Dennis Leone: Testimony on Cyberbullying Before Ohio Senate Education Committee December 6, 2011

Hannah News Service Legislative Update, December 6, 2011

BILLS HEARD IN COMMITTEE
SENATE EDUCATION Sen. Lehner: Tue., Dec. 6, 2011

Senate Bill 127 SCHOOL BULLYING POLICIES (SCHIAVONI J) To enact the "Jessica Logan Act" to require that public school bullying policies prohibit bullying by electronic means and address certain acts that occur off school property and to require staff training on the bullying policy.

Carrie Davis, staff attorney for the American Civil Liberties Union (ACLU) of Ohio, gave testimony as an interested party. She said that "simply requiring schools to have a policy against bullying is not enough." She stated that Ohio's anti-bullying law, codified at Revised Code Secs. 3313.666 and 3313.67, is inadequate and needs to be strengthened. The ACLU of Ohio supports legislative efforts that "enumerate protections, require in-service training for faculty and administrators, require student instruction, and enact enforcement mechanisms that include both state oversight and penalties and provide a private cause of action," she said.

Davis also urged the Legislature to "exercise caution and be mindful of constitutional limits in addressing so called 'cyber-bullying.'" She stated that there are constitutional limitations on discipline for out-of-school speech and that there are alternatives for addressing cyber-bullying within constitutional limits.

Sen. Hite asked how specific instruction should be. Davis said, "We are not the P.C. (Politically Correct) Police. Bullying is a persistent pattern of harassment and intimidation. It cannot simply be an offhand offensive comment." Hite said that he just didn't want to have 600 school districts sued over unclear policies.

Sen. Obhoff asked where the line was drawn for cyber-bullying. Davis said there are "tricky, gray areas that should only be deemed bullying if there is a decided, repeated pattern." Sen. Coley asked if it happens at school, is it "exempt from criminal law?" Davis said, "We are not trying to deputize teachers." Hite asked if there was any protection for the principals. Davis replied that allowing kids to report anonymously would give protection to administrators.

Dennis Leone, former superintendent of the Chillicothe City School District, gave opposition testimony to SB127, saying it "invites litigation." He gave several examples of federal courts across the country who "have not been supportive of school officials who have taken disciplinary action against students for what they do, or say, or write while they are off school property during non-school hours." Sen. Lehner pointed out that the examples Leone gave "don't show a persistent pattern" of bullying. "It's not surprising that the courts overturned these incidents."

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Testimony Before the Senate Education Committee
December 6, 2011
Proposed Senate Bill 127

My name is Dennis Leone. While I am currently an educational administration professor at Ashland University, I am speaking today as a former principal and as a former superintendent of schools who suspended and expelled many, many students between 1980 and 2010. In my 30 years of administrative work, I served 23 years in Ohio as a superintendent. My last district was the Chillicothe City School District. I was sued a lot in my career after I disciplined students, which is one reason I am here today. Proposed Senate Bill 127 commands school administrators to take disciplinary action against students if they engage in cyber-bullying off school property during non-school hours, which means to me that it positively invites litigation.

I addressed this committee several months ago. Much has happened since then. Senator Schiavoni held a public hearing in Cleveland about this bill in an attempt to drum up support for it, and a few federal court decisions have been rendered in other states. In the past six months, many states have adopted laws to address cyber-bullying concerns, but most of these laws are much different than proposed Senate Bill 127. Most states have properly determined that cyber-bullying off school property during non-school hours is a criminal issue, and NOT an issue for schools to take action against those who do it.

When I spoke to you last, I also gave you several examples in current Ohio law (like the habitual absence statute) of how the courts, not the schools, hold parents legally and financially responsible for matters involving their children. Cyber-bullying off school property during non-school hours should be no different. It cannot be an enforcement responsibility of school districts.

Federal courts all across the country recently have not been supportive of school officials who have taken disciplinary action against students for what they do, or say, or write while they are off school property during non-school hours. Unless it is a matter of a student threatening to blow up the school or shoot students and staff, school officials have not succeeded in making the argument that student expression off school property during non-school hours is disruptive of school operations (affecting all students). This committee needs to familiarize itself with some of the federal court decisions of the past eight months:

• The 3rd Circuit U.S. Court of Appeals in Pennsylvania, in two separate cases, struck down the suspension of high school students after they posted ugly, offensive, and highly inappropriate comments on their MySpace and Facebook pages. The school districts argued that the postings were both patently false and disruptive of school operations. The court determined that while what the students wrote was indeed false and highly offensive, it occurred off school property during non-school hours - and therefore was protected free speech pursuant to the U.S. Constitution. The students did what they did at their home, or at grandma's house, on a computer. They did not do it at school, at school activities, on a school bus, at a school bus stop, or even walking to school.
• The 7th Circuit U.S. Court of Appeals in Illinois ruled against high school officials in Naperville after they disciplined students for their actions on a day that was designed to show sensitivity for gay and lesbian students and draw critical attention to harassment. When faculty wore a t-shirt that day that said "Be Who You Are," the students who were disciplined wore a t-shirt with the words "Be Happy, Not Gay." The school district argued in court that what the students wore was potentially disruptive. The federal court disagreed, saying: "A school that permits advocacy of the rights of homosexual students cannot be allowed to stifle criticism of homosexuality." The court said that the students were engaged in protected free speech activity pursuant to the U.S. Constitution.

This committee also needs to be reminded of the decision by a federal district court right here in Columbus, Ohio, in 2005. A student in the Northern Local School District was suspended after he refused to remove his t-shirt or wear it inside out. The boy's parents sued. The t-shirt said:

Homosexuality is a Sin
Islam is a Lie
Abortion is Murder

The school district argued in court that the t-shirt was potentially disruptive because the school had gay students, Muslim students, and female students who had experienced abortions. Federal District Court Judge George Smith determined that while the wording on the t-shirt might have been offensive in the eyes of many, it was an exercise of protected free speech pursuant to the U.S. Constitution.

This committee needs to recognize that the Illinois and Ohio court decisions I have referenced occurred ON school property. Can you imagine how the courts would have reacted if the students had been disciplined because they - at the mall on Saturday - said nasty, mean things about other students, or because they wore t-shirts with mean-spirited messages, or because they wore extremely revealing clothing? If anyone here truly believes that federal courts in Ohio will support the suspension of a student who, for example, calls another a "slut" - even multiple times - off school property over the weekend with a home computer at grandma's house, you need to think again. I'd like to ask this committee this question: How is cyber-bullying off school property during non-school hours any different than students verbally "bullying" each other with mean comments at the mall on Saturday? It is not one bit different.

What matters to federal judges is whether the U.S. Constitution has been violated. In fact, I am not sure I understand how members of a state-level Education Committee think that it is their role to adopt any law that pertains to a U.S. Constitutional issue. Is cyber-bullying off school property during non-school hours mean, offensive, and inappropriate? Yes. Is it legally protected by the U.S. Constitution? Yes, unless and until the U.S. Supreme Court determines otherwise. (Note that in Canada, lawmakers are attempting to pressure Facebook into blocking acts of cyber-bullying.)

While proposed Senate Bill 127 is well-intentioned and is designed to empower school officials to discipline students for what they do electronically off school property during non-school hours, it actually will empower parents to sue if they feel their child's education has been disrupted due to cyber-bullying. Further, it also will empower judges to reject the disciplinary decisions, which means that it also will empower lawyers to drain the financial resources of school districts. I join the Cleveland Plain Dealer in concluding that proposed Senate Bill 127 is an "overreach." Thank you for allowing me to share my concerns here today.