SOCIAL NETWORKING, CELL PHONES, IPADS: DEVELOPING EFFECTIVE POLICY WITH TECHNOLOGY IN MIND

National Title I Conference January 22, 2012

Disclaimer
The information in this presentation is not legal advice and is not intended as legal advice. It is intended to provide general legal information. It does not cover all issues related to the topics discussed. The specific facts that apply to your matter may make the outcome different than you might anticipate based on the material presented. Please consult with your own attorney with regard to specific issues.
Little Buffalo Law & Consulting

LEGAL ISSUES ASSOCIATED WITH TECHNOLOGY

Schools are being sued for trying to restrain off campus Internet behavior AND for failing to restrain such behavior.

Problematic Behavior
Misuses and abuses of technology

Current trends: online misbehavior

Cyberbullying Imposter websites and cyber baiting Cyber stalking Sexting Inappropriate self disclosure (by students and teachers) Inappropriate student-teacher electronic communications Inappropriate use of social media by schools to screen job applicants

Potential legal claims

Violation of ones right to privacy Tort claims (e.g. harassment, defamation, gender based and sexual harassment, negligent supervision, negligence) Discrimination claims Other claims including violation of federal law relating to websites and minors, mandatory reporting statutes, etc. AND Free speech violations

Why do schools care?

Schools provide access to school owned technology Schools allow student owned devices on campus Schools have the right to guard against a substantial disruption of the school environment Schools have the right to intervene when an individuals speech constitutes a true threat to a member of the school community Parents expect schools will keep their children safe

Double edged sword for schools

If schools fail to take action, they may be sued by victims (or parents of victims) for negligence; If schools take action and discipline the perpetrator, they may be sued by the perpetrator (or parents of the perpetrator) for inappropriately limiting free speech.

The on campus off campus distinction: when may schools discipline?

The Supreme Court has The rules regarding on yet to address whether a campus speech are public school can regulate fairly well established. student speech or Schools may restrict expression that occurs obscene, rude, and outside the school gates, and is not connected to a discriminatory speech; school-sponsored event, criminal or dangerous but that subsequently speech; speech that makes its way onto presents a danger; and campus, either by the speech that abuses or speaker or by other clogs the school means. Internet system Little Buffalo Law & Consulting

Free speech and the Internet: case law is still in flux

Layshock v. Hermitage School Dist. 17 y/o high school student creates vulgar, offensive, fake profile of principal, including photograph of principal. 10 day suspension* Snyder v. Blue Mtn. School Dist. 8th grader posted sexually explicit material and principals photograph on imposter site. 10 day suspension

Procedural history of these cases

Lower court rulings were split: one upheld the schools decision to suspend; one found the suspension to be a violation of the students free speech rights. On appeal, different panels of the 3rd Circuit issued seemingly conflicting decisions. A rehearing en banc was conducted, leading to decisions overruling the schools suspensions. The schools have now filed a joint petition for certiorari with the US Supreme Court.

Schools cant wait for the courts

The best available case law involves pre-Internet era incidents. Cases are decided by different judges in different jurisdictions based on different facts it will take years for a body of law to develop that can be applied with any certainty to cases involving technology. Legislation, though well intended, often misses the mark. The best tool for schools is policy.

1. 2. 3.

What does current case law say? What does current or pending legislation say? What does my school districts policy say?

TECHNOLOGY USE AND THE ROLE OF SCHOOL POLICY

AUPs
These policies are generally holding their own because they address on campus behavior using school owned tools. AUPs should extend to personal (usually handheld) devices when the owners of those devices are on campus and should reference off campus behavior.

Referencing off campus behavior

A student or employee engaging in [unacceptable uses] of the Internet when off school district premises and without the use of the school district system also may be in violation of this policy as well as other school district policies. In situations when the school district receives a report of an unacceptable use originating from a nonschool computer or resource, the school district may investigate such reports to the best of its ability. Students or employees may be subject to academic sanctions or disciplinary action for such conduct including, but not limited to, suspension or cancellation of the use or access to the school district computer system and the Internet and discipline under other appropriate school district policies, including suspension, expulsion, exclusion, or termination of employment.
Internet Acceptable Use and Safety Policy (Policy 524), Edina Public Schools

Cell phones and hand held devices

How to maximize the benefit of allowing student owned devices, while minimizing the risk of harm.

Searching confiscated phones

A PA school district that was at the center of a highly publicized sexting case settled a case brought by a student alleging illegal search of her cell phone for $33,000. The school principal confiscated the students phone because she was using it during class time. The principal then searched the phone, found nude images the student had taken of herself, and turned the phone over to prosecutors.

May schools search confiscated phones? Only when there are grounds for suspecting that the search will turn up evidence that the student violated the law or the rules of the school. Even then, searches must be reasonable in scope.

