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Regulation of Student Speech in the Digital Age

Permanent Link: http://ufdc.ufl.edu/UFE0041818/00001

Material Information

Title: Regulation of Student Speech in the Digital Age A Case Study of the Effects of Florida's Anti-Cyberbullying Law on Public School Student Expression Policies
Physical Description: 1 online resource (200 p.)
Language: english
Creator: Carnley, Kara
Publisher: University of Florida
Place of Publication: Gainesville, Fla.
Publication Date: 2010

Subjects

Subjects / Keywords: amendment, bullying, code, cyberbullying, devices, district, electronic, first, florida, free, harassment, policy, public, schools, speech, student, technology
Journalism and Communications -- Dissertations, Academic -- UF
Genre: Mass Communication thesis, M.A.M.C.
bibliography   ( marcgt )
theses   ( marcgt )
government publication (state, provincial, terriorial, dependent)   ( marcgt )
born-digital   ( sobekcm )
Electronic Thesis or Dissertation

Notes

Abstract: Cyberbullying, or the use of technology such as computers, cell phones or other digital media to bully, harass or intimidate another person, has been a commonly echoed phrase in the today?s public school education system. To date, 19 states have enacted cyberbullying laws that attempt protect students from becoming the victim of unnecessary bullying by requiring school districts to enact specific policies. An analysis of ten Florida public school district policies revealed that the school districts have amended their policies to account for the enactment of the Florida?s anti-cyberbullying law, the Jeffrey Johnson Stand Up for All Student Act, which was enacted in 2008. Of the ten school district policies surveyed, the large school districts tended to include additional provisions that amplified the restrictions placed on student expression, whereas the small school districts followed the language of model policy adopted written Florida Department of Education more closely. By applying relevant precedent to the school district policies ? such as the quartet of Supreme Court opinions, several appellate court opinions on student speech codes, the true threats and fighting words doctrines ? this thesis brings to light several problems associated with the language adopted by the policies, particularly when the right to a student's freedom of speech is involved. Thus, this thesis provides recommendations on how to improve existing policy provisions by analyzing a school?s anti-cyberbullying policy, identifying the troublesome language, and proposing alternative language or suggesting that such language be removed.
General Note: In the series University of Florida Digital Collections.
General Note: Includes vita.
Bibliography: Includes bibliographical references.
Source of Description: Description based on online resource; title from PDF title page.
Source of Description: This bibliographic record is available under the Creative Commons CC0 public domain dedication. The University of Florida Libraries, as creator of this bibliographic record, has waived all rights to it worldwide under copyright law, including all related and neighboring rights, to the extent allowed by law.
Statement of Responsibility: by Kara Carnley.
Thesis: Thesis (M.A.M.C.)--University of Florida, 2010.
Local: Adviser: Dodd, Julie E.
Local: Co-adviser: Calvert, Clay.

Record Information

Source Institution: UFRGP
Rights Management: Applicable rights reserved.
Classification: lcc - LD1780 2010
System ID: UFE0041818:00001

Permanent Link: http://ufdc.ufl.edu/UFE0041818/00001

Material Information

Title: Regulation of Student Speech in the Digital Age A Case Study of the Effects of Florida's Anti-Cyberbullying Law on Public School Student Expression Policies
Physical Description: 1 online resource (200 p.)
Language: english
Creator: Carnley, Kara
Publisher: University of Florida
Place of Publication: Gainesville, Fla.
Publication Date: 2010

Subjects

Subjects / Keywords: amendment, bullying, code, cyberbullying, devices, district, electronic, first, florida, free, harassment, policy, public, schools, speech, student, technology
Journalism and Communications -- Dissertations, Academic -- UF
Genre: Mass Communication thesis, M.A.M.C.
bibliography   ( marcgt )
theses   ( marcgt )
government publication (state, provincial, terriorial, dependent)   ( marcgt )
born-digital   ( sobekcm )
Electronic Thesis or Dissertation

Notes

Abstract: Cyberbullying, or the use of technology such as computers, cell phones or other digital media to bully, harass or intimidate another person, has been a commonly echoed phrase in the today?s public school education system. To date, 19 states have enacted cyberbullying laws that attempt protect students from becoming the victim of unnecessary bullying by requiring school districts to enact specific policies. An analysis of ten Florida public school district policies revealed that the school districts have amended their policies to account for the enactment of the Florida?s anti-cyberbullying law, the Jeffrey Johnson Stand Up for All Student Act, which was enacted in 2008. Of the ten school district policies surveyed, the large school districts tended to include additional provisions that amplified the restrictions placed on student expression, whereas the small school districts followed the language of model policy adopted written Florida Department of Education more closely. By applying relevant precedent to the school district policies ? such as the quartet of Supreme Court opinions, several appellate court opinions on student speech codes, the true threats and fighting words doctrines ? this thesis brings to light several problems associated with the language adopted by the policies, particularly when the right to a student's freedom of speech is involved. Thus, this thesis provides recommendations on how to improve existing policy provisions by analyzing a school?s anti-cyberbullying policy, identifying the troublesome language, and proposing alternative language or suggesting that such language be removed.
General Note: In the series University of Florida Digital Collections.
General Note: Includes vita.
Bibliography: Includes bibliographical references.
Source of Description: Description based on online resource; title from PDF title page.
Source of Description: This bibliographic record is available under the Creative Commons CC0 public domain dedication. The University of Florida Libraries, as creator of this bibliographic record, has waived all rights to it worldwide under copyright law, including all related and neighboring rights, to the extent allowed by law.
Statement of Responsibility: by Kara Carnley.
Thesis: Thesis (M.A.M.C.)--University of Florida, 2010.
Local: Adviser: Dodd, Julie E.
Local: Co-adviser: Calvert, Clay.

Record Information

Source Institution: UFRGP
Rights Management: Applicable rights reserved.
Classification: lcc - LD1780 2010
System ID: UFE0041818:00001


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1 REGULATION OF STUDENT SPEE CH IN THE DIGITAL AGE: A CASE STUDY OF THE EFFECTS OF FLORIDAS AN TI-CYBERBULLYING LAW ON PUBLIC SCHOOL STUDENT EXPRESSION POLICIES By KARA CARNLEY MURRHEE A THESIS PRESENTED TO THE GRADUATE SCHOOL OF THE UNIVERSITY OF FLORID A IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF MASTER OF ARTS IN MASS COMMUNICATION UNIVERSITY OF FLORIDA 2010

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2 2010 Kara Carnley Murrhee

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3 To Prem Paul Murrhee

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4 ACKNOWLEDGMENTS I would like to thank Dr. Clay Calvert, Dr Jul ie Dodd and Dr. Judy Robinson for their tremendous help with my thesis and for se rving on my thesis committee. I want to thank Dr. Julie Dodd for her support and enc ouragement during the last two years and for allowing me to attend the conference with her that provided the idea for this topic of research. I would like to thank Dr. Calv ert, for his willingness to jump on board very quickly with the committee and for his t horough comments and feedback each week in helping me to complete the paper. I woul d like to thank my husband, Prem Paul Murrhee, for his patience and understanding. Finally, I would like to thank Paige Madsen, Brittany Dickinson and other fello w cohorts, who have helped to make the process a little bit easier with their encouragement and support.

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5 TABLE OF CONTENTS page ACKNOWLEDG MENTS .................................................................................................. 4LIST OF TABLES............................................................................................................ 8LIST OF FIGURES.......................................................................................................... 9CHAPTER 1 INTRODUCTION.................................................................................................... 122 CASE LAW AND LITERATURE REVI EW ON STUDENT SPEECH RIGHTS ........ 20Part I: A Quartet of Supreme Cour t Opin ions.......................................................... 21Tinker v. Des Moines Independen t Community Sc hool District........................ 22Bethel School Distric t No. 403 v. Fraser........................................................... 25Hazelwood School Distr ict v. K uhlmeier........................................................... 28Morse v. Frederic k............................................................................................ 30Part II: A Double Act of Discrim inatory School District Policies............................... 34Saxe v. State College Area School District....................................................... 35Sypniewski v. Warren Hills Regi onal Board of Education................................. 37Part III: A Duo of Legal Doct rines........................................................................... 41Void for Vaguene ss Doct rine............................................................................ 42Overbreadth Doctrine....................................................................................... 44Part IV: Legal Issues Pertaini ng to Non Protected Sp eech..................................... 47True Threats Doctrine...................................................................................... 47Fighting Word s Doct rine................................................................................... 513 COMPARING AND CONTRASTING THE SCHOOL DISTRICTS CYBERBULLYING POLI CY PROVISIONS ............................................................ 55Part I: Methodology in Select ing the Ten Sch ool Distr icts....................................... 55Part II: Florida's An ti-Cyberbu llying Law................................................................. 57Part III: Comparing the Public School District Anti-Cyber bullying Po licies.............. 59Mission St atement............................................................................................ 61Publicizing the Po licy........................................................................................ 61Notice of Consequences for Commi tting Act of Bullying or Harassment.......... 62Time-Place-Manner Restrict ions...................................................................... 63Part IV: Contrasting the Public School District Anti-Cyber bullying Policies............. 63Use of Terminology: Bullying, Harassm ent, Cyberbullying and Cyberstalking. 63Addition of an AntiDiscriminati on Claus e........................................................ 64Cited Auth ority.................................................................................................. 65Constitutional Safeguard.................................................................................. 65Severabilit y Clause........................................................................................... 65

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6 4 FREE SPEECH CONCERNS OF FLORIDA PUBLIC SCHOOL DISTRICT ANTI-CYBERBULLY ING POLI CIES ....................................................................... 68Part I: The Tetralogy of Supreme Court Student Speech Opinions As Applied to The School District Polic ies................................................................................. 68Part II: Analysis of School District Anti-Cyberbullying Policies Under Saxe and Sypniewski ........................................................................................................... 75Part III: Anti-Cyberbullying Policies Analyzed Under the Void for Vagueness and Overbreadth Doctrines......................................................................................... 77Part IV: Applying the True Threats Doctrines to Floridas Anti-Cyberbullying Policie s................................................................................................................ 78Part V: School District Policies As Applied to Fighting Words................................. 795 CONCLUSION........................................................................................................ 81Part I: Recommendations for Bu ilding a Better Model Po licy.................................. 81What the School Distri ct Policies Do Well........................................................ 81Some Provisions S hould Be Removed............................................................. 82Areas in Need of Improv ement......................................................................... 83Part II: Analysis of a School Dist rict Policy Based on Recomm endations............... 85Part III: Resolution of the Research Ques tions....................................................... 95Part IV: Areas for Future Re search......................................................................... 96APPENDIX A MIAMI-DADE COUNTY SCHOOL DIST RICT ANTI-CYBE RBULLYING POLICY.. 97B BROWARD COUNTY SCHOOL DISTRICT ANTI-CYBERBULL YING POLICY... 100C HILLSBOROUGH COUNTY SCHOOL DI STRICT ANTI -CYBERBULLYING POLICY................................................................................................................. 113D ORANGE COUNTY SCHOOL DISTRICT ANTI-CYBERBULLYING POLICY ...... 121E ESCAMBIA COUNTY SCHOOL DISTRICT ANTI-CYBERBULL YING POLICY... 132F MONROE COUNTy SCHOOL DISTRICT ANTI-CYBERBULLYING POLICY ...... 143G OKEECHOBEE COUNTY SCHOOL DI STRIST ANTI -CYBERBULLYING POLICY................................................................................................................. 153H PUTNAM COUNTY SCHOOL DISTRICT ANTI-CYBERBULLYING POLICY ....... 163I GLADES COUNTY SCHOOL DISTRICT ANTI-CYBERBULLYING POLICY ....... 173J LAFAYETTE COUNTY SCHOOL DISTRICT ANTI-CYBERBULL YING POLICY. 181LIST OF RE FERENCES............................................................................................. 190

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7 Constitu tions ......................................................................................................... 190Statutes................................................................................................................. 190Bills....................................................................................................................... 190Cases.................................................................................................................... 190Books.................................................................................................................... 192Law review and j ournal ar ticles............................................................................. 192Newspaper articles and other miscellaneous articles........................................... 195Internet Sources................................................................................................... 197BIOGRAPHICAL SKETCH.......................................................................................... 200

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8 LIST OF TABLES Table page 3-1 Five largest school district s based on school dist rict popu lation ......................... 593-2 Five smallest school districts based on school dist rict popul ation...................... 594-1 Table of provisions adopted by each of the school di strict policies..................... 66

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9 LIST OF FIGURES Figure page 3-1 Segmentation of Florida by district cour ts of a ppeals......................................... 565-1 Recommendations for bui lding a better model po licy......................................... 85

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10 Abstract of Thesis Pres ented to the Graduate School of the University of Florida in Partial Fulf illment of the Requirements for the Degr ee of Master of Arts in Mass Communication REGULATION OF STUDENT SPEECH IN TH E DIGITAL AGE: A CASE STUDY OF THE EFFECTS OF THE FLORIDA ANTI -CYBERBULLYING LAW ON PUBLIC SCHOOL STUDENT EXPRESSION POLICIES By Kara Carnley Murrhee May 2010 Chair: Julie E. Dodd Co-chair: Clay Calvert Major: Mass Communication Cyberbullying, or the use of technology such as computers, cell phones or other digital media to bully, harass or intimidate another person, has been a commonly echoed phrase in the todays public school educ ation system. To date, 19 states have enacted cyberbullying laws that attempt prot ect students from becom ing the victim of unnecessary bullying by requiring school district s to enact specific policies. An analysis of ten Florida public school district policies revealed that the school districts have amended their policies to account for the enac tment of the Flori das anti-cyberbullying law, the Jeffrey Johnson Stand Up for All St udent Act, which was enacted in 2008. Of the ten school district policies surveyed, the large school districts tended to include additional provisions that amplified the restrictions placed on student expression, whereas the small school districts followed the language of model policy adopted written Florida Department of E ducation more closely. By applying relevant precedent to the school district policies such as the quartet of Supreme Court opinions, several appellate court opinions on student speech codes, the true threats and fighting words doctrines this thesis brings to light several

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11 problems associated with the language adopted by the policie s, particularly when the right to a student's freedom of speech is in volved. Thus, this thesis provides recommendations on how to improve existing policy provisions by analyzing a schools anti-cyberbullying policy, identifying the troublesome la nguage, and proposing alternative language or suggesting that such language be removed.

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12 CHAPTER 1 INTRODUCTION In September 2009, the U.S. House of Representatives mulled a bill called the Megan Meier Cyberbullying Prevention Act that would make so-called cyberbullying a federal crime.1 Named after a 13-year-old girl who took her own life after being the victim of an Internet hoax in 2006,2 the bill prohibits the repetitious use of technology such as computers, cell phones or other di gital media to bully, harass or intimidate another person.3 The Act shines national attenti on on an issue simultaneously stirring debate among lawmakers, judicial bodies, legal scholars, school officials and parents,4 perhaps because of the overlapping and compelling interests at stake,5 including the First Amendment6 freedom of speech.7 1 111th Cong. (1st Sess. 2009) [hereinafter Megan Meie r Act] (providing, in relevant part, that whoever transmits in interstate or foreign commerce any co mmunication, with the intent to coerce, intimidate, harass, or cause substantial emotional distress to a person, using electronic means to support severe, repeated, and hostile behavior, shall be fined under this title or imprisoned not more than two years, or both). See Larry Margasak, House Members Seek Ways to Stop Internet Bullying ASSOC. PRESS ONLINE, Sept. 30, 2009. 2 As perhaps the most notorious incident of cy berbullying, Lori Drew, 49, posed as a teenage boy on MySpace to woo and then reject 13-year-old Megan Meier, who later committed suicide. See, e.g., Joel Currier, Teens Turmoil Started Online ST. Louis POST-DISPATCH (Mo.), Nov. 23, 2007, at C1 (describing the events that took place that led to Megan Meiers death). 3 See Sean Rose, Federal Cyber Bully Bill Gets New Life But Opponents to Measure Named for Megan Meier Cite First Amendment Concerns, ST. LOUIS POST-Dispatch (Mo.), May 5, 2009, at A1 (tracing the bills history through the House of Representatives and describing ar guments presented on both sides of the bill). 4 Id. Anna Scott, Anti -Bully Bill Would Give Power to Schools; Teachers Could Punish Students Who Criticize Classmates Via Cell Phones and Computers SARASOTA HERALD-TRIB. (Fla.), Apr. 28, 2006, at A1 5 See supra notes 18 24 and accompanying text. 6 The First Amendment to the United States Constituti on provides, in pertinent part, that Congress shall make no law abridging the freedom of speech, or of the press. U.S. CONST. amend. I. The Free Speech and Free Press Clauses were incorporated more than eight decades ago through the Fourteenth Amendment Due Process Clause to apply to stat e and local government entities and officials. See Gitlow v. New York, 268 U.S. 652, 666 (1925).

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13 Cyberbullying, or the willful and repeated use of cell phones, computers, and other electronic communication devic es to harass and threaten others,8 is a commonlyechoed catch phrase in todays public school environment.9 Although often compared to schoolyard bullying, a key component that differentiates cyberbullying from traditional schoolyard bullying is the use of technology10computers, cell phones or other digital devices that are fixtur es of youth culture11to bully the victim.12 Even as recent as 7 See Megan Meier Act, supra note 1. While some argue that such legislation is needed to punish and deter the online victimization of children ages two to seventeen, others have criticized the Act, arguing that it significantly undermines free expression. Rose, supra note 3 (stating that some legal analysts say despite its good intentions, Sanchez's bill is so broad that it violates the First Amendment). 8 Because no specific legal definition of cyberbullying currently exists, a review of the most prominent Web sites on cyberbullying provides the most on-point definitions of cyberbullying. See, e.g ., National Conference of State Legislatur es, Cyberbullying Legislation, http://www.ncsl.org/default.aspx?tabid=12903 (defining cyberbullying as used in the text) (last visited Apr. 17, 2010); Parry A ftab, Stop Cyberbullying, http://www.stopcyberbu llying.org/index2.html (defining cyberbullying as when a child, preteen or teen is tormented, threatened, harassed, humiliated, embarrassed or otherwise targeted by another child preteen or teen using the Internet, interactive and digital technologies or mobile phones) (last visited Ap r. 17, 2010); Justin W. Patchen & Sameer Hinduja, Cyberbullying Research Center, http://www.cyberbullying.us/aboutus.php (defining the term cyberbullying as when someone repeatedly harasses, mistreats, or makes fun of another person online or while using cell phones or other electronic devices) (last visited Apr. 17, 2010). 9 See, e.g ., Marc Freeman, Palm Beach Schools on the Lookout for Cyberbully Attacks S. FLA. SUNSENTINEL, Jan. 23, 2009; Manon L. Miribelli, School Counselors Alert to Cyberbullying REPUBLICAN (Mass.), Feb. 4, 2009, at MWP9; Michaela Saunders, Schools Face Off With Cyberbullies OMAHA WORLD-HERALD (Neb.), Apr. 27, 2008, at 1B. This thesis however, focuses on public schools because they are considered government entities and thus the students who attend them possess First Amendment rights, in contrast to st udents who attend private schools. 10 See, e.g ., Linda, T. Sanchez, The New Bullying Technology ST. LOUIS POST-DISPATCH (Mo.), Apr. 5, 2009, at A17; Christopher Maag, When the Bullies Turned Faceless N. Y. TIMES, Dec. 16, 2007, at 9 (describing the use of technology that lead to the suicide of 13-year-old Megan Meier); Rita Farlow, Bullies Be Gone, ST. PETERSBURG TIMES (Fla.), Oct. 31, 2007, at 7 (describing cyberbullying as bullying through the use of technology). 11 Amanda Lenhart, Teens and Social Media PEW INTERNET & AM. LIFE PROJECT 2 (2007) (stating that some 93% of teens use the Internet, and more of th em than ever are treating it as a venue for social interaction) http://www.pewinternet.org/~/media//Files/Reports /2007/PIP_Teens_Social_Media_Final.pdf.pdf (last visited Apr. 17, 2010); Amanda Lenhart, Teens and Mobile Phones Over the Past Five Years: Pew Internet Looks Back PEW INTERNET & AM. LIFE PROJECT 1 (2009) (stating that 71% of teenagers surveyed, ages 12-17, own a cell phone in 2008) http://www.pewinternet.org/~/media//Files/Reports/2009/PIP%20Teens%20and%20Mobile%20Phones%2 0Data%20Memo.pdf (last visited Apr. 17, 2010)

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14 March 2010, the news of the deat h of Phoebe Prince, a 15-year-old girl who took her own life after becoming the subject of her peers endless taunting appeared in newspapers across the nation.13 Although news reports indicate that most of the bullying took place at school,14 the incident put pressure on the Massachusetts state legislature to enact an anti-cyberbullying law15 that prohibits so called cyberbullying, or the use of e-mails, text messages, Internet postings and other electronic means, to create a hostile school environment.16 At the heart of the cyberbullying d ebate is a clash between public school students free speech rights17 and the schools duty to ma intain a safe, non-hostile 12 National Conference of State Legisl ators, School Bullying: Overview, http://www.ncsl.org/default.aspx?tabid=12952 The website states that cyberbullying differs from more traditional forms of bullying in that it can occur at any time, its messages and images can be distributed instantaneously to a wide audience, and perpetrators can remain anonymous, often making them difficult to trace. Id. 13 Eric Eckholm, & Katie Zezima, 9 Teenagers Are Charged After Suicide of Classmate N. Y. TIMES, March, 30, 2010, at A14; Laura Crimaldi, DA: School knew of brutal bullying of Phoebe Prince B. HERALD, Mar. 30, 2010. Nine teenagers have since been charged in the case with a mix of felonies including harassment, violation of civil rights with bodily injury and disturbing a school assembly. Id. 14 Id. 15 Id. 16 Daniel Abel, Bullying Bill Ok'D in House, 14, B. GLOBE, Mar.19, 2010. 17 See Mary-Rose Papandrea, Student Speech Rights in the Digital Age 60 FLA. L. REV. 1027, 1089 (2008). According to Papandrea, allowing schools to invoke their educational missions as a basis for restricting their students speech wherever it occurs would permit schools to exercise unbridled censorship authority over youth expression. Noth ing about the special characteristics of the school environment warrants such broad and unchecked power. Several other legal scholars have agreed with this perspective. See, e.g ., Clay Calvert, Off -Campus Speech, On-Campus Punishment: Censorship of the Emerging Internet Underground B.U.J. SCI. & TECH. L. (2001); Brannon P. Denning & Molly C. Taylor, Morse v. Frederick and the Regulation of Student Cyberspeech 35 HAST. CONST. L. Q. 835 (2008); A. Michael Froomkin, Building the Bottom Up from the Top Down, J.L. & POLY (2009); Douglas A. Laycock, Speech and the Public Schools After Morse v. Frederick: High-Value Speech and the Basic Educational Mission of a Public School: Some Preliminary Thoughts 12 LEWIS & CLARK L. REV. 111, 125 (2008); Robert D. Richards & Clay Calvert, Columbine Fallout: The Long-term Effects on Free Expression Take Hold on Public School 83 B.U.L. REV. 1089, 1109-10 (2003). This is also a popular topic for student authors. See, e.g., Sarah Jameson, Note, Cyberharassment: Striking a Balance Between Free Speech and Privacy 17 COMMLAW CONSPECTUS 231 (2007); Emily K. Kerkhof, Note, Myspace, Yourspace, Ourspace: Student Cyberspeech, Bullying, and Their Impact on School Discipline 2009 U. ILL. L. REV.

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15 learning environment, free fr om substantial disruption.18 In a post-Columbine era,19 school safety is, indeed, a compelling issue of public policy and of great importance to any community.20 While schools are permitted to regulate on-campus student speech that contradicts the sc hools educational goals,21 the seemingly ubiquitous access to technological devices, however, makes it in creasingly difficult to determine where oncampus speech ends and off-campus speech begins.22 A conflict occurs when state 947 (2009); Sandy S. Li, Note & Comment, The Need for a New, Uniform Standard: The Continued Threat to Internet-Related Student Speech, 26 LOY. L.A. ENT. L. REV. 65 (2005); Christopher E. Roberts, Is MySpace Their Space?: Protecting Student Cyberspeech in a Post-Morse v. Frederick World 76 U. MO. KAN. CITY L. REV. 1177 (2008); Rita J. Verga, Policing Their Space: The First Amendment Parameters of School Discipline of Student Cyberspeech 23 SANTA CLARA COMPUTER & HIGH TECH. L.J. 727 (2007). 18 This idea has been recognized by legal commentator s, including attorney Shannon L. Doering, in a 2009 law review article, who wrote that: By recognizing the limitless reach of the Internet and allowing school authorities broad discretion in disciplining students for off-campus websites and cyberbullying that disrupts the school environment or has a reasonable probability of doing so, courts would simultaneously be protecting students and teachers from undue harassment and allowing schools to resume their roles as those who mu st effectuate what is best for the school environment. Shannon L. Doering, Tinkering with School Discipline in the Name of the First Amendment: Expelling a Teacher's Ability to Proactively Quell Disruptions Caused by Cyberbullies at the Schoolhouse 87 NEB. L. REV. 630, 673 (2009). See also Darby Dickerson, Cyberbullies on Campus 37 U. TOL. L. REV. 785 (2009). Many student authors have likew ise stated similar arguments. See, e.g ., Todd D. Erb, Comment, A Case for Strengthening School District Jurisdiction to Punish Off-Campus Incidents of Cyberbullying, 40 ARIZ. ST. L.J. 257 (2009); Shira Auerbach, Note, Screening Out Cyberbullying; Remedies for Victims On the Internet Playground 30 CARDOZO L. REV. 1641 (2009); Stacy M. Chaffin, Note & Comment, The New Playground Bullies of Cyberspace: Online Peer Sexual Harassment, 51 HOW. L.J. 773 (2008). 19 James Brooke, Terror in Littleton: The Overview; 2 Students in Colorado School Said to Gun Down as Many as 23 and Kill Themselves in a Siege N.Y. TIMES, Apr. 21, 2009, at A1. See Tom Kenworthy, Up to 25 Die in Colorado School Shooti ng; Two Student Gunman Are Found Dead WASH. POST, Apr. 21, 2009, at A1 (describing the events that occurred in the Columbine shooting). 20 First Amendment Schools Frequently Asked Questions, http://www.firstamendmentschoool.org/freedoms/faqs.aspx?id=12994 (last visited Apr. 17, 2010) (stating that school safety is arguably the single most com pelling interest of any community and certainly the foremost issue in the minds of m any parents. Therefore, courts have become increasingly deferential to school safety concerns). 21 See infra Chapter Two (discussing relevant case law and literature on student speech and protecting the school's educational mission). 22 Justin P. Markey, Enough Tinkering with Students Rights: The Need For An Enhanced First Amendment Standard to Protect Off-Campus Student Internet Speech 36 CAP. U. L. REV. 129, 149

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16 legislatures and school district s adopt anti-cyberbullying policie s that pose a threat to free speech.23 Recent attempts by schools officials to gain a hold on student cyberspeech have resulted in unnecessary restrictions on fr ee speech, especially when minors are off campus and therefore are simply citizens rather than students.24 As noted by University of Florida Professor Clay Calvert and Pennsylvania State University Professor Robert D. Richards in a 2002 law review article, although school officials may craft such regulations with the laudable intent of creating and main taining a safe educational environment, they are often replete with amorphous definit ions and vague proscriptions that span over protected categories of speech and thus provoke a constitutional showdown.25 Such over-proscriptions may leave the student without any protection against the bullying or harassing speech w hatsoever. The question thus arises: What are the First Amendment-based speech con cerns raised by anti-cyberbullying statutes adopted by public schools? In the void of Supreme Court precedent and federal legislation addressing cyberbullying,26 nineteen states have enacted laws that (2007) (arguing that using a realistic view of t he term, student Internet speech is never truly "offcampus). 23 Steven Kotler, Cyberbully Bill Could Ensnare Free Speech FOXNEWS.COM, Mar. 14, 2009; Sean Rose, Federal Cyber Bully Bill Gets New Life But Oppon ents to Measure Named for Megan Meier Cite First Amendment Concerns, ST. LOUIS POST-DISPATCH, May 5, 2009, at A1. 24 Clay Calvert, Punishing Public School Students for Bashing Principals, Teachers and Classmates in Cyberspace: The Speech Issue the Supreme Court Must Now Resolve 7 FIRST AMEND. L. REV. 210, 224 (2009). See Second-Step Brief of Appellee and Cross-Appellants, Layshock v. Herm itage Sch. Dist., Nos. 07-4465 & 07-4555, 42-54 (3d Cir. May 22, 2008), available at http://www.aclupa.org/download s/Layshock2dStepBrief.pdf (last visited Apr. 17, 2010). 25 Clay Calvert and Robert D. Richards, Free Speech and the Right to Offend: Old Wars, New Battles, Different Media 18 GA. ST. U.L. REV. 671, 708 (2002). 26 Kara Carnley Murrhee, Cyberbullying: Hot Air or Harmful Speech? UF LAW MAGAZINE, Winter 2010, available at http://www.law.ufl.edu/uflaw/10winter/features/ hot-air-or-harmful-speech (stating that the

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17 prohibit cyberbullying behavior withi n their jurisdictional boundaries.27 Without substantial legal precedent, however, the language used and the restrictions imposed by the anti-cyberbullying laws tend to vary greatly from state to state.28 Significantly, for the purpose of this thesis, these states have made cyberbullying a matter of school district policy by requiring public schools to develop and implement procedures for dealing with cyberbullying when it in terferes with the school environment.29 Rather than perform a general survey of the school distri ct policies of all nineteen states that have adopted anti-cyber bullying policies, this thesis focuses on the state of Florida,30 to provide a in-depth analysis on how school districts wit hin the state of adopted Floridas anti-cyberbullyi ng law. Thus, the three time ly research questions are: federal cyberbullying, that "cam e before the House Judiciary Subcommittee on Crime, Terrorism and Homeland Security on Sept. 30...now appears to be stalled as members st ruggle with how best to prevent Internet bullying without infringing on free speech"); Davi d L. Hudson, Jr., Cyberspeech First Amendment Center, http://www.firstamendment center.org/speech/studentexpression/topic.aspx?topic=cyberspeech (last visited Apr. 17, 2010) (stating that the Supreme Court has never addressed a student Internet speech case and has not addressed a pure First Amendment student speech/press case since 1988"). 27 National Conference of State Legislatur es, Cyberbullying: State Legislation, http://www.ncsl.org/default.aspx?tabid=12903 (last visited Apr. 17, 2010) (listing the states with anticyberbullying laws as: Arkansas, California, Delaware Florida, Idaho, Iowa, Kansas, Kentucky, Maryland, Michigan, Minnesota, Missouri, Nebraska, New Jersey, Rhode Island, Oklahoma, Oregon, Pennsylvania, South Carolina and Washington) 28 Id. 29 Bills to Curb Cyberbullying Ra ise Free Speech Concerns, Student Press L. Ctr., Feb. 4, 2008, http://www.splc.org/newsflash.asp?id=1679 (last visited Apr. 17, 2010) [hereinafter SPLCBill]; As bullies go online, schools start cracking down CAPITAL (Md.), Dec. 24, 2007, at B5 (reporting that states from Rhode Island to Arkansas to Oregon have proposed legislation that would make cyberbullying between students subject to expulsion or prosecution whethe r committed at school, at home or via cell phone text message). See, e.g ., OR. REV. STAT. ANN. 339.356 (2007) (providing that each school district shall adopt a policy prohibiting harassment, intimidation or bullying and prohibiting cyberbullying). 30 The author chose the stat e of Florida based on her familiarity of state law and the school district system.

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18 1. Under what circumstances may school o fficials punish students for the content of their online expression based on relevant case law and legal scholarship without violating the First Amendment?31 2. How have Florida schools districts implemented anti-cy berbullying policies?32 3. What are the typical free-speech pr oblems associated with anti-cyberbullying policies adopted by Florida school districts?33 4. Would the anti-cyberbullying policies adopted by Florida school districts pass constitutional muster if they were challenged in cour t on First Amendment?34 Chapter 2 of this thesis provides an over view of public school student First Amendment rights to free speech by tracing the history through relevant case law. Although no U.S. Supreme Court decision has specifically addre ssed the regulation of off-campus student speech,35 the author of this thesis examines scholarly literature on this topic to determine how these cases have been interpreted to potentially apply to cyberbullying. Chapter 3 describes the methodology used to select ten school districts within the state of Florida. It also compares and contrast s the school district policy provisions to determine the ways in which the public sch ool policies have been amended in light of Floridas 2008 anti-cyberbullying law. Chapter 4 then uses the filters of: a) U.S. Supreme Court precedent on student speech right s; b) relevant lower appellate court precedent on these rights; c) the rules of both the void for vagueness and overbreadth doctrines that often appl y to statutory measures; and d) the doctrines of true threats and fighting words to identify the provisions of the policy that could per haps be problematic 31 See Chapter One. 32 See Chapter Two. 33 See Chapter Three. 34 See Chapter Four. 35 See supra note 26.

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19 for the school district in protecting agains t cyberbullying behavior. Finally, Chapter 5 proposes a model policy, drafting language that most protects a students right to freedom of expression while simultaneously preventing unnecessary harm caused by bullying Internet speech. Notably, a literature review is wrapped up into Chapter 2.

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20 CHAPTER 2 CASE LAW AND LITERATURE REVI EW ON STUDENT SPEECH RIGHTS As one of the nations most basic princi ples for more than 215 years, the First Amendment to the U.S. Constituti on guarantees freedom of expression.1 This right was first extended to students, however, only forty-one years ago in Tinker v. Des Moines School District,2 when the U.S. Supreme Court hel d that students do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.3 Although the Court initially endorsed broad protection fo r student speech inside the schoolhouse gate,4 it has since carved out several exceptions to the free speech privileges students enjoy. Thus, it asks: Under what circumstances may public school officials punish students for the content of their online expression, based on relevant case law, legal doctrines and legal scholarsh ip, without violating the First Amendment? This chapter is divided into five parts. Part I reviews the trilogy of Supreme Court cases, namely Hazelwood School District v. Hazelwood ,5 Bethel School District v. Fraser6 and Tinker v. Des Moines Independent Community School District ,7 as well as 1Supra Chapter One, note 6. 2 393 U.S. 503 (1969). 3 Id. at 506. Martha McCartney, Anti-Harassment Provisions Revisited: No Bright-Line Rule 2008 BYU EDUC. & L. J. 225, 226 (stating that the seminal decision, Tinker v. Des Moines Independent Community School District marked the Supreme Courts entry into the arena of constitutional protection of students expression rights). 4 393 U.S. 503 at 506. 5 484 U.S. 260 (1988). 6 478 U.S. 675 (1986). 7 393 U.S. 503 (1968).

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21 the recent Morse v. Frederick8 decision handed down in 2007. Part II then analyzes relevant federal appellate court opinions, including Saxe v. State College Area School District9 and Sypniewski v. Warren Hills Re gional Board of Education ,10 as well as other appellate court opinions that specifically in fluence the law in Florida regarding student speech. Next, Part III brie fly examines two legal stand ards the void for vagueness doctrine and the overbreadth doctr ine that often are used by courts to measure the constitutionality and facial validity of any government statute or regulation targeting speech like cyberbullying. Finally, Part IV turns to both the true threats and fighting words doctrines to determine whether the decisions allow for the censorship of some forms of speech that may fall within the parameters of cyberbullying. Significantly, a review of the scholarly literature on each of these cases is encompassed within each of the parts. Part I: A Quartet of Supreme Court Opinions In defining the free expression rights of students in public schools, several U.S. Supreme Court cases have dev eloped impor tant precedent fo r lower courts to apply.11 Although none of these cases contemplates student Internet speech, any analysis of free speech in an educational setting must begi n under their precedents. Thus, this part analyzes a trio of landmark Supreme Court cases Tinker v. Des Moines Independent 8 551 U.S. 393 (2007). 9 240 F.3d 200 (3d Cir. 2000). 10 307 F.3d 243 (3d Cir. 2002). 11 CHARLES C. HAYNES ET AL., THE FIRST AMENDMENT IN SCHOOLS 59 (Association for Supervision & Curriculum Development 2003).

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22 Community School District,12 Bethel School District No. 403 v. Fraser13 and Hazelwood School District v. Hazelwood14 as well as one more recent significant decision, Morse v. Frederick,15 handed down by the Court in 2007. T he quartet of Supreme Court cases discussed in this part appears in chronological order. Tinker v. Des Moines Independe nt Communit y School District16 The U.S. Supreme Court provided str ong protection for student-speech rights in Tinker when it upheld a students right to wear black armbands to school in protest of the Vietnam War.17 In Tinker, three students John Tinker, 15, Mary Beth Tinker, 13, and Christopher Echardt, 16were suspended fr om school for wearing black armbands to their Des Moines, Iowa, schools in protest of the Vietnam War.18 When the three students nonetheless wore their armbands to sc hool, they were asked to remove them, but the students refused and were suspended fr om school until they would come back without their armbands.19 They then filed suit, asking for an injunction against the schools punishment.20 The Court ultimately struck the balance in favor of the st udents when it reasoned, 12 393 U.S. 503 (1968). 13 478 U.S. 675 (1986). 14 484 U.S. 260 (1988). 15 551 U.S. 393 (2007). 16 393 U.S. 503 (1969). 17 DON R. PEMBER & CLAY CALVERT, MASS MEDIA LAW 87 (2009 ed., McGraw-Hill 2008). 18 Tinker, 393 U.S at 504. After hearing of the students intent ion and fearing that the armbands would create a disturbance, the principals of Des Moiness public schools decided that all students wearing armbands would be asked to remove them or face suspension. Id. 19 Id. 20 Id.

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23 as one of its most famous maxims, that it can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.21 Reasoning that the wearing of armbands for the purpose of conveying a political message was expre ssive conduct protected by the First Amendment,22 the Court overturned the sc hools disciplinary measures.23 As the rule, the Court held that schools can ce nsor student expression when facts24 exist that might reasonably lead school authorities to forecast substantial disruption of or material interference with school activities25 or when the speech materially disrupts classwork or involves substantial disorder or invasion of the rights of others.26 Thus, courts and legal scholars have deemed Tinker the so-called materialand-substantial-disruption test.27 Although more than four decades have passed since the Tinker decision was handed down by the Supreme Court, Tinker remains a high water mark28 of student speech cases for its prot ection of student speech.29 Yet, the precise extent to which 21 Id. at 506. 22 Id. at 505. 23 Id. at 514. 24 The high court wrote that an undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression. Id. at 508. 25 Tinker, 393 U.S. at 514. 26 Id. at 513. 27 Hudson, supra Chapter One, note 26. 28 Nadine Strossen, Students Rights and How They Are Wronged 32 U. RICH. L. REV. 437 (1998). 29 See id. (explaining that it is the most protective of constitutional rights that we have ever seen). Frank LoMonte, Shrinking Tinker: Students are Persons Under Our ConstitutionExcept When They Arent 58 AM. U. L. REV. 1323, 1326-27 (2009) (explaining that Tinker remains good law because every Supreme

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24 students enjoy this privilege is the subject of much debate.30 As noted in a recent court opinion, Courts at all levels have dem onstrated confusion as to the scope of Tinker s holding . Courts disagree as to the broader question of whether the legal standard in Tinker is applicable more generally to all regulation of student speech and not simply speech that expresses a particularized view.31 This lack of resolve has resulted in inconsistent rulings in the many of the lower courts,32 unnecessary punishment of student speech,33 and perhaps most consequently, as Professor Clay Calvert put it, a misuse34 of Supreme Court prec edent in particular, Tinker to apply to situation[s] and scenario[s] t hat the Court in 1969 could hardly have imagined.35 Still, it appears as though the Tinker standard, albeit with some nuances,36 has been the precedent mo st frequently applied to incidents of homecreated, web-based expression.37 It would be seventeen years later before the Court Court ruling about student speech since 1969 has quoted Tinker as authority, and none has purported to overrule it). 30 See infra notes 32 and accompanying text. 31 Bar-Navon v. Sch. Bd. of Brevar d County, No. 6:06-cv-1434, 2007 WL 3284322, at 5 (M.D. Fla. Nov. 5, 2007). 32 See Denning, supra Chapter One, note 17, at 838 (stating that despite this small number of cases, lower courts have had difficulty synthesizing and appl ying [the quartet of Supreme Court cases] to the myriad fact situations t hey have encountered). 33 Nadine Strossen, Keeping the Constitution Inside the Schoolhouse Gate Students' Rights Thirty Years After Tinker v. Des Moines Independent Community School District 48 DRAKE L. REV. 445, 457. 34 Clay Calvert, Tinkers Midlife Crisis: Tattered and Transgressed But Still Standing 58 AM. U.L. REV. 1167, 1175 (2009) (explaining that some lower courts ar e are incorrectly applying it to censor off-campus student expression that is post ed on the World Wide Web). 35 Id at 1188. 36 Erb, supra Chapter One, note 18, at 263. 37 Id at 261.

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25 would accept its next student speech rights ca sethis time involving speech that could potentially be offensive to the school environment. Bethel School District No. 403 v. Fraser38 Nearly two decades later, the U.S. S upreme Court created an exception to the protections afforded student speech in Tinker when it upheld the right of a school to punish a student for giving a bawdy s peech during a high school assembly.39 Matthew Fraser made a speech nominating a fellow student for elective office in front of an assembly of about 600 high school students.40 The speech included what some have called an elaborate, graphic, an d explicit sexual metaphor41 to promote the candidacy of his friend.42 After school officials suspended Fras er for three days, citing part of its disciplinary code,43 Fraser sued, alleging a violation of his First Amendment rights to free speech.44 Upon establishing that Frasers speech was indecent, lewd, and offensive to the modesty and decency of many of the st udents and faculty in attendance of the 38 478 U.S. 675 (1986). 39 Id. Although it affirmed Tinker the Fraser Court took a much more restrictive view of student speech when it ruled that the school could suspend a stu dent for delivering a sexual double-entendre-laden speech to a captive audience of minors at a school-sponsored assembly. Calvert, supra Chapter One, note 25, at 712; See Papandrea, supra Chapter One, note 17, at 1045. 40 Id at 677. 41 Id. at 679. 42 Id at 677. 43 Id. at 678. The Court ruled that the code prohibited conduct which substantially interferes with the educational process including the use of obscene, profane language or gestures.Fraser served only two days of the suspension before being allowed to return to school. Id. at 679. 44 Fraser, 478 U.S. at 679.

