Social Media: Friend or Foe? Controlling Liability for Teacher Use of the Internet

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Copyright © 2014, Franczek Radelet P.C. All Rights Reserved.Disclaimer: Attorney Advertising. This presentation is a publication of Franczek Radelet P.C. This presentation is intended for general informational purposes only and should not be construed as legal advice.

AASPA Personnel Administrator Boot Camp

Copyright © 2014, Franczek Radelet P.C. All Rights Reserved. Disclaimer: Attorney Advertising. This presentation is a publication of Franczek Radelet P.C. This presentation is intended for general informational purposes only and should not be construed as legal advice.

Social Media: Friend or Foe? Controlling Liability for Teacher Use of the Internet

American Association of School Personnel Administrators Personnel Administrator Boot Camp

Jackie Gharapour [email protected]: @EdLawInsights

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Learning Targets

What is social media?

How does social media affect the school house?– Examples

– Checklist for Policies and Procedures

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What is Social Media?

Webpages that do not simply provide information, but rather allow users to comment, exchange or share content, collaborate, and/or interact.

Also known as social networking websites.

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What is Social Media?

– Internet forums

– Blogs

– Vlogs

– Wikis

– Social networks (Facebook, Twitter, MySpace)

– Podcasts

– Photograph and video sharing programs (YouTube, Instagram)

– Rating websites

– Music sharing websites

– Crowdsourcing

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What is social media?

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Social Media in the Schoolhouse

How does social media come into play in the schoolhouse? 1. “Official” or “professional” social media

accounts2. Student Privacy Issues3. Employee “personal” social media

accounts when used in a manner that impacts the school community (and sometimes, student’s use that impacts teachers)

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Official District and Professional Accounts

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Types of Accounts

“Official” District Accounts:– A school district operates an “official” social

media account or website, but it can only do this through its employees

Employee “Professional” Accounts– Employee operates a social media account

for a school, department, class, or activity –hopefully with approval

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What is “District Business”?

Work conducted as an employee for educational, extra-curricular, or other business or operational purposes of the District

Includes communications with members of the District community in which the employee conducts or performs such work

Might relate to education, instruction, student and employee relations and discipline, extra-curricular activities, professional activities, and other District operations

Does not include protected concerted union activity

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Comments on District Social Media

School district’s Facebook policy spurs dislikeMarch 14, 2013

ourCastleRocknews.com

Critics of the Douglas County School District whose posts were removed from the district’s Facebook page aren’t buying the official explanation.

Kevin Leung, a frequent critic of school leadership who made an unsuccessful run for school board in November 2009, started the Facebook thread when he posted a link to videos of board members interviewing candidates for a vacant seat….

Leung’s Facebook posting and several responses were removed by the district, leading to claims of censorship.…

“I think they just removed comments they don’t want to see,” she said. “It’s just a trend of the district, that they’re shutting down dissenting views, and it’s frustrating.”

http://www.ourcoloradonews.com/castlerock/news/school-district-s-facebook-policy-spurs-dislike/article_95cd5bfe-8cf4-11e2-b874-001a4bcf887a.html

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Ways to Reduce the Risk

Executive level officials should operate “official” accounts (Board members, Superintendents, or their designees)

“Professional” accounts should be treated as extensions of the classroom, and require the same careful attention and supervision by employees as in the classroom

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Employees should open accounts using professional email accounts

Passwords should be theDistrict’s, not the employee’s

Set requirements for maintenance of the website

Make clear what the purpose of the website is and what user content will be deleted

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Additional Questions

Record Retention

Student Privacy Issues– FERPA and state student record laws

– Other privacy concerns

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Record Retention

State law may require

maintaining public

records.

If litigation is pending,

record retention may be

required.

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Student Privacy Issues

“Education records” = those records that contain information directly related to a student and which are maintained by an educational agency or institution or by a party acting for the agency or institution.

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Record Retention & FERPA - Example

In preparation for a due process challenge, a parent requests all records related to their student. The teacher regularly uses social media websites with her students.

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FERPA - Examples

A teacher has students create videos in class for an assignment. Since she is friends with many of her students and parents on Facebook, she wants to share the videos online. She also “stores” the videos on a public, professional YouTube page to easily find them later.

A teacher posts a picture of her students with information about a project they completed in school on her Edmoto account. She also posts a video to a private YouTube page to easily find them later.

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Student Privacy Issues

State laws may be violated by the use of a student’s name, information, or likeness (e.g., a photograph) without express permission. Examples of legal theories that might be raised include:

Misappropriation

Rights of Publicity

Intrusion into the Seclusion or Solitude

Public Disclosure of Private, Embarrassing Facts

Placing Someone in a “False Light” in the Public Eye

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Privacy and Confidentiality

http://www.huffingtonpost.com/2013/06/24/chelsea-chaney-facebook-bikini-photo_n_3487554.html

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Privacy and Confidentiality

Judge tosses part of lawsuit over Facebook bikini photoWSB-TV Atlanta

A judge tossed out parts of a lawsuit filed against the Fayette County School District after an administrator displayed a student's bikini picture during a seminar on Internet safety….

