The Wisconsin Senate Committee on Education is meeting today to discuss a proposal to revise the state’s bullying law. You can read the text of the bill here. Wisconsin’s bullying law can be found here. I was asked to offer comments on the proposal and below are the comments that I sent to Senator Cullen’s office. If you live in Wisconsin and have thoughts about this proposal, feel free to contact your local legislator.
Comments on Proposed Changes to Wisconsin’s Bullying Law
(2013 Senate Bill 184)
Justin W. Patchin, Ph.D.
Professor of Criminal Justice,
University of Wisconsin-Eau Claire
Co-director, Cyberbullying Research Center
October 2, 2013
I have spent over a decade researching adolescent bullying, with a specific focus on cyberbullying. I travel across the United States, and abroad, educating school officials, parents, law enforcement officers, other adults who work with youth, and the teens themselves about using technology safely and responsibly. In the last four years I have spoken to over 100,000 people on this topic. My research partner, Sameer Hinduja (Florida Atlantic University), and I co-direct the Cyberbullying Research Center and have formally surveyed over 14,000 middle and high school students from various schools around the United States. We have also surveyed teachers, parents, and law enforcement officers. Using those data, I have co-authored numerous articles for academic and professional publications and have written four books, including three on the topic of cyberbullying and teen technology misuse. A fifth book (Words Wound: Delete Cyberbullying and Make Kindness Go Viral) will be published this December. Our website (www.cyberbullying.us) received approximately 1.2 million unique visitors in the last 12 months (over 30 million hits).
I am very familiar with most of the bullying laws across the U.S. having authored and regularly updated a fact sheet on our website (www.cyberbullying.us) entitled “A Brief Review of State Cyberbullying Laws and Policies.” Forty-nine states now have bullying laws in place as of October 2013. Wisconsin was one of the more recent states to adopt a bullying law (Wisconsin Act 309; 2009 Senate Bill 154), which took effect in May of 2010. Current law requires, among other things, that schools adopt bullying policies by August 15, 2010. While the existing law is useful to the extent that it publicly denounces bullying and requires the Department of Public Instruction (DPI) to develop a model policy that may be adopted by schools, it falls short on a number of levels. A previous attempt update the law in 2011 (Senate Bill 427) failed. Like the earlier effort, the currently proposed changes (Senate Bill 184) are a small step forward but do not significantly address the concerns that I have with Wisconsin’s existing bullying law. Nor does the new proposal recognize the issues I raised in my earlier testimony, submitted in February of 2012, in response to 2011 Senate Bill 427.
Weaknesses of Wisconsin’s Existing Bullying Law
One major shortcoming of Wisconsin’s existing bullying law is that it simply directs the DPI to create a model bullying policy. That policy may or may not be adopted by schools. Schools must have a bullying policy in place, but the elements of that policy could vary significantly from school to school. While many schools may elect to adopt the model policy as developed by the DPI, they are not required to. I do believe that every school should have the flexibility to develop a policy that is appropriate for their needs, but it would be better to require certain core elements to be included in all school policies across the state, including a comprehensive definition of bullying (that includes cyberbullying), procedures for reporting and investigating, appropriate consequences, as well as others listed in 118.46 sub. (1) (a) 1-10.
Another significant problem with the current law is that it does not explicitly mention cyberbullying or other forms of electronic harassment. While cyberbullying is a subset of bullying, the law does not even provide a definition of what bullying is and leaves this up to the DPI and individual districts. Specifically acknowledging cyberbullying as a unique form of bullying that requires response is important given its prevalence and impact on 21st Century schools.
Finally, there is nothing in current law that acknowledges the school’s recognized ability to intervene or reasonably respond to incidents of bullying that occur off school grounds. Many schools across the state wrongly believe that if bullying occurs away from school there is nothing that the school can do to respond. Longstanding case law gives schools the authority to respond to off campus behaviors that disrupt the learning environment at school.
