Judith Altschuler Cahn, EdM, is the Maneli Doctoral Fellow at Yeshiva University Azrieli Graduate School. She has over 25 years experience in educational media and technology in both the corporate world and in Jewish schools.

Rona Milch Novick, PhD, is a Senior Fellow of the Yeshiva University Institute for University-School Partnership, Director of the Fanya Gottesfeld Heller Doctoral Program at the Azrieli Graduate School, and Associate Professorof Clinical Psychology at the Albert Einstein College of Medicine. She is currently engaged in anextensive bully prevention and social responsibility program with numerous day schools across North America.

In this article, the authors present research, legal perspective and suggestions for navigating the complex arena of social networking, which is impacting on a variety of social issues in schools.

Teaching in the digital age can be both exciting and exasperating. School administrators, teachers, and parents, essentially cyber-immigrants, must navigate a world where they are less technologically literate than the students they teach and supervise. Providing careful, competent supervision is challenged by the sheer breadth of the issue. Not only is computer access pervasive, parents and educators are now struggling with students’ cell phone access to the Internet as well. Virtually all teens ages 12-17 are online (over 90%), with more than a quarter accessing the Internet through cell phones (27%) (Lenhart, 2010). Text messaging has become the communication vehicle of choice for teens, with an average of 123 texts per day for high school students (Lenhart, 2010).

As schools adjust to new cyber-realities, they are forced to expand policies and codes of behavior for students, families and faculty to clarify acceptable virtual conduct. Schools are making this adjustment as legislation mandates that they address the blurring boundaries between school and the virtual world. Legislation may serve as the impetus to develop school policies, but an essential feature of good pedagogical practice includes developing, teaching and enforcing clearly defined expectations. School-wide Positive Behavior Interventions and Support (PBIS) has documented that significant academic and behavioral outcomes can be achieved when systems for establishing, disseminating and applying expectations are put in place (Flannery, Sugai, & Anderson, 2009; Bradshaw, Mitchell, & Leaf, 2010). The success of PBIS has earned it the distinction of being the only approach to address behavior that is specifically mentioned in the Individuals with Disabilities Education Act (IDEA). Just as PBIS has created schools with defined and enacted social manners and expected behaviors, establishing, disseminating and teaching clear cyber-expectations should allow educators to teach and reinforce online “manners,” moral conduct in the cyber-world, and technologically safe, kind and smart behavior.

This article will review selected legal issues educators must consider, most notably, privacy and freedom of speech, as they apply the complementary approaches of policy and pedagogy to help students and faculty navigate technological challenges. Action items for both policy development and pedagogical intervention are offered. Since the field of technology is both complex and evolving, and schools have unique needs, the action items offer questions and suggestions, rather than rigid protocols.

Legal issues, technology, and schools

Although technological advances have brought issues of schools’ legal responsibility and liability to the forefront, there is a substantial history of legislative and case law impacting education and schools. Education is not mentioned in the United States Constitution. The 24 Amendments to the Constitution do impact education and school policy, with the First Amendment (freedom of religion, speech and association), Fourth Amendment (search and seizure), and the 14th Amendment (equal protection and due process) as the three most applicable. The 10th Amendment: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively,” gives individual states the power to establish and regulate an educational system. As a result, the federal government may roll out mandates and initiatives (i.e. IDEA, No Child Left Behind), but actually enforcing, implementing and funding educational reforms and programs remain largely the responsibility of the individual states.

The fundamental values of order and liberty that undergird government policy and legislation are clearly stated in the preamble to the Constitution. However, security and safety for citizens and basic freedoms and liberty, at times, are in direct conflict. The tension in balancing security and liberty enters the schoolhouse and challenges schools to balance the conflicting rights of privacy and freedom of speech. As the Internet proliferates, providing unfettered freedoms, digitally connecting school and home, and virtually infinitely extending the school day, resolving these conflicting legal principles becomes increasingly complex.

