SOCIAL MEDIA POLICIES: Key Elements & Enforcement

1. SOCIAL MEDIA POLICIES:Key Elements & Enforcement West Virginia ASA December 6, 2018

2. DENISE M. SPATAFORE Morgantown, WV 304-225-1445 denise.spatafore@dinsmore.com JACOB A. MANNING Wheeling, WV (304) 230-1604 jacob.manning@dinsmore.com DINSMORE & SHOHL LLP • LEGAL COUNSEL

3. These materials are presented with the understanding that the information provided is not legal advice. Due to the rapidly changing nature of the law, information contained in this presentation may become outdated. Anyone using information contained in this presentation should always research original sources of authority and update this information to ensure accuracy when dealing with a specific matter. No person should act or rely upon the information contained in this presentation without seeking the advice of an attorney.

4. Regulating Use of Social Media Unregulated use of Social Media by staff pursuant to authority of the school district is not a right. Staff use of Social Media to communicate with students and parents about school matters must be regulated. How do you regulate Use? By adopting a policy.

5. What Should Your Policy Include? • A statement authorizing the use of social media to promote community involvement and facilitate effective communication with students. • Language authorizing the Superintendent to designate which Social Media platforms are designated as “approved”…and who in the District may use those platforms. • A definition of Social Media. • Address whether employees may use social media for instructional purposes and, if so, outline a procedure for approval. • Outline privacy expectations (FERPA, health information, personal contact information, etc).

6. What Your Policy Should Include (Cont’d) • Reference to the CIPA requirement to teach students how to safely and appropriately use Social Media. • Provision requiring each Social Media account/site to have a statement of purpose and limiting those who use it for those purposes. • Provision requiring parent permission before use or providing parents with an opportunity to opt out for their children (and alternative means).

7. Identify prohibited content, terms of use, and standards of conduct • Example: District-approved social media sites shall not contain content that is obscene; is vulgar and lewd such that it undermines the school’s basic educational mission; is libelous or defamatory; constitutes hate speech; promotes illegal drug use; is aimed at inciting an individual to engage in unlawful acts or to cause a substantial disruption or material interference with District operations; or interferes with the rights of others. The District may exercise editorial control over the style and content of student speech on District-approved social media, if reasonably related to legitimate pedagogical concerns. Staff or students who post prohibited content shall be subject to appropriate disciplinary action. • Must be viewpoint neutral.

8. The “Public Forum” Issue:Tread Carefully! Social media is usually considered a “limited” public forum vs. traditional public forum (such as a public street or park) – a new, developing legal area Once public comments are allowed and invited, the platform is interactive, and thus a limited public forum Be specific in designating the purpose and limitations of the district or school’s social media site, i.e. non-offensive, on-topic comment “Viewpoint discrimination” is prohibited, but general regulation of comments, in view of applicable laws, rules and policies, is appropriate

9. What Your Policy Should Include (Cont’d) A provision establishing expected standards of conduct for those using District-approved Social Media platforms. A provision requiring archiving of the District’s Social Media footprint (more on this later from Mr. Clapp).

10. Social Media Definition • “Online platforms where users engage one another and/or share ideas through text, video, or pictures.” • “Social media consists of any form of online publication or presence that allows interactive communication, including, but not limited to, text messaging, instant messaging, websites, web logs (“blogs”), wikis, online forums (e.g., chat rooms), virtual worlds, and social networks.” • NOT email communication • “Apps and web services shall not be considered social media unless they are listed on the District’s website as District-Approved social media platforms/sites.” --NEOLA Bylaw 0100

11. Professional Use of Social Media • Via a “professional” site (class/teacher) • Via District authorized and/or operated media sites (school-based) • Examples of appropriate professional use: • To interact with parents • To interact with students (as a group) regarding class and school matters • To communicate regarding extracurricular activities/athletics

12. Professional Use of Social Media • Examples of inappropriate uses: • To interact with students one-on-one • To interact on topics not related to school/class matters and the professional’s job duties • To post confidential or personally identifiable information (FERPA/Policy 4350) • To post political statements, obscenities, hateful or bullying comments, etc.

13. WV State Board Policy 2460 – Acceptable Use of Technology • Applies to ALL school personnel who use technology in the course of their employment • Violations can result in employee discipline, parental lawsuits, or criminal charges • No expectation of privacy when using a district email account or any school-owned equipment • ALL inappropriate discussions with students are prohibited, whether at school or otherwise: “School personnel will maintain a professional relationship with all school students, both inside and outside the classroom and while using any form of social media and other electronic communication.”

14. Policy 2460 – Employee Responsibilities Examples of prohibited electronic behavior: harassment (policy 4373 and local policies); committing or soliciting any sexual act from any minor or any student regardless of age; soliciting, encouraging, or consummating a romantic or inappropriate relationship with a student, regardless of the age of the student; using inappropriate language including, but not limited to, swearing and improper sexual comments; taking inappropriate pictures (digital, photographic or video) of students or exchanging any inappropriate pictures with students; engaging in any other behavior that constitutes a violation of district policy or that is detrimental to the health and welfare of students.

15. Policy 4373 – Harassment, Intimidation, Bullying • “ When harassment, intimidation or bullying are of a racial, sexual and/or religious/ethnic nature, the above definition applies to all cases regardless of whether they involve students, staff or the public.” • Under “Interventions & Consequences,” the Policy provides: “Actions for staff may include but not be limited to, warning, suspension, termination, revocation of licensure, notification of law enforcement and/or human services.” Students may be disciplined. Visitors/members of the public may be excluded from school premises.

