in an appropriate manner.

g.  Federal Claims

Victims of bullying have brought substantive due process claims against school districts and school district officials. See, Risica ex rel. Risica v. Dumas, 466 F. Supp. 2d 434 (D. Conn. 2006) (granting defendant school district’s motion for summary judgment on the grounds that the School’s failure to prevent continued bullying did not rise to the level of a constitutional violation because the school had no constitutional duty to prevent student-on-student harassment).

Finally, where bullying is based on sexual harassment, a plaintiff may have a cause of action under Title IX of the Education Amendments. See, Brodsky, at *19 (granting defendant school board’s motion for summary judgment on the grounds that defendants acted reasonably and expeditiously in response to any alleged harassment against plaintiff student).

In order to successfully allege a student-on-student sexual harassment claim, the Supreme Court of the United States has clarified that the school administration must have “acted with deliberate indifference to known acts of harassment . . . [and the] harassment [must have been] so severe, pervasive, and objectively offensive that it effectively bars the victim’s access to an educational opportunity or benefit.”[31]

IV. Conclusion

With the popularity of social networking sites such as Facebook and Twitter, cyberbullying is as prevalent a problem as ever.  Schools around the country are taking steps to eradicate bullying of all kinds, but for the time being, it is everywhere.  Bullying issues can be handled by attorneys with experience in education law.

Navigating the school district system can be difficult, frustrating, and intimidating, and without the right guidance, you may find yourself reaching dead ends.  If you find yourself with questions relating to bullying, cyberbullying, or education law in general, do not hesitate to contact Joseph Maya and the other experienced attorneys in our Westport, CT office at 203-221-3100 or JMaya@Mayalaw.com.


[1] Conn. Gen. Assembly Commission on Children, Anti-Bullying Bill Becomes Law, available at http://www.cga.ct.gov/coc/PDFs/bullying/2011_bullying_law.pdf (July 21, 2011).

[2] Id.

[3] http://www.cops.usdoj.gov/Default.asp?Item=2460

[4] Bullying: Legislative Changes, Texas Assc. of School Boards, Legal Servs., available at http://www.tasbrmf.org/training/conference/documents/2012conference_handouts/bullying.pdf.

[5] Conn. Gen. Law §10-222d(a)(1)

[6] Id.

[7] Estate of Girard v. Town of Putnam, 2011 Conn. Super. LEXIS 306 (Conn. Super. Ct. Jan. 28, 2011).

[8] Rigoli v. Town of Shelton, 2012 Conn. Super. LEXIS 349 (Conn. Super. Ct. Feb. 6, 2012).

[9] Santoro, 2006 Conn. Super. LEXIS 2418, at *9 (Aug. 18, 2006); see also, Karlen v. Westport Bd. Of Educ., 638 F. Supp. 2d 293, 302 (D. Conn. 2009) (dismissing plaintiff’s claim pursuant to Connecticut’s anti-bullying statute because the statute does not provide for a private cause of action).

[10] Public Act No. 11-232.

When is Cyberbullying a Crime?

When Connecticut amended its anti-bullying law in 2011, it included a new provision requiring the school principal, or the principal’s designee, “to notify the appropriate local law enforcement agency when such principal, or the principal’s designee, believes that any acts of bullying constitute criminal conduct.”[1] What is not made clear in the revised law is what kind of conduct may rise to a criminal level. A victim of bullying may have a claim under a civil tort theory in an instance where the level of bullying does not constitute a crime.  However, some provisions of Connecticut’s criminal law may be implicated by severe, pervasive, or egregious instances of bullying in schools. So, when is cyberbullying a crime? 

1. Criminal Harassment

Connecticut General Statute § 53a-182b, Harassment in the first degree, and § 53a-183, Harassment in the second degree, are Connecticut’s criminal harassment statutes.  A person is guilty of harassment in the first degree when, “with the intent to harass, annoy, alarm or terrorize another person, he threatens to kill or physically injure that person or any other person, and communicates such threat by telephone, or by telegraph, mail, computer network, as defined in section 53a-250, or any other form of written communication, in a manner likely to cause annoyance or alarm and has been convicted of [a specifically enumerated felony].”

