Presentation on theme: "GENESEE COUNTY SUPERINTENDENTS ASSOCIATION THURSDAY, FEBRUARY 26, 2015 Facebook, Twitter, and Their Friends: Effectively Navigating Employee and Student."— Presentation transcript:
GENESEE COUNTY SUPERINTENDENTS ASSOCIATION THURSDAY, FEBRUARY 26, 2015 Facebook, Twitter, and Their Friends: Effectively Navigating Employee and Student Issues in the Era of Social Media Presenter: Kevin T. Sutton Want to download this presentation? Do it now: www.luskalbertson.com/GCSA
How social media questions make us feel … How we want to feel about these issues …
Why is this Issue So Difficult? Uncertainty in Law Lack of cohesion from state to state Lack of consistency from court to court Balance of private rights v. obligation to community Blurred lines (public v. private) Why? Law moves slowly Social media outlets emerge too fast Example: Snapchat Districts forced to be reactive instead of proactive
We used to think we had a pretty good grasp on this stuff …
But “Social Media” is so much more than most people think …
Social Media Permeates … Everything Always On Accessible on mobile devices Live tweeting Interactive television Universal Everyone wants to “connect” “Grandma joined Facebook!” iPhone 6 … 10 million orders Consequences Example – game attendance Deterioration of soft skills “If you can’t say something nice ….”
Where Do We Start?
First Amendment Overview
This is Speech After All … Right?!? Tinker v. Des Moines Ind. Sch. Dist. (1969) USSC recognizes students’ right to free speech on and off campus Students have right to free speech unless it “materially disrupts class work or involves a substantial disorder or invasion of the rights of others” Hazelwood Sch. Dist. v. Kuhlmeir (1980) First Amendment protections did not compel a public school to affirmatively sponsor speech that conflicts with its “legitimate pedagogical goals” even though same speech could not be regulated outside of school
Analysis of Speech Key Question: Does the speech from outside school walls cause a substantial disruption in school? If YES, discipline may be appropriate In NO, discipline not likely appropriate
Student Issues Abound Sampling of recent headlines … Lawsuit alleges Mississippi district expelled him for online posting of nude photo of classmate New Jersey district settles lawsuit with student disciplined for profane off- campus tweet about principal Parents file claim against San Diego district after cyberbullying incident led to student’s suicide Father of bullied student who committed suicide sues Illinois district and producers of anti-bullying video Oregon district settles student’s lawsuit over high school dance team’s social media policy Former student sues Minnesota district after “sarcastic” tweet leads to seven-week suspension … from the past 8 months
Recent Cases – First Amendment Bell v. Itawamba Cty. Sch. Bd. __ F.3d __ (5 th Cir. 2014) S.J.W. v. Lee’s Summit R-7 School Dist. 696 F.3d 771 (8 th Cir. 2012) Kowalski v. Berkeley Cty. Schools 652 F.3d 565 (4 th Cir. 2011) J.S. v. Blue Mountain Sch. Dist. 650 F.3d 915 (3 rd Cir. 2011) Layshock v. Hermitage Sch. Dist. 650 F.3d 205 (3 rd Cir. 2011)
Recent Cases – First Amendment J.C. v. Beverly Hills Unified Sch. Dist. 711 F.Supp.2d 1094 (C.D. Calif. 2010) Evans v. Bayer 684 F.Supp.2d 1365 (S.D. Fla. 2010) Doninger v. Niehoff 527 F.3d 41 (2 nd Cir. 2008) J.S. v. Bethlehem Area Sch. Dist. 807 A.2d 847 (Pa. 2002)
Basic Principles Extracted Assessing a “Substantial Disruption” Use Caution Be Realistic Inconvenience not enough Embarrassment not enough Key elements Violence Threats Safety Criminal Activity Courts Don’t Always Cooperate
On-Campus v. Off-Campus Conduct
Remember … First Amendment considerations Tinker Hazelwood Can police off-campus speech “Substantial Disruption” Consider safety, threats, violence Nexus to school activities
Wynar v. Douglas Cty. Sch. Dist. Student sent “increasingly violent and threatening” messages via Myspace from home about weapons and threatened to shoot people at school on a specific date Threats are definitely speech that would reasonably lead school officials to “forecast substantial disruption” Citation: Wynar v. Douglas Cty. Sch. Dist., 728 F.3d 1062 (9 th Cir. 2013)
Nixon v. Hardin County Bd. of Educ. Student tweeted about shooting/killing another student First Amendment concern – can schools regulate off campus online speech by students? Held: Speech (tweets) had no connection to school other than speaker and target being students there Speech not at school, directed at school, or involved school time or equipment. There was no disruption to school. School’s Motion for Summary Judgment on First Amendment claim denied Hard to explain outcome; Court was wrong Citation: 988 F.Supp.2d 826 (W.D. Tenn. 2013)
Fourth Amendment Issues
Internet Privacy Protection Act Public Act 478 of 2012 Sec. 4. An educational institution shall not do any of the following: (a) Request a student or prospective student to grant access to, allow observation of, or disclose information that allows access to or observation of the student’s or prospective student’s personal internet account. (b) Expel, discipline, fail to admit, or otherwise penalize a student or prospective student for failure to grant access to, allow observation of, or disclose information that allows access to or observation of the student’s or prospective student’s personal internet account. NOTE: Sec. 3 provides similar restrictions for employers
