SW/WC Technology Conference
March 2012
Disclaimer
The information in this presentation is not legal advice and
is not intended as legal advice. It is intended to provide
general legal information. It does not cover all issues
related to the topics discussed. The specific facts that
apply to your matter may make the outcome different
than you might anticipate based on the material
presented. Please consult with your own attorney with
regard to specific issues.
Why good policy matters
1st Amendment constraints on policy
Free speech and the Internet:
case law is still in flux
Layshock v. Hermitage
School Dist.
 17 y/o high school
student creates “vulgar,
offensive, fake profile of
principal, including
photograph of principal.
 10 day suspension*
Snyder v. Blue Mtn. School
Dist.
 8th grader posted
sexually explicit material
and principal’s
photograph on imposter
site.
 10 day suspension
Procedural history of these cases
 Lower court rulings were split: one upheld the school’s
decision to suspend; one found the suspension to be a
violation of the student’s free speech rights.
 On appeal, different panels of the 3rd Circuit issued
seemingly conflicting decisions; a rehearing “en banc” was
conducted, leading to decisions overruling the schools’
suspensions.
 The schools filed a joint petition for certiorari with the US
Supreme Court.
 In January 2012, the US Supreme Court denied certiorari in
these 2 cases and Kowalski, another student free speech
case.
Schools can’t wait for the courts
 The best available case law involves pre-Internet era
incidents.
 Cases are decided by different judges in different
jurisdictions based on different facts – it will take years
for a body of law to develop that can be applied with
any certainty to cases involving technology.
 Legislation, though well intended, often misses the
mark.
 The best tool for schools is policy.
The need for guidelines relating to “after hours” creation and
use of social networking sites and blogs.
Pennsylvania
News report: Teacher Suspended for Blog Posts About
Students
http://www.nbcphiladelphia.com/news/local/TeacherSuspended-for-Blog-Posts-About-Students115655164.html
Florida
Florida Teacher Suspended for Posting Anti-Gay
Marriage Views on Facebook
http://www.theblaze.com/stories/fla-teachersuspended-for-posting-anti-gay-marriage-views-onfacebook/
North Carolina
Apex Teacher Suspended After Parents Question
Facebook Comments
http://www.wral.com/news/local/story/7041186/
Alabama
Special Education Teacher Allegedly Mocks his Students
on Facebook
http://www.huffingtonpost.com/2011/10/16/jeremyhollinger-special-education-facebook_n_1014169.html
What don’t teachers and staff
members understand?
Best Practices for Off Duty Use of
Social Media
 Don’t disclose confidential/proprietary information
 Exercise care with privacy settings and personal profile




content
Be who you are; be thoughtful about how you present
yourself; speak in the first person
Respect your audience and your co-workers; respect
your employer (i.e. use disclaimers)
Respect copyright and fair use laws
Try to add value; don’t forget your day job
Where to draw the line?
Inappropriate Contact with
Students
 Georgia (Summer 2011): Facebook and text messages
helped fuel a relationship between an 8th grade
English teacher and her 14 year old male pupil. The
teacher was arrested on charges of aggravated child
molestation and statutory rape and remains in jail
awaiting trial.
 Illinois (September 2011): a 56 year old former
language arts teacher was found guilty on sexual abuse
and assault charges involving a 17 year old female
student with whom he had exchanged more than 700
text messages.
Inappropriate contact, contd.
 California 2011: a 37 year old high school band director
pleaded guilty to sexual misconduct stemming from
his relationship with a 16 year old female student. Her
Facebook page had more than 1,200 private messages
from him, some about massages.
 Pennsylvania (November 2011): a 39 year old male high
school athletic director pleaded guilty to charges of
attempted corruption of a minor after he was arrested
for offering a former male student gifts in exchange for
sex.
State and Local Laws on Teachers’
Rights
Each state provides laws governing education agencies,
hiring and termination of teachers, tenure of teachers,
and similar laws. Teachers should consult with statutes
and education regulations in their respective states, as
well as the education agencies that enforce these rules,
for additional information regarding teachers' rights.
Teachers should review their contracts, collective
bargaining agreement, and/or employee handbook for
specific provisions that may have been included in an
agreement.
State by state listing provided by FindLaw
Open records laws
 School employees should be aware that data and other
materials in files maintained on the school district
system may be subject to review, disclosure, or
discovery under their state’s data practices act.
Failed Legislative Attempt
Louisiana Revised Statute 17:81(Q) is passed. It requires,
among other things, that a school employee report to
any electronic communication with a student that was
made using a means other than the means provided by
the employee's school system. Except for immediate
family members, there are no exceptions to this
mandatory reporting requirement.
