Education Law and Technology: What Every Education i Professional f i Should Know Karen Haase Harding & Shultz (402) 434-3000 khaase@hslegalfirm.com H & S School Law @KarenHaase
Agenda g < < < < <
Social Networkingg Cell Phones Sexting E-mail CyberBullying/Bullying
Social Networkingg < Examples p - Twitter - Facebook - YouTube
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.
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
School E-mail < Computer, Computer Server Server, Internet Connection all belong to the district. < Use U iis permissive i i < Assume someone will read it eventually.
School E-mail and Politics Political Accountability and Disclosure A t Act In the Matter of Michael Nolan, Case No. 07-03
Bullying? â&#x20AC;&#x153;any y ongoing g gp pattern of p physical, y , verbal,, or electronic abuse on school grounds, in a vehicle owned owned, leased leased, or contracted by a school being used for a school purpose by a school employee emplo ee or his or her designee, designee or at school-sponsored activities or schoolsponsored athletic events.â&#x20AC;?
Cyberbullying? Cyberbullying, v: the use of technology such as computers and cell phones to engage in i repeated, t d and dh hostile til b behavior h i byy an individual or group, g p that is intended to harm others. The term "cyberbullying" is used when the victim or bully is a child hild or tteen. The Th term t cyber b harassment h t is i usedd when h the th 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.
Not Myy Students! Tell teacher: 27% of preteens and only 9% of teens Tell friend: 44% of preteens and 72% of teens Told no one: 16% of preteens and teens
Educatorsâ&#x20AC;&#x2122; Responses to Cyberbullying
Cyberbullying y y g of Staff
J.S. v. Blue Mountain Sch. Dist. Middle School Student made fake MySpace profile for principal • Included photo from school website • Initially public; then limited • Students could only access off campus • St Student d t suspended d d ffor 10 d days; parents t sued
Layshock v. Hermitage Sch. Dist High School Student made fake MySpace profile for principal • Included photo from school website • Other students created similar and more offensive profiles • Students only accessed off campus • Student suspended for 10 days; placed in alt. sch, banned from extracurriculars, no commencement
J.S. and Layshock Inconsistent Third Circuit granted en banc rehearing Oral Argument June 3, 2010 Decision D i i issued i d June J 13, 13 2011 The Bottom Line? Schools lost both cases
J.S. and Layshock Key legal points • School can’t punish off-campus speech because it is vulgar, vulgar inappropriate or even criminal • School can only punish off-campus speech p that is substantiallyy disruptive p
What About the Staff? “We recognize that vulgar and offensive speech such as that employed in this case – even made in jjust – could damage g the careers of teachers and administrators and we conclude only that the punitive action taken by the school district violated the First Amendment free speech rights of JS.” i.e. “We don’t care”
Cyberbullying y y g of Students
Kowalski v. Berkeley Co Schs (4th Cir. Ci 2011) Student created MySpace group harassing another student Creator of the page received • 10 10-day day suspension from school • 90-day “social suspension” Ct speech Ct.: h caused d substantial b t ti l p , therefore discipline p disruption, appropriate
J.C. v. Beverly Hills Unif. Sch. Dist. (Cal.) 8th grade girls talking smack about a peer; uploaded to YouTube Principal p suspended p student who uploaded Court: no disruption to school school, no nexus to education, no basis for punishment
Helping Kids Deal; Tell them to: Stop. St
D ’t respond Don’t d tto th the b bully. ll
Block.
Block the cyberbully or limit all communications to those you can trust.
Tell. Tell
Tell a trusted adult adult.
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 l skill kill training t i i • Hygiene training with, sped teacher, counselor or other staff • Peer mentor Be ready for a 504 or SpEd request
Education Law and Technology: What Every Education i Professional f i Should Know Karen Haase Harding & Shultz (402) 434-3000 khaase@hslegalfirm.com H & S School Law @KarenHaase