A person is guilty of harassment in the second degree when, “(1) By telephone, he addresses another in or uses indecent or obscene language; or (2) with intent to harass, annoy or alarm another person, he communicates with a person by telegraph or mail, by electronically transmitting a facsimile through connection with a telephone network, by computer network, as defined in section 53a-250, or by any other form of written communication, in a manner likely to cause annoyance or alarm; or (3) with intent to harass, annoy or alarm another person, he makes a telephone call, whether or not a conversation ensues, in a manner likely to cause annoyance or alarm.”

2. Bias Crimes

A person is guilty of intimidation based on bigotry or bias when such person maliciously, and with specific intent to intimidate or harass another person because of the actual or perceived race, religion, ethnicity, disability, sexual orientation or gender identity or expression of such other person, causes serious physical injury to such other person or to a third person.[2] Furthermore, a person is guilty of intimidation based on bigotry or bias when such person maliciously, and with specific intent to intimidate or harass another person because of the actual or perceived race, religion, ethnicity, disability, sexual orientation or gender identity or expression of such other person, does any of the following:

  1. Causes physical contact with such other person;
  2. Damages, destroys or defaces any real or personal property of such other person; or
  3. Threatens, by word or act, described in subdivision (1) or (2) of this subsection, if there is reasonable cause to believe that an act described in subdivision (1) or (2) of this subsection will occur.[3]

In an action for damages resulting from intimidation based on bigotry or bias, any person injured in person or property as a result of such an act may bring a civil action against the person who committed such act to recover damages for such injury.  Where a plaintiff in such an action prevails, the court shall award treble damages and may award equitable relief and reasonable attorneys’ fees in its discretion.[4]

3. Criminal Threats

Under Connecticut law, a person is guilty of threatening when: (1) by physical threat, such person intentionally places or attempts to place another person in fear of imminent serious physical injury; (2) such person threatens to commit any crime of violence with the intent to terrorize another person; or (3) such person threatens to commit such crime of violence in reckless disregard of the risk of causing such terror.[5]

If you have any questions relating to cyberbullying, or other education issues, do not hesitate to contact Joseph Maya and the other experienced education law attorneys at Maya Murphy, P.C. in Westport, CT at 203-221-3100 or JMaya@Mayalaw.com.


[1] Public Act No. 11-232.

[2] Conn. Gen. Stat. §53a-181j.

[3] Conn. Gen. Stat. §53a-181k.

[4] Conn. Gen. Stat. §52-571c.

[5] Conn. Gen. Stat. §53a-62.

Bullying Remains at Forefront of Education Law

Bullying Remains at Forefront of Education Law as One State Criminalizes Student-on-Teacher Bullying

In an interesting article, author John Ross reported on a newly-enacted North Carolina law that criminalizes student-on-teacher cyberbullying, a less discussed but still pervasive bullying issue.  Students who use computers with the “intent to intimidate or torment” school employees can be subjected to a Class 2 misdemeanor under North Carolina’s new measure.  The law is the first in the nation to directly address student-on-teacher bullying.

A Relevant Case

Despite North Carolina being the first to criminalize such behavior, other states, including Connecticut, have addressed student-on-teacher bullying cases.  In a 2008 case, the Second Circuit considered an appeal in which the plaintiff, a student in Burlington, Connecticut, claimed that school administrators violated her First Amendment rights by preventing her from running for senior class secretary because of off-campus speech she engaged in in which she called school administrators derogatory names after they cancelled a school event that plaintiff was in charge of organizing.[1]

Alleging a violation of her First Amendment rights, plaintiff moved for a preliminary injunction to void the election for Senior Class Secretary and order the school to hold a new election.  Both the district court and the appellate court denied the motion for a preliminary injunction, thereby upholding the school district’s punishment relating to plaintiff’s blog posts.[2]

The Court’s Decision

The Second Circuit reconciled the U.S. Supreme Court’s seminal holding in Tinker v. Des Moines, 393 U.S. 503 (1969) (students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate) with the competing notion that “the constitutional rights of students in public school ‘are not automatically coextensive with the rights of adults in other settings.’”[3] 

Ultimately, the Second Circuit, in an opinion in which now-U.S. Supreme Court Justice Sonia Sotomayor concurred, based its argument on the holding of an earlier decision, which held that “a student may be disciplined for expressive conduct, even conduct occurring off school grounds, when this conduct ‘would foreseeably create a risk of substantial disruption within the school environment,’ at least when it was similarly foreseeable that that the off-campus expression might also reach campus.”[4]

Concluding that it was “reasonably foreseeable that [plaintiff’s] posting would reach school property,”[5] the Second Circuit held that plaintiff failed to show that her First Amendment rights were violated when she was disqualified for running for a student government position.  The Court did note that its decision was narrow, leaving open the possibility that a more severe punishment by the school may have given rise to a constitutional violation.[6] That issue remains to come before the Second Circuit.

