School Law and Technology for the
Bennington 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 < School Law and Technology Issues • Social Networking • Cyberbullying • Cell Phones • Sexting
Social Networkingg < Examples p - MySpace - Facebook - YouTube - Twitter
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
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
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
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
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 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.
How Common is Cyberbullying? ď&#x192;&#x2DC; one in four students between the ages of 11 aand d 19 9 have ave bee been tthee vvictim ct of o cyberbullying. ď&#x192;&#x2DC; Approximately A i t l 65 percentt off kids kid k know of someone who has been cyberbullied.
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 < 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 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
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: t • 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
If you discover bullying Keep “Responding and Reporting” separate in your mind Report to administration asap Document everything
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