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So what can schools do to discipline cyberbullies?

One basic premise of cyberbullying is that the activities can occur whenever and wherever the aggressor may be. This created a gray area of hesitation for educators when the issues of punishment for an aggressor were presented, if the activities occurred outside of campus. We have previously discussed the longevity of bullying, the rise of cyberbullying, and the creation of David’s Law; now let us talk about what schools can do to punish aggressors.

With the passing of David’s Law, every school district in Texas was and is required to incorporated the provisions of David’s Law into their district policies. This mandate gave schools and school districts the powers to punish cyberbullies for their transgressions. We will briefly revisit David’s Law.
David’s Law is named after 16 year old David Molak who took his own life due to cyberbullying. Senate Bill 179 changed the definition of bullying in the Texas Education Code and now makes cyberbullying a punishable offense.

CYBERBULLYING DEFINED UNDER DAVID’S LAW: “Cyberbullying” as defined in David’s Law means bullying arising from a pattern of acts or one significant act that is done through the use of any electronic communication device, including a cellular or other type of telephone, a computer, a camera, electronic mail, instant messaging, text messaging, a social media application, an Internet website, or any other Internet-based communication tool.

Now, we will examine how David’s Law has been implemented in Texas.

(I) The Texas Education Code was modified as follows:

Under Section 37.0832 of the Education Code
(a) In this section:
(1) “Bullying”:
(A)  means a single significant act or a pattern of acts by one or more students directed at another student that exploits an imbalance of power and involves engaging in written or verbal expression, expression through electronic means, or physical conduct that satisfies the applicability requirements provided by Subsection (a-1), and that:
(i)  has the effect or will have the effect of physically harming a student, damaging a student’s property, or placing a student in reasonable fear of harm to the student’s person or of damage to the student’s property;
(ii)  is sufficiently severe, persistent, or pervasive enough that the action or threat creates an intimidating, threatening, or abusive educational environment for a student;
(iii) materially and substantially disrupts the educational process or the orderly operation of a classroom or school;  or
(iv) infringes on the rights of the victim at school;  and

(B) includes cyberbullying.
(37.082 a-1) This section applies to:
(1) bullying that occurs on or is delivered to school property or to the site of a school-sponsored or school-related activity on or off school property;
(2) bullying that occurs on a publicly or privately owned school bus or vehicle being used for transportation of students to or from school or a school-sponsored or school-related activity;  and
(3) cyberbullying that occurs off school property or outside of a school-sponsored or school-related activity if the cyberbullying:
(A) interferes with a student’s educational opportunities;  or
(B) substantially disrupts the orderly operation of a classroom, school, or school-sponsored or school-related activity.
(37.082 a-2):
“Cyberbullying” means bullying that is done through the use of any electronic communication device, including through the use of a cellular or other type of telephone, a computer, a camera, electronic mail, instant messaging, text messaging, a social media application, an Internet website, or any other Internet-based communication tool.

NOTE: A parent of a minor who is the victim of cyberbullying may request a court order (e.g. an injunction or temporary restraining order) requiring the perpetrator of the bullying to stop. If the perpetrator is a minor, the court would then order the minor’s parent(s) to cause the bullying to stop. The court orders likely will not directly apply to schools or employees, but as a practical matter may be provided to the school so the school is informed.

  • Among other things the law classifies cyberbullying as a misdemeanor offense. By doing so, the courts may issue subpoenas and uncover people who are posting anonymously online. The law also requires intervention from public schools when any cyberbullying behavior is suspected.
  • Parents of students who cyberbully others may also be held responsible if they could have intervened but didn’t.

(II) School districts must create policies.
The law requires each school district to include cyberbullying in their district policies and to adopt and implement districtwide policies and procedures that will:

  • prohibit bullying of a student;
  • prohibit retaliation against anyone who provides information about a bullying incident;
  • establish actions students can take to obtain assistance and intervention in response to bullying;
  • design available counseling options for victims, perpetrators, and witnesses of bullying;
  • create a procedure for notifying parents and guardians about bullying incidents (notify a victim’s parent or guardian within three business days after a bullying incident. School officials must also notify the parent or guardian of the alleged bully within a reasonable amount of time);
  • create a way for students to anonymously report bullying; establish procedures for investigating and verifying reported incidents of bullying;
  • prohibit disciplinary measures on a student who is a victim of bullying and used reasonable self-defense in response to the bullying;
  • ensures that discipline for bullying a student with disabilities complies with federal law, including the Individual with Disabilities Education Act.

(III) PUNISHMENT OF THE AGGRESSOR: Texas Penal Code 42.07, makes cyberbullying a Class B misdemeanor punishable by up 180 days in jail and a maximum $2,000 fine. The offense becomes a Class A misdemeanor if the offender has a previous conviction for cyberbullying or if the victim was under 18 years old and targeted with the intent to make the victim commit suicide or hurt themselves. A Class A misdemeanor is punishable by up to a year in jail and a maximum $4,000 fine. Cyberbullies can also face expulsion, be removed from a classroom, or be sent to alternative school. Schools have options of creating alternative disciplinary measures within reason. Principles will involve police after an investigation if the bullying activity appears to arise to a criminal offense.

(a) The principal or designee may make a report to the school district police department, the city police department, or the sheriff if after an investigation the principal has reasonable grounds to believe that a student engaged in conduct that constitutes an offense under 22.01 or 42.07(a)(7), Penal Code.
(b) This report may include the name and address of the students involved in the conduct.
(c) The principal may designate another employee to make this report.
(d) A person who is not an employee but is employed by an entity that contracts with a district is not required to make a report under this section and cannot be designated by the principal to make such report. A person who voluntarily makes a report is immune from liability.
(e) A person who acts under this section is immune from civil or criminal liability or disciplinary action resulting from that action.
(f) This section does not create a civil, criminal, or administrative cause of action or liability to create a standard of care, obligation, or duty that provides a basis for a cause of action for an act under this section.
(g) School districts, personnel, and school volunteers are immune from suit under this section.
(h) An act by school personnel or volunteers is not considered a ministerial act for purposes of liability of the school district or the district’s employees.

So where can parents or educators begin, when facing a cyberbullying issue or disciplinary question? The simple answer is to examine the available procedure in the school district where the school is situated. By way of example, if a school is located in Fort Bend County, Texas, and the aggressor and victim are students in Fort Bend County, Texas, the district policies should be examined for the guidance provided for addressing cyberbullying. In these district policies, often found online, the incorporation of David’s law should be easily found and used as guidance to navigate through the circumstances. There, within the text of these policies is the power to help, correct, discipline, stop or reduce harm and change or save lives for victims and aggressors!

Posted by Jammy Kiggundu, Attorney, Social Advocate and Cyberbullying Expert on 26 Oct 2020