1. UCS ASSISTANT PRINCIPALS MEETING WEDNESDAY, FEBRUARY 4, 2015 Legal Update: Effectively Navigating Student Issues in the Era of Social Media Presenter: Kevin T. Sutton Want to download this presentation? Do it now: www.luskalbertson.com/UCS-AP

2. How Social Media Questions Make Us Feel …

3. Challenges 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

4. Intersecting Concepts Free Speech Policy Search & Seizure Privacy Discipline Safety Parents Cyber- Bullying Disruption Evidence

5. We used to think we had a pretty good grasp on this stuff …

6. But “Social Media” is so much more than most people think …

7. 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 ….”

8. Where Do We Start?

9. First Amendment Overview

10. 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

11. Analysis of Speech Key Question: Does the speech cause a substantial disruption in school? If YES, discipline may be appropriate In NO, discipline not likely appropriate

12. Student Issues Abound Sampling of 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 6 months

13. The Courts Speak … Recent Cases 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)

14. The Courts Speak … Recent Cases 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)

15. 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

16. On-Campus v. Off-Campus Conduct

17. Remember … First Amendment considerations  Tinker  Hazelwood Can police off-campus speech  “Substantial Disruption”  Consider safety, threats, violence  Nexus to school activities

18. 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)

19. 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)

20. Fourth Amendment Issues

21. 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

22. 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)

23. 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!

24. 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)

25. Chaney v. Fayette County Pub. Sch. Dist. County-wide “Community Awareness Seminar” Presentation included picture of 17 year old female student in a bikini found on FB Picture included student’s full name Student alleged violation of her Constitutional right to privacy under the 4 th and 14 th amendments Court dismissed her claims because she had no expectation of privacy in a picture she posted to “friends” and “friends of friends” (broad privacy setting) Citation: 977 F. Supp. 2d 1308 (N.D. Ga. 2013)

26. 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)

27. “Schools pay $70k to Minnesota student forced to give up Facebook password” Headline - March 27, 2014 School officials and police made female student, Riley, give up her password and look through her account No parent present Riley made post about a mean teacher’s aide and got in- house suspension Mother of a different student found out about sexual online chat between Riley and her son; Riley’s account was searched Riley switched to home school because of it all New school policy: students’ electronic records can only be searched when reasonable suspicion that school rules have been violated

28. Keys to Student Issues District Policy Student Code of Conduct Limit Usage of Cell Phones in School Limit Expectation of Privacy Seek Consent Apply TLO two-part analysis Seek legal counsel

30. Questions?

31. Resources www.LuskAlbertson.com @LuskAlbertson www.LuskAlbertson.com/UCS-AP