Education Law Update for the
Cozad Public Schools Staff Karen Haase Harding & Shultz (402) 434-3000 khaase@hslegalfirm.com H & S School Law @KarenHaase
This is not your y Grandma’s Inservice
Agenda < Technology Issues • Social Networking • Cyberbullying • Cell Phones • Sexting < Hazing and Supervision < Special Education/Student Di i li Discipline
Social Networkingg < Examples p - MySpace - Facebook - YouTube - Twitter
Teacher Use < Causes for Concern - Drug/Alcohol Use - Sexual S l Inappropriateness I i t - Inappropriate pp p Communication with Students - Inappropriate Communication Comm nication about Students - Selling School Property
Nebraska Law < Neb. Rev. Stat. §§ 79-824,, 79-827,, 79-829 < Reasons for Termination and/or Cancellation: - Unprofessional Conduct - Immorality - Other conduct which interferes substantially with the continued performance of duties
Caselaw < Fisher,, 476 F.2d 375 ((8th Cir. 1973): ) Withoutt a connection With ti between b t th the teacherâ&#x20AC;&#x2122;s misconduct and the school districtâ&#x20AC;&#x2122;s interest, a teacher may be able to argue g that the reasons underlying y g dismissal were arbitrary and capricious.
Free Speech p < Pickering, g, 391 U.S. 563 ((1968)) If a employee l speaks k as a citizen ii on a matter of public concern the district must show it had an adequate justification for treatingg the employee p y differently y from any other member of the public.
Free Speech p < Garcetti,, 547 U.S. 410 ((2006)) When public Wh bli employees l make k statements t t t pursuant to their official duties, the employees are not speaking as citizens for First Amendment p purposes, p , and the Constitution does not insulate their communication from employer discipline.
Teacher Use < Causes for Concern - Drug/Alcohol Use - Sexual S l Inappropriateness I i t - Inappropriate pp p Communication with Students - Inappropriate Communication Comm nication about Students - Selling School Property
Social Media is Here to Stay y ď&#x192;&#x2DC; Ed. Professionals are using social media - 85% of Americans use social media monthly - Twitter grew over 500% in the last year - More video is uploaded to YouTube in 60 days than big 3 networks created in 60 years
ď&#x192;&#x2DC; Facebook dominates social media -
500 million users as of July, y, 2010 50% of active users log on daily Average g user has 130 friends Largest group of users aged 35-54
Nebraska Law < Neb. Rev. Stat. §§ 79-824,, 79-827,, 79-829 < Reasons for Termination and/or Cancellation: - Unprofessional Conduct - Immorality - Other conduct which interferes substantially with the continued performance of duties
Caselaw < Fisher,, 476 F.2d 375 ((8th Cir. 1973): ) Withoutt a connection With ti between b t th the teacherâ&#x20AC;&#x2122;s misconduct and the school districtâ&#x20AC;&#x2122;s interest, a teacher may be able to argue g that the reasons underlying y g dismissal were arbitrary and capricious.
Free Speech p
Free Speech p < Pickering, g, 391 U.S. 563 ((1968)) If a employee l speaks k as a citizen ii on a matter of public concern the district must show it had an adequate justification for treatingg the employee p y differently y from any other member of the public.
Free Speech p < Garcetti,, 547 U.S. 410 ((2006)) When public Wh bli employees l make k statements t t t pursuant to their official duties, the employees are not speaking as citizens for First Amendment p purposes, p , and the Constitution does not insulate their communication from employer discipline.
Myy Suggestions gg < Make a p professional p page g separate p from your personal page < Don’t D ’t “f “friend” i d” students t d t or parents t on yyour p personal p page g < Don’t let yourself be depicted beha ing unprofessionally behaving nprofessionall < Ask: will this affect myy classroom?
Privacyy Settings g < < < <
Set yyour profile p as “private” p Only let “friends” see pics T Turn off ff geo-tags t Friend Facebook on Facebook
Cyberbullying
Bullying? â&#x20AC;&#x153;any any ongoing pattern of physical, verbal, or electronic abuse on school grounds, in a vehicle hi l owned, d leased, l d or contracted t t db by a school beingg used for a school p purpose p by a school employee or his or her designee or at school-sponsored designee, activities or school-sponsored athletic events.â&#x20AC;?
