cyberbullying

Minnesota’s ‘Safe and Supportive Schools Act’ Passes (and a Brief Response to Mr. Fleury’s Counterpoint)

Bryan Morben, MJLST Managing Editor

On April 9, many students, parents, teachers, and school administrators rejoiced as Minnesota Governor Mark Dayton signed the Safe and Supportive Schools Act (the 7th engrossment of House Bill 826) into law. Senator Dibble, author of the bill in the Senate, recognized that “[n]o young person should be forced to choose between going to school or being safe. But today, far too many are put in that position.” At the same time, however, many others disapprove of the Act as a solution to the bullying and cyberbullying crisis in Minnesota.

Without offering any recommendation to address the problem themselves, opponents of the Act continue to shoot it down on, what seems to me, to be mostly baseless grounds. I address a number of these in my article “The Fight Against Oppression in the Digital Age: Restructuring Minnesota’s Cyberbullying Law to Get with the Battle,” which can be found here. In that article, I recommended that the Minnesota adopt HF 826 (6th engrossment) to drastically improve Minnesota’s antibullying law at the time. Since publication of the article, the bill went through one more engrossment before becoming law.

In a recent blog post, a fellow member of MJLST, Erin Fleury, made a couple counterpoints against adoption of the bill as recommended in my article. Specifically, Mr. Fleury argues that the definition of “bullying” was still overly broad and could encompass behavior not intended by the legislature. The definition Mr. Fleury quotes, however, is not found in the text of the 6th engrossment that I recommended. In fact, the Senate’s amended version of the bill, which Mr. Fleury says “remedies these defects by requiring that all bullying conduct be ‘objectively offensive,'” is the same in the prior version of the bill that I suggested (with a small change from “harassing conduct” to “harming conduct”).

Mr. Fleury also contends that the prior bill could include “class clown” behavior as bullying because it would routinely interrupt and interfere with the learning environment. Again, I think this argument is without merit. First, it is unlikely that this conduct would arise to the “material and substantial” level of interference required by the bill (and interpreted by student-speech case law). And second, both the 6th engrossment and the amended version signed into law specifically state that the school bullying policy, including what constitutes bullying, “applies to bullying by a student against another student . . . .” (See Section 3, Subdiv. 1, emphasis added). Therefore, a class clown not directing his conduct towards any other specific student would not fall under the bullying definition.

As noted in my article, antibullying legislation like the Safe and Supportive Schools Act has been thoroughly reviewed and recommended by experts like the U.S. Department of Education and the MN Task Force on the Prevention of School Bullying. The MN Task Force was composed of parents, community members, health care professionals, education experts, school administrators, and policymakers. I believe that they have crafted a well-balanced law that should help curtail the bullying problems occurring in Minnesota schools without infringing on students’ rights.


Cyberbullying Laws in Minnesota: An Update and Counterpoint

Erin Fleury, MJLST Staff

Bullying in schools is an age-old problem; the effects of which have been exacerbated by society’s increasing use of technology, especially social media. Minnesota has minimal legislation when it comes to bullying and although it does include cyberbullying, many argue that the state should do more to enable schools to crack down on bullying in general.

A University of Minnesota Law School student, Bryan Morben, recently wrote an excellent Note regarding cyberbullying in which he highlighted a bill that was working its way through Minnesota’s legislature. At the time his article was published, the bill had been passed by the House but was “effectively kill[ed]” by the Senate. Supporters were hopeful that it would be revived during the current legislative session, however, and on March 12 the Senate’s education committee recommended the passage of an amended version of the bill that was passed by the House last year.