Search & Seizure - Students Standard for Police Warrant for search Standard for School Administrators Two-Step Inquiry [TLO v. New Jersey] Reason to suspect student violated SCC? Reason to suspect evidence of violation of SCC exists in the area you want to investigate/look? Confirmed by GC v. Owensboro Public Schools (March 2013)
Search & Seizure Practical Examples: Things v. Information Things Search for Stolen iPad Search for a Weapon Search for Drugs Information Law Not Well-Developed Search for Texts Search for Photos Consent Issues Can be addressed via policy Reasonable expectation of privacy? Use what you have at your disposal!
R.S. v. Minnewaska Area Sch. Dist. Factual Background Factors to consider to determine if search is reasonable: The scope of the legitimate expectation of privacy at issue The character of the intrusion complained of The nature and immediacy of the governmental concern at issue and the efficacy of the means employed dealing with it Bottom Line – They Went Too Far IPPA Implications in MI Citation: 894 F.Supp.2d 1128 (D. Minn. 2012)
Rosario v. Clark County Sch. Dist. Student tweets “Mr. Isaacs is a b*tch too” “I hope Coach brown gets f*ck*d in tha *ss by 10 black d*icks” “F*ck coach browns b*tch *ss” “AND Ms. Evans b*tch *ss boyfriend too He a p*ssy *ss n*gg* tryna talk sh*t” Student argued school violated his Fourth Amendment rights by searching his Twitter account Court finds student had no reasonable expectation of privacy in his tweets Student had private Twitter account but court says that’s irrelevant The school accessed his tweets through one of student’s followers Where person tweets to his friends he runs the risk that the friend will turn it over to the government Note: First Amendment protections applied Citation: 2013 US Dist. LEXIS 93963 (D. Nev. 2013)
Employee/Staff Issues Problematic, Though Generally Less Pervasive Intentional v. Unintentional Recent examples Clear Expectations Acceptable Use Policies Digital Communications & Social Media Policies Guidance Often Ignored “I won’t be the one …” “Everyone else has it …” “No one will ever see my posts …” Consequences, Be Damned! Freedom of speech/privacy advocates Generational Issues?
“Employer demands Facebook login credentials during interview” Headline - Feb. 20, 2011 Officer for Maryland Division of Corrections (DOC) forced to hand over login credentials during interview DOC wanted login information for background checks Difference between checking what job applicant posted publicly online and private information Officer had highest privacy settings, likened it to government agency going through his personal mail Federal Stored Communications Act implications
Practical Guidance Searching Staff Activities on District Network District AU and Other Policies Rule Tougher standards Less wiggle room Easier to investigate Easier to discipline Recent examples Porn Search at Work
Free Speech Has Its Limitations Assumptions Don’t Match Reality Speech of Public Employees is Closely Scrutinized Garcetti v. Ceballos (2006) A public employee’s speech concerning his or her job duties was not entitled to First Amendment protection Lane v. Franks (2014) A public employer may not retaliate against a public employee for giving truthful testimony, under subpoena and under oath, where testifying in court is not part of the employee’s job
Social Media and Tenured Teachers Relative to the World of Social Media … The Case of Anna Land The “Jobbie Nooner Case” Middle school teacher, tenured “A simulated act of fellatio with a male mannequin” Photos posted to Internet Images spread like wildfire – community concerns, etc. Terminated by District Dismissal reversed by State Tenure Commission (Early 2009) STC decision affirmed by Michigan Court of Appeals (May 2010)
What We Think We Know: Guiding Principles from Land Adverse Effects Doctrine (Beebe) Given the presumption of fitness engendered by tenure status, 'just and reasonable cause' can be shown only by significant evidence proving that a teacher is unfit to teach. Because the essential function of a teacher is the imparting of knowledge and of learning ability, the focus of this evidence must be the effect of the questioned activity on the teacher's students. Secondarily, the tenure revocation proceeding must determine how the teacher's activity affects other teachers and school staff. [T]he likelihood that the conduct may have adversely affected students or fellow teachers, the degree of such adversity anticipated, the proximity or remoteness in time of the conduct, the type of teaching certificate held by the party involved, the extenuating or aggravating circumstances, if any, surrounding the conduct, the praiseworthiness or blameworthiness of the motives resulting in the conduct, the likelihood of the recurrence of the questioned conduct, and the extent to which disciplinary action may inflict an adverse impact or chilling effect upon the constitutional rights of the teacher involved or other teachers.