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26 assembly, 45 the Court ruled in favor of the school district, holding that it had acted within its permissible authority in imposing sanctions upon Fraser in response to his offensively lewd and indecent speech.46 The Court thus synthesiz ed a rule, stating that if the penalties imposed [on the indecent, lewd or obscene speech]...were unrelated to any political viewpoint, 47 the school was permitted to punish the student for speech made during a school assembly that it found offensive.48 While some courts have gone beyond the facts of the case to apply Fraser to speech only deemed offensive, regardless of the cont ext or forum of where the speech occurred,49 several scholars,50 including Stanford Law pr ofessor and former dean of the 45 Id. at 678. 46 Id. at 686. Significant to the Supreme Courts decision was the dichotomy it determined existed between the political speech present in Tinker and the sexual expression in Fraser. For instance, the Court wrote that that [i]t does not follow, however, that simply because the use of an offensive form of expression may not be prohibited to adults making what the speaker considers a political point, the same latitude must be permitted to children in a public school. Id. at 682. 47 Id at 685. 48 Id 49 David L. Hudson, Jr. & John E. Ferguson, Jr., A First Amendment Focus: The Courts Inconsistent Treatment of Bethel v. Fraser and the Curtailment of Student Rights 36 J. MARSHALL L. REV. 181, 203 (2002) (emphasis added). These courts employ footnote four of Hazelwood School District v. Hazelwood, that states, the decision in Fraser rested on the vulgar, lewd, and plainly offensive character of a speech delivered at an official school assembly rather than on any propensity of the speech to materially disrupt class work or involve substantial disorder or in vasion of the rights of others, as proof of the Courts support of a broad reading. Id 50See Calvert supra Chapter One, note 17, at 271 (arguing that the Courts own phrasing of this issue makes it clear that the Fraser Court did not address the speech of minors in non-school-sponsored events or activities[and that] any rules articulated in this case thus do not control the Web-based expression at issue in this thesis); See also Erb, supra Chapter One, note 18, at 265-6 (stating that may be true even where the intended audience [is] undoubtedly connected to the school); Susan H. Kosse, Student Designed Home Web Pages: Does Title IX or the First Amendment Apply? 43 ARIZ. L. REV. 905, 926 (2001) (noting that the Frasers focus on sch ool-sponsored speech prevents it from applying to students websites that were created off-campus and not part of a school or extracurricular activity); Verga, supra Chapter One, note 17, at 743 (stating that even if the communicating student creates a website off campus then privately views at school, Fraser s prohibition on lewd, indecent or offensive oncampus speech is not triggered). This is dependent on whether the speech could be considered obscene or the ability for the school to maintain discipline in the school not on the students expressive activity alone. See Coy v. Bd. of Educ. of the N. Canton City Sch., 205 F. Supp. 2d 791, 795 (N.D. Ohio 2002).

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27 law school, Kathleen Sull ivan, have argued that Fraser does not apply to off-campus cyberspeech.51 Indeed, even Justice William J. Brennans concurring opinion in Fraser indicates that the Court intended Fraser to apply solely to on-campus speech. 52 The later Morse Court decision provided even more clarification of Fraser when it wrote that Fraser should not be read to encompass any speech that could fit under some definition of offensive.53 Whether the Justices were in the appropriate position to determine the offensiveness of the students speech has also been a point of contention for some scholars.54 This issue is of particularly releva nce to cyberbullying because, as Calvert and Richards put it, perhaps the same logic holds true today for judges grappling with the question of whether student ex pressions of violence conveyed in paintings, letters and poetry constitute true threats or substantial disruptions of the educational atmosphere.55 Although Fraser left many questions unanswered, it would only be two See also Erb, supra Chapter One, note 18, at 265 (stating that may be true even where the intended audience [is] undoubtedly connected to the school). 51 Kathleen M. Sullivan, Free Speech 35 PEPP. L. REV. 533, 538 (2008) (arguing that Frasers sexual remarks were not protected by the First Amendmen t and were able to be restricted as pedagogically inappropriate and contrary to t he schools educational mission). 52 Fraser 478 U.S. at 688 (Brennan, J., concurring). As he saw it, Fraser not does suggest that the students speech would be grounds for punishment if it was given outside the school setting. Id 53 Morse, 551 U.S. at 409. 54 Richards, supra Chapter One, note 17, at 11090 (citing Hazelwood 478 U.S. at 692 (Stevens, J., dissenting)). According to Richards and Calvert: For Justice Stevens, the student was probably in a better position to determine whether an audience composed of 600 of his contemporaries would be offended by the use of a four-letter word or a sexual metaphor than is a group of judges who are at least two generations and 3,000 miles away fr om the scene of the crime. Id. 55 Id at 1110.

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28 years before the U.S. Supreme Court would continue debating these issues in the final case of the student speech rights trilogy. Hazelwood School District v. Kuhlmeier56 In 1988, the U.S. Supreme Court ca rved out a second exception to the Tinker standard in Hazelwood School District v. Hazelwood57 when it ruled in favor of the school district to prohibit several articles from being published in the school-sponsored newspaper .58 At issue in Hazelwood was whether a public school could disassociate itself 59 from publishing stories in a school-s ponsored newspaper t hat contained ideas purportedly in conflict with the sc hools legitimate pedagogical concerns.60 When the case made it to the Supreme Court, the Ju stices ruled that public school curricular student newspapers that have not been establis hed as forums for student expression are subject to a lower level of First Amendment protection than independent student expression or newspapers established as forums for student expression.61 By applying the facts of the case to its rule, the Court ruled in favor of the school, holding that the 56 484 U.S. 260 (1988). 57 Id. 58 Id. at 263. Three student journalists at Hazelwood East High School had submitted stories to be published in the 1983 spring edition of the schools newspaper, the Spectrum, as part of the schools journalism curriculum. Id at 262. 59 Id at 270. As the Court saw it, [t]he question wh ether the First Amendment requires a school to tolerate particular student spee ch the question we addressed in Tinker is different from the question whether the First Amendment requires a school affi rmatively to promote particular student speech. Id. 60 Id at 262-65. 61 Id. at 261.

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29 school officials had not violated the students First Amendment rights in requiring the deletion of the articles.62 Although lower courts hav e had difficulty interpreting Hazelwood consistently in the myriad of contex ts it has been applied,63 legal commentators have agreed that Hazelwood provides little to no guidance in dealing with cyberbullying speech.64 For instance, according to an article published in 2009 by American University law professor Alexander Wohl, Hazelwood s focus on school-sponsored speech limits its application to off-campus Internet speech.65 SPLC head Frank LoMonte and Professor Denning and Taylor have likewise agreed, arguing that extending the Hazelwood decision beyond its initial holding would leave the decisi on of whether to punish the student up to school authorities.66 62 Id. (stating that school officials had acted reasonably in this case in requiring the deletion of the articles). 63 Alan Brownstein, The Nonforum as a First Amendment Category: Bringing Order Out of the Chaos of Free Speech Cases Involving School-Sponsored Activities 42 U.C. DAVIS L. REV. 717, 749 (2009) (explaining that courts and judges struggle with and debate the applicability of the Hazelwood standard in myriad contexts and employ diverse criteria in doing so"). 64 See infra notes 65 and accompanying text. 65 Alexander Wohl, Oiling the Schoolhouse Gate: After Forty Years of Tinkering with Teachers First Amendment Rights, Time for a New Beginning 58 AM. U.L. REV. 1285, 1298 (2008) (stating that the bottom line of the Hazelwood case was that educators may exercise censorial powers over the style and content of student speech if that control is rea sonably related to legitimate pedagogical concerns (quoting Fraser 478. U.S. at 273). See also, Calvert, supra Chapter One, note 17, at 270 (stating that Hazelwood has everything to do with in-school and sc hool-sponsored expression generated as part of the curriculum and nothing to do with expression cr eated off campus and independent of the schools sponsorship). 66 LoMonte, supra Chapter One, note 17, at 13367. Denning and Taylor, supra Chapter One, note 17 at 852 (arguing that a broad reading offers no clear criter ia offered for distinguishing that expression which schools may regulate under this framework and that which fall outside it).

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30 Morse v. Frederick67 In its fourth student speec h case in forty years, the Supreme Court ruled in Morse v. Frederick (2007) that a school wa s within its boundaries to censor student speech that promotes illegal drug use if the speech took place at a school-sponsored event.68 In Morse a banner reading BONG HiTS 4 JESUS became the center of controversy when a group of students att ending the Olympic Torch Relay in Juneau, Alaska, hoisted the banner aloft, in hopes that it would be captured by TV cameras.69 Deborah Morse, the principal of Juneau-Douglas High School, had permitted the students to attend the relay because of schoo ls close proximity to the parade route.70 Upon seeing the banner, Principal Morse immedi ately crossed the st reet to where the group of students was standing and dem anded the banner be taken down.71 Joseph Frederick was the only one to object, and he was later suspended for 10 days from school for his failure to comply with the principals demand.72 When the case made it to the Supreme Court, the Justic es rejected Fredericks argument that the principal had restricted off-campus speech or that it conveyed a political or religious message.73 Instead, the Justices held that a principal may, consistent with the First Amendment, restrict student speech at a school even t, when that speech is reasonably viewed as 67 551 U.S. 393 (2007). 68 Id at 397. 69 Id 70 Id 71 Id at 398. 72 551 U.S. 398. 73 Id. at 402.

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31 promoting illegal drug use.74 At issue in Morse was whether Frederick had a Fi rst Amendment right to wield his banner, and, if so, whether t hat right was so clearly est ablished that the principal may be held liable for damages.75 Rejecting Fredericks argument that the principal had restricted off-campus speech76 or that it conveyed a political or religious message,77 the Court held that a principal may, consistent with the First Amendment, restrict student speech at a school even t, when that speech is reasonably viewed as promoting illegal drug use.78 Courts have applied Morse broadly to encompass student speech that simply undermines the schools educational missi ons or threatens students safety.79 Yet, several legal commentators have argued that Morse dealt only with on-campus student speech construed as promoting illegal drug use and was not meant to directly address off-campus cyberbullying incidents or any student speech that interferes with the schools educational mission.80 Even Justice Alitos concurring opinion in Morse is 74 Id. at 403. 75 Id at 400. 76 Id. 77 Id. at 402. 78 Morse, 551 U.S. at 403. 79 Clay Calvert, Misuse and Abuse of Morse v. Frederick by Lower Courts: Stretching the High Courts Ruling Too Far to Censor Student Expression 32 SEATTLE U. L. REV. 1, 9 (2008) (noting that several court cases applying Morse have suggested that its holding provides the legal tool that school administrators need to squelch all manner, modes and varieties of student speec h that portend harm, be it physical or psychological). 80 Id. See also Markey, supra Chapter One, note 22, at 139; Erb, supra Chapter One, note 18, at 264 (acknowledging that Morse s affirmation of Tinker s substantial disruption test demonstrates that it was not meant to directly address the issue of off-camp us cyberbullying incidents that affect the campus community).

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32 noteworthy because he argues that the Court s decision does not permit public school official to censor any student speech that interferes with the schools educational mission.81 Thus, this thesis argues, as Professor Calvert summed it up, that the Morse decision must be confined narrowly to its unique facts lest schools become places where concerns about the harms and dangers of speech silence expression unnecessarily, rendering student speech sterile and dull, especially when it otherwise references violence of has the potential to offend others.82 The quartet of Supreme Court cases analyzed in the previous sections establishes four distinct tests for determi ning when student speech that takes place on campus may be squelched: (1) speech that is lewd and inappropriate; (3) speech that may be censored for legitimate pedagogical c oncerns; and (4) speech advocating illegal drug use. Although the Supreme Court has very clear ly defined the boundaries of oncampus speech, it has yet to rule definitively on off-campus speech,83 leaving lower courts to determine their own boundaries, some times at the expense of students free speech rights. Since most of the speech t hat would be labeled cyberbullying is produced off of school grounds by students on their home computers or cellphones, the lack of clarity in what constitutes off-cam pus speech has created ambiguity in how far a schools authority extends.84 81 Morse 551 U.S. at 423 (Alito, J., concurring) (noting that the educational mission standard can be easily manipulated in dangerous ways by public officials with authority over schools). 82 Calvert, supra note 80, at 8. 83 Hudson, supra Chapter One, note 26. 84 Denning, supra Chapter One, note 17, at 837.

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33 The U.S. Supreme Court has ruled that off-campus speech is entitled to more First Amendment protection.85 Nonetheless, most lower courts have analogized incidents to cases involving underground newspapers,86 and applied the Tinker standard.87 According to attorney Bryan Star rett, schools that have punished offcampus student Internet speech have justifi ed such punishment by attempting to link the off-campus speech to some type of on-campus event or disruption.88 This link, or sufficient nexus, has been established in case s where a student accessed a web site on school during class89 and in cases where the web site c ontent was aimed specifically at the school and carried by students onto campus.90 In cases where a sufficient nexus between the web site and the school campus91 cannot be established, the court may then examine if the of f-campus speech has substantially or materially disrupted the learning environment.92 85 Porter v. Ascension Parish Sch. Bd., 393 F.3d 608, 613 (5th Cir. 2004). 86 Erb, supra Chapter One, note 18, at 264. 87 See e.g., Beussink v. Woodland R-IV Sch. Dist., 30 F. Supp. 2d 1175 (E.D. Mo. 1998) (using the Tinker standard for on-campus speech when student s and teachers access the web site on school computers, but ruling that the web site did not cause a substantial disturbance). 88 Bryan Starrett, Tinkers Facebook Profile: A New Test for Protecting Student Cyber Speech VA. J. L. & TECH 212, 223 (2009). 89 Erb, supra Chapter One, note 18, at 264. See, e.g., J.S. 807 A.2d at 852, 865 (involving a case where students and administrators acce ss a web site at school); Beussink 30 F. Supp. 2d at 1177-80 (E.D. Mo. 1998) (involving 90 Id (stating that, in some jurisdictions, when cyber-s peech is aimed at a specific school or its personnel and is brought onto campus, the speech will be considered on-campus). See, e.g., J.S., 807 A.2d at 865. 91 J.S., 807 A.2d at 865. See Erb, supra Chapter One, note 18, at 264 n.51 (stating that the determination of whether a sufficient nexus exists bet ween off-campus speech and a school environment is based upon the point of receipt, not necessarily transmission); see also Layshock v. Hermitage Sch. Dist., 496 F. Supp. 2d 587, 598 (W.D. Pa. 2007) ("It is cl ear that the test for sc hool authority is not geographical. The reach of school administrators is not st rictly limited to the school's physical property"). 92 Id. at 266. See Beussink 30 F. Supp. 2d at 1175.

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34 Whether a substantial disruption has occurred has also been a point of contention. According to attorney Todd Erb, courts have reasoned that there must be more than some mild distraction or curiosity created by the speech,93 or a sort of heightened Tinker test,94 under which the school would be required to meet a higher burden of proof before the st udent could be punished for his or her online speech.95 Others have focused on the intent of the speech,96 the type of technology used, 97 or a combination of methods98 to determine whether the speech should be punished. Next, Part II addresses two federal appella te court opinions on student speech, Saxe v. State College Area School District99 and Sypniewski v. Warren Hil ls Regional School Distric t.100 Part II: A Double Act of Discrim inator y School District Policies Twice in two years, the U.S. Court of Appeals for the Third Circuit was asked to weighed in on the constitutionality of student speech policies based on controversial student speech topics such as religion and race. These cases Saxe v. State College 93 Id. 94 See Denning, supra Chapter One, note 17; See also Sandi S. Li, The Need for a New, Uniform Standard: The Continued Threat to Internet Related Student Speech 26 LOY. L.A. ENT. L. REV. 65 (2005). 95 Id. 96 See Markey, supra Chapter One, note 22; Roberts, supra Chapter One, note 17. 97 Kenneth R. Pike, Locating the Mislaid Gate: Revitalizing Tinker by Repairing Judicial Overgeneralizations of Technologically Enabled Student Speech 2008 BYU L. REV. 971, 1002 (2008). 98 See Starrett, supra note 156, at 2312 (proposing a two-pro nged test for analyzing student speech on the Internet, based on objective intent and foreseeability. See also Alexander G. Tuneski, Note, Online, Not on Grounds: Protecting Student Internet Speec h, 89 VA. L. REV. 139, 147 (2003) (advocating a geographical and intent-based test). 99 240 F.3d 200 (3d Cir. 2000). 100 307 F.3d 243 (3d Cir. 2002).

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35 Area School District ( 2000) and Sypniewski v. Warren Hills Regional School Distric t (2002)also illustrate how difficult it is fo r school boards to write and enforce policies that regulate student speech Saxe v. State College Area School District101 In Saxe the United States Court of Appeals for the Third Circuit ruled that a Pennsylvania public school districts antiharassment policy was overbroad because it appeared to cover substantially more s peech than could be prohibited under the Tinker substantial disruption test.102 The case arose out of t he adoption of the State College Area School District (SCACD) anti-harassment policy to pro vid[e] all students with a safe, secure, and nurturing school environment.103 The policy was meant to prohibit behavior with the purpose or effect of substantially interfering with a students educational performance or creating an intimidating, hostile or offensive environment.104 It provided several examples of harassment, including: any unwelcome verbal, written or physical conduc t which offends, denigrates or belittles an individual105 and included harassment based on any personal characteristic including race, religion, color, national origin, gender, sexual orientation, disability, or other personal characteristics.106 101 240 F.3d 200 (3d Cir. 2000). 102 Id. at 216. 103 Id at 202. 104 Id at 202-203. 105 Id. at 215. 106 Id.

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36 After the policy was adopt ed, the guardian of two students, David Warren Saxe, filed suit against the school district, all eging that the policy prohibited protected speech.107 The students argued that they were likely to be punished under the Policy for speaking out about their religious beliefs,108 namely that homosexuality is a sin.109 At issue was whether the anti-hara ssment policys language went beyond its boundaries to restrict speech that was protected by the First Amendment.110 Although Judge (now Supreme Court Justice) Samuel Alito acknowledged t hat non-expressive, physically harassing conduct is entirely outside the ambit of the free speech clause,111 he expressed concern that the policy did not require any threshold showing of severity or pervasiveness.112 As Judge Alito pointed out, the mere fact that someone might take offense at the content of speech is not sufficient justification for prohibiting it."113 Because the policy could essentially be appli ed to any speech that a person might find offensive, 114 including much core political and religious speech,115 the appellate court ruled in favor of Saxe and held that the policy was overbroad in violation of First 107 Id The plaintiffs, therefore, sought to have the Policy declared unconstitutionally vague and overbroad and its operation permanently enjoined). Id at 204. 108 Id at 203. 109 Id 110 Id. 111 There is of course no question that non-expressiv e, physically harassing cond uct is entirely outside the ambit of the free speech clause. Id. at 206. 112 Id. 113 Id. at 215. 114 Saxe, 240 F.3d at 223. 115 Id at 217.

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37 Amendment guarantees of free speech.116 Thus, the court rul ed that although a public school may adopt regulations more protective than existing law,117 a policy is likely to be struck down for overbreadth if its ver y existence will inhi bit free expression.118 Sypniewski v. Warren Hills Regional Board of Education119 Is the word redneck racially divisi ve? Does wearing a shirt emblazoned with that word create ill-will or hatred? According to the feder al appellate court ruling in Sypniewsi v. Warren Hills Board of Education ,120 it depends on hist ory of the school district. In Sypniewski the Third Circuit was once again charged with examining a schools anti-harassment policy. Warren Hills Regional High School adopted a policy to address a pattern of racial proble ms that had existed at the school.121 When Thomas Sypniewski and his two brothers wore a Jeff Foxworthy T-shirt featuring humorous phrases about being a redneck, they were suspended from school for wearing clothes the school felt were offensive, disr uptive and violated the school dress code.122 116 Id. 117 Id. at 210. 118 Id. at 214. The court reasoned that the First Amendment protects a wide variety of speech that listeners may consider deeply offensive. Id at 206. 119 307 F.3d 243 (3d. Cir. 2002). 120 Id 121 Id at 246. The policy included that : District employees and student(s ) shall not racially harass or intimidate other student(s) or employee(s) by name calling, using racial or derogatory slurs, wearing or possession of items depicting or implying racial hatred or prejudice. District employees and students shall not at school on school property or at school activities wear or have in their possession any written material, either printed or in their own handwriting, that is racially divisive or creates ill will or hatred. Id 122 Id at 250-51, 255. Prior to the enactment of t he policy, the school board found that there had been significant disruption in the school and that the mi nority population was at significant risk for not only verbal and intimidating harassment but also, increasingly, physical violence. Id at 249.

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38 Plaintiffs then filed suit against the school district, claiming that both the racial harassment and dress code policies were unconstitutional.123 Plaintiffs appealed to the Third Circuit solely on the racial harassment po licy issue after losing at the district court level. In writing for the circuit court, Judge Anthony Joseph Scirica observed that the policy differs from Saxe not only in language, but also in the circumstances it addresses.124 Because of the history of racial tension at the school, the court found that the school district had presented substant ial evidence of disruption that constitutes a solid foundation for fear of future disruption.125 Although the Sypniewski court found the Warren Hills policy to be sufficiently mo re narrow than the SCACD policy, it still found one provision to be overbroadthe phras e prohibiting speech that creates illwill.126 In contrast to Saxe, rather than strike down the entire policy, the court determined that it could still be im plemented with this one phrase removed.127 Thus, in fashioning a rule, the appellate court held that a school disciplinar y policy will be struck down as overbroad only after cons ideration of the special nee ds of school discipline has been brought to bear together wit h the laws general hesitation to apply [the overbreadth 123 Id at 252. 124 Id at 262. 125 Id. at 274. 126 Id at 265. The Third Circuit ruled that speech cr eating ill will could be broadly interpreted as going beyond a link to a disruption required under Tinker and ordered the school to eliminate the phrase. Id 127 Id.

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39 doctrine].128 Although the anti-harassment policy was upheld in Sypniewski the school authorities judgment in enforcing the policy in this particular instance was overruled.129 The Third Circuit in both Saxe and Sypniewski ruled, at least in part, against the school districts. It is not an indication, however, that all speech that might offend is protected in the public school setting.130 Indeed, according to attorney David Hudson, if Sypniewski teaches us anything, its that school officials at least within the Third Circuit must carefully document incidents of racial tension at their schools before adopted a racial harassment policy.131 Without those specific racial problems, the Saxe courts decision suggests that the po licy would likely be unconstitutional.132 Although most cases involving challe nges to religious and racial speech restrictions have involved university or college campus speech codes, the Supreme 128 Id at 260. 129 Martha McCarthy, Anti-Harassment Provisions Revisited: No Bright-Line Rule 2008 BYU EDUC. & L. J. 225, 235 (2008). 130 Calvert, supra Chapter Two, note 35, at 711. This decision is in line with other court precedents protecting the ability of schools to regulate offens ive clothing without infringing on students First Amendment rights. Id. at 712. See Boroff v. Van Wert Bd. of Educ., 220 F.3d 465, 460 (6th Cir. 2000) (ruling that where Boroffs T-shirts contains symbols and words that promote valu es that are so patently contrary to the schools education mission, the School has the authority, under the circumstances of this case, to prohibit those T-shirts). 131 David L. Hudson, Court Strikes One Provisions of School Racial Harassment Policy The First Amendment and the Media, Media Institute, http://www.mediainstitute.org/ONLINE/FAM2003/6-g.html (last visited Apr. 17, 2010). See also Emily Gold Waldman, A Post-Morse Framework for Students' Potentially Hurtful Speech (Religious and Otherwise) 37 J.L. & EDUC. 463, 475 (2008). According to Walkman: Had the policy been narrowed to prohibit only verbal or physical conduct based on ones actual or perceived personal characteristics and which has the effect of substantially interfering with a students educational per formance or creating a school environment that is severely or pervasively intimidating, hostile, or offensive the Saxe court might well have upheld it. Id 132 Sypniewski, 307 F.3d at 265. This reliance on the backgr ound of turmoil at a particularly place and a particular time means that the policy would likely be unconstitutional in another school district, or even in Warren Hills at a different time.

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40 Court and lower courts have generally held that college students po ssess greater free speech rights than do elementary and high school students.133 Yet, the Court has also held in Tinker that students in school as well as out of school are persons under our Constitution They are possessed of f undamental rights which the State must respect.134 Thus, courts dealing with these issues have faced considerable difficulty in reconciling their opinions.135 According to Professor McCarthy, these cases are particularly sensitive because they highli ght the tension between the protection of students First Amendment rights to freely express their views, including religious views, and the school authorities duty to main a respectful and civil school environment.136 As two scholars noted, although school official s may craft such re gulations with the laudable intent of creating and maintaining a safe educational environment, they are often replete with amorphous definitions and vague proscriptions that span over protected categories of speech and thus provoke a constitutional showdown.137 Schools that prohibit students from distri buting proselytizing materials during school hours, or decline to authorize students religious clubs generally cite their concern that students will perceive some leve l of school endorsement of the religious speech.138 Schools prohibiting harassing speech have been more concerned about 133 See, e.g ., Healy v. James, 408 U.S. 169 (1972) (affirming public college students First Amendment rights of free speech and association). 134 Tinker v. Des Moines Indep. Cmty. Sch. Dist. 393 U.S. 503, 511 (1969). 135 McCarthy, supra Chapter Two, note 201, at 225. 136 Id 137 Calvert, supra Chapter Two, note 35, at 708. 138 Waldman, supra note 131, at 463.

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41 complaints by other students who feel har assed, especially since 1999 when the Court ruled that a student could her sue school for showing deliberate indifference to known acts139 of severe and pervasive peer harassment. Yet, according to Ivan Bodensteiner, a professor at Valparaiso University School of Law, while it does not prevent school officials from addressing peer harassment of students, the First Amendment must be considered carefully when preparing a regulation designed to address harassment.140 The discussion of the facial challenges of void for vagueness and overbreadth in Saxe and Sypniewski bring to the forefront another body of law that is important to mention in drafting and analyzing school di strict policy, the void for vagueness and overbreadth doctrines, that have specific and potential legal implications for cyberbullying provisions. Part III: A Duo of Legal Doctrines The practice of using facial ch allenges, such as void for vagueness and overbreadth, has long been used in American law to allow lit igants to challenge a law that infringes on a peoples free-expr ession rights a persons speech is unconstitutionally silenced.141 Although these doctrines do not find their basis in student speech rights cases,142 they can often be applied to instances such as when 139 Davis v. Monroe County Bd. of Educ., 526 U.S. 629, 632 (1999). 140 Ivan E. Bodensteiner, Peer Harassment Interference With an Equal Education Opportunity in Elementary and Secondary Schools 79 NEB. L. REV. 1, 12 (2000). 141 Rachel Seeman Collins, How a Facial Challenge Could Play Out in Animal-Cruelty Case First Amendment Center, July 28, 2009, http://www.firstamendmentcenter.org/analysis.aspx?id21886 (last visited Mar. 19, 2010). 142 While free speech claims are rooted in the First Amendment, claims arising under the void-forvagueness doctrine are rooted in the due process clauses of the Fifth and Fourteenth Amendments.

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42 schools develop policies that contain language that is indistinct or imprecise143 or that potentially reaches too much protected speech.144 Thus, this thesis turns now to a discussion of both the void for vagueness and overbreadth doctrines and how they affect school district policies regulating cyberbullying speech. Void for Vagueness Doctrine Perhaps the most famous pronouncement of the void for vagueness doctrine was put forth by Justice Clarence A. Southerland when he wrote, in Connally v. General Construction Company that a statute or regulation is void for vagueness when men of common intelligence must necessarily guess at its meaning and differ as to its application.145 This means that the law or regulat ion must be tailored in such a way that a reasonable person c ould understand its meaning.146 The U.S. Supreme Court has added to the precedent in two other ways: Fo r a law not to be vague in a way that it is constitutionally infirm, it must give adequate warning of what activities it proscribes and set out explicit standards for those who must apply it.147 Additionally, it must prevent arbitrary and di scriminatory enforcement.148 143 See supra note 145152. See also Vague, BLACKS LAW DICTIONARY (8th ed. 2004) (defining the term "vague") 144 See infra notes 1569 and accompanying text. 145 269 U.S. 385, 391 (1926). This pronouncement was also used by the court to Broadrick v. Oklahoma to explain the Courts opinion. See Broadrick v. Oklahoma, 413 U.S. 601, 607 (1973). The Court held that vague laws violated he first esse ntial of due process of law. 146 ERWIN CHEMERINSKY, CONSTITUTIONAL LAW PRINCIPLES AND POLITICS 763 (1997) (stating that a law is unconstitutionally vague if a reas onable person cannot tell what speech is prohibited and what is permitted). 147 Broadrick, 413 U.S. 608 (quoting Grayned v. City of Rockford, 408 U.S. 104, 108 (1972)). 148 Smith v. Goguen, 415 U.S. 566, 573 (1974).

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43 While the void-for-vagueness doctrine is co mpletely distinguishable from and not dependent upon any free speech considerations,149 a website hosted by the University of Kentucky School of Law maintains that t he Court has indicated that a higher decree of clarity is demanded when the law in question thr eatens fundamental First Amendment Rights.150 Indeed, the Supreme Court has held that a more stringent vagueness test151 should apply to laws that interfer e with the right of free speech. Thus, the law or regulation should be narrowly ta ilored in such a way that it regulates no more speech than is necessary to accomplish its objective.152 Although courts have dete rmined that non-threatening, off-campus cyberspeech merits First Amendment protection, the provis ions that govern that expression within the confines of an educational institution mi ght ensnare more speech than intended when the policy language is vague, or undefined. In 2001, the Supreme Court of Arkansas declared unconstitutional a statute that made it a misdemeanor for any person to abuse or insult a public school teacher who is performing normal and regular or assignment school responsibilities.153 In 1997, a school districts policy was ruled void for vagueness for fail[ing] to provide adequate notice to Plaintiffs regarding prohibited conduct154 for its ban on gang-related apparel. Alt hough the school officials intentions 149 Rios v. Lane, 812 F.2d 1032, 1039 (7th Cir. 1987). 150 Darren Linder, Doctrines of Substantial Over breadth and Vagueness, Exploring Constitutional Conflicts, www.law.umkc.edu/faculty/projects /ftrials/conlaw/overbreadth.html (last visited Apr. 17, 2010). 151 Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 499 (1982). 152 See, e.g., Simon & Schuster, Inc. v. Members of N. Y. State Crime Victims Bd., 502 U.S. 105 (1991) (explaining that even where there is a compelling government al interest, a regulation will be struck down if it not narrowly tailored). 153 Shoemaker v. State, 38 S.W.3d 350, 351 (Ark. 2001). 154 Chalifoux v. New Caney Independent Sch. Dist. 976 F. Supp. 659, 671 (S.D. Tex. 1997).

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44 for adopting such a policy might have been to protect the students, they demonstrate the likelihood for a school di strict to render nugatory155 a school policy that is void for vagueness. Overbreadth Doctrine A facial challenge closely related to void of vagueness is the doctrine of overbreadth. In fact, the void-for-vagueness and overbreadth doctrines work hand-inhand in such as way that if a law is challe nged for its vagueness, it also usually is challenged for being overbroad. If a law is struck down for vagueness, it is usually because the court has recognized the l anguage as being too broad and potentially subject to abuse through selective enforcemen t, which can lead to content or viewpoint discrimination. But what makes a statute or regulation overly broad? The doctrine of overbreadth was first explicitly recognized in Broadrick v. Oklahoma156 in 1973 when the U.S. Supreme Court wr ote that to invalidate a law, the overbreadth of the statute mu st not only be real but substantial as well, judged in relation to the statutes plainly legitimate sweep.157 The Court has also held that a statute is overbroad if it sweeps within t he ambit a substantial amount of protected speech along with that which it may legitimately regulate.158 As summed up by Erwin Chemerinsky, dean of University of Calif ornia Irvine School of Law, a law is unconstitutionally overbroad if it regulat es substantially more speech than the 155 Nugatory, MERRIAM-WEBSTER ONLINE DICTIONARY (2010) (defining "nugatory" as "having no force" or "of little to no consequence"). 156 413 U.S. 601, 607 (1973). 157 Id at 615. 158 Doe v. Univ. of Mich., 721 F. Supp. 852, 864 (E.D. Mich. 1989).

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45 Constitution allows to be regulated and a per son to whom the law constitutionally can be applied can argue that it would be unc onstitutional as applied to others.159 The doctrine of overbreadth, as appli ed to student speech, can be analyzed through the recent federal appellate court decision of Dejohn v. Temple University .160 In 2006, the U.S. Court of Appeal s for the Third Circuit in Dejohn struck down the universitys antiharassment policy.161 Borrowing language from the Third Circuits earlier court opinion in Saxe the court reasoned that the policys use of hostile, offensive and gender-motivated barred an over ly broad range of activities that could conceivably be applied to cover any s peech of a gender-motivated nature that offends.162 Thus, in unanimous decision, a three-judge panel declared the policy overbroad because it cover[ed] more speech than could be prohibited under Tinker s substantial disruption test as well as speech that d[id] not rise to the level of fighting words.163 Legal commentators, including attor ney Lee Ann Rabe, have recognized that school speech codes are routinely drafted broadly in order to eliminate as much potentially offensive speech from the campus as possible.164 Azhar Majeed, legal fellow for the Foundation of Individual Rights in Ed ucation, argues that because speech codes 159 CHEMERINSKY, supra note 146, at 764-65. 160 537 F.3d 301 (3d Cir. 2008). 161 Id. at 320. 162 Id (quoting Saxe 240 F.3d at 217) 163 Id 164 Lee Ann Rabe, Sticks and Stones: The First Amendment and Campus Speech Codes 37 J. MARSHALL L. REV. 205, 225 (2003).

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46 often are overbroad or vague, they are likely to have a detrimental effect on student speech, whether by creating a chilling effec t, suppressing disfavored speech or stifling speech so pervasively that it threat en[s] the very vitality and functioning165 of the school.166 According to Majeer, speech codes also are likely to provide students with inadequate notice of the categories of speech t hat are prohibited the forms that remain permissible,167 potentially causing speakers to re frain from speaking out altogether,168 and detracting from the [ schools] function as a true marketplace of ideas.169 Yet, courts have ruled, specific to the nat ure of school district policies, that these rules need not be as detailed as criminal code which imposes criminal sanctions.170 As demonstrated by the Sypniewski courts decision, although school disciplinary rules will be struck down on this basis only when the vagueness is especially problematic,171 it also observed that vagueness does not always lead to a ruling of invalidity .172 It is perhaps for these reasons that the Sypniewski court pointed out that it is inappropriate 165 Ahzar Majeed, Defying the Constitution: The Rise, Persistence and Prevalence of Campus Speech Codes 7 GEO. L. J. & PUB. POLY, 481, 499 (2009). 166 Id. 167 Id at 500. 168 Id. 169 Id 170 See, e.g., S ypniewski, 307 F.3d at 266 (quoting Fraser 478 U.S. at 686). 171 Sypniewski, 307 F.3d at 279. The Court found the phrase ill will to be subject to interpretation, and thus, problematic under the void for vagueness doctrine The court did acknowledge, however, that minus the racial tension, the entire policy coul d have been construed as unconstitutional. 172 To the extent that the school enj oined further enforcement of the po licys ill will provision or the Tshirt, the appellate court did not find the schools policy overbroad. Id.

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47 to expect the same level of precision in drafting school disciplinary policies as is expected of legislative bodies crafting criminal restrictions.173 Whereas the void for vagueness and ov erbreadth doctrine serve to safeguard speech that may not be protected if cons titutionally challenged on an as-applied basis, there are several types of speech that the Supreme Cour t and lower courts have held are never protected by the First Amendment. These types of speech, as discussed in the next two sections, are fight ing words and true threats. Part IV: Legal Issues Pertaining to Non Protected Speech The next two sections discuss two legal do ctrines that are never protected by the First Amendment. Where cyberbully ing crosses the threshold into being a true threat of incitement by fighting words, a school di strict would be within its boundaries to punish the student for his or her speech. True Threats Doctrine The Supreme Court has held that true threats, or statements where as speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals,174 are not protected by the First Amendment.175 This precedent was first put forth in Virginia v. Black in 2003, a case involving two separate convictions of th ree individuals for violation of a Virginia 173 Id at 263. Compare, Fraser 478 U.S. at 686 (Given the schools need to be able to impose disciplinary sanctions for a wide range of unanticipated conduct disruptive of the educational process, the school disciplinary rules need not be as detailed as a cr iminal code which imposes criminal sanctions). 174 Virginia v. Black, 538 U.S. 343 (2002). 175 Id. Writing for the Court, Justice Sandra Day OConnor found the statute unconst itutional but held that a state, consistent with the First Amendment, ma y ban cross burning carried out with the intent to intimidate. Id at 347.

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48 statute against cross burning.176 But what exactly does a true threat entail? Although the high court has made clear in 1969 in Watts v. United States177 that true threats are punishable, it has never explicit def ined what constitutes a true threat.178 According to Professor Ashley Packard, this may be due to the fact that the m eaning of threats is dependent upon the context in which the speech takes place.179 Since Watts lower courts have defined a true threat as a statement where a speaker means to communicate a serious expr ession of an intent to commit an act of unlawful violence to a particu larly individual or group.180 They have developed different tests for analyzing the true threats doctrine181 but often recognize three essential justifications for proscribing threatening speech preventing fear, preventing the disruption that follows from that fear, and diminishing the likelihood that the threatened violence will occur.182 Yet, none of these has been used as part of the U.S. Supreme Courts reasoning in deciding a case based on the true threats doctrine.183 Although the 176 Id. at 347. 177 394 U.S. 705, 707 (1969) (observing that what is a threat must be distinguished from what is constitutionally protected speech). 178 Ashley Packard, Threats or theater: Does Planned Parenthood v. American Coalition of Life Activist Signify that Tests for True Threats Need to Change?, 5 COMM. L. & POLY 235, 237 (2000). 179 Id. 180 See, e.g ., LaTour v. Riverside Beaver Sch. Dist., No. 05-1076, 2005 WL 21065 62 (W.D. Pa. Aug. 24, 2005) (enjoining school from punishing a student for rap song lyrics). 181 Hudson, supra Chapter One, note 26. 182 Andrew P. Stanner, Toward an Improved True Threat Doctrine for Student Speakers 81 N.Y.U. L. REV. 385, 388 (2006) (citing to Black 538 U.S. at 359 (quoting R.A.V., 505 U.S. at 388)). 183 Indeed, in both of these cases, the phrases appear in dicta or in a parenthetical aside in dicta, where the Courts rulings were decided on grounds wholly unrelated to threatening speech. Stanner, supra note 279, at 393 n.50. See, e.g., Black 538 U.S. 343, 35960 (2003); R.A.V ., 505 U.S. 377, 388 (1992). 183 Id. at 393 n.50.

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49 quartet of Supreme Court st udent-speech cases did not address speech that constitutes a true threat, the doctrine that began under Watts v. United States provides the precedent most often applied to s quelch such threats on campus.184 Events such as the shooting at Columbin e seemed to give school administrators all the reasons legitimate or illegiti mate they needed to trounce the First Amendments of public school students in the name of preventing violence.185 Officials have found plenty of the support they need in the Supreme Court precedent of Hazelwood and Tinker to implement zero-tolerance policies, that allow the schools to quickly suspend of expel students found to have violated the law or school policies.186 Where cyberbullying crosses the threshold of being a true threat, such speech may be beyond of First Amendment protection.187 But it could be argued that all not cyberbullying reaches the threshold of being a true threat. According to Professor Norman T. Deutsch, of Albany Law School, although the Court has recognized that government has a strong interest in protecting its citizens from threatsit has also recognized that the definition of constituti onally proscribable thre ats must be made in light of the speech values at stake.188 Turbert seconded this notion, stating that: 184 Kevin Turbert, Faceless Bullies: Legislative and Judicial Responses to Cyberbullying 33 SETON HALL LEGIS. J. 651, 670 (2009) (stating that the doctrine also acts as a separate standard from the tetralogys standards and offers school districts another avenue to constitutionally suppress and punish potentially dangerous student expression). 185 Richards, supra Chapter One, note 17, at 1091. 186 Hudson, Jr., supra note 103, at 181 (stating that the movem ent toward increasing censorship by school officials has only escalated after a series of school shooting, culmi nating in the tragedy at Columbine High School). 187 Id. 188 Norman T. Deutsch, Professor Nimmer Meets Professor Scha uer (and Others): An Analysis of Definitional Balancing as a Methodology for De termining the Visible Boundaries of the First

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50 While many instances of cyber bullying involve extreme derogatory comments directed toward a victimiz ed student, these remarks will usually not be considered true threats. True threats are not protected under the Constitution, so the recognition of one will allow schools and law enforcement to punish pure off-campus speech without fear of violating a students First Amendment rights.189 Thus, while it is tempting to restrict speech that poses any level of threat to the school district, 190 school administrators must consider the origin of the speech as required by the Supreme Court in Porter v. Ascension Parish School Board.191 In summation, lower courts dealing with student speech are held to certain standards put forth by the Supreme Court and federal appellate court rulings discussed above. How these precedents s hould be applied to the issue of cyberbullying is, yet, unclear because the Supreme court has never addressed a cyberspeech case. to address a Where the speech oc curs off-campus is can be argued that the quartet of Supreme Court applies only to on-campus s peech, except perhaps when such speech causes a substantial disruption to the school environment, as defined by Tinker These policies must neither include language that is imprecise nor attempts to regulate too much protected speech. Finally, schools mu st not be too quick to regulate threatening speech that occurs off-campus unless such speech reaches the threshold of being a true threat or fighting words. Beyond true threats, there is one other category of Amendment, 39 AKRON L. REV. 483, 507 (2006) (quoting R.A.V ., 505 U.S. at 388 and Watts v. United States, 394 U.S. 705, 707 (1969)). 189 Turbert, supra note 184, at 6701. 190 Calvert, supra note 32, at 284. 191 Porter v. Ascension Parish Sch. Bd., 393 F.3d 608, 613 (5th Cir. 2004) (requiring greater First Amendment protection of off-campus speech).