Cyberbullying? Cyberbullying, v: the use of technology such h as computers and d cell ll phones h to engage g g in repeated, p , and hostile behavior by an individual or group, that is intended to harm others others.
The term "cyberbullying" is used when the victim or bully is a child or teen. The term cyber harassment is used when the victim is an adult.
Cyberbullying y y g Example of cyberbullying b b ll i on iChat (Appleâ&#x20AC;&#x2122;s instant messaging) i )
Divagirl: Hey, loser, watch your back. t t323 What tmt323: Wh t r u talking about? Divagirl: Why don't you kill yourself while u r ahead? tmt323: Why can't you just leave me alone? Divagirl: Ugly girls like u need to be put in their place.
How Common is Cyberbullying? ď&#x192;&#x2DC; one in four students between the g of 11 and 19 have been the ages victim of cyberbullying. ď&#x192;&#x2DC; Approximately A i t l 65 percentt off kids kid know of someone who has been cyberbullied.
Not Myy Students! Tell teacher: 27% of preteens and onlyy 9% of teens Tell friend: 44% of preteens and 72% off teens Told no one: 16% of preteens and teens
So whatâ&#x20AC;&#x2122;s what s the big deal?
Bullying y g Litigation g < < < < <
Duty to Protect/Practice or Policy Sex Harassment IDEA State tort claims Overbroad policy
Duty to Protect/ Practice or Policy < Esposito v. Town of Bethany (Conn. 2010) < Yap v. Oceanside Union Free Sch. Dist., i (E.D. ( N.Y. 2004) < Vaughn g v. Orleans Parish Sch. Bd.,, (La. Ct. App. 2002) < Dorothy J. J v. v Little Rock Sch. Sch Dist., Dist (8th Cir. 1993)
J.C. v. Beverly Hills Unif. Sch. Dist. (Cal.) 8th grade girls talking smack about a peer; uploaded l d d tto Y YouTube T b Principal p suspended p student who uploaded Court: no disruption to school school, no nexus to education, no basis for punishment
School-Related Consequences Neb. Rev. Stat. 79-2,137 Definition: “ongoing ongoing pattern of physical, verbal or electronic abuse” Consequences: ─ Loss of extracurricular privileges ─ Detentions D t ti ─Short and Long Term Suspension ─Expulsion E li ─Alternative School Assignment
Examples p Seattle, WA.: Students who “liked” Facebook page bullying a classmate p all suspended Memphis TN: Honors student suspended for f 180 days ffor commentingg on a friend’s status
Civil Consequences q Student and parents can be sued • Suing for money; no jail time • Homeowners insurance often pays • Judgments can result in home f foreclosure l and d other h h hardship d hi Suit can be for: • Intentional I i l infliction i fli i off emotional i l distress • Tortuous interference • Slander
D.C. v. R.S. (Cal. 2010) High school student posted on victim’s website • • •
I want to rip out your f-ing f ing heart and feed it to you. I' wanted I've t d to t kill you. If I ever see yyou I'm ggoing g to pound p your head in with an ice pick.
Family sued; defendant said just a joke Litigation allowed to continue
Fulmer v. Swidler (Pa. 2003) Middle school student created “Teacher Sux” website Sux • Compared math teacher to Hitler • Had picture of her decapitated • Asked for contributions toward hit man Teacher sued Jury awarded $500,000 Similar suit by principal settled
Criminal Consequences (State Law) Neb. Rev. Stat. 28-311.01 Terroristic Threats: “threatens to commit any crime of violence … • With the intent to terrorize another • In reckless disregard of the risk of causing such terror Class IV Felony punishable by: • Up to 5 years in prison and/or • $10,000 fine
State v. Murphy (NE) Girl’s family disliked defendant On O MySpace M S he h wrote: • He was ggoingg to "beat the hell out of a lot of people" • He would be "killing killing a lot of people people.“ • Told girlfriend’s sister he didn’t “want to end up killing her or her kid.” Charged with making terroristic threats
Bullying: What can staff do? Keep “Responding and Reporting” separate in your mind Focus on Small Stuff Talk to kids about tech early Talk T lk tto kids kid about b t managing i anger Start with elementaryy kids Communicate to kids that you care about this issue Enlist kids
If you discover bullying Do not close your eyes Report R t tto administration d i i t ti asap Document ocu e t everything eve yt g
Does the Victim Need Interventions? Interventions • Social S i skill i training i i • Hygiene yg training g with sped p teacher, counselor or other staff • Peer mentor Be ready for a 504 or SpEd request
Dealing with S ff C Staff Cell Phones
Dealing with S ff C Staff Cell Phones Matter of administrative policy No “right” right to cell phone communication Enforcement of student policy can be hi d d b hindered by staff t ff usage Textingg – byy p phone or computer? p
Student Cell Phones
Dealing with Cell Phones Is it a search? Is it unlawful taking of property? Privacyy concerns ((camera p phones)) Safety benefits Policy/notice considerations
Sexting? Sexting, v: (a combination of sex and texting) is the act of sending di sexually ll explicit li i messages or photos electronically, primarily between cell ll phones. h
Sexting? ď&#x20AC;żMaterial can be distributed via:
-Text messages -Downloads onto laptops/computers -E-mail -Downloads D l d onto t ii-pods/mp-3 d/ 3 players l -Social Networking Sites
How Common is Sexting? g Sexually suggestive photos sent: – 20% overall –22% girls –11% young teen girls (ages 13-16) –18 % boys
How Common is Sexting? g Sexually suggestive messages sent: –39% of all teens –37% girls –40% 40% boys 48% of teens say they have received sexting ti photos h t or messages.
