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School Law: Technology Issues in 1st and 4th Amendment Rights Hanover County Public Schools: 2011 Admin Retreat Bradford King, Esq 100 Shockoe Slip Richmond,

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Presentation on theme: "School Law: Technology Issues in 1st and 4th Amendment Rights Hanover County Public Schools: 2011 Admin Retreat Bradford King, Esq 100 Shockoe Slip Richmond,"— Presentation transcript:

1 School Law: Technology Issues in 1st and 4th Amendment Rights Hanover County Public Schools: Admin Retreat Bradford King, Esq 100 Shockoe Slip Richmond, VA 23219

2 Technology Schools Encounter
Cell/Smart phones Digital Cameras Computers PDAs Pagers E-readers/iPad Electronic mail Blogs Facebook Myspace Twitter Webpages

3 Technology Creates a Myriad of Issues for Public School Boards
In-School versus after-school conduct Division-owned equipment Retrieving stolen technology Social communication between employees and students Privacy and confidentiality Student records Surveillance

4 New Questions What speech is protected?
When can school personnel access technology: computers, cell phones, accounts, blogs? When can school personnel discipline for technology they have accessed? What can school personnel demand be removed from the internet? What is criminal or abusive and must be reported?

5 Where is the School House Gate?
“We are acutely attentive in this context of the need to draw a clear line between student activity that ‘affects matter of legitimate concern to the school community,’ and activity that does not. Thomas v. Bd. of Educ. (2d Cir. 1979) (Newman, J., concurring in the result). But as Judge Newman accurately observed some years ago, ‘territoriality is not necessarily a useful concept in determining the limit of [school administrators'] authority.’ “True enough in 1979, this observation is even more apt today, when students both on and off campus routinely participate in school affairs, as well as in other expressive activity unrelated to the school community, via blog postings, instant messaging, and other forms of electronic communication.” Doninger v. Niehoff, (2nd Cir. 2008) Thomas v. Bd. of Educ., 607 F.2d 1043, 1058 n.13 (2d Cir. 1979)


7 First amendment: students

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

9 No First Amendment Protection: In General
Libel Obscenity Incitement A "true threat”/fighting words Likely to result in a breach of peace As a means to successfully commit a crime Virginia v. Black, 538 U.S. 343 (2003) Crime: Rice v. Paladin Enterprises, Inc., 128 F.3d 233, 244 (4th Cir. 1997) (noting that the justifications for free speech that apply to speakers do not reach communications which are simply means to get a crime successfully committed) New York Times v. Sullivan, 376 U.S. 254 (1964) Miller v. California, 413 U.S.15 (1973) Brandenburg v. Ohio 395 U.S. 444 (1969)

10 First Amendment: Common Curtailments in School
Speaking out of turn in class. Being rude to others. Incorrect or substandard work.

11 STUDENT SPEECH Landmark Decisions
Tinker v. Des Moines Ind. Community Sch. Dist., 1969 a. Silent student protest of Vietnam war; black armbands. b. Pronouncement that “students do not shed their constitutional rights at the schoolhouse door.” c. Balancing test between the individual student’s right and those of the school to maintain order and achieve their fundamental mission: educating students. d. Student speech may be curtailed if there exists a “reasonable forecast of substantial disruption.” e. The disruption must be physical, and be deleterious to the intellectual environment of the school. f. The “reasonableness of the forecast” may not be mere vague apprehension; must be supported by evidence.

12 STUDENT SPEECH Tinker v. Des Moines Ind. Community Sch. Dist., 1969 “Conduct by the student, in class or out of it, which for any reason – whether it stems from time, place, or type of behavior – materially disrupts classwork or involves substantial disorder or invasion of the rights of others is, of course, not immunized by the constitutional guarantee of freedom of speech.” “The First Amendment rights of students in public schools are not automatically coextensive with the rights of adults in other settings.”

13 STUDENT SPEECH Landmark Decisions
2. Bethel School Dist. No. 403 v. Fraser, 1986 a. Lewd speech with sexual innuendos at school assembly. b. “The determination of what manner of speech in the classroom or in the school is inappropriate properly rests with the school board.” c. Difference between non-disruptive political speech (protected) and lewd, vulgar speech (unprotected).

14 STUDENT SPEECH Landmark Decisions
3. Hazlewood Sch. Dist. v. Kuhlmeier, 1988 a. Principal deleted two articles from school newspaper: one described a student’s experience with pregnancy; the other, the impact of divorce. b. Educators do not violate student 1st Amendment rights by exercising editorial control over school sponsored activities, as long as there is a reasonably related pedagogical concern. c. The school newspaper is not a public forum, which enjoys heightened 1st Amendment protection. d. “A school need not tolerate student speech that is inconsistent with its basic educational mission.”

15 STUDENT SPEECH Landmark Decisions 4. Morse v. Frederick, 2007
a. While watching Olympic torch relay past school, students, across from school property but during school day, unfurled 30-foot banner that read “BONG HiTS 4 JESUS.” b. Student who was disciplined claimed the slogan was nonsensical, and designed to attract attention of national television cameras; principal said it violated school’s policy by advocating illegal drug use. c. Court held for school district, on the narrow grounds that a school may restrict student speech that advocates illegal drug use. The Court analyzed the case under Tinker, Bethel and Hazlewood.