Free speech challenges to cell phone policies

School District Changes Its Unconstitutional Cell Phone Search Policy April 16, 2008
In response to a March 3, 2007, letter from the ACLU-NC, the Linden Unified School District has agreed not to read private text messages stored on students cell phones unless there is good reason to believe that the search will provide evidence that the student was violating the law or breaking a school rule. The districts new policy also limits the scope of the search to the alleged infraction leading to the seizure of the cell phone. The revised policy stems from an incident involving Justin Tomek, a senior at Linden High School. Justins cell phone was confiscated by a teacher on Oct. 25, 2007, after he was caught talking on it to his mother. Although school officials had no reason to believe that Justin was violating any other school rule, they still accessed and read approximately three weeks worth of text messages, many of which contained personal communications with others, including messages to and from his mother.

Whats the legal standard for student searches?

Any searches of students or their property need to be 1. Justified from the beginning (i.e. there must be reasonable grounds for suspecting the search will turn up evidence that the student has violated a law or the rules of the school); and 2. Reasonably related in scope to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction. New Jersey v. TLO, 469 US 325 (1985)

School cell phone policies

Policy review and comparison: Oak Harbor High School cell phone policy
Excellent resource on the current state of the law and school policies: Hello Students Have a Right To Privacy in their Cell Phones (ACLU publication) This publication includes a model cell phone search and seizure policy.

Electronic communication between teachers and students

Inappropriate Contact with Students

Georgia (Summer 2011): Facebook and text messages helped fuel a relationship between an 8th grade English teacher and her 14 year old male pupil. The teacher was arrested on charges of aggravated child molestation and statutory rape and remains in jail awaiting trial. Illinois (September 2011): a 56 year old former language arts teacher was found guilty on sexual abuse and assault charges involving a 17 year old female student with whom he had exchanged more than 700 text messages.

Inappropriate contact, contd.

California 2011: a 37 year old high school band director pleaded guilty to sexual misconduct stemming from his relationship with a 16 year old female student. Her Facebook page had more than 1,200 private messages from him, some about massages. Pennsylvania (November 2011): a 39 year old male high school athletic director pleaded guilty to charges of attempted corruption of a minor after he was arrested for offering a former male student gifts in exchange for sex.

State and Local Laws on Teachers Rights

Each state provides laws governing education agencies, hiring and termination of teachers, tenure of teachers, and similar laws. Teachers should consult with statutes and education regulations in their respective states, as well as the education agencies that enforce these rules, for additional information regarding teachers' rights. Teachers should review their contracts, collective bargaining agreement, and/or employee handbook for specific provisions that may have been included in an agreement. State by state listing provided by FindLaw

Failed Legislative Attempt

Louisiana Revised Statute 17:81(Q) is passed. It requires, among other things, that a school employee report any electronic communication with a student that was made using a means other than the means provided by the employee's school system. Except for immediate family members, there are no exceptions to this mandatory reporting requirement. Iberia Parish Policy

Failed Legislative Attempt

Missouri judge blocks state statute preventing teachers and students from communicating privately via social media sites (the Amy Hestir Student Protection Act). Missouri Governor Jay Nixon signs new legislation including language requiring school districts to formulate their own electronic communication policies by March 1, 2012. Missouri State Teachers Association Model Communications Policy

Failed Policy Attempt

Virginia Board of Educations Guidelines for the Prevention of Sexual Misconduct and Abuse in Virginia Public Schools mandates that teachers and other school employees should only use accounts and systems provided by their districts to communicate electronically with students. In response to push back from students, teachers, administrators, and education advocacy groups, the policy is revised two more times. Policy as of March 2011

Failed Policy Attempt

The recently adopted (November 2011) Muskegon Michigan Social Media Policy already is being reviewed because of school employee reaction to poorly worded policy language stating they would be "held responsible" for posting information or images to social media sites "such as, but not limited to: provocative photographs or images, sexually explicit messages, use of alcohol, drugs or anything students are prohibited from doing." Muskegon Social Media Policy

Best Practices for Electronic Communication with Students

Parents and legal guardians should be informed that direct electronic communication may take place between the staff/teacher and the student and the rationale for that communication. Parameters should be established with regard to times of communication between staff/teachers and students (e.g. establish a rule regarding when it is too late in the day to communicate with a student this way).

The TAP Test

Electronic communication with students should always be Transparent maintain openness, visibility, and accountability Accessible all electronic communication with students should be considered a matter of record Professional choose words that are courteous, conscientious; use proper grammar, tone, and word choices; choose appropriate subject matter

Guidelines for electronic communication

Lake County Florida School Social Media Policy Facebook for Educators - Guidelines Canadian Teachers Federation Cybertips for Teachers Missouri State Teachers Association Model Communications Policy Minnetonka Public Schools Employee Use of Social Media

Teacher/staff Internet use

The need for guidelines relating to after hours creation and use of social networking sites and blogs.