Cyberbulling: a rapidly evolving legal paradigm

Partly in response to this complexityand perhaps in response to post-Columbine school safety concerns, anti-bullying laws have been enacted or expanded to include on-line behavior. In large part, however, it is in response to criminal and civil cases that laws evolve. Recent high-profile bullying cases with schools as defendants have established legal precedents regarding school liability. An August, 2010 Lawyers Weekly article cited the rise in civil suits targeting school districts for allowing peer-on-peer abuse including:

• A case in the state court in New York brought by a mother who alleged that the Trumansburg Central School District failed to protect her son, a special needs elementary school student, from bullying that took place on a school bus.
• A $10 million wrongful death claim filed in state court in Virginia by the mother of a high school freshman who committed suicide on May 31. The suit claims that school officials ignored repeated bullying by another student and failed to protect the victim.
• A $10 million suit filed in state court in Maryland by a grandmother who alleged that Baltimore school officials ignored her grandson’s complaints about bullying until, so distraught, the boy tried to hang himself at school.

The above cases underscore the painful, inescapable nature of bullying for victims. Online cyber-bullying activities which expand victimization beyond the school building and school day only deepen victims’ sense of hopelessness. It is, therefore, not surprising that school administrators are now required to “respond to the situations when they are at the harmful speech level, otherwise there is a risk that they will eventually have to respond at the ‘school failure,’ ‘school violence,’ or ‘student suicide’ level” (Willard, 2010).

States have expanded existing anti-bullying laws to include electronic harassment, recognizing that “harmful speech” and other malicious acts need not occur in person. As of July 2010, 40 states in the United States have passed anti-bullying laws, with 30 including electronic harassment and five specifying “cyber-bullying” (Hinduja & Patchin, 2010). School safety policies, the logical “location” for anti-bullying and anti-cyber-bullying policies, are required in 42 states. In Massachusetts, the law specifically requires that each school district, approved private day or residential school, commonwealth charter school and non-public school shall provide to all school staff annual written notice of the bullying prevention and intervention plan. Also, bullying shall include cyber-bullying:

“Bullying shall be prohibited: (i) on school grounds, property immediately adjacent to school grounds, at a school-sponsored or school-related activity, function or program whether on or off school grounds, at a school bus stop, on a school bus or other vehicle owned, leased or used by a school district or school, or through the use of technology or an electronic device owned, leased or used by a school district or school and (ii) at a location, activity, function or program that is not school-related, or through the use of technology or an electronic device that is not owned, leased or used by a school district or school, if the bullying creates a hostile environment at school for the victim, infringes on the rights of the victim at school or materially and substantially disrupts the education process or the orderly operation of a school.” (Massachusetts Act Relative to Bullying in Schools, 2010)

Furthermore, faculty and staff at each school shall be trained annually on the bullying prevention and intervention plan applicable to the school, and relevant sections of the bullying prevention and intervention plan shall be included in a district or school employee handbook – with clear definitions of what cyber-bullying is and how severe it can be on schools (Massachusetts Act Relative to Bullying in Schools, 2010).

What legal precedent would suggest that schools are, in fact, both able and compelled to address “non-school” activities such as cyber-bullying? The legal standard courts apply derives from a 1969 Supreme Court case Tinker v. Des Moines which held that “material and substantial disruption of school activities or invasion of the rights of other students” must be proved if student expression is to be controlled. This was the Court’s attempt to balance students’ constitutional right to free speech with school interests in ensuring student safety. In line with the Tinker decision and the Massachusetts legislation, Ohio has proposed a law which “requires a board of education to adopt a policy that prohibits bullying by electronic means, to require a school district’s harassment policy to address acts that occur off school property but materially disrupt the educational environment of the school…” (Hinduja & Patchin, 2010).

As a result of laws passed, and cases tried, schools are not immune from legal liability for students’ bullying actions in or out of school, since it is seen as a disruption of school activities and harmful to other students. Court cases establishing school intervention in cyber-bullying as a legal obligation provide school administrators considerably more freedom to address those individuals who harass their fellow students (Willard 2007, Hinduja & Patchin, 2010).

