Making things legal

1. Making things legal A review of the law on school cell phone policies and the law on free speech rights of students and school staff

2. Topics requested to be covered •  Is it legal for a school district to confiscate and hold a cell phone, laptop past the end of a school day since parents are the ones paying for the service/device and the device is often used by the family for personal reasons? • What legal recourse does a school system have if teachers or students post negative comments about the district, school or  people they work with if they do not do it on during their work day?  What if they do it during the work day? • What is the appropriate or suggested verbiage for districts to use in their acceptable use policies that would cover them in the event of a law suit due to cyber bullying/harassment,  defamation of character or other such negative behaviors that faculty and students might participate in while on the school’s network.  What if they do it after school hours using school provided equipment or network resources? •  Questions and Answers

3. School policies on student cell phones • KRS 158.165 “Possession and use of personal telecommunications device by public school student”: • “(1) The board of education of each school district shall develop a policy regarding the possession and use of a personal telecommunications device by a student while on school property or while attending a school-sponsored or school-related activity on or off school property, and shall include the policy in the district's written standards of student conduct. A student who violates the policy shall be subject to discipline as provided by board policy. • (2) In this section, "personal telecommunications device" means a device that emits an audible signal, vibrates, displays a message, or otherwise summons or delivers a communication to the possessor, including, but not limited to, a paging device and a cellular telephone.”

4. The evolution of KRS 158.165 • Prior to the 2000 revision, this statute banned a student’s possession of a paging device while on school property or while attending a school sponsored or related activity unless the student was acting as a volunteer firefighter or volunteer EMT; and contained the current language regarding personal telecommunications devices but expanded the definition to include pagers.

5. What are some concerns with allowing cell phones/communication devices in school? • Ban completely or regulate • Advantages/consequences of allowing • Advantages/consequences of banning • Safety concerns • Bullying concerns • Cheating concerns • Classroom management concerns • YouTube and other dissemination concerns • Legal liability concerns

6. School discipline policies governing use of cell phones • Per KRS 158.148 (c), school board discipline policies must provide: 1. Procedures for identifying, documenting, and reporting incidents of violations of • the school policy or • KRS 158.156 allegations of reasonable suspicion that a student has committed one of the following KRS Chapter 508 crimes against another student: assault, menacing, wanton endangerment, terroristic threatening, criminal abuse, or stalking.

7. 2. Procedures for investigating and responding to a complaint or a report of a violation of the code or of an incident for which reporting is required under KRS 158.156, including reporting incidents to the parents, legal guardians, or other persons exercising custodial control or supervision of the students involved; 3. A strategy or method of protecting from retaliation a complainant or person reporting a violation of the code or an incident for which reporting is required under KRS 158.156; 4. A process for informing students, parents, legal guardians, or other persons exercising custodial control or supervision, and school employees of the requirements of the code and the provisions of this section and KRS 158.156, 158.444, 525.070, and 525.080, including training for school employees; and 5. Information regarding the consequences of violating the code and violations reportable under KRS 158.156 or 158.444. (d) The principal of each school shall apply the code of behavior and discipline uniformly and fairly to each student at the school without partiality or discrimination. (e) A copy of the code of behavior and discipline adopted by the board of education shall be posted at each school. Guidance counselors shall be provided copies for discussion with students. The code shall be referenced in all school handbooks. All school employees and parents, legal guardians, or other persons exercising custodial control or supervision shall be provided copies of the code.

8. 4th Amendment search and seizure • In general, for a search to be lawful, a law enforcement officer must have “probable cause” to believe that evidence of criminal activity is currently located at this particular location. For a seizure/stop to be legal, a law enforcement officer must have an articulable “reasonable suspicion” that criminal activity is afoot. • Analysis of the legality of the search or seizure/stop involves looking at the information known at the time, the extent of the search or the seizure/stop, and the totality of the circumstances and particularized and objective basis for the search or seizure/stop.

9. Search and seizure of students • Students are protected by the U.S. Constitution’s 4th amendment from unlawful search and seizure. • Same analysis for electronic device searches of students as for all other searches of students. • Legal authorities: New Jersey v. T.L.O., 105 S.Ct. 733, 469 U.S. 325, 83 L.Ed.2d. (1985); Lamb v. Holmes, 162 S.W.3d 902, 198 Ed. Law Rep. 755 (Ky. May 19, 2005). • Less stringent test unless police officers are involved; then full 4th amendment protection applies.

10. The “special needs” of a school environment require a standard lesser than probable cause when assessing the legality of searches. • A “reasonableness standard” is used when reviewing the legality of school searches (two fold inquiry): - 1. whether the search was “justified at its inception” (when there are reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law/rules of the school)

11. - 2. whether the search was “reasonably related in scope to the circumstances which justified the search” (permissible in its scope when the measures adopted are reasonably related 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). • Courts look at whether the school official has an individualized suspicion about a particular student or a suspicion regarding a group of students; in the absence of individualized suspicion, 3 factors are considered:

12. - 1. the student’s legitimate expectation of privacy (greatest expectation of privacy concerning the student’s person but lessened expectation if in a locker room); - 2. the intrusiveness of the search (search of a purse or search of the student’s person); - 3. the severity of the school system’s needs that were met by the search: health and safety (looking for drugs/weapons) versus enforcement of school rules (looking for evidence of violation of school policy (e.g., cigarettes)).

13. Search and seizure of student cell phones • What is a seizure/stop of a student cell phone? - Confiscation, even for a brief period; even requiring student to show school official the phone. • What is a search of a student cell phone? - Looking to see if the phone is on, in use, looking at the call/text history, looking through the texts/listening to voicemails, calling numbers on the phone/call history or texting contacts in the phone.