What We Think We Know: Guiding Principles from Land Misconduct Needed Too Absent misconduct, consideration of negative publicity surrounding a teacher's behavior would run afoul of the purpose of the Teachers' Tenure Act to protect the rights of competent teachers to teach. Thus, while we agree that it was unfortunate that students gained access to the photographs in this case, we expressly disavow any suggestion that negative publicity alone, absent a showing of underlying professional misconduct, can provide reasonable and just cause for discipline under the Teachers' Tenure Act.
What We Think We Know: Guiding Principles from Land Adverse Effects + Misconduct = Grounds to Terminate Specific to tenured teachers Specific to offsite, electronic communications, outside District network Not exactly the slam dunk we would hope for
Reason to Hope? Might Land be an aberration? Things to consider … Just Cause v. Arbitrary & Capricious More favorable STC Overall tenor of discussion, increased knowledge about online activities Would the outcome be different today? Tough to predict Above items suggest yes, but case language a challenge
Geissler v. Independent School District #2154 Teacher seen viewing pornography on computer Investigation revealed 200,000 pornographic web site visits in 15 months Use of District system Terminated; termination sustained - misconduct The frequency with which the claimant violated the school district’s policies and the subject matter of the computer use was a serious violation of the standards of behavior the school district had the right to reasonably expect of the employee
Munroe v. Cent. Bucks. Sch. Dist. Teacher with a personal blog Negative blog posts about administration and students Terminated; sued alleging First Amendment harassment and retaliation Postings were “far from implicating larger discussions of education reform, pedagogical methods, or specific school policies” and “mostly complained about the failure of her students to live up to her expectations” Case dismissed Citation: 2014 U.S. Dist. LEXIS 101571 (E.D. Penn. July 25, 2014)
Rubino v. City of New York Student drowned during field trip Next day teacher posted on Facebook “the beach sounds like a wonderful idea for my 5 th graders! I HATE THEIR GUTS!” “Friend” commented “you would let little Kwame float away” to which teacher responded, “Yes I wouldn’t throw a life jacket in for a million!” Postings shown to administration and investigation began Teacher admitted to writing the postings at a hearing Teacher argued termination would be arbitrary and capricious; she had clear employment history, and her comment bore no relation to teaching ability Alleged infringement of First Amendment rights Court held termination was not arbitrary and capricious but the punishment was not proportionate to her offense; termination was inconsistent with first amendment freedom of speech Citation: 34 Misc. 3d 1220(A) (N.Y. Sup. Ct. 2012)
Practical Guidance Strong Policies All communication driven through District network All communication educational in nature only Dilemma – 21 st Century Learning v. Inappropriate Actions Prohibition on connecting with current students (encourage?) Twitter assignments/communication Training / Communication of Expectations is Paramount Need for open dialogue with staff/EA Investigation Conversation with employee Case by Case on how hard to push
Practical Guidance Social Media in Hiring Background Checks What are you looking for? Beware - Discrimination Issues Remember IPPA Discipline/Discharge Look for nexus between conduct and educational impact Misconduct?
Cyberbullying Defined “Willful and repeated harm inflicted through the use of computer, cell phones, and other electronic devices” T.K. v. NYC Dept of Ed, 779 F.Supp.2d 289 (E.D.N.Y. 2011) “When the Internet, cell phones, or other devices are used to send or post text or images intended to hurt or embarrass another person” www.ncpc.org/cyberbullying
How is Cyberbullying Different? Attacks can be anonymous Bullying can go viral Bully does not see emotional toll the bullying creates Absence of monitoring / lack of knowledge by parents, teachers 24/7 in nature 2010 Study – 10-18 years old 20.8% cyberbullied in lifetime 7.5% cyberbullied in last 30 days 16% of high school students cyberbullied in past year