Mr. Morben’s article suggests that the House bill would not be defective for being vague or overbroad but it seems as though the bill could actually be criticized because it may encompass behavior outside the scope of what the legislature is aiming to prevent. For example, the House bill may include conduct that would not be considered bullying by any common-sense definition but is merely distracting to the learning process. The bill defines bullying as “the use of … words, images, or actions … that a reasonable person knows or should know … will have the effect of materially interfering with the ability of an individual … to participate in a safe and supportive learning environment.” After the definition, an example is listed which states that bullying would include conduct that “interferes with a student’s educational performance or ability to participate in educational opportunities.” A ‘class clown’ who routinely interrupts the teacher and distracts other students would reasonably know that such behavior is interfering with the ability to participate in a supportive learning environment, yet that type of behavior should not necessarily be considered bullying since it does not have the same type of negative consequences on students. Yet the language may create authority for teachers to crack down on other types of disruptive behavior because of the potential broadness.

Furthermore, the bill imputes a reasonable person standard on the requirement that the bully know that they will materially interfere with the other individual, but there is no reasonable or objective standard in regards to what actually is a material interference. For example, if one student would unreasonably react to another student disagreeing with them in class in such a way that it “has a detrimental effect on [their] physical, social, or emotional … health” then that would still be considered bullying even though the unreasonableness was on the part of the bullied rather than the bully. While these arguments may be stretching the meaning of the bill (and there are certainly strong arguments for interpreting the bill more narrowly), the House’s proposed definition certainly seems to create ambiguity that could lead to serious concerns about the scope or even constitutionality of the law.

The Senate’s amended bill, on the other hand, remedies these defects by requiring that all bullying conduct be “objectively offensive.” It also requires more from the offensive activity than any word, images, or actions by only applying to “intimidating, threatening, abusive, or harming conduct.” What constitutes such conduct is further defined with the examples of “causing physical harm [or reasonable fear thereof] to a student or a student’s property … violates a student’s reasonable expectation of privacy, defames a student, … constitutes intentional infliction of emotional distress … [or] is directed at a student based on [a number of personal characteristics].” Unlike the House’s bill, every example requires some form of objective or reasonableness requirement. While the definition itself explains that these examples are not all-inclusive, they do seem to point much more directly at bullying actions rather than other types of disruptive behavior. In this regard, the Senate proposal seems like a stronger piece of legislation because not only is it less likely to be contested on legal grounds, but its scope is also better targeted at the specific problem Minnesota is trying to address.

So far the amended bill has only been put forward by committees and not voted on by the entire Senate but it will be interesting to keep any eye on any future revisions and to see what version, if any, might be enacted into law.


Anti-Cyberbullying Efforts Should Focus on Everyday Tragedies

by Alex Vlisides, UMN Law Student, MJLST Staff

Cyberbullying. It seems every few weeks or months, another story surfaces in the media with the same tragic narrative. A teenager was bullied, both at school and over the internet. The quiet young kid was the target of some impossibly cruel torment by their peers. Tragically, the child felt they had nowhere to turn, and took their own life.

Most recently, a 12 year old girl from Lakeland, FL, named Rebecca Ann Sedwick jumped to her death from the roof of a factory after being bullied online for months by a group of 15 girls. The tragedy has spurred the same news narrative as the many before, and the same calls for inadequate action. Prosecute the bullies or their parents. Blame the victim’s parents for not caring enough. Blame the school for not stepping in.

News media’s institutional bias is to cover the shocking story. The problem is that when considering policy changes to help the huge number of kids who are bullied online, these tragic stories may be the exact wrong cases to consider. Cyberbullying is not an issue that tragically surfaces every few months like a hurricane or a forest fire. It goes on every day, in virtually every middle school and high school in the country. Schools need policies crafted not just to prevent the worst, but to make things better each day.

It is incredibly important to remember students like Sedwick. But to address cyberbullying, it may be just as important to remember the more common effects of bullying: the student who stops raising their hand in class or quits a sports team or fears even going on social media sites. These things should be thought of not as potential warning signs of a tragedy, but as small tragedies themselves.

The media will never run headlines on this side of bullying. This means that policy makers and those advocating for change must correct for this bias, changing the narrative and agenda of cyberbullying to include the common tragedies. The issue is complex, emotional and ever-changing. Though it may not make for breaking news, meaningful change will honor students like Rebecca Ann Sedwick, while protecting students who continue to face cyberbullying every day.