16. Harassment Defined (4373) “Harassment, intimidation or bullying” means any intentional gesture, or any intentional electronic, written, verbal or physical act, communication, transmission or threat that: A reasonable person under the circumstances should know will have the effect of harming a student, damaging a student’s property, placing a student in reasonable fear of harm to his or her person, and/or placing a student in reasonable fear of damage to his or her property; Is sufficiently severe, persistent or pervasive that it creates an intimidating, threatening or emotionally abusive educational environment for a student; or Disrupts or interferes with the orderly operation of the school. NOTE: Within 4373’s definition of “sexual harassment,” there is a statement that “amorous relationships” between staff and students are prohibited.

17. Enforcement and Discipline Both the Grievance Board & WV Supreme Court have held that employee violations of known policies constitute “insubordination,” as set forth in West Virginia Code 18A-2-8. To hold employees responsible for policy violations, TRAINING, TRAINING, TRAINING! (Records of Training – Lancaster v. Ritchie case) “Knowing”, “intentional”, “willful” -- terms used by courts to substantiate discipline for insubordination and willful neglect of duty under the statute Inappropriate comments to a student’s Facebook photos by an employee have been held to also constitute “immorality” pursuant to 18A-2-8. -- Shamblen v. Monroe, 2018-0458-MnrED

18. Discipline Issues – Rational Nexus Some social media behavior may require a rational nexus relationship to be established (outside work/school). In order to discipline employees for conduct occurring apart from employment and during off-duty time, a rational nexus must exist, as established by WV Supreme Court precedent. “In order to discipline a school employee for acts performed at a time and place separate from his employment, the board must demonstrate a ‘rational nexus’ between the conduct performed outside the job and the duties the employee is to perform.”

19. Rational Nexus – cont’d • A rational nexus exists if: (1) the conduct directly affects the performance of the occupational responsibilities of the employee; or (2) without contribution on the part of the school officials, the conduct has become the subject of such notoriety as to significantly and reasonably impair the capability of the particular teacher to discharge the responsibilities of the teaching position. (NOTE: The same principle has been applied to service personnel.) • Due to teachers’ close and constant interaction with and responsibility for supervision of students, rational nexus exists for a variety of types of conduct.

20. Durstein v. Cabell, 2017-1955-CabEDRational nexus, free speech, code of conduct Teacher posted many comments on personal, public Twitter account which were political and often racial in nature, particularly toward Muslims and minorities. Offensive nature of the comments drew attention from many Twitter users nationwide, and due to knowledge of her employment, administration and news media were contacted. Both local and national news outlets carried the story.

21. Durstein – cont’d • Termination upheld because: -- Notoriety was substantial, without board influence -- Rational nexus existed due to subject taught by employee (social studies) and school’s Muslim/minority population of students and teachers -- Insubordination due to flagrant violation of code of conduct, specifically caring culture for students, free from harassment, etc. -- Free speech argument rejected – although qualifying as matters of public concern, speech was disruptive and damaging to relationships and harmony in the school. “Respondent’s interest in creating a safe healthy and unbiased learning environment outweighs Grievant’s right to make bigoted public posts.”

22. Freedom of Speech and Social Media Behavior “The State, as an employer, . . . has an interest in the efficient and orderly operation of its affairs that must be balanced with the public employees' right to free speech, which is not absolute." There is a three-pronged test to determine if speech is protected. If not a matter of “public concern,” there is simply no constitutional issue. But, even if the issue is of public concern, the employee’s rights must be balanced with the interests of the school system. Speech which undermines the Board’s authority and interferes with the orderly operations of its affairs need not be tolerated. -- Alderman v. Pocahontas, 675 S.E.2d 907 (W.Va. 2009)

23. Legal Test for Protected Speech Employee must be speaking as a citizen on a matter of “public concern.” Personal attacks are not “matters of public concern.” Statements that are made with the knowledge that they were false or with reckless disregard of whether they were false, are not protected. Statements made about persons with whom there are close personal contacts that would disrupt discipline or harmony among coworkers or destroy personal loyalty and confidence may not be protected.

24. Freedom of Speech – sample cases Teacher frustrated with badly-behaving students in her class, mostly minorities, posted on personal social media page: “I’m not a teacher – I’m a warden for future criminals.” Termination of employment upheld, because her statements were not a matter of public concern, but expression of frustration with her job and a violation of expected professional conduct rules. Also held that, even if the statement had been protected speech, the statements were disruptive to the school district’s right to efficiently conduct its operations.

25. More on Freedom of Speech When employees are disciplined for statements made in their employment capacity, a free speech defense will fail.  Even if an employee argues that the safety of children is inherently a matter of public concern, the courts focus solely on the origin of the knowledge that gave rise to the speech in question (i.e. if acquired through employment, no free speech protection). Public employees cannot make an employment issue a public concern simply by voicing their grievances through a public medium. 

26. First Amendment Rights Factors to consider when balancing the employee’s free speech rights vs. the district’s interests: • Did the speech interfere with the teacher’s performance? • Did the speech create disharmony among co-workers? • Did the speech undercut an immediate supervisor’s authority over the teacher? • Did the speech substantially interfere with or disrupt the relationships of loyalty and trust required of the teacher?

27. Training, training, training! • Every year, train ALL employees on provisions of state and local policies on Acceptable Use, Code of Conduct, Behavior, and Social Media – DOCUMENT ATTENDANCE • Recommend employees make profiles as private as possible; select “friends” carefully; include “vanilla” pictures and postings only. • Recommend that teachers do not engage in personal social networking with students at all. • Recommend using only approved school or district platforms for communication with students. • Remind employees, even off-duty social media behavior may subject you to discipline.