The attorneys at Maya Murphy, P.C. are experienced in education matters.  If you have any questions relating to education, bullying, or cyberbullying issues, do not hesitate to contact Joseph C. Maya, Esq. in our Westport, CT office at 203-221-3100 or JMaya@Mayalaw.com.


[1] Doninger v. Niehoff, 527 F.3d 41 (2d Cir. 2008).

[2] Id.

[3] Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 682 (1986).

[4] Doninger, 527 F.3d at 48, quoting Wisniewski v. Bd. Of Educ., 49 F.3d 34, 40 (2d Cir. 2007).

[5] Id. at 50.

[6] Id. at 53.

Internet Violence: The Latest Frontier in Bullying

The rapid rate in the development of technology has changed the way we operate in our day-to-day lives. It has also opened new doors to methods for children to bully their fellow classmates. One “new form” of bullying that has been growing in frequency and has made appearances in the news is internet violence. Although the Connecticut legislature has not specifically defined internet violence, generally, internet violence includes cyber-harassment and cyber-bullying among other internet-related misconduct, such as spamming and hacking.

Connecticut Laws Protecting Students from Internet Violence

Connecticut has enacted laws addressing harassment and cyber-bullying. Under Connecticut law, it is a crime (called second-degree harassment) to harass or threaten anyone via a computer network. Any person who: a) communicates with another person using a “computer network” (or the U.S. mail or any other form of written communication); b) with the intent to harass, annoy, or alarm the other person and c) in a manner likely to cause annoyance or alarm. Second-degree harassment is a class C misdemeanor, which may result in a sentence of up to three months in prison, a fine of up to $500, or both.

What qualifies as “cyber bullying”?

Meanwhile, cyberbullying is defined under Connecticut law as “any act of bullying through the use of the Internet, interactive and digital technologies, cellular mobile telephone or other mobile electronic devices or any electronic communications.” Under the definition, the use of email, text messages, live web streams by a student or group of students to ridicule or humiliate another student would be considered cyber-bullying.

Connecticut Anti-Bullying Law

Connecticut passed a general anti-bullying law in 2011, which, as amended, has expanded school staff training, addressed cyber-bullying, devised statewide assessments, and delineated further responsibilities for schools. The Connecticut General Assembly has outlined specific criteria and listed a number of actions that would qualify as bullying, including cyber-bullying. The law redefined bullying as “the repeated use of a written, oral or electronic communication or physical act by one or more students directed at another student within the same school district which:

  1. physically or emotionally harms the student or damages that student’s property;
  2. places such student in reasonable fear of harm to himself or herself, or of damage to his or her property;
  3. creates a hostile school environment for that student;
  4. infringes on that student’s rights at school; or
  5. substantially disrupts the educational process or the orderly operation of the school.”
The Role of the School Administration

Schools are legally obligated to get involved in bullying cases, including those of internet violence, under Connecticut law. In Connecticut, as part of a required safe school climate plan, the local or regional board of education must have a process in place for students to anonymously report to school employees acts of cyber-bullying. Under the statute, “school employees” include a teacher, substitute teacher, school administrator, school superintendent, guidance counselor, psychologist, social worker, nurse, physician, paraprofessional, or anyone who has regular contact with students through the performance of his or her duties. The board must notify parents annually about the process by which students can make such reports.

If you are concerned that your child is the victim of internet violence or in-school bullying, contact Joseph Maya and the other experienced education law attorneys at Maya Murphy, P.C. today at 203-221-3100, or by email at JMaya@Mayalaw.com. We have the experience and knowledge you need at this critical juncture. We serve clients in both New York and Connecticut.

The Application of Governmental Immunity to School Bullying Suits

Governmental Immunity

In Connecticut, the doctrine of “governmental immunity” may bar a plaintiff bullying victim from succeeding in a claim against a school district.  The general concept of governmental immunity stems from the value judgment that government officers and employees should have the discretion to carry out their duties without the perpetual fear or threat of a lawsuit for any injury caused in the administration of their duties.  However, the concept of governmental immunity applies only where municipal officers are engaged in discretionary acts, as opposed to ministerial acts.