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51 speech that could apply to cyberbullying fighting words. Thus, this thesis moves onto to a discussion of the fighting words doctr ine and its application to student speech. Fighting Words Doctrine The Supreme Court has developed several tests in determining what speech is protected and not protected by the First Ame ndment. One such test is the so-called fighting words doctrine that was first announced in Chaplinsky v. New Hampshire .192 Walter Chaplinsky, a Jehovahs Witness, wa s convicted of violating a New Hampshire statute prohibiting the use of offensive, insulting language toward persons in a public place for calling city marshal a G od-damned racketeer and a damned fascist.193 Writing for a unanimous Court, Justice Frank Murphy famously wrot e that there are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any constitutional problem. These include insulting or f ighting words those that by their very utterance inflict injury or tend to incite an immediate breach of the peace.194 According to the Court, fighting words are of such slight social value that any benefit that may be derived from them is clearly outwe ighed by the social intere st in order and morality.195 Despite the ruling in Chaplinsky and its continued reaffirmation of the fightingwords doctrine,196 several cases have served to narrow the fighting words doctrine to 192 315 U.S. 568 (1942). 193 Id. at 569. 194 Id at 572. 195 Id 196 What is the Fighting Words Doctrine? FreedomForum.org, http://www.freedomforum.org/templates/document.asp?documentID=13718 (last visited Mar. 19, 2010) [hereinafter Fighting Words Doctrine]

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52 face-to-face confrontations197 and no Supreme Court case has upheld a fighting words conviction since Chaplinsky .198 On the other hand, several cases, including Gooding v. Mitchell199 and R.A.V. v. Cit y of St. Paul200 have demonstrated that statutes can be overturned without reaching the issue of whether the language constituted fighting words.201 These cases employ the void fo r vagueness and overbreadth doctrine to avoid reaching the issue of whether the language constitutes fighting words.202 Gooding involved a conviction of a man who refused to comply with policy orders to cease blocking a building entrance, for vi olation of a statute prohibiting the use of opprobrious words or abusive language.203 Declining to review the circumstances surrounding the challenged speech, the Court overturned the conviction, holding that the statute restricted speech t hat was beyond fighting words.204 Twenty years later the 197 Cohen v. California, 403 U.S. 15, 20 (1971) (holding that to determine if an utterance should be classified as fighting words all the circumstances mu st be examined, including the personal nature of the insult, the abusive nature of the insult, and the likelihood of immediate retaliation and that a state could not restrict speech merely because it believed vi olence would occur); Gooding v. Wilson, 405 U.S. 518 (1972) (reading Chaplinsky narrowly as only prohibiting words which have a direct tendency to cause acts of violence by the person to whom, individually, t he remark is addressed); R.A. V. v. City of St. Paul, 505 U.S. 377 (1992) (overturning Robert Viktorias conviction and striking down a Minnesota statute prohibiting bias-motivated crimes because it was facially unconstitutional); Wisconsin v. Mitchell, 508 U.S. 476 (1993) (holding that enhanced sentencing for bias-motivated crimes does not violate a defendants First Amendment rights). See Gooding 393 U.S. 518, 525, 528 (1972) (invalidating a conviction of an individual for cursing at a police o fficer, finding that the ordinance in question was unconstitutionally overbroad). 198 Fighting Words Doctrine, supra note 196. 199 393 U.S. 518 (1972). 200 505 U.S. 377 (1992). 201 See supra notes 20317 and accompanying text. 202 Adam Milani, Harassing Speech in the Public Schools: The Validity of Schools Regulation of Fighting Words and the Consequences If They Do Not 28 AKRON L. REV. 187, 196 (1995). 203 405 U.S. at 525, 528. 204 Id.

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53 Court heard another fighting words case, in R.A.V. v. City of St. Paul,205 where it struck down a Minnesota statute prohibiti ng bias-motivated disorderly conduct206 and overturned a teenagers conviction.207 The Justices accepted the Minnesota courts conclusion that the ordinance was facially unconstitutional but fervently disagreed as to their reasoning.208 According to Justice Scalia, w ho wrote the majority opinion, the problem with the ordinance was that it pr ohibited expression ba sed solely on its content.209 Perhaps because of the Courts strong split in R.A.V. the Court heard another case involving a conviction of an individual for hate speech soon after.210 The case involved a Wisconsin statut e that enhanced sentences for persons who intentionally selects a person against whom the crime is committed because of their race, religion, color, disability, sexual ori entation, national origin or ancestry.211 Although the 205 508 U.S. 476 (1993). 206 R.A.V ., 505 U.S. at 380. The ordinance prohibited condu ct such as plac[ing] on public or private property a symbol, object, appellation, characterization or graffiti with reasonable grounds to know that it would arouse anger, alarm, or resentment in other s on the basis of race, color, creed, religious or gender. Id. 207 Id. 208 Justice Byron White also agreed that the statue was unconstitutional but contended that the while the ordinance reached unprotected conduct, it also puni shed expressive activity that causes only hurt feelings, offense, or resentment, and thus fatally overbroad and invalid. Id at 414 (White, J., concurring). Justice John Paul Stevens felt the ordinance was overbroad, but disagreed with Justice White that all fighting words are who lly unprotected by the First Amendment. Id. at 428 (Stevens, J., concurring). He provided a list of factors that should be considered in determining the validity of a content-based regulation, that included content and context, character and the scope of the restrictions. Id. at 429 (Stevens, J., concurring). Finally, Justice Harry Blackman concurred but hesitated as to the majoritys motive, stating that it was distracted from the proper mission. Id. at 415 (Blackman, J., concurring). 209 Id. at 381. 210 Milani, supra note 202, at 194. 211 Mitchell, 508 U.S. at 480.

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54 Wisconsin Supreme Court had invalidat ed the statute as it applied to Mitchell ,212 the U.S. Supreme Court reversed the decision unanimously, holding that the penaltyenhancement stated passed constitutional must er because it was aimed at enhancing sentences for conduct, such as assault, which is unprotected by the First Amendment.213 Whereas in R.A.V. was explicitly directed at expressions, the court ruled that the statute in Mitchell was aimed only at non-protected speech.214 According to attorney Adam Milani, one can conclude from these cases that states can proscribe both fighting words and bigoted conduct so long as the regulation of speech is content neutral 215 and that any attempt to bar only a certain type of speech will be struck down as overbroad.216 As applied to the issues raised in this thesis, grade schools may regul ate student speech as long as the speech codes adopted are directed at fighting words gener ally and they are not content-based.217 Next, Chapter Three selects ten school di stricts within the st ate of Florida to analyze how public school student expre ssion policies have been amended to reflect the enactment of Floridas anti-cyberbullying statute. Part I provides a description of the methodology used in selecting the ten school di strict policies Parts II and III compare and contrast the ten school distri ct policies surveyed as part of this thesis to identify the provisions most commonly ado pted by the school districts. 212 Id at 482. 213 Id at 489-90. 214 Id at 487. 215 Milani, supra note 202, at 196. 216 Id 217 Id

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55 CHAPTER 3 COMPARING AND CONTRASTING THE S CHOOL DISTRICT S CYBERBULLYING POLICY PROVISIONS This chapter compares and c ontrasts the five large and five small school district policies selected for analysis as described above. Part I describes the methodology used to select the school districts surveyed as part of this thesis. Parts II and II examine the statutes for the elements required by Florida law, as identified earlier, and analyzes the statutes using many of the characte ristics that the wa tchdog group reporting on state anti-bullying laws i dentified as critical elements of the statute. Part I: Methodology in Select ing the Ten School Districts There are sixty-seven public school di stricts in the state of Florida.1 The boundaries of the school districts correspond with those of Florida's sixty-seven counties.2 Rather than include discu ssion of all of the school districts that comprise the state of Florida, this paper surveys only t en school districts to provide an in-depth analysis of the anti-cyberbullyi ng policies as adopted by the school districts in light of Floridas anti-cyberbullying law.3 The author selected one large and one small school district from each of the five regions that make up the stat e of Florida. These regions conform to the boundaries set forth by Floridas five distri ct courts of appeal4 and ensure geographic dispersement of the districts throughout t he state. The districts with the largest and smallest population esti mates, based on the April 2009 survey from 1 FLA. CONST. art. IX, 4. 2 Id. 3 See infra notes 918 and accompanying text. 4 Florida District Courts. Florida Courts, available at http://www.flcourts.org/courts/dca/dca.shtml (last visited Apr. 17, 2010).

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56 the Florida Legislature Office of Economic and Demographic Research (EDR), were included in the analysis.5 Thus, the five large dist ricts are: Miami-Dade, Orange, Hillsborough, Broward and Escambia.6 The five small districts are: Monroe, Okeechobee, Putnam, Glades and Lafayette.7 The next section details Florida's anticyberbullying law, the Jeffrey Johnson Stand Up For All Students Act, that was enacted in June 2008.8 Figure 3-1 Segmentation of Florida by district courts of appeals 5 Florida Legislature Office of Economic and Demographic Research, Florida Population Estimates for Counties and Municipalities, Apr. 2009, available at http://edr.state.fl.us/population/population_1april09.pdf (last visited Apr. 17, 2010). See also Figure 1. 6 See Table 1. 7 See Table 2. 8 Janet Kornblum, Cyberbullying grows bigger and meaner with photos, video USATODAY.COM, July 15, 2008, available at http://www.usatoday.com/tech/webguide/inter netlife/2008-07-14-cyberbullying_N.htm (last visited Apr. 17, 2010) (identifying Florida as on e of the states taking action to protect against cyberbullying, with the signing of the Florida law by Gov. Charlie Crist).

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57 Part II: Florida's Anti-Cyberbullying Law Floridas Jeffrey Johnson Stand up for All Students9 Act, also known as Jeffs Law,10 requires schools in Florida to adopt po licies to discourage bullying in person and online or risk lo sing state funding.11 As part of the require ments, Florida public K12 public educational institutions must create and adopt very specific policies and procedures for reporting, investigati ng and responding to acts of bullying and harassment by any student or employee agai nst any student of a particular school district,12 establish specific consequences for co mmitting such acts and provide training, education and prevention pr ograms to encourage positive reinforcement.13 The Act explicitly defines both bullying14 and harassment,15 and it includes the use of any 9 FLA. STAT. 1006.147 (2009). 10 Anna Scott, Sons suicide sends mom on quest for anti-cyberbullying law SARASOTA HERALD-TRIB., Apr. 10, 2007 (referring to the act as Jeffs Law). See Melanie Ciarrone, Broad Talks Cyberbullying on Hill WASH. EXAMINER, Oct. 13, 2009, available at http://www.washingtonexaminer.com/local/Broad-colationtalks-cyberbullying-on-Hill-8381360-64160742.html (describing the events that led to the enactment of the Floridas anti-cyberbullying statute). 11 JuJu Chang, Moms Campaign for Florida Anti-bullying Law Finally Pays Off ABCNEWS.COM, May 2, 2008, available at http://abcnews.go.com/GM A/story?id=4774894&page=1. 12 FLA. STAT. 1006.147 (4) (f) (n) (2009). 13 1006.147 (4). 14 1006.147 (3) (a) (2009) (defining bullying as the sys tematically and chronically inflicting physical hurt or psychological distress on one or more students). It also provides examples of this type of behavior. Id As a deviation from Florida law, however, all t en of the school district policies added to their language that bullying also includes unwanted purposeful written, verbal, nonverbal, or physical behavior, including but not limited to any threatening, insulting or dehum anizing gesture, by an adult or student, that has the potential to create an intimidating, hostile or in timidating environment or cause long term damage ...") (emphasis added). See infra note 22. 15 The bill defines harassment as: any threatening, insulting, or dehumanizing gestu re, use of data or computer software, or written, verbal, or physical conduct directed against a student or school employee that 1) places a student or school employee in reas onable fear of harm to his or her person or damage to his or her property; 2) has the effect of substantially interfering with a students educational performance, opportuniti es, or benefits; or 3) has the effect of substantially disrupting the or derly operation of a school. 1006.147 (3) (b) (1)(3).

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58 electronic or computer equipment under the control of the di strict from being used to embarrass or tease any student.16 The Act required each school district to adopt a policy prohibiting bullying or harassment of any student or employee of a public K-12 educational institution by Dec. 1, 2008,17 and also mandated that each school districts policy shall be in substantial conformity with the Department of Educations model policy.18 The school district policies were accessed online during Oct ober to December 2009, more than eight months after the dead line for the adoption of school district bullying policies had passed.19 All of the policies except for Lafayette were available online throughout the duration of this time.20 In response to these mandates, the Bully Policy, a watchdog organization that advocates for bullies childr en and reports on state 16 1006.147 (3) (d) (2). 17 FLA. STAT. 1006.147 (4) 18 FLA. STAT. 1006.147 (4). The act also specifies that each policy adopted by the school district shall contain specific provisions related to, among others: a description of the type of behavior expected from each student or employee of a public K-12 educational institution; specific cons equences for such behavior; a process to investigate whether a reported act of bullying or harassment is within the scope of the district school system; a procedure for providing instruction to students, parents, teachers, school administrators, counseling staff, and school volunt eers on identifying, preventing, and responding to bullying or harassment institution who commits an act of bullying or harassment; and a procedure for publicizing the policy. 1006.147 (4) 19 See supra note 17 and accompanying text. 20 The author of this paper was able to retrieve the policy by having the Webmaster of the school districts Web site send a PDF of the policy through e-mail di rectly. E-mail from Walter J. Bell, Webmaster, Lafayette Public School District, to Kara C. Murrhee, master's student, University of Florida College of Journalism and Communications, (Feb. 20, 2010, 6:43 p.m. EST) (on file with author).

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59 anti-bullying laws, gave Florida an overall rati ng of A++, the highest rating any state can achieve, for Jeffs Law.21 Table 3-1. Five largest school dist ricts based on school district population School District Largest City/Town Population District Court Total Student Pop. of School Dist. Miami-Dade Miami 2,472,344 Third 345,766 Broward Ft. Lauderdale1,744,922 Fourth 256,175 Hillsborough Tampa 1,196,892 Second 193,239 Orange Orlando 1,108,882 Fifth 173,021 Escambia Pensacola 312,928 First 40,610 Table 3-2. Five smallest school dist ricts based on school district population School District Largest City/Town Population* District Court Total Student Pop. of School Dist.** Monroe Key West 77,925 Third 8,278 Okeechobee Okeechobee 39,703 Fourth 6,963 Putnam Palatka 74,608 Fifth 11,418 Glades More Haven 11,311 Fifth 1,429 Lafayette Mayo 8,182 First 1,163 *Statistics based on April 2009 population estima tes for the state of Florida. Information retrieved from the Florida Legislature Office of Economic and Demographic Research (EDR). **Numbers reflect total student population, P-12 grades, in each of the corresponding districts. Statistics retrieved from Flor ida Education Information and Accountability Services, Data Publications and Reports, Membership in Florida Schools at http://www.fldoe.org/eias/eiaspubs/default.asp. Part III: Comparing the Public School District Anti-Cy berbullying Policies There are certain provisions that all school district anticyberbullying policies adopt. 22 While most of these provisions emul ate Floridas anti-cyberbullying law, the 21 The organization basis its ratings on thirteen separate points including 1) the word bullying in the title of the bill/law/statute; 2) that the law must clearly be an anti-bullying la w and not just a school safety law; 3) definitions of bullying and harassment; 4) that the law mandates anti-bullying program, not just suggests them. Florida, Bullying Police, http://www.bu llypolice.org/grade.html (last visited Apr. 17, 2010). A state will only get an A++ when the law provides for an emphasis on vict ims or a bullying victims rights clause and a cyberbullying clause. Id. 22 See Miami-Dade County Public Schools Policy Against Bullying and Harassment, available at http://mhcms.dadeschools.net/pdfs/ MDCPS_bullying-harass_policy.pdf (last visited Apr. 17, 2010)

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60 implementation of the provisions may vary slightly from district to district.23 These provisions include the: adoption of a mission statement; prohibition of bullying and harassment behavior;24 restriction of bullying and harassment th rough the use of co mputer software or electronic devices; inclusion of location-centric restrictions on speech;25 requirement that certain parties be involved in the development of the policy; and the description of the type of behavior expected from each student; adoption of procedures reporting, investi gation and responding to acts of bullying and harassment; referral of victims and perpetrato rs of bullying for counseling; notification of the cons equences for such behavior; integration of the policy with curriculum, discipline policies and violence prevention efforts. [hereinafter Miami-Dade]; Broward County Public Schools Anti-Bullying Policy, available at http://www.browardschools.com/schools/bullying.htm (last visited Apr. 17, 2010) [hereinafter Broward]; Hillsborough County Schools Policy Against Bullying and Harassment, available at http://www.sdhc.k12.fl.us/notices/Anti-Bully.pdf (las t visited Apr. 17, 2010) [hereinafter Hillsborough] Orange County Public Schools Anti Bullying Policy, available at https://www.ocps.net/s b/Superintendent%20Doc uments/ADD%20Anti%20Bullying%20Policy%2011_17_ 08.pdf (last visited Apr. 17, 2010) [hereinafter Orange]; Escambia County Public Schools Policy Against Bullying and Harassment, available at http://www.escambia.k12.fl.us/board/board_rules/Chapter_7.htm#718 (last visited Apr. 17, 2010) [hereinafter Escambia]; Monroe County Public School Anti-Bullying Policy available at http://www.neola.com/monroe-fl/ (last visited Apr. 17, 2010) [hereinafter Monroe]; Okeechobee County Schools Bullying and Harassment Policy, available at http://ocsb.okee.k12.fl.us/board.nsf/be38f07bbe5d617 385256a04004a98b6/3c 482c07fca94cd78525750c 0071a4d8?OpenDocument (last visited Apr. 17, 2010) [hereinafter Okeechobee]; Putnam County School District Bullying and Harassment Policy, available at http://www.putnamschools.org/board/board_pol icy/Policy%20Chapter%205.00/Policy%205.101.pdf (last visited Apr. 10, 2010) [hereinafter Putnam]; Glades Co unty School District Policy Against Bullying and Harassment, available at http://www.glades-schools.org/files/BullyingPolicy.pdf (last visited Apr. 17, 2010) [hereinafter Glades]; Lafayette County Schools Bu llying and Harassment Policy [hereinafter Lafayette]. See Table 3. 23 See supra Chapter Three, Part IV (contrasting the school district policies). 24 See supra notes 14 (defining the terms "bullying" and "harassment" per Florida law. 25 All school districts includes that bullying is proh ibited: (a) During any education program or activity conducted by a public K-12 educational instituti on; (b) During any school-related or school-sponsored program or activity or on a school bus of a public K-12 educational institution; or (c) through the use of data or computer software that is accessed through a computer, computer system, or computer network of a public K-12 educational institut ion. These prongs are sometimes separated into four prongs, as opposed to the three prongs established by the FDLOE's model policy.

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61 Mission Statement All of the school district anti-cyberbullyi ng policies except for Escambia include a statement clarifying the school districts mission in adopt ing the policy. For example, Miami-Dades policy states that the district is committed to providing a safe learning environment for all students and that it is also the policy of the dist rict to provide an educational setting that is safe, secure and free from harassment and bullying or any kind.26 Similarly, Orange County public school di stricts policy states that The school board of Orange County, Florida, is committe d to protecting its students, employees, and applicants for admission from bullying, ha rassment, or discrimination for any reason and of any type. The school board believes t hat all students and employees are entitled to a safe, equitable, and hara ssment-free school experience.27 Publicizing the Policy All school districts include provisions rela ting to the requirements for publicizing the anti-cyberbullying policy, ye t the requirements as specifi ed by the policies differ from district to district. For instance, while Monroes policy states that reminders of the policy and bullying prevention messages will be displayed, as appropriate, at each school and at District facilities,28 the Glades school district policy specifies that these reminders should include, specifically, posters and signs.29 On the other hand, 26 Miami-Dade, supra note 22. 27 Orange, supra note 22. 28 Monroe, supra note 22. 29 Glades, supra note 22.

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62 Hillsboroughs policy does not include any such requirement, stating only that notice shall be provided at the beginning of eac h school year through reasonable means.30 Notice of Consequences for Committi ng Act of Bullying or Harassment Notice is an important element to creating a policy that will withstand constitutional challenges. As a criteria, t he doctrine of void for vagueness states that for a law not to be vague in a way that it is c onstitutionally infirm, it must give adequate warning of what activities it proscribes and set out explicit standards for those who must apply it.31 While all of the school districts r equire that notice be given to students, staff and faculty members of the consequences of committing an act of bullying or harassment, Broward school distri cts policy excels by providing a Discipline Matrix that very clearly spells out the resulting puni shment for a students inappropriate behavior.32 This matrix also distinguishes between elementary and secondary school students in the establishment of appropriate punishments.33 30 Hillsborough, supra note 22. This includes appropriate references in the code of student conduct and employee handbooks. Id 31 Broadrick v. Oklahoma, 413 U.S. 608 (establishing the overbrea dth doctrine). Additionally, it must prevent arbitrary and discriminatory enforceme nt. Smith v. Goguen, 415 U.S. 566, 573 (1974). 32 Broward County Public Schools Administrative Discipline Matrix, available at http://www.browardschools.com/schools/discipline_matrix.h tm (last visited Apr. 17, 2010) (stating that the matrix is a tool for administrators to respond appropriately when students have committed serious violations, per the Code of Student Conduct. This tool is designed to offer consistency at all levels across the District so that student s are disciplined fairly from school to school when their behavior requires punishment beyond the classroom. There are two different versions of the Matrix: One to assign co nsequences to elementary studentsw (pdf) (grades K-5) and one to assign consequences to secondary students (pdf) (grades 6-12). Id. See supra note 301. 33 See Broward County Public Schools Administrative Discipline Matrix Secondary available at http://www.browardschools.com/schools/pdf/secondary_ma trix.pdf (last visited Apr. 17, 2010); Broward County Public Schools Administrative Discipline Matrix, Elementary Schools, available at http://www.browardschools.com/schools/pdf/elem_matrix.pdf (last visited Apr. 17, 2010).

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63 Time-Place-Manner Restrictions All ten of the policies prohibit bullyi ng or harassment of any student or school employee: 1. During any education progr am or activity conducted by a public K12 educational institution; 2. During any school-related or schoo l-sponsored program or activity; 3. On a school bus of a public K-12 educational institution; or 4. Through the use of data or computer software that is accessed through a computer, computer system, or computer network of a public K12 educ ation institution.34 All ten of the anti-cyber bullying policies also include that t he physical location or time of access of a computer-related incident cannot be raised as a defense in any disciplinary action.35 Part IV: Contrasting the Public School District Anti-Cy berbullying Policies Use of Terminology: Bullying, Harassment, Cy berbullying and Cyberstalking All ten of the policies surveyed: a) include the word bullying in their titles; and b) define and prohibit bullying and harassment. 36 While all ten of the policies likewise include cyberstalking in policy language, only five of the districts policies specific reference cyberbullying.37 Four of the districts Miami-Dade, Broward, Hillsborough and Monroe specifically define cyber bullying and prohibit such behavior.38 Broward, Hillsborough and Monroe list certain devices fr om being used for cyberbullying and thus define cyberbullying as: electronically transmitted acts (i.e., internet, e-mail, cellular 34 Supra note 22. 35 See Table 3. 36 Supra notes 349. 37 Supra note 22. 38 Supra note 22.

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64 telephone, personal digital assistance (PDA), or wireless hand-held device) directed toward a student(s) or staff member(s) that causes ment al or physical harm or is sufficiently severe, persistent, or pervasive that it creates an intimidating, threatening, or abusive educational environment.39 Miami-Dade is the only policy that varies slightly in naming the specific devices and thus defines cyberbullying as: the willful and repeated harassment and intimidation of an individual through the use of electronic mail or electronic communication with the intent to coerce, intimidate, harass, or cause substantial emotional distress to a person.40 Orange is the only policy to include the term cyberbullying within po licy language, but it does not pr ovide a specific definition separate from the other terms defined.41 Only two of the dist ricts, Broward and MiamiDade, include cyberbullying as an example of restricted behavior, in addition to the other provisions addressing cyberbullying.42 Addition of an Anti-Discrimination Clause Beyond listing sexual, religious or ra cial harassment as types of prohibited bullying behavior, several school districts, including Orange, Broward and Monroe, have adopted separate and additional anti-har assment clauses that prohibit: unwanted harm towards a st udent or employee in re gard to their real or perceived: sex, race, color, religi on, national origin, age, disability (physical, mental, or educational), marital status, socio-economic background, ancestry, ethnicity, gender gender identity or expression, linguistic preference, political beliefs, sexual orientation, or social/family background.43 39 Supra note 22. 40 Miami-Dade, supra note 22. 41 Orange, supra note 22. 42 Supra note 22. 43 Orange, supra note 22.

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65 Miami-Dades policy varies slightly in that it specifies that the policy does not replace the Districts current policy prohibiting haras sment on the basis of race, sex, national origin, and disability.44 Cited Authority Seven of the ten policies cite Flor ida Statute Section 1006.147 as authority.45 Half of the districts Miam i-Dade, Broward and Monroe specify that the policy has been adopted in substantial conformi ty with FLDOEs model policy.46 Constitutional Safeguard Broward and Monroe public school distri ct policies include a constitutional safeguard, specifying that this policy does no t imply to prohibit expressive activity protected by the First Amendment of the United State Consti tution or Article I, Section 4 of the Florida Constitution.47 Severability Clause Only Broward Countys anticyberbullying policy includes that if a provision of this policy is or becomes illegal, invalid or unenf orceable in any jurisdiction that shall not affect the validity or enforceab ility in that jurisdiction of any other provision of this policy.48 44 Supra note 22. 45 These include Miami-Dade, Broward, Orange, Mo nroe, Putnam, Glades and Okeechobee. Supra note 22. 46 Supra note 22. 47 See Monroe and Broward, supra note 22. 48 See Broward supra note 22.

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66 Although the policies have all been adopted in fulfillment of the Florida Jeffrey Johnson Stand Up For All Students Act and were guided by the mode l policy as drafted by the Florida Department of Education, t here are still many ways in which they are different, such as the amount of protection afforded student fr ee speech rights in light of digital technology and electronic devices, that could have have potential implications for whether the policy would hold muster if c hallenged in court. Next, Chapter Four will discuss the typical free-speech problems associated with anti-cyberbullying policies adopted by Florida school districts. Table 4-1. Table of provis ions adopted by each of the school district policies School District Policy Provisions Miami-Dade Broward Hillsborough Orange Escambia Monroe Putnam Glades Okeechobee Lafayette Defines harassment and bullying X X X X X X X X X X Includes electronic bullying clause X X X X X X X X X X Provides examples of behaviors X X X X X X X X X Includes locationcentric restrictions on speech* X X X X X X X X X X Includes cyberbullying in policy language X** X** X X** Includes and defines cyberstalking X X X X X X X X X Includes location-isnot-a-defense clause X X X X X X X X X Includes provisions on reporting, investigating and responding to acts of bullying X X X X X X X X X X Includes provision on consequences expected for violating X X X X X X X X X X

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67 policy requirements Cites Fla. Stat. 1006.147 as authority X*** X*** X X*** X X Includes antidiscrimination clause X X X Includes prohibitions against speech a) during any educ ational program or activity conducted by the school; b) during any school-related or school-sponsored program or acti vity; c) on a school-bus of a K-12 institution; d)through the use of data or computer sy stem that is accessed through a computer, co mputer system, or computer network of a public system ** Names electronic devices *** Notes substantial conformity to model policy.

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68 CHAPTER 4 FREE SPEECH CONCERNS OF FLORIDA PUBLIC SCHOOL DISTRICT ANTICYB ERBULLYING POLICIES This chapter addresses the free speech concerns raised by anti-cyberbullying policies adopted by Florida school districts. Specifically, it sifts the policy provisions of ten selected school districts through the sieve of: Suprem e Court precedent on student speech rights; relevant lower appellate court rulings on these rights; the rules of both the void for vagueness and overbreadth doctr ines that often apply to statutory measures; and the doctrines of true threats and fight ing words discussed in Chapter I. Part I: The Tetralogy of Supreme Court Student Speech Opinions As Applied to The School Distr ict Policies The Tinker-Fraser-Hazelwood-Morse quartet provides a wealth of authority for addressing when a school district may censor speech taking place inside the schoolhouse gate.1 In each of the four Supreme Court decisions on student speech, the Court established individual ground rules that courts and school districts may use to inhibit students First Amendment rightsconducted on school grounds or during school-sponsored events .2 Viewed collectively, however they address four very different factual scenarios that cannot all or should not all be applied to online speech.3 This part analyzes the quartet of Supreme Cour t opinions as applied to Floridas school district polices. 1 See supra Chapter Two, Part I (discussing thos e cases that govern student speech). 2 Turbert, supra Chapter Two, note 184, at 671 (emphasis added). 3 See supra Chapter Two, Part I. See also Denning, supra Chapter One, note 17, at 838 (stating that despite this small number of cases, lower courts have had difficulty synthesizing and applying [the quartet of Supreme Court cases] to the myriad fact situations they have encountered).

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69 It is perhaps important to first mention that, in analyzi ng the anti-cyberbullying policies, there are only certain Supreme Court student speech pr ecedents that apply. While schools are permitted to regulate on-ca mpus speech that contradicts the schools educational goals,4 the more difficult questions ar ise in the arena of off-campus speech.5 Because Hazelwood and Morse dealt specifically with curricular and drugreferenced speech, respectively, this thesis argues that allowing them to extend beyond their initial holdings and factual scenarios to apply to cyberspeech is analogous to eliminating the essential el ement that gave rise to the Supreme Courts reasonable restriction on student speech.6 Thus, school policies that attempt to regulate speech that does not rise to the level, under Tinker of a substantial and material disruption of the educational atmosphere or interfer ence with the rights of other students7 poses significant constitutional problems for the school distri ct. Applying a non-threatening example of student cyberspeec h could perhaps helps demonstrate this principle. Suppose that a message is posted by student-athlete A about a soccer teammate B on an Internet message board. The board serves as an online forum of communication for both the teams players and parents. After a frustrating loss to the teams rivals in a championship finals game, the A criticizes B the goalie for the team, and blames him for the loss, calling him a lousy ex cuse for a goalie and says he should be kicked off the team. Clearly, th is message had nothing to do with the use of 4 See supra Chapter One, note 5 Kerkhof, supra Chapter One, note 17, at 1633. 6 Id at 1628. 7 See s upra Chapter Two, note 26.

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70 illegal drugs,8 nor was it part of the schools curricular goals.9 It thus falls beyond the purview of both Morse and Hazelwood .10 Courts and scholars alike have held that a students non-threatening, nondisruptive speech that takes place away from school grounds in entitled to First Amendment protection. As one commentat or wrote, the legitimate pedagogical concerns that constitut ed an essential element in Hazelwood arguably do not extend to activities not directly related to a schools curricular objectives.11 The Morse opinion provided powerful clarification of the Fraser decision, stating that Fraser should not be read to encompass any speech that could fit under some definition of offensive.12 Similarly, where the students speech was not created at school or during a schoolsponsored activity, factual circumstances ex ist that impede a reasonable restriction, as in Hazelwood .13 Although Morse has been interpreted by the lower courts to restrict other viewpoints or subject areas not prot ected by a students right to free speech,14 Justice Alitos concurring opinion in it provi des strong support for not allowing schools to regulate speech on any groundsnot already recognized in the holdings of this 8 See supra Chapter Two, note 74 and accompanying text (discussing the Morse Court's decision). 9 See supra Chapter Two, note 60 (discussing Hazelwood ). 10 See supra notes 89. 11 Kerkhof, supra Chapter One, note 17, at 1633. 12 Morse, 551 U.S. at 409. 13 See supra Chapter Two, notes 63 and accompanying text. 14 See Erwin Chemerinsky, How Will Morse v. Frederick Be Applied? 12 LEWIS & CLARK L. REV. 17, 25 26 (2008) (highlighting that schools have won a majority of the constitutional claims against them involving student rights and hoping that, although Morse v. Frederick continues that pattern, Justice Alitos concurring opinion will limit the scope of the majoritys opinion).

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71 Court.15 Clearly, then, the application of S upreme Court student s peech precedent to student cyberspeech is narrow. Attempting to extend Hazelwood and Morse beyond the factual circumstances t hat framed them, how ever, places too much protected speech under the school districts jurisdicti on, a subject for furt her discussion later. To adapt to the changing technologi cal environment, many schools are implementing technology or Internet-based policies that prohibit students from using school resources for non-educational purposes.16 These policies allow school officials to reasonably discipline students fo r violation of the policies.17 As with the policies analyzed in this thesis, this includes the use of school computer s and networks for the purpose of bullying.18 The majority of the Florida anti-cyberbu llying policies make it part of a schools mission to provide an educational setting fr ee from bullying and harassment of any kind.19 These schools also make bullying or harassment a violation of policy in the following situations : during any education program or activity conducted by a public K12 educational institution; during any school-related or school-sponsored program or activity; on a school bus of a public K-12 educat ional institution; or through the use of data or computer software that is acce ssed through a computer, computer system, or computer network of a public K-12 education institution.20 15 Morse 551 U.S. at 422 (Alito, J., concurring). 16 Kerfhof, supra Chapter One, note 17, at 1633. 17 Id 18 See supra Chapter Three, note 22 and accompanying text. 19 See supra Chapter Three, note 23 and accompanying text. 20 Id.

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72 Courts recognize the ability of school s to punish students for speech posted online while at school, acknowledging that a schools computers and its computer network are school property. As noted by one scholar, if the schools curriculum sufficiently incorporates Internet service, sc hool officials can constitutionally restrict a students access to certain areas.21 While Supreme Court precedent provides that a school may punish a student for speech made during a school-related or schoolsponsored program or activity or on a sc hool bus, allowing a school to restrict a students expression during any education program or activi ty conducted by a public K12 educational institution22 that does not rise to the le vel of rise to the level of a substantial and material disruption23 of extends beyond S upreme Court opinion and poses significant constitutional problems for the school. Some schools recognize t he potential application of Tinker to student cyberspeech. A close examinat ion of Floridas anti-cyberbu llying statute reveals that the state legislatur e adopted language from Tinker in drafting its anti-cyberbullying policies, as a way to justify the school dist ricts censorship and punishment of certain on-campus student expression.24 For instance, Floridas anti-cyberbullying policy and, concomitantly, all ten district policies, define harassment as: Any threatening, insulting, or dehumanizing gesture, use of data or computer software, or wr itten, verbal or physical conduct directed against a student or school employee thathas the effect of substantially interfering 21 Kerkhof, supra Chapter One, note 17, at 1633. 22 See supra note 24. 23 See supra Chapter Two, note 25 (discussing the Tinker material-and-substantial-disruption test). 24 See infra notes 25 and accompanying text.

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73 with a students educational performance, opportunities, or benefits; or has the effect of substantially disrupt ing the orderly operation of a school.25 The state laws definition of bullying is parallel, defining bullying as any threatening, insulting, or dehumanizing gesturethat is severe or pervasive enough to create an intimidating, hostile, or offensive educational environment.26 Browards policy, for instance, prohibits bullying behavior that potentially can cause long term damage.27 Finally, several of the policies also prohibit the electronic transmission of any message that could cause mental or physical harm or is sufficiently severe, persistent, or pervasive that it create s an intimidating, threatening, or abusive educational environment for the other student(s).28 Although part of harassments definition is reminisc ent of language used by the high court in Tinker all three of these provisions contain terms troublesome for the school district: By including language that atte mpts to merely target degrading, insulting or offensive speech, they go beyond the precedents established by Fraser and Tinker and thus run the risk of being void for v agueness and overbroad, issues addressed later in this chapter. Perhaps the most pervasive and invasi ve part of the anti-cyberbullying laws has to do with the over-extension of Suprem e Court precedent to apply to off-campus speech. Floridas anti-cyberbu llying statute, and thus by extension several district 25 See supra Chapter Three,. note 22 (emphasis added). 26 Id. 27 Id. (emphasis added). 28 Id (emphasis added).

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74 policies,29 incorporate language that allows a school to regulate cyberspeech, regardless of either the physical location wher e it occurs or the time of access of the computer-related incident.30 This is particularly troubling, as noted by one scholar, because the Internet encompasses all types of expression and speech, including print, school districts need to be careful not to in fringe students First Amendment rights when regulating student cyberspeech.31 School officials are permitted to regulate on-campus speech that contradicts the schools educational goals, but recent atte mpts made by schools to gain control of electronic student speech through the adoption of anti-bullying policies schools often restrict too much speech. While the ov erextension of Supreme Court precedent to apply to cyberspeech is mostly commonly asso ciated with polices ai med at restricting off-campus speech, such problems also are found in policy language targeting oncampus Internet speech. In brief, both spatial and tempor al boundaries that constrain school authority over student speech are bl own away and rendered nugatory by these policies. Policies containing such expansive provisions that stre tch the jurisdictional authority far beyond the schoolhouse gat es likely are unconstitutional. This next part analyzes the school dist rict policies under the scope of the Saxe and Sypniewski decisions. 29 These include Broward, Hillsborough, Orange, Escambia, Monroe, Putnam and Glades. See supra Chapter Three, note 22. 30 See Chart 1. 31 Tiffany Emrick, Note, When MySpace Crosses the School Gates: The Implications of Cyberspeech on Students Free-Speech Rights 40 U. TOL. L. REV. 785, 797 (2009).

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75 Part II: Analysis of School Distri ct Anti-Cy berbullying Policies Under Saxe and Sypniewski In the same way that the Saxe court found a Pennsylvania school districts policy restricting unwelcome and offensive speech on public school gr ounds violated the First Amendment,32 so too could a court potentially find the Florida anti-cyberbullying statutes language prohibiting unwanted and repeated written, verbal, or physical behaviorpervasive enough to create an intimidating, hostile, or offensive educational environment33 overbroad. The schools in Saxe and Sypniewski had adopted the policies to prevent against the unnecessary bullying or har assment of their students. Specifically, their antiharassment policies prohibited any unwelco me verbal, written or physical conduct which offends, denigrates or belittles an individual because of race, religion, color, national origin, gender, sexual orientation, disability or other characteristic.34 Interestingly, several Florida school districts35 have adopted language emulating the policy language adopted by these schools. For example, Browards policy states that bullying, cyberbullying, harassment, and discriminat ion, encompass, but are not limited to: unwanted harm towards a student or employ ee in regard to their real or perceived: sex, race, color, religion, nat ional origin, age, disability (physical, mental, or educational), marital status, socio-economic background, ancestry, ethnicity, gender, gender ident ity or expression, linguistic preference, political beliefs, sexual orientation, or social/family background 32 Saxe 240 F.3d at 214. 33 See supra Chapter Three, note 14 and accompanying text. 34 See Chapter Two, notes 106, 121 and accompanying te xt (discussing the policies that were adopted by Saxe and Sypniewski) 35 These include Broward, Miami-Dade and Monroe Counties. See supra note 22.

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76 or being viewed as different in its education programs or admissions to education programs.36 As previously stated, the feder al appellate court rulings in Saxe and Sypniewski demonstrate the difficult task school districts face in creating polic ies with language that is indistinct or reaches too much speech.37 As reflected by the decisions in Saxe and Sypniewski there is a likelihood that a court will either strike down a policy38 or at least require the removal of particular terms and language39 that is vague or overbroad. In the appellate court opinions, these terms included: ill-will unwelcome, and offensive.40 In the case of the school district polic ies, they may also include unwanted and repeated. If a court were to find these terms overly broad or void for v agueness, as the Third Circuit did in Saxe then it could enjoin the policy, thus preventing a school district from punishing students for their potent ially bullying and harassing s peech. Yet, if the policy has been enacted in response to a pattern of racial incidents,41 as it was in Sypniewski, then a court might require the school to se ver only the overly broad or vague language 36 Id. 37 See supra Chapter Two, Part II. 38 Saxe v. State Coll. Area Sch. Dist., 240 F.3d 200, 217 (3d Cir. 2000). 39Sypniewski v. Warren Hills Reg. Sch. Dist., 307 F.3d 243, 260 (3d Cir. 2002). 40 Courts and scholars have long noted the difficulty of interpreting words such as offensive when used in policy and legislation. See supra notes and accompanying text. 41 McCarthy, supra Chapter Two, note 129, at 233.

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77 before permitting implement ation of the policy.42 Such a discussion requires the more in-depth application of t he void for vagueness and overbreadth doctrines, discussed in the next part. Part III: Anti-Cyberbullying Policies Analyzed Under the Void for Vagueness and Overbreadth Doctrines Although Part II already emphasized severa l provisions r elating to religious or racial speech that are perhaps vague or overbroad, there ar e several other provisions adopted as part of the state law and school district policy prohibitions of cyberbullying behavior that could fall prey to the void for vagueness and overbreadth doctrines. The first provision relates to the first prong spec ifying the ability of the school district to prohibit speech during any educational progra m or activity conducted by a public K-12 educational institution.43 Whereas the Supreme Court many times has addressed the issue of school-related and school-sponsored speec h, including a provision that does not limit the type of speech restricted beyond any education program or activity could be tagged as void for vagueness and overbreadth because it could be difficult to determine what programs this is meant to include. Although Florida law does not specifically include cyberbullying in policy language, several of the school di stricts do. The problem is that few districts define the term, perhaps because, unlike the term obscenity no judicially-adopted legal definition of cyberbullying exists. Policies that provide examples of the types of devices linked to cyberbullying behavior offer an improvement ov er the policies that neglect to do so 42 See, e.g., Sypniewski v. Warren Hills Reg. Sch. Dist., 307 F.3d 243, 260 (3d Cir. 2002). This could be of potential significance to the school districts with anti-harassment clause s. These districts are the three most southern districts in the state of Florida. 43 See supra note 14 and accompanying text.

