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Advisors and Legal Counselors in Education Electronic Age Headaches Lewis, King, Krieg and Waldrop, P.C. Education Practice Team 2009 - Chuck Cagle, PG.

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Presentation on theme: "Advisors and Legal Counselors in Education Electronic Age Headaches Lewis, King, Krieg and Waldrop, P.C. Education Practice Team 2009 - Chuck Cagle, PG."— Presentation transcript:

1 Advisors and Legal Counselors in Education Electronic Age Headaches Lewis, King, Krieg and Waldrop, P.C. Education Practice Team Chuck Cagle, PG Leader - Larry Giordano, Knoxville PG Leader - Sam Jackson, Nashville Advisors and Legal Counselors in Education

2 LK 2 DISCLAIMER And NOTICE The information that is provided herein is believed to be accurate. However, this information should not be considered legal advice on any particular topic. Information provided is general in nature, and all fact patterns are potentially different. The results of each matter are dependant upon the facts of that matter. You thus should not act on information contained herein without seeking professional legal advice related to your particular circumstances.

3 Advisors and Legal Counselors in Education LK 3 Technology Students Use Hand-held electronic devices – Cell Phones/Camera Phones – PDAs – Ipods, MP3 Players, Discmans – Beepers and Pagers Computers – At school – At home

4 Advisors and Legal Counselors in Education LK 4 How Has The Law Kept Up? Concerns in a post-Columbine, post 9/11 world Widespread use of the devices and parents’ concerns about their children’s safety are competing with policies that disallow student use School systems must develop a uniform policy

5 Advisors and Legal Counselors in Education LK 5 Uniform Policy Complete ban –Students are prohibited from having beepers and cell phones in school –Devices will be confiscated and returned only to a parent –Second time a student possesses one of these electronic devices, it will be turned over to Administration and the student must serve detention to have the phone returned to the parent –Personal electronic devices of all sorts (CD players, MP3 players, etc.) are not allowed –School does not assume any responsibility should these items be lost, damaged or stolen

6 Advisors and Legal Counselors in Education LK 6 Uniform Policy Limited access at principal’s discretion –Students may possess personal communication devices while on school property during the regular school day –Personal communication device must be in the off mode and placed in a backpack, pocketbook, or locker –Principal may grant a student limited use –Device used in violation of policy or in abuse of the limited grant of permission will result in confiscation until such time as it may be released to the student’s parent or guardian –Student violations are subject to disciplinary action

7 Advisors and Legal Counselors in Education LK 7 Other Concerns Invasion of privacy concerns Cell phone cameras

8 Advisors and Legal Counselors in Education LK 8 Computer Usage At School Computer/Internet usage policies – a must What employees and students are allowed to access –Employees and students are prohibited from installing any software on any computer unless authorized in writing by a member of the IT Department –Illegal downloads or use of copyrighted software, music, videos, pictures or other files is strictly prohibited –Only compatible, legitimate and approved school related software is acceptable

9 Advisors and Legal Counselors in Education LK 9 Computer Usage At School Signed agreement by student and parent –A written parental request shall be required prior to a student’s being granted independent access to electronic media involving district technological resources –The required permission/agreement form shall be signed by the users and the parent/legal guardian –Document kept on file

10 Advisors and Legal Counselors in Education LK 10 Computer Usage At School Signed agreement by student and parent –A written parental request shall be required prior to a student’s being granted independent access to electronic media involving district technological resources –The required permission/agreement form shall be signed by the users and the parent/legal guardian –Document kept on file

11 Advisors and Legal Counselors in Education LK 11 Signed agreement by student and parent A written parental request shall be required prior to a student’s being granted independent access to electronic media involving district technological resources The required permission/agreement form shall be signed by the users and the parent/legal guardian Document kept on file

12 Advisors and Legal Counselors in Education LK 12 School System Responsible and ethical use system may not be used for –Personal gain –Political or religious purposes –Or in any illegal, offensive or unethical manner system is only for legitimate school communication The school system reserves the right –Access any employee’s for any business purpose and –For inspection for disciplinary or legal actions

13 Advisors and Legal Counselors in Education LK 13 As Evidence FRCP 26 Zubulake v. UBS Warburg LLC Metadata

14 Advisors and Legal Counselors in Education LK 14 Home Computers Generally School Has No Control First Amendment/Free Speech Rights –Neither students nor teachers “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate” Exceptions –True Threats