In an order, Batten wrote, “She shared her Facebook page, which includes her pictures, not only with her friend but theirs friends too. By doing so, Chaney surrendered any reasonable expectation of privacy when she posted a picture of her Facebook profile, which she chose to share with the broad audience available to her.”

http://www.wsbtv.com/news/news/local/judge-tosses-part-lawsuit-over-facebook-bikini-pho/nbLX3/

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Set up clear rules on what documents will be deleted automatically and can be deleted by staff

Consider options for printing/retaining “important” emails

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Avoid posting of student information or images on a personal websites, including social media websites

Avoid posting of student information or images for a personal purpose; only post student information for legitimate professional and pedagogical purposes

Avoid posting of student information or images on publicly available websites, even for a legitimate professional or pedagogical purpose, without first checking for a release on file

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Student & Staff Personal Accounts

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Student and Staff Personal Accounts

Issues– Teacher/Student Boundary Issues

– Teacher Misconduct Off Campus and Online

– Student Misconduct Off Campus and Online

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Teacher/Student Boundary Issues

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Inappropriate Communication with Students

Teacher establishes Facebook page

Informs students and links to their pages

“Peer-like” discussion (or worse) may (even inadvertently) occur

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Inappropriate Communication with Students

Text Messaging

– 4,200 text messages between “shy” student and teacher –Mom found them on phone bill

Social Networking

– Teacher: “[student] and [another student] sittin in a tree. K I S S I N G. 1st comes love then comes marriage. HA HAHA HA HA HA HA!!!!!!!!!!!!!!!!!!!!!!!! LOL”

– Student: “don’t be jealous cause you cant get any lol:)”

– Teacher: “What makes you think I want any? I'm not jealous. I just like to have fun and goof on you guys. If you don't like it. Kiss my brass! LMAO”

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Prohibit (or discourage) teacher contact with students though personal social media accounts Train employees on potential impacts of

their off-campus, online conduct with students Prohibit employees from having repeated

conduct with one student or a small group of students through social media and other technology

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Misconduct Off Campus and Online

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Misconduct on “Personal” Accounts

General rules regarding control of off-campus social media activity– Conduct can be regulated (including

disciplined) if not protected by the First Amendment

– Even speech that is protected can be regulated if certain standards are met

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Unprotected Speech Categories of speech not protected by the First Amendment

include:

– Fighting words

– Words that incite others to imminent lawless action

– Obscenities

– Defamatory speech

– True threats

Some speech that is not protected for students on school grounds may be protected off school grounds

– Lewd and indecent speech

– Promotion of drug use

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First Amendment - Employees

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First Amendment – EmployeesOff-campus, online conduct may be regulated if:

Speech made by employee as public employee

– Speech made pursuant to an employee’s official duties may not be protected

– Certain teaching, professional, and academic speech may be protected

Speech made by employee on matter of purely private concern

Impact on ability of employee to do his/her job is so great that balancing tips in favor of discipline

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An employee does not “speak as a citizen” when he makes a statement related to his “official duties.” Garcetti v. Ceballos(U.S. 2006).

Speech might be considered part of an employee’s official duties if it relates to “special knowledge” or “experience” acquired through the job.

What is a Private Citizen?

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What Is A Public Concern?

Content is the most important factor

Public concern: speech relating to any matter of political, social or other concern to the community

Private concern: personal gripes about the employment context or information about an employee’s private life

Concerns about supervisors?

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What Is A Public Concern? The allocation of school funds, and the administration’s

methods of informing, or not informing, the taxpayers of the real reasons why additional tax revenues were being sought for schools

Testifying before a state legislature

A memorandum relating to teacher dress and appearance thatthe school principal had circulated to various teachers at a public school

Statements concerning a school district’s allegedly raciallydiscriminatory policies

Where speech criticizes government inefficiency and waste, not as an aggrieved employee, but as a concerned citizen

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What Is A Public Concern?

Staff psychologist criticizing a hospital for unnecessary psychotropic drugs, failing to provide safe working conditions, and inadequately supervising a patient

The manner in which police and firefighters performedupon a particular occasion

Adequacy of funding for emergency services andenvironmental violations at wastewater treatment plant

An elementary school teacher who claimed she was fired for inviting actor Woody Harrelson to come speak to her class about the environmental benefits of hemp

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Not a Public Concern A Florida sheriff’s deputy was fired for showing a picture of himself in

uniform and bragging about his sexual and alcoholic feats on his MySpace profile.