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78 because it more specifically enumerates the practices associated with such behavior. Part IV discusses the school district po licies under the doctri ne of true treats. Part IV: Applying the True Threats Doct rines to Floridas Anti-Cy berbullying Policies Studies have found that In ternet bullying poses a tremendous threat to teens online.44 That is perhaps why the terms threa t and threatening appear so many times in anti-cyberbullying pol icy language. Indeed, a majori ty of the school districts policies incorporate the word threat into their definitions of bullying45 and harassment, and list it as an example of a ty pe of restricted bullying behavior.46 Browards policy even goes one step further by specifically pr ohibiting threats made outside of school hours, which are intended to be carried out during any school-related or schoolsponsored program or activity, or on a SBBC school bus.47 While student expression that poses a tr ue threat will never be protected by the First Amendment, it could be declared unconstitu tional where the proscription of threats extends beyond speech that a reasonable person would cons true as a real and serious communication of an intent to inflict harm. School districts would thus be wise, when using the term threat, to incorporate language from Watts and other federal opinions that articulate the parameters of the true threats doctrine. 44 See, e.g., Enhancing Child Safety & Online Technologie s, Executive Summary, Berkman Center for Internet & Society at Harvard University, available at http://cyber.law.harvard.edu /sites/cyber.law.harvard.e du/files/ISTTF_Final_ReportExecutive_Summary.pdf (last visited Apr. 17, 2010). 45 See supra Chapter Two, notes 14and accompanying text. 46 Id 47 See supra Chapter Two, note 22.

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79 Part V: School District Policie s As Applied to Fighting Words Several parts of the school district anti-cy berbullying policy provisions examined in this thesis could fall within the reach of t he fighting words doctrine. For instance, the policies prohibit the perpetration of bullying and harassment by an individual or group with intent to demean, dehumanize, embarrass, or cause physical harm to a student or school employee, by incitement or coercion .48 The state anti-cyber bullying law and thus several school district policies also include physical violence as an example of bullying behavior.49 While terms like dehumanize and embarrass likely are void for vagueness, schools would be wise to adapt a narrowing construction that applies such language only in the context of fighting wo rds scenarios. Indeed, where such speech crosses the threshold of being fighting words, those which by their very utterance inflict injury or tend to incite an immediate breach of the peace,50 there will not be a constitutional challenge. Yet, even w hen dealing with speech that does not receive constitutional protections, the proscriptions of such speech must by well-defined51 and narrowly limited52 as to not create constitutional problems for the policy.53 Despite its reaffirmation of the fighting words doctrine, it is perhaps telling that the Supreme Court has not upheld a conviction since Chaplinsky In many of the cases, such as R.A.V.,54 48 See supra Chapter Two, note 14. 49 Id. 50 Chaplinsky 315 U.S. at 572. 51 Id 52 Id. 53 See supra Chapter Two, note 194 (discussing the fighting words doctrine). 54 505 U.S. at 377.

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80 Gooding55 and Mitchell ,56 the statutes prohibiting fi ghting words were overturned because they attempted to restrict speech beyond fighting words. As in Gooding the statute was overturned for prohibiting opprobrious words or abusive language .57 Thus, those policies that prohibit bullying and harassment speech that is abusive in nature would seem to go beyond t he protections afforded by the fighting words doctrine. The other critical problem with the fighting words doctrine is that it traditionally applies to one-on-one, face-to-face encounter s. While speech in cyberspace may be directed at a specific person or target, it ce rtainly is not a face-to-face encounter, but more likely a cellphone-to-cellpho ne encounter. It thus is impor tant for schools that rely, in part, on the fighting words doctrine to support certain provisions of their cyberbullying policies to make it clear to one-on-one target ed messages that could result in imminent violence. 55 405 U.S. 518. 56 508 U.S. 476. 57 405 U.S. at 518.

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81 CONCLUSION In answering the final research question, this thesis concludes by arguing that all ten of the Florida school dist rict polic ies would not pass constitutional muster if contested in court on First Amendment grounds because of the significant free speech problems identified in C hapter III. Thus, this thesis uses Chapter IV, the final chapter, to propose model policy language and summarize its findings in resolution of the major research questions. Finally, it ident ifies areas for future research. Part I: Recommendations for Building a Better Model Policy United Kingdom freelance lega l and policy writer Allen Green perhaps best sums up a difficulty problem associated with good policy-making: When the government nonetheles s persists in introducing an ineffective policy, they have usually been told just what the problems are.1 But what makes a good policy? According to Green, these attributes include that the policy: uses precision and clarity; is evidence based; maintains transparency and accountability; and provides for practicality and legitimacy. 2 Using these attributes as guideposts, this thesis makes recommendations for improving the provisions adopted by the school dist ricts in their anti-bullying policies. What the School Distri ct Policies Do Well As the title of this subsection indic ates, there are several things that the school district policies do well. For instance, po licies that include a mission statement are an 1 Allen Green, So What is Good Policy-Making? http://jackofkent.blogspot.c om/2010/01/what -is-goodpolicy-making.html (last visited Apr. 27, 2010). 2 Id.

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82 improvement over the policies that do not because they provide a focus for the school district in implementing the polic y. Districts that provide exp licit notice to students of the penalties associated with behavior do a better job of avoiding being subject to the void for vagueness or overbreadth doctrines. Also, those school districts that distinguish between ages (i.e., elementary, middle and high school) in the programs, procedures and punishments geared toward those students better accommodates and addresses the maturity levels of the students. In th is way, Browards discipline matrix is going because it divides the age groups to be affe cted by the policy rules into segments: elementary and middle school.3 On the other hand, Escambias school district policy says that it will take steps to discipline the student based on the level of severity of the infraction.4 This begs the question: who or what det ermines the level of severity of the infraction? This should be better spelled out in policy language. Several policies mention their conformity to Florida Statut e 1006.147, the anticyberbullying law. This is a move in the right direction, compared with some of the other policy provisions adopted by the school district, because it takes some of the responsibility off of a school in the implement ation of the policy. At the very least, school districts should name the statute as a reference. Some Provisions Should Be Removed School districts should eliminate provisions requiring that the physical location or time of access of a computer-related incident cannot be raised as a defense in a disciplinary action initiated under this secti on. Those districts that have adopted this 3 See supra Chapter Three, note 31. 4 See Escambia, supra note 24.

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83 provision risk unconstitutionality under the Tinker standard for attempti ng to restrict too much speech especially when away from school without requiring a substantial oncampus disruption. Several school district policies prohibit any intimidating, threatening, or abusive educational environment. These school district s should strike such terms in order to remain constitutionally viable. For in stance, the Supreme Court indicated in Gooding that abusive was not constitutional bec ause it reached beyond speech prohibited by the fighting words doctrine. Similarly, rest ricting threatening speech that does not reach the level of being a true threat, as in Watts would likely be unconstitutional and should be removed. If such terms re main in the policies, then they should be clearly defined and specific examples that illustra te their meaning and application. Schools should also remove unwant ed and repeated from their anticyberbullying policy language. A court could find these terms overly broad and void for vagueness, as the Third Circuit did in Saxe and thus enjoin the policy and prevent a school district from punishing students fo r their potentially bullying and harassing speech. Likewise, they should sever from their policies terms such as dehumanize and embarrass because they are likely uncons titutionally vague or overbroad. Schools would be wise, in this instance, to adapt a narrowing construction that applies such language only in the context of fighting words scenarios. Areas in Need of Improvement There are several areas, relating to the location-centric-re striction-on-studentspeech prongs adopted by all ten of the Florida school districts analyzed need improvement. First, provisions requiring the proscription of speech during any schoolrelated program or activity or during any educational program or activity conducted

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84 within the school district need revision. Wh ile the Supreme Cour t has allowed schools to restrict student speech when it is school -sponsored and takes place as part of the curriculum, allowing schools to restrict speec h that did not meet the requirements set forth in precedent would extend the Courts holding beyond the initial decision. Thus, school districts could improve these provisio ns by more closely following the language adopted by the Tinker standard. Second, school districts could improve location-centric-restriction-of-speech provisions by updating language that describes the use of electronic equipment. For instance, several of the school districts, such as Lafayette, prohibit the use of data or computer software to commit acts of bu llying and harassment. Such a provisions, however, do not seem to accurately reflect the common-day uses of computers and electronic devices by students. In this case the addition of electro nic devices to the provision serves as an improvement over some of the other policies that have not updated their policies. On the other hand, se veral of the policies, including Monroe, provide examples of the types of devices and digital technologies commonly used by todays youth population (i.e. e-mail, blogs, social website, chat rooms, instant messaging and cellphones). This is beneficial in that it i dentifies those devices most commonly associated with behaviors the policies are attempting to restrict. It is well known that the law cannot keep up with rapid technological development. Thus, provisions adopted by the school districts refe rencing the use of electronic devices and technologies must be phrased in such a way t hat they are not over ly vague or broad but that does not run the risk of being obsolete very quickl y, before the policy can be updated.

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85 Third, the use of the word any runs the risk of being imprecise, perhaps sweeping up too much speech. Courts have ru led that policies aimed only at regulating on-campus Internet speech can be overturned for being vague and over overly broad, if it could be interpreted to reach off-campus speech. Finally, it is unclear whether a school district policy could be overturned for defining cyberbullying in poli cy language prior to the existenc e of a legal definition. Although it could perhaps prov ide the means for striking down the policy if the definition ensnares too much speech, it could perhaps work that same way as the true threats doctrine. Part II: Analysis of a School District Policy Based on Recommendations This section analyzes the Hillsborough Count y school district anti-cyberbullying policy to analyze the policy provisions within the context of a complete policy and provide recommendations through the addition and subtraction of text within the policy on how the school districts could improve the l anguage of the policy provisions in light of the observations made in three previous se ctions. Hillsborough Countys school district policy was chosen because it is representativ e of the policy that covers the middle ground. It is also one of the perhaps fe w school districts that may have adopted the policy in reaction to an incident of cyberbullyi ng that took place within the district. The policy is one of the only policies that include s a definition of the term cyberbullying, an element important to the dev elopment of policies aimed at restricting speech through the use of electronic devices. It is also one of the earlier policies to be adopted by the ten school districts included in this analysis. Figure 5-1 Recommendations for bui lding a better model policy Hillsborough School District Policy Against Bullying and Harassment

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86 It is the policy of Hillsbo rough County Public Schools5 that all of its students and school employees have an educational setting that is safe, secure, and free from harassment and bullying of any kind.6 The district will not tolerate bullying or harassment of any type.7 Conduct that constitutes bullying or harassment, as defined herein, is prohibited.8 Definitions Bullying means systematically9 and chronically10 inflicting physical hurt or psychological distress on one or more students, employees, or visitors. It is further defined as unwanted and repeated written ,11 verbal, or physical behavior, including any threatening, insulting, or dehumanizing gesture by a student or adult, that is severe or pervasive enough to create an intimidating, hostile, or offensive educational environment; cause discomfort or humiliation; or that unreasonably interferes with the individuals school performance or participation; and may involve but is not limited to: A. Teasing B. Social Exclusion C. Threat D. Intimidation E. Stalking F. Cyberbullying12 5 See supra Chapter Three, note 22. 6 Providing a mission statement is important feature of the school district anti-bullying policies because it provides a focus for the school district in tailoring its anti-cyberbullying provisions. School districts must be careful not to develop anti-cyberbullying provisions that go beyond the scope of the mission set forth within the school district policy. 7 All ten of the school districts analyzed in this t hesis specifically prohib ited bullying and harassment behavior within the school district. This would be an important element to include upfront so that the persons to whom the policy could affect are made clearly aware of the purpose of the policy. 8 Providing definitions of the terms, "bullying" and "harassment" can help to strengthen the policy language and prevent the policies from being vague. School districts must consider careful the language chosen for these definitions as the policy could quickly be overturned for attempting to restrict too much speech. See supra notes and accompanying text. 9 or steadily. 10 or persistently, constantly. 11 How these policies adapt this language to reflect what we know about cyberbullying is only something that time will tell. See supra note (Bullying Police). Until an est ablished definition of cyberbullying is provided, school districts could improve their anti-bullying policies by removing this language. 12 Listing cyberbullying as an exam ple of the types of restricted bully ing and behavior, especially where policies provide a definition of the term "cyberbully ing," provides for greater cohesiveness within the policy, especially in establishi ng the purpose of the policy.

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87 G. Cyberstalking H. Physical violence I. Theft J. Sexual, religious, or racial harassment K. Public humiliation L. Destruction of property13 Harassment means any threatening, insulting, or dehumanizing gesture ,14 use of data or computer software ,15 or written, verbal or physica l conduct directed against a student or school employee that: A. places a student or school employee in re asonable fear of harm to his or her person or damage to his or her property; or B. has the effect of substantially interf ering with a students ed ucational performance, opportunities, or benefits; 16 or C. has the effect of subs tantially disrupting the or derly operation of a school.17 Bullying and harassment also encompasses: A. Retaliation against a student or school employee by another student or school employee for asserting or alleging an act of bullying or harassment. Reporting an act of bullying or harassment t hat is not made in good faith is considered retaliation. B. Perpetuation of conduct listed in the def inition of bullying or harassment by an individual or group with intent to demean, dehumanize, embarrass, or cause emotional or physical harm to a student or school employee by: 1. Incitement or coercion; 18 13 It would be interesting to see how the school districts would separate out these examples, as causing "physical harm," "psychological distress" or both. 14 Based on relevant precedent, the author of this t hesis has determined that the use of words such as "threatening," "insulting" or "dehumanizing" could subj ect to the policy to a determination of void for vagueness or overbreadth if challenge in court. Thus, the author of this thesis vies that such language be removed from the school district policy pr ovisions defining harassing behavior. 15 Since harassment does not require the use of the "dat a or computer software" it would be in the school district's interest to separate the definition of har assment from the restrictions placed on the use of electronic devices for taking part in harassing behavior. 16 This language appears to follow the Supreme Court's language in Tinker, and thus could pass constitutional muster if not unreasonably ext ended beyond the scope of the Court's holding. See supra notes (explaining the policy's likeness to the Tinker Court decision). 17 Id.

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88 2. Accessing or knowingly and willingly causin g or providing access to data or computer software through a computer, computer system, or computer network within the scope of the district school system; or 3. Acting in a manner that has an effect subst antially similar to the effect of bullying or harassment. "Harassment" or "bullying" also includes electr onically transmitted acts (i.e., internet, email, cellular telephone, personal digital assistance (PDA), or wireless hand-held device) directed toward a student(s) or staff member(s) that causes mental or physical harm or is sufficiently severe persistent, or pervasive that it creates an intimidating, threatening, or abusive educational envir onment for the other student(s), Cyberstalking as defined in s. 784.048(1)(d), F.S., means to engage in a course of conduct to communicate, or to cause to be communicated, words, images, or language by or through the use of electronic mail or electronic communication, directed at a specific person, causing s ubstantial emotional distress to that person and serving no legitimate purpose. Expected Behavior Hillsborough County Public Schools expects students and school employees to conduct themselves appropriately for their levels of development, matu rity, and demonstrated capabilities, with a proper r egard for the rights and welfare of other students and school staff, the educationa l purpose underlying all school acti vities, and the care of school facilities and equipment. The school district believes that standar ds for student behavior must be set cooperatively through interaction among the students, parents/legal guardians, staff, and community members producing an atmospher e that encourages students to grow in self-discipline.19 The development of this atmos phere requires respect for self and others, as well as for distri ct and community property on the part of students, staff, and community members. Since stud ents learn by example, schoo l administrators, faculty, staff, and volunteers will demons trate appropriate behavior; tr eat others with civility and respect, and refuse to tolera te bullying or harassment. The school district upholds that school-relate d bullying or harassment of any student or school employee is prohibited: 18 If the school district attempted to use such language to restrict speech that does not rise to the level of being a true threat, than the school district's restri ction of student speech may not be upheld if challenged in court. 19 This language ("the school district believes that standards for student behavior must be set cooperatively through interacti on among the students, parents/legal guardians, staff, and community members producing an atmosphere that encourages students to grow in self-discipline") is preferable to other school district policies that only requires.

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89 A. During any education program or activity conducted by a school sites educational institution; B. During any school-related or school -sponsored program or activity; C. On a school bus or bus stop of a school sites educational institution; or D. Through the use of data or computer software that is accessed through a computer, computer system, or comput er network of a school sites education institution. Consequences Concluding whether a particular action or inci dent constitutes a violation of this policy requires a determination based on all of the facts and surrounding circumstances.20 The physical locati on or time of access of a computer related incident cannot be raised as a defense in any disciplinary action. 21 Consequences and appropriate remedial action for students who commit acts of bullying or har assment may range from positive behavioral interventions up to and including suspension or expulsion, as outlined in the Code of Student Conduct. A district employee found to have committed an act of bullying or harassment may be disciplined in accordance with district policies, procedures, and agreements. Additionally, egregious acts of harassment by cert ified educators may result in a sanction against that educators state issued certificate. (See State Board of Education Rule 6B-1.006, FAC., The Prin ciples of Professional Conduct of the Education Profession in Flor ida.) Consequences and appropriate remedial action for a visitor or volunteer, found to have committed an act of bullying or harassment shall be determined by the school administrator after consideration of the nature and circumstances of the act, including reports to appropriate law enforcement officials. Consequences and appropriate remedial acti on for a student found to have wrongfully and intentionally accused anothe r as a means of bullying or harassment range from positive behavioral (page 3) interventions up to and including suspension or expulsion, as outlined in the Code of Student Conduct. A district employee found to have wrongfully and intentional ly accused another as a means of bullying or harassment may be disciplined in accordanc e with district policies, procedures, and agreements. Consequences and appropriate remedial action for a visitor or volunteer, found to have wrongfully and intentional ly accused another as a means of bullying or harassment shall be determined by the school administrator af ter consideration of the nature and circumstances of the act, including reports to appropriate law enfor cement officials. 20 This seems contradictory to the following sentence, based on Supreme Court precedent. 21 Although such language might have been formed with the honorable intentions of providing the most protection to students within the school district, including policies language such as this would automatically subject the policy to the facial challe nge of overbreadth, as established by Supreme Court precedent, negating the very reason for which the polic y was adopted. Thus, it should be struck from the school district policy.

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90 Procedure for Reporting At each school, the principal or the princi pals designee is responsible for receiving complaints alleging violations of this policy. All school employees are required to report alleged violations of this policy to the principal or the principals designee. All other member of the school community, incl uding students, parents/legal guardians, volunteers, and visitors are encouraged to report any act that may be a violation of this policy anonymously or in-per son to the principal or principals designee. The principal/site administrat or of each school or site22 in the district shall establish, publicize, and prominently post (e.g., poste rs, student handbook, district website, school website)23 to students, staff, volunteers, and par ents/legal guardians, how a report of bullying or harassment may be filed either in -person or anonymously and how this report will be acted upon. The victim of bullying or harassment, anyone who witnessed the bullying or harassment, and anyone who has credible information that an act of bullying or harassment has taken place may file a report of bullying or harassment. A district employee, school vo lunteer, student, par ent/legal guardian or other persons who promptly reports in good faith an act of bullying or harassment to the appropriate school official and who makes this report in comp liance with the procedures set forth in the district policy is immune from a cause of ac tion for damages arising out of the reporting itself or any failure to remedy the reported incident. Submission of a good faith complaint or report of bullying or harassment will not affect th e complainant or reporters future employment, grades, learning, work ing environment, or work assignments. Any written or oral reporting of an act of bullying or harassment shall be considered an official means of reporting such act(s). Reports may be made anonym ously, but formal disciplinary action may not be based solely on the basis of an anonymous report. Procedure for Investigation The investigation of a reported act of bully ing or harassment is deemed to be a school related activity and begins with a report of such an act. All complaints about bullying and/or harassment that may violate this po licy shall be promptly investigated by a school official. Documented interviews of the victim, alleged per petrator, and witnesses are conducted privately, separ ately, and are conf idential. Each individual (victim, alleged perpetrator, and witnesses) will be interviewed separately and at no time will the alleged perpetrator and victim be interviewed together. The inve stigator shall collect and evaluate the facts including, but not limited to: 22 It is important for a school district to set forth a person or persons who will be responsible for publicizing procedures relating to reporting, investigation and resp onding to acts of bullying or harassment within the school district. Hillsborough County provides one of the best examples of a policy that goes beyond requiring the establishment and publicizing of the policy to actually gives examples of ways in which this should be done. A school district could improve this provisions by setting forth specific time elements and more examples of ways in which the policy will be promoted throughout the school year. 23 It is beneficial for the school to have a set plan for publicizing the policy, including the means in which the district will go about promoting the campaign.

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91 A. Description of incident(s) including nature of the behavior; context in which the alleged incident(s) occurred, etc: B. How often the conduct occurred; C. Whether there were past incidents or past continuing patterns of behavior; D. The relationship between the parties involved; E. The characteristics of parties involved (i.e., grade, age, etc.); F. The identity and number of individuals who participated in bullying or harassing behavior; G. Where the alleged incident(s) occurred; H. Whether the conduct adversely affect ed the students education or educational environment; I. Whether the alleged victim felt or perceived an imbalance of power as a result of the reported incident; and J. The date, time, and method in which the parents/legal guardians of all parties involved were contacted. Whether a particular action or incident constitu tes a violation of this policy requires a determination based on all the facts and surrounding circumstances and includes: A. Recommended remedial steps necessary to stop the bullying and/or harassing behavior; B. A written final r eport to the principal. The maximum of 10 school days shall be the limit for the initial filing of incidents and completion of the invest igative procedural steps.24 The highest level of confidentiality possible will be upheld regarding the submission of a complaint or a report of bullying and/or harassment, and the investi gative procedures that follow. Scope The individual investigating the incident shall provide a report on results of the investigation with recommendations to determine if an act of bullying or harassment falls within the authority of the district. If it is within authority of di strict, move to Procedures fo r Investigating Bullying and/or Harassment. 24 A sort of "scope of limitations" is good to inclu de for ensuring that the details of any events are as accurately reported as possible. Inclusions of a specific length of time in which incidents must initially be reported must be followed if the policy includes such r equirements. Specific procedural steps should also be written out and followed to avoid confusion on what an "i nitial filing of incidents" is meant to include.

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92 If it is outside authority of district, and det ermined a criminal act, refer to appropriate law enforcement. If it is outside authority of district, and determined not a criminal act, inform parents/legal guardians of all students involved. Parent Notification The principal, or designee, shall promptly report via telephone, personal conference, and/or in writing, the occurrence of any incid ent of bullying or harassment as defined by this policy to the parent or legal guardian of all students involved on the same day an investigation of the incident(s ) has been initiated. Notification must be consistent with the student privacy rights under the applicable provisions of the Family Educational Rights and Privacy Act of 1974 (FERPA). If the bullying incident results in the perpetrator being charged with a cr ime, the principal, or designee, shall by telephone or in writing by first class mail, inform parents/ legal guardian of the victim(s) involved in the bullying incident about the Unsafe School Choice Option (No Child Le ft Behind, Title IX, Part E, Subpart 2, Section 9532) that states ...a student who becomes a victim of a violent criminal offense, as determined by State law, while in or on the grounds of a public elementary school or secondary school t hat the student attends, be allowed to attend a safe public elementary school or se condary school within the local educational agency, including a public charter school. On ce the investigation has been completed and it has been determined that criminal charges ma y be pursued against the perpetrator, all appropriate lo cal law enforcement agencies wi ll be notified by telephone and/or in writing. Counseling Referral A district referral procedure will establish a protocol for intervening when bullying or harassment is suspected or when a bullyin g incident is reported. The procedure shall include: A. A process by which the teacher or parent/legal guardian may request informal consultation with school staff (specialt y staff, e.g., school counselor, school psychologist, etc.) to determine the severi ty of concern and appr opriate steps to address the concern (the involved student s parents or legal guardian may be included). B. A referral process to provide professional assistance or serv ices that includes: A process by which school personnel or parent/legal guardian may refer a student to the school intervention team (o r equivalent school-based team with a problem-solving focus) for consideration of appropriate services. (Parent or legal guardian involvem ent is required at this point.)

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93 If a formal discipline report or formal complaint is made, the principal or designee must refer the student(s) to the school intervention team for determination of counseling support and interventions. (Par ent or legal guardian involvement is required at this point.) C. A school-based component to address intervention and assistance as determined appropriate by the intervention team that includes: Counseling and support to address the needs of the victims of bullying or harassment Research-based counseling/interventions to address the behavior of the students who bully and harass others (e.g., em pathy training, anger management) Research-based counseling/interventions which includes assistance and support provided to parents/legal guardians, if deemed necessary or appropriate Data Report The school district will utilize Fl oridas School Environmental Safety Incident Reporting (SESIR) Statewide Report on School Safety and Discipline Data, which includes bullying/harassment as an incident code as well as bullying-related as a related element code. The SESIR definition of bullying/harassment is unwant ed and repeated written, verbal, or physical behavior, including any threatening, insulting or dehumanizing gesture, by an adult or student that is severe or pervasive enough to create an intimidating, hostile or offensive educ ational environment, cause discomfort or humiliation, or unreasonably in terfere with the individual s school performance or participation. If a bullying and/ or harassment incident occurs then it will be reported in SESIR with the bullying/harassment code. If the bullying/harassment results in any of the following SESIR incidents the incident wi ll be coded appropriately using the relevant incident code AND the rela ted element code entitled bullying-related code. Those incidents are: Arson Battery Breaking and Entering Disruption on Campus Major Fighting Homicide Kidnapping Larceny/Theft Robbery Sexual Battery Sexual Harassment Sexual Offenses Threat/Intimidation

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94 Vandalism Weapons Possession Other Major (Other major incidents that do not fi t within the other definitions) Discipline and referral data wil l be recorded in Student Discipline/Referral Action Report and Automated Student Information System. The district will provide bullying incident, disc ipline, and referral data to the Florida Department of Education in the format reques ted, through Survey 5 from Education Information and Accountability Services and at designated dates provided by the Department. Training and Instruction The district expects that schools sust ain healthy, positive, and safe learning environments for all students and affirms the importance of the soci al climate and norms about respect and civility. This requires the efforts of all stakeholders. (page 7) Annually, the district and school shall pr ovide resources and information to all stakeholders regarding identifying, pr eventing and responding to bullying and harassment.25 Victims Parent Reporting The principal or designee shall report any inci dent to the parent or legal guardian of all students involved on the same day an investigat ion of the incident has been initiated. Parents/legal guardians will be notified by te lephone and/or writing of actions being taken to protect the child. Notification must be consistent with the student privacy rights under the applicable provisions of the Family Educational Rights an d Privacy Act of 1974 (FERPA). Policy Publication At the beginning of each school year, the Super intendent or designee sh all, in writing, inform school staff, parents/legal guardians, or other persons responsible for the welfare of a student of the districts student safety and violence prevention policy. Each district school shall provide notice to students and staff of this policy through appropriate references in the code of st udent conduct and employee handbooks, and/or through other reasonable means.26 The Superintendent shall also make all contractors contracting with the district aware of this policy. 25 What exactly are these resources and information? It might be beneficial for the school district to spell this out. 26 Notice is important in being able to punish the st udent for his or her inappropriate behavior. Adequate notice must be given to the student What is adequat e notice? The Hillsborough County School District provides better requirements for such notice being given in requiring annual notice. at least once a year.

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95 Part III: Resolution of the Research Questions Part II provides a resolution of the research questions put forth in the Introduction.27 1. There are several circumstances under wh ich school officials may punish students for the content of their bullying expressi on without violating the First Amendment: 1) where the speech rises to the level, under Tinker of a substantial and material disruption of the educational atmosphere or interference with the rights of other students; 2) where the school can present su fficient evidence to prove that the policy has been enacted in response to a pattern of incidents based on racial or religiouslyintolerant speech; and 3) when such speech ri ses to the level of ei ther true threats or fighting words. 2. A survey of ten school districts revealed t hat the majority of the school districts have enacted anti-cyberbullying policies to address the occurrence of bullying and harassment when it comes onto school grounds. These policies tend to emulate the Floridas anti-cyberbullying law in the adopt ion of policy provisions. Of the ten school district policies surveyed as part of this thesis, the large school districts tended to include additional provisions that amplified the restrictions placed on student expression, whereas the small school districts appeared to stick more closely to the language adopted by the Florida Department of Education. 3. There are several free-speech concerns a ssociated with the Florida school districts' adoption of the anti-cyberbullying policies based on Florida statutory law. The student speech precedents of Hazelwood and Morse are largely irrelevant here as cyberbullying is neither school-sponsored expr ession, nor does it typically advocate the use of illegal drugs. Allowing the school district to regulate off-campus speech regardless of physical location or time poses a significant problem for the constitutionality of these policies. Adopting language that previously has been determined to be unconstitutionally vague and overbroad stands in direct conflict with the relevant precedent protec ting the tenets of free speech. 4. Bearing all this in mind, although the Florida school district s efforts are admirable, it is doubtful that they would pass constituti onal muster if chall enged in court on First Amendment grounds. 27 See Chapter One.

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96 Part IV: Areas for Future Research The author of this thesis has identified several areas for future research that surround the issue of the development of pu blic school district anti-cyberbully ing policies. Such topics include: Whether the school district determines the vagueness versus the specificity of the policy based on the legal counsel available The context or influences surrounding the development of the policy that contributed to the spec ificity of stringency of the policys provisions Whether there are any incidents of cyberbullying that occurred within the school district that contributed to the level of stringency of the school district's policy provisions.

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97 APPENDIX A MIAMI-DADE COUNTY SCHOOL DIST RICT ANTI-CYBE RBULLYING POLICY Title of Policy District Policy Against Bullying and Harassment Location within code C hapter 5, Welfare Size of District Large Region Third District Date cyberbullying policy was adopted September 10, 2009 (date of issue) Updated June 17, 2009 Policy website http://www.dadeschools.net/ schoolboard/rule s/Chapt5/5d1.101.pdf Electronic bullying clause Yes Includes "cyberbullying" provision Yes

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98 Miami-Dade Public School District DISTRICT POLICY AGAINS T BULLYING AND HARASSMENT Miami Dade County Public Schools (M-DCPS) is committed to providing a safe learning environment for all students. To this end, MDCPS is dedicated to eradicating bullying and harassment in its schools by providin g awareness, prevention, and education in promoting a school atmosphere in which bullying, harassment, and intimidation will not be tolerated by students, school board employees, visitors, or volunteers. In April 2008, the Florida Legislature passed the Jeffrey Johnston Stand Up for All Students Act (House Bill 669). This Act created the Florida Stat ute (1006.147) that requires all school districts to adopt a policy pr ohibiting bullying and harassment of students and staff on school grounds or school transportation, at school-sponsored events, and through the use of data or computer software acce ssed through school co mputer systems or networks by December 1, 2008. The School B oard of Miami-Dade County, Florida, has affirmed its support for this Act and the protection of all students and staff by establishing a District Policy Against Bu llying and Harassment. Compliance with the requirements of Section 1006.147, Florida St atute, will be accomplished as follows: Inclusion and involvement of students, parents, t eachers, administrators, school staff, school volunteers, community representativ es, and local law enforcement agencies in the process of adopting the policy. Provision of a plan for the school district to implement the policy in a consistent and ongoing manner. Integration of t he policy with curriculum, disci pline policies, and violence prevention efforts. Development of a District-wide policy prohi biting bullying and harassment that is in substantial conformity with the FLDOE model policy. Submission of a district policy prohibiting bullying and harassment to the Office of Safe Schools. Receipt of approval and certif ication of the Districts policy from the Office of Safe Schools. Implementation and monitoring of t he Districts required policy. County Public Schools, th rough the Division of Student Services Safe Schools Programs, has developed the Policy Against Bullying and Harassment for Miami-Dade County Public Schools, at tached hereto and incorporated herein by 6Gx135D-1.101 reference. Included in this state m andated policy is a comprehensive Bullying Prevention curriculum for all student s in grades Pre-K through 12. This policy shall also be incorporated by reference into the Code of Student Conduct and the Procedures for Promoting and Mainta ining a Safe Learning Environment This Policy will supersede any existing policy, gui deline, or Board Rule regarding bullying

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99 and harassment that may be determined to be in consistent with this policy. School Board rules are applicable to all students under the jurisdiction of Miami-Dade County Public Schools. Copies of th is document are on file in t he Office of Board Recording Secretary, and the Citizen Info rmation Center and will be available in each school and Regional Center. This policy do es not replace the District s current policy prohibiting harassment on the basis of race sex, national origin, and di sability. Specific federal policy guidelines on harassment have been established by the U.S. Department of Educations Office of Civil Rights (OCR) for Title IX, Flor ida Equity Act, Section 504 of the Rehabilitation Act, Americans with Disabil ities Act (ADA) and the Age Discrimination Act. The Florida Department of Educations Office of Equity and Access (OEA) reviews and monitors the implementation of such ha rassment policies. Specific Authority: 1001.41 (1), (2); 1001.42 (25); 1001.43 (10), F.S. Law Impl emented, Interpreted, or made specific: 1006.147, F.S. History: THE SCHOOL BOARD OF MIAMI-DADE COUNTY, FLORIDA New: 6-17-09 ###

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100 APPENDIX B BROWARD COUNTY SCHOOL DISTRICT ANTI-CYBERBULL YING POLICY Title of Policy Antibullying Location with code Size of District Large Region Date cyberbullying policy was adopted July 22, 2008 Updated Policy website http://www.browardschool s.com/pdf/conduct_en.pdf Electronic bullying clause Yes Includes "cyberbullying" provision Yes

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101 Broward Public School District POLICY 5.9: ANTI BULLYING THE SCHOOL BOARD OF BROWARD COUNT Y, FLORIDA, IS COMMITTED TO PROTECTING ITS STUDENTS, EMPLOYE ES, AND APPLICANTS FOR ADMISSION FROM BULLYING, HARASSMENT, OR DIS CRIMINATION FOR ANY REASON AND OF ANY TYPE. THE SCHOOL BOARD BELIEVES THAT ALL STUDENTS AND EMPLOYEES ARE ENTITLED TO A SAFE, EQUITABLE, AND HARASSMENT-FREE SCHOOL EXPERIENCE. BULLYING, HAR ASSMENT, OR DISCRIMINATION WILL NOT BE TOLERATED AND SHALL BE JUST CAUSE FOR DISCIPLINARY ACTION. THIS POLICY SHALL BE INTERPRETED A ND APPLIED CONSISTENTLY WITH ALL APPLICABLE STATE AND FEDERAL LAWS AND THE BOARD'S COLLECTIVE BARGAINING AGREEMENTS. CONDUCT THAT CONSTITUTES BULLYING, HARASSMENT OR DISCRIMINATION, AS DEFINED HEREIN, IS PROHIBITED. POLICY 4001.1, NONDISCRIMINATION STATEMENT POLICY, ADDRESSES REQUIREMENTS FOR DISCRIMINATION AGAINST DEFINED FEDERAL, STATE, AND LOCAL PROTECTED CATEGORIES OF PERSONS. IT IS ESSENTIAL THAT A BASIC UNIVERSAL PREVENTION CURRICU LUM BE IN PLACE SO THAT EVERY SCHOOL WILL RECEIVE A FOUNDATION OF PREVENTION UPON WHICH TO BUILD A CULTURE OF HEALTH, WELLNESS, SAFETY, RESPECT AND EXCELLENCE. The standards of this policy constitute a sp ecific, focused, coordinated, integrated, culturally sensitive system of supports fo r all students, staff, families, and community agencies that will improve relations within each school. It is designed to ensure that every school has staff that have been trained and are supported in their schools efforts to provide awareness, intervention training, and instructional strategies on prevention, including violence prevention, to each sta ff, parent, and student in the District and to direct follow up when incident s are reported and/or occur. I. Definitions A. Bullying means systematically and chroni cally inflicting physical hurt or psychological distress on one or more students or employees. It is further defined as: unwanted purposeful written, ve rbal, nonverbal, or physical behavior, including but not limited to any threatening, insulting, or dehumanizing gesture, by an adult or student, that has the potential to create an intimi dating, hostile, or offensive educational environment or cause long term damage; c ause discomfort or humiliation; or unreasonably interfere with the individuals school perform ance or participation, is carried out repeatedly and is often charac terized by an imbalance of power. Bullying may involve, but is not limited to: 1. unwanted teasing 2. threatening 3. intimidating 4. stalking

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102 5. cyberstalking 6. cyberbullying 7. physical violence 8. theft 9. sexual, religious, or racial harassment 10. public humiliation (page 2) 11. destruction of school or personal property 12. social exclusion, incl uding incitement and/or coercion 13. rumor or spr eading of falsehoods B. Harassment means any threatening, insulting, or dehumanizing gesture, use of technology, computer software, or written, verbal or physical conduct directed against a student or school employee that: 1. places a student or school employee in reasonable fear of harm to his or her person or damage to his or her property; 2. has the effect of substantially interfering with a students educational performance, or employees work perfo rmance, or eithers opportunities, or benefits; 3. has the effect of su bstantially negatively impacting a students or employees emotional or ment al well-being; or 4. has the effect of su bstantially disrupting the or derly operation of a school. C. Cyberstalking, as defined in Florida State St atute 784.048(d), means to engage in a course of conduct to communi cate, or to cause to be co mmunicated, words, images, or language by or through the use of elec tronic mail or electronic communication, directed at or about a specific person, causing substantial emotional distress to that person and serving no legitimate purpose. D. Cyberbullying is defined as the willful and repeat ed harassment and intimidation of a person through the use of digital techno logies, including, but not limited to, email, blogs, social websites (e.g., MySpace, Fa cebook), chat rooms, and instant messaging. E. Bullying Cyberbullying and/or Harassment also encompass: 1. retaliation against a student or school employee by another student or school employee for asserting or alleging an act of bullying, harassment, or discrimination. 2. retaliation also includes reporting a baseless act of bullying, harassment, or discrimination that is not made in good faith. 3. perpetuation of conduct listed in the definition of bullying, harassment, and/or discrimination by an individual or group with intent to demean, dehumanize, embarrass, or cause emotional or ph ysical harm to a student or school employee by: a. incitement or coercion; b. accessing or knowingly and willi ngly causing or providing access to data or computer software through a computer, computer system, or computer network within the scope of the District school system; or

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103 c. acting in a manner that has an effect substantially similar to the effect of bullying, harassment, or discrimination. F. Bullying Cyberbullying, Harassment and Discrimination (hereinafter referred to as bullying, as defined in Secti on A, for the purpose of this Policy) also encompass, but are not limit ed to, unwanted harm towards a student or employee in regard to their real or perceived: sex, race, color, religion, national origin, age, disability (physical, mental, or educational), marital status, socio-economic background, ancestry, ethnicity, gender, gender identity or expression, linguistic preference, political beliefs, sexual orientation, or social/family background or bei ng viewed as different in its education programs or admissi ons to education programs and therefore prohibits bullying of any student or employee by any Board member, District employee, consultant, contractor, agent, visitor, volunt eer, student, or other (page 3) person in the school or outside the school at school-s ponsored events, on school buses, and at training facilities or training programs sponsored by the District. For Federal requirements when these acts are against F ederally identified pr otected categories, refer to Policy 4001.1. G. Accused is defined as any District employee, co nsultant, contractor, agent, visitor, volunteer, student, or other person in t he school or outside the school at school sponsored events, on school buses, and at trai ning facilities or training programs sponsored by the District who is reported to have committed an act of bullying, whether formally or informally, verbally or in writing, of bullying. H. Complainant is defined as any District employee, consultant, contractor, agent, visitor, volunteer, student, or other person who formally or informally makes a report of bullying, orally or in writing. II. Expectations: The Broward County Scho ol District expects students and employees to conduct themselves in keeping with their levels of development, maturity, and demonstrated and school staff, the educational purpose underlying all school activities, and the care of school facilities and equipment. A. The School District prohibits the bullying of any student or school employee: 1. during any educational program or activity conducted by SBBC; 2. during any school-related or school-s ponsored program or activity or on a SBBC school bus; 3. through the use of any electronic dev ice or data while on school grounds or on a SBBC school bus, computer software t hat is accessed through a computer, computer system, or computer network of the SBBC. The physical location or time of access of a computer-related incident cannot be raised as a defense in an disciplinary action initia ted under this section. 4. through threats using the above to be carried out on school grounds. This includes threats made outside of school hours, which are intended to be carried out during any school-related or school-s ponsored program or activity, or on a SBBC school bus.

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104 5. while the District does not assume any liability for incidences that occur at a bus stop or en route to and from school, a student or witness may file a complaint following the same procedures for bullying against a student and the school will investigate and/or provide assistance and intervention as the principal/designee deems appropriate, whic h may include the use of the School Resource Officer. The principal/designee shall use all Distr ict Reporting Systems to log all reports and interventions. B. All administrators, facult y, and staff, in collaborat ion with parents, students, and community members, will incorporate systemic methods for student and staff recognition through positive reinforcement for good conduct, self discipline, good citizenship, and academic success, as seen in the required school plan to address positive school culture and behavi or (aka Discipline Plan). C. Student rights shall be explained as outlined in this policy and in the Student Code of Conduct: Respect for Persons and Property. D. Proper prevention and interven tion steps shall be taken based on the level of severity of infraction as outlined in the Student C ode of Conduct, the Discipline Matrix, and this Policy. (page 4) III. Stakeholder Responsibilities A. Student Support Services Office of Prevention: Student Support Services professionals, in collaboration with ot her District departments, will collaborate with school based staff members, fa milies, and community stakeholders to utilize this Policy and associated procedures to promote ac ademic success, enhance resiliency, build developmental assets, and promote protective factors within each school by ensuring that each and every staff member and student is trained on violence prevention. These trainings will work to create a climate wit hin each school and within the District that fosters the safety and respect of children and the belief that adults are there to protect and help them. Additionally, students and staff (including but not limited to school based employees, administrators, ar ea/district personnel, counselin g staff, bus drivers) will be given the skills, training, and tools needed to create the foundation for preventing, identifying, investigating, and interv ening when issues of bullying arise B. Schools: By August 2011, each school principal sha ll designate a Prevention Liaison who shall serve on existing team s that address acts of violence and school safety, e.g., threat assessment teams, SAFE Teams, and act as the Student Support Services Office of Prevention contact. At minimum, this team should include staff members from administration, guidance, and instruction. These designees are the key school based personnel who will receive prevention training and assist in the dissemination of prevention methods, interv ention, and curriculum, for bullying and other issues that impact the school culture and welfare of students and staff.

