I was talking to a school administrator yesterday…and she posed a question that I couldn’t clearly answer because it doesn’t seem there is a clear answer. So I wanted to see if any of our readers had some thoughts about it.
If a parent comes to you (you as an educator in the school system) and says that their child is being anonymously cyberbullied by someone from school, and their child is being affected at school because of it – and you do your investigation and find out the identity of the bully (and that it definitely is someone from school) – do you have to keep the identity of that bully private because of FERPA? What if the parent demands to know who it is, arguing that such information could help that parent better protect the child in the future? Furthermore, if the parent of the victim adamantly demands to know what the school is doing to specifically discipline that bully and address the issue, do you have to share that information – or can you just say that your school is dealing with the problem and the parent should let you know if it continues? How exactly does FERPA play a role in these situations?
FERPA states the following (really good question, btw):
Schools may disclose, without consent, "directory" information such as a student's name, address, telephone number, date and place of birth, honors and awards, and dates of attendance. However, schools must tell parents and eligible students about directory information and allow parents and eligible students a reasonable amount of time to request that the school not disclose directory information about them. Schools must notify parents and eligible students annually of their rights under FERPA. The actual means of notification (special letter, inclusion in a PTA bulletin, student handbook, or newspaper article) is left to the discretion of each school.
This issue highlights the need for schools to have well-crafted bullying policies. The ADL has training for school administrators to help them craft legally appropriate language. One must include cyberbullying in the regular bullying prevention measures since there is overlap in the forms bullies use. I'm not a lawyer, just a lay person. My reading of FERPA would indicate it would take legal action to get the information you describe. But if the school had a detailed policy that showed the consequences or methodology they would use to investigate bullying and address bullying cases, it should help a parent and student know what to expect.
If the bullying occurs on public websites, like social networks, it's usually incredibly difficult if not impossible to get the identity of anonymous posters. A recent legal case in New York, however, compelled Google to reveal the identity of one of their hosted bloggers. Now this individual is countersuing for loss of privacy.
That doesn't mean a victim is without recourse. They can request to have the offending pages removed but it can become an endless chase of reposted images, pages and comments, popping up on new websites all the time. We may see more parents turning to the court system to find the bullies' identities. This information may help the schools to act on their policies and bring the bullies brought to task for their actions.
So, first step, craft the policy and distribute throughout the community. Next, have students sign with their parents in the school office to prevent forgery and demonstrate the school's commitment to the issue. Then, have an effective reporting system that acts on bullying reports. Follow through is important to provide support to the victims.
Symantec/Norton Internet Safety Advocate
I have been dialoguing with Mike Tully (a safety and security attorney well-versed in these issues, and a good friend of mine), and this is what he wanted me to share:
FERPA requires that all "educational records" be kept confidential, and that includes disciplinary information. Of course, that begs a question, because the school might not have jurisdiction to discipline the student, given the current state of the law. While many argue that the school should be able to discipline the offending student, even if the bullying is done outside of the school setting, the case law still suggests that the school needs to demonstrate a substantial impact on the school environment. The scenario presented does not suggest such a disruption. It’s much less clear what a school official’s duty is if the school investigates, determines the identity of the offending student, but does not impose discipline. Under that scenario, there would probably not be an "educational record" generated that falls within FERPA. But the US Department of Education and the Justice Department take a very expansive view of FERPA. Any record kept by the school personnel—assuming this is a public school—would probably be considered a “public record” in most states, which means a court might consider it covered by FERPA. I would recommend that an educator in this situation advise the parent that the school knows the identity of the student and recommend that the parent file a complaint with law enforcement. The school would then probably be protected from a wrongful disclosure complaint under the FERPA "Health and Safety" exception. (Title 34, Section 99.36, Code of Federal Regulations.) The investigating law enforcement agency would not be bound by FERPA should it disclose the identify of the offending student.
There is an exception in FERPA for victims of a crime of violence, which permits school authorities to disclose the nature of discipline to the victim and his/her parents. Cyberbullying is not likely to satisfy that definition. The best course is to simply tell the parent that the matter is being dealt with appropriately—which will probably not satisfy the parent. There is a danger, of course, in revealing the name of the offending student. The parents might decide to take matters into their own hands and confront the offending student and his or her parents, which could obviously lead to a breach of the peace. We all know from the Megan case that parents don’t always exercise the best judgment when they attempt to deal with cyberbullying on their own.
(FYI, Mike's website is http://www.miketullylaw.com – he has some great, informative resources available there.)
If you get bullied you should tell someone right away Be cause if you let it continue it will get worse.
We have policies on bullying and cyberbullying that are not well known. Districts and websites may or may not have cyberbullying experts but clearly communication lags. Most districts have no policies when it comes to the process of how we discover or potentially discover something is up and what to do then and we are so understaffed that we have a sense that unless we are sure, and all ducks are in a row, we doubt that district attorneys will prosecute, based on other experiences with the law. Many teachers have blackboard websites, online discussions, g-mail addresses that are not officially the school's address but where assignments must be sent to use district recommended Google Docs. People are afraid to record anything in official records. When we try to research we may see ID numbers of past problems but lack access to see who these people are or were and if they are still on our campuses.
My personal reality is that no parent has come to me and that I am the one concerned for their children unsupervised online and with time to really get into trouble, and that I go to them as parents to work as a team. Teachers are taking on increasing administrative responsibilities and we have little to no training and already miss so much time from teaching. Many high schools are spread out like colleges and are open campuses that feel virtually impossible to control. Students are not using our servers and use devices in bathrooms or locker rooms, and sometimes bypass all servers by shaking their phones and transmitting images or messages within certain parameters.
FERPA is not something discussed at my level, ever, especially when so many students are undocumented and we have to have residency officers to verify if students even live where they report, and when we do it is frequently out of concern for the child. I rest uneasy not even knowing where many of my students sleep at night.
Unofficially, if something might be up, I share off the record what might be happening with experienced administrators who care for students and try to find other ways to deal with the situation.
I’m researching this issue for a master’s degree. Very interesting. Couldn’t the parents enforce the health and safety disclosure statute in any situation of cyberbullying because no discipline has been disclosed and therefore they have the right to “protect the health or safety of the student.”
Doesn’t protecting identity of the aggressor necessarily create an unsafe environment?
It would be hard to argue that an administrator or policy telling the family that actions will be taken is proof that it has happened.