Off Campus Internet Behavior - What Staff and Teachers Need to Know

1. SW/WC2010 Technology Conference Off Campus Internet Behavior - What Staff and Teachers Need to Know

2. 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

3. Social media and the schools

4. Social media lawsuits • Inappropriate posting by students on social networking sites and You Tube • Imposter websites • Sexting • Overzealous discipline by schools • Teacher/staff social networking and blogging

5. What’s at the heart of all of these lawsuits? Free Speech

6. “On campus” speech: fairly well defined rules Schools may restrict the following: • Obscene, rude, and discriminatory speech • Criminal or dangerous speech • Speech that could cause damage or that presents a danger for the school or a school member • Speech that abuses or clogs the school internet system • If policy clearly declares the school system a “limited forum”: anything of a non-educational nature. Little Buffalo Law & Consulting

7. “Off campus” speech: the public school quandary The Supreme Court has yet to address whether a school can regulate student speech or expression that occurs outside the school gates, and is not connected to a school-sponsored event, but that subsequently makes its way onto campus, either by the speaker or by other means.

8. Tinker v. Des Moines Independent Community SchoolDistrict, 393 US 503 (1969). Student speech is likely to be protected unless the content: • Constitutes a material and substantial disruption to class work; or • Involves a substantial disorder or invasion of the rights of others. In practice, courts generally protect student speech unless it contains threats and references to violence. The precise scope of Tinker’s “interference with the rights of others” language is unclear, however, because the Court’s analysis in Tinker focused primarily on whether a substantial disruption was reasonably foreseeable. Lower courts have not often applied the “rights of others” prong from Tinker. Little Buffalo Law & Consulting

9. What Tinker means for schools • School authorities need not wait until an actual disruption occurs; however • School officials must have more than an “undifferentiated fear or apprehension of disturbance” to overcome the student’s right to freedom of expression; and • School officials must show that the regulation or prohibition of student speech was caused by something more than “a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint.”

10. Material and substantial disruption • Highly fact-intensive; • No magic number of students or classrooms that must be affected; • The disruption must be something more than “a mild distraction or curiosity created by the speech” but need not rise to the level of “complete chaos.”

11. Recent 3rd Cir. Rulings add to the confusion Layshock v. Hermitage School Dist. (Feb. 4, 2010) • 17 y/o high school student creates “vulgar, offensive, fake profile of principal, including photograph of principal. • 10 day suspension * overturned. Snyder v. Blue Mtn. School Dist. (Feb. 4, 2010) • 8th grader posted sexually explicit material and principal’s photograph on imposter site. • 10 day suspension upheld.

12. What the judges said: Layshock: “The school’s right to maintain an environment conducive to learning does not trump [the student’s] right to freedom of expression based on the evidentiary record in this case.” Snyder: “Electronic communication allows students to cause a substantial disruption … We decline to say that simply because the disruption to the learning environment originates from a computer located off campus, the school should be left powerless to discipline the student.”

13. Protected speech can be mean spirited • Cyber bullying case involving You Tube video of several middle school girls bad mouthing another girl. • Student who posted video challenges 2-day suspension, alleging violation of her 1st Amendment rights. • Court ruled in favor of student, finding no disruption: “The court cannot uphold school discipline of student speech simply because young persons are unpredictable or immature, or because, in general, teenagers are emotionally fragile and may often fight over hurtful comments.” J.C. v. Beverly Hills Unified School District (Nov. 16, 2009, C.D. Calif.)

14. When internet behaviors make their way onto campus Additional case law examples

15. Sexting • PA court holds coercing minors to participate in a “re-education” program to avoid prosecution for sexting violated their right to be free from compelled speech. • A FL teen who twice forwarded a cell phone image of his 16-year-old ex-girlfriend's breasts was ordered to serve one year on probation in exchange for prosecutors agreeing to drop felony pornography charges against him. • Parents of OH teen who committed suicide after being harassed over an incident of sexting sued school for failing to take action against harassers.

16. Overzealous discipline • Students sue school for banning them from fall sports for MySpace summer slumber party photos. • ACLU sues on behalf of 12 year old student who was expelled after school officials confiscated and searched his phone and found what they thought were “gang-related” photos. • Student sues school and cheerleading coach for discipline that resulted form coach demanding access to and reviewing student’s private Facebook site.

17. Teachers and social networking • GA teacher sued school for coercing her to resign because her Facebook page included a photo of her drinking an alcoholic beverage and the word “bitch.” • CT teacher sued school when his contract was not renewed because his profile page included pictures of students and pictures of naked men and conversations with student friends on the site were personal in nature. • In separate incidents, teachers in AZ and PA were arrested for criminal sexual behavior with students that started with contact on social networking sites.

18. So what should staff and teachers do?

19. Identify and follow school policies • Review school policies and ask questions if policies are unclear. Request staff development opportunities and adequate resources to enhance compliance. • Ask for guidance from your employer and union re: employee use of social media. • Identify and use “chain of command” procedures; don’t exceed your authority. (Defer to law enforcement and your school attorney when appropriate.) • Participate in the policy review process and ensure that policies are revisited and revised frequently.

20. Draw a bright line between personal and professional communications • Be aware of your state’s Data Practices Act; your status as a mandatory reporter; and the restrictions on communications under FERPA. • Request and use school provided resources for education related communications. • Protect private social networking sites via effective use of privacy settings; restrain your communications when privacy safeguards are not in place.

21. Address ethical behavior with students and the greater school community • Communicate your use of technology in the classroom. • Educate about ethical Internet conduct. • Help students and their families understand the long term effects of Internet speech. • Take advantage of “teaching moments” (but always with student privacy rights in mind). • Offer students an opportunity to provide constructive, confidential feedback. Little Buffalo Law & Consulting

22. And . . . Continue to use technology and all the benefits it provides with students in your classrooms and assignments!

23. Available from Corwin Press at www.corwinpress.com Little Buffalo Law & Consulting Aimée M. Bissonette, JD Little Buffalo Law & Consulting www.littlebuffalolaw.com amb@littlebuffalolaw.com 612-243-5013