SCHOOLS AND SOCIAL MEDIA— MANAGING THE GREAT ENABLER ACSA 2015 Personnel Institute October 8, 2015 Jonathan A. Pearl, Attorney Dannis Woliver Kelley Tel | 619.595.0202 Email | [email protected]Candace M. Bandoian Dannis Woliver Kelley Tel | 562.366.8500 Email | [email protected]
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SCHOOLS AND SOCIAL MEDIA—MANAGING THE GREAT ENABLER
ACSA 2015 Personnel InstituteOctober 8, 2015
Jonathan A. Pearl, AttorneyDannis Woliver KelleyTel | 619.595.0202Email | [email protected]
Candace M. BandoianDannis Woliver KelleyTel | 562.366.8500Email | [email protected]
About Our Firm
For more than 35 years, Dannis Woliver Kelley (DWK) has provided trusted counsel and
forward-thinking legal solutions to school and community college districts, county offices of
education, and other educational entities throughout California in all areas of education law.
We are a diverse, women-owned law firm with offices located in: San Francisco, Long Beach,
San Diego, Novato and Chico.
DWK is at the forefront on legal issues our clients face. Most importantly, we know how to
work with our clients to resolve these issues. We build long-standing partnerships with our
clients by acting as more than just lawyers—we are strategic advisors that are dedicated to
helping future generations enjoy the right to public education.
Our range of experience and the communication between our practice groups provide an
unmatched resource. Since we have hundreds of clients throughout the state, we are aware of
trends that impact your interests. We recognize issues that others may fail to spot, and work in
close collaboration with clients to devise practical strategies for resolution.
We were one of the first law firms in California to dedicate its practice exclusively to education
law. We advise boards and district leadership with passionate conviction and insight. We find
our work enormously rewarding. For more than 35 years, we have stood shoulder-to-shoulder
with our clients—working together for the betterment of California’s educational system.
DWK offers high-quality, effective, and prompt legal services in all areas of education law. Our
practice groups are comprised of experienced attorneys who possess thorough knowledge of
the issues and challenges facing our clients in the following areas:
» Labor, Employment and Personnel
(LEAP)
» Board Ethics, Transparency and
Accountability (BETA)
» Business, Property and Finance
» Construction
» Charter Schools
» Student Issues and Special
Education
» Litigation
» Community Colleges/Higher
Education
Our team approach to client service means that while specific attorneys represent a client,
several others will remain informed of the client’s issues so that they may assist if needed. We
pride ourselves on the in-depth experience within the firm and on the promptness with which
we respond to a client’s inquiry. We regard ourselves as members of our client’s team. Our
objective is to work with our clients to help them carry out their goals and mission!
This training is provided for educational, compliance and loss-prevention purposes only and, absent the express, prior agreement of DWK, does notcreate or establish an attorney-client relationship. The training is not itself intended to convey or constitute legal advice for particular issues orcircumstances. Contact a DWK attorney for answers to specific questions.
Does your district have a policy that says somethinglike?
“The content of all official district or district-sponsored online platform presences shall be limitedto current and useful information regarding thedistrict’s official and/or sponsored educationalprograms, activities and operations. Such contentshall support the educational mission of the districtand be appropriate for all audiences. Official districtand district-sponsored online platform presencesshall not post, display, or otherwise communicatecontent not expressly authorized by theseguidelines.”
“Congress shall make no law…abridging thefreedom of speech, or of the press; or theright of the people peaceably to assemble, andto petition the Government for a redress ofgrievances.”
Ceballos sued, claiming retaliation for protectedFirst Amendment activities
Under Connick v. Meyers (1983) 461 U.S. 138,an employee’s comments about matters of publicconcern are protected from adverse employmentaction unless the statement is so disruptive ofthe public employer’s mission the employer musttake action in order to carry out itsresponsibilities
The Court held that Connick would not apply tospeech arising from the specific assigned duties ofa public employee In other words, a derogatory comment made by a public
employee arising from the course of his or her actualduties is not protected by the Connick rule, and anyadverse action taken against the employee will not qualifyas retaliation against protected speech.