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105 C. Community Resources: Student Support Services profe ssionals, in collaboration with other District departments, will train a wide range of co mmunity stakeholders, profit, non-profit, School Resource Officers, and faith based agencies to provide the dissemination and support of violence preventi on curriculums to students, their families and school staff. This collaborat ion will make effective use of available school district and community resources while ensuring s eamless service delivery in which each and every school and student receives an equitabl e foundation of violence prevention. D. Evidence-Based Interventions and Curriculum: Student Support Services Office of Prevention staff members will serve as th e coordinators and trainers of prevention for all designated school staff and outside agencies/ community partners. Those trained in Prevention (e.g., Prevention Liaisons, Of fice of Prevention staff and Community Partners) will then collaborate as violenc e prevention partners to implement the evidence-based interventions and proven programs within each of their schools. Training will focus on prevention and evidence-based programs. E. Parent Participation and Partnership: Student Support Services professionals, in collaboration with other Distr ict departments, will prov ide opportunities and encourage parents to participate in prevent ion efforts with their children in meaningful and relevant ways that address the academic, social, and health needs of their children. The District will offer parents and parent associations tr ainings on violence prevention as well as knowledge of and/or opportunity to participate in any viol ence prevention initiatives currently taking place in their school via t he District school websit e, Broward Education Communication Network (BECON), open houses, and parent/school newsletters. Training will provide resources and support for parents by linking them with internal supports as well as referral to communi ty-based resources as needed. (page 5) F. Evaluation of Service Effectiveness: Evaluations to determine the effectiveness and efficiency of the services being provi ded will be conducted at least every three years and shall include data-based outcomes. G. Accountability : The Superintendent, other distri ct administrators, the Area Superintendents and their staffs as well as school principal s, share accountability for implementation of these student support services consistent with the standards of this policy. These administrators will take steps to assure that student support services are fully integrated with their instructional co mponents at each school and are pursued with equal effort in policy and practice. IV. Training for students, parents, teachers, area/district staff, school administrators, student support staff, co unseling staff, bus drivers, School Resource Officers/Deputies, contractors and school volunteers on identifying, preventing, and responding to bul lying will be conducted. At the beginning of each school year, t he school principal/desig nee and or appropriate area/district administrator shall provide awar eness of this policy, as well as the process for reporting incidents, invest igation and appeal, to students, school staff, parents, or

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106 other persons responsible for the welfare of a pupil through appropriate references in the Student Code of Conduct, Employee Ha ndbooks, the school website, and/or through other reasonable means. V. Disciplinary sanctions (consequenc es) and due processes for a person who commits an act of bullying under this policy. A. Concluding whether a particular action or inci dent constitutes a violation of this policy requires a determination based on all of the facts and surrounding circumstances, followed by the determination of disciplinary sanctions appropriate to the perpetrators position within the District. 1. Consequences and appropriate intervent ions for students who commit acts of bullying may range from positive behavioral interventions up to, but not limited to suspension, as outlined in the Student Code of Conduct, the Discipline Matrix, and this Policy. 2. Consequences and appropriate interventions for a school/district employee found to have committed an act of bullying will be instit uted in accordance with District policies, procedures, and agreements (Policy 4.9, Empl oyee Disciplinary Guidelines, Part I, Section b and Policy 2410, Workplace Violence, Rules) and the Education Professionals Contract Agr eement (BTU). Additionally, egr egious acts of bullying by certified educators may result in a sanction against an educators state issued certificate (Rule 6B-1.006 F.A.C.). 3. Consequences and appropriate intervention fo r a visitor or volunteer, found to have committed an act of bullying shall be deter mined by the school administrator after consideration of the nature and circumst ances of the act, including reports to appropriate law enforcement officials. 4. These same actions will apply to per sons, whether they be students, school employees, or visitors/volunt eers/independent contractors, who are found to have made wrongful and intentional accusations of another as a means of bullying. VI. Reporting an act of bullying A. At each school, the principal/designee is responsible for receiving oral or written complaints alleging violations of this poli cy, as with all infractions from the Student Code of Conduct. B. All District faculty and staff are required and must report, in writing, any allegations of bullying or violations of this Policy to the principal/des ignee or appropriate area/district administrator. Failure to report will result in action(s) or discipline, consistent with the collective bargaining agreement provisions, up to and including termination of employment (SBBC Policy 2410, section 1). C. Any other members of t he school community who have credible information that an act of bullying has taken place may file a report of bullying, whether a victim or witness.

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107 D. Any student (and/or the par ent on that complainant's behal f if the complainant is a minor) who believes he/she is a victim of bullying (or any individual, including any student who has knowledge of any incident(s) in volving bullying of students) is strongly encouraged to report the incident (s) in writing to a school official. Complaints should be filed as soon as possible after the a lleged incident and noted on the specified data system, but must be filed within ninety (90) school days after the alleged incident (i.e., within 90 school days of the last act of a lleged bullying). Failure on the part of the complainant to initiate and/or follow up on the complaint within this period may result in the complaint being deemed abandoned. For prot ected categories covered under Policy 4001.1, a different timeline may apply. E. The principal of each school in the Distric t shall establish, and prominently publicize to students, staff, volunteer s, and parents, how a report of bullying may be filed and how this report will be acted upon. F. A school district employee, school volu nteer, contractor, student, parent/ or other persons who promptly reports in good faith an act of bully ing to the appropriate school official, and who makes this report in comp liance with the procedures set forth in this District Policy, is immune from a cause of ac tion for damages arising out of the reporting itself or any failure to remedy the reported incident. Submission of a good faith complaint or report of bullyi ng will not affect the compla inant or reporters future employment, grades, learning or working en vironment, or work assignments within the SBBC. G. Administrators/principal/designee(s) shall document in writing and/or via the specified data system all complaints regar ding bullying, as with all infractions of theCode of Student Conduct, to ensure that problems are appr opriately addressed in a timely manner, whether the report is made verbally or in writing. H. Anonymous reports may be made utilizin g the Broward County Public Schools Anonymous Bullying Report Form. This re porting form can be found on the School Districts website www.browardschools.com (cli ck on special investigative unit; click on report anonymous tips), at each schools front o ffice, or at each area/district/ department site. Anonymous reports may be delivered to t he school administrations front office, put in the schools reporting box, or through the Spec ial Investigative Unit (herein after to be referred to as SIU) via their internet website www. broward.k12.fl.us/siu or Emergency/Silence Hurts Tip line at (754) 321-0911. Administrators shall use the specified data system to log all reports and interventions. Formal disciplinary action may not be based solely on the basis of an anonymous report. VII. Bullying Complaints and Resolution A. The investigation of a repor ted act of bullying of a st udent, school-based employee, or other persons providing service to the school is deemed to be a school-related activity and begins with a report of such an act. (page 7)

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108 B. The principal/designee shall document all co mplaints in writing and/or through the appropriate data system to ensure that probl ems are addressed in a timely manner. Although this Policy encourages students to use the formal written complaint process, school officials "should investigate all comp laints and reports of harassment, whether or not the complaint is in writing," as st ated by the Office for Civil Rights in Protecting Students from Harassment and Hate Cr ime: A Guide for Schools, Part II (1999). C. If the complaint is about the principal or an area/districts staf f members direct supervisor, then the Area Superintendent/Designe e or appropriate district administrator shall be asked to address the complaint. D. Informal Resolution where the administr ator, along with the complainant and the accused/student, may agree to informally resolve the complaint. The incident and the resolution must be documented on the appropriate data system. If a mutual resolution has not been achiev ed, a formal written appeal must be filed within five (5) work days after the informal meeting and submitted to the principal or appropriate area/district supervisor. E. Formal Resolution the compla inant/student/employee or parent(s), on behalf of the student, may file a written complaint wit h the principal/desig nee or appropriate area/district administrator by utilizing t he Broward County Public Schools Bullying Complaint Report Form. Said form is av ailable on the School Districts website www.browardschools.com at each schools front office, or area/district/department site. According to the level of infraction, parent s will be promptly notified of any actions being taken to protect the vi ctim via telephone or personal conference; the frequency of notification will depend on the seri ousness of the bullying incident. F. The resolution, all interviews and interventions that take place and the corresponding dates shall be documented in wr iting and/or noted in the dist rict specified data system. VIII. Investigation requirements for re ported acts of bullying under this policy A. The procedures for investigating sc hool-based bullying may include the principal/designee and/or the ut ilization of a Prevention Liaison, in the case of studenttostudent bullying. The princi pal or designee and Prevention Liaison shall be trained in investigative procedures and interventions as outlined in this Policy. For incidents at the area/district level, the appropr iate administrator will be respons ible for the investigation as outlined in this policy. B. The investigator may not be the accused or the alleged victim. C. The principal/designee or appropriate area/ district administrat or shall begin a thorough investigation and inte rviews with the complainant(s), accused, and witnesses within two (2) school days of receiving a notification of complaint. (The Florida Department of Education requires that school administrators/designees provide

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109 immediate notification to the parents of both the victim a nd the alleged perpetrator of an act of bullying or harassment.) D. During the investigation, the principal/designee or ap propriate area/district administrator may take any action necessary to protect the complainant, other students or employees consistent wit h the requirements of applicabl e regulations and statutes. 1. In general, student complainants will c ontinue attendance at the same school and pursue their studies as directed while the investigation is conducted and the complaint is pending resolution. Any legal order of a court will prevail. 2. When necessary to carry out the inve stigation or for other good reasons, and consistent with federal and st ate privacy laws, the principal/designee or appropriate area/district administrator also may discuss the complaint with any school district employee, the parent of the complainant or accused, if one or both is a minor (or has given consent or is an adult who has been determined to be incompetent or unable to give informed consent due to disability), and/or child protective agencies responsible for investigating child abuse. 3. During the investigation where an employee is the accused, the principal/designee or the appropriate area/district administr ator may recommend to the Associate Superintendent of Human Resources/design ee, any action necessary to protect the complainant, or other student s or employees, consistent with the requirements of applicable statutes, State B oard of Education Rules, School Board Policies, and collective bargaining agreements. E. Within ten (10) school days of the filing of the complaint, there shall be a written decision by the Principal/Desi gnee or appropriate area/distri ct administrator regarding the completion of the investigation. The pr incipal/designee shall make a decision about the validity of the allegations in the complaint and about any corrective action, if applicable, consistent with the Discipline Matrix. F. The Principal/Designee or appropriate area/ district administrat or will inform all relevant parties in writing of the decision and the right to appeal. A copy of the decision will be sent to the originating school and be no ted in all relevant data tracking systems including, but not limited to the SESIR and the Statewide Report on School Safety and Discipline Data system. G. If the accused is an employee, discipl ine may be taken, consistent with any applicable collective bargaining ag reement provisions, to resolve a complaint of bullying (Policy 4.9, Employee Disciplinary Gui delines). The supervisor/designee (e.g., principal/designee for school-based employees ) of the employee shall discuss the determination and any recommended corrective action with the Area Director, for school-based actions, or the appropriate area/ district supervisor, for area/district actions, and the Associate Superin tendent of Human Resources.

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110 H. No retaliation of any kind is permitted in connection with an individual's having made a bullying complaint and if it occurs, it shall be deemed an additional act of bullying as stated herein this Policy. IX. Referral for Intervention A. Referral of a student to the collaborative problem-solving team (or equivalent schoolbased team with a problem solving focus) for consideration of appropriate services is made through the school problem-solving proc ess by school personnel or parent to theprincipal/designee. Parent notification is required. W hen such a report of formal discipline or formal complaint is made, the principal/designee shall refer the student(s) to the collaborative problem-solving team for determination of need for counseling support and interventions. B. Referral of school or area/district pers onnel to the Employee Assistance Program (EAP) for consideration of appropriate se rvices will be made by the administrator. C. School-based intervention and assistance will be determined by the collaborative problem-solving team and may include, but is not limited to: 1. counseling and support to address the needs of the vict ims of bullying. (page 9) 2. counseling interventions to address the behavior of the students who bully (e.g., empathy training, anger management). 3. intervention which includes assist ance and support provided to parents. 4. analysis and evaluation of school cultur e with resulting recommendations for interventions aimed at increasing peer ownership and support. D. Self referral for informal consultation: Distr ict staff, students or parents may request informal consultation with school staff (e.g., school social worker, school counselor, school psychologist, Prevention Li aison, EAP, etc.) to determi ne the severity of concern and appropriate steps to address the concern of bullying (the involved students parents may be included) orally or in wr iting to the principal/designee. E. Any investigations and interventions sha ll be recorded on the District specified data system. X. Incident reporting requirements A. The procedure for including incidents of bully ing in the schools report of safety and discipline data is required under F.S. 1006.09(6). The report mu st include each incident of bullying and the resulting consequences, including discipline, interventions and referrals. In a separate sect ion, the report must include each reported incident of bullying or harassment that does not meet the criteria of a prohibited act under this policy, with recommendations regarding said incident. B. The School District will utilize Floridas School Environmental Safety Incident Reporting (SESIR) Statewide Report on School Safety and Discipline Data, which includes bullying/haras sment in its codes.

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111 C. Discipline, referral data, in vestigations, interventions, and actions of discipline shall be recorded on the specified data system, as wit h other infractions from the Code of Student Conduct. XI. Process for referral for external investigation A. If the act is outside the scope of the District, and determined a criminal act, referral to appropriate law enforcement shall be made i mmediately, the parent will be notified, and the referral documented by the principal/designee in the specified data system. B. While the District does not assume any liabili ty for incidences that must be referred for external investigation, it encourages t he provision of assistance and intervention as the principal/designee deems appropriate, including the use of the School Resource Officer and other personnel. The principa l/designee shall use District Reporting Systems to log all reports and interventions. XII. Appeals process A. Appeal procedure for bullying by a student will follow the steps outlined in the Code of Student Conduct Right to Appeal Unfair Penalties. B. Appeal procedure for an accused/employee: 1. If the accused/employee wishes to appeal the action taken in resolution of the complaint, such appeal shall be filed either in accordance with SBBC BoardPolicy 4015 or pursuant to the relevant collective bargaining agreement. 2. For those employees not in a bargaining unit, the appeal shall be filed in accordance with SBBC Policy 4015. In reaching a decision about the complaint, the following should be taken into account: a) SBBC Policy 4.9, Employee Disci plinary Guidelines; and (page 10) b) Case law, state and feder al laws and regulations, and t he Board's Policies prohibiting bullying and discrimination, including Policy 4001.1. XIII. Confidentiality A. To the greatest extent possible, all comp laints will be treated as confidential and in accordance with SBBC Policy 51 00.1, F.S. 1002.22(3)(d); the Family Educational Rights and Privacy Act ("FERPA"); t he Health Insurance Portability and Accountability Act (HIPAA) and any other applicable law, such as F.S. 119.07(1); 1012.31(3)(a); or 1012.796(1)(c). B. Limited disclosure may be necessary to complete a thorough investigation as described

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112 above. The District's obligation to inve stigate and take corrective action may supersede an individual's right to privacy. C. The complainant's identity shall be protected, but absolute confidentiality cannot be guaranteed. The identity of the vi ctim of the reported act sha ll be protected to the extent possible. XIV. Retaliation Prohibited A. Retaliation includes, but is not limited to, any form of intimidation, reprisal or harassment in connection with filing a complain t or assisting with an investigation under this Policy. B. Retaliatory or intimidating conduct agains t any individual who has made a bullying complaint or any individual who has testified, assisted, or participated, in any manner, in an investigation is specifical ly prohibited and as detailed in this Policy shall be treated as another incidence of bullying. XV. Additional Referral In all cases, the District reserves the right to refer the results of it s own investigation to the State Attorney for the Seventeenth Judicial Circuit of Florida for possible criminalcharges, whether or not t he District takes any other action. XVI. Constitutional Safeguard This policy does not imply to prohibit expr essive activity protected by the First Amendment of the United States Constitution or Article I, Secti on 4 of the Florida Constitution. XVII. Preclusion This policy should not be interpreted as to prevent a victim or accused from seeking redress under any other available law either civil or criminal. XVIII Severability If a provision of this policy is or becomes illegal, invalid or unenforceable in any jurisdiction, that shall not affect the validity or enforceability in that jurisdiction of any other provision of this policy. AUTHORITY: F.S. 1006.147 POLICY ADOPTED AS AMENDED: 7/22/08 ###

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113 APPENDIX C HILLSBOROUGH COUNTY SCHOOL DISTRI CT ANTI -CYBERBULLYING POLICY Title of Policy Policy Against Bullying and Harassment Location within code Size of District Large Region Second District Date cyberbullying policy was adopted November 25, 2008 Policy website http://www.sdhc.k12.fl.us/PolicyManual/ No. of pages 7 Electronic bullying clause Includes "cyberbullying" provision

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114 Hillsborough Public School District Policy Against Bullying and Harassment It is the policy of Hillsborough County Public Schools that all of its students and school employees have an educational setting that is safe, secure, and free from harassment and bullying of any kind. The district will not to lerate bullying or harassment of any type. Conduct that constitutes bullying or hara ssment, as defined herein, is prohibited. Definitions Bullying means systematically and chronically inflicting ph ysical hurt or psychological distress on one or more students, employees, or visitors. It is further defined as unwanted and repeated writt en, verbal, or physical behavi or, including any threatening, insulting, or dehumanizing gesture, by a student or adult, that is severe or pervasive enough to create an intimidating, hostile, or offensive educational environment; cause discomfort or humiliation; or unreasonably interfere with the individuals school performance or participation; and ma y involve but is not limited to: A. Teasing B. Social Exclusion C. Threat D. Intimidation E. Stalking F. Cyberbullying G. Cyberstalking H. Physical violence I. Theft J. Sexual, religious, or racial harassment K. Public humiliation L. Destruction of property Harassment means any threat ening, insulting, or dehumanizi ng gesture, use of data or computer software, or written, verbal or physical conduct directed against a student or school employee that: A. places a student or school employee in reasonable fear of harm to his or her person or damage to his or her property; or B. has the effect of substantially interfering with a students educational performance, opportunities, or benefits; or C. has the effect of su bstantially disrupting the or derly operation of a school Bullying and harassment also encompasses: A. Retaliation against a student or school employee by another student or school employee for asserting or alleging an act of bullying or harassment. Reporting an act of bullying or harassment that is not made in good faith is considered retaliation.

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115 B. Perpetuation of conduct listed in the definition of bullying or harassment by an individual or group with intent to demean, dehumanize, embarrass, or cause emotional or physical harm to a student or school employee by: 1. Incitement or coercion; (page 2) 2. Accessing or knowingly and willi ngly causing or providing access to data or computer software through a computer, computer system, or computer network within the scope of the district school system; or 3. Acting in a manner that has an effect substantially simila r to the effect of bullying or harassment. "Harassment" or "bullying" also includes elec tronically transmitted acts (i.e., internet, email, cellular telephone, personal digital assistance (PDA), or wireless hand-held device) directed toward a student(s) or staff member(s) that causes mental or physical harm or is sufficiently severe persistent, or pervasive that it creates an intimidating, threatening, or abusive educational envir onment for the other student(s). Cyberstalking as defined in s. 784.048(1)(d), F.S., means to engage in a course of conduct to communicate, or to cause to be communi cated, words, images, or language by or through the use of electronic mail or electroni c communication, directed at a specific person, causing substantial emotional distre ss to that person and serving no legitimate purpose. Expected Behavior Hillsborough County Public Schools expects students and school employees to conduct themselves appropriately for their levels of development, matu rity, and demonstrated capabilities, with a proper r egard for the rights and welfare of other students and school staff, the educationa l purpose underlying all school acti vities, and the care of school facilities and equipment. The school district believes that standar ds for student behavior must be set cooperatively through interaction among the students, parents/legal guardians, staff, and community members producing an atmospher e that encourages students to grow in self-discipline. The development of this at mosphere requires respect for self and others, as well as for district and community property on the part of students, staff, and community members. Since stud ents learn by example, schoo l administrators, faculty, staff, and volunteers will demons trate appropriate behavior; tr eat others with civility and respect, and refuse to tolera te bullying or harassment. The school district upholds that school-relate d bullying or harassment of any student or school employee is prohibited: A. During any education program or activity conducted by a school sites educational institution; B. During any school-related or sc hool-sponsored program or activity; C. On a school bus or bus stop of a school sites educational institution; or

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116 D. Through the use of dat a or computer software that is accessed through a computer, computer syst em, or computer network of a school sites education institution. Consequences Concluding whether a particular action or inci dent constitutes a violation of this policy requires a determination based on all of the facts and surrounding circumstances. The physical location or time of access of a com puter-related incident cannot be raised as a defense in any disciplinary action. Conseque nces and appropriate remedial action for students who commit acts of bullying or har assment may range from positive behavioral interventions up to and including suspension or expulsion, as outlined in the Code of Student Conduct. A district employee found to have committed an act of bullying or harassment may be disciplined in accordance with district policies, procedures, and agreements. Additionally, egregious acts of harassment by cert ified educators may result in a sanction against that educators state issued certificate. (See State Board of Education Rule 6B-1.006, FAC., The Prin ciples of Professional Conduct of the Education Profession in Flor ida.) Consequences and appropriate remedial action for a visitor or volunteer, found to have committed an act of bullying or harassment shall be determined by the school administrator after consideration of the nature and circumstances of the act, including reports to appropriate law enforcement officials. Consequences and appropriate remedial acti on for a student found to have wrongfully and intentionally accused anothe r as a means of bullying or harassment range from positive behavioral (page 3) interventions up to and including suspension or expulsion, as outlined in the Code of Student Conduct. A district employee found to have wrongfully and intentional ly accused another as a means of bullying or harassment may be disciplined in accordanc e with district policies, procedures, and agreements. Consequences and appropriate remedial action for a visitor or volunteer, found to have wrongfully and intentional ly accused another as a means of bullying or harassment shall be determined by the school administrator after consideration of the nature and circumstances of the act, including reports to appropriate law enfor cement officials. Procedure for Reporting At each school, the principal or the princi pals designee is responsible for receiving complaints alleging violations of this policy. All school employees are required to report alleged violations of this policy to the principal or the principals designee. All other member of the school community, incl uding students, parents/legal guardians, volunteers, and visitors are encouraged to report any act that may be a violation of this policy anonymously or in-per son to the principal or principals designee. The principal/site administrator of each school or site in the distri ct shall establish, publicize, and prominently post (e.g., posters, student handbo ok, district website, school website) to students, staff, volunteer s, and parents/legal guardians, how a report of bullying or harassment may be filed either in-person or anonymously and how this report will be acted upon. The victim of bullying or har assment, anyone who witnessed the bullying or

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117 harassment, and anyone who has credible information that an act of bullying or harassment has taken place may file a repor t of bullying or harassment. A district employee, school volunteer, student, par ent/legal guardian or other persons who promptly reports in good faith an act of bully ing or harassment to the appropriate school official and who makes this report in comp liance with the procedures set forth in the district policy is immune from a cause of ac tion for damages arising out of the reporting itself or any failure to remedy the reported incident. Submission of a good faith complaint or report of bullying or harassment will not affect th e complainant or reporters future employment, grades, learning, work ing environment, or work assignments. Any written or oral reporting of an act of bullying or harassment shall be considered an official means of reporting such act(s). Reports may be made anonym ously, but formal disciplinary action may not be based solely on the basis of an anonymous report. (page 4) Procedure for Investigation The investigation of a reported act of bully ing or harassment is deemed to be a school related activity and begins with a report of such an act. All complaints about bullying and/or harassment that may violate this po licy shall be promptly investigated by a school official. Documented interviews of the victim, alleged per petrator, and witnesses are conducted privately, separ ately, and are conf idential. Each individual (victim, alleged perpetrator, and witnesses) will be interviewed separately and at no time will the alleged perpetrator and victim be interviewed together. The inve stigator shall collect and evaluate the facts including, but not limited to: A. Description of incident(s) including nature of the behavior; context in which the alleged incident(s) occurred, etc.; B. How often the conduct occurred; C. Whether there were past incidents or past continuing patterns of behavior; D. The relationship between the parties involved; E. The characteristics of parties involved (i.e., grade, age, etc.); F. The identity and number of individuals who participated in bullying or harassing behavior; G. Where the alleged incident(s) occurred; H. Whether the conduct adversely affect ed the students education or educational environment; I. Whether the alleged victim felt or perceived an imbalance of power as a result of the reported incident; and J. The date, time, and method in which the parents/legal guardians of all parties involved were contacted. Whether a particular action or incident constitu tes a violation of this policy requires a determination based on all the facts and surrounding circumstances and includes: A. Recommended remedial steps necessary to stop the bullying and/or harassing behavior; B. A written final r eport to the principal.

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118 The maximum of 10 school days shall be the limit for the initial filing of incidents and completion of the investigative procedural steps. The highest level of confidentiality possible will be upheld regarding the submission of a complaint or a report of bullying and/or harassment, and the investi gative procedures that follow. Scope The individual investigating the incident shall provide a report on results of the investigation with recommendations to determine if an act of bullying or harassment falls within the authority of the district. If it is within authority of district, move to Procedures fo r Investigating Bullying and/or Harassment. If it is outsi de authority of district, and dete rmined a criminal act, refer to appropriate law enforcement. If it is outside authority of distric t, and determined not a criminal act, inform parents/legal guardians of all students involved. (page 5) Parent Notification The principal, or designee, shall promptly report via telephone, personal conference, and/or in writing, the occurrence of any incid ent of bullying or harassment as defined by this policy to the parent or legal guardian of all students involved on the same day an investigation of the incident(s ) has been initiated. Notification must be consistent with the student privacy rights under the applicable provisions of the Family Educational Rights and Privacy Act of 1974 (FERPA). If the bullying incident results in the perpetrator being charged with a cr ime, the principal, or designee, shall by telephone or in writing by first class mail, inform parents/ legal guardian of the victim(s) involved in the bullying incident about the Unsafe School Choice Option (No Child Le ft Behind, Title IX, Part E, Subpart 2, Section 9532) that states ...a student who becomes a victim of a violent criminal offense, as determined by State law, while in or on the grounds of a public elementary school or secondary school t hat the student attends, be allowed to attend a safe public elementary school or se condary school within the local educational agency, including a public charter school. On ce the investigation has been completed and it has been determined that criminal charges ma y be pursued against the perpetrator, all appropriate lo cal law enforcement agencies wi ll be notified by telephone and/or in writing. Counseling Referral A district referral procedure will establish a protocol for intervening when bullying or harassment is suspected or when a bullying incident is reported. The procedure shall include: A. A process by which the teacher or parent/legal guardian may request informal consultation with school staff (specialt y staff, e.g., school counselor, school psychologist, etc.) to determine the severi ty of concern and appr opriate steps to address the concern (the involved students parents or legal guardian may be included). B. A referral process to provide professional assistance or serv ices that includes:

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119 A process by which school personnel or parent/legal guardian may refer a student to the school intervention team (or equivalent school-based team with a problem-solving focus) for consideration of appropriate services. (Parent or legal guardian involvem ent is required at this point.) If a formal discipline repor t or formal complaint is made, the principal or designee must refer the student(s) to the school intervention team for determination of counseling support and in terventions. (Parent or legal guardian involvement is required at this point.) C. A school-based component to address intervention and assistance as determined appropriate by the in tervention team that includes: Counseling and support to address the needs of the victims of bullying or harassment Research-based counseling/interventi ons to address the behavior of the students who bully and harass others (e.g., empathy tr aining, anger management) Research-based counseling/interventi ons which includes assistance and support provided to parents/legal guardians, if deemed necessary or appropriate Data Report The school district will utilize Fl oridas School Environmental Safety Incident Reporting (SESIR) Statewide Report on School Safety and Discipline Data, which includes bullying/harassment as an incident code as well as bullying-related as a related element code. The SESIR definition of bullying/harassment is unwant ed and repeated written, verbal, or physical behavior, including any threatening, insulting or dehumanizing gesture, by an adult or student that is severe or pervasive enough to create an intimidating, hostile or offensive educ ational environment, cause discomfort or humiliation, or unreasonably in terfere with the individual s school performance or participation. If a bullying and/ or harassment incident occurs then it will be reported in SESIR with the bullying/harassment code. If the bullying/harassment results in any of the following SESIR incidents the incident wi ll be coded appropriately using the relevant incident code AND the rela ted element code entitled bullying-related code. Those incidents are: Arson Battery Breaking and Entering Disruption on Campus Major Fighting Homicide Kidnapping Larceny/Theft Robbery Sexual Battery Sexual Harassment Sexual Offenses

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120 Threat/Intimidation Vandalism Weapons Possession Other Major (Other major incidents t hat do not fit within the other definitions) Discipline and referral data wil l be recorded in Student Discipline/Referral Action Report and Automated Student Information System. The district will provide bullying incident, disc ipline, and referral data to the Florida Department of Education in the format reques ted, through Survey 5 from Education Information and Accountability Services and at designated dates provided by the Department. Training and Instruction The district expects that schools sust ain healthy, positive, and safe learning environments for all students and affirms the importance of the soci al climate and norms about respect and civility. This requires the efforts of all stakeholders. (page 7) Annually, the district and school shall pr ovide resources and information to all stakeholders regarding identifying, pr eventing and responding to bullying and harassment. Victims Parent Reporting The principal or designee shall report any inci dent to the parent or legal guardian of all students involved on the same day an investigat ion of the incident has been initiated. Parents/legal guardians will be notified by telephone and/or writing of actions being taken to protect the child. Notification must be consistent with the student privacy rights under the applicable provisions of the Family Educational Rights an d Privacy Act of 1974 (FERPA). Policy Publication At the beginning of each school year, the Super intendent or designee sh all, in writing, inform school staff, parents/legal guardians, or other persons responsible for the welfare of a student of the districts student safety and violence prevention policy. Each district school shall provide notice to students and staff of this policy through appropriate references in the code of st udent conduct and employee handbooks, and/or through other reasonable means. The Superintendent shall also make all contractors contracting with the district aware of this policy. ###

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121 APPENDIX D ORANGE COUNTY SCHOOL DISTRICT ANTI-CYBERBULLYI NG POLICY http://www.ocps.net/sb/Superintendent/Pages/SuperintendentsDocumentsaspx No. of Pages: 11 Size: Large District: Fifth Title of Policy Policy Against Bullying and Harassment Location within code Size of District Large Region Second District Date cyberbullying policy was adopted November 25, 2008 Policy website http://www.sdhc.k12.fl.us/PolicyManual/ No. of pages 11 Electronic bullying clause Includes "cyberbullying" provision

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122 SAFE SCHOOLS: Bullying and Harassment POLICY: (1) Statement prohibiting bullying and harassment: The school board of Orange County, Florida, is committed to protecting its students, employees, and applicants for admission from bullyin g harassment, or discrimination for any reason and of any type. The school board believes that all students and employees are entitled to a safe, equitable, and harassment-free school experience. Bullying, harassment, or discrim ination will not be tolerated and shall be just cause for disciplinary action. This policy shall be interpreted and applied consistently with all applicable state and federal la ws and the board's collective bargaining agreements. The best practices to ensure school safety and vi olence prevention initia tives for the school community (students, parents, staff and community members) are essential components of this policy. This policy is designed to assure that awareness, intervention and follow-up trai ning components are in pl ace within each school community with the goal of establishing and ma intaining a safe learning and working environment. Conduct that constitutes bullying, harassment or discrimination, as defined herein is prohibited. (2) Definition of bullying, harassment, cyberstalking: (a) Bullying means systematically and chronically inflicting physical hurt or psychological distress on one or more students or school district employees. It is further defined as unwanted and repeated written, verbal, or physical behavior including any threatening,

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123 insulting, or dehumanizing gesture, by a student or adult, that is severe or pervasive enough to create an intimidating, hostile, or offensive educational environment; cause discomfort or humiliation; or unreasonably interfere with the individuals school performance or participation; and ma y involve but is not limited to: 1. Unwanted Teasing 2. Social Exclusion 3. Threat 4. Intimidation 5. Stalking 6. Physical violence 7. Theft 8. Sexual, religious, or racial harassment 9. Public humiliation 10. Destruction of property (b) Harassment means any threatening, insult ing, or dehumanizing gesture, use of data or computer software, or wri tten, verbal or physical con duct (page 2) directed against a student or school district employee that: 1. Places a student or school di strict employee in reasonable fear of harm to his or her person or damage to his or her property 2. Has the effect of substantially interf ering with a students educ ational performance, opportunities, or benefits 3. Has the effect of subs tantially disrupting the or derly operation of a school (c) Bullying and harassment also encompasses: 1. Retaliation against a student or school district employee by another student or school employee for asserting or alleging an act of bullying or harassment. Reporting an act of bullying or harassment that is not made in good faith is considered retaliation. 2. Perpetuation of conduct listed in the def inition of bullying or harassment by an individual or group with intent to demean, dehumanize, emba rrass, or cause emotional or physical harm to a student or school district employee by: a. Incitement or coercion b. Accessing or knowingly and willingly causin g or providing access to data or computer software through a computer, co mputer system, or computer network within the scope of the district school system c. Acting in a manner that has an effect subst antially similar to the effect of bullying or harassment (d) Cyberstalking as defined in s. 784.048(1 )(d), F.S., means to engage in a course of conduct to communicate, or to cause to be co mmunicated, words, images, or language by or through the use of electronic mail or electronic communication, directed at a specific person, causing s ubstantial emotional distress to that person and serving no legitimate purpose. (e) Bullying, Cyberbullying, Harassment, and Discrimination (hereinafter referred to as bullying, as defined in Section B, fo r the purpose of this Policy) also encompass, but are not limited to, unwanted harm towards a student or employee in regard to their real or perceived: sex, race, color, religion, national origin, age, di sability (physical, mental, or educational), marital status, socio-economic background, ancestry, ethnicity,

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124 gender, gender identity or expression, linguisti c preference, political beliefs, sexual orientation, or social/family background or being viewed as different in its education programs or admissions to education programs and therefore prohibits bullying of any student or school district empl oyee by any board member, dist rict employee, consultant, contractor, agent, visitor, vol unteer, student, or other person in the school or outside the school at school-sponsored events, on school bus es, and at training facilities or training programs sponsored by the District. (3) Description of the type of behavio r expected from each student and school employee of a public k-12 educati onal institution: (page 3) (a) The Orange County School District expe cts students to conduct themselves as appropriate for their levels of development, maturity, and demonstrated capabilities with a proper regard for the right s and welfare of other st udents and school district employees, the goal of student success underlying all school activities, and the care of school facilities and equipment. (b) The Orange County School District believe s that standards for student behavior must be set cooperatively through intera ction among the students, parents/legal guardians, school district employees, and community members producing a school climate that encourages students to grow in self-disciplin e. The development of this positive school climate requires respect for se lf and others, as well as for district and community property on the part of students, school distri ct employees, parents and community members. Since stud ents learn by example, schoo l administrators, faculty, staff, and volunteers will dem onstrate appropriate modeling behavior; treat others with civility and respect, and refuse to accept bullying or harassment. (c) The Orange County School District upholds that bullying or harassment of any student or school district employee is prohibited: 1) During any education program or activity conducted by an Orange County School District K-12 educational institution; 2) During any Orange County School Distri ct school-related or school sponsored program or activity; (Morse) 3) On a school bus of a public K-12 educational institution; or 4) Through the use of data or computer software that is accessed through a computer, computer system, or comput er network of an Orange Count y School District public K-12 education institution. Each school community is required to implement appropriate recognition for positive reinforcement for good conduct, self discipl ine, good citizenship and academic success. These areas are addressed in each school improvement plan which is submitted to, reviewed and approved by the district. Student rights shall be explain ed as outlined in this policy and in the Code of Student Conduct: Students Rights and Res ponsibilities. Pr oper prevention and intervention steps shall be applied based on the level of se verity of infraction as outlined in the Student Code of Conduct and this Policy. (4) Consequences for a student or school district employee of a public K-12 educational institution who commits an act of bullying or harassment: (a) Concluding whether a particular action or incident constitutes a violation of this policy requires a determination based on all of the facts and surrounding circumstances,

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125 followed by the determination of disciplinary sanctions ap propriate to the offenders position within the District. (page 4) (b) Consequences and appropriate interventi ons for students who commit acts of bullying may range from positive behavioral in terventions up to, but not limited to an expulsion, as outlined in the Code of Student Conduct. (c) Consequences and appropriate interventions for a school district employee found to have committed an act of bullying will be instit uted in accordance with District policies, procedures, and agreements. Additionally egregious acts of bullying or harassment by certified educators may result in a sancti on against an educators state issued certificate (see State Board of Education Rule 6B-1.0 06,FAC.,The Principles of Professional Conduct of the Education Profession in Florida). (d) Consequences and appropriate intervention fo r a visitor or volunteer, found to have committed an act of bullying shall be deter mined by the school administrator after consideration of the nature and circumstances of the act, which may include reports to appropriate law enforcement officials. (e) In addressing consequences of computer re lated bullying the physical location or time of access of a computer related in cident cannot be raised as a defense in any disciplinary action initiated under this section. Consequences will be taken as outli ned in the section on, Abuse of Electronic and Internet/Communication De vices as outlined in Code of Student Conduct; Code of Civility (school board policy KFB). (5) Consequences for a student or school distri ct employee of a pub lic K-12 educational institution who is found to have wrongfully and intentionally accused another of an act of bullying or harassment: (a) Consequences and appropriate remedial action for a student found to have wrongfully and intentionally accused another as a means of bullying or harassment range from positive behaviora l interventions up to and including suspension or expulsion, as outlined in the Code of Student Conduct. (b) Consequences and appropriate remedial ac tion for a school district employee found to have wrongfully and intentionally accu sed another as a means of bullying or harassment will be referred to Employee Relations and may be disciplined in accordance with district polic ies, procedures, and agreements. (c) Consequences and appropriate remedial ac tion for a visitor or volunteer, found to have wrongfully and intentionally accus ed another as a means of bullying or harassment shall be determined by the school adm inistrator after consideration of the nature and circumstances of the act, which may include reports to appropriate law enforcement officials. (page 5) (6) A procedure for reporting an act of bullyi ng or harassment, including provisions that permit a person to anonymously report such an act: (a) At each school, the principal/designee is responsible for receiving oral or written complaints alleging violations of this policy, as with all infractions from the Code of Student Conduct. (b) All school district employees are required and must report, in writing, any allegations of bullying or violations of this Poli cy to the principal/des ignee or appropriate area/district administrator.

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126 (c) Any other members of the school communi ty who have credible information that an act of bullying has taken place may file a report of bullying at the school location, whether they are a vi ctim or a witness. (d) Any student who believes he/she is a vict im of bullying, or has knowledge of any incidents involving bullying of students is strongly encouraged to report the incident(s) in writing to a school official. A parent/legal guardian may intervene on behalf of their child. Complaints should be filed as soon as po ssible after the alleged incident and noted on the specified district reporting form, but mu st be filed within ten (10) school days after the alleged incident. Failure on the part of the complainant to initiate and/or follow up on the complaint within this period may resu lt in the complaint being deemed abandoned. (e) The Principal shall estab lish, and prominently publicize to students, staff, volunteers, and parents, how a report of bullying may be filed and how this report will be acted upon. This notification will occur through school newsletters, pre-planning staff meetings, school announcements, Code of Student Conduct review meetings and school web sites. Forms will be available at each school to make a written report when student bullying is witnessed. (f) A school district employee, school vo lunteer, contractor, student, parent/legal guardian or other persons who pr omptly reports in good faith an act of bullying or harassment to the appropriate school o fficial, and who makes this report in compliance with the procedures set forth in the District Policy, is immune from a cause of action for damages arisin g outof the reporting itself or any failure to remedy the reported incident. Submission of a good faith complaint or report of bullying will not af fect the complainant or reporters future employment, grades, learning or working environment, or work assignments. (g) Administrators/principal /designee(s) shall document in writing and/or via the discipline data system a ll complaints regarding bullying, as with all infractions of the Code of Student Conduct, to ensure that problems are (page 6) appropriately addressed in a timely manner, whether the report is made verbally or in writing. (h) Anonymous reports may be made utilizing The Speakout Hotline. The Speakout Hotline is promoted to schools at the district level and in return each school will publicize The Speakout Hotline through PSA s, and/or other promotional materials. Reports made to this anonymous hotline ar e immediately followed up on and written copies of this anonymous report will be sent to the principal/designee for follow-up. Formal disciplinary action may not be based solely on the basis of an anonymous report. (7) A procedure for the prompt investigation of a report of bullying or harassment and the persons responsible for the investigation. The investigation of a reported act of bullying or harassment is deemed to be a school-related activity and begins with a report of such an act: (a) The procedures for investigating schoolbased bullying (studenttostudent bullying) may include the principal/designee and is deemed to be a school related activity. The principal or designee shall be trained by the District SAFE Office in investigative procedur es and interventions as outlined in this Policy. For incidents of bullying which are t he most serious acts of misconduct (Code of

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127 Student Conduct) the area/distri ct level administrator will wo rk cooperatively with the principal/designee as outlined in this policy. Documented interviews of the victim, alleged offender, and witnesses are conducted privately, separately, and are confidential. The victim will be interviewed first. Each individual (victim, alleged offender, and witne sses) will be interviewed separately and at no time will the alleged offender and victim be interviewed together. The investigator shall colle ct and evaluate the facts incl uding, but not limited to: Description of incident(s) including nature of the behavior; context in which the alleged incident(s) occurred, etc.; How often the conduct occurred; Whether there were past incidents or past continuing patterns of behavior; The relationship between the parties involved; The characteristics of parties involved (i.e., grade, age, etc.) The identity and number of individuals who participated in bullying or harassing behavior; Where the alleged incident(s) occurred; Whether the conduct adversely affect ed the students educat ion or educational environment; Whether the alleged victim felt or perceived an imbalance of power as a result of the reported incident; and (page 7) The date, time, and method in which the par ents/legal guardians of all parties involved were contacted. The investigator may not be the accused or the alleged victim or related to the alleged victim. The principal/ designee or appropriate area/distri ct administrator shall begin a thorough investigation and inte rviews with the complainant(s), accused, and witnesses within 24 hours or no more than two (2) sch ool days of receiving a notification of complaint. The principal/designee will provide immediate notificatio n to the parents of both the victim and the all eged offender of an act of bullying or harassment. During the investigation, the principal/designee or appropriate area/district administrator may take any action necessary to protect the complainant, other students or school district employees consistent with the r equirements of applicable regulations and statutes. In general, student complainants w ill continue attendance at the same school and pursue their studies as directed while the investigation is conducted and the complaint is pending resolution. Any legal or der of a court will prev ail and/or state and federal laws. When necessary to carry out the investigation or for other good reasons and consistent with federal and state privacy laws, the principal/designee or appropriate area/district administrator also may discuss the complaint with any school district employee, the parent of the complainant or accused, and/or child protective agencies responsible for investigating child abuse. (b) During the investigation where a school district employee is the accused, the principal/designee will make cont act with the designee of Employee Relations who may recommend any action nece ssary to protect the complainant, or other students or school district employees consistent with the requirements of applicable statutes, State B oard of Education Rules, School Board Policies, and collective bargaining agreements.

