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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


Agenda g < < < < <

Social Networkingg Cell Phones Sexting E-mail CyberBullying


Social Networkingg < Examples p - MySpace - 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 teacher’s misconduct and the school district’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


Sexting? Material 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


E-mail


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  LB


Cyber y Bullying y g


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.


Common Cyberbullying Tactics  Stealing someone’s someone s online name and using it to write nasty rumors, comment or spread gossip. comment, gossip  Altering someone’s message or d doctoring i photographs h h to say something hi different or make fun of a person.


Common Cyberbullying Tactics ďƒ˜Secretly recording conversations using a cell phone, then playing the recording back for the person being discussed discussed. ďƒ˜Posting damaging information on blogs or web b sites. i ďƒ˜Creating or taking part in Internet polling or list-making


Cyberbullying y y g Example of cyberbullying b b ll i on iChat (Apple’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? ďƒ˜ one in four students between the ages of 11 and 19 have been the victim of cyberbullying. y y g ďƒ˜ Approximately 65 percent of kids know of someone who h h has b been cyberbullied. b b lli d


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


So what’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 < Stevenson v. Martin County Bd. of Ed (4th Cir. Ed. Cir 2001) < Yap v. Oceanside Union Free Sch. Dist., i (E.D. ( N.Y. 2004) < Anibal v. Greenwich Sch. Dist.,, (Conn. 2005) < Dorothy JJ. vv. 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 to YouTube  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 all suspended p  Memphis TN: Honors student suspended for 180 days for commenting on a friend’s status


Civil Consequences  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


Finkel v. Facebook (N.Y.)  High school students created private Facebook page about classmate • Called her a “slut” slut • Said she had AIDs • Said S id she h used dd drugs Shee sued Facebook ceboo and d kids ds w who o ccreated e ed S page  Facebook F b k di dismissed i d ffrom llawsuit; it students t d t initially left in the case


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


In re Minor Child (Ala.)  High school students arrested at school for threatening classmate on MySpace • Threatened to beat him up • Said they would plant a bomb in his locker • Said he deserved to die  Charged with making terroristic threats


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


What can staff do?  Keep “Responding and Reporting” separate in your mind  Focus on Small Stuff  Talk to kids about tech  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


Helping Kids Deal; Tell them to: ►Stop.

Don’t respond to the bully.

►Block.

Block the cyberbully or limit all communications to those you can trust.

►Tell. T ll

T ll a trusted Tell t t d adult. d lt


If you discover cyberbullying Do not close your eyes R Report t tto administration d i i t ti asap Document everything y g


Does the Victim Need Interventions?  Interventions • Social S i l skill kill training t i i • Hygiene yg training g with, sped p 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


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