The Court based its ruling on the important needof the public agency for flexibility in performing itsimportant public functions
“[W]hen public employees make statementspursuant to their official duties, the employeesare not speaking as citizens for First Amendmentpurposes, and the Constitution does not insulatetheir communications from employer discipline.”
In its decision the Court did reserve the questionof “whether the analysis we conduct today wouldapply in the same manner to a case involvingspeech related to scholarship or teaching.”
Teacher SpeechDemers v. Austin (9th Cir., 11-35558, 9/4/13)
Held that Garcetti does not apply to teachingand academic writing that are performed“pursuant to the official duties” of a teacher andprofessor.
Note: It is unclear whether this decision applies to K-12.Demers is a higher education case.
In Demers, the Court held that such teachingand writing by publicly employed teachers isgoverned by the two-part test in Pickering v.Board of Education (1968) 391 U.S. 563.
The employee speech addresses “matters ofpublic concern”; and
The employee’s interest “in commentingupon matters of public concern” outweighs“the interest of the State, as an employer, inpromoting the efficiency of the publicservices it performs through its employees.”
(Pickering v. Board of Education (1968) 391 U.S. 563;Demers v. Austin (9th Cir., 11-35558, 9/4/13).)
A public employee's speech is protected when he orshe (1) speaks as a private citizen upon (2) amatter of public concern, and (3) the employee'sinterest in exercising his or her First Amendmentrights is greater than the employer's interest in theefficient operation of the public agency
Outside Employee ExpressionLand v. L’Anse Creuse Public Sch. Bd. of Educ.
(cont’d.)
Michigan’s Tenure Commission reinstatedteacher: conduct was not illegal; occurredoff school grounds; No students present; Didnot advocate for conduct she engaged in
On appeal Court affirmed the Commission--insufficient nexus or “link between out–of–school acts and in–school behavior”
In Morrison v. State Board of Education (1969) 1Cal.3d 214, the California Supreme Courtarticulated factors relevant to a determination of ateacher's unfitness to teach:
(1) “the likelihood that the conduct may have adverselyaffected students or fellow teachers [and] the degree of suchadversity anticipated”(2) “the proximity or remoteness in time of the conduct”(3) “the type of teaching certificate held by the partyinvolved”(4) “the extenuating or aggravating circumstances, if any,surrounding the conduct”
(5) “the praiseworthiness or blameworthiness of the
motives resulting in the conduct”
(6) “the likelihood of the recurrence of the questionedconduct” and
(7) “the extent to which disciplinary action may inflict anadverse impact or chilling effect upon the constitutionalrights of the teacher involved or other teachers”
“Immoral” has been defined generally as that which ishostile to the welfare of the general public and contrary togood morals
Immorality not confined to sexual matters, includesconduct inconsistent with rectitude, or indicative ofcorruption, indecency, depravity, dissoluteness; or aswillful, flagrant, or shameless conduct showing moralindifference to the opinions of respectable members of thecommunity, and as an inconsiderate attitude toward goodorder and the public welfare
Must be considered in conjunction with the unique positionof public school teachers, upon whom are imposed“responsibilities and limitations on freedom of action whichdo not exist in regard to other callings”
Teacher posts on Facebook that her students arecriminals and that she feels like a “warden”; andsuggests that some of her students attend“Scared Straight”
A week before the post, some students hit andstole from the teacher
School also held a “Scared Straight” program theday of the posting
In re O'Brien(N.J. Super. Ct. App. Div., Jan. 11, 2013)
163 Lab.Cas. P 61317 (Unpublished)
ALJ: “An internet social-networking site such asFacebook is a questionable place to begin anearnest conversation about an important schoolissue such as classroom discipline. More to thepoint, a description of first-grade children ascriminals with their teacher as their warden isintemperate and vituperative. It becomesimpossible for parents to cooperate with or havefaith in a teacher who insults their children andtrivializes legitimate educational concerns on theinternet”
In re O'Brien(N.J. Super. Ct. App. Div., Jan. 11, 2013)
163 Lab.Cas. P 61317 (Unpublished)
ALJ: While First Amendment protections donot generally rise or fall on the publicreactions to a person's statements, “in apublic school setting thoughtless words candestroy the partnership between home andschool that is essential to the mission of theschools”
A parent posts a page on Facebook entitled,“Fire Principal Matthews”
