New Bullying & Cyber-Bullying Legislation in Illinois

Two new pieces of legislation were passed in Illinois this summer that are expanding the responsibilities of school districts as they relate to bullying inside and outside of the education setting.

House Bill 5707 was signed into law on June 26, 2014.  Public Act 98-669 requires that a district bullying policy include specific criteria outlined in the legislation, notably "amping up" the investigation process.  This Act went into effect immediately.  Then, on August 1, 2014, Senate Bill 4207 became Public Act 98-801 when Governor Quinn signed it into law. This Act amends the bullying prevention section of the School Code by prohibiting cyber-bullying outside of the school and adding important requirements for districts to update bullying policies and take action against such conduct. The new cyber-bullying law takes effect January 1, 2015.

It is important that district administrators know these policies and further the implementation of these policies.  Some of the most notable provisions that P.A. 98-669 require:

• Includes procedures for promptly reporting bullying, including identifying and providing the school e-mail address (if applicable) and phone number for the staff person or persons responsible for receiving such reports and a procedure for anonymous reporting.

• Contains procedures for promptly investigating and addressing reports of bullying, including the following:

• making all reasonable efforts to complete the investigation within 10 school days after the date of the report was received and taking into consideration additional relevant information received during the course of the investigation about the reported incident;

• involving appropriate school support personnel and other staff with knowledge, experience, and training on bullying prevention, as deemed appropriate, in the investigation process; notifying the principal or school administrator or his or her designee of the report of the incident as soon as possible after the report is received;

• consistent with federal and State laws and student privacy rules, providing parents and guardians of the students who are parties to the investigation information about the investigation and an opportunity to meet with the principal or school administrator or his or her designee to discuss the investigation, the findings of the investigation, and the actions taken to address the reported incident of bullying.

• Includes the interventions that can be taken to address bullying, including but not limited to, school social work services, restorative measures, social-emotional skill building, counseling, school psychological services, and community-based services.

• Contains a policy evaluation process to assess the outcomes and effectiveness of the policy that includes, but is not limited to, factors such as the frequency of victimization; student, staff and family observations of safety at school; identification of areas of a school where bullying occurs; the types of bullying utilized; and bystander intervention or participation. The school district, charter, or non-public school may use relevant data and information it already collects for other purposes in the policy evaluation. The information developed as a result of the policy evaluation must be made available on the website of school district, charter school, or non-public school. 

What new cyber-bullying activity is prohibited?

Prior to the second piece of legislation, P.A. 98-801, the School Code already prohibited cyber-bullying when done on school property, school vehicles, or at school-sanctioned events, or done from a school computer, school computer network, or other similar electronic school equipment. This Act makes the extension to prohibit such conduct outside of school and from non-school technology, so long as the conduct "causes a substantial disruption to the educational process or orderly operation of a school."

The Act's additions encompass all electronic or technological communications, including writing, video, and audio on the internet. The definitions of bullying already included in the law are now extended to include electronic, out-of-school activity. "Bullying" and "cyber-bullying" include placing a student in reasonable fear of harm to person or property, causing a substantially detrimental effect on a student's physical or mental health, substantially interfering with a student's academic performance, or substantially interfering with a student's ability to participate or benefit from any of the school's services or activities. The Act makes it clear that any electronic, out-of-school activity that has these effects is prohibited if it causes a substantial disruption to the school environment.

Furthermore, the conduct need not be made directly to the affected student to constitute bullying. Posting any material on the internet that may be accessed by others and cause the above effects constitutes bullying. Thus, a public discussion between two students about a third student not involved in the discussion could be cyber-bullying. The Act also explicitly prohibits a specific form of cyber-bullying that has been prevalent throughout the country - the creation of a webpage (including a social media account) that imitates or assumes the identity of another student and causes the effects described above. It has been a popular form of bullying for a student to create a fake account on Facebook, Twitter, etc. that pretends to be another student for the purpose of embarrassment.

In summary, the new Act extends the existing prohibition of bullying to out-of-school technological and electronic communications when the out-of-school communications cause a substantial disruption to the education or discipline of the school.

The Legal Landscape

The new law attempts to dodge many of the recent cases in federal courts around the country that have limited the ability of school districts to punish electronic communications that occurred outside of schools. The courts have expressed significant concern that punishment of such activity infringes the free speech rights of students if there is not a sufficient connection between the activity and the school. This area of the law is rapidly changing and courts throughout the country are reaching different conclusions. The important point on which courts agree is that the out-of-school activity cannot be punished unless it is reasonably foreseeable that the activity will materially and substantially disrupt the work and discipline of the school. See S.J.W. ex rel. Wilson v. Lee's Summit R-7 Sch. Dist., 696 F.3d 771, 776-777 (8th Cir. 2012) (citing Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 513 (1969)); see also Kowalski v. Berkeley Cnty Sch., 652 F.3d 565, 567 (4th Cir. 2011). Consequently, the Act limits the prohibition on cyber-bullying to acts that "cause a substantial disruption to the education process or orderly operation of a school."

New Requirements for Schools

As a result of the unsettled nature of this area of law, the Act requires each school district in its implementing policy to include a "process to investigate whether a reported act of bullying is within the permissible scope of the district's or school's jurisdiction," and "information regarding services that are available within the district and community, such as counseling, support services, and other programs."  Whether an out-of-school act is within the scope of the school's jurisdiction, as the law currently stands, should be determined by the act's foreseeable or actual disruption to the school environment.

Though the new law increases the requirements of schools in the prevention of bullying, school administrators and teachers are not required to monitor or staff any non-school activity. There is no affirmative duty for schools to seek out or detect out-of-school cyber-bullying. Schools need only act when a teacher or administrator receives a report that cyber-bullying has occurred.

Immunity

While these additions to the bullying prevention section of the School Code create important new requirements for schools and broaden the scope of conduct that can be punished, districts need not fear liability for failures to prevent bullying so long as the Code's requirements are met. Recently inMalinski v. Grayslake Cmty. High Sch. Dist. 127, 2014 IL App. (2d) 130685 (Aug. 22, 2014), the court reaffirmed the broad immunity granted to schools in addressing bullying through the Tort Immunity Act and the courts' interpretation of its applicable sections (745 ILCS 10/2-201 and 2-109).

Every instance of bullying is different and each student involved is unique, so the courts through the Tort Immunity Act recognize that significant discretion is given to the employees most familiar with these students. "[T]he way that a principal handles an instance of bullying in his school falls within the definition [of a discretionary act]; any student who has been sent to the principal's office could attest that he has broad discretion in how to handle such situations." Id. (quoting Albers v. Breen, 346 Ill.App.3d 799, 808 (2004)). So long as the district's policy allows some discretion in preventing or remedying bullying, the district and employees will generally be immune from liability for injuries that may result from bullying.

Bullying is a complex problem with a myriad of potential solutions and schools are in a much better position than the courts to determine when bullying occurs and which solutions are best suited to the particular circumstances.