16 Outside the Gate Supreme Court has yet to address whether a school can regulate student speech or expression that is: Outside of school Not related to a school-sponsored event But that does make its way into school Whether by the speaker or another person “There is some uncertainty at the outer boundaries as to when courts should apply school speech precedents…” Morse v. Frederick Quote from Morse v. Frederick at 298 Porter v. Ascension Parish School Bd., 393 F.3d 608, 615, n. 22 (CA5 2004), but not on these facts

17 OUTSIDE THE GATE “Schools must achieve a balance between
protecting the safety and well-being of their students and respecting those same students' constitutional rights.” LaVine v. Blaine Sch. Dist., (9th Cir. 2000) See Karp v. Becken, 477 F.2d 171, 174 (9th Cir. 1973); cf. New Jersey v. T.L. O., 469 U.S. 325, , 83 L. Ed. 2d 720, 105 S. Ct. 733 (1985) [**16]  (balancing, in the Fourth Amendment context, students' interest in privacy against  [*988]  schools' interest in maintaining discipline and security).

Speech brought to school* by the speaker. Speech brought to school* by someone other than the speaker. Speech that may foreseeably reach school*. *school = school grounds and school activities Allison Hayes “From Armbands to Douchbags: How Doninger v. Niehoff shows the Supreme Court needs to address student speech in the cyber age.” 43 Akron L. Rev. 247

19 Speech Brought To School
By the Speaker

LaVine v. Blain School Dist. (9th Cir. 2000) Student wrote graphic poems about killing classmates en masse. Poem was not a school assignment, but eventually student brought it to school to show his English teacher. School aware of student’s suicidal ideation, family violence, recent break-up with stalking behavior and more. Student “emergency expelled” from school. Court found that Tinker governed and that, given the totality of the student’s circumstances, it was reasonable for the school officials to fear an actual disruption by the student.

J.S. v. Blue Mountain School District Layshock v. Hermitage School District 3rd Circuit vacated its opinion in each case and reheard the cases en banc on June 3, 2010.

22 J.S. v. Blue Mt. Sch. Dist. Student created a profile on a social networking website that featured the principal’s photograph. Photo copied from school district’s website. Wrote profanity-laced insinuations that principal was a sex addict and pedophile. Profile did not identify the principal by name, school or location. Student given 10-day suspension. Principal agreed to have police question student at police station. Parents claimed violations of First Amendment rights Fourteenth Amendment rights

23 J.S. v. Blue Mt. Sch. Dist United States District Court Ruling:
Profile page did not create a substantial disruption, but . . . Profile page presented a reasonable probability of future disruption, which was avoided by the principal’s quick action. 2-1 decision favored district’s right to punish students for off-campus speech. Decision vacated by the United States Court of Appeals for the Third Circuit in June 2009; re-argued en banc June 2010; final decision June 2011.

24 Layshock v. Hermitage Sch. Dist.
Student used his grandfather’s computer to create a fake internet profile of his principal. Completed a survey on the MySpace page to create the profile, including such entries as: Birthday: too drunk to remember Are you a health freak: big steroid freak In the past month have you smoked: big blunt In the past month have you gone Skinny Dipping: big lake, not big ____ In the past month, have you Stolen Anything: big keg Ever been drunk: big number of times Ever been called a Tease: big whore Even been beaten up: big fag News of the site “spread like wildfire” reaching most, if not all, of his fellow high school students; and other students also created sites. Student was suspended for ten days , placed in an alternative education program, denied participation in extra-curricular activities, and denied participation in graduation excercises. District threatened expulsion. Other students who created similar sites were not disciplined.

25 Layshock v. Hermitage District Court Opinion:
Unanimous 3-judge panel ruled that a student could not be punished for his off-campus speech. Decision vacated by panel of the United States Court of Appeals for the Third Circuit in June 2009; re-argued en banc June 2010; final decision June 2011.

26 J.S. v. Blue Mountain Third Circuit Opinion (8 of 14 Justices joined the Opinion): Because J.S. was suspended from school for speech that indisputably caused no substantial disruption in school and that could not reasonably have led school officials to forecast substantial disruption in school, the school district’s actions violated J.S.’s First Amendment free speech rights. She intended the web-site as a joke; She did not identify the principal by name; J.S. did not intend for the communication to reach the school; Under Pennsylvania statutory law, the school district lacked authority to discipline J.S. for conduct that occurred outside of school during non-school hours.

27 J.S. v. Blue Mountain Strong Dissent:
Opined that the student discipline was permissible because the web-page profile’s potential to cause disruption was reasonably forseeable. Said that the majority erred in precluding schools from protecting teachers and officials against such harassment – by making light of J.S.’s accusations and underestimating the profile’s impact. For instance, the dissent wrote that “accusing school officials of sexual misconduct poses a foreseeable threat of diverting school resources required to correct the misinformation and remedy confusion.” The dissent noted that this can even cause teachers to leave the profession. The dissent also compared these attacks to “cyberbullying” committed by students, which the dissent noted is occuring with increased frequency. It was reasonably foreseeable that the speech at issue would substantially disrupt the classroom environment. “Student speech that targets school officials, is public broadcasted to the school community, and has a reasonably foreseeable substantial disruption on the classroom environment is regulable by schools, whether it occurs on- or off-campus. The regulation of J.S.’s speech served the purposes of preserving the authority and respect of school officials, averting the need to utilize school resources to correct misinformation and remedy confusion, and protecting school officials against the psychological effects of student harassment.”