Off duty Internet behavior

Pennsylvania - Teacher Suspended for Blog Posts About Students (teacher reinstated) Florida - Teacher Suspended for Posting Anti-Gay Marriage Views on Facebook (ACLU supporting teachers reinstatement) North Carolina - Teacher Suspended After Parents Question Facebook Comments Alabama - Special Education Teacher Allegedly Mocks his Students on Facebook

Authority to Discipline the nexus requirement

Off duty behavior and the nexus requirement: A nexus may be found if the employee's off duty misconduct prevents the employee from adequately performing the duties of the job or creates low morale or ill will among co-workers. A nexus also is likely to be found if the employee's misconduct arose as a result of the employment relationship (e.g. a teacher's inappropriate relationship with a student).

Additional considerations

An employee's status must be considered when determining whether sufficient evidence exists to discipline the employee for off duty behavior (i.e. at will, union, and tenure). Policies must be narrowly drafted and specific as to the conduct being regulated and the rationale for regulation (i.e. how regulating the conduct at issue serves a recognized public interest).

Best Practices for Off Duty Use of Social Media

Dont disclose confidential/proprietary information Exercise care with privacy settings and personal profile content Be who you are; be thoughtful about how you present yourself; speak in the first person Respect your audience and your co-workers; respect your employer (i.e. use disclaimers) Respect copyright and fair use laws Try to add value; dont forget your day job

Using Social Media to make employment decisions

The pros and cons of using Internet resources in the hiring process.

Social Media Searching

Much of the negative information about job candidates comes from deep Web searches that find comments on blogs and posts on smaller social sites, like Tumblr, ecommerce sites, bulletin boards, and even Craigslist. Photos and videos get most people in trouble (e.g. sexually explicit photos and videos, flagrant displays of weapons, pictures of drug use). The medium doesnt matter: the things you cant ask in an interview are the same things you cant research. Social Media History Becomes a New Job Hurdle, New York Time, July 20, 2011

Potential legal claims

Discrimination under Title VII of the Civil Rights Act and state human rights acts based on membership in a protected class (e.g. race, color, creed, national origin, sex, marital status, sexual orientation). Discrimination under the Americans with Disabilities Act. Discrimination under the Age Discrimination in Employment Act. Discrimination under Title IX based on sex (including pregnancy and childbirth).

Constitutional law claims

First Amendment: a public employer may not deny a candidate for public employment a position on a basis that infringes on the candidates right to free speech. Fourth Amendment: individuals are protected from unreasonable searches and seizures by the government, even when the government acts as an employer.

Important questions

Does an applicant or employee have a reasonable expectation of privacy in his/her social network postings? YouTube postings? Can schools eliminate liability by obtaining consent from the applicant or employee? By requesting the applicant or employees password so they can view private content? How do Online User Agreements affect a schools ability to search online content?

Guidelines for Social Media Searching

Develop a formal strategy and standards before assembling online information about job candidates. Create a standard form, asking the applicant to list any social networking sites they are a member of and seeking their consent to be their "friend. Unfriend applicants after employment decisions are made.

School social networking sites

School social networking sites considerations

Follow the limited forum path already created for other forms of Internet communication. Make all sites subject to School District approval and control, and to School procedures and policies already in place. Control the content via site settings. Be aware of terms of use, age restrictions, and privacy options and controls.

ASSESSING YOUR SCHOOLS POLICIES AND PRACTICES

Where to go from here

What do your current policies say? Do they adequately address off campus behavior?

Are your policies specific enough to cover multiple technologies (e.g. cell phones, cameras, recording devices, iPads, iPods) Do you have a policy for employees that addresses school-related electronic communication with students (i.e. email, Twitter, texting, etc)? Do you have a policy for employees that addresses their use of social media? Are your policies age/grade appropriate? How often are policies reviewed and updated?

Are you providing the right tools to the members of your school community?

Are you involving parents in your educational efforts? Are you involving parents in the disciplinary process? Is your staff trained to identify problems? To support and counsel victims? Are you routinely using suspension to deal with Internet related behaviors? Does your staff know when to defer to administration? And does administration know when to bring in law enforcement or the schools attorney?

Are you addressing ethical behavior with students and staff?

Do you have a curriculum that communicates and educates about ethical Internet conduct. Are you helping students and other members of the school community understand the long term effects of Internet speech? Are you providing students with an opportunity to provide constructive, confidential feedback? Are you providing meaningful staff development opportunities and adequate resources to your teachers and staff?
Little Buffalo Law & Consulting

Concluding comments
Questions and discussion

Little Buffalo Law & Consulting

AIME M. BISSONETTE, JD LITTLE BUFFALO LAW & CONSULTING WWW.LITTLEBUFFALOLAW.COM AMB@LITTLEBUFFALOLAW.COM 612-243-5013