A North Carolina elementary school teacher was suspended for listing “teaching chitlins in the ghetto of Charlotte” in the “About Me” section of her Facebook page.

A Georgia high school teacher was forced to resign for including an expletive and pictures of herself holding beer mugs and glasses of wine on her Facebook page.

A Nebraska state Penitentiary guard was suspended for posting the following comment on his Facebook page: “When you work in a prison, a good day is getting to smash an inmate’s face into the ground . . . For me today was a VERY good day.”

A sociology professor at a Pennsylvania university was placed on administrative leave for making a joke on her Facebook page about hiring a hitman.

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Balancing Test

Even if speech is made by an employee as a private citizen on a matter of public concern, discipline may be imposed if the employee’s right to express his views is outweighed by the district's need to operate its schools efficiently.

“When close working relationships are essential to fulfilling public responsibilities, a wide degree of deference to the employer’s judgment is appropriate.” Connick v. Myers (USSC 1983).

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Balancing Test

Factors to consider:– Threat to management authority

– Maintaining discipline

– Confidentiality

– Curtailing conduct impeding competent performance

– Need for loyalty and confidence

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Richerson v. Beckon (9th Cir. 2009)

Part time curriculum specialist and part time instructional coachfor teachers posted blog entries on publicly available blog

– Criticized co-worker and referred to co-worker as “white boy”

– Said she wanted to draw “a little Hitler mustache” on the unionrepresentative’s face

Blog entries were not protected speech

– They were personal attacks that far exceeded normal standards ofdecency, not matters of public concern

– The speech undermined the employee’s ability to complete her job,since teachers could not trust her

– One could reasonably predict that her speech would "disrupt co-worker relations, erode a close working relationship premised onpersonal loyalty and confidentiality, and interfere with herperformance of her duties"

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Spanierman v. Hughes (D. Conn. 2008)

High school English teacher’s contract was not renewed based on MySpace profile used to communicate with students regarding both school-related and non-school related matters.

– The teacher was warned to take down the profile, but after initially doing so created a new profile that was substantially the same.

– Administrators determined the new profile contained inappropriate comments and “peer like” discussions with students.

Trial court held that MySpace profile did not contain speech on a matter of public concern, and upheld the school district’s disciplinary decision.

– It contained primarily personal conversations between the teacher and users and creative writing.

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Test Yourself: Protected or Not?

Just a day after a 12-year-old girl drowned on aschool field trip to the beach, fifth-grade teacherChristine Rubino posted a status update, implyingthat her students may deserve the same fate. “Aftertoday, I’m thinking the beach is a good trip for myclass. I hate their guts,” Rubino wrote. A friend sooncommented, asking, “Wouldn’t you throw a life jacketto little Kwami?” But the teacher said she wouldn’t --not even “for a million dollars.”

Source: www.Switched.com

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Drowning Students?

Factors weighing against discipline:– Although the posting was “clearly inappropriate,”

the teacher was a 15 year veteran with an unblemished disciplinary record

– Her comments were directed at friends only and she was not friends with students or parents, so her comments were not published at large

– She removed the post three days later

– She was clearly repentant

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A first grade teacher posted on Facebook “I’m not a teacher – I’m a warden for future criminals!” and asked why she couldn’t bring her students to a “scared straight” program. The post was available to more than 300 “friends”, including friends in the school district and “friends of friends.” The teacher was not repentant.

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Warden for Future Criminals?

Factors weighing in favor of discipline:– Protests and irate phone calls to school

– Parents asking to have their children removed from teacher’s classroom

– Significant administrative and/or Board time devoted to the issue

– Openness of social media page to community

– Employee was not repentant

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The ALJ:– While First Amendment protections do not

generally rise or fall on the public reactions to a person's statements, “in a public school setting thoughtless words can destroy the partnership between home and school that is essential to the mission of the schools.”

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The ALJ:

– An internet social-networking site such as Facebook is a questionable place to begin an earnest conversation about an important school issue such as classroom discipline. More to the point, a description of first-grade children as criminals with their teacher as their warden is intemperate and vituperative. It becomes impossible for parents to cooperate with or have faith in a teacher who insults their children and trivializes legitimate educational concerns on the internet.”

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First Amendment - Students

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First Amendment – Students

Schools may regulate off-campus, online speech by students if:

1. The speech violates the school discipline code/acceptable use policy

2. The speech has a sufficient “nexus” to school

3. The speech is: – unprotected, and/or

– Causes or reasonably could be foreseen to cause a disruption to class work, substantial disorder, or an invasion of the rights of others (Tinker v. Des Moines)

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Test Yourself: Nexus & Disruption?

Sassy Student creates a fake profile parodying her teacher on Facebook.

