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 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
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
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 ď&#x192;&#x2DC;Secretly recording conversations using a cell phone, then playing the recording back for the person being discussed discussed. ď&#x192;&#x2DC;Posting damaging information on blogs or web b sites. i ď&#x192;&#x2DC;Creating or taking part in Internet polling or list-making
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 ages of 11 and 19 have been the victim of cyberbullying. y y g ď&#x192;&#x2DC; 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 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 < 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