Additional court rulings that further define “disruption of school activities,” while not relating to cyber-bullying, impact technology in schools. Bethel v. Fraser (1986), clarified that schools need not tolerate speech that is profane or runs counter to the educational mission of the school or district; and Hazelwood v. Kuhlmeier (1988) added that school districts can control speech that could reasonably be interpreted as school sponsored. In the past, this has referred to school newspapers, but was expanded to include electronic media. Therefore, schools are liable for material that appears on school sponsored web pages and adequate control and supervision of content is required.

Legal mandates and Jewish schools

Religious and private schools have fewer legal obligations than public schools which are taxpayer supported and bound to uphold the U.S. Constitution. Nevertheless, private schools often voluntarily comply with State education laws, even when exempt from government mandates. The prevailing law that has application to private schools is contract law: the school agrees to educate the child and the parents agree to pay tuition and follow the rules of the school as stipulated in documentation and handbooks from the school. Written policies are not only sound practice for schools – to record and disseminate expectations and codes of conduct – they also become legal documents which could be examined in court should an incident such as student cyber-bullying escalate. How policies are communicated to the school community and the procedures established for reporting and addressing policy infractions would also be examined and used as evidence.

Making the “contract” explicit with written handbooks and policy statements can ease difficult situations and protect schools from legal quagmires. If, for example, a school handbook documents that school personnel will review student Internet activity on any digital device at school as routine maintenance and monitoring, then students and parents recognize that they have limited expectations of privacy and no right to claim otherwise.

Developing policy

Policy statements and codes of conduct, while rarely sufficient when used in isolation, can be an important and effective tool in addressing issues related to technology. Before reviewing some critical issues and questions schools need to address when developing school technology policies, the culture that surrounds school policies must be considered.

School policies are embedded in a complex ecological system. The one-page code of conduct circulated in a warm, welcoming school will be interpreted, received and enforced very differently than that same page of expectations in a school with cold, harsh, autocratic discipline. Substantial research has explored the impact of school climate and culture on school safety and discipline (Swearer, Espelage, Vaillancourt, & Hymel, 2010; Espelage, D. & Swearer, S., 2003). In an intriguing study of Israeli schools, Astor, Benbenishty and Estrada (2009) carefully explored settings that were significantly less violent than would be expected given community levels of violence. They discovered that principals’ leadership was critical in creating environments that “demonstrate outward oriented ideologies, a school wide awareness of violence, consistent procedures, integrated use of cultural and religious symbols, visual manifestations of student care, and the beautification of school grounds.” Clearly, effective procedures and policies were accompanied by caring and warmth.

Developing policy may be more straightforward than policy implementation and enforcement. Documenting the limits of making policies, an analysis of anti-bullying policies in 142 British schools found serious deficiencies. Most policies included improving school climate, a definition of the various forms of bullying, and contacting parents as a consequence, but did not identify adult responsibilities for intervening, procedures to follow up on incidents, methods of record-keeping, or specific preventative measures (Smith, Smith, Osborn & Samara, 2008).

Jewish schools are challenged to develop technology policies that are specific, inclusive, and well-documented. If such policies are to be effective, however, schools also need to train all members of the school community to ensure that responsibilities for adult intervention are clear as are channels for follow-up and evaluation.

Developing pedagogical strategies

What can educators do to both prevent and respond to technology used maliciously or inappropriately? With some adjustments, paradigms and interventions that have proven successful may be adapted to address new technological realities.

From the days of the first schools, educators have taught manners, social skills, and proper communication. The technology explosion creates opportunities for teachers to support development of students’ virtual communication skills, cyber-manners, and digital social skills.

Educators, effective teachers of social relationship skills, can translate this to the digital arena. At times, this translation may be made challenging by the clear differences between the real and virtual world. Online social activities lack the readable social cues that exist in traditional socialization, making it difficult for students to assess the on-line reactions of others. Educators can help students realize that, blinded by the lack of cues in the digital environment, students may both misunderstand and be misunderstood by others. Role-plays and on-going discussions may help students avoid making cyber social errors they would avoid in person.

