Inservice Presentation to the Cozad Staff

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