15 Advisors and Legal Counselors in Education LK 15 True Threats Statement a reasonable person would interpret as a serious expression of an intention to inflict bodily harm upon or take the life of [the target] To determine if a statement is a true threat courts consider –Speaker’s intent –Victim’s reaction to the alleged threat –Was communicated directly to its victim –Was the threat conditional, and –Whether the victim had reason to believe that the maker of the threat had a propensity to engage in violence

16 Advisors and Legal Counselors in Education LK 16 Exceptions Disruption to the school environment or specific fear of substantial disruption” or “substantially interferes with the educational process.” –May only punish a student for his speech [on an off-campus website] if that speech “substantially interfered with the work of the school or impinged upon the rights of other students.” –The courts have allowed school officials to discipline students for conduct occurring off school premises “where it is established that the conduct materially and substantially interferes with the educational process.”

17 Advisors and Legal Counselors in Education LK 17 SPECIFIC CASE LAW OFF-CAMPUS COMPUTER USAGE/DISCIPLINE ISSUES : Facts - Student posted a website from his home computer where –He assumed the identity of the principal including a picture –Posted pictures of female students with derogatory and/or suggestive comments made by the “principal” –Upon discovery student is placed in an alternative school – an assignment that is refused – Injunctive relief was sought to prevent alternative school assignment Holding – For the school

18 Advisors and Legal Counselors in Education LK 18 Offensive parody profile of principal on MySpace.com Facts - Student created what he characterized as a parody of the Principal on website MySpace.com –Student created a question and answer section using crude and juvenile language –Parody was created using the student’s grandmother’s computer during non-school hours –No school resources were used except a photo copied from the school’s website –Student was disciplined –Student and parents filed a complaint alleging violation of First Amendment rights Holding – For the School

19 Advisors and Legal Counselors in Education LK 19 Rap songs depicting violence towards students Facts – Student was expelled two years because of four rap songs he wrote and recorded in his home –None of the songs and recordings were brought to school –The songs depicted violence towards other students –Student claimed his First Amendment rights were violated Holding – For the student

20 Advisors and Legal Counselors in Education LK 20 Website with list of “people I wish would die” Facts – Student was expelled from school because his personal website, entitled Satan’s web page –Listed “people I wish would die,” “people that are cool,” movies that rock,” “music I hate,” and “music that is cool” –Near the bottom of the page, it stated: “SATAN’S MISSION FOR YOU THIS WEEK: Stab someone for no reason then set them on fire throw them off of a cliff…. –Killing people is wrong, don’t do it –A parent notified the local police who notified the school –Student claimed violation of his free speech rights Holding – For the student

21 Advisors and Legal Counselors in Education LK 21 Website critical of school administration Facts - A high school student posted a personal website created on his home computer –Vulgar language to criticize school administration –Classmate accessed it on a school computer without the creator's knowledge and showed it to a teacher –Principal disciplined the student without conducting an investigation –Several witnesses testified that when the student's website was accessed it did not cause a disruption in the school –Principal suspended the student for 10 days and prohibited him from posting anything on the website critical of the high school –The student removed the website and served his suspension –He received failing grades in all courses as his suspension fell under the school's unexcused absences policy –Student filed suit alleging the disciplinary actions violated free speech Holding – For the student

22 Advisors and Legal Counselors in Education LK 22 Satirical Website that Parodied School Assistant Principal Facts - High school student was expelled after the school became aware of a satirical website created on home computer –Site parodied an assistant principal by superimposing his head on photographs and animated characters –Captions placed the assistant principal in embarrassing situations, such as making it appear that he participated in a Nazi book burning, was a spokesperson for Viagra, and engaged in sex with livestock –School officials made it clear that the student was being disciplined solely on the basis of the content of his website –The student filed suit in state court under § 1983 against the school district, alleging violations of free speech and due process rights Holding - Court denied student‘s due process claim and granted the school district's motion to dismiss. However, it granted the student summary judgment on the free speech claim