Technology opens the door to new means of communication and connection, with potential for both growth and danger. Although fluent in cyber-speak, students will likely need lessons in cyber “grammar,” including appropriate tone and appearance of messages. Bold upper case letters, for example, are usually interpreted as shouting, and smiley faces have no place in formal documents. Technological communication is potentially immediate and constant, and reasonable “wait times” before expecting responses may need to be directly discussed. If a student sends 50 texts to the same person, especially if the messages are inappropriate, it can be considered a form of harassment. Furthermore, the recipient can easily identify the sender.

Safety is a major concern in educating students about technology. The virtual world is a wonderful resource for enhancing existing relationships, but may be an un-safe place to meet new people (Lenhart & Madden, 2007). Students may believe they are speaking with 16 year old Jason, when, in fact, their Internet “friend” is a 50 year old predator. Experiential lessons that demonstrate the ease of on-line deception may be necessary to drive home the point to students who feel they understand technology better than adults. Educators can instruct students in one room to communicate on-line with students in a different classroom. Without warning students in the second room, the teacher can assume a student’s identity and enter the online conversation. Subsequent class discussion can underscore that you can never really know who people are when you interact on-line, as well as the potential risks of assuming another’s identity.

As important as how technology is used to communicate, and with whom one communicates, is what is included in technological communication. Content that might be acceptable between friends can become devastating when shared with others. Viral spread of information, photos and media can reach thousands quickly, and everything placed online can be tracked, stored and follow students to future college entrance or job interviews. Discussions with students and parents about these issues are critical and will likely be necessary from students’ earliest on-line involvement through their high school years.

Throughout their academic career, students are placed in situations where it is a challenge to do the right thing. As difficult as it is to be moral and rule-abiding in person, it may be even more challenging to do the right thing online, as demonstrated in a recent report by the technology security company, McAfee, entitled The Secret Online Lives of Teens (McAfee, Inc., 2010). This is partly because of the false sense of anonymity, as well as the belief that words and actions in the cyber world will not have serious consequences. Individuals behave differently when they feel their identity is unknown (Aronson, 2008). Not surprisingly, research on behavior on the Internet, which offers a degree of anonymity, has documented its disinhibiting nature (Suler, 2004; Schouten, Valkenburg, & Peter, 2007). Adolescents test the limits in traditional social relationships, and may push beyond acceptable behavior even more so in seemingly anonymous virtual environments. Many students who would never consider or tolerate bullying, assault, identity theft, harassment, character defamation, destruction of property or theft in person, may engage in such actions online. Educators need to challenge adolescents to confront their seeming double standard if they are to help them be the good persons online that they are when they are off line. Simply stating that altering someone’s cyber-image, profile information, photos or words, is like an assault on a person or property is less likely to change behavior than well designed pedagogic lessons that engage higher order thinking. Mock trials or current event discussions can be used to emphasize that sensitive information can become public when shared, and that passwords and log-ins are personal property, and using them without authorization is tantamount to fraud.

Issues of safety and harassment are not limited to students. Cases of defamation of educators challenge schools to both educate students regarding appropriate Internet usage and to respond to such inappropriate and damaging behavior (Broster & Brien, 2010).

An additional issue in abuse of technology is plagiarism. Immediate access to information online and the large amount of on-line material that appears unauthored and in the public domain can entice students to misrepresent materials as their own work. Plagiarism is by no means a new temptation for students or a novel challenge for educators. However, educators will need to be explicit in definitions of plagiarism to include all its cyber-iterations and take responsibility to investigate whether students’ work has inappropriate cyber-origins. Pedagogic lessons and discussion that help students view plagiarism as a form of theft or fraud will be critical. Many resources and information about plagiarism exist online, including lesson plans on how to teach students to avoid inappropriate usage, as well as sites that check documents for academic integrity (such as turnitin.com and plagiarism.org).