A ministerial act refers to an act “which is performed in a prescribed manner without the exercise of judgment or discretion.”[1] In other words, for a plaintiff to allege the existence of a ministerial duty, he or she must demonstrate that “the defendant was required to perform in a prescribed manner and failed to do so.”[2] Connecticut courts have generally found that the supervision of students, implementation of school policies, and control of a school and its students are carried out through discretionary acts,[3] which allow a school to invoke governmental immunity if subjected to a suit.

Exceptions to Discretionary Act Immunity

However, there are three exceptions to discretionary act immunity.  Liability may be imposed for a discretionary act where the conduct alleged involves malice, wantonness, or intent to injure; liability may be imposed for a discretionary act when a statute specifically provides for a cause of action against a municipality for failure to enforce certain laws; and finally, liability may be imposed “when the circumstances make it apparent to the public officer that his or her failure to act would be likely to subject an identifiable person to imminent harm.”[4] 

It is this last exception, the identifiable person-imminent harm exception, which is relevant in school bullying cases.  The Connecticut Supreme Court has “construed this exception to apply not only to identifiable individuals, but also to narrowly defined identifiable classes of foreseeable victims.”[5] Such victims can include victims of school bullying in cases where imminent harm was foreseeable if the defendants did not act with reasonable care.  Whether it would be apparent to a school district that their actions, or inactions, would be likely to subject a plaintiff to harm will be a major factor that a court uses in determining whether a school district can be immune from a bullying suit based on governmental immunity.

If you have any questions about bullying, cyberbullying, or education law in general, please do not hesitate to contact Joseph C. Maya, Esq. in our Westport office at (203) 221-3100 or at JMaya@Mayalaw.com.

 


[1] Heigl v. New Canaan, 218 Conn. 1, 5, 587 A.2d 423 (1991).

[2] Id.

[3] Rigoli v. Town of Shelton, 2012 Conn. Super. LEXIS 349, at *9 (Feb. 6, 2012).

[4] Straiton v. New Milford Bd. Of Educ., 2012 Conn. Super. LEXIS 773, at *20 (Mar. 13, 2012), quoting Violano v. Fernandez, 280 Conn. 310, 319-20 (2006).

[5] Straiton, at *22.

Connecticut’s Anti-Bullying Law

In July 2011, Governor Dannel Malloy signed Public Act 11-232 into law, marking Connecticut’s first anti-bullying legislation. The Act, known as “An Act Concerning the Strengthening of School Bullying Laws,” defines bullying as “the repeated use by one or more students of a written, oral or electronic communication, such as cyberbullying, directed at or referring to another student attending school in the same district.” The law defines cyberbullying as “any act of bullying through the use of the Internet, interactive and digital technologies, cellular mobile telephone or other mobile electronic devices or any electronic communications.”

Legal Requirements of School Bullying Policy

The law requires that each local and regional board of education develop and implement a specific bullying policy addressing the existence of bullying within its schools. Specifically, the law requires the school policy to:

  • Enable students to anonymously report acts of bullying to school administrators;
  • Appoint a safe school climate coordinator to facilitate the school’s plan;
  • Enable the parents or guardians of students to file written reports of suspected bullying;
  • Require school administrators (including teachers and staff) who witness bullying or receive reports of bullying to notify a school administrator no more than one day after the employee witnesses or receives the report of bullying; and to file a written report no more than two school days after making such oral report;
  • Provide for the inclusion of language in student codes of conduct concerning bullying;
  • Require each school to notify the parents or guardians of students who commit bullying and the parents or guardians of students who are the victims of bullying, and invite them to attend at least one meeting.

The law was enacted in response to alarmingly high reports of bullying in Connecticut, with studies showing that 25 percent of Connecticut high school students report having been bullied in the past year. Bullying and cyberbullying, an extension of bullying, have far-reaching and damaging consequences. Students may become withdrawn, flounder in their academics, suffer depression, and in the worst-case scenarios, attempt or commit suicide.

If you, your child, or a loved one is the victim of bullying in school, there are legal avenues. Please do not hesitate to contact Joseph Maya and the other experienced education lawyers at Maya Murphy, P.C. at (203) 221-3100 or by email at JMaya@MayaLaw.com if you have any questions regarding Connecticut’s anti-bullying law, or any education law matter.