Serious Consequences: Jessica Logan
Criminal Implications Under Nebraska Law NEB. REV. STAT. 28-813 et. seq.: Class IV felony to
─ knowingly solicit, coax, entice, or lure ─ a child sixteen years of age or y younger g ─ by means of an electronic communication device ─ to t postt images i that th t would ld qualify lif as child pornography under state law
Criminal Implications Under Nebraska Law Affirmative Defense:
─ the picture is only of the defendant;
─ ─ ─ ─ ─ ─ ─
or defendant was younger than 19 picture i is i off someone at least l 15 picture was taken voluntarily picture was given voluntarily picture contains only one child defendant hasn’t shared the picture; AND d f d defendant did didn’t ’ coerce taking ki or sending di
Practical Steps in Dealing with i Sexting S i in i Schools S When You Catch Kids Sexting
Iowa v. Canal Boy and girl friends; not romantic • She asked him to send pic of penis • He complied • Both agreed not erotic Parents called the cops; boy charged Jury trial; boy convicted Appeal rejected by Iowa Supreme Court
In re Katrina R. (Neb. 2011) 15 year old texted nude pics to her BF Was adjudicated “a child who deports herself so as to injure j or endanger g seriously the morals or health of herself e se or o others” ot e s • Placed in legal custody of HHS • 6 months’’ probation i • Required counseling and community service.
Hazing
Hazing g â&#x20AC;&#x153;any any activity by which a person intentionally or recklessly endangers th physical the h i l or mental t l health h lth or safetyy of an individual for the purpose of initiation into, admission into affiliation with, into, with or continued membership with any organizationâ&#x20AC;?
How Common is Hazing? National study commissioned by North American Interfraternal ( ) Foundation (NIF) • 48% of college athletes reported that they had been hazed before coming to college - Male and Female athletes roughly equivalent in reporting experience - Types of hazing differed • 66% reported t d th they’d ’d observed b dh hazing i off others in high school sports
Hazing We’ve Seen in Nebraska “Paddling” by upper classmen “Freshmen eat a pepper” day “Russian dick dick-lett” lett”
Dealing with Hazing DON’T. YOU. DO. IT. Communicate with student athletes about difference between leadership and bullying/hazing Supervise S i • locker rooms • Bus trips
Special Education and St d t Di Student Discipline i li
Procedural Protection without ith t Verification V ifi ti • District st ct has as imputed puted knowledge ow edge if:: – Parents have requested evaluation – Parents have expressed concern to the district that child special education – Child Child’ss behavior demonstrates need for services – District personnel have expressed concern about child’s behavior or performance in cco d ce with w thee district's d s c s spec special accordance education referral system.
Request for evaluation after ft misconduct i d t • District has no imputed knowledge of disability • School may determine child’s hild’ placement l t pending p g results of the evaluation and, if necessary manifestation necessary, determination
And Finallyâ&#x20AC;Ś.. The Most Important Legal Advice of 2011:
Education Law Update for the
Cozad Public Schools Staff Karen Haase Harding & Shultz (402) 434-3000 khaase@hslegalfirm.com H & S School Law @KarenHaase