All the above pedagogical interventions, like any good educational approach, require on-going efforts, coordinated across developmental stages. Starting technological education with younger students is critical, not only to protect them, but because many lessons will be too late if they are first offered to teens who see themselves as technologically savvy. Adolescents, in particular, are known for their sense of personal invulnerability. Without significant and on-going educational intervention, students may not recognize that anything they place on-line can be altered or misunderstood and can permanently sully the “good name” they should strive to actualize. Students may require repeated lessons and activities to accept that their virtual misdeeds may leave an indelible mark, are liable to be discovered, and can have dangerous personal and legal consequences for others and for themselves.

Action points and critical questions

The action points below are by no means exhaustive, but will hopefully serve as a basis for reflection, discussion and action. Following each action point, there are critical questions for educators to consider along with some suggestions.

Policy

• Create a computer use policy – engage all stakeholders, students, parents, and teachers in crafting the policy
  • Will this policy be signed as a legal agreement? Consultation with the school attorney may be helpful.
  • How will the policy be disseminated? Have students, parents, and educators been provided with the skills, knowledge and tools they require to follow the policy?
  • Technology is a broad area. Schools may consider focusing on a very specific area, to start. For example, creating a cell phone usage policy.
• Establish privacy and technology monitoring parameters.
  • Will school administrators occasionally check student’s on-line activity? Informing students and parents in advance is advisable, even though there may be initial pushback.
  • How will principal and administrators be cc:’d on any email communication between teachers and parents? Will this overwhelm busy administrators or limit the openness that allows home-school partnerships to flourish?
• Address virtual relationships
  • Should students be forbidden to “friend” teachers and vice versa? Consider how such a policy will be addressed, and that on-going professional development may be required.
  • Are teachers and students prohibited from communicating via personal e-mail, social networking or text messaging as opposed to communications through a school management system?
  • Does the school’s Code of Conduct specify the social behavior expected of students in person and in the cyber world? Does it specify that these expectations are not limited to behavior during school hours? Schools may want to provide reminders of these expectations at high risk times such as prior to vacations and social events.
• Determine school responses to technological misconduct
  • What mechanisms are in place for reporting and recording incidents?
  • Who will have responsibility for policy enforcement? Schools may elect a team approach, including disciplinary, educational, and counseling professionals.
  • What follow-up will be required, and who will track students and incidents?

Pedagogy

• Create engaging and safe environments
  • Are there ample opportunities for students to discuss bullying and cyber-bullying, using video prompts, news stories, popular music and other vehicles to stimulate rich discussion? Schools should be prepared to use teachable moments provided by school or local incidents and those in the media in addition to planned lessons and programs.
  • Are there mechanisms for students to contribute to policies and programs to address technological issues? Eliciting voices beyond those on Student Council or those who regularly participate in other school activities may be challenging, but can yield significant dividends, as broader involvement can support greater buy-in.
  • Is there a “safe site” where students can report cyber-bullying and discuss it online anonymously? This is a particularly thorny issue, since anonymous reporting can provide schools with information of questionable accuracy or validity.
  • Is the school equally intolerant of face-to-face and virtual violent behavior? Schools can utilize policies and programs to encourage pro-social behavior both in school and out, in-person and on-line.
• Educate multiple constituencies
  • Is the parent body knowledgeable about students’ use of the Internet, texting, and other technologies? Schools may circumvent parents’ discomfort regarding intrusiveness with the model of kosher supervision. A kosher restaurant owner must provide the key to the mashgiah (kosher supervisor) so that he may enter at any time to determine if all religious standards are being met. In Jewish homes, parents should have open access to allow thorough supervision of what their children are doing online.
  • Would you utilize student technological expertise by having students lead workshops for parents who feel “technologically handicapped”?
  • What professional development does faculty need to successfully address students’ use and misuse of technology? Faculty surveys and polls can help assure that any information provided is, in fact, what is needed.
• Be comprehensive and consistent
  • Are preventative and intervention educational activities scheduled throughout the year, and across grades?