28 J.S. v. Blue Mountain Strong Dissent (Cont’d):
“I believe our Court errs when it tells a school district how it should handle violation of its policy that are as serious and grave a matter as false accusations of sexual misconduct.” The dissent also pointed out that the majority’s opinion creates a split in the Circuits regarding off-campus hostile and offensive student speech that is directed at school officials resulting in a substantial disruption of the classroom environment (referencing the Second Circuit’s opinions in the Wisniewski and Doninger cases – see below). “The line between ‘on-campus’ and ‘off-campus’ speech is not as clear as it once was The majority embraces a notion that student hostile and offensive on-line speech directed at school officials will not reach the school. But with near-constant student access to social networking sites on and off campus, when offensive and malicious speech is directed at school officials and disseminated online to the student body, it is reasonable to anticipate an impact on the classroom environment. I fear that our Court has adopted a rule that will prove untenable.”

29 Layshock v. Hermitage Third Circuit Opinion (12 of 14 Justices joined Opinion): Layschock’s use of the School District’s website (to lift the principal’s picture) did NOT constitute entering the school, and the School District was not empowered to punish the student’s out-of-school expressive conduct. The School District did not challenge the District Court’s holding that there was not a substantial disruption in school because of Layshock’s conduct. Rather, the School District argued that there was a sufficient nexus between the profile and the School District to permit regulation of the speech as being “on-campus” under the Fraser lewd, offensive and vulgar speech exception to Tinker. The speech here originated outside of the school house, did not disturb the school environment and was not related to any school sponsored event. Under those circumstances, the First Amendment prohibits the school from reaching beyond the schoolyard to impose what might otherwise be appropriate discipline. “We realize, of course, that it is now well-established that Tinker’s “schoolhouse gate” is not constructed solely of the bricks and mortar surrounding the school yard. Nonetheless, the concept of the “school yard” is not without boundaries and the reach of school authorities is not without limits.”

30 Layschock v. Hermitage Majority (Cont’d):
“It would be an unseemly and dangerous precedent to allow the state, in the guise of school authorities, to reach into a child’s home and control his/her actions there to the same extent that it can control that child when he/she participates in school sponsored activities.” The Court’s opinion was limited to whether the School District can limit lewd, vulgar speech originating off-school property, when the School District conceded that it did not substantially disrupt the school environment.

31 Layschock v. Hermitage Concurring opinion:
“For better or worse, wireless internet access, smart phones, tablet computers, social networking services like Facebook, and stream-of-consciousness communications via Twitter give an omnipresence to speech that makes any effort to trace First Amendment boundaries along the physical boundaries of a school campus a recipe for serious problems in our public schools.” “We cannot sidestep the central tension between good order and expressive rights by leaning on property lines. With the tools of modern technology, a student could, with malice aforethought, engineer egregiously disruptive events and, if the trouble-maker were savvy enough to tweet the organizing communications from his or her cell phone while standing one foot outside school property, the school administrators might succeed in heading off the actual disruption in the building but would be left powerless to discipline the student.”

32 Layshock v. Hermitage Concurring Opinion (Cont’d):
“I worry that the combination of our decisions today in this case and in J.S. may send an ‘anything goes’ signal to students, faculties, and administrators of public schools. To the extent it appears we have undercut the reasoned discretion of administrators to exercise control over the school environment, we will not have served well those affected by the quality of public education, which is to say everyone. By way of some little reassurance, then, it bears emphasis that, whatever else may be drawn from these decisions, we have not declared that Tinker is inapplicable to off-campus speech simply because it occurs off campus. Despite differing views on what may constitute a substantial disruption, I hope and believe that we are all mindful of the challenges school administrators face in providing a safe environment, conducive to learning and civic development, for children and young adults. Those challenges have never been greater than they are today. Modern communications technology, for all its positive applications, can be a potent tool for distraction and fomenting disruption. Tinker allows school officials to discipline students based on a reasonable forecast of substantial disruption, without waiting for the chaos to actually hit the hallways. In short, nothing in the First Amendment requires administrators to check their common sense at the school house door.”

33 Personal v. School-Based Causes of Action
Important to distinguish technology-related behavior that: Impacts the educational environment versus Is merely personally insulting. School discipline is not always appropriate. Personal causes of action by administrators against students/parents may be contemplated: Defamation, libel

34 Speech Brought to School
By Someone Other than the Speaker

35 Porter v. Parish School Board 5th Circuit (2004)
Student made a violent drawing while at home. 2 years later student’s brother brought the drawing to school without student’s knowledge. Student disciplined for drawing. Court: “The only intent requirement in a true threat analysis is that the defendant intentionally or knowingly communicates his threat, not that he intended or was able to carry out his threat.” Student did not intend for this communication to reach school and could not reasonably foresee that it would.