The page details the reasons calling for thePrincipal’s firing, such as dropping testscores; mishandling of student discipline;and inaccessibility to the community
Teacher sees the page on Facebook and“likes” the page
“Once one understands the nature of what Carter did byliking the Campaign Page, it becomes apparent that hisconduct qualifies as speech. On the most basic level,clicking on the “like” button literally causes to be publishedthe statement that the User “likes” something, which isitself a substantive statement…That a user may use asingle mouse click to produce that message that he likesthe page instead of typing the same message with severalindividual key strokes is of no constitutional significance”
“In sum, liking a political candidate's campaignpage communicates the user's approval of thecandidate and supports the campaign byassociating the user with it. In this way, it is theInternet equivalent of displaying a political signin one's front yard, which the Supreme Courthas held is substantive speech”
“Users of the District electronic networkshould not expect confidentiality or privacywhen using District technology resources. TheDistrict regularly monitors email and electronicfiles on the District electronic network”
“The right of the people to be secure in theirpersons, houses, papers, and effects, againstunreasonable searches and seizures,shall not be violated, and no warrants shallissue, but upon probable cause...”
Exception for Public EmployersO’Connor v. Ortega (1987) 480 U.S. 709
Plurality of O’Connor Supreme Court held that awarrantless search by a government employer isreasonable:
If conducted for a “non-investigatory, work-relatedpurpose,” or for the “investigation of work-relatedmisconduct”; and
If reason for search is “justified at its inception”;and
If “the measures adopted are reasonably relatedto the objectives of the search and not excessivelyintrusive in light of the circumstances giving riseto the search”
Officers told that the city’s email policy, whichpermitted auditing emails, applied to texts, andthat they would be charged if they went overtheir allotted messages
Officer Quon sent personal texts – some sexual– and often exceeded his limit
The Supreme Court held that the city’s searchwas reasonable
Court assumed that Quon had a right to expectprivacy in his texts
Court found that the city had no obligation toconduct the least invasive possible search, butthat it did have to conduct a search based on a“legitimate work-related rationale”
Court reasoned the search was reasonable and“justified at inception” because it wasconducted to determine whether the characterlimit on texts should be changed.
Court reasoned that the scope of the searchwas reasonable because it was limited to onlytwo months’ of texts, and the only texts sentduring work hours were reviewed
Phone app developed by Mark Cuban, DallasMavericks owner
According to the Cyber Dust website, “Messagesdelete based on their length, ranging from 20 to100 seconds. If for some reason the recipientdoes not view the message within 24 hours, itwill expire and be deleted forever. Messages onour servers are never saved to disk, and are onlystored in memory until they are delivered orexpire.”
California Public Records ActGov. Code § 6250, et seq.
Public records are open to inspection at all timesduring the office hours of the state or local agencyand every person has a right to inspect any publicrecord, except as hereafter provided (Gov. Code §6253(a).)
“Public records” includes any writing containinginformation relating to the conduct of the public'sbusiness prepared, owned, used, or retained by anystate or local agency regardless of physical formor characteristics (Gov. Code § 6252(e).)
California Public Records ActGov. Code § 6250, et seq.
“Writing” means any handwriting, typewriting,printing, photostating, photographing,photocopying, transmitting by electronic mail orfacsimile, and every other means of recordingupon any tangible thing any form ofcommunication or representation, includingletters, words, pictures, sounds, or symbols, orcombinations thereof, and any record therebycreated, regardless of the manner in whichthe record has been stored. (Gov. Code §6252(g).)
City of San Jose v. Superior CourtPreviously published at 225 Cal.App.4th 75
Court of Appeal held that written communications(including text messages) sent or received by publicofficials and employees on their private electronicdevices, and using their private accounts were not“public records”
Court focused on the “public records” definition –that a record must be “prepared, owned, used, orretained” by the agency – and held that an agencycannot “use or retain” a text message transmitted onan official’s device that is not linked to the city’sserver or account