TECHNOLOGY IN THE SCHOOLS. Winter 1999

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1 TECHNOLOGY IN THE SCHOOLS Winter 1999 Most school disu'icts provide Internet access to their employees and students. Many also have electronic mail ( ) systems that allow the exchange of between users on their internal network and other entities on the Internet. While these technologies provide many new opportunities to school district employees and students, as with any new technology this new medium is vulnerable to misuse. There are numerous concerns connected with Internet and usage including: district liability for defamatory or discriminatory statements sent by employees, discrimination or harassment claims resulting from the transmission of inappropriate materials or messages, violation of copyright laws, and compliance with the Open Meetings Law, just to name a few. To manage student and employee use of these technologies, school boards are encouraged to put in place explicit written policies. This Legal Notes will highlight several of the potential problems involved with employee and student use of and the lnternet and outline what school boards should include in their computer use policies to address these legal issues. Defamation The Internet allows anyone connected to it to disseminate information, statements or gossip to millions of people in seconds. It would be an understatement to say that libel and slander are rampant on the Internet. While the issue has yet to be decided, employers may be held liable for or Internet-related activities of their employees. In many cases, employee or postings may cany the school district's name. Therefore, defamatory statements sent by employees could be attributed to the district. As such, it is important for employees to be aware that the same discretion that they are expected to use in any written communication also applies to communication via the Intemet. WISCONSIN ASSOCIATION OF SCHOOL BOARDS, INC. 122 W. WASHINGTON AVENUE, MADISON, WI PHONE: FAX:

2 On a related issue, a state statute imposes criminal sanctions for any person who uansmits a threatening, harassing, or abusive message on an electronic mail or other computerized communication system. Under this statute an employer may be subject to criminal forfeitures if it knowingly permits or directs its employees to send a prohibited message and the computer is under the employer's control, t Harassment School districts have an obligation to provide a work/school environment free of discrimination and harassment. Inappropriate material circulated internally can create problems. A subsidiary of Chevron Corporation settled a sexual harassment lawsuit for $2.2 million after a list called "Why Beer is Better Than Women" was circulated through its system. Likewise, off-color or sexually explicit messages sent to others create the potential for liability. Such messages can be used to support a harassment or discrimination claim. In Strauss v. Microsoft Coo. z, a supervisor sent messages to various employees in the office which included referring to another woman in the office as the "spandex queen," an offer of $500 to a temporary receptionist if she would permit him to call her "sweet Georgia Brown," a parody of a play entitled "A Girl's Guide to Condoms," and a reference to himself as president of the "amateur gynecology club." These communications, just like written interoffice memoranda, were admissible evidence in is a sex discrimination law suit. Pornographic and sexual images are widely available on the Internet. These images can be accessed by an employee and displayed on the employee's monitor. Conceivably, the display of such images on an employee's monitor can give rise to a sexual harassment claim whereby an employee claims that the employer allowed the creation of a hostile work environment. Accordingly, these issues need to be addressed in the school board's sexual harassment and/or computer use policy. Copyright Infringement Districts need to be mindful that the software and other information that is downloaded through the Internet may be subject to copyright laws. Downloading and using such information via the Internet is, realistically, no different than using a photocopier to reproduce printed copyrighted material. Therefore, the "fair use" standards applicable to textbooks and other written materials may also apply to the use of copyrighted materials found on the Internet. The "fair use doctrine" provides a limited basis by which people can use a copyrighted work without getting permission from the creator. The essence of the fair use doctrine is that the person is not using the work in a manner that is, or has the potential of, diverting income from the creator. 3

