1. METRO BUREAU WEDNESDAY, DECEMBER 10, 2014 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/metrobureau

2. How Social Media Questions Make Us Feel … How We Hope To Feel by Lunch Today …

3. How Do We Get There? Syllabus for Today  Controlling the Use of Technology  First Amendment Considerations  Fourth Amendment Implications  Limitations on Employee Discipline  Permissible Scope of Student Discipline  Cyberbullying  On-Campus v. Off-Campus Conduct  Use of Evidence Gathered Online  Relying on Social Media in Hiring Review of Recent Decisions/Case Law

4. 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

5. Intersecting Concepts Free Speech Policy Search & Seizure Privacy Discipline Safety Hiring/ Firing Cyber- Bullying Disruption Evidence

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

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

8. 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 ….”

9. Where Do We Start?

10. First Amendment Overview

11. 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

12. 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

13. Recent Cases 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) J.C. v. Beverly Hills Unified Sch. Dist.  711 F.Supp.2d 1094 (C.D. Calif. 2010)

14. Recent Cases 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. Fourth Amendment Issues

17. 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

18. 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)

19. 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!

20. 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)

21. 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)

22. 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)

23. “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

24. “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

25. Search & Seizure - Employees Investigating computer activity is often essential; factors in determining an employee’s expectation of privacy on his/her work computer include:  Whether the employer/district maintains a policy banning objectionable use  Whether the employer/district actually monitors the use of the employee’s computer activities  Whether third parties (such as IT Departments) have the right of access to the employee’s computer  Whether the employer/district placed the employee on notice, or the employee was aware of the monitoring policies  Employers should obtain consent, either through acknowledgment or notification

26. Practical Guidance 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

27. Responding to Employee Online Conduct

28. 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?

29. Central Question: What are the standards that govern employee conduct?

30. 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

31. 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)

32. 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.

33. 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.

34. 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

35. Reason to Hope? Might Land be an aberration? Things to consider …  Just Cause v. Arbitrary & Capricious  Discharge/Discipline now a prohibited subject of bargaining  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

36. Illustrative Cases Federal suit charges district’s superintendent failed to end sexting by teacher  Substitute teacher / nephew of Superintendent  “Thousands” of graphic messages sent through text, email, and chat to female students, all minors  Superintendent, teacher, and Board member all aware  No action taken against substitute teacher … at first  After substitute arrested, District terminated him  Federal civil rights lawsuit, alleging sexually hostile educational environment

37. 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

38. Illustrative Cases ISD #284  No just cause to discharge teacher, even though he spent inordinate amount of time on computer when he should have been concentrating on teaching students  Chart used by District to show time spent on web was exaggerated  Discipline not warranted under progressive discipline Monterey County  No just cause to discharge employee who read and printed out co- worker’s email, even though email related to investigation of employee, where employee had permission to get on co-worker’s computer for anti-virus work  AUP did not provide that info on computers was private

39. 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)

40. 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)

41. Medina County Board of Education (Arb) Students added inappropriate programs (violent games) to their computers Teacher responsible for supervision Written reprimand Discipline was not arbitrary and capricious Even if not an expert in computers, teacher should have maintained a more watchful eye on student activities

42. 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

43. 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?

44. Dealing With Student Issues

45. 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 5 months

46. 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

47. On-Campus v. Off-Campus Conduct

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

49. 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)

50. 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)

51. Cyberbullying

52. 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

53. 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

54. Cyberbullying Examples Megan Meier, Missouri Ryan Halligan, Vermont Jessica Logan, Ohio

55. Responses to Cyberbullying State laws  Matt’s Safe School Law, MCL 380.1310b District-level policies Consider “substantial disruption” on school environment Practical approach to resolution, if possible Education

56. Use of Evidence Gathered Online

57. Legal Standards for Evidence Evidence must be properly authenticated  FRE 901  MRE 901 MRE 901(a): authentication is evidence sufficient to support finding that the matter in question is what its proponent claims

58. Illustrative Cases In the Matter of Russell No. 303586, 2012 Mich. App. LEXIS 1418 (Mich. Ct. App. July 24, 2012) Court allowed in evidence of mother on a website soliciting prostitution in parental termination case The evidence was admitted because a witness confirmed that the individual on the website was the mother through their direct correspondence In the interest of ADW 821 N.W.2d 778 (Iowa Ct App 2012) Parental rights termination case Court did not allow into evidence picture from mother’s FB of a marijuana- growing operation because the state (who offered it into evidence), could not authenticate it The state had no personal knowledge about the picture, did not know who posted it, and had nothing to prove the mother even knew it was on her profile

59. Illustrative Cases Parker v. State 85 A.3d 682 (Del. 2013) Appellant argued lower court erred by entering statements posted on her FB profile She argued for the court to use the Maryland approach: social media evidence can only be authenticated through testimony of the creator, documentation of internet history or hard drive of creator’s computer, or information obtained directly from social networking site Ct adopted Texas approach: proponent can authenticate social media evidence using any type of evidence so long as he can demonstrate that a jury could reasonably find the evidence is authentic People v. Dabish No. 301622, 2013 Mich. App. LEXIS 1384 (Mich. Ct. App. Aug. 13, 2013) Defendant sought to introduce emails from murder victim to show victim’s state of mind Emails excluded because defendant could not authenticate them. He could prove his receipt of them but he could not prove that they were written and sent by who he purported they were written and sent by

60. Giacchetto v. Patchogue-Medford Sch. Dist. Elementary school teacher diagnosed with adult ADHD Claims she was mocked by the principal when reported diagnosis Disability discrimination claims against the school Issue: School district motion to compel plaintiff to provide authorizations for the release of all records from her social media accounts (Facebook, Twitter, etc.) “The fact that the information [Defendant] seeks is in an electronic file as opposed to a file cabinet does not give [it] the right to rummage through the entire file” The fact that an individual may express some degree of joy, happiness, or sociability on certain occasions sheds little light on the issue of whether he or she is actually suffering emotional distress. If the Court were to allow broad discovery of Plaintiff's social networking postings as part of the emotional distress inquiry, then there would be no principled reason to prevent discovery into every other personal communication the Plaintiff had or sent since alleged incident. Teacher had to produce posts that specifically related to her emotional distress claims she suffered or treatment she received in connection with them the Court sees no basis at this time why Defendant should go through a third-party provider to access Plaintiff's social networking postings when Plaintiff has access to this information herself

61. The Anonymous Tip/The Provided Info Information often comes to District without being aware of it otherwise Take it as you get it Can’t turn a blind eye Can’t be the parent Realistic/practical limitations on what actions can be taken in response

63. Clear as …

64. Questions?

65. Resources/Contact www.LuskAlbertson.com @LuskAlbertson www.LuskAlbertson.com/metrobureau KSutton@LuskAlbertson.com 248-988-5695 - Direct 734-377-7400 - Cell