36 Beussink v. Woodland R-IV School District (E.D. Missouri 1998)
Student created website that insulted teachers, principal and administrators using vulgar language. Applying Tinker, the Court issued an injunction against school’s proposed discipline since site was not created in school, was not intended to be accessed at school, and had not created a substantial disruption there. The Court emphasized that speech would not be limited solely because it is unsettling to or unpopular with the school’s officials.

37 Killion v. Franklin Regional School District (W.D. Pennsylvania, 2001)
Student created a web-page at home that included a disparaging “top ten” list offensive to school coach and librarian. Student ed the list to friends from his home computer. Student did not print or copy the list to bring it on school premises because, after copying and distributing similar lists in the past, he had been warned that he would be punished if he brought another list to school. Several weeks later, several individuals found copies of the Top Ten list in the Franklin Regional High School teachers' lounge and the Franklin Regional Middle School. An undisclosed student had reformatted student's original and distributed the document on school grounds. Student suspended ten days because the list contained offensive remarks about a school official, was found on school grounds, and the student admitted creating the list. The Court found that the website and did not materially and substantially interfere with school operations, nor did it threaten.

38 Speech that May Foreseeably
Reach the School

39 Wisniewski v. Board of Ed. (2nd Circuit 2007)
Student’s IM icon was a picture of a man being shot in the head with the statement “Kill Mr. VanderMolen” above it. A few weeks earlier student’s class had been instructed that threats would not be tolerated by the school, and would be treated as acts of violence. Student sent IM messages displaying the icon to some 15 members of his IM "buddy list." The icon was not sent to VanderMolen or any other school official. The icon was available for viewing by the student's "buddies" for three weeks, at least some of whom were his classmates at Weedsport Middle School. During that period it came to the attention of another classmate, who informed VanderMolen of the icon and later supplied him with a copy of the icon. School Board suspended middle school student one full month. The Court held that the icon was found to do more than create discomfort among faculty; it posed a “reasonably foreseeable risk of material and substantial disruption of the work and the discipline of school.” The Court also held that the fact that the transmission of the icon occurred off campus did not insulate the student from punishment.

40 Doninger v. Niehoff (D. Connecticut 2007, 2nd Cir. 2008, D
Doninger v. Niehoff (D. Connecticut 2007, 2nd Cir. 2008, D. Connecticut 2009) Frustrated student posted a series of blog messages complaining about the treatment of a school event, “Jamfest,” and encouraging others to call the school principal to complain. The blogs included vulgar language. In between the first and second postings, the principal and student met and the issue was seemingly resolved to the student’s satisfaction. Nonetheless, the second blog contained inaccurate information about the principal’s decisions regarding the event and again encouraged others to call and complain. The principal disqualified the student from running for class office, stating that her conduct “failed to display the civility and good citizenship expected of class officers.” Court found that while it was created off-campus, the student’s intent in writing it was specifically to encourage her fellow students to read and respond.

41 Evans v. Bayer (S.D. Florida, 2010)
Student created Facebook page called “Ms. Sarah Phelps is the worst teacher I’ve ever met!” and encouraged hateful postings. Student suspended 3 days, transferred from AP classes to honors classes. “Student off-campus speech, though generally protected, could be subject to analysis under the Tinker standard as well if the speech raises on-campus concerns.” “The question is whether the fact that [the Student’s] speech was arguably aimed at a particular audience at the school is enough by itself to label the speech on-campus speech.” “Here we have speech that was made off-campus, never accessed on-campus, and was no longer accessible when the school learned of it.” Nor did student access her speech (the Facebook page) at school. Therefore, the Court determined that it was off-campus speech.

42 Evans v. Bayer (S.D. Florida, 2010)
“If school administrators were able to restrict speech based upon a concern for the potential defamation…students everywhere would be prohibited from the slightest criticism of their teachers, whether inside or outside of the classroom. . .” “The student’s speech falls under the wide umbrella of protected speech.” “It was an opinion of a student about a teacher, that was published off-campus, did not cause any disruption on-campus, and was not lewd, vulgar, threatening, or advocating illegal or dangerous behavior.” Next, the Court considered “whether the school administrators have a well-founded belief that a ‘substantial’ disruption will occur.” The Court observed that “a mere desire to avoid discomfort or unpleasantness will not suffice…[T]he government may not prohibit student speech based solely upon the emotive impact that its offensive content may have on the listener.”

43 Evans v. Bayer, Cont’d Principal claimed qualified immunity.
The Court analyzed whether the right claimed by the student was a clearly established right about which the principal should have been aware. The Court observed that “[i]f courts and legal scholars cannot discern the contours of the First Amendment protections for student internet speech, then it is certainly unreasonable to expect school administrators, such as Defendants, to predict where the line between on- and off-campus speech will be drawn in this new digital era.” Nonetheless, the Court denied the principal’s claim for qualified immunity, reasoning that the speech in question clearly fell within the protections of Tinker.