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128 Within ten (10) school days of the filing of the complaint, there shall be a written decision by the Principal/Desi gnee or appropriate area/distri ct administrator regarding the completion of the investigation. The principal/designee shall make a decision about the validity of the allegations in the complaint and about any corrective action, if applicable. The principal/designee or appropriate area/dist rict administrator will inform all relevant parties in writing of the decision and the right to appeal A copy of the decision will be sent to the or iginating school and be noted in all relevant data tracking systems includi ng, but not limited to t he (page 8) SESIR and the Statewide Report on School Safe ty and Discipline Data system. If the accused is a school district employee, discipline may be taken, consistent with any applicable collective bargaining ag reement provisions, to resolve a complaint of bullying (Employee Disciplinary Guidelines). The supervisor/designee (e.g., principal/designee for school-based district employees) of t he employee shall discuss the determination and any recommended corrective action with Employee Relations and/or the appropriate area/district supervisor. No retaliation of any kind is permitted in connection with an individual's having made a bullying complaint and if it occurs, it shall be deemed an additional act of bullying as stated herein this Policy. (8) A process to investigate whether a repor ted act of bullying or harassment is within the scope of the district school system and, if not, a process for referral of such an act to the appropriate jurisdiction. Each schools principal/designee will receive training in bullying investigation. The principal/designee will determine whether t he act of bullying or harassment is within the scope of the school district. The team decision making approach may be utilized in this process and consultation with Area Administrators may be used in this determination. If it is determined that it is in the scope of the school system the procedures outlined for investigating the bullying act or harassment act will be applied. If it is outside the scope of the distric t, and determined that it is a criminal act a referral to the appropriate law enforcem ent agency will be applied. If it is outside the scope of the district, and det ermined not to be a criminal act all parents/legal guardians of each student involved will be informed. (9) A procedure for providing immediate noti fication to the parents/legal guardians of a victim of bullying or harassm ent and the parents/legal guardi ans of the offender of an act of bullying or harassment, as well as, notif ication to all local agencies where criminal charges may be pursued against the offender (a) The principal/desi gnee who will conduct the inve stigation will receive training on investigative procedures regarding bullying or harassment. The required training will include that the principal, or designee, shall promptly report via telephone, personal conference, and/or in writing, the occurrence of any incident of bullying or harassment as defined by this policy to the parent or legal guardian of all students involved on the same day an investigation of the incident(s) has been initiated. Notification must be consistent with the student privacy rights under the applicable provis ions of the Family Educational Rights and Privacy Act of 1974 (FERPA).

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129 (b) The required training for the princi pal/designee will include, information if page 9) the bullying incident results in the offender being charged with a crime. The principal, or designee, shall by te lephone or in writing by first class mail inform parents/legal guardian of the vict im(s) involved in the bullying incident about the Unsafe School Choice Option (No Child Left Behind, Title IX, Part E, Subpart 2, Sect ion 9532) that states ...a student who becomes a victim of a violent criminal offense, as determined by State law, while in or on the grounds of a public elementary school or secondary school that the student attends, be allowed to attend a safe public elementary school or secondary school within the local educat ional agency, including a public charter school. The required training for the principal/designee will include information that once the investigation has been comple ted and it has been determined that criminal charges may be pursued against the offender, all appropriate local law enforcement agencies will be notified by telephone and/or in writing. (10) A procedure to refer victims and offenders of bullying or harassment for counseling. (a) Each school will have a principal/ designee who will attend a training which will include the protocol for intervening when bullying or harassment is suspected or reported. The principal/des ignee will disseminate to school district employee the protocol and procedure for in tervening which includes the district referral process for suspected or reported bullying (victim and offender). (b) Each school will have a Student A ssistance Team (SAFE) or Child Study Team in place. The principal designee(s) who attended the district trainings will be a member of either the Student Assistance Team (SAFE) or Child Study Team. A parent/ legal guardian may request consultation from the school team. A referral form to the team will be avail able for parent/guardians and school staff. (c) If a level III or IV (most severe) bullying or hara ssment discipline report is made, the principal or designee may refer the student(s) (victim or offender) to The Response Team for additional dete rmination of counseling support and interventions. Parent or legal guardian involvement is required at this point. In utilizing the team approach, The Response Team identifies and accesses appropriate support services for students who have received most severe disciplinary referrals. The services recommended for the students are not to replace disciplinary action but will offe r family and individual support regarding appropriate therapeutic interventions. (11) A procedure for including incidents of bullying or harassm ent in the schools report of data concerning school safety and discip line data required under s. 1006.09(6), F.S. The report must include each incident of bullying or harassment and the resulting consequences, including discipline and referrals. The report must include, in a separate section, each reported incident of bullying or (page 10) harassment that does not meet the criteria of a pr ohibited act under this section wit h recommendations regarding such incidents: (a) All bullying and/or harassment offenses will be reported in SESIR with the bullying/harassment code. (b) Discipline, referral data, investigations, interventions and actions of discipline will be recorded on the discipline data form(s) as is appl ied for other discipline infractions from the Code of Student Conduct.

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130 (12) A procedure for providing instruction to students, parents/lega l guardians, teachers, school administrators, counsel ing staff, and school volunteer s on identifying, preventing and responding to bullying or harassment: (a) The District SAFE Office will provide a traini ng of trainer model. The trainings will be ongoing and the delivery model will allow participa nts to return to their school site and train students, parents/legal guardians, teac hers, school administrators, counseling staff, and school volunteers on identifying, preventing and responding to bullying or harassment. (b) The best practices which include indi vidual, classroom, co mmunity/parent and school wide efforts for bullying prevention will be included in the training of trainer model. (13) A procedure for regularly reporting to a victims parents/legal guardians the actions taken to protect the victim: The principal or designee shall by telephone and/ or in writing, report the occurrence of any incident of bullying victimization as def ined by this policy to the parent or legal guardian of the victim on the same day an investigation of the incident has been initiated. According to the level of infrac tion, parents/legal guardians will be notified by telephone and/or writing of actions being tak en to protect the child; the frequency of notification will depend on the seriousness of the bullying or harassment incident. Notification must be consistent with t he student privacy rights under the applicable provisions of the Family Educational Rights and Privacy Act of 1974 (FERPA). (14) A procedure for publicizing the policy which must include its publication in the Code of Student Conduct required under s. 1006.07(2), F.S. and in all employee handbooks. Orange County Public Schools shall provide notice to students and school district employees of this policy through Code of Student Conduct, Employee Handbook, Superintendent Documents and/ or through other reasonable means. (15) A plan to implement curriculum, discipline policies and violence preventi on efforts which are ongoing and throughout the school year: The goal to create a safe learning and working environment at schools will be accomplished through the selection of the following initia tives: (page 11) Violence Prevention Efforts (cur riculum, activities and programs) Nonviolent Crisis Intervention Training Threat Assessments Response Teams Student Assistance Teams Child Study Teams Elementary, Middle and High School Bullying Prev ention Programs SAFE Ambassadors Internet Safety Curriculum Class Meetings/Discussions Preventing Disruptive Behaviors Training Parent Interaction Training Student Recognition Programs Bullying Prevention Traini ngs (principal/designee)

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131 School Climate Surveys (available for parents, staff and students) Discipline/Bullying Procedure Training (principal/designee) The components listed above are a violence pr evention plan developed by the District SAFE Office for the schools to assist in creating and maintaining a positive and welcoming school culture free of violence The above ongoing plan promotes a Policy Web site: http://www.escambia.k12 .fl.us/board/board_rules/toc. comprehensive approach for curriculum implementation, discipline policy awareness and violence prevention initiatives. LAW IMPLEMENTED: Secti on 1006.147, Florida Statute

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132 APPENDIX E ESCAMBIA COUNTY SCHOOL DISTRICT ANTI-CYBERBULL YING POLICY Title: Policy Against Bullying and Harassment Cyberbullying Poli cy Adopted: 1/20/09 Total No. of Pages on Cyberbullying: 13 Size: Large District: First

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133 POLICY AGAINST BULLYING AND HARASSMENT Chapter 7.18 (1) Policy Agai nst Bullying and Harassment (a) Defini tion of bullying and a definition of harassment: 1. Bullying means systematically and chronically inflicting physical hurt or psychological distress on one or more student s or employees. It is further defined as unwanted and repeated written, verbal or physical behavior, including any threatening, insulting, or dehumanizing gesture, by a student or adult, that is severe or pervasive enough to create an intimidating, hostile, or offensive educational environment; cause discomfort or humiliation; or unreasonably interfere with the individuals school performance or participation; and may involve but is not limited to: a. Unwanted Teasing b. Social Exclusion c. Threat d. Intimidation e. Stalking f. Physical violence g. Theft h. Sexual, relig ious, or racial harassment i. P ublic humiliation j. De struction of property 2. Harassment means any threatening, insulting, or dehumanizing gesture, use of data or computer software, or written, verbal or physical conduct directed against a student or school employee that: a. Places a student or school employee in reas onable fear of harm to his or her person or damage to his or her property; b. Has the ef fect of substantially interfer ing with a students educational performance, opportunities, or benefits; or c. Has the effe ct of substantially disrupting the orderly operation of a school. 3. Bullying and harassment also encompasses: a. Retalia tion against a student or school employee by another student or school employee for asserting or alle ging an act of bullying or harassment. Reporting an act of bullying or harassment that is not made in good faith is considered retaliation.

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134 b. Perpetuati on of conduct listed in the definition of bullying or harassment by an individual or group with intent to demean, dehumanize, embarrass, or cause emotional or physical harm to a student or school employee by: I. Incitement or coercion; II. Accessing or knowingly and willingly causing or providing access to data or computer software through a computer, co mputer system, or computer network within the scope of the district school system; or III. Acting in a manner that has an effect substantially similar to the effect of bullying or harassment. (b) Cyberstalking as defined in Section 784.048(1)(d), Fla. Stat. 1. Engaging in a course of conduct to communicate, or to cause to be communicated, words, images, or language by or through the use of electronic mail or electronic communication, dire cted at a specific person, causing substantial emotional distress to that person and serving no legitimate purpose. (2) Description of the type of behavior expected from each student and school employee of a public K-12 educational institution: (a) The Esca mbia County School District expects students to conduct themselves as appropriate for their levels of development, maturity, and demonstrated capabilities with a proper regard for the ri ghts and welfare of other students and school staff, the educat ional purpose underlying all school activities, and the care of sc hool facilities and equipment. (b) The school district believes that standards for student behavior must be set cooperatively through interacti on among the student s, parents/legal guardians, staff, and community mem bers producing an atmosphere that encourages students to grow in self-di scipline. The development of this atmosphere requires respect for self and others, as well as for district and community property on the part of students, staff, and community members. Since students learn by example, school administrators, faculty, staff, and volunteers will demonstrate appropriate beh avior, treat others with civility and respect, and refuse to tole rate bullying or harassment. (c) The school district upholds that bullying or harassm ent of any student or school employee is prohibited: 1. During any education program or activity conducted by a public K12 educational institution; 2. During any school-related or school-sponsored program or activity; 3. On a school bus of a pub lic K-12 educational institution; or

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135 4. Through the use of data or computer software that is accessed through a computer, computer syst em, or computer network of a public K-12 education institution. (d) All adminis trators, faculty, and staff, in collaboration with parents, students, and community members, will incorporate systemic methods for student and staff recognition through posit ive reinforcement for good conduct, self-discipline, good citizenship, and academic success, as seen in the required school plan to address positive school culture and behavior (aka Adjudication Guidelines and School Discipline Plans). 1. Student rights shall be ex plained as outlined in this po licy and in the Adjudication Guidelines, School Discipline Plans and Rights and Responsibilities Handbooks. (e) Proper prevent ion and intervention steps shall be taken based on the level of severity of infraction as outlined in the Adjudication Guidelines, School Discipline Plans and Rights and Res ponsibilities Handbooks. (f) Consequences for a student or employee of a public K-12 educational institution who commits an act of bullying or harassment: 1. Concludi ng whether a particular action or incident constitutes a violation of this policy requires a de termination based on all of the facts and surrounding circumstances. The physical location or time of access of a computer-related incident cannot be raised as a defense in any disciplinary action. Consequences and appropriate remedial action for students who commit acts of bullyi ng or harassment may range from positive behavioral interventions up to and including suspension or expulsion, as outlined in the Rights and Responsibilities Handbooks. Consequences and appropriate remedial action for a school employee found to have committed an act of bullying or harassment may be disciplined in accordance with di strict policies, procedures, and agreements. Additionally, egregious ac ts of harassment by certified educators may result in a sanction against an educators state issued certificate. (See State Board of Education Rule 6B-1.006, FAC., The Principles of Professional Conduct of the Educati on Profession in Florida.) Consequences and appropriate remedial action for a visitor or volunteer, found to have committed an act of bullying or harassment shall be determined by the school administrator after consideration of the nature and circumstances of the act, including reports to appropriate law enforcement officials. (g) Consequences for a student or employee of a pub lic K-12 educational institution who is found to have wrongfully and int entionally accused another of an act of bullying or harassment:

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136 1. Consequences and appropriate remedial action for a student found to have wrongfully and intentionally accused another as a means of bullying or harassment range from posit ive behavioral interventions up to and including suspension or expulsion, as outlined in the Rights and Responsibilities Handbooks. Cons equences and appropriate remedial action for a school employee found to have wrongfully and intentionally accused another as a means of bully ing or harassment may be disciplined in accordance with district po licies, procedures, and agreements. Consequences and appropriate remedial action for a visitor or volunteer, found to have wrongfully and intentional ly accused another as a means of bullying or harassment shall be dete rmined by the school administrator after consideration of the nature and circumstances of the act, including reports to appropriate law enforcement officials. (3) Procedure for reporting an act of bullying or harassment, including provisions that permit a person to anonymously report such an act. (a) At each school, the principal or the principa ls designee is responsible for receiving complaints alleging violations of this policy. All school employees are required to report alleged violat ions of this policy to the principal or the principals designee. All other mem bers of the school communi ty, including students, parents/legal guardians, volunteers, and vi sitors are encouraged to report any act that may be a violation of this policy anony mously or in-person to the principal or principals designee. (b) The principal of each school in the district shall establish and prominently publicize to students, staff, volunteers, and parents/lega l guardians, how a report of bullying or harassment may be filed either in-person or anonymously and how this report will be acted upon. The victim of bullying or harassment, anyone who witnessed the bullying or harassment, and anyone who has credible information that an act of bullying or harassment has taken place may file a report of bullying or harassment. A school employee, sc hool volunteer, student, parent/legal guardian or other persons who promptly reports in good fa ith an act of bullying or harassment to the appropriate school offi cial and who makes this report in compliance with the procedures set forth in the district policy is immune from a cause of action for damages arising out of the reporting itself or any failure to remedy the reported incident. Submission of a good faith complaint or report of bullying or harassment will not affect t he complainant or reporters future employment, grades, learning or worki ng environment, or work assignments. (c) Any written or oral reporting of an act of bullying or harassment shall be considered an official means of reporting such act(s). Reports may be made anonymously, but formal disciplinary action may not be based solely based on an anonymous report.

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137 (4) Procedure for the prompt investigation of a report of bullying or harassment and the persons responsible for the inve stigation. The investigation of a reported act of bullying or harassment is deemed to be a school-related activity and begins with a report of such an act: (a) The princi pal or designee will select a designee(s), employed by the school, trained in investigative procedures to initiate the investigation. The designee(s) may not be the accused per petrator (harasser or bully) or victim. (b) Documented interviews of the victim, alleged per petrator, and witnesses shall be conducted privately, separately, and are confi dential. Each individual (victim, alleged perpetrator, and witnesses) will be interviewed separately and at no time will the alleged perpetrator and victim be interviewed together. (c) The investigator shall co llect and evaluate the fact s including, but not limited to: 1. Description of incident (s) including nature of the behavior; 2. Context in which t he alleged incident(s) occurred, etc.; 3. How o ften the conduct occurred; 4. Whether there were past incidents or past continuing patterns of behavior; 5. The relations hip between the parties involved; 6. The charac teristics of parties involved (i.e., grade, age, etc.); 7. The i dentity and number of indivi duals who participated in bullying or harassing behavior; 8. Where the alleged incident(s) occurred; 9. Whether the conduct adversely affected the students education or educational environment; 10. Whether the alleged victim felt or perc eived an imbalance of power as a result of t he reported incident; and 11. The date, ti me, and method in which the parents/legal guardians of all parties involved were contacted. (5) Whether a particu lar action or incident constitutes a violation of this policy requires a determination based on all the facts and surrounding circumstances and includes: (a) Recommended remedial st eps necessary to stop the bullying and/or harassing behavior; and (b) A written final report to the principal. (6) A maxi mum of 10 school days shall be the limit for the initial f iling of incidents and completion of the investigative pr ocedural steps. The highest level of confidentiality possible will be upheld regar ding the submission of a complaint or

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138 a report of bullying and/or harassment, and the invest igative procedures that follow. (7) Process to investigate whether a reported ac t of bullying or harassment is within the scope of the district school syst em and, if not, the process for referral of such an act to the appropriate jurisdiction: (a) A principal or designee will assign a design ee(s) trained in investigative procedures to initiate an investigation of whether an act of bullying or harassment is within the scope of the school district. (b) The trained designee(s) will prov ide a report on results of investigation with recommendations for the principal to make a determination if an act of bullying or harassment falls within the scope of the district. 1. If it is wit hin scope of district, move to Procedures for Investigating Bullying and/or Harassment. 2. If it is outside scope of district, and de termined a criminal act, refer to appropriate law enforcement. 3. If it is outside scope of district, and determined not a criminal act, inform parents/legal guardians of all students involved. (8) Procedure for pr oviding immediate notif ication to the parents/legal guardians of a victim of bullying or harassment and the parent s/legal guardians of the perpetrator of an act of bullying or harassm ent as well as notification to all local agencies where criminal charges may be pursued against the perpetrator: (a) The principa l, or designee, shall prompt ly report via telephone, personal conference, and/or in writ ing, the occurrence of any incident of bullying or harassment as defined by this policy to the parent or legal guardian of all students involved on the same day an investigation of the incident(s) has been initiated. (b) Notification must be consistent with the student privacy rights under the applicable provisions of the Family Educational Rights and Privacy Act of 1974 (FERPA). (9) If the bullyi ng incident results in the perpetra tor being charged with a crime, the principal, or designee, shall by telephone or in writing by first class mail, inform parents/legal guardian of the victim(s) involved in the bullying incident about the Unsafe School Choice Option (No Child Le ft Behind, Title IX, Part E, Subpart 2, Section 9532) that states ..a student who becomes a vict im of a violent criminal offense, as determined by State law, while in or on the grounds of a public elementary school or secondary school that the student attends, be allowed to attend a safe public elementary school or secondary school within the local educational agency, including a public charter school.

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139 (10) Once the in vestigation has been completed and it has been determined that criminal charges may be pursued against the perpetrator, all appropriate local law enforcement agencies wi ll be notified by telephone and/or in writing. (11) Procedure to re fer victims and perpetrators of bullying or harassment for counseling: (a) A teacher or parent/legal guardian may request informal consultation with school staff (specialty staff, e.g., school counselor, school psychologist, etc.) to determine the severity of concern and appr opriate steps to address the concern in any bullying incident (the involved st udents parents or legal guardian may be included). (b) School per sonnel or the parent/legal guardi an may refer students to the school intervention team (or equivalent school-based team with a problemsolving focus) for considerat ion of appropriate services. (Parent or legal guardian involvement is required at this point.) (c) If a formal discipline report or formal complaint is made, the principal or designee must refer the student(s) to the school intervention team for determination of counseling support and in terventions. (Parent or legal guardian involvement is required at this point.) (d) The in tervention team may determine appropriate intervention and assistance that includes: 1. Counsel ing and support to address the needs of the victims of bullying or harassment; 2. Research-based counsel ing/interventions to address the behavior of the students who bully and hara ss others (e.g., empathy training, anger management); or 3. Research-based c ounseling/interventions, which includes assistance and support, provided to parents/legal guardians, if deemed necessary or appropriate. (12) Procedure for incl uding incidents of bullying or har assment in the schools report of data concerning school safety and discipline data required under s. 1006.09(6), Fla. Stat. (a) The report shall include each incident of bullying or harassment and the resulting consequences, including discipl ine and referrals. The report shall include, in a separate section, each r eported incident of bullying or harassment that does not meet the criteria of a prohibited ac t under this section with recommendations regarding such incidents:

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140 1. The school district will utilize Floridas School Environmental Safety Incident Reporting (SESIR) Statewide Report on School Safety and Discipline Data, which includes bully ing/harassment as an incident code as well as bullying-related as a related element code. The SESIR definition of bullying/ha rassment is unwanted and r epeated written, verbal, or physical behavior, including any thr eatening, insulting, or dehumanizing gesture, by an adult or student that is severe or pervasive enough to create an intimidating, hostile, or offensive educational environment, cause discomfort or humiliation, or unreasonably interfere with the individuals school performance or participation. 2. If a bully ing and/or harassment incident occurs then it will be reported in SESIR with the bully ing/harassment code. If the bullying/harassment results in any of the following SESIR incidents the incident will be coded appropriately using the relevant incident code AND the related element code entit led bullying-related code. Those incidents are: a. Arson b. Battery c. Breaking and Entering d. Disruption on Campus e. Major Fighting f. Homicide g. Kidnapping h. Larceny/Theft i. Robbery j. Sexual Battery k. Sexual Harassment l. Sexual Offenses m. Threat/Intimidation n. Vandalism o. Weapons Possession p. Other Ma jor (Other major incidents that do not fit within the other definitions) (13) Discipline and refe rral data will be recorded in Student Discipline/Referral Action Report and Automated Student Information System. (14) The district will provide bullying incident, discipline, and referral data to the Florida Department of Educat ion in the format request ed, through Survey 5 from Education Information and Accoun tability Services, and at designated dates provided by the Department.

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141 (15) Procedure for providing instruction to st udents, parents/legal guardians, teachers, school administrator s, counseling staf f, and school volunteers on identifying, preventing, and responding to bullying or harassment: (a) The distri ct shall endeavor to ensure t hat schools sustain healthy, positive, and safe learning environments for all students. It is important to change the social climate of the school and the social norms with regards to bullying. This requires the efforts of everyone in the sc hool environment teachers, administrators, counselors, school nurses, other non-teaching staff (such as bus drivers, custodians, cafete ria workers, and/or school librarians), parents/legal guardians, and students. (b) Students, t eachers, school administrators, counseling staff, and school volunteers shall be given instruction at a minimum on an annual basis on the district's Policy and Regulations against bullying and harassment. Instruction on the district's Policy and Regulations against bullying and harassment shall be offered to parent/legal guardians and sc hool volunteers at least annually. The instruction shall include evidence-based methods of preventing bullying and harassment, as well as how to effectiv ely identify and respond to bullying in schools. (16) Procedure for r egularly reporting to a victim s parents/legal guardians the actions taken to protect the victim: (a) The principal or designee shall by telephone a nd/or in writing report the occurrence of any incident of bullying as defined by this policy to the parent or legal guardian of all students involved on t he same day an investigation of the incident has been initiated. According to the level of infraction, parents/legal guardians will be notified by telephone and/or writing of actions being taken to protect the child; the frequen cy of notification will depend on the seriousness of the bullying or harassment incident. No tification must be consistent with the student privacy rights under t he applicable provisions of the Family Educational Rights and Privacy Act of 1974 (FERPA). (17) Procedure for publicizing the policy, which mu st include its publication in the Rights and Responsibilities Ha ndbooks, required under s. 1006.07(2), F.S., and in all employee handbooks: (a) At the beginning of each school year, the Superintendent or designee shall, in writing, inform school sta ff, parents/legal guardians, or other persons responsible for the welfar e of a student of the districts student safety and violence prevention policy. (b) Each district school shall provide notice to students and staff of this policy through appropriate references in t he Rights and Responsibilities Handbooks and employee handbooks, and/or thr ough other reasonable means.

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142 The Superintendent shall also make all c ontractors contracting with the district aware of this policy. (18) Each school pr incipal shall develop an annual process for discussing the school district policy on bullying and harassment wit h students in a student assembly or other reasonable format. Reminders of the policy and bullying pr evention messages such as posters and signs will be displayed around eac h school and on the district school buses. SPECIFIC LEGAL AUTHORITY UNDER WHICH AUTHORIZED : Unsafe School Choice Option (No Child Left Behind, Title IX, Part E, Subpart 2, Section 9532); State Board of Education Rule 6B-1.006, F.A. C.; Sections 784.048( 1)(d); 1006.09(6); 1006.07(2); 1006.147, Florida Statutes. LAW BEING IMPLEMENTED, INTE RPRETED, OR MADE SPECIFIC : Unsafe School Choice Option (No Child Left Behind, Title IX, Part E, Subpart 2, Section 9532); State Board of Education Rule 6B-1.006, F.A. C.; Sections 784.048( 1)(d); 1006.09(6); 1006.07(2); 1006.147, Florida Statutes. HISTORY : 01/20/09 ###

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143 APPENDIX F MONROE COUNTY SCHOOL DISTRICT ANTI-CYBERBULLYI NG POLICY Title: Anti Bullying Policy Cyberbullying Poli cy Adopted: 4/18/08 Policy Web site: http://www.neola.com/monroe-fl/ No. of Pages: 13 Size: Small District: Third

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144 ANTI BULLYING POLICY 5517.01 The School Board is committed to providing an educational setting that is safe, secure, and free from harassment and bullying for a ll of its students and school employees. The District will not tolerate bullying and harassment of any type. Conduct that constitutes bullying and harassment, as defined herein, is prohibited: A. during any education program or activity conducted by the District; B. during any school-related or school-sponsored program or activity or on a school bus of the District; or C. through the use of data or computer software that is accessed through a computer, computer s ystem, or computer net work of the District This policy has been developed in consultati on with District students, parents, teachers, administrators, school staff, school volunt eers, community representatives, and local law enforcement agencies as prescribed in F.S. 1006.147 and in conformity with the Florida Department of Educat ion (FLDOE) Model Policy. The Superintendent shall develop a compre hensive plan intended to prevent bullying and harassment and to cultivate the school c limate so as to appropriately identify, report, investigate, and respond to situations of bullying and harassment as they may occur on school grounds, at school-spons ored events, and thr ough school computer networks or that may impact the safety of students while at school. Implementation of the plan will be ongoing throughout the sch ool year and will be integrated with the school curriculum, District disciplinary policies, and violence prevention efforts. Definitions "Bullying" means systematically and chronically in flicting physical hurt or psychological distress on one (1) or more students or empl oyees. It is defined as any unwanted and repeated written, verbal, or physical behavior, including any threateni ng, insulting, or dehumanizing gesture, by an adult or student, that is severe or pervasive enough to create an intimidating, hostile, or offensive educational environment; cause discomfort or humiliation; or unreasonably interfere with the individual's school performance or participation; and may involve but not limited to: A. Teasing B. social exclusion C. Threat D. Intimidation E. Stalking

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145 F. physical violence G. Theft H. public humiliation I. destruction of property Bullying" and "harassment" also encompass A. Retaliation against a student or school employee by another student or school employee for asserting or alleging an act of bullying of harassment. Reporting an act of bullying or harassment that is not made in good faith is considered retaliation. B. Perpetuation of conduct listed in the defin ition of bullying and/ or harassment by an individual or group with int ent to demean, dehumanize, emba rrass, or cause emotional or physical harm to a student or school employee by 1. incitement or coercion 2. accessing or knowingly and willingly causin g or providing access to data or computer software through a computer, co mputer system, or computer network within the scope of the District school system; 3. acting in a manner that has an effect subst antially similar to the effect of bullying or harassment; 4. engaging in bullying against an individua l on the basis but not limited to the individual's: sex, race, color, religion, national origin, age, di sability (physical, mental, or educational), marital status, socio-economic background, ancestry, ethnicity, gender, gender identity or expression, linguistic prefer ence, political beliefs, sexual orientation, or social/family background, or being viewed as different in its education programs, or admissions to education programs Cyber-bullying" means electronically transmitted acts (i.e., internet, e-mail, cellular telephone, personal digital assistance (PDA ), or wireless hand-held device) that a student or a group of students exhibits toward another particular student(s) and the behavior both causes mental and/or physica l harm to the other student and is sufficiently severe, persistent, or pervasive that it creates an intimidating, threatening, or abusive educational environment for the other student(s). "Cyber-stalking" means to engage repetitively in an unwanted course of conduct to communicate, or to cause to be communica ted, words, images, or language by or through the use of electronic mail or electroni c communication, directed at a specific person, causing substantial emotional distre ss to that person and serving no legitimate purpose.

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146 "Harassment" means any threatening, insulting, or dehumanizing gesture, use of data or computer software, or wr itten, verbal or physical co nduct directed against a student or school employee that: A. places a student or school employee in reasonable fear of harm to his/her person or damage to his/her property; B. has the effect of substantially interfering with a student's educational performance, opportunities, or benefits; or C. has the effect of substantially negatively impacting a students or employees emotional or mental well-being; or D. has the effect of substantially di srupting the orderly operation of a school. "Stakeholders" include Any School Board member, District employee, consultant, contractor, agent, visitor, vol unteer, student or other person in the school or at school sponsored events or on school buses, or other district facilities. Expected Behavior Behavior is essential in maintaining an environment that provides each student the opportunity to obtain a high quality education in a uniform, safe, secure, efficient, and high quality system of education. The District expects all stakeholders to condu ct themselves in keeping with their levels of development, maturity, and demonstrated capabilities wit h a proper regard for the rights and welfare of other students and sc hool staff, the educational purpose underlying all school activities, and the ca re of school facilities and equipment. The standards for student behavior shall be se t cooperatively through interaction among students, parents/guardians, staff and community member, producing an atmosphere that encourages students to grow in self-d iscipline. The development of such an atmosphere requires respect for self and other s, as well as for District and community property on the part of student s, staff, and community members. School board, administrators, faculty, staff, community par tners and volunteers serve as role models for students and are expected to demonstrate appropriate behavior, treating others with civility and respect, and refusing to tolerate harassment or bullying. Students are expected to conform to reas onable standards of socially acceptable behavior; respect the person, property, and right s of others; obey constituted authority; and respond appropriately to t hose who hold t hat authority. The District shall provide for appropriate rec ognition and positive reinforcement for good conduct, self-discipline, good citizenship, and academic success. Consequences

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147 Consequences and appropriate remedial ac tion for students who commit acts of bullying or harassment or f ound to have falsely accused anot her as a means of bullying or harassment may range from positive beh avioral interventions up to and including suspension or expulsion, as outlined in the Student Handbook. Consequences and appropriate remedial acti on for a school employee found to have committed an act of bullying or harassment or found to have falsely accused another as a means of bullying or harassment shall in clude discipline in a ccordance with District policies, administrative procedures, and the collective bargaining agreement. Egregious acts of harassment by certified educators may result in a sanction against an educator's State-issued certificate. (See the Principles of Professional Conduct of the Education Profession in Florid a F.A.C. 6B-1006) Consequences and appropriate remedial action for a visitor or volunteer found to have committed an act of bullying or harassment or found to have falsely accused another as a means of bullying or harassment shall be determined by the school administrator after consideration of the nature and circumst ances of the act, including reports to appropriate law enforcement officials if appropriate. Procedure for Reporting Any student or student's parent/ guardian who believes s/he has been or is the victim of bullying or harassment should immediately repor t the situation to the school principal. The student may also report concerns to teachers and other school staff who will be responsible for notifying the appropriate administrator. Complaints against an employee should be reported to their supervisor. All reports should be filed as soon as possible and may be filed up to ninety days after the last alleged act of bullying occurred. All other members of the school community, including students, parents, volunteers, and visitors, are encouraged to report any act t hat may be a violation of this policy. Written and oral reports shall be consider ed official reports. Reports may be made anonymously. Reports may be delivered to the fr ont office at each school. A reporting form can be found at Keysschools.com Formal disciplinary action may not be based solely on the basis of an anonymous report. The principal shall establish and prominently publicize to students, staff, volunteers, and parents the procedure for reporting bullying a nd how such a report will be acted upon. A victim of bullying and/or harassment, any one who witnessed the act, and anyone who has credible information that an act of bully ing and/or harassment has taken place may file a report. Procedure for Investigation All complaints about bullying and/or harassment that may violate this policy shall be promptly investigated by an individual, desig nated by the principal, who is trained in

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148 investigative procedures. Documented intervie ws of the victim, alleged perpetrator, and witnesses shall be conducted priv ately and shall be confidential. The investigator shall collect and evaluate the facts including but not limited to: A. the nature of the behavior; B. how often the conduct occurred; C. whether there were past incidents or past continuing patterns of behavior; D. the relationship between the parties involved; E. the characteristics of the parties involved; F. the identity of the alleged perpetrator, including whether the individual was in a position of power over the individual allegedly subjected to bullying or harassment; G. the number of alleged bullies/harassers; H. the age of the alleged bully/harasser; I. where the bullying an d/or harassment occurred; J. whether there have been other incidents in the school involving the same or other students; K. whether the conduct adversely affect ed the student's education or educational environment; L. the context in which t he alleged incidents occurred; and M. the physical location or time of acce ss of a computer-related incident cannot be raised as a defense in any disciplinary acti on initiated pursuant to this policy. Whether a particular action or incident consti tutes a violation of the policy requires a determination based on all the facts and su rrounding circumstances and shall include: A. a recommendation of remedial steps necessary to stop the bullying and/or harassing behavior; and B. a written report to the principal or supervisor Reasonable effort shall be made to respond expeditiously to all reports of bullying. A maximum of ten (10) school days shall be the limit for the initial filing of incidents and completion of the investigative procedural steps. The highest level of confidentiality possible shall be provided r egarding the submission of a complaint or a report of bullying and/or harassment and for the investigative proc edures that are employed. Scope

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149 The investigator will provide a report on the results of the investigation with recommendations for the principal to make a determination if an act of bullying or harassment falls within the scope of District authority. If the action is within the scope of the District, District procedures for investigating bullying and/or harassment shall be followed. If the action is outsi de the scope of the District, and believed to be a criminal act, the action shall be referred to the appropriate law enforcem ent agency. If the action is outside the scope of the District and believ ed not a criminal act, the principal shall inform parents/guardians of all students. Parent Notification The principal or designee shal l report the occurrence of an incident of bullying as defined by District policy to the parent/guardian of all students known to be involved in the incident after a determination has been m ade that there has been an incident of bullying as it is defined. Notification sha ll be by telephone or by personal conference and in writing and shall be cons istent with the student privacy rights under applicable provisions of the Family Educational Rights and Privacy Act of 1974 (FERPA). The notice shall advise the individuals involved of their respective due process rights including the right to appeal any resulting det ermination or action to the State Board of Education. If the bullying incident result s in the perpetrator being charged with a crime, the principal shall inform the parent/guardian of the identified victim(s) involved in the bullying incident about the Unsafe Schools Choice Option (No Child Left Behind (NCLB), Title IX, Part E, Subpart 2, Se ction 932) that states: "A student attending a persistently dangerous public elementary school or secondary school, as determined by the State in consultation with a representative sample of local educational agencies, or a student who becomes a victim of a violent criminal offense, as determined by State law, while in or on the grounds of a public elementary or secondary school that the student attends, be allowed to attend a safe public elementary school or secondary school within the local educational agency, including a public charter school." Upon the completion of the investigation an d if criminal charges are to be pursued against the perpetrator, the appropriate law enforcement agencies shall be notified by telephone and/or in writing. Counseling Referral The District shall provide a referral pr ocedure for interventions that will go to a committee when such support is needed. Each school principal wi ll establish which committee will review refe rrals at their school for bullying intervention.

