Legal Update: Effectively Navigating Student Issues in the Era of Social Media U C S A S S I S T A N T P R I N C I P A L S M E E T I N G W E D N E S D A Y, F E B R U A R Y 4, 2 0 1 5 Presenter: Kevin T. Sutton Want to download this presentation? Do it now: www.luskalbertson.com/ucs-ap
How Social Media Questions Make Us Feel
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
Intersecting Concepts Discipline Free Speech Parents Safety Privacy Policy Cyber- Bullying Disruption Search & Seizure Evidence
We used to think we had a pretty good grasp on this stuff
But Social Media is so much more than most people think
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.
Where Do We Start?
First Amendment Overview
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
Analysis of Speech Key Question: Does the speech cause a substantial disruption in school? If YES, discipline may be appropriate In NO, discipline not likely appropriate
Student Issues Abound Sampling of headlines Lawsuit alleges Mississippi district expelled him for online posting of nude photo of classmate New Jersey district settles lawsuit with student disciplined for profane offcampus tweet about principal Parents file claim against San Diego district after cyberbullying incident led to student s suicide Father of bullied student who committed suicide sues Illinois district and producers of anti-bullying video Oregon district settles student s lawsuit over high school dance team s social media policy Former student sues Minnesota district after sarcastic tweet leads to seven-week suspension from the past 6 months
The Courts Speak Recent Cases Bell v. Itawamba Cty. Sch. Bd. F.3d (5 th Cir. 2014) S.J.W. v. Lee s Summit R-7 School Dist. 696 F.3d 771 (8 th Cir. 2012) Kowalski v. Berkeley Cty. Schools 652 F.3d 565 (4 th Cir. 2011) J.S. v. Blue Mountain Sch. Dist. 650 F.3d 915 (3 rd Cir. 2011) Layshock v. Hermitage Sch. Dist. 650 F.3d 205 (3 rd Cir. 2011)
The Courts Speak Recent Cases J.C. v. Beverly Hills Unified Sch. Dist. 711 F.Supp.2d 1094 (C.D. Calif. 2010) Evans v. Bayer 684 F.Supp.2d 1365 (S.D. Fla. 2010) Doninger v. Niehoff 527 F.3d 41 (2 nd Cir. 2008) J.S. v. Bethlehem Area Sch. Dist. 807 A.2d 847 (Pa. 2002)
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
On-Campus v. Off-Campus Conduct
Remember First Amendment considerations Tinker Hazelwood Can police off-campus speech Substantial Disruption Consider safety, threats, violence Nexus to school activities
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)
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)
Fourth Amendment Issues
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
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)
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!
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)
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)
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)
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 inhouse 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
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
Questions?
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