3 As to computer software, it is very easy for programs to be downloaded from Interact websites or sent via to individuals who do not hold a software license. However, is should be noted that it is perfectly legal to download software that is designated as freeware, '~ public domain, 5 or shareware. 6 Being caught with illegal software can subject an individual or organization to criminal as well as civil penalties. 7 Therefore, it is advisable for school boards to consider establishing a written policy prohibiting employees and students from uploading or downloading copyrighted software over the Internet or bulletin board systems. First Amendment Issues Use of the Internet raises several First Amendment issues. Students and employees may claim free speech rights in connection with the information they post on the system. Claims regarding the right to access information and academic freedom may also arise. While the First Amendment protects student speech, such speech is subject to limitations. Student speech may be limited in order to promote effective education, but not as a pretext for punishing a pupil for his/her viewpoint. The courts have found that schools are entitled to exercise greater control over activities that may be characterized as part of the curriculum to assure that the participants are not exposed to material that may be inappropriate for their level of maturity and that the views of the individual speakers are not enoneously attributed to the school. 8 Therefore, making it clear that the Internet system has been established for an educational purpose will support educationally-based restrictions placed on student speech. Districts must, however, ensure that restrictions are not so broad as to have a chilling effect on legitimate expression. For employee speech to be protected, it must first touch upon a matter of public concern; if it does not, the speech is not protected. If the speech does implicate a matter of public concern, a balancing test is applied to determine if the employee's interest in speaking out outweighs the employer's interest in maintaining the efficient operation of the school. 9 Since each determination is based on the unique facts present, deciding whether protected speech is involved is not easy. For these reasons, any restrictions on employee speech should be carefully crafted and reasonably related to an educational purpose. While school boards and educators enjoy broad powers to select and regulate course curriculum in the compulsory setting of the classroom, courts have applied a more rigid test to a school board's regulation of library materials.~ One method available to limit access to certain materials on the Internet is to use filtering software. The constitutionality of the use of such software has been questioned. For example, in Mainsaeam Loudoun v. Board of Trustees of the Loudoun County Library, adult patrons

4 challenged a Virginia public library's use of X-Stop software to block pornography on all library computers. In apre-trial ruling, the court held that the library can't use the blocking software unless it meets the highest level of constitutional scrutiny. The court, however, emphasized that its ruling applied only to public libraries, not public schools and that the ruling involved the right of adults, not minor students. Courts are willing to uphold restrictions when they are tailored to protect children. Thus, it is likely that courts will allow schools to restrict student access to adult Internet web sites and require that all use be related to some type of educational purpose. Courts have recognized a teacher's fight to academic freedom; however, this right is not absolute and must be balanced with a school's legitimate interest in providing an appropriate education. To achieve constitutional protection, questionable material must be aimed at achieving a reasonable and valid educational objective. Therefore, reasonable limitations on Internet usage which serve an educational purpose would probably not violate a teacher's constitutional fights. Search and Seizure In order to be protected fiom an unreasonable search under the Fourteenth Amendment, the individual must have a reasonable expectation in the privacy of the thing being searched. The privacy of or Internet usage continues to be the subject of debate. There have been no definitive rulings in this area. However, courts have been reluctant to recognize a reasonable expectation of privacy in the of employees) ~ Generally, in the school setting, the legality of a search depends simply on its reasonableness, under all the circumstances. To meet the reasonableness standard, a search must be reasonable both in its inception and in its scope. Before initiating a search, there must be reasonable grounds for suspecting that the search will turn up evidence that the student/employee has violated or is violating either the law or the rules of the school. In addition, the scope of the actual search must be reasonably related to the objectives of the search. This standard has been applied to searches of student lockers as well as an employee's workplace (which includes those areas and items that are related to work and are generally within the employer's control) and may be applicable to school technologies as well. In order to negate any expectation of privacy it is advisable to forewarn users as to the circumstances in which usage will be monitored. It should be made clear that the computers are owned by the school district and users have no rights to personal privacy in connection with their usage of the system. Further, students and employees should be required to sign a written consent form whereby the individual consents to monitoring of all the individual's Internet activities, including, but not limited to, web sites accessed, newsgroup activities and content.

5 Even if the school district retains the right to monitor and Internet usage, school authorities may still have an obligation not to disseminate the content of messages obtained. Such dissemination may give rise to a separate cause of action for invasion of privacy or defamation. Therefore, prior to using any of the information which is retrieved, it would be advisable to consult with legal counsel. School Board Matters The Attorney General has indicated that meetings can occur via communications between members of a public body. t2 Therefore, school board members need to be cautious so that their communications do not take the form of a "walking quorum" - i.e., a series of gatherings among separate groups of members, each less than quorum size, who agree, tacitly or explicitly, to act uniformly in sufficient number to reach a quorum. An example would be a situation where a communication is sent to all board members asking for review and comment/decision on a proposal. In such situations a decision can result without there being the requisite public notice. Similarly, school boards should also be cognizant of the fact that communications and other computer generated messages sent by board members are public records. Public records are defined as any material on which written, drawn, printed, spoken, visual or electromagnetic information is recorded or preserved regardless of physical foml or characteristic, which has been or is being kept by an authority. Therefore, communications will be subject to disclosure unless a requested communication fits within one of the enumerated exceptions to the Public Records Law, or it could be determined that the public interest favored nondisclosure of such commtmication. Acceptable Use Policies The need for a school board policy addressing and Internet usage, commonly referred to as an "acceptable use policy" (AUP) cannot be overemphasized. Having a well drafted policy in place can alleviate disagreements when an improper use is found and a punishment imposed. Employee Use Policies applicable to employees should include at least the following elements:. A statement that the computers and their software are educational tools owned by the district.