23 Advisors and Legal Counselors in Education LK 23 ed derogatory “top ten” list about school athletic director Facts - Zachariah Paul, a member of the track team compiled a "top ten" list about the school's athletic director – Paul's list contained several derogatory comments – Was created on Paul's home computer –Was never distributed it either electronically or in print on campus –Another student reformatted the list and distributed it on school grounds. –Following a hearing, Paul was suspended for 10 days for violating the school's policy prohibiting "verbal/written abuse of a staff member.“ Holding – For the student

24 Advisors and Legal Counselors in Education LK 24 Student’s draft letter referencing killing another student Facts - Angry about the break up with his girl friend student J.M. wrote two drafts of a letter in which he made references to killing her –Drafts were composed at home –Mutual friend took a copy without permission and gave it to girl friend who in turn showed it to her friends who showed it to principal –After student meeting principal recommended a one year explosion for "terroristic threatening" as defined in the school district's student handbook –After parent meeting Director of Student Services recommended a one semester suspension with alternative school during his suspension –Parents appealed the recommendation and the school board extended the expulsion to the end of the school year and barred student from attending alternative school –Student filed suit alleging that the expulsion violated his free speech rights Holding – For the student

25 Advisors and Legal Counselors in Education LK 25 Expulsion of student for “inappropriate website” Facts - a middle school student was initially suspended and later expelled from school for 80 days for obscenity, disobedience, and inappropriate action pursuant to the student conduct code –School district stated that his "inappropriate website" was the major concern –Website was created on his home computer and on his own time –Student filed suit claiming the school district violated his First Amendment freedom of expression rights –School district countered that it did not discipline him for posting the website –Rather its actions were due to vulgar speech at school and violation of the school's Internet use policy by accessing an unauthorized website using a school computer Holding - The court stated that the district could restrict student’s freedom of expression if it could demonstrate that his speech "materially and substantially interfered with the requirements of appropriate discipline in the operation of the school."

26 Advisors and Legal Counselors in Education LK 26 Injunction prevents expelling student for “battle rap” songs Facts - Over a two-year period student wrote and recorded four rap songs, known as "battle rap," containing violent lyrics about shooting other students –Although the songs were sold on the Internet or in the community, they never were disseminated at school. –When the School District officials learned of the songs, they suspended student and later expelled him on the ground that he had engaged in terroristic threats and harassment –Parents sued alleging violation of right to free speech. They sought a preliminary injunction to prevent expulsion. A Pennsylvania federal district court issued a preliminary injunction to prevent a school district from expelling a student who wrote and recorded rap songs containing violent and profane lyrics at home Holding – For the student

27 Advisors and Legal Counselors in Education LK 27 PROPOSED POLICY Students shall not be in possession of operating personal communication devices, such as pages, cellular phones, IPods, and PDAs, while on school property during school hours. For after school activities, the use of these devices shall be at the discretion of the activity sponsor A personal communication device is a device that emits an audible signal, vibrates, displays a message or otherwise summons or delivers a communication to the possessor A teacher, administrator, or school employee who discovers a student in possession of a personal communication device shall report the violation to the principal

28 Advisors and Legal Counselors in Education LK 28 PROPOSED POLICY First Offense: The confiscated device will be returned to the student at the end of the school day Second Offense: The confiscated device will be held in the office of the school principal for 3 days and returned to the student. The student shall be required to re-sign a copy of the policy indicating an understanding of the provisions herein Third Offense: The student shall be assigned to the in-school suspension program for a period not exceeding 2 days. The device will be held in the office of the principal until the parent appears to claim the device. The parent will be required to sign a copy of this policy indicating an understanding of the provisions

29 Advisors and Legal Counselors in Education LK 29 PROPOSED POLICY Fourth Offense: Student assigned to ISS/Alternative School and the device confiscated for return not earlier than 60 days after confiscation Fifth and Subsequent Offenses: Assignment to Alternative School. Student banned from bringing a device onto campus for not less than 24 months from date of infraction Students who possess a personal communication device are in violation of this policy and school rules are also subject to related disciplinary action, e.g., assignment to Alternative School

30 Advisors and Legal Counselors in Education LK 30 Summary Imperative you develop a uniform student policy for the use of electronic devices, media and the internet and it should be signed by both –Student and – Student’s parents or guardian Employee policy on the use of technology – a must Consult with your legal advisor if “true threats” and/or investigations arise

31 Advisors and Legal Counselors in Education LK 31 Your Questions?


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