Of Course They’re Stupid: Social Media for Students
Karen Haase Harding & Shultz ((402)) 434-3000 khaase@hslegalfirm.com H & S School Law @KarenHaase
Agenda g FCC’s August g Order Cyberbullying Legal Issues with 1:1 Sextingg (again!) g
FCC August 2011 Order “Beginning July 1, 2012, schools’ I t Internet t safety f t policies li i mustt provide for educating p g minors about appropriate online behavior, including interacting with other individuals on social networkingg websites and in chat rooms and cyberbullying awareness and response.�
FCC August g 2011 Order < Since 2001,, CIPA required q schools to certify that internet safety policies and technology protection measures to receive “E-Rate” < Requires schools to use “blocking technology technology”
FCC August g 2011 Order < 2008 -- Congress g passed Protecting p g Children in the Twenty-First Century Act < Required schools to educate on: • appropriate on-line behavior, • interacting on social networking websites & chat rooms • cyberbullying
The Policyy < Must certifyy its existence on Form 486 or Form 479 â&#x20AC;&#x201C; must retain documentation for at least five y years. < Does not have to include specifics as to the particular program < FCC will not detail specific procedures or curriculum
We Need Definitions!! < < < <
What is: inappropriate for minors social networking cyberbullying y y g Minor â&#x20AC;˘ Nebraska law defines as under 19 â&#x20AC;˘ FCC defines as under 18
FCC did tell us: < Schools can decide for themselves whether to block Facebook and MySpace < Declaringg such sites categorically g y harmful to minors would be inconsistent with focus on â&#x20AC;&#x153;educating minors about appropriate on-line behavior
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 • Student suspended for 10 days; parents sued d
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 ff i profiles fi • Students only accessed off campus • Student suspended for 10 days; placed l d iin alt. l sch, h banned b d ffrom extracurriculars, no commencement
J.S. and Layshock Inconsistent Third Circuit granted en banc rehearing Oral Argument June 3, 2010 Decision issued June 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, inappropriate or even criminal • School S can only punish i off-campus ff p that is substantiallyy speech disruptive
What About the Staff? “We recognize that vulgar and offensive speech such as that p y in this case – even made in employed just – could damage 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 i ht off JS.” JS ” i.e. “We don’t care”
Cyberbullying y y g of Students
T.K. v. New York Dept’t of Ed., (E.D.N.Y 2011) < LD student bullied by peers < Ct.: Ct : < No First Amendment protection for bullies < “…merely …merely requires schools do what the Department of Ed Education ti h has ttold ld th them tto d do ffor years.”
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
Los Angeles (CA) Unif. Sch. Dist., 46 IDELR 198 (OCR 2006) < SpEd Student bullied and cyberbullied < “…the teacher's actions and inactions created a hostile environment for the Student based on disability.”
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 disruption, p , therefore discipline p appropriate
1:1 Issues < 1:1 • Computers C • Kindle/Nook • iPad • iPod iP d touch t h • BYOT < CIPA? < Use for cyberbullying? < Search and seizure issues
CIPA < E-Rate application -- NOT certifying tif i that th t you ensure kid kids will ill never be exposed p < Does not require the tracking of Internet use by minors or adults adults. < It is not clear if CIPAâ&#x20AC;&#x2122;s filteringg extends to networks outside the school environment
My Recommendations < Have a policy that makes clear: • you are filtering filt i access to t information on school campus, p , not the device itself • Require both parents and students to sign g ap permission slip p • Remind students that they aren’t to download any content without permission
Sexting
Criminal Implications Under Nebraska Law Neb. Rev. Stat. 28-813 et. seq. Makes sexting (images) a class IV felony for offenders under 19 Class IIIA felony for 19 and up Both punishable by: • Up to 5 years in prison and/or • $10,000 fine q sex offender registration g • Require
In re Katrina R. 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.
Holy Twitter, Batman! What education leaders need to know about the law and technology Karen Haase Harding & Shultz (402) 434 434-3000 3000 khaase@hslegalfirm.com H & S School Law @ @KarenHaase