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150 School-based intervention and assistance will be determined by the school-based committee and may include, but is not limited to: A. counseling and support to address the needs of the victims of bullying B. counseling intervention to address t he behavior of those who bully (e.g., empathy training, anger management) C. intervention which includes assistance and support provided to parents D. analysis and evaluation of school cu lture with resulting recommendations for interventions aimed at increasing peer ownership and support Data Report The District will utilize Florida's School En vironmental Safety Incident Reporting (SESIR) Statewide Report on School Safety and Discipline Data as prescribed. If a bullying and/or harassment incident occurs it will be reported in SESIR, coded appropriately using the relevant incident c ode and the related element code. Discipline and referral data will be recorded in Student Discipline/Referral Action Report and Automated Student Information System. Using a district defined code the District shall include each reported incident of bullying or harassment that does not meet the criteria of a prohibited act under this policy with recommendations regarding such incidents. The District will provide bullying incident, discipline, and referral data to the Florida Department of Education (FLDOE) in the fo rmat requested, through Survey 5 from Education Information and Accoun tability Services, and at designated dates provided by the Department. Training and Instruction Training for students, parents teachers, area/district staff, school board, district and school based administrators, students support staff, counseling staff, bus drivers, School Resource Officers, contractors, and school volunteers on i dentifying, preventing and responding to bullying will be conducted. At the beginning of each school year, the school principal and department heads shall provide awareness of this policy, as well as the process for reporting incidents, investigation and appeal to student s, school staff, parents, or other persons responsible for the welfare of students through appropria te references in the Student Handbook, Employee Handbooks, the distri ct website, and/or throu gh other reasonable means. Victim's Parent Reporting The principal shall report the occurrence of an incident of bullying as defined herein to the parent/guardian of students known to be involved in the incident after a determination has been made that there has been an incident of bullying as it is defined. Notification shall be by telephone or in conference and shall be consistent with the

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151 student privacy rights under applicable provisions of the Family Educational Rights and Privacy Act of 1974 (FERPA). According to t he level of infraction, the victim's parents will be notified by telephone and/or in writing of actions being taken to protect the child; the frequency of notificati on will depend on the seriousne ss of the bullying or harassment incident. Policy Publication At the beginning of each school year, the Superintendent shall inform school staff, parents/guardians/other persons re sponsible for the welfare of a student of the District's student safety and violence prevention policy. The District shall provide notice to students and staff of this policy in the Student Handbook, employee handbooks and the district website. The Superintendent will also provide such notification to all District contractors. Each principal shall implement a process for discussing, at least annually, the District policy on bullying and harassment with students. Reminders of the policy and bullying prevention messages will be displayed, as appropriate, at each school and at District facilities. Immunity A school employee, school volunteer, students, parent/guardian, or other persons who promptly reports in good faith an act of bully ing or harassment to the appropriate school official and who makes this report in compli ance with the procedures set forth in District policy is immune from a cause of action for damages arising out of the reporting itself or any failure to remedy the reported incident. Submission of a good faith complaint or repor t of bullying or harassment will not affect the complainant or reporter's future employment, grades, learning or working environment, or work assignments. Such immuni ty from liability shall not apply to an employee, student, or volunteer determined to have made an intentionally false report about harassment, intimidation, and/or bullying. Privacy/Confidentiality A. To the greatest extent possible, all complaints will be treated as confidential and be handled in accordance to the Family Educational Rights and Privacy Act (FERPA), the Health Insurance Portabilit y and Accountability Act (HIPAA) and any other applicable law. B. Limited disclosure may be necessary to complete a thorough investigation. The Districts obligation to investigate and take corrective action may supersede an individuals right to privacy. C. The complainants identity shall be protected, but abs olute confidentiality

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152 cannot be guaranteed. The identit y of the victim of the report shall be protected to the extent possible. Retaliation Prohibited A. Retaliation includes, but is not limited to, any form of intimidation, reprisal or harassment in connection with filing a complaint of assisting with an investigation under this Policy. B. Retaliatory or inti midating conduct against any individual who has made a bullying complaint or any individual who has testified, assist ed, or participated, in any manner, in a investigation is spec ifically prohibited, and will be treated as another incidence of bullying. Constitutional Safeguard This policy does not imply to prohibit expr essive activity protected by the First Amendment of the United State Constitution or Article I, Section of the Florida Constitution. F.S. 110.1221, 1002. 20, 1006.13, 1006.147 Florida Department of Educ ation Model Policy (June 2008) Adopted 11/18/08 Revised 4/21/09

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153 APPENDIX G OKEECHOBEE COUNTY SCHOOL DISTRIST ANTI -CYBERBULLYING POLICY Title: Bullying and Harassment Policy Cyberbullying Poli cy Adopted: 11/18/2008 Cyberbullying policy Web site: http://ocsb.okee.k12.fl.us/board. nsf/be38f07bbe5d617385256a040 04a98b6/3c482c07fc a94cd78525750c0071 a4d8?OpenDocument Total No. of Pages: Size: Small District: Fourth

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154 BULLYING AND HARRASSMENT 5.321* I. Statement Prohibiting Bullying and Harassment A. It is the policy of the Okeechobee County School District that all of its students and school employees have an ed ucational setting that is safe, secure and free from harassment and bullying of any kind. The District will not tolerate bullying and harassment of any type. Conduct that constitutes bullying and harassment, as defined herein, is prohibited. B. The District upholds that bullying or harassment of any student or school employee is prohibited: 1. During any education pr ogram or activity conducted by a public K12 educational institution; 2. During any school-related or school -sponsored program or activity; 3. On a school bus of a public K-12 educational institution; or 4. Through the use of data or computer software that is accessed through a computer, computer system, or co mputer network of a public K12 education institution. II. Definitions A. Bullying means systematically and ch ronically inflicting physical hurt or psychological distress on one or more student s or employees. It is further defined as unwanted and repeated written, ver bal, graphic, or physical behavior, including any threatening, insulting, or dehumanizing gesture, by a student or adult, that is severe or pervasive enough to create an intimidating, hostile, or offensive educational environment; c ause discomfort or humiliation; or unreasonably interfere with t he individuals school perfo rmance or participation; and may involve but is not limited to: 1. Teasing; 2. Social exclusion; 3. Threat; 4. Intimidation; 5. Stalking; 6. Physical violence; 7. Theft; 8. Sexual, religious, disability or racial/ethnic harassment; 9. Public humiliation; or 10. Destruction of property. B. Harassment means any threatening, insu lting or dehumanizing gesture, use of data or computer software, or written, verbal or physical conduct directed against a student or school employee that:

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155 1. Places a student or school employ ee in reasonable fear of harm to his/her person or damage to his/her property; 2. Has the effect of substantially interfering with a students educational performance, opportunities, or benefits; or 3. Has the effect of substantially disrupting the orderly operation of a school. C. Bullying and harassment also encompass: 1. Retaliation against a student or sc hool employee by another student or school employee for asserting or alle ging an act of bullying or harassment. Reporting an act of bullying or harassment that is not made in good faith is considered retaliation. 2. Perpetuation of conduct listed in t he definition of bullying or harassment by an individual or group with intent to demean, dehumanize, embarrass, or cause emotional or physical harm to a student or school employee by: a. Incitement or coercion; b. Accessing or knowingly and willingly causing or providing access to data or computer software through a computer, computer system, or computer network withi n the scope of the District school system; c. Acting in a manner that has an e ffect substantially similar to the effect of bullying or harassment. D. Cyberstalking as defined in Florida Statute, means to engage in a course of conduct to communicate, or to cause to be communicated, words, images, or language by or through the use of electr onic mail or electronic communication, directed at a specific person, causing substantial emotional distress to that person and serving no legitimate purpose. III. Behavior Standards A. The Okeechobee County School Distr ict expects students to conduct themselves as appropriate for their levels of development, maturity, and demonstrated capabilities with a proper regard for the ri ghts and welfare of other students and school staff, the educat ional purpose underlying all school activities, and the care of sc hool facilities and equipment. B. The District believes that standards for student behavior must be set cooperatively through interaction am ong the students, parent s/legal guardians, staff, and community mem bers producing an atmosphere that encourages students to grow in self-discipline. The development of this atmosphere requires

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156 respect for self and others, as well as for District and community property on the part of students, staff, and community members. Because students learn by example, school administrat ors, faculty, staff, and volunteers will demonstrate appropriate behavior, treat ot hers with civility and respect, and refuse to tolerate bullying or harassment. C. Students have the respons ibility to conform to reasonable standards or socially acceptable behavior; respect t he person, property, and rights of others; obey constituted authority; and respond to those who hold that authority as stated in the Code of Student Conduct. IV. Consequences for Committing, or Wrongf ul and Intentional Accusation of an Act of Bullying or Harassment A. Concluding whether a particular action or incident constitutes a violation of this policy requires a determination based on all of the facts and surrounding circumstances. The physical location or time of access of a computer-related incident cannot be raised as a defense in any disciplinary action. B. Consequences and appropriate remedi al action for students who commit acts of bullying or harassment or fo r students found to have wrongfully and intentionally accused another as a means of bullying or harassment may range from positive behavioral interventions up to and including suspension or expulsion, as outlined in the Code of Student Conduct C. Consequences and appropria te remedial action for a school employee, found to have committed an act of bullying or harassment, or found to have wrongfully and intentionally accused anot her as a means of bullyi ng or harassment, shall be determined in accordance with District policies, procedures, and agreements. Additionally, egregious acts of harassment by certified educators may result in a sanction against an educators state iss ued certificate as stipulated in the Code of Ethics and Principles of Professional Conduct of th e Education Profession in Florida. D. Consequences and appropriate remedial action for a vi sitor or volunteer found to have committed an act of bullying or harassment, or found to have wrongfully and intentionally accused anot her as a means of bullyi ng or harassment, shall be determined by the school administrator a fter consideration of the nature and circumstances of the act, including possi ble exclusion from school grounds, and, if appropriate, reported to appropriate law enforcement officials. V. Reporting an Act of Bullying or Harassment A. At each school, the princi pal or the principals des ignee shall be responsible for receiving complaints alleging violations of this policy. B. All school employees are required to r eport alleged violations of this policy to the principal or the principals designee. C. All other members of the school community, including students, parents/legal guardians, volunteers, and visitors are encouraged to report any act that may be

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157 a violation of this policy anonymously or in person to the principal or principals designee. D. The principal of each school in the District shall establish and prominently publicize to students, staff, volunteers, and parents/lega l guardians, how a report of bullying or harassment may be filed either in person or anonymously and how this report will be acted upon. E. The victim of bullying or harassm ent, anyone who witnessed the bullying or harassment, and anyone who has credible info rmation that an act of bullying or harassment has taken place may file a report of bullying or harassment. F. A school employee, school volunteer student, parent/legal guardian or other persons who promptly reports in good faith an act of bullying or harassment to the appropriate school official and who ma kes this report in compliance with the procedures set forth in the District policy is immune from a cause of action for damages arising out of the r eporting itself or any failure to remedy the reported incident. G. Submission of a good faith complaint or report of bullying or harassment will not affect the complainant or reporters future employment, grades, learning or working environment, or work assignments. H. Any written or oral reporting of an act of bullying or harassment shall be considered an official means of reporting such act(s). I. Reports may be made anonymously, but fo rmal disciplinary action may not be based solely on the basis of an anonymous report. VI. Investigation of a Report of Bullying or Harassment A. The investigation of a r eported act of bullying or har assment is deemed to be a school-related activity and shall begi n with a report of such an act. B. The principal or designee shall select an individual(s) trained in investigative procedures to initiate the investigat ion. The person may not be the accused perpetrator (harasser or bully) or victim. C. Documented interviews of the victim alleged perpetrator, and witnesses shall be conducted privately, separately, and s hall be confidential. Each individual (victim, alleged perpetrator, and witnesses) will be interviewed separately and at no time will the alleged perpetrator and victim be interviewed together. D. The investigator shall collect and ev aluate the facts incl uding but not limited to: 1. Description of incident(s) in cluding nature of the behavior; 2. Context in which the alleged incident(s) occurred; 3. How often the conduct occurred; 4. Whether there were past incident s or past continuing patterns of behavior; 5. The relationship between the parties involved;

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158 6. The characteristics of parties involved, i.e. grade, age; 7. The identity and number of indivi duals who participated in bullying or harassing behavior; 8. Where the alleged incident(s) occurred; 9. Whether the conduct adversely affected the students education or educational environment; 10. Whether the alleged victim felt or perceived an imbalance of power as a result of the reported incident; and 11. The date, time, and method in whic h the parents/legal guardians of all parties involved were contacted. E. Whether a particular action or incident constitutes a violation of this policy shall require a determination based on all the facts and surrounding circumstances and shall include: 1. Recommended remedial steps necessa ry to stop the bullying and/or harassing behavior; and 2. A written final r eport to the principal. F. The maximum of ten (10) school days sh all be the limit for t he initial filing of incidents and completion of the investigative procedural steps. G. The highest level of confidentiality possible will be upheld regarding the submission of a complaint or a repor t of bullying and/or harassment and the investigative procedur es that follow. VII. Investigation to Determine Whether a Reported Act of Bullying or Harassment is Within the Scope of the District A. The principal or designee will assign an individual(s) who is trained in investigative procedures to initiate an inve stigation of whether an act of bullying or harassment is within the scope of the School District. B. The trained investigator(s) will provide a report on results of investigation with recommendations for the principal to make a determination if an act of bullying or harassment falls within the scope of the District. 1. If it is within the scope of the Dis trict, a thorough investigation shall be conducted. 2. If it is outside the scope of the District and determined a criminal act, the principal shall refer the incident (s) to appropriate law enforcement.

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159 3. If it is outside the scope of t he District and determined not a criminal act, the principal or desi gnee shall inform the parent s/legal guardians of all students involved. VIII. Notification to Parents/Guardians of Incidents of Bullying or Harassment A. Immediate notification to the parents/legal guardians of a victim of bullying or harassment. 1. The principal, or designee, shall pr omptly report via telephone, personal conference, and/or in writi ng, the occurrence of any incident of bullying or harassment as defined by this policy to the parent or legal guardian of all students involved on the same day an inve stigation of the incident(s) has been initiated. Notification must be consistent with the student privacy rights under the applicable provisions of the Family Educational Rights and Privacy Act of 1974 (FERPA). 2. If the bullying incident result s in the perpetrator being charged with a crime, the principal, or designee, shall by telephone or in writing by first class mail, inform the parents/legal guar dian of the victim(s) involved in the bullying incident about the Unsa fe School Choice Option (No Child Left Behind, Title IX, Part E, Subpart 2, Section 9532) that states .a student who becomes a victim of a viol ent criminal offense, as determined by State law, while in or on the grounds of a public elementary school or secondary school that the student attends be allowed to attend a safe public elementary school or secondary school within the local educational agency, including a public charter school. B. Immediate notification to the parents/legal guardians of the perpetrator of an act bullying or harassment. The principal, or designee, shall pr omptly report via telephone, personal conference, and/or in writ ing, the occurrence of any incident of bullying or harassment as defined by this policy to the parent or legal guardian of all students involved on the same day an investigation of the incident(s) has been initiated. Notification must be consist ent with the student privacy rights under the applicable provisions of the Family Educational Rights and Privacy Act of 1974 (FERPA). C. Notification to local agencies where criminal charges may be pursued. Once the investigation has been comple ted and it has been determined that criminal charges may be pursued against the perpetrator, all appropriate local law enforcement agencies wi ll be notified by telephone and/or in writing. IX. Referral of Victims and Perpetrators of Bullying or Harassment for Counseling When bullying or harassment is suspected or when a bullying incident is reported, counseling services shall be made availabl e to the victim(s), perpetrator(s), and parents/guardians.

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160 A. The teacher or parent/legal guardi an may request informal consultation with school staff, e.g. school counselor, school psychologist, and/or crisis counselor to determine the severity of concern and appropriate steps to address the concern. The teacher may request that t he involved students parents or legal guardians are included. B. School personnel or the parent/legal guardian may refer a student to the school-based intervention team for consider ation of appropriate services. Parent or legal guardian involvement shall be required when the student is referred to the school-based intervention team. C. If a formal discipline report or formal complaint is made, the principal or designee must refer the student(s) to the school-based intervention team for determination of counseling support and in terventions. Parent or legal guardian involvement shall be required. D. The school-based intervent ion team may recommend: 1. Counseling and support to address t he needs of the victims of bullying or harassment; 2. Research-based counseling or interventions to address the behavior of the students who bully and harass others, e.g., empathy training, anger management, small group counseling, and/or classroom training; and/or 3. Research-based counseling or inte rventions which include assistance and support provided to parents/legal guardians, if deemed necessary or appropriate. X. Reporting Incidents of Bullying and Harassment A. Incidents of bullying or harassment s hall be reported in the schools report of data concerning school safety and disciplin e data required under Florida Statute. The report shall include eac h incident of bullying or harassment and the resulting consequences, including discipline and referrals. The report shall also include each reported incident of bully ing or harassment that did not meet the criteria of a prohibited act under this section with reco mmendations regarding such incidents. B. The District will utilize Floridas Sc hool Environmental Safety Incident Reporting (SESIR) Statewide Report on School Safety and Discipline Data, which includes bullying/harassment as an incident code as well as bullyingrelated as a related element code. 1. Bullying and/or harassment inci dents shall be repor ted in SESIR with the bullying/harassment code. 2. If the bullying/harassment resu lts in any of the following SESIR incidents, the incident will be cod ed appropriately using the relevant incident code and the bullying-relat ed code. Such incidents are:

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161 a. Arson b. Battery c. Breaking and Entering d. Disruption on Campus e. Major Fighting f. Homicide g. Kidnapping h. Larceny/Theft i. Robbery j. Sexual Battery k. Sexual Harassment l. Sexual Offenses m. Threat/Intimidation n. Vandalism o. Weapons Possession p. Other Major (Other major incident s that do not fit within the other definitions) C. Discipline and referral data shall be recorded in Student Discipline/Referral Action Report and Automated Student Information System. D. The District shall provide bullying inci dent, discipline, and referral data to the Florida Department of Educat ion in the format request ed, through Survey 5 from Education Information and Accountability Services, and at designated dates provided by the Department. XI. Instruction on Identifying, Preven ting, and Responding to Bullying or Harassment A. The District shall ensure that school s sustain healthy, positive, and safe learning environments for all students. It is committed to maintain a social climate and social norms in all schools that prohibit bullying and harassment. This requires the efforts of everyone in the school environment teachers; administrators; counselors; school nurses; other non-instructional staff such as bus drivers, custodians, food service per sonnel, media specialists; parents/legal guardians; and students. B. Students, parents/legal guardians, teachers, all non-instructional staff members, school administrator s, counseling staf f, and school volunteers shall be given instruction at a minimum on an annual basis on the District's policy and regulations against bullying and hara ssment. The instruction shall include evidence-based methods of preventing bul lying and harassment as well as how to effectively identify and respond to bullying in schools. XII. Reporting to a Victims Parents/Legal Guardians the Actions Taken to Protect the Victim The principal or designee shall by telephone, personal conference, and/or in writing report the occurrence of any incident of bu llying or harassment as defined by this

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162 policy to the parent or l egal guardian of all students in volved on the same day an investigation of the incident has been initiat ed. According to the level of infraction, parents/legal guardians will be notified by telephone, personal conference, and/or writing of actions being taken to protect the child; the frequency of notification will depend on the seriousness of the bullying or harassment incident. Notification must be consistent with the student privacy rights under the app licable provisions of the Family Educational Rights and Privacy Act of 1974 (FERPA). XIII. Publicizing the Policy A. At the beginning of each school year, the Superintendent or designee shall, in writing, inform school staff, parents/legal guardians, or other persons responsible for the welfare of a student of the Districts student safety and violence prevention policy. B. Each District school shall provide notice to students and staff of this policy through appropriate references in the Code of Student Conduct and employee handbooks and through other reasonable means. C. The Superintendent shall also make all contractors contracting with the District aware of this policy. D. Each school principal shall devel op an annual process for discussing the school district policy on bully ing and harassment with students. E. Reminders of the policy and bullying prevention messages such as posters and signs will be displayed around each school and on the District school buses. STATUTORY AUTHORITY: 1001.41, 1001.42, F.S. LAWS IMPLEMENTED: 1001.43, 1003.04, 1003.31, 1003.32, 1006.07, 1006.08, 1006.09, 1006.10, 1006.147, F.S.; 20 USC 1232g STATE BOARD OF EDUCATION RULES: Adopted: 06/12/2007 Revision Date(s): 11/18/2008 Formerly: New EMCS HISTORY:

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163 APPENDIX G PUTNAM COUNTY SCHOOL DISTRICT ANTI-CYBERBULLYI NG POLICY Title: Bullying and Harassment Cyberbullying Poli cy Adopted: 1/16/07 Policy Web site: http://www.putnamschools.or g/board/policy_ index.html Total No. of Pages on Cyberbullying: 11 Size: Small District: Fifth

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164 BULLYING AND HARASSMENT 5.101 I. Statement Prohibiting Bullying and Harassment A. It is the policy of the Putnam Count y School District that all of its students and school employees have an educational setting that is safe, secure and free from harassment and bullying of any kind. The District will not tolerate bullying and harassment of any type. Conduct that constitutes bullying and harassment, as defined herein, is prohibited. B. The District upholds that bullying or harassment of any student or school employee is prohibited. 1. During any education program or activity conducted by a public K12 educational institution; 2. During any school-related or sc hool-sponsored program or activity; 3. On a school bus of a public K-12 educational institution; or 4. Through the use of data or computer software that is accessed through a computer, computer system, or computer netwo rk of a public K-12 education institution. II. Definitions A. Bullying means systematically and ch ronically inflicting physical hurt or psychological distress on one or more students or employees. It is further defined as unwanted and r epeated written, verbal, or physical behavior, including any threatening, insulting, or dehumanizing gesture, by a student or adult, that is severe or pervasive enough to create an intimidating, hostile, or offensive educational environment; c ause discomfort or humiliation; or unreasonably interfere with the individuals school perfo rmance or participation; and may involve but is not limited to 1. Teasing; 2. Social Exclusion; 3. Threat; 4. Intimidation; 5. Stalking; (page 2) 6. Physical violence; 7. Theft; 8. Sexual, religious, or racial harassment; 9. Public humiliation; or 10. Destruction of property. B. Harassment means any threatening, in sulting or dehumanizing gesture, use of data or computer software, or writt en, verbal or physical conduct directed against a student or school employee that 1. Places a student or school empl oyee in reasonable f ear of harm to his/her person or damage to his/her property; 2. Has the effect of substantially interfering with a stude nts educational performance, opportunities, or benefits; or 3. Has the effect of substantially disrupting the order ly operation of a school. C. Bullying and harassment also encompass

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165 1. Retaliation against a student or sc hool employee by another student or school employee for asserting or alleging an act of bullying or harassment. Reporting an act of bullying or harassment that is not ma de in good faith is considered retaliation. 2. Perpetuation of conduct listed in the definition of bullying or harassment by an individual or group with intent to demean, dehumanize, embarrass, or cause emoti onal or physical harm to a student or school employee by a. Incitement or coercion; b. Accessing or knowingly and willingly causing or providing access to data or computer softw are through a computer, computer system, or computer network wit hin the scope of the District school system; c. Acting in a manner that has an effect substantially similar to the effect of bullying or harassment. (page 3) D. Cyberstalking as defined in s. 784.048(1)(d), F.S., means to engage in a course of conduct to communicate, or to cause to be communicated, words, images, or language by or through the use of electronic mail or electronic communication, directed at a specific person, causing substantial emotional distress to that person and serving no l egitimate purpose. Districts have the flexibility to add additional specific ca tegories of students to which bullying and harassment is prohibited in excess of what is listed. Ex ample(s) of approved District policies with additional categories will be available at www.fldoe.org/family. III. Behavior Standards A. The Putnam County School District expects students to conduct themselves as appropriate for their levels of development, maturity, and demonstrated capabilities with a proper regard for the rights and welf are of other students and school staff, the educational purpose underly ing all school activities, and the care of school facilities and equipment. B. The District believes that standar ds for student behavior must be set cooperatively though interaction among t he students, parents/legal guardians, staff, and community me mbers producing an atmo sphere that encourages students to grow in self-discipline. The development of this atmosphere requires respect for self and others, as well as for District and community property on the part of students, staff, and community members. Because students learn by example, school administr ators, faculty, staff, and volunteers will demonstrate appropriate behavior, threat others with civility and respect, and refuse to tolerate bullying or harassment. The policy shall also A. Describe student responsibilities, in cluding the requirem ents for students to conform to reasonable standards of soci ally acceptable behavior; respect the person, property, and rights of others; obey constituted authority; and respond to those who hold that authority

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166 B. Address appropriate recognition for positive reinforcement for good conduct, self discipline, good citizenship, and academic success C. Explain student rights D. Identify disciplinar y sanctions and due process IV. Consequences A. Committing an act of bullying or harassment 1. Concluding whether a particular action or incident constitutes a violation of this policy requires a determination based on all of the facts and surrounding circumstances. The physica l location or time of access of a computer-related incident cannot be raised as a defense in any disciplinary action. 2. Consequences and appropriate remedial action for students who commit acts of bullying or haras sment may range from positive behavioral interventions up to and incl uding suspension or expulsion, as outlined in the Code of Student Conduct. 3. Consequences and appropriate rem edial action for a school employee, found to have committed an act of bullying or harassment, shall be determined in accordance with di strict policies, procedures, and agreements. Additionally, egregious ac ts of harassment by certified educators may result in a sanction against an educators stat issued certificate. 4. Consequences and appropriate remedial action for a visito r or volunteer, found to have committed an act of bullying or harassment, shall be determined by the school administrator after considerati on of the nature and circumstances of the act, including reports to appropriate law enforcement officials. B. Wrongful and intentional accusation of an act of bullying or harassment 1. Consequences and appropriate remedi al action for a student, found to have wrongfully and intentionally a ccused another as a means of bullying or harassment, range from positive behav ioral interventions up to and including suspension or expulsion, as outlined in the Code of Student Conduct 2. Consequences and appropriate rem edial action for a school employee, found to have wrongfully and intentional ly accused another as a means of bullying or harassment, shall be dete rmined in accordance with District policies, procedures, and agreements. 3. Consequences and appropriate rem edial action for a visitor or volunteer, found to have wrongfully and intentionally accused another as a means of bullying or harassment shall be determined by the school administrator after consideration of the nature and circumstances of the act, including reports to appropriate law enforcement officials. (page 5) V. Reporting an Act of Bullying or Harassment A. At each school, the prin cipal or the principals des ignee shall be responsible for receiving complaints alleging violations of this policy.

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167 B. All school employees are required to r eport alleged violations of this policy to the principal or t he principals designee. C. All other members of the school community, including students, parents/legal guardians, volunteers, and visitors are encouraged to report any act that may be a violation of this policy anonymously or in person to the principal or principals designee. D. The principal to each school in t he District shall establish and prominently publicize to students, staff, volunteers, and parents/lega l guardians, how a report of bullying or harassment may be fil ed either in person or anonymously and how this report will be acted upon. E. The victim of bullying or harassm ent, anyone who witnessed the bullying or harassment, and anyone who has credible info rmation that an act of bullying or harassment has taken place may file a report of bullying or harassment. F. A school employee, school volunteer, student, parent/legal guardian or other persons who promptly reports in good faith an act of bullying or harassment to the appropriate school official and who ma kes this report in compliance with the procedures set forth in the District policy is immune from a cause of action for damages arising out of the reporting itself or any failure to remedy the reported incident. G. Submission of a good faith complaint or report of bullying or harassment will not affect the complainant or reporters future employment, grades, learning or working environment, or work assignments. H. Any written or oral reporting of an act of bullying or harassment shall be considered an official means of reporting such act(s). I. Reports may be made anonymously, but fo rmal disciplinary action may not be based solely on the basis of an anonymous report. VI. Investigation of a Report of Bullying or Harassment A. the investigation of a reported act of bullying or harassment is deemed to be a school-related activity and shall begi n with a report of such an act. B. The principal or designee shall select an individual(s), empl oyed by the school and trained in investigative procedures, to initiate the investigation. The person may not be the accused perpetrator (harasser or bully) or victim. (page 6) C. Documented interviews of the vict im, alleged perpetrator, and witnesses shall be conducted privately, separately, and shall be confidential. Each individual (victim, alleged perpetrator, and witnesses) will be interviewed separately and at no time will the alleged perpetrato r and victim be interviewed together. D. The investigator shall collect and ev aluate the facts incl uding but not limited to: 1. Description of incident(s ) including nature of the behavior; 2. Context in which the alleged incident(s) occurred; 3. How often the conduct occurred; 4. Whether there were past incident s or past continuing patterns of behavior. 5. The relationship between the parties involved;

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168 6. The characteristics of parties involved, i.e. grade, age; 7. The identity and number of individuals who participated in bullying or harassing behavior; 8. Where the alleged incident(s) occurred; 9. Whether the conduct adversely affected the students education or educational environment; 10. Whether the alleged victim felt or perceived an imbalance of power as a result of the reported incident; and 11. The date, time, and method in which the parents/legal guardians of all parties involved were contacted. E. Whether a particular action or incident constitutes a violation of this policy shall require a determination based on all the facts and surrounding circumstances and shall include 1. Recommended remedial steps necessary to stop the bullying and/or harassing behavior; and 2. A written final report to the principal. F. The maximum of ten (10) school days shall be the limit for the initial filing of incidents and completion of t he investigative procedural steps. (page 7) G. The highest level of confidentialit y possible will be upheld regarding the submission of a complaint or a re port of bullying and/or harassment and the investigative procedur es that follow. VII. Investigation to Determine Whether a Reported Act of Bullying or Harassment is Within the Scope of the District A. The principal or designee will assign an individual(s) who is trained in investigative procedures to initiate an in vestigation of whether an act of bullying or harassment is within the scope of the School District. B. The trained investigator(s) will provi de a report on results of investigation with recommendations for the principal to make a determination if an act of bullying or harassment falls within the scope of the District. 1. If it is within the scope of the District, a thorough inve stigation shall be conducted. 2. If it is outside the scope of the District and determined a criminal act, the principal shall refer the incident (s) to appropriate law enforcement. 3. If it is outside the scope of t he District and determined not a criminal act, the principal or desi gnee shall inform the parent s/legal guardians of all students involved. VIII. Notification to parents/Guardians of Incidents of Bullying or Harassment A. Immediate notification to the parents/legal guardians of a victim of bullying or harassment. 1. The principal, or designee, shall pr omptly report via telephone, personal conference, and/or in writ ing, the occurrence of any incident of bullying or harassment as defined by this policy to the parent or legal guardian of all

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169 students involved on the same day an inve stigation of the incident9s) has been initiated. Notification must be consistent with the student privacy rights under the applicable provisions of the Family Educational rights and privacy act of 1974 (FERPA). 2. If the bullying incident results in the perpetrator being charged with a crime, the principal, or designee, shall by telephone or in writing by first class mail, inform the parents/legal guar dian o the victims) involved in the bullying incident about the Unsafe School Choice Option (No child left Behind, Title IX, Part E, Subpart 2, Se ction 9532) that states a student who becomes a victim of a violent (page 8) criminal offense, as determined by state law, while in or on the grounds of a public elementary school or secondary school that the st udent attends, be allowed to attend a safe public elementary school or secondary school within the local educational agency, including a public charter school. B. Immediate notification to the parents/legal guardians of the perpetrator of an act bullying or harassment. The principal, or designee, shall promptly report via telephone, personal conference, and/or in wr iting, the occurrence of any incident of bullying or harassment as defined by th is policy to the parent or legal guardian of all students involved on the same day an investigation of the incidents) has been initiated. Notification must be cons istent with the student privacy rights under the applicable provisions of the Family Educatio nal Rights and Privacy Act of 1974 (FERPA). C. Notification to local agencies where criminal charges may be pursued. Once the investigation has been completed and it has been determined that criminal charges may be pursed against the perpet rator, all appropriate local law enforcement agencies will be notified by telephone and/or in writing. IX. Referral of Victims and Perpetrators of Bullying or Harassment for Counseling When bullying or harassment is suspected or when a bullying incident is reported, counseling services shall be made availa ble t the victim9s), perpetrator(s), and parents/guardians. A. The teacher or parent/legal guardi an may request informal consultation with school staff, e.g., school counselor, school psychologist, to determine the severity of concern and appropriate steps to address the concern. The teacher may request that the involved students parents or legal guardian are included. B. School personnel or the parent/legal guardian may refer a student to the school intervention team for consideration of appropriate services. Parent or legal guardian involvement shall be required wh en the student is referred to the intervention team. C. If a formal discipline report or formal complaint is made, the principal or designee must refer the student(s) to the school intervention team for

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170 determination of counseling support and in terventions. Parent or legal guardian involvement shall be required. (page 9) D. The intervention tam may recommend 1. Counseling and support to address t he needs of the victims of bullying or harassment; 2. Research-based counseling or interventions to address the behavior of the students who bully and harass others, e.g., empathy training, anger management; and/or 3. Research-based counseling or inte rventions which include assistance and support provided to parents/legal guardians, if deemed necessary or appropriate. X. Reporting Incidents of Bullying and Harassment A. Incidents of bullying or harassment s hall be reported in the schools report of data concerning school safety and discip line data required under s. 1006.09(6), F.S. The report shall include each incid ent of bullying or harassment and the resulting consequences, including discipli ne and referrals. The report shall also include each reported incident of bullying or harassment that did not meet the criteria of a prohibited act under this section with recommendations regarding such incidents. B. The District will utilize Floridas School Environmental Safety Incident Reporting (SESIR) Statewide Report on School Safety and Discipline Data, which includes bullying/harassment as an incident code as well as bullyingrelated as a related element code. 1. Bullying and/or harassment inci dents shall be reported in SESIR with the bullying/harassment code. 2. If the bullying/harassment resu lts in any of the following SESIR incidents, the incident will be cod ed appropriately using the relevant incident code and the bullying-rela ted code. Such incidents are a. Arson b. Battery c. Breaking and Entering d. Disruption on Campus e. Major Fighting f. Homicide g. Kidnapping (page 10) h. Larceny/Theft i. Robbery j. Sexual Battery

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171 k. Sexual Harassment l. Sexual Offenses m. Threat/Intimidation n. Vandalism o. Weapons Possession p. Other major (Other major incident s that do not fit within the other definitions) C. Discipline and referral data shall be recorded in Student Discipline/Referral Action Report and Automated Student Information System. D. The District shall provide bullying inci dent, discipline, and referral data to the Florida Department of Educat ion in the format request ed, through Survey 5 from Education Information and Accountability Services, and at designated dates provided by the Department. XI. Instruction on Identifying, Preven ting, and Responding to Bullying or Harassment A. The District shall ensure that school s sustain healthy, positive, and safe learning environments for all students. It is committed to maintain a social climate and social norms in all schools that prohibit bullying and harassment. This requires the efforts of everyone in the school environment teachers; administrators; counselors; school nurse s; other nonteaching staff such as bus drivers, custodians, cafeteria workers; school librarians; parents/legal guardians; and students. B. Students, parents/legal guar dians, teachers, school adm inistrators, counseling staff, and school volunteers shall be given instruction at a minimum on an annual basis on the Districts policy and regul ations against bullying and harassment. The instruction shall include evidence based methods of preventing bullying and harassment as well as how to effectively identify and respond to bullying in schools. XII. Reporting to a Victims Parents/Legal Guardians the Actions Taken to Protect the Victim (page 11) The principal or designee shall by te lephone and/or in writing report the occurrence of any incident of bullying as defi ned by this policy to the parent or legal guardian of all students involved on the same day an investigation of the incident has been initiated. According to the level of infraction, parents/le gal guardians will be notified by telephone and/or writing of actions being taken to protect the child; the frequency of notification will depend on the seriousness of t he bullying or harassment incident. Notification must be consistent with the student privacy rights under the applicable provisions of the Family Educational Rights and privacy Act of 1974 (FERPA). XIII. Publicizing the Policy

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172 A. At the beginning of each school year the Superintendent or designee shall, in writing, inform school staff, parents/legal guardians, or other persons responsible for the welf are of a student of the Districts student safety and violence prevention policy. B. Each District school shall provide notice to students and staff of this policy through appropriate references in the Code of Student Conduct and employee handbooks and through other reasonable means. C. The superintendent shall also make all contractors contracting with the District aware of this policy. D. Each school principal shall develop an annual process for discussing the school district policy on bully ing and harassment with students. E. Reminders of the policy and bullyi ng prevention messages such as posters and signs will be displayed around each school and on the District school buses. STATUTORY AUTHORITY: 1001.41, 1001.42, F.S. LAW(S) IMPLEMENTED: 1001.43, 1003.04, 1003.31, 1003.32, 1006.07, 1006.08, 1006.09, 1006.10, 1006.147, F.S. HISTORY: ADOPTED: 01-16-07 REVISION DATE(S): 12-16-08 FORMERLY: NEW

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173 APPENDIX I GLADES COUNTY SCHOOL DISTRICT ANTI-CYBERBULLYING POLICY Cyberbullying Policy Adopted: 2/11/09 (document created) School District Web site: h ttp ://www.glades-schools.org/ Cyberbullying policy Web site: http://www.gladesschools.org /files/Bully ingPolicy.pdf Total No. of Pages on Cyberbullying: 9 Size: Small District: Second

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174 Policy Against Bullying and Harassment 2 a. Statement prohibiting bullying and harassment: It is the policy of the Glades County School District that all of its students and school employees have an educational setting that is safe, secure, and free from harassment and bullying of any kind. The district will not tolerate bullying and harassment of any type. Conduct that constitutes bullying and ha rassment, as defined herein, is prohibited. 1 2 b. Definition of bullying a nd a definition of harassment: Bullying means systematically and chronically infl icting physical hurt or psychological distress on one or more students or employees. It is further defined as unwanted and repeated written, verbal, or physical behavior, including any threateni ng, insulting, or dehumanizing gesture, by a student or adult, t hat is severe or pervasive enough to create an intimidating, hostile, or offens ive educational environment; cause discomfort or humiliation; or unreasonably interfere with the individuals school performance or participation; and may involv e but is not limited to: 1. Teasing 2. Social Exclusion 3. Threat 4. Intimidation 5. Stalking 6. Physical violence 7. Theft 8. Sexual, religious, or racial harassment 9. Public humiliation 10. Destruction of property Harassment means any threatening, insulting, or dehumanizing gesture, use of data or computer software, or written, verbal or physical conduct directed against a student or school employee that: 1. Places a student or school employee in re asonable fear of harm to his or her person or damage to his or her property 2. Has the effect of substantially interf ering with a students educ ational performance, opportunities, or benefits 3. Has the effect of subs tantially disrupting the or derly operation of a school Bullying and harassment also encompasses: 1. Retaliation against a student or school employee by another student or school employee for asserting or alleging an act of bullying or harassment. Reporting an act of bullying or harassment that is not made in good faith is considered retaliation. ( page 2) 2. Perpetuation of conduct listed in the def inition of bullying or harassment by an individual or group with intent to demean, dehumanize, embarrass, or cause 1. Emotional or physical harm to a student or school employee by: a. Incitement or coercion b. Accessing or knowingly and willi ngly causing or providing access to data or computer software through a computer, computer system, or computer network within the sc ope of the district school system

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175 c. Acting in a manner that has an effect substantially simila r to the effect of bullying or harassment Cyberstalking as defined in s. 784.048(1)(d), F.S., means to engage in a course of conduct to communicate, or to cause to be communicated, words, images, or language by or through the use of electronic mail or electronic communication, directed at a specific person, causing s ubstantial emotional distress to that person and serving no legitimate purpose. 1. Description of the type of behavior expec ted from each student and school employee of a public K-12 educational institution: The Glades County School District expec ts students to conduct themselves as appropriate for their levels of development, maturity, and demonstrated capabilities with a proper r egard for the rights and welf are of other students and school staff, the educational purpose underly ing all school activities, and the care of school facilities and equipment. The school district believes that st andards for student behavior must be set cooperatively through interaction among t he students, parents/lega l guardians, staff, and community members producing an atmospher e that encourages students to grow in self-discipline. The development of this at mosphere requires respec t for self and others, as well as for district and community property on the part of students, staff, and community members. Since stud ents learn by example, schoo l administrators, faculty, staff, and volunteers will dem onstrate appropriate behavior, treat others with civility and respect, and refuse to tole rate bullying or harassment. The school district upholds that bullying or harassment of any student or school employee is prohibited: a) During any education program or activity c onducted by a public K-12 educational institution; b) During any school-related or school-sponsored program or activity; c) On a school bus of a public K-12 educational institution; or d) Through the use of dat a or computer software that is accessed through a computer, computer system or computer network of a public K-12 education institution. 1. Consequences for a student or employee of a public K-12 educational institution who commits an act of bullyi ng or harassment: (page 3) Concluding whether a particular action or inci dent constitutes a violation of this policy requires a determination based on all of the facts and surrounding circumstances. The physical location or time of access of a com puter-related incident cannot be raised as a defense in any disciplinary action. Conseque nces and appropriate remedial action for students who commit acts of bullying or har assment may range from positive behavioral interventions up to and including suspension or expulsion, as outlined in the Code of Student Conduct. Consequences and appropriate remedial action for a school employee found to have committed an act of bullying or harassment may be disciplined in accordance with district policies, procedures, and agreements. Additionally, egregious acts of harassment by certified educat ors may result in a sanction against an educators state issued certific ate. (See State Board of Educ ation Rule 6B-1.006, FAC., The Principles of Professional Conduct of the Education Profession in Florida.) Consequences and appropriate remedial action for a visitor or volunteer, found to have

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176 committed an act of bullying or harassm ent shall be determined by the school administrator after consider ation of the nature and circum stances of the act, including reports to appropriate law enforcement officials. 12. Consequences for a student or employee of a public K-12 educational institution who is found to have wrongfully and intentionally accused another of an act of bullying or harassment: Consequences and appropriate remedial action for a student found to have wrongfully and intentionally accused anothe r as a means of bullying or harassment range from positive behavioral interventions up to and including suspension or expulsion, as outlined in the Code of Student Conduct. Consequences and appropriate remedial action for a school employee found to hav e wrongfully and int entionally accused another as a means of bullying or harassm ent may be disciplined in accordance with district policies, procedures, and agreements. Consequences and appropriate remedial action for a visitor or volunteer, found to have wrongfully and intentionally accused another as a means of bullying or hara ssment shall be determined by the school administrator after consider ation of the nature and circum stances of the act, including reports to appropriate law enforcement officials. 1f. A procedure for reporting an act of bullyi ng or harassment, including provisions that permit a person to anonymously report such an act. At each school, the principal or the princi pals designee is responsible for receiving complaints alleging violations of this policy. All school employees are required to report alleged violations of this policy to the principal or the principals designee. All other members of the school community, includi ng students, parents/legal guardians, volunteers, and visitors are encouraged to report any act that may be a violation of this policy anonymously or inperson to the principal or principals designee. The principal of each school in the district shall establish and pr ominently publicize to students, staff, volunteers, and parents/legal guardians, how a report of bullying or harassment may be filed either in-person or anonymously and how this report will be (page 4) acted upon. The victim of bully ing or harassment, anyone who witnessed the bullying or harassment, and anyone who has credible information that an act of bullying or harassment has taken place may file a report of bullying or harassment. A school employee, school volunteer, student, parent /legal guardian or other persons who promptly reports in good faith an act of bully ing or harassment to the appropriate school official and who makes this report in comp liance with the procedures set forth in the district policy is immune from a cause of action for damages arisin g out of the reporting itself or any failure to remedy the reported incident. Submission of a good faith complaint or report of bullying or harassment will not affect th e complainant or reporters future employment, grades, learning or worki ng environment, or work assignments. Any written or oral reporting of an act of bullying or harassment shall be considered an official means of reporting such act(s). Reports may be made anonym ously, but formal disciplinary action may not be based solely on the basis of an anonymous report. g. A procedure for the prompt investigation of a report of bullying or harassment and the persons responsible for the investigation. T he investigation of a reported act of bullying or harassment is deemed to be a school-related activity and begins with a report of such an act:

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177 At each school in the district, the Proc edures for Investigat ing Bullying and/or Harassment include: 1The principal or designee selects a desi gnee(s), employed by the school, trained in investigative procedures to initiate t he investigation. The designee(s) may not be the accused perpetrator (h arasser or bully) or victim. 2Documented interviews of the vict im, alleged perpetrator, and witnesses are conducted privately, separately, and are confidential. Each individual (victim, alleged perpetrator, and witnesses) will be interviewed separately and at no time will the alleged perpetrator and victim be interviewed together. 3The investigator shall collect and evaluat e the facts including, but not limited to: 0 o Description of incident(s) incl uding nature of the behavior; context in which the alleged incident(s) occurred, etc.; 1 o How often the conduct occurred; 2 o Whether there were past incidents or past continuing patterns of behavior; 0 o The relationship between the parties involved; 1 o The characteristics of parties involved (i.e., grade, age, etc.); 2 o The identity and number of indivi duals who participated in bullying or harassing behavior; 3 o Where the alleged incident(s) occurred; 4 o Whether the conduct adversely affect ed the students education or educational environment; (page 5) 5 o Whether the alleged victim felt or perceived an imbalance of power as a result of the reported incident; and 6 o The date, time, and method in which th e parents/legal guardians of all parties involved were contacted. 2Whether a particular action or incident cons titutes a violation of this policy requires a determination based on all the facts and surrounding circumstances and includes: 1o Recommended remedial steps necessary to stop the bullying and/or harassing behavior; and 2o A written final report to the principal. 3The maximum of 10 school days shall be the lim it for the initial fili ng of incidents and completion of the investigative procedural steps. The highest level of confidentiality possible will be upheld regarding the submission of a complaint or a report of bullying and/or harassment, and the investi gative procedures that follow. 1h. A process to investigate whether a repor ted act of bullying or harassment is within the scope of the district school system and, if not, a process for referral of such an act to the appropriate jurisdiction: A principal or designee will assign a desig nee(s) that is trained in investigative procedures to initiate an investigation of whether an act of bully ing or harassment is within the scope of the school district. The trained designee(s) will provide a r eport on results of investigation with recommendations for the principal to make a determination if an act of bullying or harassment falls within the scope of the district. 1 If it is within scope of district, move to Procedures for Invest igating Bullying and/or Harassment.