Conclusions

As we celebrate the wondrous potential of technology, research is beginning to reveal the devastating impacts of cyber-bullying and digital harassment (Hinduja & Patchin, 2009) as well as other dangers technology brings (FBI A Parent’s Guide to Internet Safety 2010). In Jewish schools, students are taught Jewish values and yirat shamayim. They learn the importance of speech and negative consequences of lashon hara from a young age, and are taught to see every other student as betzelem Elokim. Expanding these time honored Torah values into modern situations with technological twists can only enrich the educational process. Approaching the task from a purely disciplinary, policy stance, most likely will be ineffective. Similarly, rich and engaging lessons, without clear policy and follow-through will quickly lose their impact. Jewish day schools, in combining technology policy and pedagogy with Torah traditions, can create school environments that nurture student wisdom and caring to span both the real and virtual worlds.

References

A parent’s guide for Internet safety. (2010). U.S. Department of Justice Federal Bureau of Investigation-Publications. Retrieved from www.fbi.gov/publications/pguide/parentsguide.pdf

Astor, R., Benbenishty, R., & Estrada, J. (2009). School violence and theoretically atypical schools: The principal’s centrality in orchestrating safe schools. American Educational Research Journal, 46(2), 423-461.

Aronson, E. (2008). The social animal. New York: Worth Publishers.

Bradshaw, C., Mitchell, M., & Leaf, P. (2010). Examining the effects of schoolwide positive behavioral interventions and supports on student outcomes: Results from a randomized controlled effectiveness trial in elementary schools. Journal of Positive Behavior Interventions, 12(3), 133.

Cassidy, W., Jackson, M. and Brown, K. N. (2009). Sticks and stones can break my bones, but how can pixels hurt me?: Students’ experiences with cyber-bullying. School Psychology International, 30, 383.

Espelage, D. & Swearer, S. (2003). Research on school bullying and victimization: What have we learned and where do we go from here? School Psychology Review, 32(3), 365-383.

Flannery, K., Sugai, G., & Anderson, C. (2009). School-wide positive behavior support in high school: Early lessons learned. Journal of Positive Behavior Interventions, 11(3), 177-185.

Gregory, A., Cornell, D., Fan, X, Sheras, P., Shih, T., Huang, F. (2010). Authoritative school discipline: High school practices associated with lower bullying and victimization. Journal of Educational Psychology, (102), 483.

Hinduja, S. & Patchin, J. (2010). State cyber-bullying laws: A brief review of cyber-bullying laws and policies across America. Retrieved from http://tinyurl.com/39y7ual

Hinduja, S. & Patchin, J. (2008). Cyber-bullying: An exploratory analysis of factors related to offending and victimization. Deviant Behavior, 29 (2), 1-29

Hinduja, S. & Patchin, J. W. (2009). Bullying Beyond the Schoolyard: Preventing and responding to cyber-bullying. Thousand Oaks, CA: Sage Publications.

Lenhart, A. (2010). PEW Internet and American Life Project. Retrieved from http://tinyurl.com/3xrf3dk

Lenhart, A. and Madden, M. (2007). PEW Internet and American Life Project. Teens, Privacy & Online Social Networks: How teens manage their online identities and personal information in the age of MySpace. Retrieved from http://tinyurl.com/2ujhr6c

McAfee, Inc. (2010). The secret online lives of teens. Retrieved from us.mcafee.com/en-us/local/docs/lives_of_teens.pdf

Schouten, A. P., Valkenburg, P.M., Peter, J. (2007). Precursors and underlying processes of adolescents’ online self-disclosure: Developing and testing and “Internet-attribute-perception” model. Media Psychology, 10 (2), 292-315.

Suler, J. (2004). The online disinhibition effect. CyberPsychology & Behavior. 7(3): 321-326.

Swearer, S., Espelage, D., Vaillancourt, T., & Hymel, S.. (2010). What Can Be Done About School Bullying?: Linking research to educational practice. Educational Researcher, 39(1), 38.

Tooher, N. (2010). Fighting bullying with lawsuits: Civil suits target school districts for allowing peer-on-peer abuse. Lawyers Weekly USA, August 10, 2010

Willard, N. (2007) Cyber-bullying legislation and school policies: Where are the boundaries of the “schoolhouse gate” in the new virtual world? Center for Safe and Responsible Use of the Internet. Retrieved from www.cyberbully.org/cyberbully/docs/cblegislation.pdf