44 J.C. v. Beverly Hills Unified School Dist., (C.D. Cal. 2010)
Student made video off school property of friends talking in vulgar and abusive terms about a fellow student; posted video on YouTube; called other students and invited them to view video, including student who was subject of video. Parent of student who was subject of video complained to school; student felt humiliated, had hurt feelings, and went to school counselor. School administrators investigated video, including interviewing students who appeared on the video. No students viewed YouTube video at school. Administration suspended student who made video for two days. Court recognized, in applying Tinker, that the Supreme Court has not yet addressed whether a school can regulate student speech that occurs outside the school gates and is not connected to a school-sponsored event, but that subsequently makes its way onto campus. Court rejected Plaintiff’s argument that the location of the speech is wholly dispositive.

45 J.C. v. Beverly Hills, Cont’d
Nonetheless, the Court held that even as it was reasonably foreseeable that the speech would arrive on school campus, it did not create a foreseeable risk of substantial disruption as required by Tinker. The speech at issue was not threatening or violent – there were no threats to harm the student who was the object of the comments. The speech did not result in the administration being pulled away from ordinary tasks to respond to or mitigate the effects of the speech – but merely to conduct a traditional student discipline investigation regarding a student whose feelings had been hurt. A fear that other students might gossip or pass notes about the speech was insufficient to rise to the level of a substantial disruption. The Court granted the Plaintiff’s summary judgment motion. However, it also granted the individual defendants’ motions for qualified immunity: “Certainly, the contours of a student’s First Amendment right to make a potentially defamatory and degrading video about a classmate, which is almost immediately brought to the School’s attention, are not clearly established.”

46 [Student] v. Montgomery County School Board, Circuit Court of Montgomery County, 2008
Middle school student served three-week out of school suspension for multiple infractions of the school’s Student Code of Conduct, including intolerant statements, racial slurs and threats of violence made off school property and over the phone to African-American students. Threats of violence so seriously jeopardize a school’s mission and the ability to safeguard the welfare of its students that punishment for violent off-campus speech is absolutely justifiable – Makemson v. Chesapeake Public Schools, Circuit Court for City of Chesapeake, 2000. Student phone calls and classroom comments impacted school operations and put welfare of students in jeopardy such that school acted within its discretion to discipline student for both on and off campus speech.

47 A.W. v. Fairfax A.W. v. Fairfax County School Board (4th Cir. 2004)
18 year old student with Asperger’s Syndrome suspended for taking photo under female classmate’s skirt with cell phone camera and distributing it to other students. “Manifestation Determination Review” concluded misconduct not a result of student’s disability & education plan team recommended expulsion. At the time, student on probation for sending death threat by (subject of A.W. v. Fairfax County School Board, 4th Circuit, 2004). Court upheld MDR Team decision. 372 F.3d 674; 2004 U.S. App. LEXIS 12701; 11 Accom. Disabilities Dec. (CCH)

48 STUDENT SPEECH Practical Applications
1. What about underground/off campus newspapers or other non-school publications distributed by students at school? 2. What about web site postings critical of teachers or the school? 3. What about web site postings and s threatening other students or teachers?

49 Out-of-School Speech Consider whether the school is concerned with: the speaker; the person who brought the speech to school; or both. Is the speech advocating a crime, obscenity? Did the speaker intend for the speech to reach campus? Did the speaker reasonably foresee that it would reach campus? Was there a disruption? Was there a substantial likelihood of a disruption?

50 First amendment: EMPLOYEES

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

52 FIRST AMENDMENT: EMPLOYEES Pickering v. Board of Education (1968); Mt
FIRST AMENDMENT: EMPLOYEES Pickering v. Board of Education (1968); Mt. Healthy School Dist. v. Doyle (1977); Connick v. Myers (1983) Statements by public officials on matters of public concern generally must be accorded First Amendment protection. Unless they interfere with the public employee’s ability to perform her duties. Givhan v. Western Line Consol. Sch. Dist., 439 U.S. 410 (1979) When a teacher speaks publicly, it is generally the content of his statements that must be assessed to determine whether they in any way either impeded the teacher's proper performance of his daily duties in the classroom or interfered with the regular operation of the schools generally.

53 Teachers & Social Networking Sites
The problem: faculty & staff posting uncensored images depicting bad behavior and/or caustic comments concerning colleagues, school administrators, students, or the workplace on public websites like personal blogs, Facebook, MySpace, and Friendster. Discipline for off-duty, online misconduct by public school employees is justified when: disruptive to school environment impairs teacher’s ability to perform duties discloses confidential or sensitive student information and school records defames the school or its personnel

54 Employees and First Amendment
Insubordination, inadequate performance, and immoral or unprofessional conduct often cited as causes for teacher dismissal keep in mind that continuing contract faculty can be dismissed only with regard to the school board’s definition of cause sufficient for termination some policies look to whether conduct is remediable or irremediable criminal conduct irremediable per se documentation of illegal behavior on social networking sites will be classified as irremediable and give cause to terminate Discipline for general misuse, such as posting unbecoming or compromising online photos and recounting tales of unprofessional recreation nexus test: Does the behavior significantly and negatively impact the teacher’s ability to perform his or her job? broad discretion afforded school board in making this call based on community norms

55 Employees & Technology
Employee Misconduct and Technology Inappropriate postings on Facebook, websites, blogs, etc. Inappropriate conduct captured on YouTube Inappropriate text messages to students Subject matter Volume During school hours During after-school hours

56 VDOE Guidelines for the Prevention of Sexual Misconduct and Abuse in Virginia Public Schools
Adopted: Virginia Board of Education – March 2011 Protecting students is a shared responsibility of school board, superintendent, administrators, teachers, parents, and other state agencies. Re-affirm employee background checks and various reporting requirements. Require school boards to adopt polices, including certain elements. Provide specific guidance regarding the use of electronic communication: Policies should ensure that electronic and on-line communications between employees, volunteers and individual students is transparent, accessible to supervisors and parents, and professional in content and tone. Educators should avoid the appearance of impropriety and refrain from inappropriate electronic communications with students.