6 . A statement that Internet and services are public and not private in nature and that the district reserves the right to monitor and access an employee's Internet activities and content.. Neither nor the Internet should be used to send jokes or other comments that may be discriminatory, harassing or offensive to others, or material that defames an individual, company or business, or discloses personal information without authorization.. Consistent with the board's general policies on sexual harassment, employees should be notified that they are not to display images of a sexual nature on their monitors. 5. A statement regarding the penalties for violating the policy.. You may also want to make employees aware that criminal sanctions are provided for under Wis. Stat for threatening, intimidating, abusive or harassing messages sent to another person through electronic mail or other computerized communication systems.. A consent forn~ should accompany the policy whereby the employee acknowledges that messages and Internet usage are not private and explicitly consents to the monitoring and access of all of the employee's Internet activities and . Student Use In addition to the provisions noted above, any policy applicable to students should also include the following elements: 1. A statement that lnternet usage is a privilege, not a right.. A code of conduct governing the behavior of pupils accessing and using the lnternet.. A statement regarding a pupil's potential exposure to obscene or objectionable material.. A statement regarding the penalties for failure to abide by the policy. These may include a revocation of use privileges as well as trigger discipline, including suspension or expulsion depending upon the pupil's conduct.

7 .. Parental authorization for a pupil's use of the Internet. A statement and signature reflecting the pupil's and parent's consent to the rnonitoring and interception of the pupil's Internet activities, as,,veil as the pupil's agreement to abide by the rules and code of conduct established by the policy as well as all other applicable laws. Conclusion The Intemet provides an exciting opportunity for learning. While the Intemet and usage can provide unique benefits, it is not without the potential for problems. These technologies, like any other, can help in the educational process, but only if they are used correctly. An absolutely essential part of con'ect use is a well crafted acceptable use policy. Without a well written acceptable use policy a school disttict may find that the benefits of Intemet access are outweighed by the risks and costs. These may include reduced productivity, as well as claims of sexual harassment, defamation and copyright infringement. Such a policy needs to set forth the rights and responsibilities of all parties in connection with use of these technologies, as well as inform users that their use is not private and is subject to monitoring. ients wasb' 15,legal notes-v, inter '99.doc Wis. Stat : 1995 U.S. Dist. LEXIS 7433 (SD.N.Y. 1995). 3 See, "Fair Use Sets Videotape Guideline" ttqsconsin School News (March 1983). Frecware: Copyrighted software given away for free by the author. Although it is available for free, the m~lhor retains the copyright, which means that you cannot do anything with it that is not expressly allowed by the author. Usually, the author allows people to use the software, but not sell it. 5 Public-domain software: Refers to any program that is not copyrighted. It is free and can be used without restrictions. 6 Shareware: Copyrighted software distributed on the basis of an honor system. Most shareware is delivered free of charge, but the author usually requests that you pay a small fee if you like the program and use it regularly. By sending the small fee, you become registered with the producer so that you can receive service assistance and updates. You can copy sharcware and pass it along to others, but they too are expected to pay a fee if they use the product. See, "Software Licensing and the Consequences of Pirating Software" Wisconsin School News (October 1997). 8 9 tl Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988). Connick v. Mevers, 461 U.S. 138 (1983). Board of Education, Island Trees Union Free Scltool District No. 26 v. Pico, 457 U.S. 853 (1982). Bohach v. City of Reno, 932 F. Supp (D. Nev. 1996). Opinion to Paul Kritzer, August 20, Wis+ Stat (2).