In the landmark case Tinker v. Des Moines (1969) the Supreme Court stated: “it can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate…” and that only speech or behavior which “materially and substantially interfere(s) with the requirements of appropriate discipline in the operation of the school” are subject to discipline. Barr v. Lafon (2007) clarified that schools need not wait for a disruption to occur before intervening and that if they can articulate a clear threat to the order of the school than can take appropriate actions. We know from Thomas v. Board of Education, Granville Central School District (1979) that student speech that occurs away from school is generally more protected that the speech that occurs at school, but several recent cases have demonstrated that off campus behaviors and speech are subject to school discipline, if the behavior or speech: (1) substantially or materially disrupts the learning environment at school; (2) interferes with the educational process or school discipline; or (3) threatens or otherwise infringes on the rights of other students (see J.S. v. Bethlehem Area School District, 2000; Wisniewski v. Board of Education of the Weedsport Central School District, 2007; and especially Kowalski v. Berkeley County Schools, 2011). The key issue that has been addressed in many cases is that the behavior that occurs away from school results in (or has a likelihood of resulting in) a substantial disruption at school (see Layshock v. Hermitage School District and Blue Mountain School District v. J.S. which were both recently reviewed by the Third Circuit Court of Appeals ). If a student is being harassed or threatened repeatedly by another student, whether online or at school, there is little question that the ability of that student to learn is being disrupted. As such, it is important that a bullying law includes this information so that schools know that they do in fact have the authority to respond.
Strengths of the Proposal
The current bill does propose some modest improvements to Wisconsin’s bullying law, especially by requiring that the DPI model policy include bullying by “electronic means.” Although, this may be superfluous as the existing model policy already includes “sending insulting messages or pictures by mobile phone or using the internet – also known as cyber bullying.” It also encourages the model policy to include information about responding to bullying behaviors that occur off school grounds. The proposed amendment which directs the DPI to include language in their model policy that a school board may prohibit bullying that occurs away from school that creates a hostile environment at school for the pupil bullied or substantially disrupts the orderly operation of the school is exactly what is needed. However, this leads me to the major weakness of current law and the proposed bill.
Weaknesses of the Proposal
The primary problem with the proposed bill, and indeed the existing law, is that it is only a mandate to the DPI to include certain elements in a model policy and not a requirement for schools to include any of these elements in their respective bullying policies. Schools are not required to modify their policies at all – they are only required to have a policy (irrespective of its content and effectiveness). The proposal also states that the DPI model policy must include “appropriate responses to bullying that occurs off school grounds in certain circumstances.” While it is nice to see that the proposal acknowledges the school’s authority to respond to off campus behaviors, what exactly are the “circumstances” where this is appropriate? If this could be clarified in the DPI policy, it would strengthen the understanding of the necessary conditions particularly if specific language was included in the law (see below). The proposed amendment is a significant step in the right direction but only to the extent that it clarifies that what the law is talking about are those off campus incidents that create a hostile environment or that substantially disrupt the learning environment.
Newly proposed in the 2013 bill is a provision that requires school employees who witness or learn about any bullying that may be a violation of criminal law to report the behavior to law enforcement. Specifically, the addition reads: “A requirement that a school district official or employee who has reasonable cause to suspect that a bullying incident is a violation of a criminal law, report the incident to a law enforcement agency” (118.46 (1) (a) 12). I have some reservations about this because I personally do not feel it is appropriate to get law enforcement involved in all bullying cases, but essentially the vast majority of cases could fall under this, to the extent they involve behaviors that: “frighten, intimidate, threaten, abuse, or harass another person” or “harass, annoy, or offend another person” (947.0125). Since this covers just about every imaginable type of cyberbullying and similar language is included 947.013 for face-to-face incidents that would cover the majority of bullying behaviors, is the intent here to have schools report every incident to the police? And are school employees trained enough in the law to know the point at which a crime has been committed? I personally don’t think that this is a good idea or wise use of scarce law enforcement resources.
