Cyberbullying is a growing national problem, with legal and economic implications for insurers and school districts alike. A national survey published by the National Center for Education Statistics and Bureau of Justice in 2024 revealed that approximately 20% of students in grades 6-12 report being victims of cyberbullying during school. The incidence of cyberbullying will increase as more students are exposed to technology.
Smartphones are a vehicle for cyberbullying when they are directly or indirectly used to cause physical or emotional harm to an individual, cause reasonable fear of physical or emotional harm, or infringe upon the rights or opportunities of another at school. [See CGS §10-222(d)]. In an effort to combat cyberbullying at school, Connecticut law requires public schools to implement policies to “prevent” incidents of cyberbullying in grades K–12. (See CGS §§ 10-222d and 10-222g).
Many Connecticut school districts have policies that restrict student use of smartphones during school hours, with only a handful having implemented policies that affirmatively prohibit the use of smartphones during that time. Some of the more affluent school districts in Connecticut are at the forefront of this issue, having recognized that policies limiting student access to smartphones during school are not enough to “prevent” cyberbullying.
Indeed, plaintiffs’ attorneys have argued that policies merely restricting smartphone use are insufficient to “prevent” cyberbullying within the meaning of the statute such that those policies are insufficient to satisfy the schools’ legal obligation. Also, given the national statistics on cyberbullying, plaintiffs’ attorneys have argued that compensable harm is foreseeable when schools permit any degree of access to smartphones during school hours.
This raises the question of whether Connecticut insurers and school districts face an increased risk of litigation and exposure where school policy permits any degree of student smartphone use during school hours. When evaluating risk, insurers and school districts have considered the following four points:
- First, national trends reflect there is potential for a verdict or settlement in the millions arising from claimed emotional harm resultant from cyberbullying at school. For example, in the 2023 lawsuit, Grossman v. Rockaway Township, et al., a local New Jersey school district was sued by the parents of a 12-year-old, female student who took her own life after experiencing cyberbullying at school. It was alleged the school failed to protect the student from cyberbullying. The case settled for an eye-opening $9.1 million, one of the largest recorded settlement values for this type of lawsuit in the state of New Jersey.
- Second, they consider the language and enforcement of a school district’s current policy regarding student smartphone use during school hours and evaluate it for vulnerabilities in connection with statutory obligations.
- Third, they consider the difficulty in defending some of these cases where the students’ smartphones themselves may document and record patterns of conduct necessary to establish the elements of negligent supervision arising from cyberbullying, such as through texts, photos, and videos, among other potentially admissible evidence at trial.
- Fourth, they consider that boards of education customarily memorialize meetings in which they (i) address the adverse impact of cyberbullying on students’ mental health and academic performance; (ii) evaluate remedial strategies proposed by invited speakers such as healthcare professionals; (iii) receive parental testimony corroborating the existence of cyberbullying; and (iv) determine the nature and extent of any responsive action. Such meetings are generally a matter of public record, which plaintiffs’ attorneys have obtained and attempted to use in court to establish knowledge, notice, and foreseeability elements in cyberbullying lawsuits.
Fortunately, strategies can be implemented to mitigate against the risk of defending costly cyberbullying lawsuits. For school districts, that may require implementation of a district-wide policy prohibiting student smartphone use during school hours, bell-to-bell, in grades K–12, together with a meaningful enforcement mechanism to attempt to ensure compliance with the policy. For insurers, that may require underwriters to incorporate policy exclusions that deny coverage for losses attributable to the use of students’ smartphones during school hours. Others may opt to increase premiums on school districts that adopt policies merely restricting, rather than prohibiting, the use of such devices.
The key to attempting to avoid costly cyberbullying lawsuits is to recognize the litigation trend, analyze existing school districts’ smartphone policies, and implement change to mitigate risk.
Emily Fernandez is a trial lawyer and a partner in the White Plains, N.Y., office of Wilson Elser. Emily.Fernandez@wilsonelser.com