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Cyber bullying cases test schools' legal reach

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A New Jersey teenager is suing her high school for $1 million for failing to halt a “cyber bullying” campaign that she claims was carried out by fellow students and a parent over a three-year period.

The suit, filed Feb. 9 in New Jersey Superior Court in Sussex County, is seeking an additional $1 million in damages from those other students and the parent.

Some legal experts say the suit against High Point Regional High School, located in Morganville, N.J., is part of a larger trend —partly spurred by the passage of state laws requiring school districts to adopt and implement anti-bullying policies and procedures—in which many parents are taking schools to court for allegedly ignoring bullying.

Nearly every U.S. state and jurisdiction, including New Jersey, has enacted such legislation. In recent years, they have been amending those statutes to include cyber bullying, defined as the use of electronic media by students to embarrass, harass or threaten another person. Cyber bullying can be perpetrated using computers, cellphones and other electronic devices. Studies estimate that 20% to 35% of children and adolescents experience cyber bullying.

But some sources suggest that litigation alleging school negligence for failing to stop such bullying may be getting more attention because of the growing use of social media.

“We've always had bullying suits, so I wouldn't say we're seeing any more of them,” said Steve Fast, executive director of the Colorado School Districts Self-Insurance Pool in Centennial, Colo. “But awareness that has been built around social media makes it feel like those are on the rise. It's a new twist on an old exposure.”

Still, the availability of social media to schoolyard bullies increases schools' exposure to such litigation, legal experts say. In the past, schools only had to worry about physical acts occurring on school property. Today's bullies are tormenting their victims “virtually,” sitting somewhere off campus, perhaps even in their own homes.

“It's part of what the Internet is doing to risk,” said Bob Jackson, senior vp and information security officer at Sedgwick Claims Management Services Inc. in Memphis, Tenn. “Cyber bullying is part of the Facebook explosion.”

In fact, a group of key education organizations including the National School Boards Assn. and the American Assn. of School Administrators filed a brief asking the U.S. Supreme Court to review a case that would have provided guidance on whether schools can regulate student online speech that originates away from school.

The brief notes that school leaders “have no clear, cohesive body of law to guide their regulation of student online speech originating off campus that disrupts, or reasonably could be forecasted to disrupt, the school environment, or interferes with the rights of others.”

However, the high court on Jan. 17 denied certiorari of Blue Mountain School District vs. Terry Snyder and Hermitage School District vs. Justin Layshock, two cases that were on appeal from the 3rd U.S. Circuit Court of Appeals in Philadelphia that had found online harassment was outside of the scope of schools' authority.

The court declined to take up a third case on appeal from the 4th Circuit in Richmond, Va., Kowalski vs. Berkeley County Schools, that had found schools could intervene if the activity interferes with the rights of students to be safe and receive an education.

“Social networking has fundamentally changed the nature of communication in our society and radically altered how students interact with their peers and the school community,” said Anne L. Bryant, NSBA's executive director, in a statement. “Schools need national precedent to inform them of their ability, if any, to regulate off-campus speech.”

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In her suit, the New Jersey student claims that when she reported the harassment to school authorities, providing copies of the Facebook postings to the dean of students, she was told that “nothing could be done.”

High Point Regional High School Superintendent John Hannum declined to comment on the pending litigation but said the school has “a very proactive and comprehensive anti-bullying program” that “has led to the identification and investigation of 34 reports of concern.” He said that “in every case, action has been taken until it is reported by the students involved that the situation in question was resolved in a way that they no longer feel any threat or discomfort with their school environment.”

In reviewing the New Jersey suit, Nancy Willard, director of the Eugene, Ore.-based Center for Safe and Responsible Internet Use, said “it is possible that the school district's failure to respond in this case was linked in part to the fact that some of the harassment was occurring on Facebook.”

“In the eyes of many educational leaders, this is very confusing. And it might have been resolved had the courts taken up these three cases. There is a question about their authority to respond to student off-campus speech,” said Ms. Willard.

“It's a liability issue. It's not simply about having a policy in place. You have to do something about it,” said Tom Strasburger, vp at Cincinnati-based PublicSchoolWORKS, a provider of student violence prevention programs and a member of the Atlanta-based Public School Risk Institute's Bullying Prevention Coalition.

“I would anticipate a fair amount of litigation” if schools don't address allegations of cyber bullying, said Timothy Wedeen, a partner at the Englewood, N.J.-based law firm Wedeen & Kavanagh, who represents the New Jersey student. “It was the failure of the system to follow the law and offer assistance. My client alleges she's being tormented online, on the phone, at home. It was pervasive, and really nothing was done to address it.”