57 VDOE Guidelines (Cont’d)
Factors that may be included in determining whether communications are appropriate: The subject, content, purpose, authorization, timing and frequency of the communication; Whether there was an attempt to conceal the communication from supervisors and/or parents; Whether the communication could be reasonably interpreted as soliciting sexual contact or a romantic relationship; and Whether the communication was sexually explicit.


The right of people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

60 STUDENT PRIVACY Landmark Decisions 1. New Jersey v. TLO, 1985
a. “The legality of a search of a student should depend on the reasonableness, under all circumstances, of the search.” i. The search must be justified at its inception (based on “reasonable suspicion”); and ii. The measures used “must be reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction.” b. Reasonable suspicion is a less rigorous standard than the probable cause requirement for searches by law enforcement officers. c. No search warrant required.

61 STUDENT PRIVACY Landmark Decisions
2. Vernonia School District v. Acton, 1995 School district’s random drug testing policy for interscholastic athletics was constitutional. 3. Bd. of Ed. Of Ind. Sch. Dist. No. 92 of Pottawatomie v. Earls, 2002 School district’s random drug testing policy for students participating in any extra-curricular activities, or who drove to school in private vehicles, was constitutional.

§ Guidelines for student searches. The Board of Education shall develop, in consultation with the Office of the Attorney General, guidelines for school boards for the conduct of student searches, including random locker searches, voluntary and mandatory drug testing, and strip searches, consistent with relevant state and federal laws and constitutional principles. School boards shall adopt and revise, in accordance with the requirements of this section, regulations governing student searches that are consistent with the guidelines of the Board.

63 STUDENT PRIVACY Practical Applications 1. Educators should do their jobs and let law enforcement do theirs – the standards are different. But if acting at the direction of police, full 4th Amendment protections likely will be afforded the student. 2. Miranda warnings are not required by school officials questioning students regarding alleged violations of school rules. 3. School authorities do not need the consent of the student to conduct a search. 4. If schools so notify constituents, lockers are school property. 5. Educators enjoy sovereign and/or statutory immunity.

64 STUDENT PRIVACY § :2. Civil immunity for teachers under certain circumstances. A. Any teacher employed by a local school board in the Commonwealth shall not be liable for any civil damages for any acts or omissions resulting from the supervision, care or discipline of students when such acts or omissions are within such teacher's scope of employment and are taken in good faith in the course of supervision, care or discipline of students, unless such acts or omissions were the result of gross negligence or willful misconduct. B. No school employee or school volunteer shall be liable for any civil damages arising from the prompt good faith reporting of alleged acts of bullying or crimes against others to the appropriate school official in compliance with specified procedures. C. This section shall not be construed to limit, withdraw or overturn any defense or immunity already existing in statutory or common law or to affect any claim occurring prior to the effective date of this law, or to prohibit any person subject to bullying or a criminal act from seeking redress under any other provision of law.

65 STUDENT PRIVACY Practical Applications 1. Canine searches constitutional under certain circumstances. 2. Strip searches are disfavored in most circumstances (will not be reasonable in scope); many school districts forbid strip searches by policy. Safford Unified School District v. Redding (2009) Strip search of 13 year old female middle school student for common pain relievers did not satisfy the T.L.O. reasonableness test.


67 Computer Use by Faculty & Staff
Ufrosky v. Gilmore, 4th Circuit, 2000 Public school professors unsuccessfully claimed their First Amendment rights abridged by Universities’ policy and Virginia state law prohibiting access to lewd and indecent websites on school owned or school leased computers . Restriction on access to sexually explicit material on state owned or leased computers under Va. Code § lawful because statute regulates speech only in the context of professors’ role as state employees. Of course, the public school professors could not be prevented from accessing sexually explicit material on their personal computers by the state law.

68 TECHNOLOGY: new implications in first and fourth amendment rights

69 Basics of Technology Law for Public Schools
The school board can regulate technology-related conduct through its policies with limitations. Schools must have an Acceptable Internet Use Policy. What happens on a school-owned computer is subject to discipline regardless of where it happens. Conduct that is prohibited in the face-to-face context is prohibited through electronic communication. Creation of policy and administration of discipline must be balanced against First and Fourteenth Amendment rights. School officials may search students provided search is reasonable at inception and in scope.