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178 2 If it is outside scope of district, and det ermined a criminal act, refer to appropriate law enforcement. 3 If it is outside scope of district, and det ermined not a criminal act, inform parents/legal guardians of all students involved. 1i. A procedure for providing immediate notification to the parents/legal guardians of a victim of bullying or harassment and the parents/legal guardians of the perpetrat or of an act of bullying or harassment as well as, notification to all local agencies where criminal char ges may be pursued against the perpetrator: The principal, or designee, shall promptly report via telephone, personal conference, and/or in writing, the occurrence of any incid ent of bullying or harassment as defined by this policy to the parent or legal guardian of all students involved on the same day an investigation of the incident(s ) has been initiated. Notification must be consistent with the student privacy rights under the applic able provisions of the Family Educational Rights an d Privacy Act of 1974 (FERPA). (page 6) If the bullying incident re sults in the perpetrator bei ng charged with a crime, the principal, or designee, shall by telephone or in writing by first class mail, inform parents/legal guardian of the vi ctim(s) involved in the bullying incident about the Unsafe School Choice Option (No Child Left B ehind, Title IX, Part E, Subpart 2, Section 9532) that states ..a student who becomes a vict im of a violent criminal offense, as determined by State law, while in or on the grounds of a public elementary school or secondary school that the student a ttends, be allowed to attend a safe public elementary school or secondary school within the local educational agency, including a public charter school. Once the investigation has been completed and it has been determined that criminal charges may be pursued against the perpetrator, all appropriate local law enforcement agencies will be notified by te lephone and/or in writing. 12 j. A procedure to refer victims and perpetrators of bullying or harassment for counseling: A district referral procedure will establish a protocol for intervening when bullying or harassment is suspected or when a bullyin g incident is reported. The procedure shall include: 1 A process by which the teacher or parent/legal guardian may request informal consultation with school staff (specialty staff, e.g., school counselor, school psychologist, etc.) to determine the severi ty of concern and appr opriate steps to address the concern (the involved students parents or legal guardian may be included). 2 A referral process to provide professiona l assistance or services that includes: 1o A process by which school personnel or parent/legal guardian may refer a student to the school intervention team (or equivalent school based team with a problem-solving focus) for consideration of appropriate servic es. (Parent or legal guardian involvement is required at this point.) 2o If a formal discipline report or formal comp laint is made, the principal or designee must refer the student(s) to t he school intervention team for determination of counseling support and interventions. (Parent or legal guardian involvement is required at this point.) 3 A school-based component to address in tervention and assistance as determined appropriate by the intervention team that includes:

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179 0 o Counseling and support to address the needs of the victims of bullying or harassment o Research-based counseling/interventions to address the behavior of the students who bully and harass others (e.g., em pathy training, anger management) 0 o Research-based counseling/interventions which includes assistance and support provided to parents/legal guar dians, if deemed necessary or appropriate (page 7) 1k. A procedure for including incidents of bu llying or harassment in the schools report of data concerning school safety and discip line data required under s. 1006.09(6), F.S. The report must include each incident of bullying or harassment and the resulting consequences, including discipline and referrals. The report must include, in a separate section, each reported incident of bullying or harassment that does not meet the criteria of a prohibited act under this section with recommendations regarding such incidents: The school district will utilize Floridas School Environmental Safety Incident Reporting (SESIR) Statewide Report on School Safety and Discipline Data, which includes bullying/harassment as an incident code as well as bullying-related as a related element code. The SESIR defin ition of bullying/harassment is unwanted and repeated written, verbal, or physical behavior, including any threatening, insulting or dehumanizing gesture, by an adult or student that is severe or pervasive enough to create an intimidating, hostile or offensive educational environment, cause discomfort or humiliation, or unreasonably in terfere with the individual s school performance or participation. If a bullying and/or harassment incident occurs then it will be reported in SESIR with the bullying/harassment code. If the bullying/har assment results in an y of the following SESIR incidents the incident will be coded appr opriately using the relevant incident code AND the related element code entitled bu llying-related code. Those incidents are: 1 Arson 2 Battery 3 Breaking and Entering 4 Disruption on Campus 5 Major Fighting 6 Homicide 7 Kidnapping 8 Larceny/Theft 9 Robbery 10 Sexual Battery 11 Sexual Harassment 12 Sexual Offenses 13 Threat/Intimidation 14 Vandalism 15 Weapons Possession 16 Other Major (Other majo r incidents that do not fit within the other definitions) Discipline and referral data wil l be recorded in Student Discipline/Referral Action Report and Automated Student Information System. The district will provide bullying incident, disc ipline, and referral data to the Florida

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180 Department of Education in the format reques ted, through Survey 5 from Education (page 8) Information and Acc ountability Services, and at designated dates provided by the Department. 12 l. A procedure for providing instruction to students, parents/legal guardians, teachers, school administrators, counsel ing staff, and school volunteer s on identifying, preventing, and responding to bullying or harassment: The district ensures that schools sustain healthy, positive, and safe learning environm ents for all students. It is important to change the social climate of the school and t he social norms with regards to bullying. This requires the efforts of everyone in the school environment teachers, administrators, counselors, sc hool nurses other non-teaching staff (such as bus drivers, custodians, cafeteria workers, and/or school librarians), parents/legal guardians, and students. Students, parents/legal guardians, teachers, school administrators, counseling staff, and school volunteers shall be given instruction at a minimum on an annual basis on the district's Policy and Regulations against bullying and harassment. The instruction shall include evidence-based methods of preventing bullying and harassment, as well as how to effectively identify and respond to bullying in schools. 12 m. A procedure for regularly reporting to a victims parents/legal guardians the actions taken to protect the victim: The principal or designee shall by telephone and/ or in writing report the occurrence of any incident of bullying as defined by this policy to the parent or legal guardian of all students involved on the same day an investigat ion of the incident has been initiated. According to the level of infraction, parent s/legal guardians will be notified by telephone and/or writing of actions being taken to protec t the child; the frequency of notification will depend on the seriousness of the bu llying or harassment incident. Notification must be consistent with the student privacy rights under the applicable provisions of the Family Educational Rights and Privacy Act of 1974 (FERPA). 12 n. A procedure for publicizing the policy which must include its publication in the code of student conduct required under s. 1006.07(2), F.S., and in all employee handbooks: At the beginning of each school year, the Super intendent or designee sh all, in writing, inform school staff, parents/legal guardians, or other persons responsible for the welfare of a student of the districts student safety and violence prevention policy. Each district school shall provide notice to students and staff of this policy through appropriate references in the code of st udent conduct and employee handbooks, and/or through other reasonable means. The Superintendent shall also make all contractors contracting with the district aware of this policy. Each school principal shall develop an annual process for discussing the school district policy on bullying and harassment with students in a student asse mbly or (page 9) other reasonable format. Reminders of the policy and bullying pr evention messages such as posters and signs will be displayed around each school and on the district school buses. School Board Approved by: __________ _____________________ Date: ________ ###

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181 APPENDIX J LAFAYETTE COUNTY SCHOOL DISTRICT ANTI-CYBERBULL YING POLICY Title: Lafayette School District School Board Policy Cyberbullying Policy Adopted: Policy Web site: http://www.lafayette.k12.fl.us/school%20board%20policies.pdf: No. of Pages: Size: Small District: Fir st

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182 BULLYING AND HARASSMENT 5.101 I. Statement Prohibiting Bullying and Harassment A. It is the policy of the Lafayette County School District that all of its students and school employees have an educational setting that is safe, secure and free from harassment and bullying of any kind. The District will not tolerate bullying and harassment of any type. Conduct that cons titutes bullying and harassment, as defined herein, is prohibited. B. The District upholds that bullying or haras sment of any student or school employee is prohibited 1. During any education program or activity conducted by a public K12 educational institution; 2. During any school-related or school -sponsored program or activity; 3. On a school bus of a public K-12 educational institution; or 4. Through the use of data or computer software that is accessed through a computer, computer system, or comput er network of a public K12 education institution. II. Definitions A. Bullying means systematically and chronically inflicting ph ysical hurt or psychological distress on one or more students or employees. It is further defined as unwanted and repeated written, verbal, or physical behavior, including any threateni ng, insulting, or dehumanizing gesture, by a student or adult, t hat is severe or pervasive enough to create an intimidating, hostile, or offens ive educational environment; cause discomfort or humiliation; or unreasonably interfere with the individuals school performance or participation; and may involv e but is not limited to 1. Teasing; 2. Social Exclusion; 3. Threat; 4. Intimidation; 5. Stalking; 6.Physical violence 7. Theft; 8. Sexual, religious, or racial harassment; 9. Public humiliation; or 10. Destruction of property. B. Harassment means any threatening, insult ing or dehumanizing gesture, use of data or computer software, or wr itten, verbal or physical co nduct directed against a student or school employee that 1. Places a student or school employee in re asonable fear of harm to his/her person or damage to his/her property; 2. Has the effect of substantially interf ering with a students educ ational performance, opportunities, or benefits; or 3. Has the effect of subs tantially disrupting the orderly operation of a school. C. Bullying and harassment also encompass 1. Retaliation against a student or school employee by another student or school employee for asserting or alleging an act of bullying or harassment. Reporting an act of bullying or harassment that is not made in good faith is considered retaliation.

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183 2. Perpetuation of conduct listed in the def inition of bullying or harassment by an individual or group with intent to demean, dehumanize, emba rrass, or cause emotional or physical harm to a student or school employee by a. Incitement or coercion; b. Accessing or knowingly and willingly causin g or providing access to data or computer software through a computer, co mputer system, or computer network within the scope of the District school system; c. Acting in a manner that has an effect subst antially similar to the effect of bullying or harassment. III. Behavior Standards D. Cyberstalking as defined in s. 784.048(1 )(d), F.S., means to engage in a course of conduct to communicate, or to cause to be communicated, words, images, or language by or through the use of electronic mail or electronic communication, directed at a specific person, causing s ubstantial emotional distress to that person and serving no legitimate purpose A. The Lafayette County School District ex pects students to conduct themselves as appropriate for their levels of developmen t, maturity, and demonstrated capabilities with a proper regard for the right s and welfare of other st udents and school staff, the educational purpose underlying all school activiti es, and the care of school facilities and equipment. B. The District believes that standards for student behavior must be set cooperatively through interaction among the students, parents/legal guardi ans, staff, and community members producing an atmosphere that encour ages students to grow in self-discipline. The development of this atmosphere requires respect for self and others, as well as for District and community property on the part of students, staff, and community members. Because students learn by example, school adm inistrators, faculty, staff, and volunteers will demonstrate appropriate beh avior, treat others with civility and respect, and refuse to tolerate bullying or harassment. Students will conform to reasonable standards of socially acceptable behavior; respect the person, property and rights of others; obey constituted authority and respond to those who hold that authorit y. There will be appropriate recognition for positive reinforcement for good conduct, self-discipline, good citizenship and academic success. These awards will be given at the end of the year at the awards ceremonies for each school. Student rights, disciplinary sanctions and due process will be set forth in the Student Code of Conduct. Students and parents re ceive a copy of the Code of Conduct. Students receive an explanation at the begi nning of school regarding their rights, sanctions and due process. IV. Consequences A. Committing an act of bullying or harassment 1. Concluding whether a particular action or in cident constitutes a violation of this policy requires a determination based on all of the facts and surrounding circumstances. The physical location or time of access of a com puter-related incident cannot be raised as a defense in any disciplinary action.

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184 2. Consequences and appropriate remedial action for students who commit acts of bullying or harassment may range from pos itive behavioral interventions up to and including suspension or expulsion, as outlined in the Code of Student Conduct 3. Consequences and appropriate remedial ac tion for a school employee, found to have committed an act of bullying or harassment shall be determined in accordance with District policies, procedures, and agreement s. Additionally, egregious acts of harassment by certified educators may result in a sanction against an educators state issued certificate. 4. Consequences and appropriate remedial ac tion for a visitor or volunteer, found to have committed an act of bullying or haras sment, shall be determined by the school administrator after considerat ion of the nature and circumst ances of the act, including reports to appropriate law enforcement officials. B. Wrongful and intentional accusation of an act of bullying or harassment 1. Consequences and appropriate remedi al action for a student, found to have wrongfully and intentionally accused another as a means of bullying or harassment, range from positive behaviora l interventions up to and including suspension or expulsion, as outlined in the Code of Student Conduct 2. Consequences and appropriate remedial ac tion for a school employee, found to have wrongfully and intentionally accused another as a means of bullying or harassment, shall be determined in accordance with Distric t policies, procedures, and agreements. 3. Consequences and appropriate remedial ac tion for a visitor or volunteer, found to have wrongfully and intentionally accus ed another as a means of bullying or harassment shall be determined by the school adm inistrator after consideration of the nature and circumstances of the act, includi ng reports to appropria te law enforcement officials. V. Reporting an act of Bu llying or Harassment A. At each school, the princi pal or the principals designee shall be responsible for receiving complaints alleging violations of this policy. B. All school employees are required to repor t alleged violations of this policy to the principal or the principals designee. C. All other members of the school community, including students, parents/legal guardians, volunteers, and visitors are encouraged to report any act that may be a violation of this policy anonymously or in pers on to the principal or principals designee. D. The principal of each school in the Distr ict shall establish and prominently publicize to students, staff, volunteer s, and parents/legal guardians, how a report of bullying or harassment may be filed either in person or anonymously and how this report will be acted upon. E. The victim of bullying or harassm ent, anyone who witnessed the bullying or harassment, and anyone who has credible information that an act of bullying or harassment has taken place may file a report of bullying or harassment. F. A school employee, school volunteer, st udent, parent/legal guardian or other persons who promptly reports in good faith an act of bullying or harassment to the appropriate school official and who makes this report in compliance with the procedures set forth in the District policy is immune from a cause of action for damages arising out of the reporting itself or any failure to remedy the reported incident.

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185 G. Submission of a good faith complaint or report of bullying or harassment will not affect the complainant or reporters futu re employment, grades, learning or working environment, or work assignments. H. Any written or oral reporting of an act of bullying or harassment shall be considered an official means of reporting such act(s). I. Reporst may be made anonymously, but forma l disciplinary action may not be based solely on the basis of an anonymous report. VI. Investigation of a Report of Bullying or Harassment A. The investigation of a reported act of bullying or harassment is deemed to be a school-related activity and shall begin with a report of such an act. B. The principal or designee shall select an individual(s), empl oyed by the school and trained in investigative procedures, to initiate the investigation. The person may not be the accused perpetrator (harasser or bully) or victim. C. Documented interviews of the victim, alleged perpetrator, and witnesses shall be conducted privately, separately, and shall be confidential. Each individual (victim, alleged perpetrator, and witnesses) will be interviewed separately and at no time will the alleged perpetrator and victim be interviewed together. D. The investigator shall collect and evaluat e the facts including but not limited to 1. Description of incident(s) in cluding nature of the behavior; 2. Context in which the alleged incident(s) occurred; 3. How often the conduct occurred; 4. Whether there were past incidents or past continuing patterns of behavior; 5. The relationship between the parties involved; 6. The characteristics of parties involved, i.e. grade, age; 7. The identity and number of individuals who participated in bullying or harassing behavior; 8. Where the alleged incident(s) occurred; 9. Whether the conduct adversely affect ed the students education or educational environment; 10. Whether the alleged victim felt or perceived an imbalance of power as a result of the reported incident; and 11. The date, time and method through whic h all parents/guardians of all parties involved were contacted. E. Whether a particular action or incident co nstitutes a violation of this policy shall require a determination based on all the fa cts and surrounding circumstances and shall include 1. Recommended remedial steps necessary to stop the bullyi ng and/or harassing behavior; and 2. A written final repor t to the principal. F. The maximum of ten (10) school days shall be the limit for the initia l filing of incidents and completion of the investigative procedural steps. G. The highest level of confidentiality possibl e will be upheld regarding the submission of a complaint or a report of bullyi ng and/or harassment and the investigative procedures that follow.

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186 VII. Investigation to Determi ne Whether a Reported Act of Bullying or Harassment is Within the Scope of the District A. The principal or designee will assign an in dividual(s) who is trained in investigative procedures to initiate an investigation of whether an act of bully ing or harassment is within the scope of the School District. B. The trained investigator(s) will provide a report on results of investigation with recommendations for the principal to make a determination if an act of bullying or harassment falls within the scope of the District. 1. If it is within the scope of the District, a thorough investigation shall be conducted. 2. If it is outside the scope of the District and determined a cr iminal act, the principal shall refer the incident(s) to appropriate law enforcement. 3. If it is outside the scope of the District and determined not a criminal act, the principal or designee shall inform the parents/legal guardians of all students involved. VIII. Notification to Parents/Guardians of Incidents of Bullying and Harassment A. Immediate notification to the parents/legal guardians of a victim of bullying or harassment. 1. The principal, or designee, shall promptly report via te lephone, personal conference, and/or in writing, the occurrence of any incid ent of bullying or harassment as defined by this policy to the parent or legal guardian of all students involved on the same day an investigation of the incident(s ) has been initiated. Notification must be consistent with the student privacy rights under the applicable provisions of the Family Educational Rights and Privacy Act of 1974 (FERPA). 2. If the bullying incident results in t he perpetrator being charged with a crime, the principal, or designee, shall by telephone or in writing by first class mail, inform the parents/legal guardian of the vi ctim(s) involved in the bullying incident about the Unsafe School Choice Option (No Child Left Behind, Title IX, Part E, Subpart 2, Section 9532) that states .a student who becomes a victim of a vi olent criminal offense, as determined by State law, while in or on the grounds of a public elementary school or secondary school that the student attends, be allowed to attend a safe public elementary school or secondary school within the local educational agency, including a public charter school. B. Immediate notification to the parents/legal guardians of the perpetrator of an act bullying or harassment. The principal, or designee, shall promptly report via telephone, personal conference, and/or in writing, the occurrence of any incident of bullying or harassment as defined by this policy to the parent or legal guardian of all students involved on the same day an investigation of the incident(s ) has been initiated. Notification must be consistent with the student privacy rights under the applicable provisions of the Family Educational Rights and Privacy Act of 1974 (FERPA). C. Notification to local agencies where criminal charges may be pursued. Once the investigation has been completed and it has been determined that criminal charges may be pursued against the perpetrator, all appropriate local law enforcement agencies will be notified by te lephone and/or in writing.

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187 IX. Referral of Victims and Perpetrators of Bullying or Harassment for Counseling When bullying or harassment is suspected or when a bullying incident is reported, counseling services shall be made availabl e to the victim(s), perpetrator(s), and parents/guardians. A. The teacher or parent/legal guardian ma y request informal consultation with school staff, e.g. school counselor, school psychologist, to determine the severity of concern and appropriate steps to addre ss the concern. The teacher may request that the involved students parents or l egal guardian are included. B. School personnel or the parent/legal guardian may refer a student to the school intervention team for consider ation of appropriate services. Parent or legal guardian involvement shall be required when the student is referred to the intervention team. C. If a formal discipline r eport or formal complaint is ma de, the principal or designee must refer the student(s) to t he school intervention team for determination of counseling support and interventions. Parent or legal guardian involvement shall be required. D. The intervention team may recommend 1. Counseling and support to address the needs of the victim s of bullying or harassment; 2. Research-based counseling or intervent ions to address the behavior of the students who bully and harass others, e.g. empathy training, an ger management; and/or 3. Research-based counseling or interv entions which include assistance and support provided to parents/legal guardians, if deemed necessary or appropriate. X. Reporting Incidents of Bullying and Harassment Incidents of bullying or harassment shall be reported in the school s report of data concerning school safety and discipline data required under s. 1006.09(6), F.S. The report shall include each incident of bullying or harassment and the resulting consequences, including discipline and referral s. The report shall also include each reported incident of bullying or harassment that did not meet the criter ia of a prohibited act under this section with recommendat ions regarding such incidents B. The District will utilize Floridas School Environmental Safety Incident Reporting (SESIR) Statewide Report on School Safety and Discipline Data, which includes bullying/harassment as an incident code as well as bullying-related as a related element code. 1. Bullying and/or harassment incident s shall be reported in SESIR with the bullying/harassment code. 2. If the bullying/harassment results in any of the followi ng SESIR incidents, the incident will be coded appropriately us ing the relevant incident code and the bullying-related code. Such incidents are a. Arson b. Battery c. Breaking and Entering d. Disruption on Campus e. Major Fighting f. Homicide g. Kidnapping

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188 h. Larceny/Theft i. Robbery j. Sexual Battery k. Sexual Harassment l. sexual offenses m. Threat/Intimidation n. Vandalism o. Weapons Possession p. Other Major (Other major incidents that do not fit within the other definitions) C. Discipline and referral data shall be reco rded in Student Discipline/Referral Action Report and Automated Student Information System. D. The District shall provide bu llying incident, discipline, and referral data to the Florida Department of Education in the format reques ted, through Survey 5 from Education Information and Accountability Services and at designated dates provided by the Department. XI. Instruction on Identifying, Preventing, and Responding to Bullying or Harassment A. The District shall ensure that schools su stain healthy, positive, and safe learning environments for all students. It is committed to maintain a social climate and social norms in all schools that prohibit bullying an d harassment. This requires the efforts of everyone in the school environment teac hers; administrators; counselors; school nurses; other nonteaching staff such as bus drivers, custodians, cafeteria workers; school librarians; parents/legal guardians; and students. B. Students, parents/legal guardi ans, teachers, school administrators, counseling staff, and school volunteers shall be given instructi on at a minimum on an annual basis on the District's policy and regulations against bully ing and harassment. The instruction shall include evidence-based methods of preventi ng bullying and harassment as well as how to effectively identify and respond to bullying in schools. XII. Reporting to a Victims Parents/Legal G uardians the Actions Taken to Protect the Victim XIII. Publicizing the Policy The principal or designee shall by telephone and/ or in writing report the occurrence of any incident of bullying as defined by this policy to the parent or legal guardian of all students involved on the same day an investigat ion of the incident has been initiated. According to the level of infraction, parent s/legal guardians will be notified by telephone and/or writing of actions being taken to protec t the child; the frequency of notification will depend on the seriousness of the bullying or har assment incident. Notification must be consistent with the student privacy rights under the applicable provisions of the Family Educational Rights and Privacy Act of 1974 (FERPA). A. At the beginning of each school year, the Superintendent or designee shall, in writing, inform school staff, parents/legal guardians, or other persons responsible for the welfare of a student of the Districts student safety and violence prevention policy. B. Each District school sha ll provide notice to students and staff of this policy through appropriate references in the Code of Student Conduct and employee handbooks and through other reasonable means. C. The Superintendent shall also make all cont ractors contracting with the District aware of this policy.

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189 D. Each school principal shall develop an annual process for discussing the school district policy on bullying and harassment with students. E. Reminders of the policy and bullying prevention messages such as posters and signs will be displayed around each school and on the District school buses. STATUTORY AUTHORITY 1001.41, 1001.42, F.S. LAW(S) IMPLEMENTED: 1001. 43, 1003.04, 1003.31, 1003.32, 1006.07, 1006.08, 1006.09, 1006.10, 1006.147, F.S. 20 USC 1232g HISTORY: ADOPTED: _______ REVISION DATE(S): _______ FORMERLY: NEW

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190 LIST OF REFERENCES Constitutions U.S. CONST. amend. I. Statutes FLA. STAT. 1006.147 (2009) FLA. STAT. 784.048(1)(d) (2008) OR. REV. STAT. ANN. 339.356 (2007) Bills H.R. 1966, 111th Cong. (1st Sess. 2009). Cases Bar-Navon v. Sch. Bd. of Brevard County, No. 6:06-cv1434, 2007 WL 3284322, at 5 (M.D. Fla. Nov. 5, 2007). Bethel Sch. Dist. v. Fraser, 478 U.S. 675 (1986). Beussink v. Woodland R-IV Sch. Dis t., 30 F. Supp. 2d 1175 (E.D. Mo. 1998). Boroff v. Van Wert Bd. of E duc., 220 F.3d 465, 460 (6th Cir. 2000). Broadrick v. Oklahoma, 413 U.S. 601 (1973). Chalifoux v. New Caney Independent Sch. Dist. 976 F. Supp. 659, 671 (S.D. Tex. 1997). Chaplinsky v. New Hampsh ire, 315 U.S. 568 (1942). Cohen v. California, 4 03 U.S. 15, 20-21 (1971). Connally v. Gen. Const. Co., 269 U.S. 385 (1926). Coy v. Bd. of Educ. of t he N. Canton City Sch., 205 F. Supp. 2d 791, 795 (N.D. Ohio 2002). Davis v. Monroe County Bd. of Educ., 526 U.S. 629, 632 (1999). Doe v. Univ. of Mich., 721 F. Supp. 852, 864 (E.D. Mich. 1989).

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191 Emmett v. Kent Sch. Dist. No. 415, 92 F. Supp. 2d (W.D. Wash. 2000). Gitlow v. New York, 268 U.S. 652, 666 (1925). Grayned v. City of Rockford, 408 U.S. 104, 108 (1972). Gooding v. Wilson, 405 U.S. 518 (1972). Hazelwood Sch. Dist. v. K uhlmeier, 484 U.S. 260 (1988). Healy v. James, 408 U.S. 169 (1972). Hoffman Estates v. Flipside, Hoffman Esta tes, Inc., 455 U.S. 489, 499 (1982). LaTour v. Riverside Beaver Sch. Dist., No. 05-1076, 2005 WL 2106562 (W.D. Pa. Aug. 24, 2005). Layshock v. Hermitage Sch. Dist., 496 F. Supp. 2d 587, 598 (W.D. Pa. 2007). Mahaffey v. Aldrich, 236 F. Supp. 2d 779 (E.D. Mich. 2002). Morse v. Frederick, 551 U.S. 393 (2007). Porter v. Ascension Parish Sch. Bd., 393 F.3d 608, 613 (5th Cir. 2004). R.A.V. v. City of St. Paul, 505 U.S. 377 (1992). Rios v. Lane, 812 F.2d 1032, 1039 (7th Cir. 1987). Saxe v. State Coll. Area Sch. Dist., 240 F.3d 200, 217 (3d Cir. 2000). Simon & Schuster, Inc. v. Members of N. Y. State Crime Vict ims Bd., 502 U.S. 105 (1991). Shoemaker v. State, 38 S. W.3d 350, 351 (Ark. 2001). Smith v. Goguen, 415 U.S. 566, 573 (1974). Sypniewski v. Warren Hills Reg. Sc h. Dist., 307 F.3d 243, 260 (3d Cir. 2002). Tinker v. Des Moines Indep. Cmty Sch. Dist., 393 U.S. 503 (1968); Virginia v. Black, 538 U.S. 343 (2002). Watts v. United States, 394 U.S. 705, 707 (1969). Wisconsin v. Mitche ll, 508 U.S. 476 (1993).

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192 Books Ballentine's Legal Dictionary (3d ed. 2010).city. state. publisher. Blacks Law Dictionary (8th ed. 2004). Erwin Chemerinsky, Constitutional Law Principles and Politics 763, (1997) Charles C. Haynes, et al., The First Amendment in Schools (2003). Alexandria, VA.: Association for Supervision & Curriculum Development. Pember D. R. & Calvert, C. Mass Media Law (2009-2010 ed.). New York, NY: McGrawHill. Law review and journal articles A. Michael Froomkin, Building t he Bottom U p from the Top Down. 5 I/S: A Journal of Law and Policy for the Information Society, 141 (2009) Adam Milani, Harassing Speech in the Public Schools: The Validity of Schools Regulation of Fighting Words and t he Consequences If They Do Not 28 AKRON L. REV. 187 (1995). Ahzar Majeed, Defying the Constitution: The Rise, Persistence and Prevalence of Campus Speech Codes 7 GEO. L. J. & PUB. POLY, 481 (2009). Alan Brownstein, The Nonforum as a First Amendment Category: Bringing Order Out of the Chaos of Free Speech Cases Invo lving School-Sponsored Activities 42 U.C. Davis L. Rev. 717 (2009) Alexander G. Tuneski, Note, Online, Not on Grounds: Protecting Student Internet Speech 89 VA. L. REV. 139 (2003). Alexander Wohl, Oiling the Schoolhouse Gate: After Forty Years of Tinkering with Teachers First Amendment Right s, Time for a New Beginning 58 AM. U.L. REV. 1285 (2008). Andrew P. Stanner, Toward an Improved True Threat Doctrine for Student Speakers, 81 N.Y.U. L. REV. 385 (2006) Ashley Packard, Threats or theater: Does Planned Parenthood v. Americ an Coalition of Life Activist Signify that Test s for True Threats Need to Change? 5 COMM. L. & POLY 235 (2000).

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193 Brannon P. Denning & Molly C. Taylor, Morse v. Frederick and the Regulation of Student Cyberspeech 35 HAST. CONST. L. Q. 835 (2008). Bryan Starrett, Tinkers Facebook Profile: A New Test for Protecting Student Cyber Speech, Va. J. L. & TECH 212 (2009). Christopher E. Roberts, Is MySpace Their Space?: Protecting Student Cyberspeech in a PostMorse v. Frederick World 76 U. MO. KAN. CITY L. REV. 1177 (2008). Clay Calvert, Misuse and Abuse of Morse v. Frederick b y Lower Courts: Stretching the High Courts Ruling Too Far to Censor Student Expression 32 SEATTLE U. L. REV. 1 (2008). Clay Calvert, Off-Campus Speech, On-C ampus Punishment: Censorship of the Emerging Internet Underground B.U.J. SCI. & TECH. L. (2001). Clay Calvert, Punishing Public School Students fo r Bashing Principals, Teachers and Classmates in Cyberspace: The Speech Issue the Supreme Court Must Now Resolve 7 FIRST AMEND. L. REV. 210 (2009). Clay Calvert, Tinkers Midlife Crisis: Tattere d and Transgressed But Still Standing 58 AM. U.L. REV. 1167 (2009). Clay Calvert & Robert D. Richards, Free Speech and the Right to Offend: Old Wars, New Battles, Different Media 18 GA. ST. U. L. REV. 671 (2007). Darby Dickerson, Cyberbullies on Campus 37 U. TOL. L. REV. 785 (2009). David L. Hudson, Jr. & John E. Ferguson, Jr., A First Amendment Focus: The Courts Inconsistent Treatment of Bethel v. Fraser and the Curtailment of Student Rights 36 J. MARSHALL L. REV. 181 (2002). Douglas A. Laycock, Speech and the Public Schools A fter Morse v. Frederick: HighValue Speech and the Basic Educationa l Mission of a Public School: Some Preliminary Thoughts 12 LEWIS & CLARK L. REV. 111 (2008). Emily Gold Waldman, A Post-Morse Framework for Students Potentially Hurtful Speech (Religious and Otherwise) 37 J.L. & EDUC. 463 (2008) Emily K. Kerkhof, Note, Myspace, Yourspace, Ours pace: Student Cyberspeech, Bullying, and Their Impact on School Discipline 2009 U. ILL. L. REV. 947 (2009). Erwin Chemerinsky, How Will Morse v. Frederick Be Applied? 12 LEWIS & CLARK L. REV. 17 (2008).

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194 Frank LoMonte, Shrinking Tinker: Students are Per sons Under Our ConstitutionExcept When They Arent, 58 AM. U. L. REV. 1323 (2009). Jennifer Elrod, Expressive Activity, True Threats, and the First Amendment 36 CONN. L. REV. 541 (2004). Justin P. Markey, E nough Tinkering with Students Rights: The Need For An Enhanced First Amendment Standard to Protect Off-Campus Student Internet Speech 36 CAP. U. L. REV. 129 (2007). Kathleen M. Sullivan, Free Speech 35 PEPP. L. REV. 533 (2008). Kenneth R. Pike, Locating the Mislaid Gate: Revitalizing Tinker by Repairing Judicial Overgeneralizations of Technolog ically Enabled Student Speech 2008 BYU L. REV. 971 (2008). Kevin Turbert, Faceless Bullies: Legislative and Judicial Responses to Cyberbullying 33 SETON HALL LEGIS. J. 651 (2009). Lee Ann Rabe, Sticks and Stones: The First Amendment and Campus Speech Codes 37 J. MARSHALL L. REV. 205 (2003). Martha McCartney, Anti-Harassment Provisions Revisited: No Bright-Line Rule 2008 BYU Educ. & L. J. 225 (2008). Mary-Rose Papandrea, Student Speech Rights in the Digital Age 60 FLA. L. REV. 1027 (2008). Nadine Strossen, Keeping the Constitution Inside the Schoolhouse Gate Students' Rights Thirty Years After Tinker v. Des Moines Independent Community School District, 48 DRAKE L. REV. 445 (200x) Nadine Strossen, Students Rights and How They Are Wronged 32 U. RICH. L. REV. 437 (1998). Norman T. Deutsch, Professor Nimmer Meets Profe ssor Schauer (and Others): An Analysis of Definitional Balancing as a Methodology for Determ ining the Visible Boundaries of t he First Amendment, 39 AKRON L. REV. 483 (2006). Rita J. Verga, Policing Their Space: T he First Amendment Parameters of School Discipline of Student Cyberspeech, 23 SANTA CLARA COMPUTER & HIGH TECH. L.J. 727 (2007). Robert D. Richards & Clay Calvert, Columbine Fallout: The Long-term Effects on Free Expression Take Hold on Public School, 83 B.U.L. REV. 1089 (2003).

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195 Sandi S. Li, The Need for a New, Uniform Standard: The Continued Threat to Internet Related Student Speech, 26 LOY. L.A. ENT. L. REV. 65 (2005). Sarah Jameson, Note, Cyberharassment: Striking a Ba lance Between Free Speech and Privacy 17 COMMLAW CONSPECTUS 231 (2007). Shannon L. Doering, Tinkering with School Discipli ne in the Name of the First Amendment: Expelling a Teacher's Ability to Proactively Quell Disruptions Caused by Cyberbullies at the Schoolhouse 87 NEB. L. REV. 630 (2009). Shira Auerbach, Note, Screening Out Cyberbullying; Re medies for Victims On the Internet Playground, 30 CARDOZO L. REV. 1641 (2009). Stacy M. Chaffin, Note & Comment, The New Playground Bullie s of Cyberspace: Online Peer Sexual Harassment, 51 How. L.J. 773 (2008). Susan H. Kosse, Student Designed Home Web Pages: Does Title IX or the First Amendment Apply ?, 43 ARIZ. L. REV. 905 (2001). Tiffany Emrick, Note, When MySpace Crosses the School Gates: The Implications of Cyberspeech on Students Free-Speech Rights 40 U. TOL. L. REV. 785 (2009). Todd D. Erb, Comment, A Case for Strengthening School Dis trict Jurisdiction to Punish Off-Campus Incidents of Cyberbullying 40 ARIZ. ST. L.J. 257 (2009). Newspaper articles and other miscellaneous articles Andrew Meachum, Sexting-Relat ed Bullying Cited in Hillsborough Teens Suicide, ST. PETERSBURG TIMES (Fla.), Nov. 29, 2009, available a t http://www.tampabay.com/news/ humaninter est/article1054895.ece Anna Scott, Anti-Bully Bill Would Give Power to Schools ; Teachers Could Punish Students Who Criticize Classmates Via Cell Phones and Computers SARASOTA HERALD-TRIB., Apr. 28, 2006, at A1. Anna Scott, Sons suicide sends mom on qu est for anti-cyberbullying law SARASOTA HERALD-TRIB., Apr. 10, 2007 As bullies go online, sc hools start cracking down Capital (Annapolis, Md.), Dec. 24, 2007, at B5. Bills to Curb Cyberbullying Raise Free Speech Concerns, Student Pre ss L. Ctr., Feb. 4, 2008, http://www.splc.org/newsflash.asp?id=1679 Carmen Gentile, Student Fights Record of Cyberbullying N.Y. TIMES, Feb. 8, 2009, at A20.

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196 CBS/ Assoc. Press, Sexting Shockingly Common Among Young Teens CBSNEWS.COM, Jan. 15, 2009, http://www.cbsnews.com/stories/ 2009/01/15 /national/main4723161.shtml Christopher Maag, When the Bullies Turned Faceless, N. Y. Times, Dec. 16, 2007, at 9.Dave Forster, Bill Could Help Schools Punish Cyberbullying VA. PILOT (Norfolk), Feb. 2, 2009, at A6. Havi Wolfson, Cyberbullying Keeping Your Kids Safe Online EXAMINER.COM, July 15, 2009, available at http://www.examiner.com/x-1290 4-L A-Online-RelationshipsExaminer~y2009m7d1-Cyberbullying--Keeping-your-Kids-Safe-Online James Brooke, Terror in Littleton: The Overview; 2 Students in Colorado School Said to Gun Down as Many as 23 and Kill Themselves in a Siege N.Y.TIMES, Apr. 21, 2009, at A1. Joel Currier, Teens Turmoil Started Online, ST. LOUIS POST-DISPATCH (Mo.), Nov. 23, 2007, at C1. Janet Kornblum, Cyberbullying grows bigger and meaner with photos, videos, USATODAY.COM, available at http://www.usatoday.com/tech/w ebguide/internetlife/2008-07-14cyberbullying_N.htm JuJu Chang, Moms Campaign for Florida Anti -bullying Law Finally Pays Off, ABCNEWS.COM, May 2, 2008, available at http://abcnews.go.com/GM A/story?id=4774894&page=1. Kara Carnley Murrhee Cyberbullying: Hot Air or Harmful Speech? UF LAW MAGAZINE, Winter 2010 edition, available at http://www.law.ufl.edu/uflaw/10winter /features/hot-air-or-harmful-speech Larry Margasak, House Members Seek Ways to Stop Internet Bullying ASSOC. PRESS ONLINE, Sept. 30, 2009. Libby Quaid, Sexting is More Common Than You Might Think ASSOC. PRESS, Dec. 3, 2009, available at http://www.google.com/hostednews/ap/ar ticle/ALeqM 5hhA1Vr16pxdtOhXtNn8n8 yDR75ewD9CC2TSG0 .Manon L. Miribelli, School Counselors Alert to Cyberbullying REPUBLICAN (Mass.), Feb. 4, 2009, at MWP9. Linda, T. Sanchez, The New Bullying Technology ST. LOUIS POST-DISPATCH (Mo.), Apr. 5, 2009, at A17. Marc Freeman, Palm Beach Schools on the Lookout for Cyberbully Attacks S. FLA. SUN-SENTINEL, Jan. 23, 2009.

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197 Melanie Ciarrone, Broad Talks Cyberbullying on Hill WASH. EXAMINER, Oct. 13, 2009, available at http://www.washingtonexaminer.com/local/Broad-colat ion-talkscyberbullying-on-Hil l-8381360-64160742.html. Michaela Saunders, Schools Face Off With Cyberbullies OMAHA WORLD-HERALD (Neb.), Apr. 27, 2008, at 1B. Mike Celizic, Her Teen Committed Suicide Over Sexting MSNBC.COM, Mar. 6, 2009, http://www.msnbc.msn.com/id/29546030. Nation in B rief WASH. POST, Aug. 25, 2005, at A20. Paula Reed Ward, Free Speech Meets Internet, Schools Perceive Threat to Authority PITT. POST-GAZETTE (Pa.), Feb. 5, 2006. Rita Farlow, Bullies Be Gone ST. PETERSBURG TIMES (Fla.), Oct. 31, 2007, at 7. Sean Rose, Federal Cyber Bully Bill Gets New Life But Opponents to Measure Named for Megan Meier Cite First Amendment Concerns ST. LOUIS POST-DISPATCH (Mo.), May 5, 2009, at A1. Tom Kenworthy, Up to 25 Die in Colorado School Shooting ; Two Student Gunman Are Found Dead WASH. POST, Apr. 21, 2009, at A1. Victoria Kim, For Students, A Right To Be Mean Online ?, L.A. TIMES, Dec. 13, 2009, available a t http://articles.latimes.com/2009/dec/13/local/la-me-youtubeschools13-2009dec 13 Victoria Kim, Suit Blends Internet, Free Speech, Schoo l, L.A. Times, Aug. 3, 2008, at Metro 1, available at http://articles.latimes.com/2008/aug/03/local/me-youtube3 Internet Sources Allen Green, So What is Good Policy-Making? http://jackofkent.blogspot.com/201 0/01/what-is-good-policy-making.html Amanda Lenhart, Teens and Mobile Phones Over the P ast Five Years: Pew Internet Looks Back, Pew Internet & Am. Life Project 1 (2009). Amanda Lenhart, Teens and Social Media, Pew Internet & Am. Life Project 2 (2007) Bullypolice.org, How Stat es are Graded on Their Anti-Bullying Laws, http://www.bullypol ice.org/grade.html

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198 David L. Hudson, Jz., Cyberspeech, First Amendment Center, http://www.firstamendmentcenter.org/s peech/studentexpression /topic.aspx?t opic =cyberspeech David L. Hudson, Court Strikes One Provisions of School Racial Harassment Policy The First Amendment and the M edia, Media Institute, http://www.mediainstitute.org/ONLINE/FAM2003/6-g.html Enhanc ing Child Safety & Online Technologi es, Executive Summary, Berkman Center for Internet & Society at Harv ard University, available at http://cyber.law.harvard.edu/sites/cyber .law.harvard.edu/files/ISTTF _Final_Repor t-Executive_Summary.pdf Exploring Constitutional Conflicts, www.law.umkc.edu/faculty/projects/f trials/conlaw/overb readth.html First Amendment Schools, Frequently Asked Questions, http://www.firstamendmentschoool.o rg/freedoms/faqs.aspx?id=12994 Freedomforum.org, Censorship of Student Internet Speech, http://www.freedomforum.org/packages/firs t/censorshipinternetspeech/part3.htm FreedomForum.org, What is the Fighting Words Doctrine?, http://www.freedomforum.org/temp lates/document.asp?documentID=13718 Florida Bullying Police, http://www.bullypolice.org/grade.html. Florida District Courts, http://www.flcourts.org/courts/dca/dca.shtml Florida Department of Education, Florida Public Schools/Districts, http://www.fldoe.org/schools/sch oolmap/flas h/schoolmap_text.asp Florida Legislature Office of Economic and Demographic Research, Florida Population Estimates for Counties and Municipa lities, Apr. 2009, available at http://edr.state.fl.us/popul ation/populat ion_1april09.pdf National Conference of Stat e Legislatures, Cyberbullying: State Legislation, http://www.ncsl.org/default.aspx?tabid=12903 National Conference of St ate Legislators, School Bully ing: Overview http://www.ncsl.org/default.aspx?tabid=12952 Rachel Seeman Collins, How a Facial Challenge Could Pl ay Out in Animal-Cruelty Case, First Amendment Center, July 28, 2009, http://www.firstamendmentcent er.org/analysis.aspx?id21886

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199 Sex & Tech: Results from a Survey of Teens and Young Adults, Natl Campaign to Prevent Teen and Unpl anned Pregnancy (2008) available at http://www.thenationalcampaign.org/SEXTECH/PDF/SexT ech_Summary.pdf Sunshine Review, Florida School Districts, http://sunshinereview.org/ index.php/Florida_counties Urbandictionary.com, Sexting, http://www.urbandictionary.co m/define.php?t erm=sexting

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200 BIOGRAPHICAL SKETCH Upon graduation from her Master of Arts in Mass Communication program, K ara Carnley Murrhee will be attending the University of Florida, pursuing a joint juris doctor /doctoral degree in mass communication law. She began her Master of Arts in Mass Communication degree at the University of Florida in 2007. While working on her masters degree, Murrhee maintained her prof essional experiences through teaching as an assistant in the College of Journalism and interning in the Levin College of Law communications office. She also pursued publication of her research, earning the award of First Place Student Paper at the 2010 Southeast Colloqu ium. Murrhee was accepted into the joint J. D./Ph.D. program in m edia law at UF in 2010. Before coming to UF, Murrhee attended the University of Central Florida as an undergraduate, earning her bachelors degree in mass communication in 2006. While in Orlando, she pursued several professi onal opportunities, working for various communications and public relations organizati on in downtown Orlando. She grew up in Tampa, Fla.