Iberia Parish Policy
Failed Legislative Attempt
Missouri judge blocks state statute preventing teachers
and students from communicating privately via social
media sites (the Amy Hestir Student Protection Act).
Missouri Governor Jay Nixon signs new legislation
including language requiring school districts to
formulate their own electronic communication
policies by March 1, 2012.
Missouri State Teachers Association – Model
Communications Policy
Failed Policy Attempt
Virginia Board of Education’s Guidelines for the
Prevention of Sexual Misconduct and Abuse in Virginia
Public Schools mandates that teachers and other
school employees should only use accounts and
systems provided by their districts to communicate
electronically with students.
In response to push back from students, teachers,
administrators, and education advocacy groups, the
policy is revised two more times.
Policy as of March 2011
Failed Policy Attempt
 The recently adopted (November 2011) Muskegon
Michigan Social Media Policy already is being
reviewed because of school employee reaction to
poorly worded policy language stating they would be
"held responsible" for posting information or images
to social media sites "such as, but not limited to:
provocative photographs or images, sexually explicit
messages, use of alcohol, drugs or anything students
are prohibited from doing."
 Muskegon Social Media Policy
Best Practices for Electronic
Communication with Students
 Parents and legal guardians should be informed that
direct electronic communication may take place
between the staff/teacher and the student and the
rationale for that communication.
 Parameters should be established with regard to times
of communication between staff/teachers and
students (e.g. establish a rule regarding when it is too
late in the day to communicate with a student this
way).
The TAP Test
Electronic communication with students should always
be
 Transparent – maintain openness, visibility, and
accountability
 Accessible – all electronic communication with
students should be considered a matter of record
 Professional – choose words that are courteous,
conscientious; use proper grammar, tone, and word
choices; choose appropriate subject matter
Guidelines for electronic
communication
 Lake County Florida – School Social Media Policy
 Facebook for Educators - Guidelines
 Canadian Teachers Federation “Cybertips for Teachers”
 Missouri State Teachers Association – Model
Communications Policy
Judging inappropriateness – what
may be considered (VA policy)
 The subject, content, purpose, authorization, timing,
and frequency of the communication
 Whether there was an attempt to conceal the
communication from supervisors or parents
 Whether the communication can be interpreted as
soliciting sexual contact or a romantic relationship
 Whether the communication is sexually explicit
Guidelines for investigating
electronic misconduct
 Criminal activity and spoliation of evidence
 Own your own investigation
 Retain evidence
 Interview the alleged offender
 Know when to contact law enforcement
Disciplining employees for
electronic misconduct
 Do you have the authority to discipline?
 Does the requisite nexus exist?
 What is the employee’s status?
 What does your policy say?
The pros and cons of using Internet resources in the hiring
process.
Social Media Searching
 Much of the negative information about job candidates
comes from deep Web searches that find comments on
blogs and posts on smaller social sites, like Tumblr, ecommerce sites, bulletin boards, and even Craigslist.
 Photos and videos get most people in trouble (e.g. sexually
explicit photos and videos, flagrant displays of weapons,
pictures of drug use).
 The medium doesn’t matter: the things you can’t ask in an
interview are the same things you can’t research.
Social Media History Becomes a New Job Hurdle, New York
Time, July 20, 2011
Potential legal claims
 Discrimination under Title VII of the Civil Rights Act
and state human rights acts based on membership in a
“protected class” (e.g. race, color, creed, national
origin, sex, marital status, sexual orientation).
 Discrimination under the Americans with Disabilities
Act.
 Discrimination under the Age Discrimination in
Employment Act.
 Discrimination under Title IX based on sex (including
pregnancy and childbirth).
Constitutional law claims
 First Amendment: a public employer may not deny a
candidate for public employment a position on a basis
that infringes on the candidate’s right to free speech.
 Fourth Amendment: individuals are protected from
unreasonable searches and seizures by the
government, even when the government acts as an
employer.
Important questions
 Does an applicant or employee have a reasonable
expectation of privacy in his/her social network
postings? YouTube postings?
 Can schools eliminate liability by obtaining consent
from the applicant or employee? By requesting the
applicant or employee’s password so they can view
private content?
 How do Online User Agreements affect a school’s
ability to search online content?
Guidelines for Social Media
Searching
 Develop a formal strategy and standards before
assembling online information about job candidates.
 Create a standard form, asking the applicant to list any
social networking sites they are a member of and
seeking their consent to be their "friend.”
 “Unfriend“ applicants after employment decisions are
made.
School social networking sites considerations
 Follow the “limited forum” path already created for
other forms of Internet communication.
 Make all sites subject to School District approval and
control, and to School procedures and policies already
in place.
 Control the content via site settings.
 Be aware of terms of use, age restrictions, and privacy
options and controls.
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