Cyberbullying and Intentional Infliction of Emotional Distress

Cyberbullying

“Cyberbullying,” which has been defined by the National Crime Prevention Council (NCPC) as “similar to other types of bullying, except that it takes place online and through text messages sent to cell phones,” is a pervasive problem that has plagued schools since the rapid rise of social networking sites, such as Facebook and Twitter.  The anonymity of the Internet allows users to harass others with impunity, and many young users feel invincible while operating under the guise of pseudonyms and screen names.

Unfortunately, the behavior of cyberbullies, though demoralizing and painful to their victims, may not rise to criminal activity.  However, victims of bullying should be aware that there are other legal avenues.  Depending on the severity and length of the conduct, civil theories, such as the tort theory of intentional infliction of emotional distress (IIED), may be a possible theory of relief.

Intentional Infliction of Emotional Distress

IIED requires a showing by a plaintiff (the victim of the bullying) that the bully intended to inflict emotional distress, that the conduct of the bully was extreme and outrageous, that the bully’s conduct was the cause of the victim’s distress, and that the emotional distress sustained by the victim of bullying was severe.  Because mere insults and threats have not been found to rise to the level of severe conduct, there is a high threshold that must be met to prevail on an IIED claim.

If you or your child has been a victim of cyberbullying, the attorneys at Maya Murphy, P.C. have extensive experience in education law and are prepared to render advice on school and bullying issues.  No student should have to face the humiliation and pain of peer torment.  If you are being cyberbullied, keep any emails, IMs, or other communications.

If you have any questions regarding cyberbullying, or any education law matter, contact Attorney Joseph Maya at (203) 221-3100 or by email at JMaya@Mayalaw.com to schedule a free initial consultation today.

Cyberbullying and Free Speech: Where Should Schools Draw the Line?

As the school year gets into full swing, education administrators continue to grapple with the ongoing problem of peer to peer bullying.  In addition to issues relating to the extent to which schools must prevent, intervene, and address on-campus bullying come free speech challenges and issues. At least one author has written about how Connecticut’s anti-bullying law would fare in the face of free speech issues, noting that “[t]he new law puts school officials in the position of having to pass judgment on off-campus speech with little legal precedent to guide them . . . If they clamp down on online comments, they risk First Amendment challenges.  If they’re too lenient, they could be deemed responsible if cyberbullying leads to tragedy.”[1]

 Regulating Students’ Speech and Conduct Online

What worries some officials and lawmakers is the prospect of the regulation of speech that doesn’t take place on school grounds.  Legal Director of the ACLU of Connecticut Sandra Staub stated during testimony in March of this year that “simply plugging the phrase ‘cyberbullying’ into the current statute on bullying policies will encourage and allow schools to regulate children’s speech and conduct while they are in their own homes.”[2] 

Essentially, Staub’s argument sounds in the notion that what children do in their own homes is under the control of their parents, who, pursuant to the United States Supreme Court, have a due process right to raise their children in the manner they see fit.  Permitting schools to regulate such speech turns schools into internet police.  Instead, Staub suggests that it is the school’s responsibility to provide an education that instills in students the means by which to deal with conflicts in an appropriate manner.

Pervasiveness of Cyberbullying

On the other side of the debate is the pervasiveness of cyberbullying and its devastating effects on children and young adults.  The nation woke up to the very real effects of bullying when Phoebe Prince, of Massachusetts, committed suicide in 2010 after her peers tormented her to the point at which she could not take it anymore.  Sadly, Prince’s story is not unique.

According to Connecticut’s General Assembly Commission on Children, “25 percent of Connecticut high school students – and 35 percent of the state’s 9th graders – report having been bullied or harassed on school property in the previous year.”[3] Furthermore, the report states that “[m]ore than 900,000 U.S. high school students reported being cyberbullied in one year.”[4] According to the U.S. Department of Justice, “Bullying may be the most underreported safety problem in American schools.”[5]

While cyberbullying remains prevalent in schools, school administrators will continue to police their students while attempting to avoid infringing free speech.  The line, however, is a thin and tricky one.

If you have any questions about bullying or cyberbullying, or education law issues in general, do not hesitate to contact Joseph C. Maya, Esq. in our Westport office, at (203) 221-3100, or at JMaya@Mayalaw.com.