70 Virginia Code on School Technology
Va. Code § : ACCEPTABLE INTERNET USE POLICIES FOR PUBLIC AND PRIVATE SCHOOLS. A. Every two years, each division superintendent shall file with the Superintendent of Public Instruction an acceptable use policy, approved by the local school board, for the Internet. At a minimum, the policy shall contain provisions that (i) are designed to prohibit use by division employees and students of the division's computer equipment and communications services for sending, receiving, viewing, or downloading illegal material via the Internet; (ii) seek to prevent access by students to material that the school division deems to be harmful to juveniles as defined in § ; (iii) select a technology for the division's computers having Internet access to filter or block Internet access through such computers to child pornography as set out in § :1 and obscenity as defined in § ; (iv) establish appropriate measures to be taken against persons who violate the policy; and (v) include a component on Internet safety for students that is integrated in a division's instructional program. The policy may include such other terms, conditions, and requirements as deemed appropriate, such as requiring written parental authorization for Internet use by juveniles or differentiating acceptable uses among elementary, middle, and high school students. B. The superintendent shall take such steps as he deems appropriate to implement and enforce the division's policy.

71 Virginia Code – Technology (continued)
C. On or before December 1, 2000, and biennially thereafter, the Superintendent of Public Instruction shall submit a report to the Chairmen of the House Committee on Education, the House Committee on Science and Technology, and the Senate Committee on Education and Health which summarizes the acceptable use policies filed with the Superintendent pursuant to this section and the status thereof. D. In addition to the foregoing requirements regarding public school Internet use policies, the principal or other chief administrator of any private school that satisfies the compulsory school attendance law pursuant to § and accepts federal funds for Internet access shall select a technology for its computers having Internet access to filter or block Internet access through such computers to child pornography as set out in § :1 and obscenity as defined in § E. The Superintendent of Public Instruction shall issue guidelines to school divisions regarding instructional programs related to Internet safety. (1999, c. 64; 2001, c. 269; 2006, cc. 52, 474.)

72 Internet Filters Required by Virginia Law
Challenged by ACLU as “over-inclusive” and therefore unconstitutional Gay/Lesbian websites Alternative religion/spirituality websites Settlement of lawsuit in Tennessee Threatened, but resolved, in at least one Virginia school district

73 Virginia Code on Electronic Devices in School
Va. Code § : BOARD OF EDUCATION GUIDELINES AND MODEL POLICIES FOR CODES OF STUDENT CONDUCT; SCHOOL BOARD REGULATIONS. (IN PERTINENT PART) B. School boards shall adopt and revise, as required by § :7 and in accordance with the requirements of this section, regulations on codes of student conduct that are consistent with, but may be more stringent than, the guidelines of the Board. School boards shall include, in the regulations on codes of student conduct, procedures for suspension, expulsion, and exclusion decisions and shall biennially review the model student conduct code to incorporate discipline options and alternatives to preserve a safe, nondisruptive environment for effective teaching and learning. Each school board shall include, in its code of student conduct, prohibitions against bullying, hazing, and profane or obscene language or conduct. School boards shall also cite, in their codes of student conduct, the provisions of § , which defines and prohibits hazing and imposes a Class 1 misdemeanor penalty for violations, i.e., confinement in jail for not more than 12 months and a fine of not more than $2,500, either or both. A school board may regulate the use or possession of beepers or other portable communications devices and laser pointers by students on school property or attending school functions or activities and establish disciplinary procedures pursuant to this article to which students violating such regulations will be subject. (Code 1950…2009, c. 431.)

74 Students & Camera Phones
“Sexting” Distribution of racy photographs through cell phone text messages has become a fad among teenagers. Usually students are transmitting text message photos depicting the students themselves in various states of undress. The practice is also popular on the Twitter website, where users can ‘tweet,’ or upload a status message or status photo that can be viewed by the user’s ‘followers.’ Students transmitting and receiving these images on cell phones have been charged for criminal possession and distribution of child pornography – a felony offense – in both Pennsylvania and Ohio.

75 Students and Cell Phones
Pennsylvania School District Paid $33,000 to settle case; NN v. Tunkhannock Area School District Teacher seized phone from student who was seen using it before class, but during after school rules permitted her to make calls. Principal began pressing buttons to access phone’s photo album, which revealed pictures of the student naked. ACLU sued alleging district violated student’s 1st and 14th Amendment rights. Related criminal proceedings involving three other students: DA threatened students with child pornography charges if they refused to participate in a “re-education” program. Court of Appeals for the Third Circuit ruled that the DA’s threat of charges was in retaliation for the students’ assertion of constitutional rights. Mary Jo Miller, MM, et al. v. Jeff Mitchell, et al., (3rd Cir. 2010).

76 Students and Cell Phones
“The Harm in ‘Sexting’?: Analyzing the Constitutionality of Child Pornography Statutes that Prohibit the Voluntary Production, Possession, and Dissemination of Sexually Explicit Images by Teenagers,” 33 Harv. J.L. & Gender 687 (Summer, 2010) “Sex, Cell Phones, Privacy, and the First Amendment: When Children Become Child Pornographers and the Lolita Effect Undermines the Law,” 18 CommLaw Conspectus 1 (2009) “Sexting, Statutes and Saved by the Bell: Introducing a Lesser Juvenile Charge with an ‘Aggravating Factors’ Framework,” 77 Tenn. L. Rev. 1 (Fall, 2009)

77 Laney v. Farley, 6th Circuit, 2007
- School officials confiscated cell phone which rang during class, imposed 1 day of in-school suspension on student who served that suspension before notice given to parents. School kept phone from requesting parent for a full 30 days in accordance with school policy. Court found suspension and prolonged confiscation did not violate due process concerns – extended deprivation of cell phone was not deleterious to student’s education and did not produce injury to student’s reputation.