My principal concern with the proposal is that it doesn’t go far enough. I urge the legislature to adopt even stronger language clearly demonstrating that any and all forms of bullying, no matter where it occurs, that (1) disrupts the ability of a student to learn, (2) infringes on the rights of a student (including the right to be “let alone” at school), or (3) creates a hostile learning environment, is subject to reasonable school discipline. Specifically, I urge the legislature to adopt a modified version of New Hampshire’s recently-passed bullying law (HB 1523):
“Schools have the authority and responsibility to apply reasonable and educationally-based discipline, consistent with a pupil’s constitutionally granted privileges, to bullying that: (a) Occurs on, or is delivered to, school property or a school-sponsored activity or event on or off school property; or (b) Occurs off of school property or outside of a school-sponsored activity or event, if the conduct interferes with a pupil’s educational opportunities, creates a hostile environment for that pupil or others, or substantially disrupts the orderly operations of the school or school-sponsored activity or event.”
Similar language has also been adopted in New Jersey and Connecticut law recently. I have modified it minimally to ensure that a student’s constitutionally protected speech is not infringed upon by threatening to discipline a student who is exercising protected speech. As Tinker clearly stated, students have free speech rights, but they are not free to disrupt the learning environment at school (create a disruption, threaten or infringe on the rights of others, etc.).
It is also important that all schools adopt policies that include elements such as those listed in current law (118.46). Alternatively, all schools should be required to adopt the minimum elements included in the DPI model policy.
Finally, and most importantly, I encourage the legislature to provide resources to schools so that they can effectively implement the recommendations and/or requirements included in the law. Schools genuinely do want to prevent and adequately respond to all forms of bullying and harassment and are simply looking for resources that they can use to assist in such efforts. For instance, the bill should provide staff development and training resources to the DPI, the CESAs, or some other state educational training service providers in order for school officials to learn about the law and about how to respond to cyberbullying more effectively. Additional support staff (e.g., school counselors and social workers) would enable schools to intervene earlier in peer relationship problems while funding for appropriately training school-based law enforcement officers (school resource or liaison officers) would allow schools to respond to the worst cases of violence and aggression that occur or impact the school environment. Furthermore, preventing bullying from occurring in the first place is always preferable to waiting until it happens and being forced to respond. Research is now emerging that clearly shows the ability of social emotional learning programming to halt many forms of student misbehavior, including bullying (Espelage & Low, 2012). Other programmatic strategies such as Positive Behavioral Interventions and Supports (PBIS) and Response to Intervention (TRI) have also been shown to improve the quality of the climate in school. Such comprehensive efforts require resources (both staff and money) to implement effectively yet most schools are lacking significantly in that regard.
For more information:
Cyberbullying Research Center (www.cyberbullying.us)
Hinduja, S. & Patchin, J. W. (2009). Bullying beyond the Schoolyard: Preventing and Responding to Cyberbullying. Thousand Oaks, CA: Sage Publications (ISBN: 9781412966894).
Hinduja, S. & Patchin, J. W. (2011). Cyberbullying: A review of the legal issues facing educators. Preventing School Failure: Alternative Education for Children and Youth, 55(2), 71-78.
Hinduja, S. & Patchin, J. W. (2012). School Climate 2.0: Preventing Cyberbullying and Sexting One Classroom at a Time. Thousand Oaks, CA: Sage Publications (ISBN: 978-1412997836).
Espelage, D., & Low, S.M. (2012). Bullying among children and adolescents: Social-emotional learning approaches to prevention. In K. Nader (Ed.), School Rampage Shootings and Other Youth Disturbances: Early Preventive Interventions (pp. 205-219). New York: Routledge.
Patchin, J. W. & Hinduja, S. (2012). Cyberbullying Prevention and Response: Expert Perspectives. New York: Routledge (ISBN: 978-0415892377).