She created the profile on her personal computer outside of school.

She sends the profile to an email list of hundreds of her classmates saying “Look at Teacher Wernz’ Facebook profile. She’s such a freak, we should talk to our parents to get them to get her fired.”

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Sassy Student’s Fake Facebook Page

Teacher Wernz

Lives in Chicago, Illinois

STATUS UPDATE:

If you don’t think I’m a good teacher, why don’t you just call my Superintendent and tell her how awful you think I am and get me fired?

STATUS UPDATE:

I love to do drugs and party all day and all night, especially with kids from my school. Someone give me some drugs!!!!

STATUS UPDATE:

I hate kids so #$#*R* much. I want to beat up all the stupid, ugly kids I work with.

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“Nexus”

Courts generally find a sufficient nexus between off-campus, online misconduct and the school environment where the student somehow introduces the material into the school community, despite having created it off-campus.

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“Nexus” Factors supporting a “nexus”

– Access at school– “Sending” to other students– “Aiming” to the school community– Encouraging action by the school community– Including false content

Factors against a “nexus”– Third parties notified the school about the content– Specific steps to segregate– Publishing in a manner unlikely to reach the school

(e.g., “private”)

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“Substantial Disruption”

The decision to discipline speech must be supported by the existence of specific facts that could reasonably lead school officials to forecast disruption

No actual disruption is required

Must have more than an “undifferentiated fear or apprehension of disturbance” or “a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint”

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“Substantial Disruption” Factors supporting a “substantial disruption”

– There is an actual disruption to teachers, students, or parents such as:

Disruptions in the classrooms or hallways

Voiced concerns from parents about safety or quality of instruction

A need to provide substitutes because of impact on employees

School officials being pulled away from their regular duties to deal with the fallout

– There was a past disruption in similar circumstances in the past

– The content is a type that would lead to a disruption if not quelled immediately, such as violent or threatening content toward members of the school community or misleading or false information

Factors against a “substantial disruption”

– There is merely a “buzz” about the speech

– Only a few students are pulled out of class

– One or two students feel hurt or insecure

– School officials simply dislike or disagree with the speech

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Substantial Disruption?

What is not enough?– Merely teasing another student (even if it’s

cruel)

– Creating a false profile of a teacher or administrator (even if it’s lewd and false)

– If the investigation and discipline of the student is what causes the disruption, that cannot be a basis for disciplining the student

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Test Yourself: Nexus & Disruption?

Sassy Student?

The mere fact that Sassy Student made a false parody – even one using lewd and obscene language – is likely not enough to establish a sufficient nexus or risk of substantial disruption.

Sassy Student encourages people to call the school, which may create a sufficient nexus and likelihood of disruption in this case.

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Have policies and procedures that make clear that off-campus, online misconduct can lead to discipline

Train employees and students on potential impacts of their off-campus, online conduct

Train students on the potential harmful impacts of cyberbullying and pursue non-disciplinary alternatives if necessary



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Social Media: Friend or Foe? Controlling Liability for Teacher Use of the Internet American Association of School Personnel Administrators

Personnel Administrator Boot Camp

Jackie Gharapour Wernz [email protected]

www.EdLawInsights.com Twitter: @EdLawInsights

Checklist For Social Media Policies and Procedures

Official and Professional Social Media Accounts Executive level officials should operate “official” accounts (Board members, Superintendents, or

their designees) “Professional” accounts should be treated as extensions of the classroom, and require the same

careful attention and supervision by employees as in the classroom Employees should open accounts using professional email accounts Passwords should be the District’s, not the employee’s Set requirements for maintenance of the website Require that the operator make clear what the purpose of the website is and what user content will be

deleted Alert employees to record retention and Illinois School Student Records Act responsibilities Set up clear rules on what documents will be deleted automatically and can be deleted by staff Consider options for printing/retaining “important” emails Avoid posting of student information or images on a personal websites, including social media

websites Avoid posting of student information or images for a personal purpose; only post student

information for legitimate professional and pedagogical purposes Avoid posting of student information or images on publicly available websites, even for a legitimate

professional or pedagogical purpose, without first checking for a release on file Teacher Boundary Issues Prohibit (or discourage) teacher contact with students through personal social media accounts Train employees on potential impacts of their off-campus, online conduct with students Prohibit employees from having repeated conduct with one student or a group of students through

social media and other technology Staff and Student Misconduct Off Campus and Online Have policies and procedures that make clear that off-campus, online misconduct can lead to

discipline Train employees and students on potential impacts of their off-campus, online conduct Train students on the potential harmful impacts of cyberbullying and pursue non-disciplinary

alternatives if necessary

mailto:[email protected]

http://www.edlawinsights.com/

Social Media: Friend or Foe? Controlling Liability for Teacher Use of the Internet

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