78 Klump v. Nazereth Area School District, et al., (E.D. Pa. 2006)
Student alleged that teacher confiscated his cell phone because he displayed it in violation of school policy prohibiting the use or display of a cell phone during school Further alleged that teacher and principal called nine other students listed in the cell phone’s directory to determine whether they, too, were violating the school’s policy. Finally, the student alleged that the principal and teacher accessed his text messages and voic , and sent instant messages to his brother without identifying themselves as anyone but the student. Student brought claims under the Pennsylvania Wire Tap Act, for defamation, and for unconstitutional search and seizure under the 4th Amendment.

79 Klump v. Nazareth Area School Dist., cont’d
Regarding the 4th Amendment claim, the Court denied the individual defendants’ claims for qualified immunity. The Court held that: The teacher was justified in seizing the phone, as the student had violated the school’s policy. However, the teacher and principal did not have justification for calling the other nine students. On a Motion to Dismiss, the Court was obligated to accept facts as pled by the student and, therefore, had to accept that certain drug-related messages in the phone were not received until after the administration seized the phone, not at the inception of the search.

80 J.W. v. Desoto County School District, et al., (2010 N.D. Miss)
ACLU filed suit on behalf of a middle school student alleging that he was wrongfully expelled from school following an illegal search of his cell phone, in violation of his 1st, 4th and 14th Amendment rights. Football coach and administrators confiscated 12 year-old honor student’s cell phone after he impermissibly read a text message from his father during class; discovered pictures of what officials believed were “gang-related activity.” Phone was turned over to law enforcement officials, who identified what they believed to be gang activity and symbols on the phone. Student was suspended for three days, and required to attend a subsequent disciplinary hearing, following which he was expelled from school as a “threat to school safety.” Federal district court granted motions to dismiss filed by City and individual defendants (School Board apparently did not file motion) Under T.L.O analysis, individual school defendants were entitled to qualified immunity because the student was caught using the phone at school, a direct violation of school rules; the Court said the phone, therefore, was contraband when the student brought it on school property.

81 J.W. v DeSoto, Cont’d “Upon witnessing a student improperly using a cell phone at school, it strikes this court as being reasonable for a school official to seek to determine to what end the student was improperly using that phone. For example, it may well be the case that the student was engaged in some form of cheating, such as by viewing information improperly stored in the cell phone. It is also true that a student using his cell phone at school may reasonably be suspected of communicating with another student who would also be subject to disciplinary action for improper cell phone usage.” Despite competing stories regarding whether the phone was open or closed at the outset of the search, the Court determined that the search, under T.L.O., was “justified at its inception.” In granting the motions on the 4th Amendment claims, the Court wrote “The fact that this court, after having researched nationwide authority on this issue, is unable to determine that the search in this case was unlawful clearly supports a conclusion that a school teacher lacking legal training should not be forced to defend himself at trial for his split-second decision in this regard.”

82 J.W. v. DeSoto, cont’d The Court, however, expressed grave concerns regarding the student’s expulsion, and allowed the 14th Amendment claims as against the school district to be tried by jury. The Court “has serious concerns regarding the wisdom and legality of the school district’s decision to expel the student based on its subjective impressions of photographs depicting him in his personal life.” “The court is troubled by the fact that the student somehow found himself expelled for an entire school year when the only offense he committed was the minor offense of bringing a phone on school grounds.” After acknowledging its deference to school administrators in their efforts to ensure a safe learning environment, the court wrote “it is one thing for a school to seek to prevent gang violence from erupting in its hallways by prohibiting the wearing of gang apparel or the making of gang signs at school. It is another for a principal to, in effect, call in a student on a Monday morning and ask him to explain, under penalty of expulsion, why he was observed wearing a particular piece of clothing or seen running with a ‘bad crowd’ over the weekend.” “The court is confident that the school district acted with the best of intentions when it expelled the student, but it must recognize that there are limits (including in its own rules) upon the power of school officials to police the private lives of their students.”

83 Lower Merion School District (PA)
District settled “laptop spying” case for $610,000, including $425,000 in legal fees. The district incurred more than $1,000,000 in its own attorneys’ fees. Student and parents sued district for invasion of privacy after school officials allegedly used webcam on school issued laptop to take pictures of student in his bedroom which, school officials said, revealed the student using drugs. The district said it activated the web cams on many computers as part of an effort to prevent theft and to recover lost or stolen computers. The district’s internal investigation revealed more than 50,000 images and screen shots taken over two years by school officials without knowledge of students or their parents.

84 Search and Seizure Remember: justified at inception and reasonable in scope. Search and seizure of technology is allowed, provided both the search and seizure are proper. Consider whether technology itself may be an information source rather than verbal reports from students. A technology search may be a two part search: The search for the technology; and The search for the communication on the technology. Use caution when transmitting or storing images in your personal files.


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