14. What have the courts said? • Klump v. Nazareth Area School District, 425 F.Supp.2d 622 (E.D. Pa. 2006): found violations of 1st amendment, 4th amendment, and wire tapping law. • G.C. v. Owensboro Public Schools, 4:09-cv-00102: federal lawsuit by student against school district alleging confiscation and then illegal search of the student cell phone and discipline based on an illegal search, alleging violation of student’s right to free speech by reading the text messages on the phone.

15. Your district’s policy and practices • KSBA provides model policies on topics such as these and your district can seek this model policy from KSBA. • Any attempts by school officials to search or seize student cell phones should be according to the advice of your board attorney or any standard practices created with the advice of your board attorney. Document searches.

16. Is it legal for a school district to confiscate and hold a cell phone, laptop past the end of a school day since parents are the ones paying for the service/device and the device is often used by the family for personal reasons? • Probably (some district policies have), but may not be the best policy. • Can still structure discipline policy around traditional discipline consequences (e.g., detention, suspension) for cell phone use in violation of the school policy. • Reduces the risk of a lawsuit over the property rights issues discussed in the question.

17. Students and staff: 1st Amendment free speech rights • U.S. Constitution 1st amendment provides persons the right to free speech. • This right is not without limits (e.g., cannot yell “fire” in a crowded theatre, libel or slander prohibited too). • Students and staff have more limited free speech rights than the general public while on school property or performing their professional duties. • Schools may regulate school sponsored speech on the basis of any legitimate pedagogical (teaching) concern. Hazelwood School District v. Kuhlmeier, 484 U.S. 260, 108 S.Ct. 562, 98 L.Ed.2d 592 (1988).

18. When a student/staff member’s speech is more protected • A student’s off-campus (and outside school sponsored activities) speech • A public employee’s speech is protected only when: - The public employee is speaking as a citizen; - The statement involves a matter of public concern; and - The government employer does not have adequate justification for treating the public employee differently from any other member of the general public as a result of the statement he or she made.

19. What the courts have said: students rights • A school may categorically prohibit lewd, vulgar or profane language on school property. Bethel School District No. 403 v. Fraser, 478 U.S. 675, 106 S.Ct. 3159, 92 L.Ed.2d 549 (1986). • “Our cases make clear that students do not ‘shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.’ At the same time, we have held that ‘the constitutional rights of students in public school are not automatically coextensive with the rights of adults in other settings,’ and that the rights of students ‘must be ‘applied in light of the special characteristics of the school environment.’ Consistent with these principles, we hold that schools may take steps to safeguard those entrusted to their care from speech that can reasonably be regarded as encouraging [students to violate laws or rules].” Morse v. Frederick, 551 U.S. 393 at 396-397, 127 S.Ct. 2618 (2007).

20. Free speech rights of staff “Not all speech by a public employee is protected by the First Amendment…. The Supreme Court has held that speech addressing a matter of public concern is speech relating to “any matter of political, social, or other concern to the community.” By contrast, a public employee's speech dealing with “matters only of personal interest” is generally not afforded constitutional protection. “Whether an employee's speech addresses a matter of public concern must be determined by the content, form, and context of a given statement, as revealed by the whole record.” In general, speech involves matters of public concern when it involves “issues about which information is needed or appropriate to enable the members of society to make informed decisions about the operation of their government.” If any part of an employee's speech relating to a matter of public concern is a substantial or motivating factor in the adverse action, the court must engage in the balancing process set forth in Pickering. The court is required to: “balance between the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” Banks v. Wolfe County Bd. of Educ., 330 F.3d 888, 892-93 (6th Cir. 2003).

21. Discipline based on student speech • Courts, although divided on the outcomes, look at whether the offending speech might reasonably lead to substantial disruption of school activity, whether the speech was accessed via school resources or while at school and whether there is any connection between the speech and school. • “[W]e hold that off-campus speech that causes or reasonably threatens to cause a substantial disruption of or material interference with a school need not satisfy any geographical technicality in order to be regulated pursuant to Tinker.” J.S. v. Blue Mountain School District, 3rd Circuit, 2010.

22. Types of harm and discipline • Defamation of staff by students: if meets the Tinker test, then can discipline. • Threats against staff or other students by student: if meets the Tinker test, then can discipline. • Speech is evidence of violation of student code of conduct: may be able to discipline (especially if discipline relates to participation in extra-curricular activities like sports). • Bullying speech: if meets the Tinker test (hostile learning environment) or violates student code of conduct, then can discipline (school may face liability for failure to protect students otherwise); see KRS 156.148 for reporting requirements.

23. Discipline of school staff • (1) Is the public employee’s speech a matter of public concern? • (2) Was the public employee’s protected speech a substantial or motivating factor in the public employer’s adverse employment action? • (3) If the protected speech was a substantial or motivating factor in the adverse employment decision, would the public employer have made the same employment decision in the absence of the protected speech? • (4) Balance the free speech interest vs. promoting the efficiency of schools interest • Certified staff have a code of ethics (EPSB) and if speech violates the code of ethics, then may face other consequences.

24. School policy and practice • KSBA provides model policies on topics such as these and your district can seek this model policy from KSBA. • Any attempts by school officials to discipline students or staff should be according to the advice of your board attorney or any standard practices created with the advice of your board attorney. Document all actions taken thereunder.

25. Questions? Contact information: Amy Peabody Assistant General Counsel Kentucky Department of Education 500 Mero Street, 1st Floor CPT Frankfort, KY 40601 Amy.Peabody@education.ky.gov